Emmett & Boon - [2023] FedCFamC1F 620

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Emmett & Boon [2023] FedCFamC1F 620

File number(s): BRC 11127 of 2018

Judgment of: BAUMANN J

Date of judgment: 28 July 2023

Catchwords: FAMILY LAW – PARENTING – Where the mother contends for final orders that the children spend no time with the father – Assessment of risk – Where the father was convicted of possessing child exploitation material and faced other serious criminal charges – Where supervised time has continued since 2018 – Whether the mother’s parenting capacity will diminish if even supervised time continues

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA,65DAA

Cases cited:
Baghti & Baghti and Ors [2015] FamCAFC 71

Blinko & Blinko [2015] FamCAFC 146

Fitzwater v Fitzwater (2019) 60 Fam LR 212

Goode & Goode (2006) FLC 93-286

Helbig & Rowe and Ors [2016] FamCAFC 117

Isles & Nelissen [2022] FedCFamC1A 97

Jones & Dunkel (1959) 101 CLR 298

Keane & Keane [2021] FamCAFC 1 (2021) 62 Fam LR 190

Moose & Moose (2008) FLC 93-375

Russell & Close [1993] FamCA 62

Division: Division 1 First Instance

Number of paragraphs: 95

Date of hearing: 8 – 10 and 27 June 2022

Place: Brisbane

Counsel for the Applicant: Ms S Downes

Solicitor for the Applicant: KLM Solicitors

Counsel for the Respondent: Mr J Linklater-Steele

Solicitor for the Respondent: Naughton McCarthy Family Lawyers

Counsel for the Independent Children's Lawyer: Ms R Horsley

Solicitor for the Independent Children's Lawyer: Legal Aid Queensland
ORDERS

BRC 11127 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS EMMETT

Applicant

AND:
MR BOON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

28 JULY 2023

THE COURT ORDERS:
Parental responsibility
1.That the mother have sole parental responsibility for the major long term decisions in relation to the children, X born 2016 and Y born 2017 (“the children”).
2.That the mother be restrained from:
(a)changing the names of the children;
(b)relocating the children primary place of residence to a location located more than one (1) hour’s drive from B Counselling,

without the express written agreement of the father.
3.That the children live with the mother.
4.That the children spend time with the father at all times as may be agreed in writing between the parents, but failing agreement as follows:
(a)from the date of these Orders (and noting the children are currently spending time with the father each alternate Sunday at B Counselling), on the first and second “usual” alternate Sunday time with the father, for a period of two (2) hours, supervised at B Counselling, with each parent to immediately give any necessary permissions for Ms C and Mr D to attend such sessions; and
(b)thereafter and for a period of six (6) months, on the first of every three (3) weekends (with the first weekend commencing two (2) weeks after the last supervised session at B Counselling), from:
(i)9.00am to 5.00pm on the Saturday; and
(ii)9.00am to 5.00pm on the Sunday.

(c)thereafter:
(i)during school terms, on the weekend which falls at the conclusion of weeks one (1), four (4) and seven (7) of the children’s school term, from:
A.9.00am to 5.00pm on the Saturday; and
B.9.00am to 5.00pm on the Sunday.

(ii)during the Queensland gazetted school holiday periods:
A.for the holidays commencing at the conclusion of terms one (1), two (2) and three (3), from 9.00am to 5.00pm for any three (3) days falling within the first half of the school holidays as may be nominated by the father in writing at least sixty (60) days in advance, provided that such days do not include either of the children’s birthdays, the mother’s birthday, or the children’s brother E’s birthday;
B.for the holidays commencing at the conclusion of term four (4), for any ten (10) days from 9.00am to 5.00pm, falling within the school holidays and nominated by the father in writing at least sixty (60) days in advance, provided that such days fall within the first, third and/or sixth week of school holidays, and further provided that such days do not include Christmas Day, Boxing Day or New Year’s Day (in circumstances where B Counselling is closed on such days) and that there be no greater than four consecutive days at any one time.

5.That the children’s time with the father pursuant to Order 4 be supervised at all times by one or more of the following persons:
(a)Mr D;
(b)Ms C; or
(c)any other person agreed to in writing by the parents from time to time.

6.That in the event no supervisor is available to the father, he is to provide fourteen (14) days’ written notice to the mother that the children will be unable to spend time with him during the relevant period.
7.That unless otherwise agreed in writing, the parents shall facilitate changeovers at B Counselling, F Street, Suburb G, with all costs and fees associated with changeover to be solely borne by the father.
8.That the father is restrained, by injunction pursuant to s 68B of the Family Law Act 1975 (Cth), from:
(a)consuming alcohol whilst the children are spending time with him, likely to result in an alcohol level of .05 or higher;
(b)commencing any contact visit under the Orders when he is manifestly affected by alcohol,

and if at the commencement or during any visit the supervisors have a reasonable belief that the father has not, or is not, complying with the terms of this Order, then the supervisors shall inform the mother and arrange for the visit to cease and for the children to be returned to the mother as soon as practicable.

Special occasions
9.That in the event the children’s time with the father otherwise falls on Mother’s Day in any year, the children’s time with the father shall occur the following weekend instead of on Mother’s Day.
10.That in the event the children’s time with the father does not otherwise fall on Father’s Day weekend in any year, the children’s time with the father be rescheduled from the “usual” weekend which falls prior to Father’s Day, and occur on Father’s Day weekend instead.

Communication between the parents
11.That the parents shall not communicate directly by telephone except:
(a)in the event of any medical emergency affecting one or both children while they are in the father's care, the father will send a text message to a phone number nominated by the mother for that purpose;
(b)in the event of any medical emergency affecting one or both children while they are in the mother's care, the mother will send a text message to a phone number nominated by the father for that purpose,

and in each case, the parents will inform each other of the nature of the medical emergency and where the children have been taken for treatment.

Authorities
12.That both parents be permitted to attend at a hospital or medical facility where the children are being treated in the event of a serious medical emergency affecting them, subject to the rules and directions of the hospital or medical facility.
13.That the father is at liberty to obtain information and copies of documents (including school photographs, awards and certificates) concerning the children from the children’s school and daycare at his own cost, and this Order authorises the school to release such information and the documents to the father, subject to their rules and regulations, noting that this Order does not require the release of information concerning the mother’s residential address to the father.
14.That the father is at liberty to obtain information and copies of documents concerning the children from the children’s medical practitioners at his own cost, and this order authorises any medical practitioner involved in the treatment of the children to release the documents to the father, subject to their rules and regulations, and noting that this Order does not require the release of information concerning the mother’s residential address to the father.

Exchange of information
15.That the parents immediately provide to each other an email address on which they can contact each other pursuant to these Orders, and provide an updated email address within twenty four (24) hours of any change thereto.
16.That the mother keep the father informed in writing of:
(a)the school attended by either of the children at any time;
(b)the general medical practice/s attended by either of the children at any time;
(c)any specialist medical practitioner/s attended by either of the children at any time,

and in relation to any change thereto, the mother will inform the father within seven (7) days.
17.That the mother keep the father informed, in writing, of any significant medical issue affecting either or both of the children, and the treatment which has been obtained for the medical issue (including the information as required by Order 16 herein).
18.That the father keep the mother informed at all times of any further sexual offending criminal charges or convictions which relate to him, including charges or convictions relating to failure to comply with reporting conditions.

Mother’s engagement with psychologist
19.That the mother engage in cognitive behavioural therapy and psychological treatment as recommended by her treating psychologist or general practitioner.
20.That within fourteen (14) days of the date of these Orders, the mother inform the Independent Children’s Lawyer as to the name and contact details of her treating psychologist or general practitioner.
21.That for the purpose of assisting that practitioner to challenge (within the context of cognitive behavioural therapy) the fears and anxiety expressed by the mother in relation to the children spending time with the father under supervision, within twenty eight (28) days of the date of these Orders, the Independent Children’s Lawyer provide to the mother’s medical professional/s a copy of:
(a)these Orders;
(b)the Reasons for Judgment delivered 28 July 2023; and
(c)Dr H’s report dated 2 September 2021.

Father’s engagement with psychologist
22.That within fourteen (14) days of the date of these Orders, the father obtain a referral (if necessary) to, or otherwise engage with, a psychologist experienced with the treatment of registered child sex offenders, and:
(a)continue to attend upon that psychologist as recommended or directed by the psychologist;
(b)provide the psychologist with a copy of:
(i)the report prepared by Dr K dated 13 March 2020;
(ii)the GSPP completion report dated 15 September 2020;
(iii)the MISOP completion report signed by him on 16 April 2021;
(iv)Dr J’s affidavit filed 18 November 2021;
(v)Mr L’s affidavits filed 9 December 2020 and 13 January 2022; and
(vi)the Reasons for Judgment delivered 28 July 2023.

(c)inform the psychologist of any and all further criminal charges and convictions which relate to him.

Provision of information to Ms C and Mr D
23.That within fourteen (14) days of the date of these Orders, the Independent Children’s Lawyer provide to Ms C and Mr D a copy of:
(a)the GSPP completion report;
(b)the MISOP completion report;
(c)the report prepared by Dr K;
(d)these Orders; and
(e)the Reasons for Judgment delivered 28 July 2023.

24.That the father keep both Ms C and Mr D informed at all times of any and all further criminal charges and convictions which relate to him.
25.That the Independent Children’s Lawyer be discharged at the expiration of three (3) months from the date of these Orders.
26.That the parties be at liberty to apply to seek a variation to these Orders from 1 January 2026.

IT IS NOTED:
A.That the Orders dated 23 February 2022 concerning M remain in place.
B.That Orders 18 to 23 of the Orders dated 28 January 2021 (concerning the time to be facilitated by the mother in these proceedings and M’s maternal grandparents, time between the children and M) remain in place, though the children have not spent any time together pursuant to those Orders.
C.That Orders 1 and 2 of the Orders dated 25 January 2022 (concerning monthly FaceTime communication between the children and M to be initiated by the mother in these proceedings) remain in place, though the mother has not taken any steps to initiate such communication.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Emmett & Boon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION

This case effectively relates to the best interests of two children, X born 2016 who is now aged six years and Y born 2017 who is four years of age (“the children”). As the chronology that follows reveals, other issues that shape what are the best interests of the children have required significant investigation and exploration by the Court. I should note at the commencement of these Reasons that the Court was greatly assisted by the experienced Counsel in this matter appearing for the parties, Ms Downes of Counsel for the mother, Mr Linklater-Steele of Counsel for the father, and the Independent Children’s Lawyer, who was at the trial represented by Ms Horsley of Counsel.
PRINCIPLES
In a general sense, the principles relating to parenting decisions, where the paramount consideration is the best interests of the children, is well settled, and the pathway is well established.
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 children.
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.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In this case, because of the competing proposals as they are referred to next, I must consider how the Court should deal with the evidence before it within what is colloquially called a “Russell & Close” argument (see Russell & Close [1993] FamCA 62). It was a matter of contention. Recently, the Full Court (Alstergren CJ, McClelland DCJ, and Benjamin J), in a decision of Keane& Keane [2021] FamCAFC 1, considered at [82] the principles that ought be applied where there is an argument advanced that a parent is unable generally to facilitate and support the other parent spending regular time with the children. Relying on earlier decisions such as Blinko & Blinko [2015] FamCAFC 146, the principles enunciated at [82] include that:
• If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child.
• If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent.
• Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
In Helbig & Roweand Ors [2016] FamCAFC 117, at [214], the Court relying on A & A (1998) FLC 92-800 at 84,996, held that:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
Further, at [84] of Keane & Keane, the Full Court observed:
In undertaking the task of considering what steps are “proportionate to the degree of risk”, the decision of Blinko makes it clear that the mere finding that a child may be at an unacceptable risk as a result of spending time in the care of another parent does not conclude the task before the primary judge. A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent.
Although the authorities mentioned so were not “overturned” by the specially constituted Full Court that heard and determined a risk case, Isles & Nelissen [2022] FedCFamC1A 97, some principles arising from that decision (determined after the evidence and submissions in this case ended) deserve to be identified, in particular:
(a)At [7]:
M v M put beyond doubt the proposition that courts exercising jurisdiction under Pt VII of the [Act] must protect children from credible risks of harm due to sexual abuse. Such risks, like all prospective events, are capable of classification in only one of three mutually exclusive categories: possibilities, probabilities, or certainties. Once it is accepted courts should (and do) react to dangers in the form of risks of harm which may merely be possibilities, it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]), but are instead postulated from known historical facts and present circumstances.
(b)At [50] and [54] essentially adopted the analysis by Austin J in Fitzwater v Fitzwater (2019) 60 Fam LR 212 at paragraphs [132 to 142] before clarifying at paragraph [53] that:
…while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
(c)At [85] and [86]:
85.The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
86.We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of “unacceptable risk” cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only possible but not probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent.
COMPETING PROPOSALS

The Applicant mother’s position, which did not vary at the conclusion of the hearing, is set out in her minute of orders sought in the amended case outline filed and relied upon by the mother on 6 June 2002, and seeks orders in the following terms:
1.That the child’s name [X Boon], born […] 2016, be changed to [X Emmett].
2.That the child’s name [Y Boon], born […] 2017, be changed to [Y Emmett].
3.That the mother have sole parental responsibility for decisions concerning the children [X], born […] 2016 and [Y], born […] 2017.
4.That the children live with the mother.
5.That the children spend no time with the father.
6.That the father be restrained and an injunction issued restraining the father from:
a.Communicating or attempting to communicate with the mother or any of the children by any means including verbally or via email, text message or any form of social media;
b.Causing or requesting any person to communicate or attempt to communicate with the mother or any of the children by any means including verbally or via email, text message or any form of social media;
c.Approaching the mother or any of the children;
d.Approaching or communicating with any of the children’s schools, health practitioners or extracurricular activity providers; and
e.Coming within 100 metres of the mother’s residence, or any of the children’s schools.
It should be noted that although orders 1 and 2 of those proposed orders sought a change of surname of the children, that application was not pressed by the mother, and no evidence in the mother’s trial material had in any event been adduced in support of any such application.
The Independent Children’s Lawyer, by final submissions, sought orders in accordance with the minute of orders that was tendered before me and marked as Exhibit 11. That order was, at the invitation of the Court, further expanded by the proposal for a “sunset clause” in the terms of Exhibit 14, such that the entirety of the orders sought by the Independent Children’s Lawyer are set out at Appendix One to these Reasons.
Although the father’s initial position was different (as set out in his case outline filed 6 June 2022), the father broadly accepted the proposal articulated by the Independent Children’s Lawyer, with a minor variation relating to a changeover from a contact centre changeover venue, after six months, to a public venue. Later in these Reasons I shall deal more specifically with some of the specific orders sought by the Independent Children’s Lawyer, some of which were ultimately the subject of consent by the mother if the Court made orders for the children to spend supervised time with the father.
A comparison of the competing proposals of the parties make it clear that the essential issue for determination by the Court is whether or not the children ought have:
(a)physical time or communication with the father at all (including the paternal family and, at least by the orders I am pronouncing in respect of X and Y) and the children’s brother M born 2010, aged 12 years; or
(b)as the Independent Children’s Lawyer and father propose, that there be expanded supervised time between the children and the father under conditions involving the paternal grandmother, Ms C and her husband, Mr D (who I note is not the biological grandfather but the husband of many years of the paternal grandmother).
CHRONOLOGY
To give some context to the reasons which follow, the following chronology of major events is provided. Statements of fact which hereafter appear ought to be construed as findings of fact.
The father is 44 years of age and is working as a labourer. The mother is 38 years of age and works as an office manager in a position of some responsibility. The father was involved in a relationship before the mother and father in these proceedings commenced their relationship. As a result of that earlier relationship, the father became the father of a child, M. M is now 12 years of age. Sadly, when M was approximately two and a half years of age, his biological mother, Ms N, died. It seems, on the evidence, that with the support of all the grandparents of M, the father has tried to manage both his grief of the unexpected death of his former partner, and the growing needs of the little boy in his care.
When the parties commenced their relationship in 2015, the father was essentially the primary carer of M who, at that stage, was approximately five years of age. The parents commenced cohabitation in 2015, and although there is evidence that suggests the relationship was shaped by difficulties and stresses, some of which are referred to later in these reasons, I am satisfied that at least the events approximating the final separation in September 2018 which are referred to, caused the relationship to end. X was born in 2016. He has been diagnosed with Attention Deficit Hyperactive Disorder, and may yet get a diagnosis for Autism, and has, on the evidence, experienced some behavioural challenges both at home and in the school environment. His younger brother, Y, was born in 2017. It follows that at the time of separation (24 September 2018), X was two years of age; Y was one year of age; and M, still in the care of the father, was eight years of age.
As these Reasons make clear, the father was the subject of charges, arising from the execution by the Police of a warrant, that he was in possession of child exploitation material (“CEM”). I deal with those charges more fully later in these Reasons, because not only did those charges cause the relationship to end and the father’s time with the children to be continually supervised, but the dispute as to how those charges arose and their long-term effect has been a matter of significant forensic and legal investigation. The mother brought an Application almost immediately upon final separation in the Federal Circuit Court of Australia (as it was then known), and on 24 October 2018 Orders were made by a Judge of that Court in the following term:
15.That the Applicant have parental responsibility in relation to the child [M] born […] 2001 (“[M]”).
16.That by this order the Respondent irrevocably authorises any medical, allied health and educational providers of [M] to deal with the Applicant as a person who has parental responsibility for him.
17.That the Applicant is at liberty to make decision in relation to the education and medical treatment of [M] without being required to consult with the Respondent, save that she may not unilaterally change the school in which he is enrolled.
18.That the children [M], [X] born […] 2016 and [Y] born […] 2017 and [M] (collectively referred to herein as “the children”) live with the Applicant.
19.That the children spend time with the Respondent on a supervised basis at [B Counselling] at [Suburb P] for no less than two (2) hours each fortnight, or as can be facilitated by the contact centre.
20.That within seven (7) days of the date of these Orders, the parties do all things and sign all such paperwork as necessary to complete the intake at [B Counselling].
21.That the Father be solely responsible for the costs associated with such contact.
22.That the Applicant have liberty to apply directly to chambers with two (2) days’ notice in the event of any dispute arising in relation to in relation to any parental responsibility in relation to [Y] and [X].
At about the same time, the mother was the aggrieved who had the benefit of a final protection order made by a State Magistrates Court. Apart from the concerning issues relating to CEM, the mother says that on or about a week before final separation, she became aware that the father had been charged with serious offences relating to a female child who he engaged with initially through electronic means, and had sexual relations with her. I deal with that aspect of the father’s past behaviour later in these Reasons as well. What is important to note, however, is that those charges (or any other charges relating to this event), were ultimately not proceeded with by the prosecution.
The mother had also raised a criminal complaint against the father, asserting that he had forced her into having sexual relations with her in 2018. The mother, for the reason she indicates, no longer pressed for that criminal complaint to proceed against the father, making that decision in 2019. When the matter was transferred to the Family Court of Australia (as it was then known) by the Federal Circuit Court of Australia in March 2020, the proceedings against the father for the CEM charges were still to be resolved. In 2020, the father pleaded guilty to various charges and was sentenced to an intensive correction order. Arising from that sentence, the father was put on a reporting conditions order that does not expire until 2025, and is again referred to later in these Reasons.
Furthermore, as these Reasons will make clear, the father was ordered to undertake (and did undertake) some Court-directed courses. One of the courses is described as the Getting Started Program (“GSM”). A completion statement for that program is marked Exhibit 4 and was completed in mid-2020. A further program, known as the Medium Intensity Sexual Offending Program (“MISOP”), was also the subject of intensive therapy, a completion report for which was set out in Exhibit 5. I refer to those reports later in these Reasons. They were the subject of extensive submissions by Counsel on behalf of the mother.
It is to be expected that the serious criminal charges confronting the father caused the arrangements in relation to M to change, such that he progressed to spending only supervised or at times no time with the father, and began living between his paternal grandparents and maternal grandparents (Mr Q and Ms R). In July 2020, the parties engaged in family report interviews with family report writer Mr L. His report (the first family report) was released on 28 August 2020. By 2021, the father had again become a father as a result of a somewhat on‑and-off relationship he had with a Ms S. Although, at one stage, the mother in these proceedings indicated an intention to call Ms S as a witness, no evidence from Ms S is before the Court. The father and Ms S are the parents of a daughter, T born in 2021. The evidence is that the father is not spending any regular time with that child.
With the assistance of the Independent Children’s Lawyer, who has committed to a very difficult case with great vigour, the mother was the subject of interviews by Dr H, a consulting Psychiatrist on 16 July 2021, resulting in a report on 2 September 2021. Dr H was subject to cross-examination and his evidence, such as is relevant, is dealt with later in these Reasons. It was accepted by the parties, and I accept appropriate that the father have a sexual risk assessment performed by a specialist Psychologist. In that regard, through the appointment of Dr J, interviews took place with the father in September 2021, resulting in a report dated 15 November 2021. That report is before the Court, and Dr J was also the subject of cross-examination.
On 1 December 2021, further interviews for an updated family report were conducted by Mr L, resulting in a family report (the second report) dated 6 January 2022. That report also, at that time, included some observations, opinions and recommendations in relation to parenting arrangements for M. On 23 February 2022, final Orders in relation to M were made with the consent of the father, the paternal grandparents and the maternal grandparents of M. The mother, it is clear, whilst not happy with the Orders and the lack of relationship that had been preserved for her with M, neither consented nor opposed the Orders made by the Court on a final basis for M. The Orders made are as follows:
1.That all previous Orders and Undertakings regarding the child, [M] born […] 2010 (“[M]”) be discharged save for Orders 1 and 2 of the Orders dated 25 January 2022 and Orders 18 to 23 of the Orders dated 28 January 2021.
2.That [M’s] paternal grandparents, [Ms C] and [Ms D] be added as parties to the proceedings for the purpose of these Orders only.
Parental responsibility for [M]
3.That the father and the Second and Third Respondent maternal grandparents, [Mr Q] and [Ms R] have equal shared parental responsibility for major long term decisions in relation to [M].
[M’s] living arrangements
4.That [M] live with the Second and Third Respondents and with the Fourth and Fifth Respondent paternal grandparents, [Ms C] and [Mr D] as agreed between them from time to time AND IT IS NOTED that [M] generally lives between those two households on a week about basis
5.That until 1 September 2022, [M] spend supervised time with the father as follows:
a.        Such time is supervised by one or more of:
i.        [Mr Q];
ii.        [Ms R];
iii.       [Ms C]; or
iv.       [Mr D]
(“the supervisor”) with the supervisor to be present with and within hearing distance of [M] at all times that he spends with the father.
b.Supervised time occur for a maximum of eight (8) hours between the hours of 8.00am and 9.00pm, provided that there is always at least one supervisor present at all times;
c.The supervisor will not delegate the role of supervisor to any other person/s;
d.The supervisor will immediately stop the time should they have any concerns regarding the father’s behaviour and/or [M’s] emotional and/or physical welfare; and
e.In the event that a supervisor becomes aware that another supervisor is not supervising [M’s] time with the father, they will report this to the Department of Children, Youth Justice and Multicultural Affairs.
6.That from 1 September 2022, [M] spend time with the father in accordance with his wishes.
Specific issues
7.That the parties will do all acts and things and sign all documents to ensure that [M] continues to attend on Psychologist [Ms U] at [V Psychology], or other Psychologist arranged by [Mr Q] and [Ms R] (“[M’s] Psychologist”), as directed by that Psychologist.
8.That the Independent Children’s Lawyer is granted leave to provide to [Mr D] and [Mr C] copies of the subpoenaed records produced by Queensland Police and the Director of Public Prosecutions regarding the father’s criminal charges and convictions for sex and child sex offences.
9.That pursuant to s 121 of the Family Law Act 1975 (Cth), the parties are at liberty to provide a copy of these Orders to:
a.        [B Counselling];
b.        [M’s] school;
c.        [M’s] mental health practitioner/s; and
d.        The Department of Children, Youth Justice and Multicultural Affairs.
10.      That the Independent Children’s Lawyer is discharged in relation to [M].
Somewhat surprisingly to Mr L, when he interviewed the mother on 1 December 2021, the mother did not reveal she was pregnant. Evidence was given by the mother at the trial that the conception of the child was a private arrangement with a male donor who will play no active role in the life of the child. The child E was born to the mother in 2022, and as far as the Court is concerned, the child is healthy and progressing normally. A trial of this matter commenced on 8 June 2022 but had to be adjourned part-heard for reasons known to the parties, and completed with the evidence of Mr L and final oral submissions on 27 June 2022.
The Court expresses its regret for the delay in publishing these Reasons.
MATERIAL RELIED UPON BY THE PARTIES
Mother
The Applicant mother relied on her affidavits filed 9 May 2022 and 23 May 2022. Her Counsel further relied upon, and cross-examined the father, his witnesses and the experts Dr J; Dr H and family report writer Mr L.
Although the mother’s outline referred to reliance upon two affidavits filed by the mother and affirmed by the mother’s treating psychologist, Ms W, the mother indicated at the commencement of the hearing that the mother did not intend to call Ms W. Considering the case the mother chose to run, the lack of evidence from her treating Psychologist (including any notes of the many consultations she had with those counsellor) coupled, inevitably with the inability to test any evidence through cross-examination, created a significant gap in the mother’s case. No application to adjourn the trial so as to enable the mother to adduce further evidence was made, seemingly relying upon the independent experts from their cross-sectional examinations to establish the mother’s case (together with her own evidence), that the mother’s parenting capacity would be compromised if the father’s position was adopted.
Furthermore, for reasons not explained by the mother, and despite relying upon the advice and statements of her mother and some person from Z Organisation providing the mother with support, no evidence from either of these persons was adduced. In final submissions, Mr Linklater-Steele for the father contended that the principles flowing from Jones & Dunkel (1959) 101 CLR 298 should apply, such that the Court should accept that no evidence from these persons could assist the mother. I agree. Although the mother, at a Case Management Hearing at or before the matter was listed for trial, had indicated an intention to call Ms S (the mother of the father’s recently born daughter T) as a witness, she did not do so. The father’s evidence about his difficult relationship with Ms S and his estrangement from T, which I accept, strongly suggests that Ms S may see no benefit in getting involved in this case. In these circumstances, I do not regard the failure of the mother to call (or subpoena) Ms S as something for which the mother (or father) ought to be criticised.
Father
The father relied upon his affidavits filed 3 and 23 May 2022 and was given leave to rely upon a further affidavit affirmed 8 June 2022. He was extensively cross-examined. Importantly, and relevant to the father’s case and his nomination of supervisors, evidence was adduced from Ms C (the father’s mother) and Mr D (the father’s step-father), both of whom were cross‑examined. As I refer to shortly, the father also relied upon the three expert witnesses called by the Independent Children’s Lawyer.
Independent Children’s Lawyer
The Independent Children’s Lawyer, with funding from Legal Aid Queensland, briefed and procured three experts to provide reports, all of whom were available for cross-examination, namely:
(a)family report writer and Social Worker, Mr L, who published two separate reports:
(i)A report dated 28 August 2020 arising from interviews and observations undertaken on 9 July 2020 (“the first family report”); and
(ii)A report dated 6 January 2022 arising from interviews and observations undertaken on 1 December 2021 (“the second family report”).
For context, Mr L for the first family report interviewed M but did not do so for the second family report. At the time of the second family report, Mr L had received a copy of the risk assessment report by Dr J and psychiatric assessment of the mother by Dr H.
(b)psychiatric assessment by Dr H of the mother who was assessed at an interview conducted on 16 July 2021, resulting in a report dated 2 September 2021;
(c)a sexual risk assessment by Dr J, a forensic and clinical Psychologist, published 15 November 2021 arising from two consultations with the father (14 and 20 September 2021) for a total interview time of approximately five hours.
Additional to the material identified, 14 classes of documents were ultimately tendered during the trial, as follows:
(a)Facebook post by Mr AA;
(b)Queensland Court Outcomes record in relation to the father;
(c)Excerpts of a report by Dr K;
(d)GSPP completion report;
(e)MISOP completion report;
(f)Statement of facts in R v Mr Boon
(g)Pages from the tender bundle extracted during cross-examination of the father by the mother and the Independent Children’s Lawyer;
(h)Contact centre supervision notes;
(i)Notice of reportable offender’s reporting obligations;
(j)Mr L’s curriculum vitae;
(k)The Independent Children’s Lawyer proposed minute of orders;
(l)a chronology of events prepared by the mother as an aide memoire
(m)The father’s proposed minute of order; and
(n)The Independent Children’s Lawyer’s proposed sunset clause.

At the conclusion of the trial on 27 June 2022, the Court received oral submissions from all parties through their respective Counsel.
It is important to understand that the structure of these Reasons is shaped by the dispute in the competing proposals as earlier identified at paragraph 14 – and that the father, having conceded that the Court would hold some concerns arising from his criminal offences; did not seek an order for the children’s time to be unsupervised.
It is well settled by authority (see for example Baghti & Baghti and Ors [2015] FamCAFC 71) that it is not necessary to make findings of fact in every factual dispute raised by the parties – and in this case there are many, some of which are very historical. The Court’s focus does not deviate from the paramount consideration of what is in the best interests of X and Y in the quite complex dispute the Court has before it.
I think it will assist the parties to better understand how the Court has navigated the pathway to its decision, by first dealing with the expert evidence, and then through the matrix of the relevant primary consideration (s 60CC(2)) and additional considerations (s 60CC(3)), to analyse the relevant evidence adduced, subject to the parameters earlier identified.
DR H
The report of Dr H identified “some very important issues of a psychiatric nature” from the mother’s history before opining some of the mother’s reactions to life stressors, and recent events:
is typical of an anxiety disorder and arises as a person finds a need to order and control their world, when external events and issues feel out of control. It also has a basis in a personality style marked by obsessional traits (traits that also aide a powerful devotion to the work ethic, and a capacity to persist).
In terms of the mother’s functioning, Dr H drew support for his opinion that although there is an increased risk for parenting dysfunction as a result of the anxiety disorder he has diagnosed, the risk “can be managed well by ongoing regular psychological counselling” and further, although there is an increased risk of a recurrence of a maladaptive behaviour outlined in his report “this risk is assessed as low… because it has not happened yet (post separation). The [m]other is functioning well at work… she has the parenting responsibilities now for two children, and she is accessing regular psychological counselling”.
Dr H opined the mother does not require the prescription of psychotropic medication but needs “ongoing psychological treatment”. It is clear that Dr H had viewed the reports of Ms W, and when he was cross-examined by the mother and the Independent Children’s Lawyer, he offered further evidence which I summarise in part as follows:
(a)If there is a lack of trust between the mother and the supervisors, this is likely to exacerbate the mother’s mental health, and depending on whether the Court finds the mother’s position is reasonable and genuine, trying to overcome this lack of trust would require counselling and some “motivation” by the mother;
(b)The management of X, with his behavioural challenges, is another stressor on the mother;
(c)Requiring the mother to facilitate time may mean from the mother’s mental health point of view, the mother’s option for “no time” is likely to be better for her;
(d)Under cross-examination by the Independent Children’s Lawyer, Dr H discussed the type of therapy (including “exposure” therapy) that could assist the mother;
(e)The mother’s attempts to be in control of her world can be both “obsessive” and “pervasive”; and
(f)The mother’s anxiety might only be related to the father. She functions well at work and generally dealing with the needs of X and Y and has facilitated supervised time to date, without a reduction in her parenting capacity. However, the mother’s choice (without any intended assistance from the biological father of the baby) to have another child was described by Dr H as “bizarre”.
I take into consideration the comments made by Dr H, as well as his opinion “on the run”, that he is not aware of any research that connects an offender’s interest in CEM and engaging in sexual abuse of a child. I note, of course, that Dr H was not engaged to assess the father. That task was undertaken by Dr J, whose evidence I now deal with in these Reasons.
DR J
Dr J is a forensic and clinical Psychologist, who has significant clinical experience in assessing sex offenders, and by instructions given on 29 July 2021, the single expert was instructed to provide a report as to:
Whether [Mr Boon] presents a risk to the children of:
i.        sexual harm or abuse; or
ii.        offending occurring; or
iii.       inappropriate sexual behaviour
and if so, the nature of that risk and the level or magnitude of that risk.
At the time of instructions, supported by the mother, the father and M’s maternal grandparents, the report was likely to relate to risks to all three children.
After recording “relevant history and background” which also included an acknowledgment by the father “that he found the CEM sexually arousing, though also highlighted that this reflected a broader pattern of sexual preoccupation, as he had also been accessing conventional pornography throughout this time and pursuing sexual contact with multiple adult women”, and of his sexual contact with a female child whom he met on an adult dating site (who in these Reasons is given the name of “BB”), Dr J undertook a range of psychometric tests.
In his risk formulation, Dr J noted that the father’s offending behaviour “occurred in a context wherein he was experiencing relationship disharmony and work/life related stressors”; that the father sought out the CEM material; and that the father’s early sexual experiences with an adult female when he was 12 years of age (which he identified as positive) probably “affected his decision making at this time”.
Dr J finally opined that:
(a)there is limited evidence to suggest that the father meets the criteria for paedophilia;
(b)based on historical factors, the father’s risk of reoffending should be considered low and non-imminent;
(c)the father’s history of consistent parenting and related activities until his arrest in 2018 and lack of any evidence of any sexualised behaviour with his children, support the assessment that he is a low risk to the children; and
(d)if re-offence did occur, it would likely be done in the same way (i.e. accessing CEM). However, with prosocial individuals with adequate support systems, the impact of the criminal justice system is enough to serve as a necessary deterrent against future transgressions.
As was entirely appropriate and to be anticipated, Counsel for the mother strenuously cross‑examined Dr J and brought to his attention a range of observations and comments (mostly earlier put to the father) arising from the subpoena material (Exhibit 7); the pre-sentence report of Dr K (Exhibit 3) and the Getting Started: Preparatory Program (“GSPP”) completion report during which Dr J further opined that:
(a)the father did not report to him that CEM gave him a higher arousal than normal adult pornography such that he had a preference for CEM, but if the Court accepts that was the father’s belief that would be a concern. I do not find that was the father’s belief;
(b)he was not satisfied that access to CEM demonstrates for this father a preferred sexual interest. In this regard, he was aware of the charges initially brought against the father in respect of BB (as his report clearly shows), but because the charges did not result in a conviction, it was not clear that the father knew the child was underage. If the Court found the father knew BB was underage (which the father denied), that would be a concern;
(c)accessing adult pornography three or four times a week, if it affects other aspects of is behaviour, could be problematic;
(d)the father has completed the required courses, and recommendations for such further courses (as the completion reports reveal) is not unusual. The father, as a “low risk” offender, would not necessarily benefit from those additional courses; and
(e)however, the father’s vulnerability can be exacerbated by life stressors; excessive use of alcohol and drug use and, as he is a person with some degree of sexual pre‑occupation, a good therapeutic relationship with a suitably experienced and qualified health professional to help him maintain “stability” in his life, is indicated in this case.
I take into consideration this evidence.
FAMILY REPORT – MR L
Before I make some findings about the evidence of the report writer, it is appropriate to record that after seeing both the mother and the father in the witness box, I share Mr L’s expressed opinion that both parents have demonstrated a “lack of candour” in that:
(a)the mother kept quite her recent pregnancy, the identity of the “sperm donor” and her intentions, whilst
(b)the father failed to disclose the recent offences; the nature of and circumstances around the relationship with Ms S and the birth of their daughter T.
It would be an over simplification to accept these “non-disclosures” are because both parties really wish to tell the other party as little about their lives now than is necessary – in their personal view. Particularly in respect of the birth of E in 2022, the impact on both the mother and X and Y is really impossible to assess.
Although none of the Counsel made a strong submission that either party is totally unreliable or lacks credit, it is a feature of the evidence I heard (and I infer the way they may have presented to Mr L), that each parent sought to demonstrate behaviour and thoughts that would cast them in a particular way – the father as a person who should not be assessed as a risk to the children; the mother as a person who would not cope with the boys having a long term relationship with the father. In this respect, the fact that the mother mentioned to Dr H this is a “Russell & Close” case supports my concern.
I have formed the view that both the mother and the father, at times, were exposed during cross‑examination in attempting to portray the same intention when giving evidence before me.
As earlier indicated, Mr L conducted two separate interviews (17 months apart) with the parents and the children X and Y. In noting in the second family report that “the prevalent issues in this family are essentially unchanged”, Mr L identified (at paragraph 80) that M’s needs differ from those of his younger siblings and that M’s “current environment is settled, and that he has adapted relatively well to that change”. Mr L’s second family report shaped the final consent orders made by the respective grandparents and the father on 23 February 2022. Importantly, after 1 September 2022, M was permitted to spend time with his father “in accordance with his wishes”, whilst living between his grandparents as they agreed. I have no evidence of what has occurred since 1 September 2022 in respect of M.
For the reasons articulated in his second family report, Mr L opined that:
(a)a primary concern is the mother’s capacity to cope with circumstances “wherein arrangements are made which may affect her parental capacity” (paragraph 83) and that this risk arises since the commencement of the proceedings and is also affected by the additional behaviour issues of X (paragraph 84);
(b)he did not seem to accept the assessment of Dr J, and relied upon information of the subsequent relationship between the father and Ms S (who he says was at least 15 years younger than the father) as critical data. He regarded the omissions of the father about disclosing the relationship with Ms S (and contract with her younger siblings in breach of reporting obligations – see Exhibit 9) as “significant and relevant to his candour” (paragraph 91); and
(c)before recommending (at paragraphs 98 and 99) that the father’s time with X and Y occur either through supervision (and then only monthly) or no time at all, Mr L said with little ambivalence that:
95.In my view, it is an underlying consideration as to how she would cope in circumstances wherein the children were having unsupervised time with their father, when she clearly cannot trust him. I am also of the view that he cannot be trusted.
When under cross-examination, Mr L became aware that the mother was not candid with him about her pregnancy when she was interviewed on 1 December 2021. My impression was he did not regard the mother’s lack of candour in the same way as he regarded the father’s lack of candour. It was clear that he strongly holds to the view expressed at paragraph 95, and further went as far as to say he believes the father “has a sexual interest in children.” I do not accept this opinion.
In circumstances where the mother had failed to produce the best evidence of her long time treating Psychologist, Ms CC for the mother took the opportunity of cross-examining Mr L with the hope of securing an assessment from him of the mother’s future capacity to parent.
Before turning to that evidence, it was apparent that when Mr L saw the mother for the last report interview, he was of the belief the mother was still maintaining a therapeutic relationship with Ms W. It does not appear he had access to her reports and affidavits. From his further cross-examination, both via the parties and the Independent Children’s Lawyer, the following further clarification and views were expressed by Mr L, namely:
(a)although he was aware that the mother held concerns that if Mr D and/or Ms C were supervisors of the boys’ time with their father, they will not act proactively, Mr L felt that they would intervene even though Ms C does not regard her son as a risk to the children. His only real concern is their “thoroughness” over the long term. The mother believes the father and his family do not have the children’s best interests as their focus, like she does, even though Mr L described the mother as “hyper vigilant”;
(b)although the mother has complied with the current Orders for supervised time, he could not say she would comply in the future – especially if the time was to be supervised by either Mr D or Ms C;
(c)it would be a different sort of loss and a significant one, if the boys did not see their brother M – with M presenting as positive, considerate and caring, and genuinely interested in having a relationship with his younger siblings. Of course, in a few years’ time as M becomes a teenager, he is likely to be less available to X and Y;
(d)moving away from a contact centre to a more natural setting with more opportunities for the boys to engage with their father would have some benefits for the boys;
(e)it is important for the mother (I infer even more so now with the new baby, whilst still working full-time) to have some uninterrupted time on weekends and holidays, and he did not disagree with the Independent Children’s Lawyer’s suggestion that once every three weeks for a full Saturday and Sunday would be suitable. Mr L continued to express the caution that his greatest concern is how the mother will manage the paternal grandparents being supervisors;
(f)if the father’s use of alcohol was still an issue now, then further counselling for the father would be necessary;
(g)he was unable to recall the father telling him that his relationship with Ms S was “merely sexual” but if that was true, it would be a concern. The father denies saying this to Mr L;
(h)Mr L opined that the father did not seem concerned about his lack of disclosure, and this could as a result lead to further lack of disclosure to the mother (or I infer his parents) in the future;
(i)when asked how appropriate it was for the mother to tell these young children that their father “broke her heart” (as I find she has in the past), Mr L conceded that was not appropriate. However, he was unable to say if the mother was fearful of the children continuing to enjoy their time with the father and where that could lead – although he could not dismiss it entirely. His assessment is that the mother’s anxiety will probably continue even if no time was ordered, but that the major sources of her anxiety, he felt were:
(i)a fear the father will abuse the children;
(ii)an anxiety about his influence over the children; and
(iii)her emotional reaction to the father (for example her claim she is “triggered” by the smell of his aftershave cologne).
It is trite to remind the readers of this Judgment that the Court is not bound to accept all the evidence of a family report writer – even one as experienced and as competent as Mr L. Simply stated, Mr L has not had the benefit of hearing all the evidence – tested and explained through the legal representatives. As will become apparent, some of the factors accepted and relied upon by Mr L are given less weight by the Court, than he appears to have adopted, in this case.
I will now use the primary and additional considerations as prescribed by the Act as a matrix to try and explain the essential findings I make in this case – relying as I do upon findings already made and not seeking to confuse the parties, by attempting to engage with every aspect of the evidence before me by making a finding on every factual dispute.
PRIMARY CONSIDERATIONS
I find X and Y will benefit from having a meaningful relationship with the father. The manner in which s 60CC(2)(a) is prescribed, leaves considerations of the boys relationship with other than their parents to other considerations.
The mother expresses the belief that the children do not have, and will not gain in the future, any meaningful relationship from the father. This is implicit in the orders she seeks but was nonetheless firmly expressed by her. I disagree.
The mother has, it seems, taken the view that the boys do not need a father. That she seems to have formed the same view in relation to her baby E, is not necessarily relevant. As I discuss next, whilst I accept some issues in the future (depending on how they are handled primarily by the mother) could challenge whatever relationship then exists between the father and X and Y, to assume having spent many years now engaging with the father means an abrupt cessation will occur without concern to the boys, is simply fanciful.
RISKS
As s 60CC(2)(c) makes clear, the risks to the children posed by the father must be given greater weight than the benefit they accrue from a meaningful relationship.
I broadly accept the expert evidence of Dr J that the father should be assessed as a low risk of reoffending, for the reasons he gives. However, I do accept that “low risk” is not the same as “no risk”. With the history, the evidence of the father and some of the inconsistencies identified during his cross-examination, he is vulnerable to engaging in further criminal conduct, but more likely on my assessment where:
(a)he is not maintaining a therapeutic relationship;
(b)he uses drugs or excessive alcohol; and
(c)he does not continue, through therapy, to confront the relatively unknown source for why he initiated contact with CEM when every bone in his body should have told him it was wrong to do so.
I accept that the mother seeks to rely upon the alleged sexual engagement with BB as a factor (when combined with his relationship with Ms S) to establish that the father has a sexual interest in children and as a result could sexually abuse the boys if he had any opportunity to do so. I do not accept, on all the evidence (and despite Mr L’s view), this is a finding open to the Court. I draw some comfort that even the mother makes no allegation that the father has ever touched the boys inappropriately, and even if (as the father says) the picture identified by the police of an image of a baby with “nappy rash” is of one of the boys, does not persuade me to make such a finding.

The conditions that the Independent Children’s Lawyer proposes for the father to undertake further specific and ongoing counselling does focus on ameliorating the risk, however where the father does not seek unsupervised time, it is necessary to consider whether the supervision by the paternal grandparents does further ameliorate the risk the father could pose. As I will explain, I find, as the Independent Children’s Lawyer contends, the benefits and safeguards offered by the paternal grandparents as supervisors outweigh the negatives.
At least one of the negatives is the impact on the mother’s future capacity to parent if she is required, by Court order, to not only facilitate the children having continued supervised time with the father, but in the control of the paternal grandparents, who the mother does not trust.
I have carefully considered the evidence of how the mother, to the time of the hearing, has been able to facilitate the boys’ time with their father. At some level, if she had the opportunity to read the contact centre notes (Exhibit 8 being an agreed bundle), she would have seen how much they enjoy their time with the father. The mother, although I accept she has an anxious disposition for the reasons historically captured by Dr H in his report, has shown a level of robustness. That she works full-time is admirable. It is not possible to know the full extent of her support (for the reasons of her election not to adduce even evidence from her mother or the Z Organisation officer), but she must be very confident she was able to handle the future when she elected to conceive another child, in circumstances where she will raise the child as a single parent. Her explanation that she always wanted three children is hardly a sensible motivation, in her circumstances – particularly where at the time of conception, she had no certainty of how the relationship between the father and X and Y would be ordered to occur in the future. Dr H’s description of the mother’s decision as “bizarre” is apt.
I accept the mother felt she has been unfairly excluded from M’s life and that she was never given favourable recognition of her efforts as a mother, when M was still dealing with the tragic death of his mother in 2012 after she came into the father and M’s life in 2015.
However, it is neither reasonable nor logical, when M’s grandparents (Mr Q and Ms R and Mr D and Ms C) took on roles to support M – particularly after the father was charged in 2018 – to be so negative towards them. In circumstances where the orders do not prevent the mother building on her earlier relationship with M, her attitude towards the grandparents has made these opportunities problematic, which is a loss for X and Y.
Whilst I accept that the mother says she will not cope with any order into the future, other than a “no time” order, on all the evidence I am not satisfied that is the case. It will require her to consider the Court’s findings and with the benefit of a suitably informed health professional of her choice, and where, as I find is likely to occur, she sees the benefit the boys derive from having a better relationship with their father the extended paternal family and of course M, it would be a person with very significant – somewhat irrational views – who would not adjust – if necessary compartmentalise – her inner feelings. I do not assess this mother as such a person.
I cannot avoid the possibility that as the primary carer of X and Y, she may not share with them her views about his past conduct; her views about the paternal grandparents and the like. The strength and focus of her views is reflected to some degree by Exhibit 1 – a Facebook post by Mr AA, but essentially authored by the mother.
However, where the mother is, rightly at this time, the only real option for where the boys are to live (and as I discuss briefly later in these Reasons), where the evidence reveals and the father acknowledge she has done a commendable job as a sole parent, there is little the Court can do about the mother’s conduct in sharing negative views (if she does). The consequences to the boys of her doing so; if she did, might unexpectedly affect her relationship with the boys more than their relationship with the father and his family.
ADDITIONAL CONSIDERATIONS
The best independent evidence of the current views or wishes of the children X and Y was captured by Mr L in December 2021 via the observation made and detailed at paragraphs 72 to 76. Mr L observed that as X’s behaviour during the day “was unregulated”, he considered he could not interview him. Observed with the father and M “both boys were responsive and engaging and they appeared to thoroughly enjoy the time”. Whilst I note the mother was recorded (at paragraph 35) as confirming the supervised visits were consistent, she also said “of course he’s going to seem like a hero, like a caring I love my children kind of thing but sometimes they say they don’t want to go”.
Exhibit 8 is an agreed bundle of contact centre notes spanning September 2020 to May 2022. At times the father had to manage some of X’s behaviour, but the notes consistently reveal happy and engaging contact. M appeared to be present for the visits. They showed affection towards the father. There were no issues of concern noted – although on the last visit before the trial (May 2022), the mother told the supervisor X “doesn’t want to see his father”, although he remained for the two hour session and spent “much of the visit sitting close to the father who tends and cuddles him”, and X “appeared much happier as the visit progresses”.
I find that the children are happy to spend time with their father and their brother M, and wish to do so and spend more time with him.
Relationships
The history of care establishes, and all the evidence confirms, that the primary relationship for the boys is their mother, who is in many ways the centre of their life and their source of security. However, the time spent in supervised visits since 2018 has enabled the relationship between the boys and their father to continue to develop – although not in an ideal environment, where a contact centre limits the range of experiences they can enjoy with their father. I accept X and Y have an important relationship with M and a severance of that relationship would be distressing for the boys, and I find contrary to their best interests. Of course continuing to develop a relationship with their young brother E is also important.
Whilst I am prepared to accept the children have maintained contact with the mother’s family, especially the maternal grandmother, it is not possible on the evidence to understand the strength of that bond. Mr D and Ms C had, I am satisfied, a growing relationship with the boys (as grandparents) before the interruption that arose from the father’s criminal conduct. I had the benefit of assessing Mr D and Ms C in the witness box. I accept it would be difficult for any parent to happily accept the actions of their child engaging in the way the father did with CEM, and the incident with BB. They say they were surprised by his behaviour – as it seems was mother.
However I do not share the mother’s view that they may have known of their son’s actions, or that they are otherwise accepting of his actions, such that, if supervisors, they would not intervene to protect the children if any remarks or behaviour of the father during a supervised visit put the children at risk emotionally, physically or sexually. They desperately wish to be grandparents to all three boys. On the evidence I am satisfied, even though the mother says she is not, that they would appropriately intervene or ensure the children were not at risk – even if it brought them into conflict with their son. I also find the father well knows he has a long journey to cover before Mr D and Ms C truly trust him, even though the paternal grandmother (as a mother) expressed to her son she does. My clear impression was, together, Mr D and Ms C would add benefit to the lives of these boys, whilst ensuring they are safe.
A combination of Orders of the Court, the father’s bail conditions and, post-conviction, the father’s reporting obligations (Exhibit 9) has meant the mother has essentially exercised sole parental responsibility and the father’s time has remained supervised.
I will deal with the likely effect of any changes in the children’s circumstances (s 60CC(3)(d)) when discussing the ultimate conclusions made by the Court, as I accept this is a critical factor.
No practical difficulties or expenses arise, if the children spend time with the father as he and the Independent Children’s Lawyer propose. Of course, the mother contends no time orders should be made.
The mother says she has the capacity to provide for the needs of the children, including emotional and intellectual needs, and I agree. Importantly, she has not only demonstrated this capacity, but she has done so in trying conditions, including:
(a)the behavioural challenges arising from the conduct at times of X;
(b)being a single mother with some support – the full extent of which is not entirely clear;
(c)not only working full-time, but continuing to do so and advance her career with promotions;
(d)confronting the abrupt breakdown of her relationship with the father – a person she says “broke her heart” and who she felt was a likely long term partner – in the very public and distressing circumstances flowing from the father’s charges;
(e)trying to adjust to the changing role as a parent to M and the loss, in some ways, of her relationship with him;
(f)supporting the Orders made by the Court for supervised time where she says she still holds fears the father is a risk; and
(g)dealing with this litigation,
all such matters and stressors occurring whilst the mother tries to deal with her anxieties, further explained by Dr H.
The resilience and determination of this mother to do what she believes is in the best interests of X and Y should not be doubted, and I respect those qualities. Acknowledging these strengths however persuades me that the mother will, probably with therapeutic assistance, continue to exhibit the same qualities into the future even if I make the orders the father seeks, and which she opposes.
The father’s capacity, and his ability to demonstrate that capacity, on his proposed orders will be somewhat supported at all time by supervisors. I do not however find he is without capacity.
When considering s 60CC(3)(i) about the attitude of the parents to the child and the responsibilities of parenthood, I accept by engaging in the conduct he has been convicted of relating to CEM, the father has demonstrated abhorrent judgement and a total lack of responsibility to his children – who have been required to endure the consequences of his absence in their lives. I do not ignore how he was required to take on greater responsibilities with M, and the orders made infer he will continue to play an active role with M. Unlike the mother however, I accept the father has demonstrated an appropriate attitude to preserving and trying to improve the relationships between the boys and M – which as the biological father of all three boys would be a natural instinct.
It would be too easy to judge the mother harshly as to her attitude to the responsibilities of parenting, by concentrating on some of her statements, such as:
(a)I want freedom and the father “out of her life”;
(b)telling the boys their father was “naughty”;
(c)adopting some of the comments in Exhibit 1;
(d)A failure to accept the very positive interactions at the contact centre reflect the children enjoy time with their father; and
(e)A failure to appreciate the importance of M to the boys and the paternal extended family,
and I do not do so.
However, these statements do concern me and some reflection by the mother with the assistance of counselling is likely to assist her into the future.
There are no current family violence orders and I note the sensible final submission of Counsel for the mother that the history and evidence, some disputed (for example the “candle” incident after which the mother then left the child with the father) and all some years ago, would not support a finding that the father is a physical concern to the children in terms of violence.
I accept if the mother’s orders are made, that there is less likelihood those orders will lead to further proceedings (s 60CC(3)(l)). The mother’s Counsel submits, with no time with the father, these children will just get on with their lives managed by their loving mother. I am not able to give the mother any ultimate comfort or guarantees, that if the Court makes the orders the father and the Independent Children’s Lawyer propose, and where as the children grow older they may well seek out male time with their father (in circumstances where the mother does not seem to regard it as important), that the children might not express wishes to spend more time – even time unsupervised. The mother expressed a fear that permitting time will lead to more time with less restrictions. This was an issue at least raised, during submissions, by the Bench, aware of decisions like Moose & Moose (2008) FLC 93-375. “Sunset” type clauses are difficult – even when the children get older and more mature. I accept at some point in time these children will become aware of the father’s offending (as well M) and this is likely to be confronting. One can only hope that this difficult issue is dealt with in an age appropriate way and does not become a catalyst for further issues between the parents. I take these matters into consideration, however as I will shortly confirm, they do not persuade me to make the orders sought by the mother on even, as an alternative, limited “recognition” time.
PARENTAL RESPONSIBILITY AND DISCUSSION
I agree it is in the best interests of the children for the mother to have sole parental responsibility for the major long term issues in relation to the children, and that the additional restraints sought by the Independent Children’s Lawyer at order 2 are in the children’s best interests.
The expansion of time, albeit continually supervised, proposed by the Independent Children’s Lawyer and adopted now by the father will be a change of circumstances for the children because:
(a)they will spend more time with their father;
(b)they will begin to reunite with the paternal family, particularly the paternal grandparents who will be supervisors;
(c)they will be, I find, enlivened by the opportunity to spend time outside of the structural constraints of the contact centre; and
(d)their relationship with M will continue to grow with more opportunities.
The mother was fair to concede that if the children’s time with their father was to cease, X at least would be distressed, possibly angry and frustrated. I agree. This little boy already has challenges, and exacerbating them is not ideal.
I have reached the conclusion that the imposition of supervision will provide safeguards against any of the low risks the father, on all the evidence, at this time presents.
I repeat again that on all the evidence I do not find the mother will, although no doubt be unhappy, allow her excellent parenting of these children to diminish. Although she does not seek to be relieved of any of the day to day responsibilities of parenting, the orders I propose to make will allow her some limited respite.
FORM OF ORDERS
The orders which appear at the commencement of these Reasons are in the best interests of X and Y. I explain some of the reasons why the order is slightly different from the proposed final orders of the Independent Children’s Lawyer set out at Appendix One to these Reasons, namely:
(a)to familiarise the children with Mr D and Ms C after a significant period where they have spent no time with them, I will order the current arrangements continue for four visits, before moving to the extended supervised time;
(b)in view of the recent alcohol fuelled events concerning the father as conceded in his affidavit of 8 June 2022, I will make an order that restrains the father from consuming alcohol to excess whilst the children are spending time with him, and being affected by alcohol at the commencement of any contact visit;
(c)I propose the “sunset clause” contended for by the Independent Children’s Lawyer (and supported I understand by the father) that any applications to vary the orders now made not be made before 1 January 2026, be included in the orders. Such a provision is not intended, nor could it, to restrict the capacity for a parent to seek the vary the orders before that date, however it would be necessary in any future application to demonstrate an substantial and material change of circumstances, as well as satisfying the longstanding principles to revisit these arrangements identified in decisions like Rice & Asplund (1979) FLC 90-725. In that regard, by 1 January 2026, X will be approaching his tenth birthday and Y will be eight years of age. Provided the father complies with Order 22, as I expect he will, further evidence by a treating Psychologist will be available as well. Whether the mother, nearly two and a half years from now, says her parenting has diminished or not, might also be informed by whether the mother has undertaken the counselling recommended by Dr H and prescribed by Orders 19 to 21.

I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.
Associate:
Dated: 28 July 2023
APPENDIX ONE
Parental Responsibility
1.The mother have sole parental responsibility for the major long term decisions in relation to the children X born 2016 and Y born 2017 ("the children").
2.The mother be restrained from:
a.changing the names of the children;
b.relocating the children primary place of residence to a location located more than one hour's drive from B Counselling;

without the express written agreement of the father.
ICL Primary Proposal
3.The children live with the mother.
4.The children spend time with the father, at all times as may be agreed in writing between the parties and failing agreement, as follows:
a.from the date of these orders (and noting the children are currently spending time with the father each alternate Sunday at B Counselling), on the first and second ‘usual’ alternate Sunday that the father would spend time with the children, for a period of two hours, supervised at B Counselling, with each parent to immediately give any necessary permissions for Ms C and Mr D to attend such sessions; and
b.thereafter and for a period of six months, on the first of every three weekends (with the first weekend commencing two weeks after the last supervised session at B Counselling), from:
i. 9.00am to 5.00pm on the Saturday; and
ii.9.00am to 5.00pm on the Sunday;

c. thereafter:
i.during school terms, on the weekend which falls at the conclusion of weeks one, four, seven of the children's school term, from:
A.9.00am to 5.00pm on the Saturday; and
B.9.00am to 5.00pm on the Sunday;

ii.during the Queensland gazetted school holiday periods:
A.for the holidays commencing at the conclusion of Terms 1, 2 and 3, from 9.00am to 5.00pm for any three days falling within the first half of the school holidays as may be nominated by the father in writing at least 60 days in advance, provided that such days do not include either of the children's birthdays, the mother's birthday or the children's brother E's birthday;
B.for the holidays commencing at the conclusion of Term 4, for any ten days from 9.00 am to 5.00pm falling within the school holidays and nominated by the father in writing at least 60 days in advance, provided that such days fall within the first, third and/or sixth week of school holidays, and further provided that such days do not include Christmas Day, Boxing Day or New Years Day (in circumstances where B Counselling is closed on such days) and that there be no greater than four consecutive days at any one time.

5.The children's time with the father pursuant to order 4 be supervised at all times by one or more of the following persons:
a.        Mr D;
b.        Ms C;
c.        any other person agreed to in writing by the parents from time to time.
6.In the event that no supervisor is available to the father, he is to provide fourteen (14) days' notice to the mother in writing that the children will be unable to spend time with him during the relevant period.
7.Unless otherwise agreed in writing, the parties shall facilitate changeovers at B Counselling, F Street, Suburb G, with all costs and fees associated with changeover to be solely borne by the father.

Special occasions
8.In the event the children's time with the father otherwise falls on Mother's Day in any year, the children's time with the father shall occur the following weekend instead of on Mother's Day.
9.In the event the children's time with the father does not otherwise fall on Father's Day weekend in any year, the children's time with the father be rescheduled from the ‘usual’ weekend which falls prior to Father's Day, and occur on Father's Day weekend instead.

Communication between the parents
10.The parents shall not communicate directly by telephone except:
a.in the event of any medical emergency affecting one or both children while they are in the father's care, the father will send a text message to a phone number nominated by the mother for that purpose;
b.in the event of any medical emergency affecting one or both children while they are in the mother's care, the mother will send a text message to a phone number nominated by the father for that purpose;

and in each case, the parents will inform each other of the nature of the medical emergency and where the children have been taken for treatment.

Authorities
11.Both parents be permitted to attend at a hospital or medical facility where the children are being treated in the event of a serious medical emergency affecting them, subject to the rules and directions of the hospital or medical facility.
12.The father is at liberty to obtain information and copies of documents (including school photographs, awards and certificates) concerning the children from the children's school(s) and daycare at his own cost, and this order authorises the school to release such information and the documents to the father, subject to their rules and regulations, noting that this Order does not require the release of information concerning the mother's residential address to the father.
13.The father is at liberty to obtain information and copies of documents concerning the children from the children's medical practitioners at his own cost, and this order authorises any medical practitioner involved in the treatment of the children to release the documents to the father, subject to their rules and regulations, and noting that this Order does not require the release of information concerning the mother's residential address to the father.

Exchange of information
14.The parents immediately provide to each other an email address on which they can contact each other pursuant to these Orders, and provide an updated email address within twenty-four (24) hours of any change thereto.
15.The mother keep the father informed, in writing, of:
a.the school(s) attended by either of the children at any time;
b.the general medical practice(s) attended by either of the children at any time;
c.any specialist medical practitioner(s) attended by either of the children at any time;

and in relation to any change thereto, the mother will inform the father within seven days.
16.The mother keep the father informed, in writing, of any significant medical issue affecting either or both of the children, and the treatment which has been obtained for the medical issue (including the information as required by order 15 herein).
17.The father keep the mother informed at all times of any further sexual offending criminal charges or convictions which relate to him, including charges or convictions relating to failure to comply with reporting conditions.

Mother's engagement with psychologist
18.The mother is to engage in cognitive behavioural therapy and psychological treatment as recommended by her treating psychologist or general practitioner.
19.Within fourteen (14) days of the date of these orders, the mother is inform the Independent Children's Lawyer as to the name and contact details of her treating psychologist or general practitioner.
20.Within twenty-eight (28) days of the date of these orders, the Independent Children's Lawyer provide a copy of these orders and the Reasons for Judgment issued in support of these Orders for the purpose of assisting that practitioner to challenge (within the context of cognitive behavioural therapy) the fears and anxiety expressed by the mother in relation to the children spending time with the father under supervision.

Father's engagement with psychologist
21.Within fourteen (14) days of the date of these orders, the father obtain a referral (if necessary) to, or otherwise engage with, a psychologist experienced with the treatment of registered child sex offenders, and:
a.continue to attend upon that psychologist as recommended or directed by the psychologist;
b.provide the psychologist with a copy of:
i.the Report of Dr K dated 13 March 2020;
ii.the GSPP Completion Report dated 15 September 2020;
iii.the MISOP Completion Report signed by him on 16 April 2021;
iv.Dr J's Affidavit filed 18 November 2021;
v.Mr L's Affidavits filed 9 December 2020 and 13 January 2022;
vi.the Reasons for Judgment issued in support of these Orders;

c.inform the psychologist of any and all further criminal charges and convictions which relate to him.

Provision of information to Ms C and Mr D
22.Within fourteen (14) days of the date of these orders, the Independent Children's Lawyer provide a copy of the GSPP Completion Report, the MISOP Completion Report, the Report of Dr K, these orders and the Reasons for Judgment issued in support of these orders, to Ms C and Mr D.
23.The father keep both Ms C and Mr D informed at all times of any and all further criminal charges and convictions which relate to him.

ICL Alternate Position
-if Court not satisfied that Father's proposed supervisors will act protectively, (as and when may be necessary); or
-if Court satisfied that Mother's parental capacity will be discernibly impacted by the implementation of arrangement which sees the children spend time with the Father under the supervision of his proposed supervisors
24.In the alternative to orders 4 to 7, the children spend time with the father supervised by B Counselling, or another professional supervision centre as agreed in writing between the parents, as follows:
a.on one day each third weekend, at such times and on the day which can be facilitated by the centre (if both days can be accommodated, then Sunday), noting that these orders do not stipulate a maximum duration for the visits;
b.with all costs and fees to be solely borne by the father;
c.with each parent to give any necessary permissions for the child M born 2010, Ms C and/or Mr D to attend such sessions, in addition to the father.

IT IS NOTED THAT:
A.The Orders made 23 February 2022 concerning M remain in place.
B.Orders 18 to 23 of the Orders made 28 January 2021 (concerning the time to be facilitated by the mother in these proceedings and M's maternal grandparents, time between the children and M) remain in place, though the children have not spent any time together pursuant to those orders.
C.Orders 1 & 2 of the Orders made 25 January 2022 (concerning monthly FaceTime communication between the children and M to be initiated by the mother in these proceedings) remain in place, though the mother has not taken any steps to initiate such communication.

FURTHER ORDER SOUGHT BY THE ICL:
25.That the parties have liberty to apply to seek a variation to these orders from 1 January 2026.

File number(s):	BRC 11127 of 2018
Judgment of:	BAUMANN J
Date of judgment:	28 July 2023
Catchwords:	FAMILY LAW – PARENTING – Where the mother contends for final orders that the children spend no time with the father – Assessment of risk – Where the father was convicted of possessing child exploitation material and faced other serious criminal charges – Where supervised time has continued since 2018 – Whether the mother’s parenting capacity will diminish if even supervised time continues
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA,65DAA
Cases cited:	Baghti & Baghti and Ors [2015] FamCAFC 71 Blinko & Blinko [2015] FamCAFC 146 Fitzwater v Fitzwater (2019) 60 Fam LR 212 Goode & Goode (2006) FLC 93-286 Helbig & Rowe and Ors [2016] FamCAFC 117 Isles & Nelissen [2022] FedCFamC1A 97 Jones & Dunkel (1959) 101 CLR 298 Keane & Keane [2021] FamCAFC 1 (2021) 62 Fam LR 190 Moose & Moose (2008) FLC 93-375 Russell & Close [1993] FamCA 62
Division:	Division 1 First Instance
Number of paragraphs:	95
Date of hearing:	8 – 10 and 27 June 2022
Place:	Brisbane
Counsel for the Applicant:	Ms S Downes
Solicitor for the Applicant:	KLM Solicitors
Counsel for the Respondent:	Mr J Linklater-Steele
Solicitor for the Respondent:	Naughton McCarthy Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms R Horsley
Solicitor for the Independent Children's Lawyer:	Legal Aid Queensland

BRC 11127 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS EMMETT Applicant
AND:	MR BOON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	28 JULY 2023