Omidvar & Jarah (No. 2)

FAMILY COURT OF AUSTRALIA
Omidvar & Jarah (No. 2) [2020] FamCA 1094

File number: BRC 3032 of 2017

Judgment of: CAREW J

Date of judgment: 18 December 2020

Catchwords: FAMILY LAW – CHILDREN – Family violence – Best interests of the child - Where the mother alleges significant family violence but it is denied by the father – Where there was no positive finding of family violence yet unable to reject all allegations as groundless - Where the father does not pose an unacceptable risk of harm to the child in the future – Where the mother’s parenting capacity is not significantly negatively impacted if the child were to spend time with the father - Where the father’s proposal to spend time with the child is not reasonably practicable – Where despite there being no positive finding of family violence and where it is found that the father does not pose as an unacceptable risk of harm, it is found that it is not in the child’s best interest to spend time with the father -Where an Order is made that the child is not to spend any time with the father unless instigated by the child.

Legislation: Family Law Act 1975 (Cth)

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

Banks & Banks (2015) FLC 93-637

Bant & Clayton (2019) FLC 93-924

Briginshaw v Briginshaw (1938) 60 CLR 336

Johnson & Page (2007) FLC 93-344

Jones v Dunkel (1959) 101 CLR 298

Lennon v Sanil (2020) FLC 93-962

M v M (1988) 166 CLR 69

Moose & Moose (2008) FLC 93-375

N and S and the Separate Representative (1996) FLC 92-655

Sahrawi & Hadrami (2018) FLC 93-857

Number of paragraphs: 163

Date of hearing: 9, 10, 11, 12, 13, 16 & 17 November 2020.

Place: Brisbane

Counsel for the Independent Children's Lawyer: Dr Sayers

Solicitor for the Independent Children's Lawyer: Julie Harrington Solicitor

Counsel for the Applicant: Mr George

Solicitor for the Applicant: Munro Legal Pty Ltd

Solicitor for the Respondent: Legal Aid Queensland

Counsel for the Respondent: Mr Waterman
ORDERS

BRC 3032 of 2017

BETWEEN:
MR OMIDVAR

Applicant

AND:
MS JARAH

Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:

CAREW J

DATE OF FINAL ORDERS:

17 NOVEMBER & 18 DECEMBER 2020

On 17 November the Court made the following order by consent:
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the child, X born … 2010.
3.The child live with the mother.

In relation to the matters reserved for determination
THE COURT ORDERS THAT:
1.The father spend no time with X born … 2010 (“the child”) unless instigated by the child.
2.The child be permitted to leave the Commonwealth of Australia with the mother or with the written consent of the mother.
3.At any time the child's passport is due for renewal, the Australian Passport Office is authorised to issue the passport for the child, notwithstanding the father has not given his consent or failed to sign the relevant documents.
4.All outstanding applications be dismissed.
5.The independent children’s lawyer is requested to provide a copy of the Reasons for Judgment dated 18 December 2020 to the child’s treating practitioners.
6.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

NOTATION
A.It is noted that the father did not did not oppose paragraphs 2 and 3 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Omidvar & Jarah has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Carew J.

Mr Omidvar (“the father”) and Ms Jarah (“the mother”) are the parents of X (“the child”) born … 2010. The child lives with the mother and has not seen the father since October 2017.
The parents are unable to agree about the child spending time with or communicating with the father in circumstances where the mother alleges that she was subjected to 12 years of horrific family violence at the hands of the father. The father denies the mother’s allegations of family violence.
As the child’s living arrangements and assignment of parental responsibility to the mother were not in issue, a final order was made by consent at the conclusion of the trial providing for the child to live with the mother and for her to have sole parental responsibility.
For the reasons which follow, I have determined that it is not in the child’s best interests to spend time with the father unless instigated by the child. I have come to this conclusion not because I find the father poses an unacceptable risk of harm to the child, but predominantly because of the mother’s implacable opposition (rightly or wrongly) to the child spending time with the father and the impact on the child if he were required to spend time with the father against his mother’s wishes.
WHAT ORDER DOES EACH PARTY SEEK?
By his amended initiating application, the father proposed that a final order be made permitting him to spend two hours per fortnight with the child supervised at a contact centre, not because he conceded there is a need to protect the child from him but in recognition that the child had not seen him for a long time and also to protect himself from any further allegations that might be made against him by the mother. The father abandoned that proposal at the end of the trial and now proposes only the following:
(1)That at the request of Dr B[1] the parents each attend one initial individual assessment intake session;
(2)That the Mother then, at the direction of Dr B, take the child for a consultation with Dr B on at least two individual occasions or as directed by Dr B;
(3)That Dr B thereafter provide a report to this Honourable Court in relation to the suitability for joint reunification sessions to occur thereafter;
(4)That the matter be listed for further hearing before the Honourable Justice Carew at a date to be advised.
If Dr B recommends reunification, the father’s proposal would necessarily involve the parties in further litigation. In the event that an order as proposed by the father is not made, the father does not seek any order at all.
[1] Dr B is a clinical psychologist with particular expertise in reunification between a child and parent where a child is resistant.
The mother opposes the order sought by the father and seeks an order that the father spend no time with the child. In addition, the mother seeks an order enabling her to travel overseas with the child and to obtain passports for the child without the father’s consent. The mother also opposes any form of communication by the father to the child, including the father being at liberty to send a card or gift to the child on special occasions.
The independent children’s lawyer (“ICL”) opposes the order sought by the father and recommends that the father spend no time with the child and that he not be at liberty to communicate with the child. In the event the Court is unable to find that family violence has occurred, the ICL submits that it may be prudent to consider the father occasionally sending letters, cards etc. to the child via a postal address nominated by the mother.
ISSUES
The significant issues requiring determination were identified with the assistance of the parties and are as follows:
(1)Has the father perpetrated family violence against the mother and/or the child or exposed the child to family violence?
(2)If so, does the father pose an unacceptable risk of harm to the child? If so, can that risk be ameliorated?
(3)Whether or not findings of family violence are made, will the mother’s parenting capacity nevertheless be significantly negatively impacted if orders are made for the child to spend time with the father?
(4)What is the likely impact on the child of spending time with the father in circumstances where the mother is implacably opposed to it?
(5)Is the father’s proposal for the child to spend time with him reasonably practicable?
(6)Should an interim order be made as sought by the father?
BACKGROUND
The mother, father, and child are refugees from Country C having arrived in Australia on or about 28 July 2016. The mother and father were married in Country C in 2004 and separated on the day of their arrival in Brisbane. They have one child, X born on … 2010. Their first language is DD Language.
The father was a public servant before fleeing Country C in 2012. The mother and child travelled to Country E and reunited with the father shortly thereafter. The father travelled to Country E via Country D. The family struggled financially in Country E with the father finding it difficult to obtain permanent work. The mother worked in Country C as a fitness instructor and may have undertaken some employment of a limited nature as a health professional while living in Country E. The mother contends that the child was subjected to sexually inappropriate behaviour in Country E at the hands of an older child.
The father and mother were both followers of the Muslim faith before converting to Christianity in 2013. The family applied to the United Nations High Commissioner for Refugees (“UNHCR”) for refugee status in 2014. In 2015, the father obtained work as a tour guide in City F, a town 1,000 kilometres from City G where the family were living and, as a consequence, the father was absent from the mother and child for regular periods. While in Country E, the mother struggled with depression and anxiety and the child was diagnosed with a medical condition. The family were offered resettlement in Australia, and on 20 May 2016 the family were issued visas to travel to Australia. As already noted, they arrived in Australia on or about 28 July 2016.
Since arriving in Australia the mother has received significant assistance from a range of organisations including with the provision of housing, transport, social worker support to assist her in coping in a new country, advice in relation to what services and assistance is available, English classes, medical and counselling assistance etc. The child has also received significant medical and counselling assistance.
About a month after the mother and father separated, the father applied for legal aid to assist him in seeing the child. The mother had cut off all contact. The parties attended a family dispute resolution conference on 28 October 2016 but no agreement was reached.
The mother applied for a protection order on 21 September 2016 upon the basis of alleged violence perpetrated upon her by the father in Country C and Country E. The father denies all allegations of family violence but consented to a protection order, without admission, on 12 January 2017. The protection order expired two years later. The mother alleges the father breached the protection order on one occasion at a supervised visit between the father and the child in 2017. The mother did not report the alleged breach to authorities and it is denied by the father.
In contrast to the allegations made by the mother, the father contends that he and the mother had a happy marriage despite the challenges they faced, particularly in Country E. The father believes the mother has been encouraged to make allegations against him by her family, who allegedly owe him money. He describes the mother’s decision to leave him upon their arrival in Australia as well planned with the assistance of her family.
The child has barely seen the father since the family’s arrival in Australia. There were two occasions in 2017 (15 July and 28 July 2017) when the child spent two hours on each visit with the father supervised by the mother’s brother-in-law, Mr H, and one occasion at a contact centre for two hours (9 September 2017). The cost of the contact centre supervision was $220 per visit. The father requested a change to a cheaper contact centre because he contended he could not afford the cost. He was unemployed at the time. An order to that effect was made on 19 September 2017 and the mother was also ordered to make a small contribution to the cost. After the mother’s intake session, the second contact centre declined to provide their services. The father was observed with the child for the purposes of a child inclusive conference on 31 May 2017 and for the purposes of a family report on 11 September 2017. On 10 October 2017, the father saw the mother and child at a shopping centre and spoke briefly with the child. There has been no contact or communication between the father and child since then. The father did not take advantage of an order made on 29 November 2018 that he be at liberty to send written communication and gifts to the child, because he thought it might confuse the child.
The child has attended three different primary schools since arriving in Australia and has lived in at least four different homes.
The mother met her current partner Mr J (also known as “…”) in November 2017 and he commenced to live with the mother and child in November 2018. The child also changed school at about this time. Mr J has two sons, K, who is 12 years of age and L who is 8 years of age. K and L live primarily with their mother but spend most weekends with Mr J, the mother, and the child. Mr J is a professional.
Neither the father nor the mother are currently employed. The father did have some work as a courier on a casual basis but has not been in any employment since January 2020. He is currently studying in the hope of upgrading his qualifications so that he can work in Australia. He anticipates completing his course in about June 2021. The father is currently reliant on Austudy, a Government social security payment. The mother did have some work as a health professional and fitness instructor but has not been employed for several months. She intends to return to some form of employment. It is not clear what income the mother receives, if any, although an application has been made, supported by Dr M, for the mother to receive funding for additional support for the child through the National Disability Insurance Scheme (“NDIS”), and a carer’s allowance, which is a Government social security payment. The mother has previously been in receipt of a sole parenting payment and Family Tax Benefit payments.
The child has been diagnosed with a number of medical and/or behavioural conditions and is currently supported by a range of medical and allied health professionals including Dr N, a specialist, and Dr M, a child development service fellow at the P Hospital.
The father commenced proceedings in the Federal Circuit Court of Australia on 28 March 2017 and the matter was transferred to this Court on 24 May 2018. Due to the serious allegations of violence made by the mother against the father, s 102NA of the Family Law Act 1975 (Cth) (“the Act”) was triggered (this section coming into effect from 11 September 2019) and an Order was made prohibiting cross-examination by and of each party other than by a legal practitioner. Trial dates were initially allocated on 3 September 2019 for a trial over five days to commence on 3 February 2020 but the trial was aborted after a number of days for reasons related to the interpreter engaged to translate in the proceedings. Further trial dates were set for April 2020 but given the restrictions imposed as a result of the COVID-19 pandemic, the trial was further adjourned. All parties agreed that the matter was not an appropriate one to be heard via a Web platform such as Microsoft Teams. The earliest date possible was allocated upon the lifting of health restrictions and the matter proceeded over 7 days commencing on 9 November 2020 and concluding on 17 November 2020.
The mother and father are each funded by Legal Aid Queensland (“LAQ”). To the end of the trial the costs incurred for the mother’s representation total $59,189 and for the father $62,865. The ICL’s costs are $69,520. The Court provided an interpreter for the parties and LAQ provided each party with an interpreter to translate the proceedings as required. The father did not rely upon the interpreters. The mother did utilise the interpreters but gave much of her evidence in English. There were occasions during her evidence that the mother and/or the mother’s interpreter (provided by LAQ) took issue with the translation by the Court provided interpreter. With all parties consent, the mother’s interpreter replaced the Court provided interpreter when issues about the accuracy of translation were raised by or on behalf of the mother. In assessing the evidence, I have been particularly conscious that English is not the first language of either party nor of some of the witnesses. I am satisfied that neither party has suffered any material disadvantage as a result of these challenges.
Before considering the significant issues in this case, I set out the applicable legal principles.
APPLICABLE LEGAL PRINCIPLES
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[2]
[2]Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a) The time a child is to spend with another person or other persons; and
(b) The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those sections make it clear that the court is concerned with, among other things, a child’s right to have both parents meaningfully involved in their lives when it is safe for that to occur.
In deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstance considered relevant (s 60CC).
In considering the primary considerations the court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

‘Abuse’ is defined in s 4 of the Act and includes an assault or causing the child to suffer serious psychological harm, including when that harm is caused by the child being subjected to, or exposed to, family violence or serious neglect.
‘Family violence’ is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault or repeated derogatory taunts or intentional damage or destruction of property etc.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In cases involving allegations of abuse or family violence, a positive finding of abuse should not be made unless the court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[4] Where it is not possible to positively reject an allegation as groundless, the court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[5] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard”[6] although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[7]
[3] M v M (1988) 166 CLR 69 at 77 (“M v M”), citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (per Dixon J) (“Briginshaw”).
[4] Ibid.
[5] Ibid; N and S and the Separate Representative (1996) FLC 92-655 at 82,713–82,714.
[6]Johnson & Page (2007) FLC 93-344 at 81,890, [68] (“Johnson”).
[7] Johnson (n 6) at 81,891, [71].
The Full Court of the Family Court recently reviewed the role of the court in assessing risk in Bant & Clayton[8] and said at [38] – [41]:
[8] (2019) FLC 93-924 (“Bant”).
In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
The Full Court in Bant & Clayton[9] went on to stress the importance of the whole of the evidence in assessing risk and said at [51]:
The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
[9]Bant (n 8) at [51].
The court is not required to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.[12]
[10]Baghti & Baghtiand Ors [2015] FamCAFC 71 at 12-13, [63].
[11]M v M (n 3) at 76.
[12] Ibid.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the court (s 61C).
In this case an order has already been made by consent for the mother to have sole parental responsibility for the child.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section, I have considered all sections as required when making my determination.[13]
[13]Banks & Banks (2015) FLC 93-637 at 80,116, [49]-[52].
I turn now to consider the significant issues raised in this matter.
HAS THE FATHER PERPETRATED FAMILY VIOLENCE AGAINST THE MOTHER AND/OR THE CHILD OR EXPOSED THE CHILD TO FAMILY VIOLENCE?
Introduction
This is a case where the mother alleges a history of significant violence throughout their 12 year marriage, which the father emphatically denies. It is often asked in a societal context why a victim stays with a perpetrator. That of course is the wrong question because it focuses on the victim rather than the perpetrator but in the context of determining truth, I note that there are many reasons why a person will stay in a relationship where they are subjected to violence. For example, the victim may love the perpetrator and accept repeated promises that the violence will stop, or the victim may believe they are the one at fault because they have been told that for so long, or the victim may be too frightened to leave believing that fleeing will result in death, or the victim may believe they have a greater chance of protecting a child if they stay rather than the child spending time alone with the perpetrator, or the victim may be too ashamed to leave because departure will result in having to disclose the violence. There may be other reasons. In this case, the mother raises a number of reasons for her remaining in the marriage including apologies by the father, shame, and believing she had no choice but to remain. Accordingly, in determining whether or not the allegations are true, I place little weight on the fact that the mother stayed with the father for 12 years.
Demeanour
Violence within the family home rarely occurs in the presence of a witness and often comes down to one person’s word against another. While the mother’s account of the events is evidence that I can accept in the face of the father’s denials, a forensic examination of all the evidence is required. While demeanour can be relevant it assessing truthfulness, I am conscious of the dangers of placing too much weight on my personal assessment of a witness’ demeanour.[14] For example, a witness who seems unsure or histrionic or inconsistent may nevertheless be telling the truth. By contrast, a witness who is calm, consistent, and articulate may be lying. After all, the most practised liars can be very convincing. Evidence that might be said to corroborate an allegation is likely to be more persuasive and reliable in assessing the likelihood of a particular occurrence than demeanour alone. If such evidence is said to exist but is not produced, without explanation, it may tend to cast doubt on the veracity of a witness’ evidence.[15]
[14] Sahrawi & Hadrami (2018) FLC 93-857 at 78,427-78,428, [61] – [65]; Lennon & Sanil (2020) FLC 93-962 at 79,678, [21].
[15]Jones v Dunkel (1959) 101 CLR 298.
To the extent that demeanour plays any part in my determination, I simply observe that the father did not present at any time during the seven days of the trial in a threatening or aggressive way. I contrast this to the observations I have made over many years of alleged perpetrators of violence who simply cannot contain themselves. There was one occasion during the father’s cross-examination where he raised his voice slightly and became somewhat emotional but that was in the context of lamenting the loss of his son in his life. The father did not glare at the mother or gesture or make any facial or vocal response during her evidence or at any other time. When the mother passed by him on her way to the witness box (the mother having declined the opportunity to have any special arrangements made for her giving evidence) the father cast his eyes down. Even when the mother directed statements directly at the father, he did not react. I also note that when the father’s application for refugee status was assessed by the UNHCR he was found to be “credible”.
In relation to the mother’s demeanour, I simply observe that she did not present at any time during the seven days of trial as fearful of the father. She walked directly passed him on many occasions on her way to the witness box without flinching and directed some of her answers to questions during cross-examination directly at him. She was very assertive, although at times clearly distressed. At no time during her evidence did I hear the mother’s verbal tic (clearing of the throat) which her treating psychiatrist described as involuntary and exacerbated by stress. It was not until after the mother’s treating psychiatrist was questioned about the mother’s vocal tic that the mother’s tic was evident. Perhaps surprisingly, Dr O did not consider the sudden onset of her vocal tic to be significant, but no further questions were asked of him on that topic.
I mention matters of demeanour, in particular, because the ICL’s submissions were very reliant upon her assessment of the mother’s “believability”. No submissions were made about the father’s demeanour. In my view, very little weight, if any, can be placed upon demeanour alone.
Consequences for the child of a positive finding of family violence against the father
Given the severity of the allegations, a finding that the father has perpetrated family violence, as alleged, is likely to result in an order depriving the child of his right to have a meaningful involvement of the father in his life.
However, even if I am not able to make a positive finding that the violence occurred as alleged, it may not follow that I can reject the allegations as groundless. In those circumstances, I must assess and evaluate the risk the father poses to the child and if the risk is unacceptable, it is likely to follow that a no time order will be made unless the risk can be ameliorated.
I turn now to consider the evidence in detail.
The allegations of violence
On 21 September 2016 the mother, with the assistance of an interpreter and solicitor, completed an application for a protection order. In that document the mother solemnly and sincerely declares pursuant to the Oaths Act 1867 (Qld) that the following allegations, or rather my summary of them, are true and correct:
(a)The father was physically violent and verbally abusive towards her during their 12 year marriage;
(b)He accused her of “cheating with other people”;
(c)He threatened to harm her if she did not do what he wanted:
(d)The physical abuse increased in frequency and became more severe over the course of the marriage and the mother says she was told by a doctor that her hand was broken after an incident of violence within the first few years of her marriage. The mother says she recalls hearing a cracking sound at the time;
(e)The beatings from the father occurred every couple of weeks. The father usually beat her on the thighs and legs and raped her if she refused sexual intercourse and called her names.
Three incidents are particularised with considerable detail in her application for a protection order.
The 2004/4005 incident
The first incident is described by the mother as having occurred one month after they were married when they were staying at the beach. The mother returned from the beach one afternoon with shells and stones she had collected. The father accused the mother of lying when she said she had been to the beach and proceeded to grab her hair, drag her back into the room she had just left, and pushed her to the floor whereupon he put his knee on her stomach and held her wrists with his hand. He then proceeded to push the stones into her mouth. She begged him to stop which he eventually did and then he apologised.
The mother’s account of this incident is deposed to in her affidavit of evidence in chief where she gives a similar account of the incident to that in her application for a protection order but with the following elaborations and/or differences (the parts in bold type fall into these categories):
25. …
(d)[The father] followed me into the room, wrapped my hair around his wrist and dragged me from my room into the living room and held me down with a foot on my stomach.
…
(g)When I returned home, I reported this incident to the police in City Q. I remember the police telling me to “just go home and be together.” They did nothing to help me and I did not report any other incident to the police while I was in Country C.
The 2015 incident
The second incident described in the protection order application is alleged to have occurred “around 2015” in Country E after the mother spent money on a bus ticket for the child to have his own seat. The father became angry and went to beat her even though they were in public. The father left the mother and child on the bus and later telephoned the mother and told her he was returning home and expected a meal to be served to him upon arrival. The mother says the gas had run out for the stove and she could not contact the utility service because she did not speak RR Language. She relied upon the father to translate for her. She says when the father returned home and she could not serve him a hot meal he suddenly attacked her and dragged her by the hair, twisted her wrist and broke her hand, and then threw her through a window. The mother says she told her son to run away but the father picked him up and pushed him against the door (the mother in another part of the application says the father threw the child against the wall and hurt his back). The mother says she eventually got away and went to the hospital.
In her affidavit of evidence in chief the mother deposes to the 2015 incident in similar terms but with the following elaborations and/or differences (the parts in bold type fall into these categories):
41. Without warning, as I left the room, [the father] kicked me in the upper thigh before pushing me to the ground and dragging me by the hair. [The father] then grabbed my right wrist and twisted it so it really hurt. I managed to get away from [the father] and go to our bedroom. I saw [the child] standing at the door frozen and watching us.
42. [The father] followed me into the bedroom and pushed me through the window which was open. Our apartment was on the first level and I fell about a metre before hitting the grass hard. When I went around to the doorway of the apartment, I saw [the father] speaking on the telephone. I called to [the child] and told him to run to me as I was worried [the father] would hurt [the child] as well. As [the child] started to come towards me [the father] ran after him. [The father] grabbed [the child] and threw him against a door. He then took [the child] inside the apartment with him. [The father] locked the doors and the windows. He would not let me come inside.
43. I went back around to the window that [the father] had pushed me out of. The window was closed, but [the child] had his face pressed up against the window. He looked very sad and frightened.
44.I went to my neighbour, Ms R to get help. Ms R let me call another friend, Ms S who offered to speak to [the father] for me. After Ms S spoke to the father, he agreed to let [the child] leave the apartment and come to me. [The child] appeared to be very sore and frightened. I noticed that the child had a new red mark on his back and it hurt him if I gently touched this mark. Later I noticed that a large bruise developed near the red mark. I took photos of [the child’s] back. I also took photos of bruises on my leg where the father kicked me. …
45. [The child’s] back was very sore so I took him to the T Hospital. They told me that I would get a report and they said that it was just a bruise. Since I have been to Australia, [the child] has had an x-ray and I have been told that the rib has previously been fractured. I was told by the specialist that [the child] had attended upon that [the child] was lucky the fractured rib had not perforated an organ. I have showed the specialist the picture of the injury [the child] had sustained during the incident and they have told me the fracture is in the same place as the injury in the picture. I have not been able to get a properly translated copy of the medical certificate from Country E.
46. My arm was very sore, so I went to the T Hospital when I took [the child.] When my arm was x-rayed the doctor said it was not broken, but there was evidence that he had been broken before.
47. After I left the hospital I went with [the child] to stay with Ms S at her church because I was scared of [the father]. I told the priest at the church that I was having marriage problems and that I was scared of [the father].
48.After staying for about a week at the church the child and I went to stay with my neighbour, Ms R.
49. Eventually [the father] agreed to leave the apartment so that the child and I could return home. Shortly after the child and I moved back into the apartment, [the father] came over to visit with Ms S. He gave me some pink orchids and said he was sorry. I thought I did not have a choice other than to accept [the father] back into the home given we were living in Country E awaiting a refugee visa.
On 2 August 2016, during an interview with a worker from the Y Support Service (“YSS”) the mother (with the assistance of an interpreter) reported that “once her husband throw (sic) her through a window causing her broken arms, broken legs, broken knees. Due to this incident, she had to ask [for] help from her brother”.

In a statement taken from the mother with the assistance of an interpreter for the purposes of her application for a protection order and dated 7 September 2016 the mother described this incident and said among other things – “he broke my hand and then threw me through the window. … He took [the child] and threw [the child] against the door and [the child] got injury (sic) on his back.”
When cross-examined about the 2015 incident the mother said:
(a)There was only one occasion when the father threw her out the window;
(b)Initially the mother said the father had twisted her left arm but the following day she corrected her evidence and said it was her right arm;
(c)The window through which she was thrown was in the child’s room (contrary to her evidence in chief in which she said it was “our” bedroom);
(d)She was sitting on the child’s bed before the father grabbed her and threw her out the window;
(e)She had taken the photographs of the bruising to her right thigh on the advice of her friends and emailed the photographs to her sister because she was frightened of what the father might do if he found the photographs;
(f)The photographs were taken by herself using her iPad while she was staying with Ms S;
(g)The mother also took photographs of the mark on the child’s back.
The 2016 incident
In the mother’s application for a protection order, a third incident is alleged to have occurred. Around March 2016, one Sunday when the family were living in Country E the father was getting ready to go to church and the mother was planning a trip to the cinema with the child. For no apparent reason the father suddenly became aggressive and tried to take the mother’s phone and iPad from her. The father said to the mother - “this will be the last day of your life”. He then removed the mother’s phone and iPad and sent the child out of the room whereupon he commenced to hit and kick the mother and continued to hit and kick her for approximately three hours. The father dragged her into the toilet and hit the back of her head on the metal part of the flushing device of the toilet. The mother says her skull was fractured at two different points, a bone in her right hand was broken and she had multiple bruises on her face and chest. She also says she had a right black eye. The child asked to go outside to play and ran to a neighbour’s house.
In her affidavit of evidence in chief the mother deposes to this incident in similar terms but with the following elaborations and/or differences (the parts in bold type fall into these categories):
52.On 24 April 2016, [the father] was so violent to me that I thought he would kill me. The details of this incident are as follows:
(a)[The father] was in the bathroom while [the child] and I were in the bedroom. We were looking on my iPad to find a movie we could go and see. Without any warning, [the father] came out of the bathroom and took the iPad away. [The child] became very still and asked me why [the father] did this. I was surprised and angry. I shouted at [the father], asking him what I had done that was wrong. [The father] did not say anything. He came back into the room and started beating me.
(b)[The father] stopped beating me and closed all of the curtains in the room before pushing [the child] outside and closing the bedroom door. [The father] then slapped me in the face, pulled my hair, punched me with a closed fist using strong punches like he was attacking a man. He would then stop all of a sudden and leave me in the room. This break would last for about ten (10) minutes and then he would come back in and start beating me again.
(c)I remember that [the child] would come in during the break and tell me that we needed to try to escape. I don't know what [the father] was doing during these "breaks". I did not have a phone or iPad, so I could not contact anyone and ask for help.
(d)At one stage, [the father] asked me for my iPad password. When I refused to give it to him, [the father] dragged me by my hair to the toilet. He asked me for the password again. Again, I refused to give it to him. [The father] hit my head against the toilet. [The father] threatened to shave the front of my hair with a machine because he knew how much I liked my hair. I gave [the father] my iPad password so that he would stop beating me and not shave my hair. [The father] then dragged me by my hair again through to the bedroom and told me that he was going to break my arm. He then grabbed my arm with both of his hands and twisted it hard up and behind my back until I heard it snap. He then punched me and kicked me in the upper leg.
(e)Over the three (3) hours [the father] was beating me he kept saying that this was the last day I would be alive and he was going to kill me. Throughout this time [the father] seemed very calm and in control.
(f)At the end of three hours [the father] answered his ringing telephone and moved away to speak. [The child] came into the room and told me that he was going to get help for me. He then left the apartment. As [the father] was still on the telephone, I went into [the child’s] room and looked out of the window. I could see [the child] and my neighbour's child in the park. [The child] saw me and he left the park with the neighbour's child. [The child] later told me that he went to my neighbour's house and asked the husband, Mr U, to help me as his father was killing me.
(g)Not long after I saw [the child] run from the park Ms R and Mr U, my neighbours arrived at our apartment. Ms R came into my room and started to lead me out of the apartment to her apartment. [The father] smiled when he saw me and he tried to hit me again. Mr U stepped in front of me and stopped [the father] hitting me.
(h)When I arrived at Ms R's house, Mr U's daughter took me to the W Hospital in City G. This was a special hospital that has a police office within the hospital. I gave a statement to the police and the hospital did a forensic assessment of me. I did not want to make an official complaint to the police about [the father] as I was concerned that [the child] may not be able to have a relationship with [the father] if he was stopped from coming to Australia. I was told by Police that if [the father] was charged and arrested, he would be deported back to Country C and [the child] would never have the chance to see him again even if he was an adult and wanted to.
(i)I had multiple injuries including extensive bruising to my neck and chest, an abrasion on the left side of my face, bruising to my right hand, right wrist and my right leg. I also had fractures to the back of my skull in two places. The W Hospital provided me with a medical certificate dated 24 April 2016 so that there was a record if I wanted to make a complaint in the future.
53.When I left the hospital, I went back to my neighbours' house. My neighbours had contacted my brother Mr V (referred to as "my brother"). My brother travelled to City G to take [the child] and myself back to his home in City F. We stayed with my brother for several weeks.
54.While I was staying with my brother, I found out that our visas for Australia had been approved and that we would be travelling to Australia in July 2016. X and I returned to City G to pack our things several weeks before we left for Australia. We stayed with [the father] during this time. While [the father] still yelled at me, he did not beat me again before we went to Australia.
On 11 August 2016, the mother (with the assistance of an interpreter) is reported to have informed a worker from YSS that the father had beaten her for three hours and the child had found help and “the people called the police and they came to help her”. In a statement taken from the mother (with the assistance of an interpreter) dated 7 September 2016, the mother says among other things that this incident involved the father “banging my head to the toilet bowl and seat.”
When cross-examined about the 2016 incident the mother said:
(a)She had not provided any date for this incident despite the date appearing in her affidavit;
(b)When she completed her application for a protection order in September 2016 she was able to work out the approximate date of this incident in which she thought the father was going to kill her and involved the attack over three hours by reference to it having occurred several months before they arrived in Australia but not more than a year prior (the significance of this evidence is that the medical certificates dated 15 May 2015 which are not legible could not relate to this incident);
(c)She suffered a broken left hand on the wrist near the thumb as a result of the attack (cf application for a protection order refers to the right hand being broken);
(d)The father had broken her left hand before when they lived in Country C;
(e)The father had broken her hands four times;
(f)She did not sustain a black eye (cf application for a protection order refers to the mother having sustained a right black eye);
(g)She received the medical report dated 24 April 2016 from the hospital the day she alleges the father tried to kill her (it is curious that the mother retained this document when she said she deleted photographs she took in 2015 because she was afraid the father would find them and become angry with her);
(h)The police were at the hospital and gave the document (described in these proceedings as the medical report dated 24 April 2016) to someone to write the medical report but the police stamped the document;
(i)There were or may have been other medical certificates for this date that were not legible and had or may have been given to her lawyer (I note that a call was made for the production of any other medical certificates but none were produced. As earlier referred to I note that two other medical certificates formed part of the mother’s case that had been translated but were illegible. They were both dated 15 May 2015);
(j)She has undergone X-rays of her neck, knees and shoulder and the X-rays show that she had sustained injuries, (I note that the X-ray reports produced do not corroborate the mother’s evidence);
(k)She denied telling Ms Z in 2017 that her hands had been broken only two times (I note the mother had the assistance of an interpreter when interviewed by Ms Z); and
(l)The father hit, kick, punched, twisted her arm and pushed her every two or three weeks for 12 years.
The mother’s brother, Mr V, provided an affidavit relevant to this incident in which he deposed to the following:
(a)In or about April 2016 he received a telephone call from the mother’s neighbour, Ms R whom he had met on many occasions when he visited the mother in City G;
(b)Because he did not speak fluent RR Language, he put his sister-in-law, Ms AA, on the telephone;
(c)Ms R told Ms AA that the mother had been physically assaulted by the father and the mother was in a very bad way;
(d)He flew from City F, where he was living, to City G a few days later as soon as he could get a ticket;
(e)The father said to him – “I only slapped her once. I was upset and did not realise what I have done”.
(f)The mother and child were staying at Ms R’s home and when he saw the mother he observed that she had bruises on her face and her hand was bandaged;
(g)When he asked the mother what happened, the child interrupted and said – “Dad pulled my mum’s hair and took her to the toilet and hit her head on the toilet”;
(h)Ms R told him that the mother had been to hospital and had suffered a fractured head and internal haemorrhage;
(i)The father called him on numerous occasions and said he had lost control and had made a mistake;
(j)He understood that the mother had already been to the police because Ms R called the police and as there was a police report the matter could be taken to court if there were further incidents;
(k)He obtained advice from a marriage/divorce officer in Country E who said if the mother and father divorced in Country E it could harm their visa application;
(l)Both the mother and the child said they did not feel safe going back to the father so they stayed with him in City F for “about 10 days” until they got their visas and returned to City G to pack and prepare to go to Australia.
When cross-examined about the contents of his affidavit (with the assistance of an interpreter), Mr V appeared vague and challenged parts of his own affidavit. For example, Mr V, said he did not remember when the incident about which he gives evidence occurred despite his affidavit stating the date was in April 2016. He could not explain how the April date appeared in his affidavit but denied the mother told him it was April. Further, in his affidavit he deposed that he understood the mother had already been to police but during cross-examination he, at first, denied he had any understanding that the mother had been to police or that Ms R called the police. Then he said he knew the mother had been to the hospital and that the police would have come to investigate, and later said – “the truth is that the police came to the hospital to visit” the mother. Mr V said that the mother’s neck was red and she had some “blackness” on her face and a bandage on her hand. Later he said he saw “just scratches and blackness”. Mr V confirmed that the child was present during his conversations with the mother. He said that Ms R told him that the mother’s “head is cracked” and told him he should take her to the hospital. He said there was no mention of “cracks” to any other part of the mother’s body. He denied that there was any mention of internal bleeding. Mr V said the father had called him prior to his arrival in City G and told him he had only hit the mother once. He was unable to explain why that evidence did not appear in his affidavit. He said he and the father were friends at the time.
The father denies the conversations as alleged by Mr V and maintains he, i.e. the father, was not even in City G at this time.
The threatening messages
After their arrival in Australia the mother contends that the father commenced to send her messages in which he threatened to hurt her and to come to her mother’s home to get her. The mother contends that as a result of the messages she received from the father, she was in fear of her life.
The father produced translated copies of the messages he sent to the mother after they arrived in Australia. None of the messages contain threats of any kind.
The mother said during cross-examination that the messages produced by the father were not all the messages he sent to her (the mother had not previously raised this as an issue), the implication being that the threatening messages, in which he threatened to come to her mother’s home and hurt her, were not produced by him. When asked why she had not produced the messages given that they were sent to her, she said her iPad was broken. She explained that her iPad had broken while still in Country E but (inconsistently) despite being broken it still worked. She gave the iPad to the child and removed all of the messages that had been sent to her by the father. She had done this some years ago. When she tried to retrieve them she could not because she had done a ‘factory reset’.
In contrast to her oral evidence, the mother deposed in her affidavit filed 16 January 2020 – “I have copies of the messages that I can produce to the court” and then purported to quote two of the particular messages. Neither message contains threats to harm the mother. When asked how she could refer to the threatening messages in January 2020 and say she could produce copies when she said in oral evidence that she had deleted them all, the mother said that she had taken screenshots of some of them. She thought she had given them to her lawyer but she was not sure. She was asked to produce just one message that contained a threat. No message was produced. In this context, I note the record from a counselling service called ‘WW Service’ dated 24 January 2017 which refers to an intention to talk to the mother “to clarify the difference between DVO and the father requesting contact with [the child].”
The mother was also asked how she was able to produce in these proceedings the photographs she took of her bruised thigh from 2015 when her iPad was broken in Country E. The mother said she sent the photographs to her younger sister, Ms BB, before deleting them. She said she was able to produce the photographs in these proceedings because her sister had sent them to her as a message or an email after the mother arrived in Australia and had met with her lawyer. The mother said her sister lives in Brisbane and was available to give evidence to corroborate the mother’s evidence. The sister did not give evidence and no explanation for her absence was forthcoming. I note that, despite the mother alleging that she was dragged by the hair, pushed to the ground and thrown out a window, no other injury (other than the bruise to her upper thigh) is apparent in the photographs produced by her. I also note that, despite the mother stating that the reason she deleted the photographs in 2015 was her fear the father might see them, her evidence is that until the attack upon her in or about April 2016, her iPad was password protected and the father did not know her password.
I further note that, despite being advised by her friends in 2015 to take photographs of the injuries she suffered at the hands of the father, and having access to her own iPad, the mother initially could not explain why she had only taken photographs on one occasion. The mother later said she did not take any photographs of the injuries sustained in April 2016 because she thought it would be sufficient to have the 2015 photographs to prove the father’s violence but then added that a neighbour’s daughter had in fact taken photographs of her. The mother added that when she asked her neighbour’s daughter for the photographs, the daughter said her phone was broken or damaged or not working so she could not obtain them. Having earlier said that she had sent the photographs of her bruised thigh to her sister, the mother later said she had the photographs on her phone. The mother’s former neighbour’s daughter did not give evidence nor was any explanation provided for her absence.
Other allegations of violence
In her affidavit of evidence in chief, the mother also deposes to other particular incidents of violence although with limited detail of the surrounding circumstances:
26. …
(a)Around 2006/2007 … we were living in City CC, Country C. [The father] as angry at me … [He] put my right knee on a wooden bed frame and then stamped on my knee with his foot. I heard a cracking sound and it really hurt me. Although I found it difficult to walk after this, I was too scared to go to the doctor.
(b)On another occasion [the father] used a BBQ utensil (an iron “tong”) to hit my hand hard. It was very painful and my hand looked different from its normal shape. Afterwards I drove myself to a hospital in a manual car using only one hand. The hospital placed a white cast on my hand for about a month. I did not tell anyone about this incident as I was scared of [the father].
(c)There was another occasion that I had said something [the father] did not like. I do not recall what I had said. [The father] responded by slapping me with an open hand across my face many times. My lip started bleeding and swelling, but [the father] did not stop. [The father] only stopped when I apologised to him.
27.During our marriage [the father] would frequently beat me. These beatings occurred every couple of weeks. When [the father] beat me, it would generally occur in the same or a very similar way each time. [The father] would:
(a)Hit me with a closed fist, generally punching my face and head;
(b)Call me names and swear at me;
(c)Twist my arm up behind my back and kick me very hard with his foot into my upper thigh; and
(d)Pull my hair by wrapping it around his hand and dragging me through the house. I would lose chunks of hair from the front of my head which I would then find on the floor afterwards.
28.[The father] would normally rape me after he had beaten me. I found the rape to be much worse than the beatings. I could not stop it and I felt so ashamed and helpless.
29.[The father] frequently threatened to throw me in front of my family as a sign that he did not want me. He knew that this made me scared and upset as I was worried about how this would affect my mother. My mother was sick and I did not want her to be upset or worried about me.

In the records from ‘WW Service’, a referral note reports information that could only have come from the mother, namely, that she “has been hospitalised on more than one occasion due to extensive physical injuries” (the words “on more than one occasion” appear as an insertion after the initial words were written). During cross-examination the mother denied saying she had been hospitalised due to her injuries. The mother attributed evidence to the contrary as a misunderstanding in translation in that she had attended at the hospital in Country E as a result of her injuries but had not been admitted.
Allegations of family violence directly against the child
The wife particularises three incidents involving the father either humiliating or hurting the child. The first incident is alleged to have occurred around 2015 when the child was five years of age and involved the father becoming angry with the child because he had soiled his pants. The mother alleges that the father removed the child’s clothing and dragged the child through a shopping centre and down the street. The mother was not present when this incident allegedly occurred. She was at work. The mother does not reveal the source of her knowledge. The second incident is also alleged by the mother to have occurred around 2015 and involved the father becoming angry with the child when he refused to enter the home after an outing to a restaurant. The mother alleges that the father grabbed the child and placed his hands over the child’s mouth and she thought he would suffocate him. The third incident is also alleged to have occurred in 2015 on the day the mother alleges the father threw her out the window. The mother describes the incident in her affidavit (in so far as it involved the child) in the following terms:
42. … As [the child] started to come towards me [the father] ran after him. [The father] grabbed [the child] and threw him against a door. He then took [the child] inside the apartment with him. …
During cross-examination, the mother resiled from her account in her affidavit suggesting it may have been a problem of translation. In her oral evidence, the mother described the incident as follows:
… He threw me out of the windows. I come back the home again. He was talking on the phone and I told [the child], okay, … let’s escape. And I hugged [the child] and tried to go out. When he saw us, he come and took [the child] from me and [the child’s] back hit the very hard door and [the child’s] rib is broken.
I note that the mother did not appear to have any difficulty using the word “threw” in the context of the father throwing her out the window. I also note that in the version of the incident in her affidavit the mother describes the child running towards her and being intercepted by the father and “thrown” against the door. In the version given in her oral evidence, the child was “pulled” from her arms and the mother conceded that the injury to the child was likely to have been an accident.
Conclusion – family violence
The ICL submits that the mother presented as a witness of credit and should be believed while at the same time conceding the impossibility of reconciling some of the mother’s evidence, e.g. the mother’s graphic description of the attack on or about 24 April 2016 and the injuries she said she sustained with the medical certificate relied upon her to corroborate the attack. Why the father did not present as a witness of credit was not addressed. Counsel for the ICL likened the family violence allegations to the “dark side of the moon” i.e. one may not be able to see it or feel it but one knows it is there. If such an approach were adopted it would set a dangerous precedent and respectfully falls perilously close to a submission to the effect that “it’s the vibe”.
In this case, I am not satisfied that a positive finding can or should be made that the father has perpetrated family violence as alleged by the mother. I have come to this conclusion for the following reasons:
(a)The paramount consideration in any parenting matter is the best interests of the child. The factual disputes between the parties are subservient to that overarching focus;
(b)For reasons which will be discussed later in these reasons, a positive finding of family violence is not necessary to determine the wider issue of the child’s best interests;
(c)A positive finding of family violence may detrimentally impact on the child’s right to have a meaningful involvement with the father if the child seeks out the father in the future;
(d)A positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[16] and proof to the reasonable satisfaction of the Court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[17] As will be discussed below, there are numerous inconsistencies and troubling aspects in the mother’s evidence;
[16]M v M (n 3) at 77, citing Briginshaw (n 3) at 362 (per Dixon J).
[17] Ibid.
(e)I am unable to reconcile the mother’s evidence about the incident that is alleged to have occurred on or about 24 April 2016 which involved, on her account, an extreme level of brutal force over an extended period in which she sustained a broken left or right hand and skull fractures, severe bruising and was covered in blood with the medical certificate dated 24 April 2016 relied upon by the mother and which identifies, at most, some minor injury and certainly nothing consistent with the extraordinary beating described by her;
(f)If the mother were the victim of the vicious attack on or about 24 April 2016 as alleged, and the police were involved to the extent claimed by the mother, i.e. she contends they organised the medical certificate and took a statement from her, it is difficult to reconcile the police taking no action at all against the father particularly when he was in the country as a refugee;
(g)Nowhere in her application for a protection order or her affidavits does the mother allege the father ever choked or strangled her, yet she told Dr O that he had. The mother’s explanation for the absence of such serious allegations in any court material was not convincing. The mother said that she did not include it in her application for a protection order because “they just wanted something brief”. I do not accept that such a serious allegation would have been excluded on the basis of brevity and I note that the application for the protection order in fact contains details of other allegations. In addition, a very detailed statement was taken from the mother on 7 September 2016 in preparation for her application for a protection order and there is no mention by the mother of having been choked or strangled by the father. The mother could offer no explanation for the allegations not appearing in any affidavit but asserted - “but every time happen...”;
(h)Dr O also reports that the mother told him the father’s threats to “assault, kill and remove [the child] from my care was a regular occurrence”. Nowhere in the mother’s comprehensive evidence in chief are such threats asserted. When cross-examined about Dr O’s report, the mother denied she had said the father threatened to kill the child, although she believes he is capable of it. Dr O’s interviews with the mother were conducted in DD Language. I accept Dr O’s evidence;
(i)If, as alleged by the mother, she knew the father would be deported if he were prosecuted for the vicious assault upon her (which was just one of many according to the mother), and that neither she nor the child would also be deported, it is difficult to reconcile her decision to take matters no further with police;
(j)If, as alleged by the mother, her hands have been broken by the father on four occasions, and she suffered two skull fractures and injuries to her neck, shoulder and knees, it remains unexplained why the mother did not produce medical evidence to establish a history of fractures (which would provide some corroboration for her allegations), particularly when the mother has had a number of MRIs and X-rays in Australia. The mother also contends that her doctor “confirmed that [the signs of trauma to her knees] is not due to disease, but as a result of injury”. Contrary to this assertion, I note the content of a letter dated 22 August 2019 from an orthopaedic surgeon, Dr EE, where he says “evidence of localised … disease in the posterior aspect of her right knee. She has similar symptoms in her left knee which is quite possible to have … disease as well”. And a further letter dated 4 December 2019 in which the doctor says “both of the knees have improved significantly”;
(k)The mother alleges that her doctor in Brisbane told her that she has suffered injuries to her shoulder and knees as a result of domestic violence but no such medical opinion was produced nor medical expert called. The medical evidence tendered in the proceedings does not support the mother’s assertions;
(l)The mother alleges that there were witnesses to the immediate aftermath of the assaults that allegedly occurred on or about 15 May 2015 and on or about 24 April 2016 yet no such witnesses were called in her case and no explanation for their absence was forthcoming. There is an unsigned, undated document purporting to be from a neighbour by the name of “Ms R”. Curiously, the mother relies upon this document as corroboration of the attack upon her by the father on or about 24 April 2016. However, the document contains no observations made by Ms R of any injury sustained by the mother despite her allegedly attending shortly after the attack. To the extent that the document might assist the mother’s case, it is limited to an allegation that the child asked Ms R’s husband to “come quick, my father is beating up my mother, come quick”. The document does not disclose whether Ms R was present when the child made this alleged plea. The document also refers to Ms R observing the mother crying and telling her - “He beat me up so badly” and “You were hitting my head against the tile” and that the father “tried to hit (no person is named) in our presence”. If Ms R was prepared to provide information about her knowledge of this event, it begs the question why she was not called as a witness (I am conscious of the fact that the witness may still live in Country E but in this day and age that is not a sufficient explanation, not that any explanation was forthcoming). In this document, Ms R makes no mention at all of the 2015 incident yet, according to the mother, she was very much involved in the aftermath of that incident as well;
(m)The mother’s evidence about why she did not take photographs of other injuries allegedly sustained at the hands of the father was also unconvincing. Initially, the mother could not offer any explanation. Then she said she thought it would be sufficient to have the photographs she took of her bruised thigh in 2015. Later the mother said that her neighbour’s daughter had in fact taken photographs of other injuries and added that she had even asked the daughter to send them to her but was told the daughter’s phone was broken or damaged or not working. There was no explanation for the absence of the neighbour’s daughter as a witness. The mother alleges she emailed the 2015 photographs to her sister and then her sister emailed or messaged the photographs to the mother after she had first seen her lawyer in Australia. There was no explanation for the absence of the mother’s sister as a witness. It also seems inconceivable that the mother did not take photographs of her injuries on more than one occasion when she contends that she was subjected to fortnightly beatings involving punches to the head, nor after the particularly vicious attack on or about 24 April 2016 when she had her brother’s protection within days of the alleged attack. The mother had access to her own iPad and had apparently been able to protect herself from possible reprisal by emailing the photographs taken in 2015 to her sister and then deleting them. The mother’s iPad was also password protected at least up until April 2016;
(n)As discussed above, Mr V was at times vague and inconsistent when giving his evidence although I take into account that at times he spoke through an interpreter. Much of his evidence is second or third hand. Despite living with the mother and father for several months, he provides no evidence of any behaviour by the father consistent with family violence of any sort. In fact, he describes the father as his friend up until April 2016;
(o)The mother’s evidence about why she was unable to provide copies of the alleged threatening messages sent to her by the father after their arrival in Australia was also unconvincing. The mother says she deleted them when she gave her iPad to the child some years ago but when it was pointed out to her that in her affidavit filed 16 January 2020 she said she could produce copies and even purported to quote two of the messages (neither of which contained threats), the mother said she had taken screen shots of some of the messages. Despite being given the opportunity to do so, the mother did not produce a single message whether as a screen shot or otherwise. I reject the mother’s allegations that the father sent her threatening messages after they arrived in Australia;
(p)The mother maintained in her application for a protection order in September 2016 that the child was very scared of the father yet when the child was observed by Ms Z with the father, she describes the child as being delighted to see the father and comfortable in his presence. When the child was interviewed by Ms Z she opined that there was some evidence that the child’s mother had told him what to say. Ms Z reports the child telling her that it makes him sad when his mother says bad or negative things about his father and that his mother - “she told me to remember that dad hit me.” Ms Z described the child as a “delightful, bubbly boy” who was “not anxious or scared” and she did not notice that the child had any verbal or physical tics. (Sadly it seems the child’s presentation has significantly deteriorated over the three years since last seeing his father);
(q)The mother portrayed her current partner, Mr J as being very supportive and she denied there ever being issues of family violence in her relationship with him. She described him as a good role model and that the child had learnt about family violence from the father not Mr J. By contrast, the notes produced by the TT Support Program (“TTSP”) dated 1 March 2018 report that the mother is not happy in the relationship and “gets triggered” by her partner’s behaviours. (I note that the mother’s counsellor Ms FF was able to converse with the mother in DD Language) On 22 March 2018 the mother is reported to have said she had recently been suicidal and the mother was informed that she did not have to tolerate her current relationship just because the child was calling him ‘daddy’. On 14 June 2018 Ms FF’s records report the mother complaining about an argument with her current partner after she had gone to his ex-wife’s house despite him saying not to. An argument followed and she tried to get out of the car they were driving while it was still moving. The mother asked Mr J to leave but he refused. As a consequence of what the mother reported during counselling, there was a discussion about the cycle of violence. I also note Mr J’s admission that he was dealt with for breaching a protection order against his former wife although no conviction was recorded. In my view, the mother has not been candid in these proceedings about aspects of her relationship with Mr J;
(r)The mother did not disclose in her evidence that she had allegedly been sexually assaulted by a pastor or priest in Country E in or about May 2015. This allegation was reported by the mother to a social worker from YSS on 11 August 2016 and the mother describes being traumatised by the experience. The allegation is also contained in a statement taken from the mother dated 7 September 2016 in preparation for her application for a protection order. On both occasions the mother had the assistance of an interpreter. If such an incident occurred it may have been very relevant to the diagnoses relating to the mother’s depression, anxiety and PTSD;
(s)The mother attributes her depression and anxiety entirely to the father yet the records from her counselling session with Ms FF on 17 July 2017 report the mother’s disclosure that she suffered anxiety growing up and had suffered a Major Depression after her father died when she was 19 years old and, as already mentioned, the mother alleged that she was the victim of a sexual assault that traumatised her;
(t)The mother’s allegations of violence against the father were described in her statement dated 7 September 2016 as having occurred “more than 30 or 40 times” which is to be contrasted with her evidence in these proceedings that she was subjected to beatings, including punches to the head, every two or three weeks throughout the entire 12 years of marriage;
(u)The mother’s allegations involving the father perpetrating family violence directly upon the child were limited to three incidents (I do not overlook the fact that the mother also alleges the child witnessed many of the occasions of family violence allegedly perpetrated upon her by the father). All family violence, including the allegations directly upon the child, are denied by the father and I note that the child denied to Ms Z that the father had ever hit him. In relation to the three particular incidents raised by the mother:
(i)The first alleged incident involved the father allegedly stripping the child and making him walk naked in a public place. The mother was not present when this allegedly occurred and does not disclose the source of her knowledge. I reject this allegation as groundless.
(ii)The second involved the father placing his hand over the child’s mouth and the mother’s interpretation of how the child may have felt. I reject this allegation as groundless.
(iii)The third related to the incident involving an alleged injury to the child’s back. If an incident occurred at all it was an accident as conceded by the mother. If an incident occurred as alleged by the mother in her oral evidence, the child was the subject of a ‘tug of war’ between his parents. The father denies not only that there was such an incident but also denies any knowledge of the child ever complaining of any pain in his back or ribs. He suggests that a fractured rib would very likely be painful and if the child was taken to the hospital, as alleged by the mother, he knew nothing about it. It may be that one of the two illegible medical certificates dated 15 May 2015 related to the child but it is impossible to know. The child described an incident to Ms Z in the following terms:
… he accidently bumped me into the big door when he was trying to take me inside. Mum had been trying to take me outside. My back hit the door. It was an accident and he didn’t do it on purpose. I had a bruise on my back. Dad has never hit me before.
I am unable to make a positive finding in relation to this incident nor am I able to reject it as groundless.
(v)Particular evidence from the mother appears to be inconsistent with the mother’s stated fear of the father and / or her fear of him harming the child or even killing him. For example, the mother suggested to the father upon their arrival in Australia that they live close to each other so that they could jointly support the child, and during her interview with Ms Z, the mother suggested that if the father was assessed not to have any medical problems the child could live with him. I am satisfied that Ms Z’s account of this conversation in her report is accurate in part because Ms Z expressed concern about “the inconsistencies provided by the mother in relation to the family violence and [the mother’s] belief that if the father has no mental health issues [the child] could live with him and have time with her”. Ms Z, however, notes a number of possible reasons for these inconsistencies e.g. cultural influences and difficulty managing the child’s behaviour;
(w)When cross-examined about her allegation that the father breached the protection order on 15 July 2017, the mother struggled to support her allegation (reported to her counsellor, Ms GG on 7 August 2017 in an email) that the father’s conduct was “threatening and deplorable”. She described the father’s conduct as involving him “pulling faces” and “moving his finger” and “repeatedly saying something to me”. The mother’s brother-in-law, who was her chosen supervisor, gives no such account (although he does say the father approached within 10 metres of the mother) nor does Ms HH, who accompanied the father. I also note that the mother is reported to have told Dr JJ on 7 March 2018 that there were no incidents with the supervised visits at Location UU. I reject the mother’s allegations that the father breached the protection order as alleged.

In Mr MM’s opinion, the child “has had a profound disconnection from his father” and spending any time with the father will:
… put too much stress on this child, who has a high level of need, and … too much stress on the family system that’s around him which is already compromised, and what this child needs more than anything is as stable care as possible to be provided to him. His chances of recovery and his chances of … coping is having a parent to whom he is as securely attached as he can possibly be, being as stable enough to look after him.
Mr MM concedes that he is not an expert on how the child’s multitude of health issues will be directly affected, if at all.
Mr MM spoke with the child on 13 November 2020 at my request given the significant time that had passed since their last interview. The child spoke positively about his home life and school. He said he did not want to see the father and did not think about him. However, he said it would be “okay” to receive a photograph of the father and perhaps a letter to find out a bit of what is going on for him but he was unable to articulate what might be good about that.
In the face of findings rejecting unacceptable risk and that the mother’s parenting capacity would not be significantly impacted, Mr MM said he would not maintain his recommendation for no contact between the child and father but would in those circumstances recommend an initial reintroduction between the child and father in a therapeutic setting and a report assessing that reintroduction before moving to any relaxation of the setting. He acknowledged that any such order would of necessity be interim in nature.
Dr O commenced treatment of the child coinciding with his treatment of the mother. He has seen the child in consultation on three occasions, 26 October 2019, 30 November 2019 and 11 January 2020. A history was provided by the mother prior to Dr O first seeing the child. Dr O’s “initial impressions and working diagnoses” were ADHD, Conduct Disorder (CD) childhood-onset type, PTSD and Tic Disorder. The child was treated with Ritalin for his ADHD. In his view, the child’s prognosis is, at best, uncertain. Dr O says that “[a]t this stage [the child] is reluctant to see his father. I would be concerned if [he] in anyway feels he is forced to do so. … inconsistencies [in spending time with the father] would make [the child] more vulnerable to further psychological harm”.
Ms QQ commenced her treatment of the child during the COVID-19 pandemic and as a consequence her initial session with him on 30 March 2020 was by video. Thereafter, Ms QQ conducted video or telephone meetings with the mother on four occasions and had her first face to face meeting with the child on 9 June 2020. Since then Ms QQ has met with the child on 12 occasions. Like the child’s previous counsellor, Ms QQ is employed by TTSP. The child’s previous counselling ceased in April 2019 but resumed upon reports that the child had started to deteriorate. This information came from the school, the mother and the P Hospital via a developmental assessment. The child was reported to be displaying signs of emotional dysregulation, hypervigilance, anxiety, motor tics and behavioural issues. Ms QQ spoke to the child’s school teacher on 6 April 2020 and she confirmed that the child was displaying behavioural challenges and emotional dysregulation at school. She had not observed that the child had any motor tics at school. Ms QQ says that she has observed the child displaying signs of anxiety and hypervigilance e.g. muscle tension and vigilance in surveying the environment around him. She has also observed motor tics at least 20 times in a one hour session and heard repetitive nasal noises such as snorting and sniffing. Mr MM also observed motor tics during his recent interview with the child. Ms QQ has also observed the child’s difficulties with attention, focus and impulsivity. It is Ms QQ’s understanding that the onset of Tourette’s syndrome and ADHD “is not commonly attributed to traumatic experiences, although symptoms of ADHD and traumatic stress can look similar and overlap”. While the observations made of the child and differential diagnoses “suggest that [the child] has been exposed to some form of trauma” Ms QQ is “unable to comment on the exact nature of this trauma as [the child] has not disclosed this directly to me” although “his presentation and his play themes are consistent and congruent with exposure to domestic violence as alleged by his mother”. Ms QQ says that the child has never mentioned his father to her and she made the appropriate concession that she cannot definitively draw any conclusion from her observations of him as to the cause or causes for his presentation. The child has never mentioned having nightmares but has told her he sleeps with his lamp on.
The child appears to have a number of health issues. The basis for some of the diagnoses seems less than satisfactory e.g. reliance is placed upon previous diagnoses by doctors not currently involved in treating the child. It seems the child’s condition has deteriorated in recent times. I say this because evidence given during the trial indicates the child has significant issues but the mother said in her affidavit of evidence in chief sworn on 18 December 2019:
93. … His facial and neck tics now only occur infrequently. He sleeps much better and does not have frequent nightmares. He is not aggressive and can control both his behaviour and emotions.
…
95. [The child’s counsellor told the mother that the child] … felt good, … was behaving in a polite way, his tics were better, his mood and behaviour was regulated. ..
…
99. … [The child] is now very gentle, respectful and loving towards me.
100. [The child] was having trouble sitting still and focusing at school.
Also, Mr J (the child’s step-father) said in his affidavit affirmed on 27 November 2019:
36. I have noticed an incredible improvement in [the child’s] behaviour since I first met him …
37. [The child] used to have behavioural problems, including tics which were uncontrollable movements of his face and body.
38. After about 3 months of our relationship starting, [the child’s] behaviour and his tics slowly started to improve.
39. I have noticed [the child’s] sleep to be greatly improved.
40. He no longer has difficulties talking due to involuntary movements.
41. He is still at times having some troubles with his behaviour at school, but we are working with the school to provide support.
42. … the improvements in [the child’s] behaviour are significant especially when compared to my recollection of his behaviour when I met him.
Mr J did not seek to amend, by way of update, this evidence when he gave his oral evidence.
When the mother met with Mr MM in February 2019 the child had recently commenced at his current school and the mother described the child as making friends and getting on well with others. The child was reported to like playing football and swimming and learning a musical instrument.
The generally positive nature of the child’s presentation as described by the mother and Mr J in their affidavits appears somewhat at odds with the evidence referred to by the child’s psychiatrist, Dr O, in his report dated October 2019 wherein he referred to information obtained from the school including the following:
(a)At least one occasion when the child had his hands around another students throat and was squeezing;
(b)He was pulling girls’ hair;
(c)He has no respect for class rule;
(d)He would yell and scream at teachers;
(e)He called one teacher “fat”;
(f)He was stealing from other students;
(g)He was rough with a kitten and punished it for being naughty (although this seems to relate to his pet at home).
The mother conceded that the information referred to by Dr O was correct but she attributed the child’s behaviour to the influence of observing the father’s behaviour towards her during the marriage. The mother also said the child was aggressive towards her in October 2019. I note that as at October 2019 the child had not seen the father for two years and had spent virtually no time with him since July 2016, when he had just turned six years of age. The mother also attributes the cause of the child’s tics to the father. In her interview with Dr JJ on 7 March 2018 she said – “My son has developed tics.” “Ten in one minute, but now it’s just a vocal tic, because the father hasn’t seen the child for three months.”
During cross-examination, the mother described a deterioration in the child over recent months. She said he has problems at school which she described as not being able to sit properly and talking too much and being stressed and having a lot of tics. The mother also said the child was bullied at school because of his tics and that the child’s behaviour is not stable. No explanation was sought or provided by the seemingly different accounts given by the mother and Mr J in their affidavits and the mother’s oral evidence about the child’s presentation.
The child has been diagnosed with a number of medical or behavioural issues including:
(a)   Attention Deficit and Hyperactivity Disorder (ADHD);
(b)   Obsessive Compulsive Disorder (OCD);
(c)   Tourette Syndrome – Complex Motor Tics, Vocal Tics;
(d)   Complex Post Traumatic Stress Disorder (PTSD);
(e)   Emotional dysregulation;
(f)    Anxiety;
(g)   Sensory seeking behaviours;
(h)   Parasomnias/nightmares;
(i)     Blood disorder; and
(j)     Poor weight gain – low caloric intake and Blood disorder.
Dr O said that some of the diagnoses were new to him, despite him being the child’s treating psychiatrist until recently. While he did not necessarily disagree with a diagnosis, for instance, of obsessive compulsive disorder, it might, in his view, be a differential diagnosis. Dr O could not recall ever being informed by the mother or child that the child had been a victim of sexual abuse. In his view such an occurrence would “definitely” have been of significance and, if true, “would be a contributing factor to his presentation.” If the mother’s allegation about sexual abuse is true, it is inconceivable that she would fail to inform the child’s treating psychiatrist. It is consistent though with the mother’s apparent view that any problems the child has are attributable to the father.
The child’s current medication is Guanfacine 1mg nightly (commenced 16 May 2020) and Ritalin LA 20 mg in the morning (recommenced 16 June 2020). I note Dr M’s opinion in the letter dated 24 June 2020 that – “[p]rior treatment with Ritalin 10mg [in the morning and at midday] – likely made anxiety and tics worse, sleep worsened and growth plateaued.” I also note Dr M’s summary of the child’s deterioration over the first six months of 2020 as follows:
Over the past 6 months [the child’s] tics have become more frequent, occurring once every few minutes. His tics are both motor and vocal and have also become more complex in nature- impacting his daily function. Additionally, his level of anxiety has increased with nervousness before school and daily complaints of nausea, weekly complaints of chest pain, and regular reports of sensation of shortness of breath before bedtime. [The child] has also been experiencing increased nightmares and night terrors where he sees his mother "dying covered in blood". There have also been concerns around [the child] displaying intentional harm to a pet kitten (smothering) and younger stepsibling (scalding him in the shower and laughing). His mother reported that his symptoms seemed to worsen around the time his Ritalin dosing was being up-titrated so I ceased his Ritalin and switched him to Guanfacine. Unfortunately, as a result, his executive function has deteriorated, but his tics and anxiety have remained unchanged.
Dr M’s letter to the child’s school dated 2 September 2020 states that the child is on Ritalin LA, Intuniv and Melatonin to manage his ADHD, Tourette Syndrome and Anxiety/complex PTSD. Dr M made a request of the school as follows:
I would appreciate your opinion on the effect this medication has on [the child’s] attention and activity levels, as well as general behaviour at school. Please also monitor for worsening of his tics or increased anxiety following new midday dose. If either occur please let me know.
Surprisingly, there is no further evidence on this issue.
The child has struggled at school particularly in regulating his behaviour. There are some promising signs though in the report card for the end of semester one this year. His reading and writing are at “year level expectation”. His work in the number strand of Mathematics is “at year level expectation”. The child is described as “an enthusiastic and friendly student who responds well to praise and encouragement” and “is trying harder to use greater self control. With support, he has shown that he is capable of working quietly, diligently and behaving appropriately.”
Conclusion – impact on the child
Having carefully considered all of the evidence, I have come to the conclusion that it is not in the child’s best interests to make any order for him to spend time with the father nor even to undergo the assessment proposed by the father.
The father accepts that the mother implacably opposes the child spending time with him and has seen for himself the anxiety experienced by the child in spending time with him against the wishes of the mother.
Despite Mr MM’s candid concession that he found it difficult to assess this family other than through the prism of family violence as described by the mother, I accept his opinion that the “structural history” and the child’s medical and behavioural conditions would require an extremely cautious approach.
The child requires stability at this time, not the prospect of further involvement in litigation. The child had a recent opportunity to see the father in a supervised setting (on 13 November 2020) but declined and Mr MM did not consider it would be in the child’s best interests to force the situation. Realistically, it is difficult to anticipate a different outcome after a further assessment by Dr B. In this context I note Dr B’s description of her ‘reunification therapy’ as being applicable for circumstances where a child has an existing secure relationship which has been interrupted. The child in this case does not have an existing relationship with the father.
IS THE FATHER’S PROPOSAL FOR THE CHILD TO SPEND TIME WITH HIM REASONABLY PRACTICABLE?
The father’s final proposal is extremely minimal but I nevertheless note that the father’s limited financial circumstances have previously resulted in him being unable to take up the opportunity to spend time with the child at a contact centre. I also note that another contact centre declined to offer its services given the allegations made against the father. On the second last day of trial, the father produced evidence from a contact centre indicating they may be prepared to provide long term supervision depending upon “the family’s needs and the best interests of the child”. Their costs per one hour supervised session were $30 or $20 concession. There is a however a three to eight month wait time to use the service. Of course, the father no longer presses for an order that he spend time with the child.
Dr B’s hourly rate is $230 and her process involves one initial individual assessment intake session with each parent in order to understand the background and current concerns of each parent and then at least two individual sessions with the child. One can anticipate that Dr B would also be required to read, at least, my Reasons for Judgment if not the family reports, child inclusive report, psychiatric reports and the treating practitioner’s notes and letters. In my view, Dr B’s fees would likely be a minimum of $4,000 (including her written report). Given the father’s current financial circumstances, I fail to see how he could afford the cost of the assessment process let alone the cost of ongoing supervised visits if they were recommended and ultimately ordered.
Even if an order were made to commence supervised time there is certainly no guarantee that a contact centre would provide long term supervision and the only service located by the father has a current wait time of three to eight months. I am also conscious of Dr O’s opinion that inconsistency in seeing the father, if recommenced, may make the child vulnerable to further psychological harm.
The father’s proposals are not reasonably practicable.
SHOULD AN INTERIM ORDER BE MADE?
For reasons already discussed I do not propose to make an interim order.
CONCLUSION
The father’s application was substantially amended very late in the trial, to seek only an interim order that, if made, would of necessity require further hearing dates if the report to be prepared by Dr B recommended reintroduction of the child to the father. I say further hearing dates would be necessary in those circumstances because such a recommendation would be opposed by the mother and the ICL.
The husband abandoned his application for any order in the event that his application (as further amended) was dismissed i.e. the husband does not seek any order to spend time with the child or to communicate with the child or any other order.
I have made the following findings:
(a)The evidence does not support a positive finding that the father perpetrated family violence as alleged by the mother;
(b)I am nevertheless unable to reject all of the mother’s allegations of family violence as groundless;
(c)The child is aware of the conflict between his parents and was privy to, at the very least, arguments between his parents prior to their separation which is likely to have made him fearful i.e. he was exposed to family violence between his parents when they lived together;
(d)The father does not pose an unacceptable risk of harm to the child in the future;
(e)The mother’s parenting capacity would not be significantly detrimentally affected by the child spending time with the father;
(f)Despite the child having been observed to have a loving and positive relationship with the father in 2017, the child is acutely aware of the mother’s implacable opposition to him spending any time with the father;
(g)At the very least, an order requiring the child to spend time with the father or even engage in further assessment about the issue is likely to be anxiety provoking for the child;
(h)The child requires stability, free from the stress such an order would likely provoke in the mother;
(i)The child has a complicated history of anxiety and numerous other diagnosed conditions for which he is being treated by a team of practitioners; and
(j)The child, while young, has expressed a firm view that he does not want to see his father and I accept the recommendations from both Mr MM and Dr O that the child should not be forced to see the father against his wishes.
Even if reintroduction were recommended and occurred, it seems that the father spending anything other than supervised time with the child would be remote and long term supervised time is not necessarily something that would be beneficial for the child.[22] Mr MM opined that “[l]ong-term structures of supervised time inhibit a relationship between a child and parent. It occurs in controlled, limited settings leaving little room for natural exchanges of affection and physical hands-on care. The benefit of long-term supervised time is that it allows [the child] the scope to gain some independent information about his father in a safe setting”.
[22]Moose & Moose (2008) FLC 93-375 at 82,628 [10]; Bant (n 8) at [53].
In summary, despite not making findings that the father poses an unacceptable risk of harm to the child, I have come to the conclusion that it is not in the best interests of the child to spend time with the father, nor even to embark upon a further assessment of whether reintroduction with the father would be recommended by Dr B.

I have considered whether or not the father ought to be at liberty to send an occasional gift or letter to the child but note the father has elected not to do so in the past for fear of confusing the child. I do not propose to make any order in those circumstances and the father did not press for such an order. Another reason that I do not propose to make such an order is that it would, of necessity, require the mother’s co-operation which is unlikely to be forthcoming. The mother in the past has not given consent to information about the child’s schooling and health being provided to the father, despite being required by an order to do so.
However, I do not propose to prohibit the father communicating or seeing the child if the child instigates contact in the future.
Lastly, the mother seeks an order that would permit her to travel overseas with the child and obtain a passport for him. In circumstances where she already has sole parental responsibility and no order for the father to spend time with the child will be made, I am not convinced such an order is necessary. However, in the absence of opposition to such an order, I will include it for completeness.
MISCELLANEOUS
As already discussed in these reasons, the child has endured enormous upheaval in his life and requires stability and peace. The child’s numerous medical and behavioural conditions are currently being managed by a team of specialists from P Hospital. Many assumptions have been made about the child’s history which may or may not be true and his various treatments have been informed by those assumptions. I would urge caution in future about accepting those assumptions. I propose requesting the ICL to provide a copy of these Reasons to the child’s treating practitioners.

I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.
Associate:
Dated: 18 December 2020

[2020] FamCA 1094

18 December 2020

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Jurisdiction

Procedural Fairness

Costs

Remedies

File number:	BRC 3032 of 2017
Judgment of:	CAREW J
Date of judgment:	18 December 2020
Catchwords:	FAMILY LAW – CHILDREN – Family violence – Best interests of the child - Where the mother alleges significant family violence but it is denied by the father – Where there was no positive finding of family violence yet unable to reject all allegations as groundless - Where the father does not pose an unacceptable risk of harm to the child in the future – Where the mother’s parenting capacity is not significantly negatively impacted if the child were to spend time with the father - Where the father’s proposal to spend time with the child is not reasonably practicable – Where despite there being no positive finding of family violence and where it is found that the father does not pose as an unacceptable risk of harm, it is found that it is not in the child’s best interest to spend time with the father -Where an Order is made that the child is not to spend any time with the father unless instigated by the child.
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Baghti & Baghtiand Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Bant & Clayton (2019) FLC 93-924 Briginshaw v Briginshaw (1938) 60 CLR 336 Johnson & Page (2007) FLC 93-344 Jones v Dunkel (1959) 101 CLR 298 Lennon v Sanil (2020) FLC 93-962 M v M (1988) 166 CLR 69 Moose & Moose (2008) FLC 93-375 N and S and the Separate Representative (1996) FLC 92-655 Sahrawi & Hadrami (2018) FLC 93-857
Number of paragraphs:	163
Date of hearing:	9, 10, 11, 12, 13, 16 & 17 November 2020.
Place:	Brisbane
Counsel for the Independent Children's Lawyer:	Dr Sayers
Solicitor for the Independent Children's Lawyer:	Julie Harrington Solicitor
Counsel for the Applicant:	Mr George
Solicitor for the Applicant:	Munro Legal Pty Ltd
Solicitor for the Respondent:	Legal Aid Queensland
Counsel for the Respondent:	Mr Waterman

BRC 3032 of 2017
BETWEEN:	MR OMIDVAR Applicant
AND:	MS JARAH Respondent
INDEPENDENT CHILDREN'S LAWYER Other

ORDER MADE BY:	CAREW J
DATE OF FINAL ORDERS:	17 NOVEMBER & 18 DECEMBER 2020