RADA & GORNALL

Case [2017] FamCA 381

FAMILY COURT OF AUSTRALIA

RADA & GORNALL [2017] FamCA 381

FAMILY LAW – CHILDREN – Best interests – Parental responsibility – Spend time with – Supervision – Where there is one child who is three years of age – Where the mother makes allegations of family violence – Where the Court finds that the father has perpetrated family violence – Where the parents have no effective communication – Where it is appropriate for the mother to have sole parental responsibility – Where the mother and the Independent Children’s Lawyer seek that the child’s time with the father be supervised – Where the father’s time with the child must be supervised – Order made for the mother to have sole parental responsibility – Order made for the child to spend supervised time with the father.

FAMILY LAW – PROPERTY – Settlement in relation to de facto relationship pursuant to s 90SM of the Family Law Act 1975 (Cth) – Where there is no controversy that the jurisdictional requirements pursuant to ss 90SB and 90SK of the Act are satisfied – Where it is common ground that the father’s contributions exceeded those made by the mother but disputed as to the extent – Where it is found that the contributions were made in the proportions 25 per cent by the mother and 75 per cent by the father – Where the parties agree that there should be an adjustment made in favour of the mother – Where the appropriate adjustment is 15 per cent – Where orders are made to reflect an overall division of property in the proportions 60 per cent to the father and 40 per cent to the mother.
Family Law Act 1975 (Cth)
Cerini & Cerini [1998] FamCA 143
Gorman & Huffman and Anor (2016) FamCAFC 174
H v K[2001] FamCA 687
In the Marriage of Lenehan (1987) FLC 91-814
In the Marriage of Norbis (1986) FLC 91-712
In the Marriage of Zyk (1995) FLC 92-644
Leighton & Carey [2010] FamCAFC 94
Moose & Moose (2008) FLC 93-375
Slater v Light (2013) 48 FamLR 573)
Stanford v Stanford (2012) 247 CLR 108
APPLICANT: Mr Rada
RESPONDENT: Ms Gornall
INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law
FILE NUMBER: DUC 211 of 2014
DATE DELIVERED: 1 June 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Parramatta
JUDGMENT OF: Loughnan J
HEARING DATES: 18 - 21 April 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Neville
SOLICITOR FOR THE APPLICANT: Kelly Hardie Solicitors
COUNSEL FOR THE RESPONDENT: Mr Mooney
SOLICITOR FOR THE RESPONDENT: Jennifer Blundell and Associates
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Hafey
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta Family Law

Orders

Parenting

  1. The mother shall have sole parental responsibility for the child B (“the child”) born … 2013.

  2. Notwithstanding Order 1, the mother shall:

    (a)Do all such things as are necessary to enable the father, Mr Rada, born on … 1972, to liaise with the child’s treating medical practitioners from time to time;

    (b)Do…

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RADA & GORNALL [2017] FamCA 381
Case
[2017] FamCA 381
Decision Date

CaseChat Overview and Summary

In *Rada & Gornall*, the Family Court of Australia considered parenting and property settlement matters arising from a de facto relationship. The primary dispute concerned the best interests of the parties' three-year-old child, with the mother alleging family violence by the father. The court also addressed the division of property acquired during the de facto relationship.

The legal issues before the court included determining appropriate parenting orders, specifically regarding parental responsibility and the child's time with each parent, in light of the mother's allegations of family violence and the finding that the father had perpetrated such violence. The court was also required to determine the extent of each party's contributions to the relationship property and make an adjustment in favour of the mother, as agreed by the parties.

The court found that the father had perpetrated family violence and that the parents had no effective communication. Consequently, it was deemed appropriate for the mother to have sole parental responsibility for the child. The court ordered that the child spend supervised time with the father, with the supervision arrangements and duration progressively increasing over time. In relation to property, the court found that the father's contributions were 75 per cent and the mother's were 25 per cent. An adjustment of 15 per cent was made in favour of the mother, resulting in an overall division of property of 60 per cent to the father and 40 per cent to the mother. The father was ordered to pay a sum of $99,955 to the mother within 42 days, with provisions for sale of property if payment was not made.

Orders

Orders of the court

Parenting

1.

The mother shall have sole parental responsibility for the child B (“the child”) born … 2013.

2.

Notwithstanding Order 1, the mother shall:

(a) Do all such things as are necessary to enable the father, Mr Rada, born on … 1972, to liaise with the child’s treating medical practitioners from time to time;

(b) Do all such things as are necessary to enable the father to liaise with the child’s childcare, pre-school and school from time to time;

(c) Provide the father with a quarterly update in relation to the child’s welfare, development, health, education and extra-curricular activities and notify of any changes in the child’s residential address, such update to be sent via email to an email address set up by the father solely to receive such updates:

(i) For the purpose of this Order, the father shall set up the email address within seven days of the date of these Orders and provide that email address to his solicitor, to be forwarded to the mother’s solicitor and provided to the mother.

(ii) The father is restrained from responding to the mother in any way upon receipt of the quarterly updates

3.

Notwithstanding Order 1, the father shall be entitled to:-

(a) Liaise directly with the child’s treating medical practitioners;

(b) Liaise directly with the child’s childcare, pre-school and school;

(c) Attend parent/teacher interviews at the convenience of the child’s teacher, provided that this does not take place at the same time as any interview with the mother;

(d) Obtain directly copies of school reports, newsletters and school photograph order forms.

4.

The child will live with the mother.

5.

Unless otherwise agreed between the mother and father in writing, the child shall spend time with his father:

(a) From the date of these Orders until the end of 2017 under the supervision of D Group at the C Town Library (or such other agreed location) for a period of no less than three hours on two occasions each month, noting that the time may occur on consecutive days each month:

(i) During this time, the father may be accompanied by his mother but shall not permit the paternal grandmother to express her religious beliefs or engage in any religious practices;

(ii) The father shall be responsible for the costs of this supervised time.

(b) From January 2018 until the end of Term 2 2018 under the supervision of either D Group, E Group or F Group (as nominated by the father) for a period of no less than four hours on two occasions each month, noting that the times may occur on consecutive days each month:

(i) The father shall be entitled to spend time with the child at a venue which is appropriate for the child’s age, no further than one and a half hours drive from the mother’s home and acceptable to the person undertaking the supervision;

(ii) During this time, the father may be accompanied by his mother but shall not permit the paternal grandmother to express her religious beliefs or engage in any religious practices;

(iii) The mother and father shall be equally responsible for the costs of this supervised time with the father paying for the first and each alternate occasion thereafter and the mother paying for the second and each alternate occasion thereafter.

(c) From the commencement of Term 3, 2018 under the supervision of either D Group, E Group or F Group (as nominated by the father) for a period of no less than six hours on one occasion each month:

(i) The father shall be entitled to spend time with the child at a venue which is appropriate for the child’s age, no further than one and a half hours drive from the mother’s home and acceptable to the person undertaking the supervision;

(ii) During this time, the father may be accompanied by his mother but shall not permit the paternal grandmother to express her religious beliefs or engage in any religious practices; and

(iii) The mother and father shall be equally responsible for the costs of this supervised time with the father paying for the first and each alternate occasion thereafter and the mother paying for the second and each alternate occasion thereafter.

6.

Within 28 days of the date of these Orders, the mother shall obtain an appointment with the child’s General Practitioner and request a referral to enable an assessment to be made by a team consisting of a paediatrician and a clinical psychologist in relation to whether the child has an autism spectrum disorder:

(a) The mother shall be entitled to provide the assessment team with a copy of Ms G’s report of 13 February 2017.

(b) The mother shall provide the assessment team with the father’s contact details and copies of contact reports for the six occasions which occurred prior to the first appointment with the assessment team.

(c) The mother shall comply with all requests for information and/or appointments as made by the assessment team.

(d) The father shall comply with all requests for information and/or appointments as made by the assessment team.

(e) The father shall be responsible for payment of any costs of the assessment which are incurred and not reimbursed to the mother either through Medicare or a private health fund.

7.

Each of the parents is restrained from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.

8.

Unless the parties otherwise agree in writing, the father is restrained from:

(a) Contacting or communicating with the mother other than as provided by these Orders;

(b) Attending within five kilometres of the mother’s address, as notified by the mother from time to time;

(c) Attending at the child’s school other than at the express invitation of the staff of the school, provided that the father requests that the staff of the school notify the mother of the father’s proposed attendance.

9.

By consent each party shall permanently destroy any and all images, video, audio and any other audio-visual recording of any type whatsoever, stored in or on any media whatsoever depicting any party in a state of undress or performing any act or conduct of a sexual nature, shall not retain copies of any such recording, and shall not disseminate any such recording to any other person for any purpose whatsoever.

10.

Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth) (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders 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 these orders.

Property Settlement

11.

Within 42 days of the date of these Orders, or such longer period on which the parties may agree in writing, (the time for payment) the father shall pay to the solicitor for the mother the sum of $99,955.

12.

In the event that the father neglects or fails to make the payment required by Order 1 herein, he shall forthwith sign all documents and do all things to place the property at H Street, I Town in the State of New South Wales on the market for sale by public auction and shall disburse the proceeds of sale as follows:

(a) To pay the costs of sale, including advertising costs, auctioneers’ and agents’ fees, and the legal costs incurred on the sale;

(b) To any adjustments on sale for rates or utilities;

(c) To the solicitor for the mother $99,955 together with interest at the rate calculated in accordance with the Family Law Rules 2004 on that sum from the time for payment;

(d) To discharge any mortgage secured on the property; and

(e) As to the balance, to the father.

13.

Otherwise, each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these orders, including any realty, cash, superannuation interests, insurance policies, jewellery, furniture, furnishings, shares and motor vehicles.

14.

For the purposes of Order 13, moneys standing to the credit of the parties in any bank accounts are the property of the party in whose name such bank account is held and the party in whose name any policy of superannuation or insurance is held is declared to be the owner and the beneficiary of such policy to the exclusion of the other.

15.

Each party is solely liable for and shall indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

16.

Forthwith upon the payment by the father to the mother in accordance with Order 11 or 12 as the case may be, the mother shall do all things and sign all documents necessary to remove the caveat from the property at H Street, I Town and shall meet all associated costs of doing so.

17.

In the event that either party fails or neglects to sign any document necessary to give effect to the property settlement orders within seven days of being requested to do so in writing, any registrar of this Court at Parramatta is authorised pursuant to s 106A of the Act to sign that document in lieu of that party.

18.

Leave is granted to the parties to apply to restore the proceedings to the list within 21 days of the date of these Orders in relation to the wording, rather than the import of the orders.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The allegations made in the mother’s case include the following:(a)The father burnt a parquetry chopping board made by her brother which was broken, notwithstanding that the mother specifically told him that it was important to her and that she would like to have it repaired.I have no recollection of that evidence being traversed or challenged.I accept the mother’s evidence on this incident.(b)On unidentified occasions the father ran after his pet rabbits, cracking a horsewhip, swearing at them and screaming if they did not respond correctly when he rounded them up into their enclosures for the night. This made the mother very frightened. On at least two occasions she told him that she wished he was not so aggressive and that it frightened her. The mother said that she reported her concerns about the father’s treatment of animals to various people – her trainee midwife in December 2013; the counsellor at the I Town Domestic Violence service and community nurses in early 2014; and a social worker at N Group in April 2014. The maternal grandfather corroborated the mother’s evidence about the father’s treatment of his rabbits.The father agreed that he herded the rabbits but the effect of his evidence was that he used a dressage whip to gently encourage the rabbits out of the long grass. He agreed that he sometimes became frustrated and may have shouted or swore. Otherwise he strongly rejected the mother’s contention. He gave evidence to the effect that he tried not to frighten the rabbits because that would have made herding them into their hutch much more difficult.It is not possible to make a clear finding about these allegations.(c)Early in the parties’ relationship when the parties lived at P Street, the father poked at the mother’s eyes as if it was a fun game. On one occasion he jabbed her eyeball causing it to be painful, red and watering for hours. The maternal grandmother deposes to an incident in 2007 when the father poked the mother in the eye with a toothbrush. She said that the mother was in pain and that the father said that what he did was an accident. It is not entirely clear to me whether those allegations relate to one incident or more than one incident.I have no recollection of any of that evidence being traversed or challenged.I accept the mother’s evidence and that of the maternal grandmother.(d)In January 2009 when the mother was on a mezzanine level of her parents’ garage, she asked the father to hold the ladder while she was there. The father left the garage and was not there to help her down the ladder. She says she was stuck in the garage for six hours until she could raise her mother. It is the mother’s evidence that because of this incident she suffered Deep Vein Thrombosis and a Pulmonary Embolism. The mother says that the father did not accompany her to hospital following that incident but instead returned to I Town.It is the father’s evidence that he did no such thing and indeed that at that time he was probably in I Town. It is not possible to make a clear finding about this incident.(e)In 2010 the father showed the mother a dead rabbit because he said that she had left the dogs outside with the rabbits. My understanding of the father’s evidence is that he agrees with the bare facts but says it was a benign incident. He gave some evidence about seeking to impress on the dog or dogs that they must not harm the rabbits and about the importance of positive reinforcement (I assume for the dog or dogs). I do not recall it being put to the mother that the incident did not occur.I accept the mother’s evidence on this incident.(f)From about 2011 to about 2014 the father was frequently angry at his animals. He would hold his Labrador on the ground, place his hand over the dog’s muzzle and blow hard into his nostrils. He did that until the dog became submissive.I have no recollection of that evidence being traversed or challenged.I accept the mother’s evidence.(g)From November 2011 the father pressured the mother to use a drug called mescaline and in January 2012 she said she reluctantly took the drug. She said that the father then had sex (intercourse) with her without her consent. She said he later apologised and she forgave him.I understood the father’s case to be that the mother agreed to take any drugs she consumed when she was with him, that he did not pressure her, and that their sexual interactions were all consensual.It is not possible to make clear findings about the mother’s allegations.(h)On at least 12 occasions between 2008 and 2013 the father locked the mother in a large aviary. After three occasions the mother felt trapped and extremely uncomfortable. In about 2011 the father began leaving the mother in the aviary for increasing periods of time. On one of the occasions the father left the mother in the aviary for about half an hour, saying that he could not hear her and had forgotten that he locked the aviary door. The mother’s evidence on this issue is not entirely credible. It appears that the mother was not unhappy about the first occasions this occurred. It beggars belief that the mother gave the father the opportunity to lock her in the aviary against her will, on nine further occasions, after the first three.The father was asked about this allegation in cross-examination and the effect of his evidence was that he locked the mother in the aviary on only one occasion and as a joke. He said that unfortunately he forgot about her for a period that was between five and 30 minutes, before returning to release her.Beyond the father’s concession, it is not possible to make a clear finding about these allegations.(i)In October 2012, the mother discovered that she had become pregnant naturally after two cycles of IVF. The father pressured the mother to have sexual intercourse immediately after she told him that she was pregnant. He was rough during that sexual intercourse and the mother was in pain. She began to miscarry two days later. The mother was devastated but says that the father showed no emotion.I have no recollection of that evidence being traversed or challenged. However, it was the father’s evidence that the parties’ sexual interactions were all consensual.It is not possible to make a clear finding about the mother’s allegation.(j)On or about 8 February 2013 after an IVF embryo transfer the mother was told to rest. The mother says that the father slapped her hard on her hip and she yelled in pain. The mother says that the maternal grandmother was present and said to the father: “Why did you do that? That’s right at the level of the implant.” The mother says that the father walked off. The mother says that that pregnancy was unsuccessful. The maternal grandmother and grandfather corroborate the mother’s evidence.The father was asked about this in cross-examination and the effect of his evidence was that he lightly touched the mother on the hip; that it was a playful incident.It is not possible to make a clear finding about this incident.(k)In or about August 2013 the father threw his laptop hard on the ground. The mother said that he seemed frustrated and angry and said that it was not working properly. The mother returned home later that day with her mother to find the laptop open in the backyard with a sword stabbed through it. The mother says that there was the following conversation:Father: I wanted to show you that I would protect you if anything upset you.Mother: No, that is not what it means [Mr Rada] ... It means that YOU would hurt someone if they upset YOU.” The father was asked about this in cross-examination. He agrees that he stabbed the laptop with one of his swords (the Knights Templar sword). He said that he bought a laptop and it would not work. He took it back to the store and was given a replacement laptop. The second laptop did not work. He decided not to return this one to the store. He stabbed it with his sword and left it in the backyard. The father gave evidence: “.....I wanted to prove it was not directed at them (I assume, the mother and the maternal grandmother). How could I possibly put a sword through a computer and they come home and the sword is sticking out like a piece of art work – how could that be directed at you? It is obviously directed at the computer”.There is no dispute about the basic facts reported by the mother. (l)In late 2013, the father refused permission for the maternal grandparents to visit the mother in recovery, after her surgery. The maternal grandparents corroborate that evidence.I have no recollection of that evidence being traversed or challenged. The father said that when the mother was in hospital following the child’s birth he tried to keep visitors away for four days. He asked her family to wait until 2.00 pm to visit on the day the child was born. The maternal grandfather took issue with this and came to the hospital and said “nothing will keep me from my daughter”. There is reference to the paternal grandmother pushing past the maternal grandmother. It would be strange if the father allowed his mother to be present but not any members of the maternal family.It is probable that the father sought to control access to the mother at the hospital by members of her family.(m)Throughout the relationship the father yelled and screamed if the mother turned on taps elsewhere in the house, while he was in the shower. However, he often turned on taps while the mother was in the shower.I have no recollection of that evidence being traversed or challenged.Although not specific, I accept the mother’s evidence about this behaviour. (n)Over the course of their relationship the father deleted text messages from the mother’s mobile phone and he removed pages from her spiral bound notepad. On occasions he sent sexually suggestive emails from the mother’s computer to himself.I have no recollection of that evidence being traversed or challenged.Although not specific, I accept the mother’s evidence about this behaviour. (o)On one occasion just before separation the father pretended to kiss the mother but sucked on her ear, causing her incredible pain.I have no recollection of that evidence being traversed or challenged.I accept the mother’s evidence about this behaviour. (p)On 28 February and 14 March 2015 the father returned personal items belonging to the child and the mother to the Q Centre during supervised visits. Among the items were 23 long zip cable ties. It is the mother’s contention that this was intended as an unwelcome reference to the mother about the father’s bondage experiments with her. In an email on 19 August 2013 the father attached an image of a grey tie with the text “can u see the image?” It is the mother’s contention that this was a reference to the book “50 Shades of Grey” and sexual activities referred to in that book.The father was asked about that in cross-examination. The effect of his evidence was that the grey tie was intended to be a reference to a book “50 Shades of Grey”. He conceded that the book referred to sexual practices including bondage. He could not recall sending the mother any cable ties. Again it was his evidence that all sexual activity between the parties was consensual.Given that the parents were separated and estranged, the father’s conduct in drawing an allusion to the book is concerning. However, no findings are possible about the cable ties. (q)It is the mother’s belief that the father has attempted to harass her with symbols, words or references: (i)A Facebook message on 21 February 2015 referred to a link to a webpage associated with a toy (an elephant toy). The mother said that this was followed by a package sent to the child containing that toy. The mother says that when they were together the father owned a sex toy or sex toys of a similar name which he offered to use with the mother.This was addressed with the mother in cross-examination. The mother agreed that the children’s toy is widely available. She confirmed that it was her view that the father’s message was a link to a sex toy. She agreed that the father is an animal lover and that animals are important to him. She said that the father purchased four or five sex toys in the period from 2011 until the end of their relationship. No adverse findings are available in relation to the elephant toy and sex toy reference.(ii)In 2015 the father posted to the child, three Easter parcels containing rabbit toys. The mother said that during her relationship with the father he would arrange rabbit toys in sex poses. She said that the father made lewd references to a gnome statue and arranged that statue with a bronze statue of a naked woman on her hands and knees, to imply intercourse. This caused the mother great embarrassment. The inference drawn by the mother was that in the guise of gifts for the child, the father was seeking to send a message to the mother about their sexual relationship.In cross-examination the mother agreed that rabbit figures are common at Easter time – they are part of the Easter tradition. The mother confirmed that from her perspective, what the father intended to communicate to her by sending the child the rabbits was some form of harassment directed at her. She said “perhaps it could have been eggs, or a chicken, but he sent rabbits...”No findings adverse to the father are possible in relation to the rabbit toys. (iii)The father hit and killed a kangaroo with his car on the way to attend a supervised contact visit on 20 June 2015. On 24 June 2015 the father gave the child a book called “Big Red Kangaroo”. The inscription from the father included “We must take care of them” which the mother says was similar to the phrase he used after every time he had physically hurt her, “We must take care of you”.The effect of the mother’s evidence in cross-examination was that her connection with that phrase is associated with abuse perpetrated by the father. She agreed that her evidence is that the phrase in that book used by the father was designed to harass her. The mother said, in effect, that there might have been other reasons to explain the father giving the child that book - he may have wanted to communicate to the child about animals. No findings adverse to the father are possible in relation to this issue. (iv)On the sixth and tenth contact visits the father left in his locked car but visible to passersby, a lounge cushion and a cushion made for the mother by the maternal grandmother, which she used when she breastfed the child. She said “It was like [Mr Rada] was playing a cruel mind game with me.”I do not recall the father addressing this issue in his evidence.No findings adverse to the father are possible in relation to this issue. (r)The mother said that on many occasions she told the father that she was frightened of him. She said that when they watched a news story about Oscar Pistorius killing his girlfriend, there was reference to the girlfriend having reported that she felt frightened of Mr Pistorius. The father said to the mother “Maybe you should leave me”. I have no recollection of that evidence being traversed or challenged.No probative findings adverse to the father are possible in relation to the mother’s allegation. (s)On or about 25 March 2014 the father punched the mother in the back as she slept.I have no recollection of that evidence being traversed or challenged.I accept the mother’s evidence. (t)The mother observed the father being violent to the child, saying that: he hit the child hard and did not support his neck; he forced objects into the child’s mouth; he held the child painfully tight; exposed the child to excessive noise, including revving his motorbike excessively; slammed doors; broke glasses; yelled loudly; cracked whips in anger; roared at the top of his voice; exposed the child and the mother to scalding hot water and made stabbing and punching motions towards the child. In particular:(i)As is referred to above, when the child was about seven weeks old the mother asked the father to burp the child. The father hit the child very hard on his back, causing his head to jerk backwards and forwards. Remarkably, the mother records in her affidavit that her first reaction was to ask the father to support the child’s head and neck. In her oral evidence in cross-examination she said that she told him: “Please can you be more gentle.” The mother says that the father glared at her and started hitting the child harder and faster causing his head to repeatedly snap back and forth. The mother says that she then begged the father to stop. She was horrified and alarmed. She stepped out of the room momentarily hoping that the father would stop hitting the child if she stopped responding. He stopped and the mother grabbed the child and ran to the bedroom and locked the door. The mother says that the father’s behaviour improved after this incident and a few days later and feeling reassured that the father was getting better, the mother again asked the father to burp the child. The mother said that the father began hitting the child extremely hard in the middle of his back, causing his head to again snap back and forth. This time the mother immediately took the child from the father, ran to a bedroom and shut and locked the door. It is the mother’s opinion that the father was aware that his action of hitting the child hard was deliberately putting the child at risk of harm. The mother did not report the incident to the police. She said that she did not want to get the father into trouble, she wanted him to get help. The mother reported the father’s actions to N Group and obtained referrals from her GP for the child to see a paediatrician named Dr R, who referred the child to see an eye specialist, Dr S.The father denied the thrust of this evidence.It was put to the mother that the father never burped the child with such force as to cause his head to swing back and forth. The mother rejected that proposition. Similarly she did not agree with the proposition that the father never shook the baby. It was put to the mother that the supervision reports have not identified any incident of violence perpetrated by the father, nor any examples of bizarre or erratic behaviour by him. The mother agreed. Similarly the mother agreed that those reports have not identified any concerns about the father being under the influence of alcohol or drugs. It is not possible to find, at the required standard, that these incidents occurred as the mother deposed. Of course the allegations give rise to a risk and in this instance, it is a risk of serious harm. (ii)On at least two occasions between 27 January and 4 February 2014 the father held the child’s swaddled body abound his own body, headfirst and face down and ran through the house with his arms outstretched in front of him holding the child. The mother says that the boy’s head was not supported.I have no recollection of that evidence being traversed or challenged. However, the father made a general denial in his affidavit about inappropriate handling of the child.It is not possible to find, at the required standard, that these incidents occurred as the mother deposed. (iii)On about a dozen times during February and March 2014 the father pretended/motioned with his hands to punch or stab the boy, causing the mother great distress.I have no recollection of that evidence being traversed or challenged.It is probable that the alleged conduct occurred. (iv)Between February 2014 and 12 April 2014 the father bottle fed the baby. The mother says that on each occasion the father pushed the bottle too hard into the baby’s mouth. The mother observed the baby to try to pull away, to breathe fast and loud and on a few occasions the child gagged.I have no recollection of that evidence being traversed or challenged.It is probable that the alleged conduct occurred. (v)During February 2014 the father held a knife and fork and pretended to cut the child’s stomach as he lay naked on the change table. The mother asked him to stop and he said it was just a joke. The maternal grandmother corroborates the mother’s evidence.It was put to the mother that this incident did not occur. She did not agree with that proposition. Similarly it was put to the maternal grandmother that the father did not pretend to cut the child’s stomach with a knife and she did not agree.In his affidavit the father denied ever placing a knife to the child’s stomach. He said he may have joked to the effect that the child was “so cute you could eat him”.It is not possible to make a probative finding about this incident. (vi)The father played with taps in the house while the mother showered, causing her to suffer hot then cold water. He also did that during the mother’s showers with the child. I take it that the mother contends that the father deliberately tried to harm mother and child.I have no recollection of that evidence being traversed or challenged.It is probable that the alleged conduct occurred. (vii)On one occasion in February/March 2014 the mother heard the child give a high pitched scream. She came into the room to find the father holding the child’s sobbing and shaking body, at arm’s length with his fingertips. She says that the father displayed no emotion while he pressed his fingertips into the child’s ribcage. The father did not move and the child continued to scream. The mother stepped forward and took the child and went into another room to comfort him. On at least six other occasions the mother found the child screaming in similar circumstances. The mother deposed that on 2 April 2014 N Group nursing staff witnessed and documented a similar incident however those records were not tendered into evidence. The maternal grandmother deposed to a similar incident.The father deposed that he was never violent to the child and that he was careful and nervous about handling the child as a newborn child. It was put to the mother that the mother’s evidence about the father squeezing the child was her own interpretation (rather than the truth) of what happened, and that it did not occur. The mother did not agree to either proposition. It was put to the maternal grandmother that the father did not hold the child unduly hard around his ribs. The maternal grandmother did not agree.It is not possible to find that the alleged conduct occurred.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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