Close & Beake
[2024] FedCFamC1F 285
•7 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Close & Beake [2024] FedCFamC1F 285
File number(s): BRC 1092 of 2015 Judgment of: BAUMANN J Date of judgment: 7 May 2024 Catchwords: FAMILY LAW – PARENTING –where the father was convicted of serious assault of the mother which he continues to deny – where the child has spent no time with the father since 2017 – where the father seeks reintroduction and graduated time – where the mother opposes time – orders made for no time Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 68B, 69ZX(3) Cases cited: Close & Beake [2019] FamCA 78
Jones & Dunkel (1959) 101 CLR 298
Division: Division 1 First Instance Number of paragraphs: 84 Date of hearing: 5-7 October 2021 Place: Brisbane Counsel for the Applicant: Mr M Drysdale Solicitor for the Applicant: Best Wilson Buckley Family Law Counsel for the Respondent: Mr R Galloway Solicitor for the Respondent: Rostron Carlyle Rojas Lawyers Counsel for the Independent Children’s Lawyer: Ms D Firth (as she then was) Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
BRC 1092 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CLOSE
Applicant
AND: MR BEAKE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
7 MAY 2024
THE COURT ORDERS ON A FINAL BASIS:
Parental Responsibility
1.That the mother have sole parental responsibility for all major long-term decisions for the child, X born 2012 (“the child”), except for the child’s name.
2.That in terms of any major long-term decision made by the mother, the mother shall:
(a)inform one of the paternal aunts or uncles of the decision she has made; and
(b)request that such information be provided to the father.
3.That the child be known by the name X, and the mother or her servants or agents, be restrained from attempting to change the child’s name or having the child known be any other name/s.
Live With and Spend Time
4.That the child X born 2012, live with the mother.
5.That the child spend no time with, nor communicate with, the father.
Communication
6.That the father be at liberty to send to the child, to an address nominated by the mother, on the occasions of the child’s birthday, Easter and Christmas each year a card, letter, gift and photograph of the father.
Restraints
7.That for the personal protection of MS CLOSE and X born 2012, pending further order, MR BEAKE is restrained from approaching, assaulting, threatening, harassing, intimidating, molesting, stalking or otherwise interfering with MS CLOSE or the child X born 2012.
8.That pursuant to s 68B of the Family Law Act 1975, the Father be restrained and an injunction issue restraining him from:
(a)contacting the mother or the child by any means, save for sending of cards as provided for in these Orders.
(b)locating, attempting to locate or asking someone else to locate the mother or the child;
(c)contacting, attempting to contact, or asking someone else to contact the mother or the child, save for the sending of cards as provided for in these Orders.
(d)making telephone calls or sending messages (in electronic form) to the mother or the child;
(e)going within 50 metres of, entering or remaining at any school or care facility attended by the child;
(f)removing or attempting to remove the child from any school or care attended by the child;
(g)entering or remaining at any place of employment of the mother;
(h)entering or remaining at any place of residence of the mother and the child; or
(i)coming within 250 metres of any place of residence of the mother and the child.
Non-Reportable Counselling
9.That the mother will immediately organise non-reportable counselling for the child and that such counselling be undertaken by an approximately qualified person, namely Ms B.
10.That this Order act as authority for the mother to provide the following documents to the child’s counsellor:
(a)The Family Report of Mr C filed 2 September 2021;
(b)The sentencing remarks from the sentence of the father in the Town J District Court, dated late 2019; and
(c)The transcript of the child’s 93A interview dated 22 October 2019, as well as the transcript of the pre-record dated 20 June 2019.
11.That the Independent Children’s Lawyer be discharged after sixty (60) days from the date of this order
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
When the Applicant mother, Ms Close, and the Respondent father, Mr Beake, finally separated in early 2014, their only child X (born 2012) was in his second year.
With the benefit of at least two earlier family repots, the parents agreed to final parenting Orders on 3 March 2017 (“the March 2017 parenting Orders”).
However, the progress in arrangements for X to spend time with the father came to an abrupt and halt from late 2017 as a result of a serious incident, which caused the father to be charged and ultimately imprisoned.
X has therefore spent no time with the father since late 2017, and this stage of the litigation between the parents crystalised to a unresolvable dispute as to whether X should be recommencing some time and communication with the father.
STATUTORY PATHWAY
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
COMPETING PROPOSALS
The Court was greatly assisted by the efforts of the Independent Children’s Lawyer (“ICL”) in this matter, Ms Walsh. At the Final Hearing, the ICL was represented by Ms Firth of Counsel (as she then was), and in final submissions the ICL proposed the final orders which are Appendix One of these Reasons and were marked Exhibit 5. The effect of those proposed orders are that X would spend no time with, nor communicate with the father.
The mother, ably represented by Mr Drysdale of Counsel, in final submissions adopted both the orders proposed by the ICL and broadly the submissions made, although a “skeletal outline” of argument was produced and tendered in support of the oral submissions of Counsel.
Mr Galloway of Counsel represented the father, and he could not have said more, on the evidence offered to the Court, to advocate for his client’s proposal, as articulated in his case outline filed 28 September 2021, which sought orders that:
(a)the parents have equal shared parental responsibility for education and schooling, with the mother restrained, in exercising the remaining sole parental responsibility, from changing the child’s name;
(b)the child live with the mother;
(c)with the assistance of a suitable professional (if Mr C does not undertake the role), reintroduction between X and the father occur; and
(d)following reintroduction, and in a five step process of graduation, X spend time with the father for two months of supervised time before eventually graduating in 2025 to one weekend each month and half of school holidays. Proposals if the child was undertaking secondary college as a border were articulated, as well as being able to send cards and gifts.
It is obviously apparent that the parties’ positions are well apart. I acknowledge that the father’s desire to spend physical time with the child has never wavered.
The difficulty this case presents, absent the contested history before October 2017, is whether that incident and the circumstances since should result in no reintroduction of X to his father (as the mother and ICL contend), or whether some process of reintroduction should occur – anticipating, on the father’s case, that will proceed without any difficulties, which might make his progressive proposal for increased time likely to be in the child’s best interests.
The only witness tested in cross-examination were the mother and her partner Mr D (in the mother’s case); the father in his case; single expert Consultant Psychiatrist Dr E and family report writer Mr C, relied upon by the ICL. One issue that was contested was a proposed tender by the mother of part of the mother’s and the father’s evidence in the criminal proceedings. I deal with that issue below when discretely making some findings about the criminal conviction against the father.
Firstly however, I provide a brief contextual history. In these Reasons statements of fact which are now made should be construed as findings of fact.
CONTEXTUAL HISTORY
The parents commenced cohabitation in early 2008, when the parties were approximately 25 years old; married in 2012 and finally separated in February 2014 when their son X was still very young.
The parents’ views about the history post separation differ, but in circumstances where the March 2017 parenting orders were made, little benefit arises from exploring that period. The Orders made by consent provided, essentially that:
(a)the parents would have equal shared parental responsibility, with orders made for consultation;
(b)X would live with his mother when not spending time with the father;
(c)X would spend time from 28 April 2017 during school term each alternate weekend from 4.00pm Friday to before school on Monday;
(d)school holiday time was also to be shared, and provision for Mother’s Day, Father’s Day and X’s birthday was prescribed in the Orders;
(e)reflective of where the parents lived at the time (some hundreds of kilometres apart), changeovers were to occur at F Airport generally, with the father under an obligation to ensure proper restraint points for the child’s seating be fitted; and
(f)frequent telephone/Skype/facetime communication was agreed and specific injunctions were imposed upon the father from allowing the child to be conveyed in heavy machinery and prime movers.
The March 2017 parenting Orders, providing for extensive unsupervised time between the chid and the father may on their face suggest that few risk issues were in dispute at that time. In her testimony during the trial, the mother expressed that she held concerns about some past alleged violent behaviour from the father, but that she wanted to end the litigation and move on with her life, feeling somewhat “exhausted” by the post separation litigation conflict. That said however, she was well aware of X’s wishes to maintain and develop a meaningful relationship with the father, which the March 2017 parenting Orders made sought to ensure occurred.
By April 2017, the mother had introduced her partner Mr D to X. The father had, since 2015, been in a relationship with Ms G, who X would interact comfortably with when spending time with his father.
By May 2017, the mother was asserting X was expressing and demonstrating to her some separation anxiety. The mother engaged X in counselling with Ms B, with the first session occurring in June 2017. Tensions between the parents seemed to be escalating, with the father not returning the child to the mother on 9 July 2017 (because the child was not well) and the mother continuing to assert the child was expressing reluctance to spend time with the father and allegedly was expressing comments about adult financial issues, such as “mummy why did you steal daddy’s money” – a comment made, the mother says, after some initial consent property Orders were made on 3 July 2017. Ultimately, the financial issues between the parties were finalised (after undefended orders were appealed) on 30 October 2019.
The father asserts that, despite the March 2017 parenting Orders, the mother’s behaviour demonstrated a lack of genuine commitment to support X’s relationship with him, and the beginning of what the father during the trial described as “parental alienation”.
During the September 2017 school holidays, when the chid was in the father’s care pursuant to the March 2017 parenting Orders, the mother asserted the father prevented or failed to facilitate X speaking with her. There was also a failure to reach agreement for X to attend a family funeral. The father explained his reasons why he did not allow such attendance. These holiday conflicts, coupled with the mother deposing to the child often returning from spending time with the father, both unsettled and repeating alleged highly negative comments about the mother were events that preceded the incident in late 2017, when the mother says she was physically attacked by the father at her home when her partner Mr D was away.
I deal with the incident on the evidence available to this Court in less detail than the father and particularly the mother might have wished. However, the incident (which the father continues to dispute were as a result of his actions) caused some unchallengeable clear consequences which have resulted in X spending no time with his father since late 2017.
In summary, those consequences included:
(a)in or about late 2017, the father was charged with a number of criminal offences against the mother all arising from the incident in late 2017.
(b)in April 2018, the father finally filed an amended Response to the mother’s new parenting application – seeking reinstatement of the March 2017 parenting Orders. This was in response to an Order made on 23 October 2017 to suspend orders for X to spend time with his father;
(c)clearly the father was consumed with the serious criminal charges against him, and the initial decision of a Magistrate to refuse him bail – a decision overturned by the Supreme Court in late 2017;
(d)whilst the father was awaiting a trial listing in the District Court of Queensland, and after a Federal Circuit Court (as it then was) Judge transferred the matter to the Family Court of Australia (as it then was), a Senior Judicial Registrar on 24 December 2018 delivered Reasons for refusing an interim application by the father to spend supervised time with X at the H Children's Contact Centre – an application opposed by the mother and the ICL;
(e)the father, as he was entitled to do, on 17 January 2019 filed an Application for Review of the decision of the Senior Judicial Registrar which came before Justice Forrest (as he then was) on 18 February 2019. In Forrest J’s Reasons delivered 22 February 2019 (see Close & Beake [2019] FamCA 78), explaining why he ordered the father’s Application for Review to be dismissed, he referred to the untested serious allegations made by the mother of the incident in late 2017 – and the fact the “father has elected to exercise his right to remain silent and not give any evidence in these proceedings” (at [19]);
(f)a trial before a jury took place in the District Court of Queensland over three days, which resulted in the conviction of the father in late 2019. The Judge passed concurrent sentences of imprisonment, suspended after a period for an operative period of five years. The sentencing remarks are before this Court (annexure “ARW-1” to the affidavit of the ICL filed 31 March 2021);
(g)the father lodged an appeal against his conviction on the basis that the verdict of the jury was unreasonable or could not be supported having regard to the evidence. Apart from an appeal against the sentence imposed, the father also pursued a further ground of appeal, being that a miscarriage of justice in the trial had occurred in that a member or members of the jury were guilty of bias, either actual or apprehended. The Court of Appeal dismissed the appeal. A copy of the Reasons of the Court of Appeal are annexure “ARW-2” to the affidavit of the ICL filed 31 March 2021. That decision was delivered in late 2020; and
(h)the father was released from prison in 2021, and has continued to maintain he was wrongly convicted and continues to protest his innocence.
Noting the Court was informed about the likely date of the father’s release and even before his criminal appeal had concluded, steps were taken to procure two exert reports, namely:
(a)Dr E, a specialist Consultant Psychiatrist was appointed to assess the mother in circumstances where the father instructed his lawyer that he was not prepared to undertake an independent psychiatric assessment. Dr E, by Order made 9 March 2021, was instructed on 6 May 2021 and assessed and conducted a mental state examination of the mother on 10 May 2021 before producing his report dated 10 June 2021. Dr E was the subject of cross-examination; and
(b)Mr C, an experienced Social Order, conducted interviews and some observations on 16 June 2021, before publishing his report dated 20 July 2021. Mr C did not observe X with the father – an issue explored during cross-examination.
The trial commenced on 5 October 2021, with final submissions delivered on 7 October 2021, after all the evidence was concluded.
The delay in the publication of these Reasons caused the Court, on its motion, to re-list the matter to give the parties an opportunity to indicate whether they wished to provide any further evidence in respect of any relevant issues that, in their view, had occurred since judgment was reserved on 7 October 2021. All parties informed the Court they did not seek to file any further evidence.
The Court expresses its regret to the parties for the delay to publishing these Reasons and orders.
THE EVIDENCE AND FINDINGS RELATING TO THE INCIDENT ON LATE 2017
In view of the father’s conviction, after a jury trial, of the offences earlier identified, it is perhaps surprising that it is necessary to consider in greater detail the events around the late 2017 incident at all.
Although the Court is entitled and does rely upon and adopt the findings and decision of the sentencing judge, and as relevant, the findings of the Court of Appeal pursuant to s 69ZX(3) of the Act, there was other evidence available to the Court, at least:
(a)the affidavit of the mother, at paragraphs 143 to 160, and in circumstances where the father did not in cross-examination by his Counsel seriously challenge the mother’s version of events, beginning with the stark statement that “[in late] 2017, the Respondent broke into my home in [Town J] and attacked me […]. I sustained serious injuries”; and
(b)the s 93A interview of X and a transcript of that interview, together with a transcript of the child’s cross-examination in the District Court in mid-2019 (collectively tendered as Exhibit 2).
At the conclusion of the evidence, the Court was invited to rule on whether the ICL could tender:
(a)part of the mother’s evidence in the criminal proceedings; and
(b)part of the father’s evidence in the criminal proceedings.
The mother supported the tender of those parts of the transcript.
The father, through his Counsel, objected to the tender on the basi that; at least:
(a)the transcript was not put to the father in cross-examination, and it would be procedurally unfair to tender the transcript;
(b)the mother’s evidence, during the criminal trial, is the same as that deposed to in this trial and takes the matter no further – such that there is no forensic purpose achieved; and
(c)even if relevant, it is inflammatory.
I do not permit the tender. In my view, the evidence already before the Court is a strong foundation for the findings I adopt from the sentencing judge, Judge Barlow QC.
Furthermore, and frankly in the context of the issues I am asked to consider in this parenting case, being whether the father is an unacceptable risk of physical and psychological and emotional harm to X, the father has:
(a)not, in his trial affidavit filed 1 September 2021, chosen to provide a version of events of late 2017 (see paragraphs 62 to 71) save to merely state the chronological facts and an acknowledgement that “I acknowledge and accept that ultimately I was found guilty of criminal offences by a jury and was sentenced by a Judge in relation to those offences”; and
(b)chose not to give any evidence in reply to the mother’s evidence when he had the opportunity to do so in his further affidavit filed 14 September 2021.
Having made the decision to deal with the serious allegations of the mother about the incident (and effect) in late 2017, in this way, the careful cross-examination of the father by the mother’s Counsel, elicited the following relevant statements, under oath, inter alia:
(a)He felt he was entirely “blameless” for time stopping in late 2017;
(b)He denies he “touched” the mother in late 2017, asserting the mother, in effect, fabricated the incident because “I did not have sex with her”;
(c)He thinks he was dealt a “raw card” by the criminal justice system (I infer);
(d)Although he has seen the s 93A interview of X, the “whole day was a blur” and he does not “recall [X] saying he saw me and that sometimes I get angry”;
(e)If X asked the father, words to the effect “why did you [hurt] mummy?” he would respond by telling X “it is incorrect – and that daddy is a good person”;
(f)As he did says he not assault the mother, in the face of the medical evidence before the District Court, the father offered the explanation that the “mother must have [hurt] herself”;
(g)There is no basis, in his view, that the mother has a genuine fear for X’s safety, and he simply does not accept Dr E’s assessment; and
(h)Revealing, in my view, an appalling lack of insight, the father stated under cross-examination that the mother is the “primary parent” by reason of “ransom and default”.
On the evidence, the father continues to exhibit, as Mr C described, an “unwavering denial of responsibility, and a complete lack of insight or remorse relating to the violence he was convicted of” (paragraph 111 of the family report). I agree.
In circumstances where the father’s Counsel, during the criminal Appeal hearing, seems to have abandoned an earlier appeal ground of “unreasonable verdict”, the best source of findings about the incident is the statements of the sentencing Judge that, inter alia:
(a)the conviction, after trial by a jury, was notwithstanding the father’s vociferous and continued denial of each of the offences”;
(b)that the father raised the family law proceedings with the mother and whether they could be dropped on the evening before the event of late 2017 “at the end of a pleasant day at the local [event] in [Town J]”;
(c)on the afternoon of the event in late 2017, the father returned to the mother’s home “without any warning to [Ms Close]” and parked outside and “[i]t took you some time to take steps to go toward the house”. The father had an “intention of approaching her, at the very least, to persuade her by force or threats to withdraw her action in the Family [sic] Circuit Court and not commence any further proceedings of a financial nature against you”;
(d)that:
Ultimately, you decided to do that by some force and threats. You went into the house, where she was sitting on a couch watching television with your son in the next room, himself watching some movies. You went up behind her and you grabbed her from behind. You swore at her and you made a number of threats to her, requiring her to withdraw the proceedings by 9.30 the next morning. The next morning was important because it was the next time that there was hearing in the proceeding in the Family Circuit Court. It appears that you had some form of [weapon] in the hand that you put around her. And that was pressed close to her neck, if not actually to her neck. [Ms Close] automatically put up her left hand to pull it away from her neck, at which stage you pressed it further.
(e)The father’s actions “caused a serious injury to [Ms Close] ” involving “a [serious injury] […] [t]here was also another injury to the underside of [Ms Close’s] neck, which was not so serious but still required [treatment from] doctors at the local hospital”;
(f)After the incident the father flew home to Town K and the mother was driven to the local hospital. There was a “substantial amount of blood”;
(g)As a result of a provided “Victim Impact Statement”, the sentencing Judge observed the mother’s fear of being alone in the house and “almost relives the event should her partner come up behind her to give her a hug”;
(h)The mother stated, as she has to this Court, that X has been affected by the incident and has asked her “why did dad hurt you?”, with the sentencing Judge observing the father still loves his son “very much”.
When I discuss s 60CC(2)(b) of the Act, I will draw on this evidence and findings.
PSYCHIATRIC ASSESSMENT
As I will soon observe, the father (despite recommendations to the contrary in the family report – see paragraph 123), has decided he has no need to undertake any independent psychiatric assessment, or for that matter, to engage in any courses or education about domestic violence, anger or the like. In circumstances where he has strenuously denied the events of late 2017, whilst incarcerated there is no evidence he undertook any such education or training.
In cross-examination by Counsel for the ICL, in a somewhat dismissive tone, the father confirmed he had not competed any violent offender’s programs or domestic violence programs “because I don’t believe I have to do this”, but then added that “if it is ticking a box to make everyone feel rosy, then I might do it”.
Whilst I accept the mother identified some potential benefit to her case in undertaking a psychiatric assessment, nonetheless she did so – being assessed by Consultant Psychiatrist Dr E in May 2021 and resulting in a report dated June 2021. Dr E was the subject of cross‑examination.
Dr E was retained with the consent of the father, and the joint letter of instructions dated 6 May 2021 posed at least four questions, namely:
1.The mother’s emotional functioning at the present time, particularly as a result of the violent assault carried out upon her by the Father;
2.Any ongoing or further therapeutic or psychological assistance you would recommend to [Ms Close] moving forward;
3.An assessment of the mother's functioning and capacity to care for the child of the relationship, [X] aged 9 years, if the Court were to make an Order that [Mr Beake] have time or communication with the child and by implication the likely emotional impact upon [Ms Close] of such an Order; and
4.If, in your opinion, you believe that it would impair the mother’s functioning to appropriately care for the child, then to what degree you believe that is likely to be and the detriment to the mother or the child if that occurred.
It must at least be noted that Dr E did not observe the child with the mother; did not view any family report but did view material from the mother’s treating psychologists Ms L and Ms M. Clearly a foundation for the report is that the mother was seriously injured in her home, under the hand of the father, described by the mother to Dr E as set out at page 9/39 of the file report and characterised as a “chilling account of the incident”. To the extent the father asserted the mother had exaggerated or was less than candid with Dr E, I disagree. Dr E’s assessment of the mother’s history revealing “some serious matters of concern from a psychiatric perspective”, extended to early adolescence and childhood events – a very searching enquiry, which the father, by comparison, was not prepared to undertake himself.
Dealing with the four areas of enquiry, Dr E’s opinion was that:
(a)The diagnosed psychiatric condition raises concerns for an increased risk of parenting as a result of anxiety, fear and apprehension the mother experiences;
(b)If the Court were to make an order that the father have time or communication with the father then, the mother would experience more sever levels of anxiety. There is a serious risk that she would develop such severe anxiety that she could experience panic attacks which create a further risk that she could become depressed;
(c)The symptoms of the diagnosed psychiatric condition as outlined in detail at part “[f]” of the report included statements by the mother that:
(i)She expressed (what Dr E would call) “extreme incredulity” that the child was present during the attack on his mother;
(ii)The “physical deformity [caused] serves as a constant reminder of the incident”;
(iii)She “experiences fear and anxiety on a daily basis now”; and
(iv)She “continues to experience sleep disturbance, and a fear of being approached from behind”.
Dr E, whilst opining that the full criteria for a diagnosis of Post Traumatic Stress Disorder (“PTSD”) are not met, said the features explained by the mother demonstrate “the occurrence of a syndrome of reactive anxiety symptoms which the [m]other is experiencing, which are a direct result of what is assessed as an horrific life-threatening incident”.
In answer to question three posed, Dr E opined that any exacerbation of psychiatric symptoms could result in an increase of parenting dysfunction for the mother which would be “of detriment to both [t]he [m]other and [t]he [c]hild if that occurred”.
Dr E said that because the mother’s experience of the incident and the events post-separation “are very complex, challenging, demanding and at times have created severe stressors for her”, the mother “needs ongoing psychiatric and psychological treatment indefinitely” and he supported the mother’s current mental health care plan as developed by her General Practitioner and treating Psychologist.
Under cross-examination, some further opinions were expressed by Dr E, including:
(a)in settling on the label of “anxiety disorder”, not PTSD, he took into account the mother’s distress is “excessive” and is not within normal bounds;
(b)the risks to the mother’s functioning remains (although in partial remission), but if she had a full panic attack, she would need some emergency assistance. Her partner Mr D is likely to be supportive which adds to a positive prognosis, as would time (if it occurred) between the child and the father being “uneventful”;
(c)if however time did not “go well”, the negative impact, he described, could create a “crisis” that could be catastrophic” for the mother; and
(d)the mother would find it difficult to compartmentalise her anxieties and fears around the father spending time with the child, and her prognosis depends on the extent to which she can live with the scars she has got.
I generally accept the evidence of Dr E, and clearly these concerns are a factor to be considered with determining what orders are in X’s best interests – but not the only concerns.
FAMILY REPORT – MR C
Mr C, an experienced Social Worker, had prepared two family reports for a different stage of the litigation (in June 2015 and February 2017) – both before the incident of late 2017. As a result, the most recent report published 20 July 2021 (arising from interviews of the parties; the mother’s partner Mr D and the father’s partner Ms G and an observation of X with the mother undertaken on 16 June 2021), is the most relevant report and has the advantage of the longitudinal assessment.
The history as given, and recorded by the persons interviewed from their perspective, is similar to their filed affidavits – noting the father did not adduce evidence from Ms G in any form.
Although the father, in his proposal, urged facilitated reintroduction and then initially supervised time (as set out in the recommendations at paragraphs 125 and 126 of the family report), those recommendations were clearly conditional upon at least:
(a)the father attending “a comprehensive psychiatric assessment” (paragraph 123);
(b)the father engaging in counselling for a period of no less than six months (paragraph 124); and
(c)the father being restrained from filing any further Initiating Application until he has completed 12 months of supervised time (paragraph 131).
As already noted, the father sees no genuine need for counselling or any psychiatric assessment.
Mr C however, before he thought it appropriate to consider reintroduction (which he was prepared to undertake), raised a caveat of there being “no unmanageable future risks identified”. It is to be observed that when completing this family report, Mr C had read the report of Dr E (see paragraphs 103 and 104).
The mother’s position, she says, is supported by Mr C’s primary recommendation at paragraph 122, namely that “[i]f the Court believes that ordering time will significantly compromise Ms Close in her capacity to parent, a no time order should be considered”.
Although, of course, the evaluation in the family report between paragraphs 101 to 119 should be read as a whole, I record in these Reasons the following opinions:
(a)That:
106.[X] does appear to be psychologically struggling to process his current situation. He seems to be hanging on to the hope that he can maintain his relationship with [Mr Beake], who he still loves. However, he also appears to have a degree of genuine fear that past events might be repeated, and that he, [Ms Close], other people important to him might be hurt or even killed.
(b)If “[X’s] opportunity to spend time with [Mr Beake] is substantially denied by a no time order at this stage, the consequences for him could be longstanding” – and X may blame his mother for his loss of a relationship with his father (paragraph 109);
(c)That:
110.Similarly, [X] may choose to reconnect with [Mr Beake] at a later stage regardless of the Court position, and without support to adequately process his current mental models, he may be less resilient to [Mr Beake’s] influence.
111.Regardless, [Mr Beake]’s unwavering denial of responsibility, and his complete lack of insight or remorse relating to the violence he was convicted of, is extremely concerning. If his presentation cannot be adequately explained, remediated, or mitigated, the Court may have no alternative, other than to make orders balancing the presenting risks. Whilst less than ideal, in my opinion, a no time order could be appropriate under these circumstances.
As would be expected, the opinions of Mr C were explored by Counsel in cross-examination, from which some further relevant opinions were expressed:
(a)The effectives of any counselling of the parents depends on the genuine willingness for the person counselling to be open to change their thinking;
(b)If the father tried to explain to X that the incident did not occur, that would be confusing for the child and might challenge the child’s need to value honesty;
(c)X presented as “sunny and untroubled” in his day-to-day presentation. Mr C opined that he was satisfied that X was aware of the mother’s views, but it is not having the impact that the father believes it is (for example alienation);
(d)Although X has some fond recollections of his father and has a desire for a reconnection with the father in some form, this cannot be at the cost of the mother’s mental health;
(e)The child, although his recollections of his father have diminished, still identifies as “half [Beake]”, and loves his father, but still expressed he was a bit scared about a repeat of the father’s angry behaviour, which the child had observed;
(f)Mr C felt reluctant to assess whether the father presents a present physical risk to the child, but believes the child could be at risk of emotional harm in the father’s care, where the father seemed to be “swallowed by the intense denial” he had committed the offence of which he was convicted; and
(g)He did not form the view the mother has “bad mouthed” the father to the child – rather, I infer, the father is not a topic of conversation. In these circumstances, if the child spends no time with the father, that could almost in itself be creating a future risk in the child’s relationship with the mother – absent some rational explanation.
Although the Court is not bound to adopt the opinions of a family report writer, I find the evidence of Mr C – founded and supported by the evidence before me – quite persuasive.
I will now discuss and make findings, in a narrative form, about the two stark competing proposals, within the matrix of the relevant primary and additional considerations, relying upon, but not in every sense repeating earlier findings.
PRIMARY CONSIDERATIONS
Until the events of late 2017, I am satisfied that X had a meaningful relationship with the father and was generally enjoying his time with him. Although the mother was able to concede that the father and X do love each other, she is not satisfied that X will benefit from having a meaningful relationship with the father. I find that provided the reintroduction could be achieved and time between the father and X was not damaging to X, either in the father’s care or when the child is living with the mother, X would benefit from having a meaningful relationship with the father.
However, as the Parliament has made clear, by prescribing in s 60CC(2A) prescribes that, the Court is to give greater weight to the need to protect X from physical or psychological harm, than the benefit of a meaningful relationship.
On the evidence, in respect of the s 60CC(2)(b) considerations, I find that:
(a)I am not satisfied that X is at risk of physical harm in the care of his father. I accept the father is involved in the use of heavy machinery, and that there can be risks around these machines if a child is not property restrained or supervised, however the evidence does not establish that the father is either unaware or dismissive of these dangers.
(b)I am comfortably satisfied on the balance of probabilities that the child would be at risk of psychological and emotional harm in the father’s unsupervised care, as a result of the father’s lack of insight and asserted honest and genuine belief about his actions against the mother – actions of late 2017 which I am satisfied occurred partially in the presence and awareness of X, as X has stated.
(c)The father’s unwavering denial means that any attempts to assist him through psychiatric and psychological professional therapy would be of little assistance in repairing the father’s insight – and merely would be “ticking a box”.
(d)If child was to have supervised time, because of the father’s reluctance to accept responsibility for his actions, there would be a long term need for supervision to continue for many years.
(e)The evidence of the mother, her counsellors and independent assessment by Dr E clearly establishes, that the mother (the victim of the father’s violent actions), genuinely continues to hold fears about the father and that it is likely those fears (somewhat in abeyance since 2017 where no time has occurred) would be likely to be exacerbated and likely to cause a catastrophic effect on the mother’s underlying anxiety state if time was to occur.
When considering the orders the Court finds, on the current evidence, to be in X’s best interests I will return to these significant findings.
ADDITIONAL CONSIDERATIONS
I deal with these considerations in a narrative style, and consider the competing divergent proposals within the matrix of s 60CC(3) considerations sequentially as are relevant.
X is now 12 years of age, and he has not communicated with his father for over half his life. That Mr C was able to elicit comments from X about his love for his father; his cautious desire to see him and his “fears” about doing so, suggest strongly that the mother has not been “bad mouthing” the father to the child as the father choses to believe. Because X still retains some distant older fond memories of time spent with his father (noting again he was less than 2 years old when the parents separated in 2014), it seems likely at some stage of his life, he may well seek out time with his father – whether through curiosity or a genuine desire – and his capacity to navigate that issue whilst preserving his primary relationship with the mother will be challenging.
The child’s primary and almost exclusive source of his security is his mother who, I find, notwithstanding the events of 22 October 2017, has made the best interests and safety of X her priority. She has also been assisted by her partner Mr D, who did give evidence and was impressive in his genuine love and support for the mother, and I find is realistic about his role in X’s life. X respects Mr D and the assessment made by Mr C is that they have a warm relationship.
Sadly, the child has a currently estranged relationship with the father. It is not possible to assess what the father’s relationship with Ms G is now and how she might be a positive influence on the father or how after so many years she may be able to engage with X. Certainly, X felt comfortable with her in the past. The father, I find, made a decision not to call evidence from Ms G – when it seems she gave evidence to support his bail application and subsequent criminal Appeal. His failure to do so without any clear explanation enlivens the Jones & Dunkel (1959) 101 CLR 298 principal and I find that Ms G was not likely to provide any evidence that would assist the father in these proceedings.
A lack of evidence makes it difficult to make any findings about the relationship the child has with extended family.
The suspension of the earlier March 2017 parenting orders, has meant that the father for some time has not been involved in decision making for X – although prepared and keen to do so – particularly (as his proposed orders reflect) in respect of education and schooling.
I am uncertain on the evidence as to whether the mother has sought an administrative assessment of child support at all, or if she has, the level of assessment. In these circumstances I make no finding about any level of financial support the father has provided the mother for X.
There are practical difficulties in the child spending time with the father. The parties live hundreds of kilometres apart in rural and regional Queensland. When some examination of the practicalities of using a contact centre in City N arose, the father’s evidence was that both the mother and father would have a return drive to City N of about 4 to 5 hours – which is far from ideal for a short, supervised visit – or for that matter some regular “re-introduction” sessions with someone like Mr C (if ordered). I accept that the father may be able to get to O Airport in City N more easily that the mother.
The mother has, under significant emotional challenges, demonstrated her capacity to parent X and his “sunny” presentation to Mr C, speaks volumes. The father was able to care for X adequately prior to late 2017, although his capacity since then is entirely untested. In the absence of him undertaking any form of counselling or therapy, not only does the Court have no evidence about how his parental functioning might have been affected by the incident of late 2017, but in circumstances where he strongly finds he was unjustly charged and imprisoned, the affect of that incarceration. Ms G might have been able to offer some evidence. If the father had elected to get some therapeutic support, that might have assisted the Court, if some assessment had been made by a suitably qualified mental health professional. The Court is therefore left in a total vacuum so far as the father’s current capacity to parent is concerned, apart from his own confident assertions.
I rely upon earlier findings to establish, that at this time the father is unlikely to be able to separate the best interests of X from his own needs and desires to recommence a relationship with his son. His focus on the mother’s alleged behaviour – “parental alienation” and even that she may have “[hurt] herself” - show an extreme, possibly pathological lack of insight. His attitude to the injustice he feels he has experienced – I infer in both the Criminal Law and Family Law jurisdictions – gives him a perspective that, if given the opportunity I feel likely that he could share with X. As Mr C opined this could cause not only confusion for X, but could also potentially undermine the child’s relationship with the mother, to his detriment.
Clearly, the Protection Order made some years ago, and the findings of the Judge identify family violence by the father towards the mother as a troubling issue. I am satisfied and fine, that the mother has done her best during the relationship and post separation to late 2017, to shield the child form the father’s exhibited angry behaviour, but am left with no doubt that X has been exposed to his father’s anger and, to some extent, was aware of the father’s behaviour towards the mother in late 2017.
Although the father was confident in saying both the mother and X are not really scared of him and have no reasons for feeling that way, I disagree. The evidence reveals a foundation for such fears.
I accept that there is a likelihood as X gets older, he may seek out a connection with the father. Certainly, by the time he reaches 16 or 17 years of age, restraining X from connecting with this father may be problematic. As an adult of course, he can do what he wishes to do, and I accept the mother is aware of this future uncertainty. In time, if it has not already occurred, X is likely to ask more questions about why he is not seeing his father, and his desire for an answer he can understand and process is likely to increase. I accept the mother has to date, and no doubt in the future, will seek out professional advice to enable X to better understand his family history – truly and accurately.
The Court is asked to consider any other facts or circumstances that the Court thinks is relevant (s 60CC(3)(m)). The father’s evidence and overall presentation suggests he has convinced himself he was not responsible for the incident on 22 October 2017 – how else could he on oath attest to being “blameless”. He has been incarcerated and lost a relationship with his son for a crime he did not commit, from his perspective. I can in those circumstances, at on level, understand this father feeling he is continuing to be punished for the crime. The Court does not visit upon a child the sins of their parents. The test, following the statutory pathway to be applied in this case, involve many steps, but only has one determination – the best interests of the child is the paramount consideration.
PARENTAL RESPONSIBITY
I agree that the presumption of equal shared responsibility does not apply in this case – rebutted because of the family violence set out in these Reasons.
Although I would accept the father would be able to make no contribution about a major long-term issue, which could add value, the inability to exchange views sensitively between the parents and the understandable desire of the mother (to some extent shared by the father), to have no direct communication satisfies me that the ICL’s proposal for the mother to have sole parental responsibility (except for the child’s name) but with an obligation to inform a member of the father’s family, is an order in the child’s best interests.
FORM OF ORDER
I have reached a conclusion that it is not in the child’s best interests to attempt re-introduction at this time, or most likely for the foreseeable future.
The finding of unacceptable risks I have earlier identified are overwhelming. The father has not helped his case by choosing not to undertake any psychiatric or psychological therapy or assessment which might have helped the Court to consider if the risks identified can be ameliorated – other than merely because the child is getting older.
The impracticalities of even achieving reintroduction and then some form of gradual time, are clear on the evidence. Importantly, even if these practical issues and risks of emotional harm to X spending time and communicating with his father could be ameliorated, the impact of such pressures on the mother can not be ignored. These issues all combine to satisfy the Court that the orders proposed by the ICL (without the notation proposed which serves no utility now that these Reasons are published), are in the child’s best interests.
Such orders include the orders under s 68B for the personal protection of the mother and X. I accept, as parenting orders, these orders cease upon X reaching 18 years of age. I further accept that the mother has other remedies available to her for her protection under State laws. However, although the restraints and injunctions are wide, the nature of the offence for which the father was convicted and his continued failure to accept any responsibility for that incident and the consequences that could follow for the mother and the child, are such that such wide orders are appropriate.
In this regard I did consider the submissions of Mr Galloway for the father identifying, from his client’s perspective, how such carefully worded yet wide restraints my be problematic and even unfair. I reject those submissions.
Finally, the ICL will be discharged with the thanks of the Court after sixty days.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 7 May 2024
APPENDIX ONE
Parental Responsibility
1.That the Mother have sole parental responsibility for all major long-term decisions for the child, X born 2012, except for the child’s name.
2.In terms of any major long-term decision made by the Mother will:
(a)Inform one of the paternal aunts or uncles of the decision she has made; and
(b)Request that such information be provided to the Father.
3.That the child be known by the name X, and the Mother or her servants or agents, be restrained from attempting to change the child’s name or having the child known be any other name/s.
Live with and spend time orders
4.That the child X born 2012, live with the Mother.
5.That the child spend no time with, nor communicate with, the Father.
Communication
6.That the Father be at liberty to send to the child, to an address nominated by the Mother, on the occasions of the child’s birthday, Easter and Christmas each year a card, letter, gift and photograph of the Father.
Order for the Personal Protection of the Mother and Child
7.That for the personal protection of MS CLOSE and X born 2012, pending further order, MR BEAKE is restrained from approaching, assaulting, threatening, harassing, intimidating, molesting, stalking or otherwise interfering with MS CLOSE or the child X born 2012.
8.That pursuant to s 68B of the Family Law Act 1975, the Father be restrained and an injunction issue restraining him from:
(a)contacting the mother or the child by any means, save for sending of cards as provided for in these Orders.
(b)locating, attempting to locate or asking someone else to locate the mother or the child;
(c)contacting, attempting to contact, or asking someone else to contact the mother or the child, save for the sending of cards as provided for in these Orders.
(d)making telephone calls or sending messages (in electronic form) to the mother or the child;
(e)going within 50 metres of, entering or remaining at any school or care facility attended by the child;
(f)removing or attempting to remove the child from any school or care attended by the child;
(g)entering or remaining at any place of employment of the mother;
(h)entering or remaining at any place of residence of the mother and the child; or
(i)coming within 250 metres of any place of residence of the mother and the child.
Non-Reportable Counselling
9.That the mother will immediately organise non-reportable counselling for the Child. That such counselling be undertaken by an approximately qualified person, namely Ms B.
10.That this order act as authority for the mother to provide the following documents to the Child’s counsellor:
(a)The family Report of Mr C filed 2 September 2021;
(b)The sentencing remarks from the sentence of the Father in the Town J District Court, dated late 2019; and
(c)The Transcript of the child’s 93A interview dated late2019, as well as the transcript of the pre-record dated June 2019.
NOTATION
A.In late 2019 the Father was found guilty by a jury and convicted and sentenced for offences against the Mother, with the child being present and witness to some of those offences.
B.The father continues to deny the offending.
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