WHITBY & WHITBY

[2013] FamCA 804

FAMILY COURT OF AUSTRALIA

WHITBY & WHITBY [2013] FamCA 804

FAMILY LAW – CHILDREN – Best Interests – Parental Responsibility – Where communication has broken down – Where there are allegations of family violence – Meaningful relationship – With whom a child lives – With whom a child spends time – Imposition of supervision.

Family Law Act 1975 (Cth) ss 60C, 60CA, 60CC, 61DA, 64B, 65D, 65DAC(2)

MRR v GR (2010) 240 CLR 461
Cox & Pedrana [2013] FamCAFC 48
McCall & Clark (2009) FLC 93-405
Vigano & Desmond [2012] FamCAFC 79

APPLICANT: Mr Whitby

RESPONDENT: Ms Whitby

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: BRC 190 of 2009

DATE DELIVERED: 18 October 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 9 & 10 April 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:  Mr Wright 

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steel

SOLICITOR FOR THE RESPONDENT: Whitehead Payne

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

it is ordered by consent by way of final order

1. That the child D Whitby, born … 2005 (“the child”) live with the mother.

it is ordered by way of final order

1. The Mother have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended)) in respect of the child, save that the Mother shall, prior to making a decision about any such issue:

   (a)inform the Father in writing of the issue about which a decision needs to be made, the decision she would like to make in respect of such issue and the reasons for that proposed decision; and

   (b)allow the Father fourteen (14) days after the provision by her of the information referred to above to respond to the same in writing; and

   (c)consider the Father’s response, if any, when coming to her decision about any such issue; and

   (d)inform the Father of the final decision she has made with respect to that issue as soon as practicable thereafter.

2. The child shall spend time with the Father at all such reasonable times as may be agreed between the parties with such time to be supervised and:

   (a)unless the parties agree otherwise, occur at a Contact Centre on the Gold Coast in the State of Queensland once per fortnight to commence as soon as possible subject to availability at the Contact Centre;

   (b)the cost of the supervision shall be the responsibility of the parties equally;  and

   (c)each party shall be responsible for their own application costs for use of the Contract Centre;  and

   (d)each party shall contact the Contact Centre within seven (7) days of the making of this Order to register for attendance at an intake session as required by the Contract Centre.

3. That upon the Mother providing to the Father no less than twenty-eight (28) days’ notice in writing and on no more than one occasion per calendar year, the time that the child shall spend with the Father pursuant to this Order shall be suspended for no more than four (4) consecutive weeks.

4. That in the event that the Mother gives the Father notice in writing in accordance with clause (3) above and, subject to the availability of the Contact Centre, the child shall spend time with the Father, by way of make-up time, on each of the two (2) consecutive weekends immediately before the suspension of time and on each of the two (2) consecutive weekends after the cessation of the suspension of time.

5. That each party have responsibility for daily decisions about the day to day care, welfare and development of the child when he is in that party’s care.

6. That the Mother and Father shall:

   (a)keep the other informed at all times of their residential address and contact telephone numbers and advise the other of any change to the same within twenty-four (24) hours of such change;

   (b)notify the other at least seven (7) days prior to relocating their residence;

   (c)keep the other informed of the names, addresses and contact details of any medical or other health professionals who treat the child;

   (d)inform the other as soon as is reasonably practicable of any serious medical condition suffered by the child;  and

   (e)keep the other informed of any school, educational facility or extra- curricular activity provider attended by the child.

7. That by this Order, the Mother and Father authorise any day care, school, educational facility or extra-curricular activity provider attended by the child to provide to each parent, at that parent’s request and cost, all information about the child’s educational progress and school related activities.

8. That by this Order, the Mother and Father authorise any medical or other health professionals who treat the child to provide to each parent, at that parent’s request and cost, all such information lawfully able to be provided about the child’s attendance and treatment.

9. That the Mother provide to the Father, within twenty-eight (28) days of her receiving the same, a copy of any school report in relation to the child.

10. That neither parent denigrate the other, their partner or their family to, or in front of, or within the hearing of the child and each shall direct third parties to refrain from denigrating either party, their partner or their family to, or in front of, or within the hearing of the child and, failing the third parties’ compliance with such a direction, shall remove the child from that environment immediately.

11. Neither parent shall discuss these proceedings with the child save for in a counselling session nor involve the child in any discussions regarding any issue in dispute between the parties.

12. That the Father shall adhere to any dietary requirements for the child as advised by the Mother from time to time pursuant to medical recommendations by the child’s treating medical specialist.

13. The Mother shall keep the Father informed in writing at all times of any diagnosis and recommendations for treatment pertaining to the child’s physical, psychological and emotional health, as provided by the child’s treating medical practitioner with such notice to be provided to the Father within seven (7) days of the Mother being made aware of any diagnosis and recommendations.

14. That the Father is permitted to attend at the child’s school for parent teacher interviews as may be requested from time to time by the school but is otherwise restrained and an injunction is issued restraining the Father from otherwise attending at the school or any other venue where the child may be from time to time, unless the parties have agreed otherwise in writing.

15. That the mother has leave to provide a copy of the Reasons for Judgment to any Contact Centre at which the child attends and any counsellor upon whom the child attends.

16. That the Independent Children’s Lawyer is discharged.

17. In the event that either party seeks an order that the other pay the costs of and incidental to the proceedings:

    (a)the party seeking an order for costs file and serve brief written submissions in support of such application for costs within fourteen (14) days of the date hereof;

    (b)the party from whom costs are sought file and serve any brief written submissions in answer to any submission filed and served by the party seeking costs within a further fourteen (14) days thereafter;

    (c)the party seeking costs file and serve any brief further written submissions strictly in reply to the submission served by the party from whom costs are sought within seven (7) days of its service,

    and any such application for costs shall be determined in Chambers.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 190 of 2009

Mr Whitby

Applicant

And

Ms Whitby

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The child, D, was born in 2005 (“the child”), the youngest of three children born to the parties during their 20 year marriage. His siblings, M (now aged about 22 years) and V (now aged about 20 years) live with their father in the former matrimonial home – a residence which adjoins that occupied by the paternal grandparents. The two residences are separated only by a door.

2. During the relationship the mother was the primary carer for the older children. The father was frequently absent from the home when they were young.  He was not a “hands on” parent. Consequently, the mother discharged the majority of the family responsibilities prior to separation.

3. The child has always lived primarily with the mother. Since September 2009, his household has included Mr H, his mother’s partner, and since May 2010, his half-sister, S.

4. As at the date of the trial, the child was spending time with the father each alternate weekend from Friday afternoon until 5.00 pm Saturday and for a few hours after school one afternoon per fortnight.

5. The relationship between the mother and her two older children has broken down. Despite clear indications and recommendations from the author of three Family Reports as long ago as July 2009, little of a meaningful nature has been done by the father and the paternal grandparents to reconcile M and V with their mother. 

6. On the first morning of the hearing, the father’s legal representative told the Court that the father no longer sought that the child live primarily with him. Instead, he sought that the child spend time with him for five nights per fortnight (from Thursday after school until school the following Tuesday) and for half of the school holidays and otherwise live the mother. He also sought an order that the parents have equal shared parental responsibility for the major long term issues relating to the child.

7. The father’s legal representative told the Court that the father advanced this position because he did not maintain a case that the child was at risk in his mother’s household and did not seek to rely on the two Notices of Child Abuse or Family Violence previously filed by him in the Court.

8. Further, the father’s legal representative told the Court that the father did not press paragraph 7 of the ‘Final Orders sought by the Applicant’[1] which provided: “In the alternative, should the Court find that the child is at risk in the mother’s care, the child, [D], live with the father and spend time with the mother, supervised or unsupervised according to the orders made by the Court.”

   [1] as contained within the Case Information document filed by the father on 23 October 2012.

9. During the father’s cross-examination, however, it was almost immediately apparent that he did not, in fact, resile from his belief that the child is at risk of physical, emotional and sexual harm in the mother’s household. It subsequently became clear, during the course of her cross examination, that the paternal grandmother shares this view. Despite this, the father maintained the position outlined above which, of course, involves the child continuing to spend the majority of his time in the mother’s household.

10. In other cases, a parent’s position that a child spend the majority of time in the other parent’s care may be seen as a clear demonstration of the acceptance of, and support for, that parent’s role as the child’s primary carer. That is not the position in this case. The father’s stance is, I consider, nothing more than a cynical attempt to seek to obtain as much time with the child as he can in order to facilitate his attempts to obtain ‘proof’ of matters, discussed below, about which he is implacably convinced.

11. I have significant reservations about the veracity of any of the father’s evidence. I hold the same view in relation to the evidence given by the paternal grandmother. I reach this conclusion because of the evidence about the food diary the father was asked to keep and his explanation for entering into Consent Orders, as discussed in paragraph 162 below.

    The father’s food diary

12. During cross examination by Counsel for the mother, the father said that, contrary to the mother’s understanding, following her request in early 2012, he kept a food diary (“the diary”) in which, for a period of about six weeks, he recorded what the child ate whilst in his household. The purpose of the diary, intended to be kept by both parents, was to assist in a process of checking whether the child had food intolerances or allergies and whether his consumption of certain foods impacted negatively on his behaviour.

13. The father accepted that the mother asked him to have the child follow a specific diet and keep a food diary. He said that, consistent with her request, he kept the diary for about six weeks but did not give it to the mother because he did not believe that the child had the allergies she was suggesting. 

14. I do not accept his explanation for his failure to give the mother the diary he alleged he had been keeping. It makes no sense at all that he kept the diary but did not give it to the mother.  Why not provide it, even if only in the hope of establishing that, contrary to the mother’s view but consistent with his own, there was nothing ‘wrong’ with the child? 

15. I find that the first occasion on which the mother became aware of the existence of the diary the father alleged he had kept was during the father’s cross examination. The diary was not produced by him until the following morning of the hearing and he was then recalled to answer further questions about it.

16. The father was quite clear in saying that the diary had been created and kept in 2012 and that no entries were made in 2013. However, a perusal of the diary revealed entries dated ‘2013’. The father said he was not aware of this. He said that, save for the words “100 per cent apple popper” on the first page of the diary, all other entries had been made by the paternal grandmother.

17. The first entry in the diary is “20 April 2012”.  After this, there are a number of sets of entries which can be conveniently summarised as:

    a)those asserted to have been made on 20 April 2012, 21 April 2012 and 22 April 2012;

    b)those (on second page of the diary) bearing the dates “25 April 2013” and “26 April 2013”.;

    c)those (on the third page of the diary) bearing dates of 4 May 2012 to 6 May 2012;

    d)those (on the fifth page of the diary) bearing dates of 9 May 2012, 10 May 2012, 18 May 2012 and 19 May 2012;

    e)those (on the sixth page of the diary) which bear the words “The child still on his diet” written diagonally across the page between the entries for lunch and dinner said to have been made on 19 May 2012;

    f)those (on the seventh page of the dairy) bearing dates of 19 May 2012, 20, 23 and 24 May 2012 respectively;  and

    g)those (on the eighth page of the diary) which commence with a date of “1 June 2013” and, thereafter, appear as ‘2013’ until the last entry of  “15 July 2013”.

18. Counsel for the mother put to both the father and the paternal grandmother that the diary had been created on the first night of the trial after the father had said in cross examination that it had been kept.

19. Both the father and the paternal grandmother denied this but I do not accept their denials. I do not accept that a reasonable explanation for the entries is that the paternal grandmother mistakenly wrote ‘2013’ for two separate sets of entries entered at different times. I consider it highly unlikely that a person making contemporaneous diary entries in April 2012 and June 2012 would, on two separate occasions write ‘2013’. I am not persuaded that it is more likely than not that a person writing a date would write a date that was yet to be experienced rather than a date which had, in fact, been experienced.

20. The father’s failure to give the mother the diary and the date discrepancies referred to above lead me to conclude that it is much more likely than not that the father and paternal grandmother created the diary on the first night of the trial and, in creating entries for dates in 2012 when the child had been in the father’s care, the paternal grandmother, through inadvertence, wrote ‘2013’.

21. I therefore approach my consideration of the evidence given by the father and paternal grandmother with considerable scepticism and caution. Where such evidence conflicts with that given by the mother or her partner I prefer the evidence of the mother and her partner unless I otherwise indicate.

    What were the parties’ proposals by the end of the trial?

22. Until the morning of the second day of the trial, the matter proceeded on the basis that the competing proposals were:

    a)by the father – as outlined above; and

    b)by the mother – that the child spend time with his father each alternate weekend from after school Friday until 5.00 pm Saturday and otherwise as particularised in her Case Outline document.[2]

    [2] filed on 25 October 2012.

23. However, on the morning of the second day of hearing (after the author of the Family Reports and the father had been cross-examined), Counsel for the mother told the Court that the mother’s position had changed such that she sought an order that the child spend supervised time with the father at a Contact Centre and have limited supervised time with the paternal grandparents. She also sought an order for sole parental responsibility for the major long term issues relating to the child.

24. Neither the father nor the Independent Children’s Lawyer sought the recall of the author of the Family Reports following the mother’s changed position.

25. At the conclusion of the evidence, Counsel for the Independent Children’s Lawyer handed up a set of ‘proposed orders’ which, in summary, relevantly provided that :

    a)the mother have sole parental responsibility for all major long term issues relating to the child;

    b)the mother give the father notice of any proposal to change the child’s school, take the father’s views about this issue into account and keep the father informed of her decision about this issue;

    c)the child have telephone communication with his father once per fortnight;

    d)the child’s time with his father occur once per fortnight supervised at a Gold Coast Contact Centre (“the Contact Centre”); and

    e)the child spend time with his paternal grandparents at the Contact Centre on no more than four occasions per calendar year.

What to do about the absence of the paternal grandfather?

1. The paternal grandfather was interviewed by the author of the Family Reports and by Dr A, a psychiatrist who prepared a report relied on in the proceedings. He was not a witness in the proceedings. Counsel for the mother suggested, during his cross-examination of the paternal grandmother, that this was because the paternal grandfather’s negative view of, and attitude toward, the mother was, in essence, more strident than hers. The paternal grandmother rejected such assertion, saying that the paternal grandfather would have given evidence if he had been asked.

2. I am not persuaded in the circumstances that I should draw an inference adverse to the father’s case from the absence of the paternal grandfather as a witness. As will be apparent from what is set out below, the paternal grandfather’s negative view of and attitude toward the mother has been made plain to both the author of the Family Reports and Dr A. His adverse view of the mother has been clearly and unequivocally expressed by him to these experts. I have no difficulty in concluding from their unchallenged accounts of what he said to them that he strongly holds negative and critical views about the mother.

3. The factual matrix within which the competing proposals are to be determined arises, in part at least, from that which has occurred since the parties separated on 5 June 2008.

Factual Matrix

1. At separation, the mother left the former matrimonial home with the child, who was then about two and half years of age. They were initially accommodated in a Women’s Shelter.  The older children remained living with the father in the former matrimonial home.

2. I do not intend to canvass the basis for this decision, save to note the obvious: it separated the child from his older siblings and resulted in the father and, by virtue of the living arrangements described above, the paternal grandparents,  assuming total responsibility for the primary care of M and V, then aged about 18 and 16 years respectively. It also proved to have a no doubt unintended detrimental effect on the relationship between the two older children and the mother.

3. The father commenced proceedings in the Federal Magistrates Court (as it then was) in January 2009. He sought that the parties have equal shared parental responsibility for the child and that the child live week about with each parent. On 17 May 2009, Federal Magistrate Demack (as her Honour then was) ordered, amongst other things, that the child live with the mother and spend supervised time with the father.

4. Ms T, a social worker, interviewed the parties, children and paternal grandparents on 10 June 2009. She prepared a Family Report dated 3 July 2009 (“the first Family Report”).

5. On 30 July 2009, Federal Magistrate Demack ordered that the child live with his mother and spend time with his father, in the presence of another adult, from 11.00 am until 6.30 pm each Friday and from 9.00 am until 4.00 pm each Saturday (“the July 2009 Order”).

6. The child spent time with his father in accordance with the terms of the July 2009 Order.

7. Ms T prepared a further Family Report, dated 29 January 2010, (“the second Family Report”) following her interviews of the parties, V, the child, the paternal grandfather, Mr H and his mother on 13 January 2010. At this time the mother proposed that the child spend time with his father for an overnight period every week, increasing to alternate weekend overnight time once he started school in 2011. The father sought that the child live with each parent for equal time.

8. On 22 February 2010, Federal Magistrate Demack made a final parenting order by consent (“the Consent Order”).  This provided that the child live with the mother. It also  provided, relevantly, that the parties have equal shared parental responsibility for the major long term issues relating to the child and that, in addition to time on ‘special days’[3], he spend time with the father:

   a)until June 2010 – from either 9.00 am or after kindergarten Friday until 6.30 pm Saturday; and

   b)from June 2010 – each alternate weekend from either 9.00 am or after kindergarten Friday until 5.00 pm Sunday and on each alternate Wednesday from 9.00 am that day until 9.00 am Thursday.

   [3] Such as Father's Day, birthdays and Christmas Day.

9. The child spent time with his father in accordance with the terms of the Consent Order.

10. In 2011, the father alleged that the child “developed a frequent tendency to randomly touch other people inappropriately on the genitals” and was touching his own genitals excessively.  In September 2011, he was told by the child’s teacher that the child was becoming withdrawn, tired, emotional and physical with other children and that he touched his own genital area frequently.

11. On 27 October 2011 (about 20 months after the Consent Order was made), the father filed an Initiating Application in the Federal Magistrates Court seeking, on an interim and final basis, that the child live with him and spend supervised time with the mother. He also filed a Notice of Child Abuse or Family Violence[4]  (“the first Notice of Risk”) alleging that:

    a)the mother had previously been accused of purchasing child pornography on her credit card (a matter known to him before he agreed to the terms of the Consent Order); and

    b)the mother’s partner was ‘behaving inappropriately’ toward the child; and

    c)the mother was allowing her partner to ‘behave inappropriately’ toward the child.

    [4] Exhibit 13.

12. No further particulars identifying the asserted ‘inappropriate behaviour’ by the mother’s partner toward the child were provided by the father in this document.

13. On 1 February 2012, there was an incident, which will be discussed in more detail below, between the mother’s partner and the child (“the fingernail incident”).

14. On 3 February 2012, the Department of Child Safety (“the Department”) received a ‘Notification’ about the fingernail incident. After interviewing the child, the parties and the mother’s partner in May 2012, the Department assessed the Notification as “unsubstantiated”, determined that the child was not in need of protection and advised that no further action would be taken in relation to the fingernail incident.

15. On 6 February 2012, the father filed an Amended Initiating Application in which he sought an interim order that the child live with him and spend time with his mother. He also filed a second Notice of Child Abuse or Family Violence[5] (“the second Notice of Risk”) alleging that:

    a)[he] collected the child from school on the afternoon of 1 February 2012; and

    b)he [the child] had “a lot of bruising on his upper right arm” – an assertion not corroborated by the evidence of the doctor to whom the father took the child; and

    c)when asked what had happened, the child said that the mother’s partner had dragged him across the tiled floor at his mother’s house. He was then ‘smacked’ and thrown on his bed;  and

    d)he [the father] took the child to the medical centre to file a report.  He [the father] then took photographs.

    [5] Exhibit 13.

16. The second Notice contained the assertion that the mother’s partner “may, at any time, physically and emotionally harm the child.”

17. On 9 February 2012, Federal Magistrate Purdon-Sully ordered that Ms R, a Family Consultant, conduct an assessment. The matter was adjourned to 30 March 2012.

18. On 2 March 2012, Ms R interviewed the parties, the mother’s partner, the child, V and M and prepared a Memorandum to Court (“the Memorandum”).

19. On 30 March 2012, the matter was further adjourned to 11 April 2012 when an Independent Children’s Lawyer was appointed and the matter transferred to this Court.

20. On 24 July 2012, Ms T interviewed the parents, the child and his siblings, the paternal grandparents and the mother’s partner for the preparation of a further Family Report, dated 21 August 2012 (“the third Family Report”).  At this time, the child was spending time with his father each alternate weekend from after school Friday until 5.00 pm Sunday night and for some time on Wednesdays after school.

21. On 29 November 2012, the Principal Registrar varied the Consent Order. The child’s time with the father was reduced to each alternate weekend from after school Friday (or 3.00 pm if he was not attending school) until 5.00 pm Saturday.

Principles[6]

[6] See MRR v GR (2010) 240 CLR 461; Cox & Pedrana [2013] FamCAFC 48.

1. In these proceedings, being proceedings for a parenting order (s 64B of the Act) in relation to the child, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Family Law Act (1975) (Cth) (“the Act”), make such parenting order as I think proper: s 65D of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act. In deciding whether to make a parenting order, I must regard the child’s best interests as the paramount consideration: s 60CA  and s 65AA of the Act.

2. When making a parenting order I am bound to apply a presumption that it is the child’s best interests that his parents have equal shared parental responsibility for him (“the presumption”): s 61DA of the Act.  The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the child’s best interests for his parents to have equal shared parental responsibility for him: s 61DA(4) of the Act.

3. The presumption does not apply if the Court is satisfied that there are reasonable grounds to believe that either of the child’s parents, or AH, have engaged in abuse of him or another child or family violence: s 61DA(2) of the Act.

4. The mother said that, in 2008 when she told the father she wanted to separate, he punched her three times to the head causing her nose to bleed. The father denied this account. However, during his first interview with Ms T in June 2009, the father said that, when the mother told him in 2008 she was leaving, he slapped her across the face once and she suffered a small cut on the inside of her nostril from his finger nail. It is clear, therefore, that the parties at least agree that the mother suffered some bleeding in this incident as a result of some action by the father.

5. A report from the ‘SCAN Rep’ dated 17 April  2008  refers to an incident on 11 April 2008 and notes that the referral to SCAN was based, in part, on ‘visible physical injuries sustained by the mother as a result of repeated punches to the head…’.  The Scan Rep assessed the level of risk of any future abuse or neglect to the child as significant.

6. This evidence supports to some extent that which was given by the mother about the extent of her injuries and the manner in which they were caused. I accept her evidence in this respect and prefer it to that given by the father.

7. Whilst I have accepted the mother’s account, even on the father’s admitted actions, I am satisfied that there are reasonable grounds to believe that the father engaged in family violence. I find that a reasonable person who was punched to the head three times or slapped across the face and who suffered some bleeding during a conversation about separating would fear for or be apprehensive about her personal wellbeing or safety. There is no doubt that the father’s actions, as alleged by the mother and accepted by me or as he admitted them to be, amount to conduct toward the mother that caused her reasonably to fear for or reasonably be apprehensive about her personal safety.

8. Consequently, the presumption that it is in the child’s best interests that his parents have equal shared parental responsibility for him does not apply and “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the child] being the paramount consideration – see s 60CA; s 65AA).”[7]

   [7] Cox & Pedrana [2013] FamCAFC 48, [19].

9. I must determine that which is in the child’s best interests, in terms of both the allocation of parental responsibility between his parents and the time that he spends with his father, having regard to the considerations set out in s 60CC of the Act.

10. The Act does not define the term ‘meaningful relationship’ nor does it prescribe criteria on which the Court should rely in order to assess how the child’s parents have or should have a meaningful involvement in his life. In McCall & Clark[8] the Full Court concluded[9] that the ‘preferred interpretation’ of ‘benefit to a child of a meaningful relationship’ is the ‘prospective approach’ – that is, the Court should consider and weigh the evidence at trial and determine how, if it is in the child’s best interests, orders can be framed to ensure that he has a meaningful relationship with both of his parents.

    [8] (2009) FLC 93-405.

    [9] Ibid at [19].

11. Given that it is accepted that the child will live primarily with his mother, the Court must consider and determine whether there is a benefit to him in having a meaningful relationship with his father, such finding not being dependent simply on a lack of danger of physical or psychological harm. If I determine that such benefit exists, then I must consider whether this benefit needs to ‘give way’ to the need to protect the child from physical or psychological harm.[10] 

    [10]Vigano & Desmond [2012] FamCAFC 79, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.

12. I consider, from the evidence provided by Ms T, that the child has a close relationship with the father.  However, I also accept her evidence that the father appears to have limited insight regarding the child’s social, behavioural, emotional and developmental needs and chooses to interpret the child’s negative behaviours as a way to vent anger on the mother.[11]  In light of the findings outlined below, I express some reservations about the benefit to the child of a meaningful relationship with the father.  However, given that both the mother and the Independent Children’s Lawyer seek orders for supervised time between the child and the father, I proceed on the basis that there is benefit to the child of such a relationship.

    [11] Family Report: Affidavit of Ms T filed 24 August 2012, paragraph 272.

13. In dealing with the need to balance the maintenance of a meaningful relationship with the father and the protection of the child from harm, Counsel for the mother submitted that the benefit to the child of a meaningful relationship with his father and paternal family has to be weighed against the potential risk to him of the impact of continued exposure to their asserted significant negativity about his mother.

14. Counsel submitted that this risk is of such significance that it can only be addressed by the imposition of supervision – this would allow the child the opportunity to maintain a meaningful relationship with his father in a way that safeguards him from the potential risks to his emotional wellbeing associated with the asserted continual exposure to critical views about his mother.

15. Such submission requires significant consideration and reflection because an order for supervised time between the child and the father would significantly reduce the time the child currently spends with his father, siblings and paternal grandparents. It would also see such time occur, for the first time for the child, in a Contact Centre with all of the limitations, connotations and potential inhibitions that such a regime may have on the continuing development of a meaningful relationship between the child and the father (and the paternal grandparents and his siblings) on a long term basis.

16. In order to arrive at a conclusion about whether a regime of supervised time is in the child’s best interests it is, I consider, necessary first to assess the level of risk, if any, to which he is likely to be exposed by a continuation of unsupervised time with his father, siblings and extended paternal family so as to determine whether his best interests require the imposition of a mechanism by which such assessed risk can be ameliorated.

17. Such assessment can only logically follow upon conclusions as to whether the child is, in fact, at risk in his mother’s household – if he is, then exposure to views held by his father about this is nothing more than a reflection of reality and the father’s proposal that the child spend five nights per fortnight and half holidays[12] in his care may provide some amelioration from exposure to such risk. If he is not, objectively assessed, at risk in the mother’s household but his father, siblings and paternal grandparents continue to believe that he is and expose him to such a view, then he may be at significant risk of emotional disturbance as he is asked to juggle his own experiences of his mother’s parenting of him with a distorted and/or erroneous view of the same as expressed by the father, paternal grandparents and his siblings.

[12] as well as time on “significant” occasions.

Is the child at risk in the mother’s household?

1. Despite advancing the proposition that the child spend the majority of his time in the mother’s household, the father maintained the view that he is at risk of physical, emotional and sexual harm there.

   Is the child is at risk of being sexually abused by the mother?

2. When the father was initially cross-examined about whether he thought the child would be sexually abused in the mother’s household, he said that he did not know and could not answer the question. Later, when asked whether he was prepared to accept ‘today’ that there was no risk that the child would be sexually abused in his mother’s household, he responded by saying words to the effect of  “Ohhh – I’d say…. probably not”.

3. This response is relevant to an overall assessment of whether, in the event that I am persuaded that the child is not actually at any risk of being sexually abused in his mother’s household, it is more likely than not that the father will be able to act so as to shield him from any exposure to the idea that he is ‘probably not’ at risk of sexual abuse in his mother’s household.

4. In order to place the father’s answer in context, it is necessary to have regard to a matter which happened before the Consent Order was made.

5. In November 2008, Police attended at the former matrimonial home, where the mother was no longer living, to execute a Search Warrant which is said to have asserted that the mother may have possessed child exploitation material (“the 2008 event”).

6. In dealing with this assertion, the mother has maintained at all times that her credit card (which, presumably, had been used to purchase such material) had been stolen and that she had not been involved in purchasing child exploitation material. She was not charged in relation to this event. The Police have not taken any further action whatsoever in relation to this matter. I accept the mother’s evidence that she was not in any way involved in purchasing or possessing child exploitation material.

7. The father was aware, before he agreed to the Consent Order, that the mother had not been charged with any offence arising out of the 2008 event and that the Police were not intending to take any action against her.  He has also been aware that there is no evidence that the mother had committed any crime.

8. Despite this knowledge, the father referred to the 2008 event in the first Notice of Risk by repeating that the mother had previously been accused of purchasing child pornography on her credit card. He did not, however, say that she had not been charged nor that Police had indicated that they were not taking any action against her. The failure to disclose fully and fairly all of the information known to him about the 2008 event demonstrates the father’s willingness to overlook matters favourable to the mother. It also demonstrates a recent intentional willingness to portray her in the most negative manner available.

9. The father also raised the 2008 event with Ms R, the Family Consultant, during his interview in March 2012. I agree with Ms R’s opinion[13] that he did so in an attempt to advance his case in this Court. I also find that, despite agreeing to the Consent Order which provided that the child live primarily with the mother, he has continued quite deliberately to attempt to make as much out of the 2008 event as he can. He has taken every opportunity to reiterate and re-agitate this accusation with the likely full appreciation of the potential impact on the mother of accusations that she has been in some way involved with child pornography.

   [13] Memorandum to Court dated 2 March 2012.

10. In addition, and despite his knowledge as set out above, the father maintained before me that he would like some ‘answers’ about this event. The mother has given an ‘answer’: it simply is one which does not accord with the father’s view of the 2008 event. He accepted that the mother has always maintained that she did not know anything about the purchase of child pornography. He further accepted that, as at March 2013, he was still trying to prove that she was a liar and that she had, in fact, purchased the same.

11. The father simply does not accept the mother’s consistent and plausible explanation for the 2008 event: he maintains that she purchased child pornography and is the type of person who obtains sexual gratification from viewing the same. He accepted that, in his affidavit filed on 9 April 2013, he sought to prove that the mother is the ‘type’ of person who actively bought child pornography. He relied on this assertion as a basis for the view that the child is at risk in her care.

1. The father agreed with the proposition put by Counsel for the mother that the view that the mother was the type of person who obtains sexual gratification from viewing child pornography was ‘the lowest’ view he could hold of a person.

2. The mother was not cross-examined by the father’s legal representative about her evidence in relation to the 2008 event. As noted above, I accept the mother’s denials of any involvement in the purchase of any child pornography or child exploitation material. I accept the mother’s evidence that she did not possess child pornography. 

3. It is of significant concern that, despite being made aware that the Police did not intend to take the matter further and the mother’s consistent denials of any involvement in the 2008 event, the father has maintained the view outlined above.

4. Given the child’s attachment to his mother and the fact that she has been and will continue to be his primary care provider as a consequence of the father’s repeated consent to such care arrangements, I consider that there is a very real risk to the child’s emotional functioning should he, at some stage in the future, become aware that his father believes that his mother obtains sexual gratification from viewing child pornography.  The likelihood of this risk eventuating depends on the ability of the father and members of his household to restrain themselves from discussing the 2008 event in the child’s presence or in circumstances where it could reasonably be anticipated that he may come to learn of it.

5. That such risk might in fact eventuate is not remote given the father’s willingness to share his view of the mother with:

   a)Ms D, who worked in the office of the psychologist seen by the child : on 10 October 2011, the father told her that “his house has been raided by Police as mum has been buying child pornography” – a use of present tense some three years after the 2008 event;

   b)the child’s new teacher, a person who is the subject of statutory mandatory reporting requirements in respect of sexual abuse[14] - the father told her during his very first conversation with her that the mother was watching pornographic videos although the teacher was unable to remember, when asked, whether he said they were ‘child’ pornographic videos.

   [14] Education (General Provisions) Act 2006 (Qld) ss 364, 365, 365A, 366 and 366A.

6. That the father acted in the manner described above demonstrates a deliberate and determined willingness to ensure, in a broad sense at least, that the 2008 event remains a ‘live issue’. It is also a demonstration of the father’s inability to appreciate the potential impact on the child if such allegation was disseminated around his school environment where it so easily could have a serious, deleterious impact on him and his relationships with his peers. What are the prospects that a parent would allow their child, a classmate of the child’s, to go to his home for a sleepover if the accusation constituting the 2008 event became known to them?

7. Given the father’s recent actions in this respect, I cannot confidently exclude the possibility that, in his willingness and determination to continue to raise the 2008 event with others associated with the child, the child may come to learn of it.

8. In addition, the fact that the father has continued to reject the mother’s consistent and plausible explanation for the 2008 event does not augur well for the parties’ future parenting relationship. He is quite clearly unwilling to let this matter go and is determined to continue to raise it over and over again. He continues to believe that the mother is lying when she denies any involvement in the 2008 event. If the father disbelieves the mother’s denials about such a serious and fundamental matter, how likely is he to believe her recounting of any event or matter relevant to the child? Such behaviour casts significant doubt on the likely capacity of the parties to reach decisions jointly as they are required by law to do should an order for equal shared parental responsibility be made.

   Allegations of sexual abuse or exposure to inappropriate sexual matters

9. The father asserts that, in September 2011, when he attended at the child’s school to collect him, the child’s teacher told him that the child was becoming withdrawn, tired, emotional and physical with other children and that he touched his genital area frequently. He says that, as this behaviour does not occur in his household, it is somehow linked to, or caused by, matters to which the child is exposed in the mother’s household or by the mother’s parenting. Perhaps tritely, I record again that, despite this belief, the father’s own case advances that the child remain primarily in the mother’s care.

10. It is instructive to have regard to the evidence about the child’s behaviours since about 2009 in assessing the likelihood that the mother’s parenting or household is responsible for them.

    The child’s behaviours, possible food intolerances and allergies

11. The father told Ms T, in June 2009, that the mother had told him that the child was lactose intolerant. By email dated 11 December 2009, the mother told the father that Dr E, the child’s treating general practitioner, considered that the child should not be ‘over indulged’ in dairy and that lactose-free products would be better for him. The father’s response that “as for [the child’s] lactose intolerance I don’t feel there is a big problem with this, he doesn’t show any signs of intolerance” provides an early insight into the lack of co-operation which has since attended the investigations into the child’s possible intolerances and allergies and into whether his consumption of particular foods negatively influences his behaviours.

12. Demonstrative of the significant differences between the parents is the father’s view that the mother’s parenting or household is in some way responsible for the child’s behaviours and the mother’s view that the child’s excitable and ‘feral’ behaviour after time with the father is contributed to by the manner in which the father fails to manage his dietary needs. It is clear that there have been a number of investigations into possible causes for the child’s behaviour.

13. The child saw Ms F, a psychologist in April 2010 following the mother’s reports that he was experiencing increasing behavioural problems, anger, anxiety and an inability to calm down after episodes of yelling and hitting. In early September 2011, the father told the mother about the matters outlined in paragraph 86, raised concerns with her that the child should see someone about his deteriorating behaviour and asked her to make an appointment with Ms F. The mother responded by advising the father that the child’s behaviour was “excellent except on transition from your house”.

14. On 10 October 2011, the father contacted Ms F’s office to ask that she call him before the child’s appointment the next day. In addition to the matter referred to in paragraph 82 above, the father told Ms D that the child was having problems but the ‘real’ problem is the mother and that he (the child) was coming out with some ‘unusual stuff’ during his time with him.

15. Ms F saw the child on three or four occasions. The father took the child to one of these appointments. After an initial session with the child and the mother, numerous telephone calls with his father and consultation with his school, Ms F concluded that there appeared to be no significant behaviour issues with the child. She suggested, however, that the parties seek mediation to deal with the ‘numerous issues’ each has about the other and their respective parenting.

16. Despite the father’s evidence about what he was told in September 2011 by the teacher, correspondence, dated 8 December 2011,  from the school records that classroom teachers were unaware that the child was touching people inappropriately. Such correspondence did, however, note that, during the year, the child had displayed a tendency to ‘fondle’ himself and make robotic movements with his hands in his genital area. Relevantly, teachers noted a correlation between home stress and these events. When these behaviours were present, the child withdrew socially in the classroom and displayed a tendency to hurt other children physically.

17. I accept the mother’s evidence that, during early 2012, the child’s behaviours began to deteriorate after he returned from spending time with his father. She made arrangements for him to be seen by a child and adult psychiatrist, Dr Y.

18. Not long after this, an entry dated 17 April 2012 in the … Medical Clinic records[15] notes that:  ‘Because of the problems that the child has had with behavioural issues, it is worth trialling him off gluten as they often co-exist. In susceptible people, removing gluten can improve attention span and behaviour…..it is worth a trial.” 

    [15] Forming part of Exhibit 17.

19. The mother informed the father of this recommendation but he did not accept it, primarily, I find because the information came from the mother. Despite this, the mother embarked upon a process of implementing a gluten free regime to see whether the absence of the same had any positive impact on the child’s behaviour.

20. By email dated 12 April 2012, the mother told the father that the child had an appointment with Dr G, consultant allergist, the next day. Dr G, saw the child on 13 April 2012.  He noted that the child was ‘never still’ during the appointment but allowed him to do skin testing on his arm. I am well satisfied that, by virtue of significant clinical experience over many years, study, teaching and the provision of his services to students and clinics, Dr G possesses significant experience in diagnosing and managing allergies and their symptoms.

21. I accept his evidence in so far as it is deals with matters within his expertise as a consultant allergist and not otherwise. I accept his professional opinion that the child is milk intolerant and should be gluten and dairy free as they are, according to him, both well-known triggers for behavioural problems.

22. By email dated 15 April 2012, the mother forwarded, to the father, the information provided to her by Dr G. By email dated 16 April 2012, the father asked if the child had undergone tests and whether results might be expected. He also asked for a copy of the test results. By email dated 17 April 2012, the  mother told the father that the child had undergone tests for dust mites and air type allergies and that the results of these were negative. She further said that the information she had previously sent ‘explained the child’s intolerance’. She advised that a health plan had, that morning, been formulated for the child and she would provide the same by mail.

23. By email dated 19 April 2012 the mother told the father that she had posted to him a copy of the child’s health plan, together with information from her doctor about lactose intolerance. She advised that this information explained why both the general practitioner and Dr G believed that the child had lactose intolerance. She asked that the father adhere to a lactose and gluten free diet for the child on the weekends the child spent with him.

24. By email dated 30 April 2012, the mother provided the father with a business card for the dietician to whom she had taken the child that morning. She invited the father to call the dietician. She also advised that parents needed to complete a “diary for the child listing all foods he eats each day” – this is the food diary discussed earlier.

25. Despite all this, the father did not contact the dietician and made no effort to contact Dr G. He explained his failure to speak with Dr G with words to the effect of “what’s the point?” Such response provides an instructive insight into the dismissive way in which he is likely to deal with medical issues about the child in the future.

26. In May 2012, the mother told Dr E, the child’s GP, that the child’s behaviour was variable but settled dramatically with good diet control which was lost when the child was staying with the father.

27. By email dated 17 May 2012, the mother told the father that she had provided him with a DVD called ‘Fed Up’ that belonged to the dietician and which she thought was quite informative for his viewing. She also advised that the change in diet was making a difference to the child’s behaviour. She asked that the father contact the dietician for any information he might want. She reiterated that it was important for the child to be dairy free and preservative free.

28. The father accepted in cross-examination that the attitude within his household to information provided by mother about diet and behaviour was that she was a liar. The consequence is that when the child is with the father, he eats what the father eats.  The father did not follow the mother’s requests about the child’s diet.  He did not accept what she said about the child’s behaviour being different after he had eaten certain foods.

29. Whilst the father said that he did not just dismiss the issue raised by the mother and spoke with a general practitioner - no longer in Australia - about it, he (the father) said that he did not think that an allergist – such as Dr G - was the person to go to. He preferred the general practitioner’s opinion that there was not “anything in” the possibility that the child might suffer allergies.  The father’s refusal to even speak to Dr G and his refusal to accept the expert opinion of Dr G and the child’s general practitioner mirrors his refusal to accept the mother’s explanation for the 2008 event. When faced with reasonable and plausible explanation for the child’s behaviours, the father preferred to ignore this and maintain his view that the child’s behaviours are caused by something adverse to which he is exposed in the mother’s care.

30. The child saw Dr Y on 7 June 2012. As the mother had told the father about Dr Y’s engagement, he was involved in the child’s assessment. Dr Y’s report (dated 7 June 2012) notes that:

    a)on initial examination, the child presented without displaying any clear abnormality apart from some suggestion of minor inattention;

    b)the child’s history was ‘quite suspicious’ of mild Autistic Spectrum Disorder features;

    c)there was no doubt that there is an emotional and behavioural cost to the child of being in the centre of separated parents who have ongoing acrimony which would add to his anxiety which may then be seen in excitable, self-soothing or challenging behaviours. 

31. Dr Y noted that “the obvious potential for upheaval between feuding parents will need continued attention and good will on the part of the parents to work as co-operatively as possible”.  I consider that the father has no good will toward the mother. Further, as his reaction to the issue of the child’s possible intolerances demonstrates, he has no intention of working co-operatively with the mother at all. 

32. At the same time the mother was attempting to find ways to assist the child in managing his behaviours at school, it is clear from  Ms N, who taught the child during 2012, that the child was having considerable difficulty just sitting still and listening and would often play with his hands, waving them around and making strange noises. Sometimes in class, the child touched his genitals, this was not a behaviour she noticed him doing every day.

33. Ms N recounts that, at time the child seemed to have difficulties in keeping his hands to himself and not touching other students, jumping on other children, showing his penis to other children and putting his hand on other children’s genitals through their shorts, pushing other children during line ups and repeatedly talking in class.

34. Ms N did not notice any changes in the child’s behaviour depending on whether he came from his mother or father’s care.

35. As a result of these behaviours, Ms N recommended that the child be assessed for ‘special needs’. Whilst a guidance officer attended on occasion to observe the child in class, she did not receive a report suggesting the implementation of any particular strategies for him at school.

36. Ms L, the child’s 2013 teacher, also observed some unusual behaviours by the child: he tends to fiddle with things and play with objects, particularly when the class is asked to sit and concentrate on listening to reading. If his hands are not occupied, she has seen him put his hands into his shorts and play with himself. She has also seen him interfere and distract other children by waving his hands around and talking to them while she is teaching.  He is somewhat distracting of the other students unless he is occupied.

37. As was the case with Ms N, Ms L has not observed any significant differences in the child’s behaviour at school whether he spends time with his mother or father.

38. Mr C, Principal of the child’s school said that, as far as he is aware, the child’s behavioural issues are by no means extreme and have been dealt with by the school.

39. I am not persuaded that the presence of the described behaviours supports a conclusion that the child has been sexually abused by his mother or her partner or exposed to inappropriate adult behaviour or adult material whilst in their care. Such behaviours are equally consistent with any number of matters including those set out in paragraph 107, the toll of moving between two households, the medical matters outlined above, the changes in diet as the child moves between his parents’ households, the knowledge that his father doesn’t like his mother and other matters recorded in the Family Reports.

40. I am not persuaded that the child is at risk of sexual abuse in the care of his mother or her partner or that he has been exposed to any inappropriate adult material or behaviour whilst in their care.

Allegations of physical abuse of the child by his mother or her partner Mr       H

1. The father said, during cross-examination, that the mother would be aggressive to the child and could physically discipline him to excess. He said that he had seen her slap him on the back of his head when he was two years of age - well before the parties separated at the mother’s instigation. The father also said, during cross examination, that the mother had slapped the child on more than one occasion in his presence. He explained that he had not raised this assertion in his affidavit because, despite it being ‘important’, the more ‘concerning’ issue was the child’s behaviour at school, why he behaved like that and whether such behaviour came from his mother’s home. I do not accept his evidence and note that, even on his case, such asserted events were known to him before he entered into the Consent Order.

2. Despite failing to raise concerns about the mother physically abusing the child in the first Notice of Risk, the father said that he considered that the mother was someone who would let her own child be injured by her partner. I do not accept this and I do not accept that the mother would act in any way to put the child at risk. The fact that the father believes this, however, is another matter which casts further doubt on the likely capacity of the parties to make decisions about the child jointly and, given the father’s willingness to express his negative views of the mother, is another “negative” about the mother to which the child may be exposed.

3. The father alleges that the mother’s partner has been physically violent to the child. During cross-examination, he said that he still thought that the mother’s partner may, at any time, physically or emotionally abuse the child and that he is at risk physically and emotionally whenever he is with Mr H. Repetitively, I note my view that such assertions do not fit easily with the father’s trial position that the child remain living primarily in his mother’s care.

4. The father also asserted, in his Case Information document filed on 23 October 2012, that, in October 2011, the child was dragged down the hallway by the mother’s partner leaving fingernail marks in his upper right arm. Mr H said that he had held the child tightly and scratched him accidentally.  I accept his evidence in this respect.

1. On 24 July 2012, the father told Ms T that when he put the child in the bath he was ‘covered in bruises’ and, when asked what happened, the child ‘clams up’. The father said that, when he took the child to the doctor: “nothing’s happened.” It is clear from the father’s evidence that, rather than accepting the accuracy of the child’s statements to the doctor to the effect that “nothing’s happened”, the father interprets this as the child acting to protect his mother.

2. In essence, the child’s failure to tell the doctor something which corroborates the father’s belief that he has been injured at his mother’s home is seen by the father as a further indicator of the child being at risk rather than as an affirmation that, in fact, nothing adverse to the child has happened. This is a further demonstration of the father’s pervasive belief that the child is at risk in his mother’s care and that it is only a matter of time until he (the father) is able to obtain sufficient “proof” to substantiate this belief.

3. The father told Ms T that he was concerned about the child getting hurt by the mother’s partner but also said, in referring to the child, ‘he comes to my place in good nick, he won’t talk about what’s going on at home’. Not only does this evidence by the father of his observations of the child provide support for the mother’s evidence that the child is well cared for in her household, it also, and more importantly, demonstrates that the father’s belief that something harmful must be happening to the child in the mother’s household is so pervasive that it overrides his own observations.

   The fingernail incident

4. On 1 February 2012, the mother left the house early to go for a walk. When she returned about 30 minutes later, both her partner and the child were upset. Mr H told her that the child (who had wanted to accompany her on the walk) had behaved badly in that he had jumped on the couch, broken a spring, been angry and disobedient and had sworn at him. The mother’s partner told her that after this, he picked the child up and put him in his room and, during this process, accidentally scratched the child with his fingernail.

5. The mother says that, when she went to see the child, he was upset and said that Mr H had thrown him on the bed and scratched him with his fingernail.

6. The mother had an existing appointment that morning with Dr E, the family General Practitioner. She took the child with her to see him and advised the father that she had done so by email on Thursday 2 February 2012. Dr E examined the child. He did not report the matter to the Department and later noted, in a referral to Dr Y, that, having seen the child after the fingernail incident, he had no concerns at all. I accept this evidence.

7. The father collected the child from school that afternoon. He told Ms T that, when he collected him, the child told him that Mr H had hurt him. The father showed Ms T two photographs of the child’s right arm which showed two fingernail marks.

8. The father took the child to see a medical practitioner[16] who did not refer the matter to the Department.  It is clear, therefore, that neither of the two medical practitioners who had the opportunity to observe the child on the day of the fingernail incident considered that the consequences to him of such event warranted either of them taking any further action.

   [16] whose notes are contained within Exhibit 17 at p.2 of the P Medical Centre.

9. The father’s reaction to the fingernail incident suggests his likely behaviour in the future should a similar event occur:  He telephoned the mother on 2 February 2012 and told her he intended collect the child from school and retain him until 9 February 2012, when the matter was listed before the Federal Magistrates Court. As a result, the mother left work early and collected the child from school to prevent the father from putting his plan into effect.

   What investigations occurred in respect of the fingernail incident?

10. The father contacted the Department and the Child Protection Investigation Unit. The child was interviewed at school regarding the fingernail incident on 22 May 2012. The mother was interviewed by officers from the Department on 22 May 2012. The mother’s partner was interviewed by a Departmental Officer on 23 May 2012. The father was interviewed on 24 May 2012.  

11. Documents produced by the Department[17] reveal the following information provided by ‘Notifier 1’:

    a)when collected by his father from school on 1 February 2012 was observed to have ‘claw marks’ on the inside of his arm; and

    b)the child said that the mother’s partner had ‘grabbed him by the arm and threw him back in bed’.

    [17] Forming part of Exhibit 17.

12. The following information was provided by ‘Notifier 2’ :

    a)the child was reported to have said, on 1 February 2012, that ‘[Mr H] hurt me’ and was observed to have ‘two large marks under his right arm where fingernails had cut into his flesh between the elbow and the shoulder’; and

    b)the child reported that he got out of bed and wanted to go walking with his mother and Mr H told him to get back to bed and dragged him by the arm across the tiles and carpet and threw him back into his bed and then slapped him across the stomach; and

    c)the child was observed to have had a ‘puncture mark’ on his stomach that was covered by a plaster and had reported that his stomach started bleeding in the bath but could not provide any information about how that injury occurred; and

    d)the father took the child to the P Medical Centre where the doctor examined his injuries, save for the puncture marks on his stomach, and when he asked how the child how the injuries occurred, he confirmed to the doctor that the mother’s partner had caused the injuries;

    e)the child was returned to school on 2 February 2012 to his mother’s care and was reported as verbalising that he did not want to return to the mother’s partner.

13. In contrast to the descriptions provided by the notifiers to the Department, when officers spoke with the general practitioner to whom the father had taken the child, the doctor said that the scratch marks on the child’s arms were superficial and did not warrant any treatment and were consistent with trail marks from finger nails.

14. On 31 May 2012, the Department advised the mother that the outcome of the assessment of the Notification was ‘unsubstantiated’, that the child was assessed as ‘not in need of protection’ and that it would take no further action.

15. In addition, the Department concluded, with respect to concerns received in the period from April 2008 until June 2011, that none had been substantiated or warranted any ongoing Departmental involvement.

    What did the child say about the fingernail incident?

16. When the child was interviewed by Departmental Officers on 22 May 2012 he did not remember the mother’s partner scratching him. He told the Officers that Mr H was cranky at him, picked him up, dragged him across the carpet and threw him on the bed. He said that Mr H got cranky because of something he (the child) had done but he could not remember what it was. The child also said that he did not get scratched by Mr H. He said, when talking about his father, that he does not like him yelling at home and that he (his father) sometimes gets cranky because he (the child) does ‘bad’ stuff.

    What did the mother and her partner say about the fingernail incident?

17. When the mother and her partner were interviewed by Departmental Officers in May 2012, both denied that the child had a ‘puncture mark’ on his stomach. Both gave accounts consistent with their evidence in these proceedings. I accept their evidence that the child did not have a ‘puncture mark’ to his stomach. I conclude that it is highly improbable that, if such mark existed, the father would have failed to ensure that the medical practitioner, to whom he took the child for the very purpose of observing asserted injuries, was made aware of it.

18. The mother’s partner told Ms T that when he told the child he could not go for a walk with his mother he started yelling and screaming. He said that he told the child to go to his room but he refused. He told Ms T that when he picked the child up to take him to his room, he caught him with his fingernails. He said that, having popped the child on the bed to talk to him and told him to calm down, he went to have a shower and, whilst there, the child knocked on the door and said ‘look what you did’ and showed him his arm.

    What has the father said about the fingernail incident and generally?

19. When the father was interviewed by Departmental Officers on 24 May 2012 he reported that things had been going badly with the child and that he was ‘going backwards’. He reported that the teacher one day raised concerns with him that the child was doing ‘strange things’ and getting aggressive with classmates. He reported that the child had said he had seen Mr H and his mother naked together. He reported that the child had previously ‘showed up with bruises before’ but would not talk to him about it. He reported that the child was going backwards at school, groped other children at school and had personal space issues. He said that the child told him that his mother’s partner smacks him and his mother locks him in his room. He also told the Departmental Offices that the mother “tells me nothing about the child” and that he “has been taping all his conversations” with the mother.  The assertion that the mother “tells him nothing” about the child is clearly contradicted by the clear evidence of the mother’s communication with the father about the investigations into his possible allergies and intolerances.

    Conclusions about the fingernail incident

20. I accept the evidence given by the mother’s partner and the mother about the fingernail incident. I am satisfied that the event occurred in the manner Mr H describes. Given that by May 2012 the child:

    a)was unable to remember whether he had in fact been scratched by the mother’s partner; and

    b)made a positive assertion that he had not been scratched by the mother’s partner,

    I am satisfied that the fingernail incident has not resulted in the child suffering any lasting adverse consequences.

21. I am satisfied the child is not at risk of being physically harmed by the mother’s partner.

22. Ms R said, in the Memorandum to Court dated 2 March 2012, which arose out of her interview that day – about one month after the fingernail incident-  that the explanation given to her about the fingernail incident by both the child and Mr H was such that there was no need to report the same to the Department. I agree with her assessment. It says more about the father and his attitude to the mother and her household that such an incident was the subject of a Notification than it does about whether the child is at risk of physical harm in the mother’s care.

23. The father’s reaction to this event meant that the child, who was assessed by the medical practitioner to whom the father took him as having superficial scratch marks on his arms, was interviewed by Departmental Officers. Given his lack of recall about the details of the incident it is more likely than not that this may well have caused confusion for the child at the very least.

24. I am well satisfied, having regard to the father’s evidence, that he would not hesitate in the future to act in the same manner should the child suffer any further ‘superficial’ injuries whilst in his mother’s care. This has the very real prospect that the child may, in the future, again be exposed to unnecessary Departmental investigation at the father’s instigation. Such prospect is heightened given the father’s unwavering belief that the child is at risk of being harmed whilst in the care of his mother or her partner.

    The child’s eye incident

25. Notifier 2 also told the Department about an incident where the child had cuts on his face – it was reported that his mother had slapped him across the face and her rings caught his face. However, the child later said that he was scratched in the pool.

26. Ms L, the child’s teacher, said that in about early March 2013, the child presented to class with the mother with what appeared to be a bruise under his right eye. Both the child and the mother were upset. The mother told her that she had accidentally hit him under the eye with her ring during the car trip to school after swimming - that he had ‘played up’ and she had swung around to tell him to stop and, during this, her hand accidentally connected underneath his eye, scratching him and causing a bruise.

27. Ms L said that, after ice was provided, the child seemed settled and did not complain of any pain or discomfort during the entire day he remained at school.

28. I accept the mother’s evidence about the incident in the car. I accept that it was an accident and that she moved her arm in reflex and without any intention to strike the child or cause him harm. I accept that she was upset after the incident. I am satisfied that the child is not at risk of being physically harmed by his mother.

29. That this matter occupied time during the trial is a further demonstration of the father’s inability to accept the mother’s reasonable explanation for an event. Given the father’s approach to this incident and others already discussed, it is more likely than not that, in the future, he is unlikely to accept any account provided by the mother which does not accord with his fundamental belief that the child is at risk of injury whilst in her care.

30. Given his past actions, I consider it more likely than not that the father will continue to agitate the investigation of such matters in such a way that the child may continue to be subjected to Departmental interview, attendances upon medical practitioners and photographing.

    Allegations of emotional abuse of the child

31. When cross-examined, the father said that he was confident that the child was being emotionally abused in the mother’s household on regular basis - ‘it’ was happening in some way every day. He said he had formed this view because the child told him of something that was ‘emotionally abusive’ on every visit and this had not stopped over the course of these proceedings.

32. The father said that he thought the child was scared of the mother’s partner and that he has told him he is fearful. When challenged that this assertion was not in his affidavit, the father responded by saying that he (the child) has said that he does not like a ‘few things’ that Mr H does and that he [the father] thinks the child is fearful of ‘the screaming, the fighting’.

33. I consider this a further demonstration of the father’s willingness to interpret every piece of information the child tells him about the mother’s household in a negative light: it is seen through dark and not rose coloured glasses. I also consider it a clear demonstration of the father’s willingness to extrapolate: a comment by the child that he does not like a “few things” that another member of his household does founds the conclusion that the child is ‘fearful’ of that person.

34. I accept Ms R’s evidence, that, as at March 2012, there did not appear to be any persisting concerns relating to the child’s safety whilst in the care of his mother or her partner. I agree with her opinion. Further, there is nothing in the evidence in relation to events which have occurred after March 2012 to cause me any concern about the care the child receives whilst in the mother’s household.

35. I have no hesitation in concluding that the child is not at risk of sexual, psychological or physical harm whilst in the care of his mother or Mr H.

36. I turn now to assess whether there is a risk of an unacceptable nature to the child and his functioning should he continue to spend unsupervised time with the father and paternal grandparents.

37. As part of the determination as to whether it is in the child’s best interests that he spend five nights per fortnight and half of the school holidays in the father’s care, it is also necessary to consider whether such a regime would expose him to risk of harm.

Is the child at risk of harm in his father’s unsupervised care?

1. Whilst the mother obtained a Domestic Violence Order on the basis of her allegations of being assaulted by both the father[18] and the paternal grandmother (both of whom denied the assertions made by the mother), neither the mother nor the Independent Children’s Lawyer relied upon these events as a basis for the asserted need to protect the child by imposing supervision on the time he spends with his father.

   [18]A document obtained from the Queensland Police Service pursuant to subpoena informs that the ‘Scan Rep’ based the referral made, in part, on ‘visible physical injuries sustained by the mother as a result of repeated punches to the head…’.

2. The father had previously received assistance from a psychiatrist for some years. This issue was not relied on by the mother or the Independent Children’s Lawyer as a basis for the submitted need to supervise the child’s time with the father. It is also clear that the two psychiatrists who have assessed the parties during these proceedings concluded that the father did not have any mental health issues which impacted negatively on his functioning as a parent.

3. When cross-examined, the father said that at the time he entered into the Consent Order he thought the child was at risk in the mother’s care. Despite having the same legal representation when the Consent Order was made and at the trial before me, when the father was challenged to explain the obvious incongruousness of this position, he initially sought to convey that he agreed to the Consent Order because he had ‘dud’ legal advice. He ultimately conceded, in essence, that such explanation did not make sense or ring true. I agree. I consider that the father’s approach to this issue provides a telling insight into the manner in which he is prepared to attempt to divert responsibility for decisions he has made to others if he considers it convenient to his end. It is also a further example of his lack of veracity.

4. Later in his cross-examination, the father said that he accepted that there was no risk to the child in February 2010. I am sceptical about this evidence. I consider it more likely than not that the father maintained the view that there was and is some risk to the child whilst in the mother’s care but considered, at that time, that he did not possess sufficient evidence to establish the same.

5. I consider that, in entering into the Consent Order, the father adopted a position of accepting that time with the child which could be agreed between the parties in the hope that the ‘evidence’ or ‘proof’ necessary to establish the beliefs he holds about the mother would be forthcoming during the time the child spent with him. I consider that much of the same reasoning underpins his decision to abandon, on the morning of trial, his initial position of seeking primary residence of the child.

6. The father reiterated, in attempting to reconcile his acceptance that the child would continue to live primarily with his mother with his continued assertions about the risks such arrangement posed to the child, that he was hoping he would get orders for more time with the child so that he could ‘keep an eye’ on him. Such response reinforces the conclusions outlined above and raises the very real spectre that, if the child’s time with the father remains unsupervised he will use it to attempt to obtain ‘proof’ that the child is at risk and, in so doing, expose the child to unnecessary and harmful interventions.

7. I understood the essence of the submission made on behalf of the mother and Independent Children’s Lawyer to be that the child was at an ongoing risk of emotional abuse if he continued to spend unsupervised time with the father because:

   a)whilst the father has on now two occasions agreed to orders which result in the child living primarily with the mother, he continues, unwaveringly, to believe that the child is at risk of the harms discussed above even where the objective evidence is contrary to this position;

   b)given the strength with which such belief is held and that it is supported by the paternal grandparents, the father is highly likely to continue to seek out ‘proof’ of such alleged harms to substantiate his belief, thus exposing the child to the risk of involvement in investigative and assessment procedures;

   c)the father is unlikely to cease his pursuit of ‘proof’ of his belief that the child is at risk of abuse in the mother’s household and is likely to interpret comments made, and behaviours exhibited, by the child in a manner that is wholly critical of the mother’s parenting;

   d)such is the strength of the father’s conviction it is likely, as the child grows older, that he will become increasingly aware of these views with a consequent negative impact on his emotional functioning;

   e)so strong is the antipathy of the father, the paternal grandparents, V and, perhaps, M and so pervasive is their vitriol that they will be unlikely to be able to restrain themselves from making derogatory comments about the mother to the child or in his presence with the risk that he may be significantly emotionally harmed.

1. An order in the terms sought by the father would see the child spend significantly more time with him and members of his household. It would result in the child spending less time with his mother, Mr H and his half-sister S who he told Dr A in September/October 2012 that he likes. It would mean that the child is separated from the mother for five consecutive nights, a significant increase from the two consecutive nights he has previously spent away from her. It would expose the child to the father’s parenting style and its limitations and risks as outlined above and be likely to expose him to the highly critical views of the mother held by the father, the paternal grandparents and his siblings with the consequences already discussed.

2. The orders proposed by the Independent Children’s Lawyer and supported by the mother would result in the child’s time with the father being reduced to two supervised hours per fortnight in a Contact Centre. This is a significant reduction in the time the child will be able to spend with the father, his siblings, M and V and his paternal grandparents. It will likely have a significant impact on the ongoing development of a meaningful relationship between the child and the father. It has the potential risk that the child will blame either or both the mother and Mr H for the fact that he will spend less time with the father and members of that household – this may cause strain within the child’s relationship with the mother and her partner.

3. Given that the child told Ms T in July 2012 that he wanted to see more of his father and that he has a close relationship with both of his parents, I consider that I am entitled to conclude that an increase in time with the father may well be well received by him and a reduction in the time he is able to spend with the father may well be negatively received by him.

4. On the other hand, I consider, given the negative attitudes by his father and members of his household toward the mother as discussed in detail above, that the imposition of supervision would protect the child from exposure to such comments. It would enable him to spend time with the father without the burden of the negativity which has not abated despite the passage of time since separation in 2008. It would protect him from the risk of exposure to any attempts by the father to illicit details about the mother’s household in an attempt to obtain ‘proof’ to substantiate the firmly held view that he is at risk in his mother’s care.  It would protect him from the destabilising impact of exposure to negative and critical things about his mother whilst experiencing good parenting from her.

The practical difficulty and expense of the child spending time with his father

1. It takes between about 15 and 45 minutes, depending on the traffic, to drive between the parties’ residences.  Consequently, there is no practical difficulty or expense which would substantially affect the child’s right to maintain personal relations and direct contact with both of his parents on a regular basis, irrespective of the orders made.

2. Further the father’s legal representative did not raise any particular practical difficulties connected with the child spending time with the father at a Contact Centre. 

3. Given the father is supported by receipt of a Disability Pension, the potential that the father may struggle to meet the costs of supervised time at a Contact Centre must be weighed against the risk to the child of exposure to continued, unrestrained negativity about the mother.

What is the capacity of the child’s parents to provide for his needs?

1. There are no psychiatric issues which affect either party’s capacity to meet the child’s needs.[21]

   [21] See the evidence of Ds MG and A.

2. I consider that the father’s support for an order which sees the child spending the majority of his time with the mother, is ‘provisional’ – he accepts the reality of not possessing sufficient ‘proof’ to succeed on a case that the child live primarily with him but does not abandon his proposition that the child remains at risk whilst in the mother’s care.  I consider his real ability to support the child’s relationship with the mother is, in a similar way ‘provisional’. His views about risk to the child can only mean that there is no ‘real’ or genuine support for the child’s relationship with the mother.  I consider it more likely than not that he undermines the child’s relationship with the mother by exposing him to comments and views to the effect that he is at risk whilst in her care.

3. Whilst Ms T noted in the first family Report that both parents were willing to facilitate the child’s ongoing contact with the other parent and extended family members, events since the preparation of this report cause me to conclude to the contrary.

4. I accept that the mother is better able and more prepared to support the child’s relationship with his father than the other way around. So much is amply demonstrated by the child’s own comments to Ms T in July 2012.

5. Further, whilst the mother told Ms T, in January 2010, that she thought that the father was ‘trying’ to assist V to reconcile her relationship with her, I am not necessarily persuaded, given his persistence in voicing criticisms of the mother, that this was the case. In any event, even if he was, his efforts have been spectacularly unsuccessful.

6. I accept that the mother is a competent, caring, loving, intelligent and safe mother. It is not disputed that the father loves the child.

7. I accept that the mother and her partner are child focused, intelligent, articulate people who understand the child’s needs and the impact the current situation is having on him.

8. It is clear that the mother sought assistance in relation to the child’s behaviour and to determine whether this could be improved by variation in diet. Further, I accept that she sought and accepted advice from her long standing general practitioner, Dr E, and from the Consultant Allergist, Dr G, to whom she was referred.

9. She was advised that the child may not be gluten intolerant but that a process of elimination should be undertaken in light of his inability to sit still. I accept her evidence that she passed information she had obtained about this to the father and attempted to enlist his assistance and co-operation to ensure consistency between households in terms of the child’s diet so that the dietician and Dr G could effectively determine whether, in fact, the child is gluten intolerant.  Her efforts were ignored by the father who considered the information she conveyed about such issues to be lies.

10. I accept that the father appears to struggle to fully understand the child’s emotional, social and developmental needs and has some difficulties comprehending some of his behaviours. I find that, consistent with the opinion expressed by Ms T, the father interprets such behaviours as more of, “negative” against the mother and her parenting capacity. I consider that the father has failed to appreciate, on any level, that it is most likely that the high conflict between the parents is having a significant emotional and behavioural cost for the child. The consequence of the father’s lack of appreciation of the significant impact that exposure to such conflict is having upon the child means that it is unlikely that he will do anything to change his approach in the future. Additional support for this conclusion is to be found in his willingness to attempt to cast blame for decisions he has made on others – as noted above – rather than reflect upon them. 

11. When asked by Ms T, on 24 July 2012, to consider whether it must be hard for the child to go between his parents’ households when there is such hostility toward his mother, the father said “Yes, I believe so”. Despite this, it is clear that the father maintains his hostility toward the mother. I accept Ms T’s conclusions, as set out in the third Family Report, that the father appeared to have little insight into the child’s difficult situation and how this may be impacting on his behaviours.

12. Ms T said, in the third Family Report, that it seems extremely “sad” that the father has not appropriately challenged either M or V’s views of their mother. Not only is it ‘sad’, it a clear demonstration of the father’s incapacity or unwillingness to provide these children with a balanced view of their parents’ separation or to challenge them about their perceptions of it now that time has passed.

13. The father maintained during cross-examination, that neither he, his parents nor the older children have “poisoned” the child toward his mother. He said that he had not had discussions with M or V about how he felt about their mother. I do not accept this evidence. I am well persuaded that all three children are clearly aware of the attitude of both the father and the paternal grandparents to the mother.

14. The father said that the very strong negative views that the older children held about their mother had been formed by themselves. He said that the paternal grandparents had not talked with them about their mother. I do not accept this evidence. I note M’s comments to Ms T referred to above.

15. The father said, during cross examination, that he had spoken with the older children about reconciling their relationship with their mother in the period from 2008 until 2010. He said that he had probably spoken to them once per week over the course of the two years asking them to contact their mother. He recounted that they were pretty upset because their mother “left without them”. Tellingly, he said that that he told them that they needed to get together and “talk about why she left them”.

16. It is unsurprising that the older children’s critical attitude toward their mother and the separation has remained steadfast in circumstances where the ‘encouragement’ to have them reconcile their relationship with her rests upon assertions of a need to talk about why she left them.

17. Even if I accept that the father has spoken with the older children about interacting with the mother, given the matters referred to in paragraph 274 above, I am not remotely surprised that he has met with little success in persuading them to revisit their relationship with her and that their attitude toward an ongoing relationship with her remains as they have expressed to Ms T and Dr A.

18. On an assessment most favourable to the father, I conclude that he has been spectacularly unsuccessful in assisting the two older children to reconcile their relationship with their mother and that, as their primary care provider since separation, he has demonstrated a lack of capacity in this respect. Such incapacity to demonstrably support the relationship of the children with both of their parents causes me significant concern about the likely impact of the child and his relationship with his mother if exposed to the father’s parenting for too extended a period of time. Given the father’s behaviour as discussed above and the insightless nature of the paternal grandparents’ criticisms of the mother, the same concerns exist if the child’s is time with the father remains unsupervised.

19. The father has not supported the child’s involvement in extra-curricular activities.  Such attitude is unhelpful given the likelihood that the child, who has experienced problems sitting still in class, may well benefit from an opportunity to engage in physical activities. 

20. It will be apparent, from the comments outlined above, that I hold significant reservations about the father’s capacity to meet the child’s physical needs. I consider it highly likely that, in the event that the child spends time with the father as sought by him, his dietary needs will be neglected as a consequence of the father’s fundamental belief that there is no need to follow the dietary recommendations provided by the mother as recommended by the experts.

The maturity, sex, lifestyle and background of the child and his parents

1. The child is a very helpful child but strong willed and stubborn when requested to do school work or follow simple tasks.[22]  He has some friendships but has engaged in behaviour toward other children which can sometimes be inappropriate and he generally does not work well in group situations.

   [22] Correspondence from the child’s school dated 12 July 2012.

2. When spoken to by adults he often does not take responsibility for his own actions. He makes excuses or blames other children for instigating behaviours. He can be quite defiant.

3. On occasions he demonstrates separation anxiety at leaving his mother in the morning. Whilst he demonstrates a sound understanding of the curriculum, his poor behaviours are hindering his overall results.

4. Against this background, the father’s unwillingness to even trial the mother’s proposal for dietary change in an attempt to help the child to better regulate his behaviours seems even more indefensible.

The attitude to the child and to the responsibilities of parenthood demonstrated by each of his parents

1. At the time of the first Family Report, Ms T assessed the father as a well-meaning parent who wanted a relationship with his son.  I accept that he wants a relationship with the child but, for the reasons expressed, consider that he is anything but well meaning. 

2. The father alleges that the mother has previously said, in referring to the child, that “she did not want that effing kid.”[23] I accept the mother’s denial of this assertion and note that her actions post separation are entirely inconsistent with such an expressed ‘view’. Given my views about the father’s likely incapacity to refrain from exposing the child to his negative views of the mother, I express the very real concern that, in the future the child may come to be exposed to the idea that he was not wanted by the mother.

   [23] Father’s Affidavit filed 22 October 2012.

3. I consider that the mother has demonstrated a child focused approach to her parenting of the child.  Despite knowing of the negative way in which she is regarded in the father’s household, she has refrained from expressing any negative or critical comments about the father in the child’s presence – so much is established by the child’s accounting to Ms T that his mother does not tell him that she does not like the father.  The mother has supported the child’s relationship with the father. 

4. Having noticed that the child’s behaviour changes for the better when his diet changes, the mother has tried to follow a diet that includes no dairy, no additives or preservatives. She asked the father to join with her in this. 

5. Despite being provided with professional advice and the mother’s comments that restricting the child’s diet improves his behaviour, I accept that the father and his family continue to give the child dairy and sugary foods.

6. The father’s inability to place his own views about this matter to one side for the purpose of seeing whether such changes assisted the child speaks volumes about the father’s lack of parenting capacity, and inability to work meaningfully with the mother in addressing matters which are beneficial for the child.

7. A further demonstration of the father’s inability to prioritise the child’s wellbeing can be found in his evidence, that, whilst the general practitioner he saw gave him ‘things’ to look for in the child’s behaviours, he did not pass this information onto the mother because  he thought she would not listen to him.  In addition it is yet another example of the father’s unwillingness to communicate meaningfully with the mother.

8. The father did not accept that, given this approach there would be ongoing problems with the child’s medical treatment in the future. He said that if he received medical information that said what was wrong with the child he would adhere to it. I do not accept this.  The mother has already provided information from Dr G which the father has chosen to disregard.

9. The father accepted, during cross examination, that:

   a)he was given the name of the dietician and allergist upon whom the mother had attended;  and

   b)the mother had asked him to go and speak with them;  and

   c)he did not because he didn’t believe the child had ‘those issues’ – he spoke with his general practitioner, trusted him and so decided not to go and get information. 

10. The father’s inaction is, I consider, a demonstration of his inability to prioritise the child’s needs over his views of the mother as apparent.

11. Despite the evidence of Dr G and the mother about the impact of certain foods on the child’s inability to regulate his behaviour, the father’s position was that he ‘probably’ adhered to the idea of limiting colourings and preservatives in the food he provides to the child but he does not adhere to the gluten and dairy free regime because he does not believe in it.

12. Even if the father did not initially accept what the mother was saying, it would have been so easy to go through a process of elimination – that is, to implement the recommendations and to see for himself. Rather, despite the fact this may have assisted the child in regulating his behaviour and may have improved his capacity to function at his highest level at school, the father determined not to attempt this process of elimination. His unwillingness to embark on his own testing of the information does not speak well of his capacity to prioritise the child’s needs.

13. Save for contacting Ms F, the father has not taken any steps to contact the other medical practitioners and experts to find out about the child.

14. When challenged that this must have been because he trusted the mother to undertake such activities, he responded ‘yes I suppose so’. I am not remotely convinced that he, in fact, reposes trust in the mother but, rather, consider that this response was the only option left to him as a result of the manner in which the questioning was undertaken.

Has there been family violence involving the child or a member of his family and any family violence order?

1. I repeat and rely on the matters already outlined above.

Other relevant matters

1. The parties’ communication is characterised by distrust, sensitivity to perceived insult and self-focus. So much is established from a consideration of a number of communications between them over time.

2. The mother sent the father an email[24] to tell him that Dr E had examined the child and told her that his penis was bruised due to forced pulling back of his foreskin and that it should only be pulled back to where it could go and not be forced. She further informed that Dr E was not concerned that there was infection and had advised that everything should be “normal” by the time the child was eight years of age. The father emailed the mother saying, amongst other things, that he hoped that “nobody was insinuating I have in any way done this to him”.

   [24] dated 11 December 2009.

3. The mother emailed the father in August 2011, saying that the child’s bank book was missing. She asked whether he had taken it home from school/kindergarten and to respond so that, if necessary, she could organise a replacement.

   The father emailed: “I don’t appreciate the accusation, lighten up I have not touched [the child’s] bank book, its not here. You know I always give you his banking in an envelope in person. If you’re having a bad day please don’t take it out on me. It’s not what you’re saying its how you’re saying it”.

Generally

1. When pressed to explain his proposal that the child spend the majority of his time in the care of his mother (who is, according to him, a person who gains sexual gratification from watching child pornography) and the mother’s partner (a person who he considers has previously been physically violent to the child and who may, at any time physically or emotionally abuse the child), the father said that, even though he felt that the child was at risk, he “needs his mother and his sister [S]”. Given the history of this matter, I am left with significant lingering concern that the reality is that the father is simply proceeding on the basis that he is yet to obtain sufficient evidence to persuade a Court to conclude that the child is at risk in his mother’s care.

1. The father said that it was very hard to tolerate the child living with his mother and her partner given the views he has about them as people (as outlined above). Again, it is difficult to reconcile this evidence with the case presented by him.

2. Given the matters discussed above, I am persuaded that it is more likely than not that, in the future, the father will continue to assert matters critical of the mother’s parenting of the child until he is able to obtain ‘proof’ of such assertions.

3. In what is, I consider, a telling passage of evidence, the father said that he was wanting more time with the child “to keep an eye on him”, that he was yet to discover evidence of what he knew to be true (namely his beliefs about the mother and her partner as outlined above) and that he hoped in the future that such evidence would ‘surface’. This is, I consider, a manifestation of the significant potential risk to the child during whatever time he spends with his father: namely, that he may be exposed to attempts to ‘discover evidence’ for the purpose of ‘corroborating’ the views already held by the father.

4. The father acknowledged that he had complained to authorities about the ‘child abuse’ of the child in the past and would have no hesitation in complaining again if there was ‘evidence’. Whilst perfectly understandable in many cases, such a position only serves to increase my concern that, in the future, the child will be the subject of attempts to ‘uncover’ matters to support the father’s established belief system that he is at risk in his mother’s care. The real risk is, I consider, that such attempts to ‘discover evidence’ may well expose the child to intrusive and destabilising investigatory efforts by those authorities charged with the statutory obligation to receive and act upon information.

5. I conclude that there is an unacceptable risk to the child’s emotional functioning if he continues to spend unsupervised time with the father.  As has been explained above, such is the nature of the significantly negative views held by that household about the mother and such is the father and paternal grandparents’ lack of self-control or insightlessness about the impact on the child of exposure to such views, that I consider it more likely than not that the child will continue to be exposed to the knowledge that they do not like her and that she is responsible for causing harm.

6. Ms T considers that the child’s challenging behaviours are mostly a reaction to the high conflict situation he finds himself in and from which he needs to be protected and sheltered.  Given the father’s views and behaviour as discussed in these Reasons, I consider that the need to protect the child from the harms associated with unsupervised time with the father outweighs the negative impact likely to be caused to the ongoing development of a meaningful relationship between the child and the father by the imposition of supervision. I consider that the only way the child can be protected from the significant harms I have identified is if he spends only supervised time with the father.

7. Three Family Reports have chronicled the impact on the child of exposure to the father’s highly critical view of the mother.  The child has, I consider, started to demonstrate the impact of exposure to these views.  It is not in his best interests that such exposure continue.  I am satisfied that such is the shared lack of insight of the father’s household about the negative impact on the child of the exposure to their views and such is their inability to refrain from expressions of the same, that the only way to ensure he is protected from its significant and potentially debilitating impact is to impose supervision over his time with his father. 

8. I also consider that the manner in which the father responded to information from the mother about the child’s possible health issues suggests that there is a significant risk to the child’s physical wellbeing in the future if his time with the father increases or remains unsupervised.  Whilst the issue of allergies and intolerance to date has involved non-life threating issues, it is easy to conclude that the father’s mistrust of the mother, belief that she is a liar and unwillingness to engage in an eliminatory process to preclude the asserted allergy and intolerances is such that he would be willing, perhaps insightlessly, to inadvertently place the child at physical risk.

9. Even if I had not been persuaded that the child is at an unacceptable risk of emotional and, potentially, physical harm if he continues to spend unsupervised time with the father, I am not persuaded that an increase in his time with the father is in his best interests.  I accept that the situation is very difficult for the child when he visits his father’s household where his older siblings and grandparents will have nothing to do with the mother and appear hostile and angry toward her.  To place him into this environment and expose him to their views about the mother for a greater period of time, as sought by the father, would, I consider, be more likely than not to cause emotional harm and damage, destabilisation of the child’s functioning and require him to continue to deal with and manage views incongruent with his own experiences.

Parental Responsibility Conclusion

1. As found above, the presumption that it is in the child’s best interests that the parties have equal shared parental responsibility in respect of all major long term issues for him does not apply. It follows, therefore, that a determination of whether such an order, or an order allocating parental responsibility solely to his mother (as is sought), should be made rests upon a consideration of that which is in his best interests, this being the paramount consideration.

2. If the Court makes an order that the parties are to share parental responsibility for the child and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to him, such order requires the decision to be made jointly by the parties: s 65DAC(2) of the Act.

3. Whilst the Consent Order provided that the parties have equal shared parental responsibility for the child, I consider that events which have occurred since then, as discussed above, have resulted in a significant deterioration in the level of communication between them.

4. So much is clearly demonstrated by the father’s comments to Ms T, as at 24 July 2012, that :

   a)“there is no communication between me and [the mother]”;

   b)his communication with the mother was a 3 out of 10 (1 being the lowest) and his family’s communication with her was a 1 out of 10.

5. In addition, the mother confirmed that she went on an 11 day cruise in January 2012, leaving the child with Mr H’s father without telling the father this. The mother’s actions provide a stark example of the failure of communication between the parents.  Further, the parties were unable to agree about whether the child go into a composite prep/grade one class or participate in a “dedication” ceremony at the mother’s church.

6. When Ms T spoke to the parents together on 24 July 2012 she told them that she thought that shared care could not work in light of the ‘considerable’ animosity between them and the lack of communication, co-operation and collaboration. I accept that her discussion with them was founded on the very conclusions I have reached in this matter.

7. That the parties have been unable to agree about whether the child is lactose and/or gluten intolerant is a clear demonstration that co-operation between them is very poor. Given that the father maintains his belief that the child is at risk of sexual, emotional and physical harm in the mother’s household and continues to voice some aspects of this view as outlined above, it is highly unlikely that there will be any significant improvement in the parties’ ability to communicate about issues relevant to the child in the future.

8. Whilst Ms T recommended, in the third Family Report, that the parties have equal shared parental responsibly for the child because of its ‘symbolism’, she departed from this opinion during her cross-examination.  I consider such an arrangement would be unworkable for the child.  Even if Ms T had continued to support her earlier recommendation I would not have accepted the same after observing, the cross examination of the parties and having reached the conclusions I have set out above.

9. I am not satisfied on the evidence before me that the parties could now make decisions about major long term issues in relation to the child ‘jointly’. They could not, I consider, carry out the obligation imposed on them by statute. I consider that the level of mistrust and antipathy held by the father toward the mother is such that his first reaction, when receiving information from her, is, more likely than not, to behave in an accusatory manner. He interprets her provision of information or request for same as an attack on him personally. He considers her to be a liar in providing information to him about her observations of the change in the child’s behaviour after the removal of certain foods from his diet. Such attitude means that it is more likely than not that decision making about the child’s long-term issues will continue to be a long and drawn out process.

10. I am satisfied that the mother has actively sought to address the issue of the child’s behaviour by seeking and obtaining expert advice. She has actively sought to involve his father in a process of elimination by embarking on the keeping of a food diary and engaging with her general practitioner and the specialist to whom she was referred. She provided the father with details about these attempts to assist the child to manage his behaviour. She provided the father with the information that she received from these experts. Despite such provision, the father decided not to attend on these professionals himself because he does not believe the child has food intolerances.

11. The father accepted, during cross-examination, that there was very little, if any, evidence before the Court that the parties can communicate effectively to obtain an outcome for the child. He went so far as agreeing with the proposition that they could not agree on what sort of day it was outside. I accept this.

12. I consider that the evidence clearly establishes that the parties have such a significant and entrenched inability to communicate effectively about issues relating to the child that it is not in his best interests that there is an order for equal shared parental responsibility for him.

13. I am, however, satisfied that it is in the child’s best interests that his mother have sole parental responsibility for all major long term issues in relation to him. I reach this conclusion because I am satisfied that she has acted to address issues which have arisen for the child in a child focused manner and has sought and obtained input from various professionals which she has acted upon and implemented in order to assist the child. She has kept the father informed about her enquires about educational options for the child and ensured that he was involved in the child’s enrolment at X State School. I am satisfied that, without such an order, decisions about matters such as health and treatment for health conditions are likely to be attended by conflict and delay. Such result is not in the child’s best interests.

14. I am satisfied that the child’s mother has, in the past, sought to involve the father in making decisions about matters such as school and extra-curricular activities. I am satisfied, by virtue of her past conduct, that she will comply with the terms of an order which would require her to inform the father about a prospective decision about a major long term issue for the child, invite his response, consider the same and, having made the decision, inform him of it.

Should there be a restriction on the amount of supervised time the child can spend with the paternal grandparents?

1. The Independent Children’s Lawyer sought that the child’s time with the paternal grandparents be restricted to four occasions per year. I am not persuaded that such an order is in his best interests, particularly given their historical involvement in his life.

2. I am confident that whichever Contact Centre the parties use to facilitate the child’s time with the father will be well able to ensure that, if the paternal grandparents or the older children attend at it, their behaviour is monitored so as to ensure that the child is not exposed to the very damaging opinions, comments and views against which the order for supervision is intended to guard. To facilitate this, I will make an Order pursuant to s 121 of the Act permitting the mother to provide the Contact Centre with a copy of these Reasons.  Further, if, at some time in the future, the mother considers the child would benefit from professional assistance in understanding the effect of the Orders I have made or in dealing with impacts associated with the implementation of the same, I consider it appropriate that she be at liberty to provide to such person a copy of the Reasons and I so Order.

3. If the father, paternal grandparents, or the older children prove incapable of restraining the expression of denigrating or derogatory comments about the mother, during supervised time, it will be a matter for the Contact Centre and the implementation of whatever policy, including the withdrawal of the service, it has to deal with such behaviours.

I certify that the preceding three hundred and twenty-seven (327) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 18 October 2013.

Associate:     

Date:              18 October 2013