Wilson & Jeans - [2023] FedCFamC1F 668

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wilson & Jeans [2023] FedCFamC1F 668

File number(s): MLC 8543 of 2014

Judgment of: MCNAB J

Date of judgment: 15 August 2023

Catchwords: FAMILY LAW – PARENTING – Where the father has not spent time with the child for about seven years – Where there were previous final orders made in 2015 – Where the mother has made allegations of family violence and child abuse – Where those claims are not substantial – Question of whether the father spending time with the child is in the best interests of the child – Where the child has special needs and developmental issues – Judgment made for limited supervised time moving to limited unsupervised time.

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Bielen & Kozma [2022] FedCFamC1A 221

Fitzwater & Fitzwater [2019] FamCAFC 251

Germain & Germain [2017] FCCA 1980

Isles & Nelissen [2022]

Wilson & Jeans [2015] FamCA 688

Division: Division 1 First Instance

Number of paragraphs: 137

Date of hearing: 8 – 11 May 2023

Place: Melbourne

Counsel for the Applicant: Ms Abelraheem

Solicitor for the Applicant: McLachlan Thorpe Partners

Counsel for the Respondent Ms Teicher

Solicitor for the Respondent Pentana Stanton Lawyers

Counsel for the Independent Children’s Lawyer Ms Villella

Solicitor for the Independent Children’s Lawyer Legal Aid NSW
ORDERS

MLC 8543 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS JEANS

Applicant

AND:
MR WILSON

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

15 AUGUST 2023

THE COURT ORDERS THAT:
1.All previous orders be discharged.
2.The mother have sole parental responsibility for the child B, including but not limited to:
(a)Providing all authorities necessary to cause and/or permit B to travel to and from the Commonwealth of Australia;
(b)Providing all authorities necessary to cause and/or permit the issue of or the renewal of any passport

3.B will live with the mother.
4.The father provide the mother with Ms K’s contact details, including a current telephone number, and the mother shall be at liberty to contact Ms K to do all things necessary for B to meet his half-brother E, and spend time with E.
5.The mother be restrained by injunction from denigrating or making critical or negative comments about the father, in the presence or hearing of B.
6.The mother shall use her best efforts to prohibit any third person from denigrating or making critical or negative comments about the father, in the presence or hearing of B, and should any third party make such comments the mother is to remove B from the presence of that person immediately.
7.The mother be restrained by injunction from allowing B to call her father ‘Dad’ or allowing B to use any term that is a synonym for ‘Father’ or ‘Dad’ when speaking to or talking about his maternal grandfather, and should B do so the mother shall forthwith correct B.
8.The mother shall use her best efforts to prohibit her father, her mother or any other person to allow B to use ‘Dad’ or use any term that is a synonym for ‘Father’ or ‘Dad’ when speaking to or talking about his maternal grandfather, and should B do so when speaking to his grandparents or either of them the mother shall forthwith correct B.
9.For a period of 12 months from the date of these orders B shall spend supervised time with the father at L Contact Centre, four (4) times a year, for not less than two (2) hours for each visit and the dates and times to be nominated by the Centre, but that the contact centre is requested to arrange the visits take place in the week before Christmas Day, in March, in the week of B’s birthday and on Father’s Day.
10.The father be permitted to bring E to any time the father spends with B at the contact centre.
11.To facilitate B’s time with his father, each party must:
(a)L Contact Centre within seven (7) days to arrange an appointment for assessment for suitability;
(b)Attend the assessment;
(c)Comply with any appointment made by L Contact Centre;
(d)Comply with all reasonable rules of L Contact Centre;
(e)Comply with all reasonable requests or directions of the staff of L Contact Centre;
(f)If L Contact Centre following its intake procedure is unable or unwilling to provide supervision as set out above then the parties shall use M Contact Service, and the obligations as set out in this order shall apply to M Contact Service.

12.The parties shall each equally pay the fees nominated by the contact service being used for the provision of its service.
13.At the expiration of 12 months from the date of these orders the father spend unsupervised time with B for five (5) hour periods on consecutive days four (4) times each year at a location in New South Wales convenient to the mother and B with the visits to take place in the week before Christmas Day, in March, in the week of B’s birthday and on Father’s Day.
14.The father be permitted to send cards and letters and photographs to B via a PO Box address that the mother will provide to the father within 14 days of the date of these orders.
15.The appointment of the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilson & Jeans has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McNab J:

This matter is a parenting application which comes before the court by way of an Initiating Application filed by the applicant mother, Ms Jeans ("the mother") on 10 January 2017. The respondent father, Mr Wilson ("the father") filed a response on 16 February 2017. The matter relates to the one child of the relationship, B, born 2013 who is aged 10 years. The father also has a child from a previous relationship, E, who is aged 14 years.
This matter first came before the court in 2014 when the mother filed an Initiating Application seeking orders for supervised time and that she be permitted to relocate to New South Wales. The father opposed these orders and sought orders for spend time arrangements. After a defended hearing, Justice Cronin handed down judgment on 20 August 2015 (“the 2015 orders”) and made orders including that:
(1)The mother be permitted to relocate to NSW;
(2)The mother have sole parental responsibility for B;
(3)B live with the mother; and
(4)B spend incrementally increasing time, up to three consecutive days each month in NSW with the father.
In the first trial in 2014, at which point B was aged 2 years, the primary issues identified by Cronin J relating to parenting included:
(1)Whether either parent was a risk to B - both parents made a number of allegations of B being harmed in the other's care;
(2)Whether either parent was neglectful of B;
(3)Issues relating to the safety of E in the father's care, involving allegations of sexual abuse by the father towards E;
(4)Who was credible and truthful.
The mother filed another Initiating Application in 2017 after B was allegedly abused in his father's care, details of which are set out below.
The mother seeks that B spend no time with the father, and that the father be permitted to send cards and letters to B via a PO Box address that she will provide. The mother proposed that when B turns 15, she will provide B with the father's contact details to allow him to have some relationship with the father, if he wishes to do so.
The father sought orders for limited supervised time leading to unsupervised overnight time to take place about 12 times per year.
The ICL proposed orders that if the court found that the father did pose an unacceptable risk to B, there be no spend time orders, and in the alternative, if the court found the father was not an unacceptable risk, the court order would be that the father spends time with B four times per year in Sydney, under professional supervision.
The mother relied on:
(1)Further Amended Initiating Application filed 15 February 2022;
(2)Affidavit of Ms Jeans filed 3 April 2023;
(3)Affidavit of Ms Jeans filed 1 May 2023;
(4)Affidavit of Ms N filed 15 February 2022;
(5)Affidavit of Mr O filed 15 February 2022;
(6)Affidavit of Ms P filed 15 February 2022;
(7)Affidavit of Ms Q filed 1 May 2023;
(8)Tender Bundle submitted by the applicant on 4 May 2023;
(9)Family Report of Ms R filed 1 October 2020
(10)Affidavit of Mr O filed 15 February 2023.
The father relied on:
(1)Affidavit of Mr Wilson filed 17 April 2023;
(2)Amended Response to Final Order filed 17 April 2023;
(3)Family Report of Ms R filed 1 October 2020.
The ICL relied on:
(1)Family Report of Ms R filed 1 October 2020.
BACKGROUND
The parties commenced a relationship in 2011 and separated in 2014. It was determined by the 2015 orders that they did not live together in a de facto relationship. B was born in 2013.
B is currently living in New South Wales in an undisclosed location with the mother. He has not spent time with the father since October 2016, other than for an observation session during the Family Report process in May 2017, during which he did not recognise his father.
B has special needs and attends a public primary school with a Special Support Unit. The mother is engaged in full-time parenting duties.
B was born premature and suffered a medical episode around the time of birth. He has a mild brain injury as a result which affects his mobility, motor skills and cognitive and emotional development.
B receives various therapies including with Ms Q, his psychologist. It was noted that B had regular check-ups with a paediatrician, but he still experiences difficulties with sleep and nightmares and occasional distress upon waking.
The father lives in Victoria with his parents and is engaged as the full-time carer of his father. He spends time with his son from another relationship E (born 2009) five nights per fortnight in accordance with court orders, but has not spent time with B since October 2016.
These proceedings have a long history. Shortly after separation, the father made an application in September 2014 for the child to spend significant time with him. Prior to this application, there were informal arrangements for B to spend some time during the day with his father.
In August 2015, final orders were made for the mother to be permitted to relocate to NSW, for B to live with the mother, for her to have sole parental responsibility and for B to spend time with his father for three consecutive days each month in NSW. The mother relocated in September 2015. Both parties report there were issues facilitating the three days per month for spend time arrangements, with each blaming the other for these issues. In the course of the earlier proceedings the father made allegations that the mother had neglected the child whilst in her care. These allegations were referred to (story texts) by Cronin J’s 2015 judgment of Wilson & Jeans [2015] FamCA 688 (“Wilson & Jeans”) at [72] – [73] and [81] – [82].
In November 2016, the mother unilaterally ceased B's time with the father due to her concerns about what had occurred during the spend time arrangements. She stated that B had disclosed to her that the father was abusing him. She noted that over the previous year of spend time arrangements, she had noticed and documented injuries on B after he was returned from time with the father, which she alleged were caused by the father. The mother also noted that during this time, B was becoming more unsettled and experiencing behavioural issues. A referral was obtained for B to see a psychologist and records show that he made a number of disclosures to the psychologist, which caused a number of reports to be made to Child Protection.
The father denies harming B, and offered no explanation for the injuries the mother had documented on B's reports of being abused by his father, other than to suggest the mother and maternal family may be coaching B.
The mother filed an Initiating Application in January 2017 seeking for the 2015 Orders to be discharged until further order.
On 1 May 2017 the parties and B attended for interviews with Ms S (Family Report Writer) for the purposes of preparing an S 11F Memorandum. That memorandum was released on 2 May 2017. That report is a reasonably comprehensive account of the background to the matter returning to court. Ms S noted in her report:
[Ms Jeans] acknowledged that apart from one occasion only, she has not taken [B] to a doctor as a result of the injuries she has observed. Instead, she has consulted with an aunt who is a [health professional] and provided her with ‘healing cream’ to treat [B’s] injuries[1]
[1]Ms S, Family Consultant, Report dated 8 May 2017 at [7].
At [8] - [12] of the report Ms S set out some of the background:
8.[Ms Jeans] advised that both the frequency of the injuries occurring and the pattern and nature of the marks and injuries, which she described as "occurring on areas of his body that are not typical accidental zones" have always been concerning. However, as [B's] speech has developed and he has been able to describe and contextualise incidents and his statements appear to be consistent with observed injuries, she concluded that [B] was not safe in [Mr Wilson's] care and stopped contact in October 2016. For example, on one occasion, [B] said he had been tied up and he had red marks around his ankles which appeared to be consistent with being tied up/restrained. Other comments made by [B] indicated his father has grabbed him around his neck, kicked him, hurt him with a stick and threatened to lock him in a cage. [B] has said he is scared of his father and has referred to him as "the bad man." It remains unclear why [Ms Jeans] did not take [B] to see a doctor, or report her concerns about [B's] safety in his father's care to FACS or New South Wales Police.
9.[B's] behaviour has escalated to the point where he is now unable to participate in [sport] lessons or other structured activities, given his inability to interact appropriately with other children. In [late] 2016 the Department of Family and Community Services (FACS) referred [B] to the [Y Program] which provides intervention services to families and children who are at risk of escalating or entering the statutory child protection system. Since February 2017, [B] has attended the [Y Program] twice a week. He is not currently able to attend mainstream preschool, given his behaviour.
10.[B] has also been referred by Victims Services (NSW Justice Department) to psychologist [Ms Q] for trauma counselling. In a report prepared by her, dated 22 March 2017, [Ms Q] writes: In my observations with [B], he does not present any behaviours that would fit into a mental health diagnosis other than complex trauma or Post Traumatic Stress Disorder. It is noted in DSM V that PTSD in a child under 6 years may have developed due to witnessing trauma, such as domestic violence, and/or due to sexual or physical assault on their self It is known that there is a history of domestic violence by [B's] father towards his mother, and it is probable that [B] witnessed some of this. We know also that trauma does impact pre verbal infants and children.
Ms S's report at [13]- [15] gives an account of the time spent between B and his father for the purposes of the report:
13.Although the report writer advised [B] his father would come into the playroom to see him, [B] gave no response. When his father entered the room, [B] stopped what he was doing and smiled. Then he said: "Who are you?" [Mr Wilson] replied; "daddy, you remember daddy." [B] said: "Are you my father?" [Mr Wilson] repeated: "I am daddy." [B] said words to the effect: "I have two daddies, this one and that one." [B] was trying to put his sock back on. [Mr Wilson] offered to help. [B] immediately moved closer and put his foot out, happily accepting his help. He invited his father to play with him at the soccer table. After seconds, [B] was on the move again, but clearly expecting [Mr Wilson] to follow him, saying: "look at this, come here." [Mr Wilson] had photographs which he showed [B], who appeared not to recognise his brother, [E], and could not remember the dog's name. He smiled broadly when [Mr Wilson] mentioned Nanny and Grandpa, paternal grandparents.
14.[B] approached the family consultant and asked for her security tag to open the door. [B] clearly had observed other family consultants using a tag to exit the playroom. When asked why he wanted it, [B] indicated he expected to leave with his father. This is not surprising, given that until October 2016; [B] was used to leaving the changeover venue with his father, as opposed to remaining there for an extended period. When [Mr Wilson] told [B] that he would be leaving in a few minutes, [B] clearly did not want his father to leave and tried to prolong him staying in the playroom. [Mr Wilson] managed this effectively. [B] did not appear to be distressed when his father left the room.
15.As soon as his mother entered the playroom, [B] smiled broadly and approached her immediately, saying words to the effect: "mummy I just saw my father. I did. He didn't hurt me. He left this train behind [shows mum the small Thomas the tank engine] he came here. He didn't hurt me." [B] was smiling and animated whilst making these comments. [Ms Jeans] replied; that's good that he didn't hurt you" and distracted [B] by asking what toys he had played with. Interaction between [B] and his mother was animated, with some degree of reciprocity. [B's] comments could indicate either: that he anticipated his father would hurt him, based on his prior experience, or: that this is the explanation given by his mother as to why he has not spent time with his father for a number of months. [Ms Jeans’] response was somewhat vague in this regard.
In her evaluation, Ms S noted that B did not display any outward manifestation of fear, distress or anxiety during the time that the father spent with the child in the playroom as would be expected if he had been consistently hurt by him.
Ms S recommended inter alia that:
II.The father be provided with the opportunity to meet in person with [B's] treating psychologist, at her discretion, as part of the ongoing assessment process;
III. The mother obtains and provide to the Court, a report from [B's] current paediatrician regarding what /when assessments have been done regarding the possibility of [B] having a diagnosis of Autism Spectrum Disorder;
IV. The time [B] spends with his father be reserved, pending the outcome of any police investigation, at which time consideration be given to supervised contact occurring for two hours once a month at a contact centre close to where [B] resides with his mother.[2]
[2]Ms S, Family Consultant, Report dated 8 May 2017 at page 8 of 9.

In her trial affidavit the mother gives evidence that the day after the meeting with Ms S and the father, B had a public meltdown at a sports match. The mother says that after the meeting with the child expert, B experienced dysregulated emotions and regression in his behaviours for weeks. The mother also says that B said to her a few times, "I want to run in front of cars and kill myself." The mother also stated that B thought the legal professionals would share information about him and the identity of his school and that his father would turn up there "to hurt me and take me away." One has to bear in mind that B was aged 4 years at the time he is alleged to have made those remarks.
In May 2017 orders were made suspending the 2015 orders, and orders were made for the father to spend supervised time with B in Sydney. The father has not seen B (other than during Family Report sessions) since October 2016. That time did not commence because of difficulties in arranging an appropriate contact centre for the supervised time to commence. The father did make efforts for the time to commence.
In November 2017 the mother made a detailed and lengthy statement to Victoria Police alleging quite extreme physical family violence on the part of the father against her which is said to have occurred prior to their separation and the abuse of the child. The proceedings were effectively stalled whilst a police investigation into those allegations was conducted. The mother's trial affidavit filed 3 April 2023 notes at [194] that police decided after years of investigation that because there was "insufficient evidence” the matter would not proceed.
The case then moved slowly through the court system with neither party pressing for the matter to be dealt with. A Family Report was ordered to be prepared, however the progress of the matter was stalled whilst the allegations made by the mother were investigated. The proceeding was listed for a final hearing before me on 26 May 2022 at which point it was not ready to proceed. It was then adjourned for final hearing to 13 July 2022. At that point the father was unrepresented notwithstanding that he had the benefit of a 102NA Order made on 26 May 2022. He sought an adjournment (against the urgings of the court) and the matter was reluctantly adjourned to be heard in May 2023.
Allegations of family violence involving the parties did not appear to feature in the hearing leading to orders being made on 20 August 2015, judging by the contents of the reasons for decision. Since those orders were made there has been a marked escalation in the number of allegations about the father's conduct prior to September 2014 and the severity of the family violence alleged to have been committed by the father against the mother.
A large portion of the trial was dedicated to exploring the mother's allegations of family violence which she says was perpetrated by the father prior to the hearing in 2015. It is notable that the 2015 judgment of Cronin J stated in relation to family violence:
Section 60CC(j)
191.It was common ground that the Court did not have to seek a finding about family violence despite my reservations about the conduct of the father.
Section 60CC(k)
192.Whilst family violence orders were made in this case, no evidence was produced that would satisfy me enough to draw inferences under the relevant sub-section as to their foundation. For example, the father sought an order based on the knife allegation. That was exaggerated at best. He was also more concerned about property issues in circumstances where he did little to remove his items from the mother’s property.[3]
[3]Wilson & Jeans [2015] FamCA 688 at [191].
There was significant time dedicated to whether the mother's accounts could be considered credible given she did not raise them in any detail in the 2015 hearing and the IVO application which was made.
The mother sets out some instances of family violence in her trial affidavit, but for her substantive evidence, she sought to rely on a police statement made on in late 2017.[4] The police statement raised a large number of allegations regarding the father’s conduct during the relationship including:
[4]Exhibit ICL3(1), Police Statement dated 14 November 2017, Tender Bundle pages 210-238 (“Exhibit ICL 3(1)”).
(1)       Throwing furniture:
109. From October, 2012 [Mr Wilson] and I had fights over money, almost every time we saw each other. They occurred due to me asking [Mr Wilson] to pay, as agreed, […] rent as well as the increasing list of money owed. Financially, it was getting out of control, [Mr Wilson] got so mad during these arguments. It was like he couldn't believe that I was asking him to pay the money be owed. He often threw things at me. He grabbed plates, glasses, cups and cutlery and threw them at me. They hit me and then smash [sic] on the floor. He yelled and screamed at me, repeating "You don't tell me what to do bitch'', "Who do you think you are?"
(2)       Assault causing premature birth:
129.In 2013 [Mr Wilson] became angry at some professional connected to [E]. I came home from work, it was on the verge of darkness. When I got home I saw [Mr Wilson] at my house in the front garden using an axe on a tree branch and wooden borders to get out anger, hacking back bushes and plants. I asked him to stop and told him, "This is my house and is unacceptable." [Mr Wilson] shouted, "This is how it's always going to be is it? The 'This is your house line?' I'm telling you bitch ... that you don't tell me what to do." [Mr Wilson] repeatedly yelled and shouted, "You will never tell me what to do. Do you hear me bitch? You don't tell me what to do, and no one tells me what to do."
130.[Mr Wilson] approached me and pushed me backwards by pushing my chest. I was heavily pregnant at this time at 31 and a half weeks. I fell backwards and put my right hand back to try to stop my fall. I landed on my right side. I tried to get up and he came from behind me and he pushed me forward from the grass to the garden bed. I landed on the front garden bed, my mid-section landed on the rocks and my face was in the dirt. There was volcanic rocks edging the garden and my pregnant stomach was pushed onto the rocks as a result of me being pushed forward.
131. [Mr Wilson] pushed me down further, he got on my back, placing his knee on my lower back and using his elbow and arm to put pressure on between my shoulder blades. My stomach was pushed further onto the rocks and my head was also pushed down. He kept repeating the words that I don't tell him what to do. That no one tells him what to do. This lasted for 5 to 10 minutes but seemed like an eternity. I was just crying. [Mr Wilson] got up off me and went inside.
132.I was so upset and scared, I went inside and hid in the spare bedroom. I had pain in my stomach and lower back. After a while I noticed I was bleeding from my vagina, only a little bit at first but this steadily got worse. I was now scared for my baby. After a while I could not feel him moving. I knew something was wrong. I started to panic. When the bleeding go [sic] worse I called my obstetrician …. [Mr Wilson] must have heard me on the phone and he came in and was standing over me. I left a message on his [the obstetrician’s) pager. I couldn't get through then tried again and again. I eventually got to speak … and told him about the bleeding but not how it happened. I was told to come immediately to [Suburb W] hospital. .[Mr Wilson] made sure he escorted me, as was now typical, to the hospital so he could closely monitor what I said and ensure nothing was mentioned about the physical attack. By the time I made it to the hospital blood was running down my leg and soaked my clothes and I was in a panic. The baby's heart rate was low, the nurses had trouble finding the heart rate. Nursing staff immediately prepared me for surgery. I had an emergency caesarean within hours of this incident, a few minutes after midnight […]. My placenta had erupted. My baby nearly died.
133. I had a traumatic birth and I experienced involuntary shaking afterwards, my blood pressure also got out of control, which until then was managed very well with medication and I had been taking daily readings. [B] was transferred to the [I Hospital]. I only saw him for a minute before he was taken.
134. The next day I learnt that [B]sustained brain damage. I felt within myself that the incident with [Mr Wilson] had caused it. I felt so guilty because if I had kept my mouth shut [Mr Wilson] would not have reacted and my baby would still be in my tummy and not damaged. I have continually kept punishing myself for this decision.[5]
[5]Exhibit ICL3(1).
(3)       Sexual Assault and Rape allegations
140. As I did not want to be touched by [Mr Wilson], I did not reciprocate or positively respond to any requests or attempts or approaches to initiate affection or sexual activity by [Mr Wilson] after [B's] birth. [Mr Wilson] was not happy about this response from me and from this point on [Mr Wilson] forced himself on me sexually several times.
141. The first time that happened was when [B] was still in intensive care at [I Hospital]. It was within first 4 weeks after his birth. I don't know the exact date. I had been discharged from hospital 1 week after the caesarean.
142.it occurred in main bedroom at my [Suburb W] property late at night. [Mr Wilson] was staying over that night. I was lying down in my bed trying to sleep. [Mr Wilson] tried to initiate sex. He laid down next to me and started touching on my breast and under my pyjama bottoms, on my vagina. I said, ''I am not supposed to." And "I am tired and don't have the energy." [Mr Wilson] said, "You need to be a good partner. Just let it happen. You need this."
143. [Mr Wilson] got on top of me, straddling me on my thighs and trying to pull my pyjama bottoms off I started to move my legs, trying to kick him away, and I was trying to pull my pants up. I tried to push him off with my arms and legs but did not have enough strength or energy. I said, ''No. Don't. No. I don't want to" I was telling him that it hurts. I was still very bruised around the C‑section scar. I also didn't have any strength in my stomach to push him off. He pushed my legs up towards my shoulders, squashing me and it really hurt. I was saying, "No. Stop. It hurts." He said, "You know you'll enjoy it. Admit it. Just let it happen." He pushed his penis into my vagina while he forced my legs up. Being in this position was excruciating. He was thrusting in an out. It was over quickly. He ejaculated inside me. It really hurt. He said, "See, that was fun. I don't know why you are making such a fuss about it." He made out that in his mind he believed I enjoyed it. I got out of the bed and went to the toilet to clean myself up. There was lots of bleeding at the time and afterwards. I went into another room to sleep. I had to get away from him.
144. I spoke to the Obstetrician the next day about what was normal blood loss as I was worried I was bleeding a lot. The site of my stitches was also very painful and much bruised.
145. I also went to [U Health Clinic], but there were no Doctors available. I saw a nurse instead and had her check my stiches. The nurse said the stitches looked ok and they looked like the ones that were dissolving. I did not disclose what had happened to me.[6]
[6]Exhibit ICL(3)(1).
(4)       Smashing head with beer bottle allegation:
154. Another time while [B] was still in [T Hospital], we were again having another argument about money. We were standing in the kitchen in [Suburb W] and he was holding a beer bottle. He smashed it on the side of the kitchen bench and then holding it up with the shards exposed, he hit me over the head with it. It hit the right side of my forehead, and a shard was embedded in my head. I had to pull it out. I still have the scar. [7]
[7]Exhibit ICL(3)(1).
(5)       Hitting with a pole:
27. [Mr Wilson] had stayed over one night, and the next morning we were in the kitchen. [B] was asleep in his cot. I said l had been getting texts from the neighbours about the removal of his cars. The neighbours wanted to build a fence so they could put their house on the market again. I requested [Mr Wilson] once again to move his cars so the neighbours could build a fence. I said, "Your cars will be fenced in if they are not moved.'' [Mr Wilson] just snapped, then yelled and shouted uncontrollably, "You fucking bitch you're meant to support me. Whose side are you on you whore. I'm not moving my cars. You can't make me." [Mr Wilson] accused me of having an affair with the neighbour because of the texts and that I agreed with the neighbour that [Mr Wilson] needed to move his cars from my lawn. He repeatedly said, "Your fucking him aren't you? You whore.
28.While [Mr Wilson] was yelling he went out to the back deck got a metal pole, which was part of an industrial sewing machine. He approached me from behind while I was in the kitchen, with the fridge door open. He struck me repeatedly at least 3 or 4 times on the side of my right shoulder, right upper arm, and base of my head. I turned around and walked away into the living room. As I did this he used the pole to strike me on my left side, side of my head and shoulder. [Mr Wilson] shouted "Don’t you threaten me whore. No one threatens me. Do you understand? Your life won't be worth living if you do that again. Do you hear me?" I crouched down, placing my hands over my head, I was bleeding from the left side of my head. [B] started crying from his cot. [Mr Wilson] stomped and drove off away from the property.
29. 1 didn't see a Doctor for my injuries. I never sort [sic] any medical help for any of my injuries, other than for [B's] birth and my C-section scar.[8]
(6)       Abuse to [B]:
7. Sometime in May 2014, [Mr Wilson] had left boxes of papers in my living room. One morning [B] was pulling papers out of one of these boxes and was making a pile. When [Mr Wilson] got up and saw this he yelled "No, no, no stop you little shit". He grabbed the papers from his hands, [B] started crying, he then started to pull more out. [Mr Wilson] was very angry and forcefully pushed [B] backwards away from the box, yelling at him "I said No You Little Fucker". [B] landed backwards, his head hitting the floor. [B] was screaming. He tried to get up. [Mr Wilson] pushed him down again. I rushed to [B] and picked him up, before he could do it again. I took him away to soothe him. [Mr Wilson] shouted at me "he can't touch my stuff'. I said “you need to move your boxes". This never happened.
8. Sometime in June 2014, after both of us having dinner with his parents he was angry at them for inferring he was greedy. [ Mr Wilson] ranted all the way in the car about them. Getting out of the car, I placed [B] in his capsule next to the car as I was placing his baby bag on my shoulder. As [Mr Wilson] came around the back of the car he kicked the capsule with [B] in it and it rolled over twice. [B] was screaming and crying. [Mr Wilson] yelled at me saying" [sic] look what you have done" ''Don't put things in my way" He was not concerned about the distress or potential injury [B] may have sustained.
9. 18th August 2014 [Mr Wilson] had stayed over the previous night. [B] was on top of my bed as I searched through my drawer. [B] lightly knocked [Mr Wilson] on the head with his baby bottle. [Mr Wilson] woke enraged and grabbed the bottle off [B] and then repeatedly hit him on the head with it saying "see how you like it you little shit".[9]
[8]Exhibit ICL3(1).
[9]Exhibit ICL 3(1).
I have set out the reports to the police verbatim so as to illustrate the detailed and graphic nature of the allegations.
The father denied these allegations and referred to the fact that the mother brought an application for an IVO in late 2014, and in her application, she described the family violence in the relationship as follows:
The applicant and the respondent were in a relationship for approximately 2 and a half years and have a […] son together. During their r’ship the parties had a number of issues mostly relating to the money that the resp owed the appl, the resp’s critical & unsupportive behaviour towards the appl and a large volume of items the resp was storing […] at the appl’s address. The issue with the lage items being stored at the Appl’s house escalated when the neighbours became involved, asking the items be removed in order to build a fence During this time the Resp became aggressive & Abusive towards the Appl & the neighbours stating “you can’t dictate me” & “I will take you to VCAT”. Around a month ago the relationship ended the Resp has since taken out an intervention order against the Appl, with a lot of false allegations. The day after the Appl was served with the order ([…]/14) the allegations. The day after the Appl was served with the order ([…]/14) the Resp turned up at her address, walking around the property taking photos. The Appl was scared to confront the Resp, locking the doors and remained in the house. On […]/14 the Resp again turned up at the Appl’s house and was taking video footage and photographs. But this time the Resp was demanding to be let in. Yelling and banging on the doors and windows, trying to get in. The Appl was so frightened that she called the police. On police arrival theResp was accusing the Appl of damaging his belongings. Police assisted in the removal of some of the Resp’s personal belongings, which included some anti-psychotic medication, the Appl was not aware that the Resp was taking this. The appl is seeking an order as she feels the Resp is erratic, unpredictable and as she lives alone she fears for her safety & the safety of her son, not knowing when the Resp will turn up next.
The father submitted that the IVO proceedings were her opportunity to put all allegations of family violence before a court, and he asks the court to draw an inference from the fact that she did not put any of the allegations she has raised before this court.
In her trial affidavit, she refers to violence post separation, including an incident on 22 September 2014, in which the mother claims that the father attempted to forcefully enter her home, shouting derogatory remarks and making violent threats such as "let me in you bitch," "I'm coming for [B]," and "you're gonna pay big time." During this incident, the father allegedly used a crowbar to try and break windows and doors, causing property damage.
The following day, on 23 September, 2014, the mother alleges that she experienced another incident involving her car, which she suspects the father orchestrated. While driving with the child, her car suddenly exploded after a short distance. She described a loud grinding sound, a burning smell, and a significant oil leak, resulting in the car's complete failure. The mother and the child were unharmed, but the incident left them stranded and required significant expenses to replace the car.
ISSUES IN DISPUTE
Issues in dispute:
(1)Whether the father perpetrated family violence against B;
(2)Whether the father perpetrated family violence against the mother;
(3)Whether B's fear of his father is genuine such that spending time with the father would cause psychological harm;
(4)Whether B is at an unacceptable risk in the father's care and if so, can the risk be ameliorated; and
(5)Whether the mother should retain sole parental responsibility.
EVIDENCE
The Mother’s Evidence
The mother relied upon the filed application and affidavit evidence noted in [8] above. The mother's case focused on the mother's concern that B is at risk in the father's care based on his disclosures following spend time arrangements in late 2015 - 2016.

She believes B was exposed to trauma and his psychologist has diagnosed him with Complex PTSD, which he is still engaged in therapy to manage. The evidence of his psychologist is that he is doing extremely well, and if no time is ordered, he is ready to cease therapy.
She gave evidence that B frequently returned from time with his father with injuries, such as bruising, welts and she claims at one point he had what she believed to be a dislocated hip, although under cross-examination she accepted, when presented with medical evidence, that B's hip had nothing to do with any injury or physical trauma. The mother believed that these injuries were not accidental, and she is concerned about B's safety in the father's care. She annexes a number of photos of injuries to B to her trial affidavit at MJ-3, MJ-8, MJ-19, MJ-20, which include a number of red marks, scrapes and bruises.
The mother conceded that at the time, she did not seek medical assistance for any injuries (other than the hip discussed below) and did not raise her concerns with the father. The alleged abuse was subsequently reported after a number of professional services became involved following B's disclosures.
A significant portion of the father's cross-examination of the mother was directed to the allegation that the mother was incorrectly telling professionals that the father had caused B's hip injury where there was medical evidence showing this to be false.
Notes were tendered from the V Hospital, where the mother took B in mid-2015, and she reported that following B's spend time with the father, B was unsettled, would not walk, would not allow himself to be touched, and started walking with a limp and an out turned leg. He was x-rayed and examined and the mother was informed that the pain was most likely caused by an "irritable hip" with no signs of injury.
The hospital notes indicate that the mother became increasingly upset and wanted the doctor for "proof so that he doesn't have to see his father again." She is reported to have become more upset and state "this is why babies come in dead".
Under cross-examination, the mother gave evidence that she had received earlier medical advice that there may have been a fracture which was causing B's distress. Later advice said this was not the case and there was no sign of an injury. The mother at trial accepted that the cause of B's discomfort was an irritable hip, and not due to any injury.
The father submits that the mother's credibility should be called into question, referring to her propensity to lie and mislead, as evidenced by what he submits are her untrue statements about family violence allegations being before the court in the previous proceedings, when the judgment indicated that family violence was not an element of the trial. The father also referred to reports in which the mother had complained that B's hip injury was the result of abuse by the father, whereas the medical evidence indicated that it was the result of an "irritable hip" with no evidence of a traumatic injury. Despite the mother being told that there was no traumatic injury, she proceeded to tell professionals that the injury was a result of abuse by the father.
It was submitted that the court cannot rely on the mother's evidence due to her unreliability, pointing out inconsistencies and omissions in her accounts. The father highlighted that the mother did not disclose the alleged assault causing the premature birth of B during her interactions with medical staff with social workers at the hospital where she gave birth.
The Mother’s Evidence regarding B's Disclosures and Psychological Treatment
Whether the father is found to have harmed B or not, a central issue in this proceeding is B's belief that the father has abused him, and whether B maintains a genuine fear of the father.
B has disclosed to the mother, the maternal family and various other professionals that he was strangled by the father and "thought [he] was going to die".
The mother sets out several instances in her trial affidavit including:
138.In the months from August through to October 2016 [B] continued to return following time spent with his Father with more red marks on his body. On the 1st August 2016 after spending time with his father, [B] returned with a sizeable patch of red welted skin, with a series of 5 to 6 puncture wounds on his left shoulder and back, there was also grazing down the left side of his body. [B] did not want to be touched and was very sensitive in that area. [B] said in the bath "it hurts"," he hurt me" "the bad man". I asked "what happened? ". [B] said "he hurt me .... on the ground', "he angry", "he yelling".
139. On 28 September 2016 when I was driving [B] home from the handover, [B] said in a loud voice "naughty boy in room" "naughty boy tied up". [B] then hit himself on the arm and leg and started yelling "take that naughty boy''. [B] began crying and said"/ cried for you, you not there". Later that evening when I was bathing [B] I noticed red marks on both [B's] ankles.
140. On the 3rd October 2016 as I was bathing [B] that night, I noticed a red mark on [B's] back between his shoulder blades. This abrasion was similar to those I had seen on his back after access visits earlier in the year.
141. On the 5 October 2016 as I was putting [B] in my car at the return handover, [B] was very distressed and crying. He said "he grabbed me here". [B] then placed his hands around his neck. He then said "he shake me, I scared mummy''. I could see light red marks on his neck.
The Family Report Writer noted the following during her interview with B conducted on 11 September 2020:
[B] volunteered again that he “used to have a bad Dad” who would hurt [B]. He said that his Dad wants to hurt him and that he once tried to kill [B] by trying to choke him, and [B] demonstrated by putting his hands around his neck. [B] continued playing and exploring the room during this conversation and seemed serious, but not distressed. The Family Consultant expressed sympathy and asked [B] if he remembers these events. He said that he does not remember them, but that his mother said so.[10]
[10]Report of Ms R dated 1 October 2020 at [82].
The mother states that B had significant behavioural issues which she believes were caused by the trauma, which were especially problematic when he started school. She notes he is in the Specialist Stream of a public school, and has recently begun taking part in some mainstream classes, and is doing well.
The mother gives unchallenged evidence that B is currently doing well, currently in Year Four, attending school full-time and is making positive progress. He has been integrated into a mainstream class a few times a week and has shown improvement in various areas of learning. B was elected as a Student Representative Council member and has received awards in sports’ events. He has a supportive group of friends and has made strides in self-regulation and coping in social situations. B attends therapy sessions, to develop fine motor skills and emotional/behavioural regulation. He also receives physiotherapy and other therapy on a regular basis. B faces challenges during night-time, feeling vulnerable and unsafe, experiencing disturbed sleep, nightmares and emotional distress. His therapy aims to address these issues and help him achieve better quality sleep and increased independence. However, there are still instances when B can be triggered to a flight or fight response, leading to self‑loathing and suicidal thoughts.
The mother gives evidence that parenting B is difficult due to his special needs, and she believes B seeing his father is likely to cause some level of regression in his behavioural issues. She also states that due to her experience with family violence perpetrated by the father, the father spending time with B would cause her significant stress which may impact on her parenting capacity. She relies on the evidence of her psychologist that she has been diagnosed with complex PTSD and spend time orders would have a detrimental impact on her, as discussed below.
Evidence of the Mother’s Family
Mr O, the father of the mother, gave evidence by his affidavit filed 15 February 2022. He was also cross-examined. By his affidavit he gives evidence of his observations of the father prior to separation. The substance of that evidence is he regarded the father as lazy and not particularly attentive towards his newborn son. He also gave evidence that the father failed to offer support around the house or financial and emotional support for the mother. Mr O also gave evidence of his observations of the father post-separation. In particular, he gave evidence of his observations of the father’s behaviour around changeovers for the access visits that occurred between the father and B between 21 November 2014 and 14 July 2015. He observed that the father was regularly late to collect or return the child. He describes in very critical terms the father’s behaviour both towards him and the child and the mother.
These matters pre-date the final hearing conducted by Justice Cronin and I will not dwell on these matters in any detail as they were dealt with by Justice Cronin who made orders giving the mother sole parental responsibility for the child and allowed the mother to relocate to live in New South Wales.
In relation to matters arising after the mother relocated to New South Wales, the grandfather gave evidence that the father was frequently late for the arranged visits when the occurred in New South Wales. He gives evidence at [50] of his affidavit in relation to events on 6 April 2016 where he states:
After picking up [B] from access, we soon realized that he was in a state of great distress. On the way home in the car, he was sobbing profusely, and in between tears said “he hit me”, “the bad man”, and “he’s yelling”. [Ms Jeans] checked his body on return to our accommodation, but found no extra visual marks on his skin, from those observed the previous day.
The father at [54] gives evidence to the effect that he has spent a lot of time with his grandson since they moved to New South Wales and that the child “would often refer back to his unhappy experiences of spending time with his father whilst living in Melbourne.”
Mr O gives evidence that he accompanied the mother to changeovers, and observed B was frequently returned "in a stressed emotional state". He states he was often returned in a poor state without explanation, including being wet, in dirty nappies, covered in vomit, and with visible injuries.
He gives evidence of the father being abusive during changeovers. He details at [29] of his affidavit:
[Ms Jeans], [B], […] and I arrived at McDonalds Restaurant in [Suburb X] to find [Mr Wilson] and his son [E] waiting for our arrival. In an attempt to be friendly, I spoke to [E] by saying “Hello! How are you [E]?”. This prompted a violent outburst from [Mr Wilson] who yelled “Don’t you dare speak to my son. He is not a member of your family!” …
He gives evidence similar to the maternal aunt that B made disclosures to him about “the bad man”, and “he hit me”, etc. On one occasion, he says B said “he grabbed my neck, he did this”, and then demonstrated a choking motion around his neck. He describes that B would frequently make disclosures to him like:
“my father hurts me”, “he hits me”, and “I know a bad man. He hits me and does this – he puts his hands around his neck – that man is my father. He made so many disclosures about painful experiences suffered at the hands of his father, that it has not been practical to record them all.
Mr O through his affidavit from [56] – [63] sets out his account of disclosures said to have been made by B in relation to the father’s treatment of B. In the course of giving evidence before the court, Mr O disclosed that he had in fact encouraged the child to refer to him as dad and he was genuinely oblivious to the confusion that this might cause to the child.
Mr O gave a strong impression of being entirely aligned with his daughter and entirely negative towards the father. He was quite passionate in his denunciation of the father and quite understandably he was particularly outraged by allegations that had been made in the previous proceedings by the father in relation to giving the very young baby alcohol which he denied and which was found to be without basis by Justice Cronin. Mr O’s obvious and profound dislike of the father is clear and it is apparent that he is of the opinion that the child should spend no time with the father and should not have spent any time with the father from the date of separation.
Ms N who is the maternal aunt of the mother and great aunt of B gave evidence in relation to her observations of the child spending time with the father following B’s move to New South Wales in September 2015 when B was about two years of age. Ms N give evidence of what she regarded as the father’s lack of respect and punctuality for collecting and returning B to his mother and signs of B appearing tired and emotionally dysregulated after spending time with the father. He alleges that at one of the changeovers she witnessed the father being verbally abusive and using threatening comments towards the mother including a threat to the effect “I’ll make sure your life is not worth living” and that “you should watch your back”.
At [21] and [22] she gives evidence that she saw the father physically throw the child “like a sack of potatoes to his mother” on a number of occasions on returning the child to the mother and on 23 November 2015 the father is alleged to have said to the child words to the effect of “go back to your skanky ho mother”. She gives evidence of what she saw as a fraught relationship between the mother and the father at [55] following gives evidence that the child returned from access visits distressed (referring to the visit on 29 March 2016).
At [56] Ms N states (regarding 29 March 2016:
Later when [B] was in the bath [Ms Jeans] called me in and showed me the same type of injuries on [B’s] lower back which we had seen on the previous two access visits. I observed a series of four round symmetrical shaped wounds which looked like burns. We agreed they looked the same as the injuries we both saw in January and February.
She also gives evidence in relation to the visit on 26 July 2016 that B returned from time with his father with what she said were grazes on the left side of the child’s body and his upper leg. She says she pointed to the marks and “I said to [B] ‘this looks sore, how did that happen?’ [B] replied ‘the bad man hurt me’ I then comforted [B] and distracted him”.
Ms N also gives evidence of disclosures B made to her of the father's alleged violence, including from [32] of her affidavit:
[32]I recall another occasion when [B] was helping me in the garden; he picked up a stick and began hitting trees and shrubs. I said “why are you doing that?” [B] replied, “when dad gets angry, he hits me with a stick”.
[33] On another occasion during a school holiday visit late in September 2020 [B] and I were in the garden and he told me he had been harming himself. I asked him “why is that?” and he said “it’s to stop the thoughts in my head that I will have to see my father again”. I then said to him, “Would that be so bad?”, [B] replied “yes he might kill me”.
She describes another incident on 16 February 2016 at [51]:
Immediately after the access visit [Ms Jeans] and [B] returned to my house. [Ms Jeans] said words to the effect "I've noticed marks on [B's] back as I was putting him into the car seat." [Ms Jeans] then proceeded to lift up [B's] shirt and showed me the marks. I observed 3 symmetrical burn like red marks on [B's] lower back. As a [health professional], I tried to examine the marks more closely but [B] started to cry and said words to the effect "the bad man hurt me… I cry". This was an extremely emotional moment to hear those words coming from such a little person.
Ms N gives evidence at [2] of her affidavit that she had multiple tertiary qualifications. She states that she currently works part-time as a health professional and at the time of the access visits she worked part-time. She did not give evidence that she reported what she believed to be deliberate burn marks on the child to any third party notwithstanding her background and access to medical practitioners. I also have difficulties accepting that the father would openly threaten the mother in front of other people when he was aware that he was being scrutinised and subject to intervention orders. The father has denied mistreating the child or making the statements attributed to him by Ms N.
One issue in this proceeding was that the grandfather gave evidence that B frequently calls the grandfather "dad". The mother acknowledges this is problematic and has attempted to discourage this and agrees to an order that she discourage B to the best of her ability from calling the grandfather "dad".
The Father’s Evidence
The father relied on documents outlined in [9] above. The father disputes that he ever harmed B and states that B is not afraid of him. He gives evidence that he played a significant role in caring for B prior to separation and that they had a close relationship.
The father referred to the fact that the mother brought an application for an IVO in November 2014, and in her application, she described the family violence in the relationship as outlined in [36] above where there is no reference to the very serious assaults that were subsequently raised in the report to the police.
The father submitted that the IVO proceedings were her opportunity to put all allegations of family violence before a court and he asks the court to draw an inference from the fact that she did not put any of the allegations she has raised before this court.
The father also made allegations against the mother alleging she was violent.
The father disputes the mother's evidence that B was uncomfortable or distressed during changeovers. He says B would often run to him.
The father criticises the mother for not facilitating time according to the orders and making things difficult to spend time with B. He refers to her not agreeing to the dates he proposed, booking flights for dates on which he could not travel without consulting him and not facilitating time on dates that she did not agree with when he had travelled up to NSW to spend time.
The father gives evidence that facilitating time was difficult because he wanted his time with B to coincide with the time he had E under his care in order for the half-brothers to spend time together.
In regard to not spending time since 2016, the father notes that he had interim orders for supervised time since 16 May 2017, but he was unable to facilitate this time for a number of reasons. He gives evidence that he was investigated by the police for domestic violence and supervision services would not facilitate time while there were ongoing investigations. He gives evidence that he proposed alternative supervision services, but received no response from the mother to his proposals. He also notes that Covid impacted the capacity to facilitate time, particularly given the border closure preventing him from travelling to NSW.
Involvement of Child Protection
There has been extensive child protection involvement with this family. A number of Child Protection reports were tendered into evidence. These reports show that numerous complaints were made by a number of professionals and the mother, but that Child Protection found:
While [B's] (3 yrs) behaviours are concerning there is no evidence the father has been abusive towards [B]. While there is a significant history of DV the mother is no longer in a relationship with the father. It is also unclear how much of [B's] behaviours have been present since he was born. No PRF can be identified and other matters relate to FLC issues. [11]
…
Given no clear impact of harm has been demonstrated in relation to [B] and given the mother is continuing to work with services, it is assessed that the information provided in the report does not suggest that [B] is at a level of risk that warrants DHHS intervention at this time. [12]
[11]Exhibit ICL 1 Contact Records from Family & Community Services, Tender Bundle, pages 45 – 49
[12]Exhibit R 4, DHHS Intake Report dated 10 November 2017, Tender Bundle, pages 156 – 157.

In the report of NSW Communities & Justice Helpline Assessment dated late 2016, the Report Writer states that B's disclosure that "daddy did this" relating to a scab on his arm seemed improbable given B had not seen the father for a long period of time and it was not likely he still had an injury from the contact with the father. [13]
[13]Exhibit ICL 8, Report from the Department of Justice & Community, NSW dated 30 November 2011, Tender Bundle page 395.
Evidence of the Child’s Psychologist
B is seeing a psychologist, Ms Q, who has provided two reports in this matter, and was cross‑examined. She began seeing B in December 2016. At the time of the referral, she reports B was displaying aggressive behaviours, self-harming behaviours and separation anxiety. She diagnosed B with complex PTSD and she continues providing therapy.
Under cross-examination, she gave evidence that she believed B's disclosures were true based on the fact that they were consistent over several years and were almost always unsolicited. She also gave evidence that he displays signs of trauma consistent with his disclosures.
Ms Q notes in her report that B continues to present with PTSD, although he has improved significantly since her earlier reports of 22 February 2020 and 20 March 2022. She describes from [26] that he:
… continues to struggle significantly at nighttime, and it is evident that he continues to have nightmares about being physically hurt by his father. This would have a significant impact on his quality of sleep. …
[B's] current counselling plan is undertaking a small piece of intensive work to try and help [B], and his nervous system, feel safe when he is asleep at night. This will also hopefully reduce the ongoing PTSD symptoms of his nightmares. Additionally, [B's] current counselling plan is "holding him" whilst the FLC proceedings are occurring….
[B] continues to show fear and trauma-based behaviours in relation to his father and continues to be consistent in his disclosures of the physical abuse and assault by his father.
Despite the significant gains [B] has made, his trauma recovery and his overall development will continue to be limited until he has some clear and final knowledge of whether he will have to have contact with his birthfather. [B's] trauma therapy cannot be completed and hence a resolution of PTSD symptoms, until [B] himself has trust and safety in the knowledge that he is safe from his father. For [B], this means knowing that his father cannot find or see him.
Evidence of the Mother's Psychologist
The mother attends upon a psychologist for trauma counselling, Ms P, who prepared a report for these proceedings filed 15 February 2022. This report sets out the history of the relationship between the parties, as told by the mother. In this history, Ms P states that six months into the relationship, the mother "became aware of his manipulative, jealous and controlling behaviours and sought to get out of the relationship. Several months later she discovered she was pregnant despite being on the contraceptive pill and using condoms".
Ms P reports that the mother told her, "during the pregnancy [Mr Wilson] was violent and [B] was born […] premature following one of these assaults on her", and that "when [B] was a baby, [Mr Wilson] was physically abusive towards him including shaking him across a room".
During cross-examination, Ms P was asked about her notes from her sessions with the mother, in particular what the mother told her relating to the family violence allegations relating to herself and B. Ms P gave evidence that the mother detailed in her second session that the father had thrown B around as a baby, that an assault while she was pregnant caused the premature birth of B, and that he had attacked her on numerous occasions, including holding her to the ground and pinning her with his weight, and hitting her with a pole.
Ms P was asked about the fact that the mother did not disclose these incidents during the previous hearing in 2015, nor during the IVO proceedings, and she acknowledged that this was surprising to her, but it did not make her doubt the mother's account based on corroborating evidence like the child's issues surrounding spend time arrangements with the father.
Ms P diagnosed the mother with Complex PTSD. She gave evidence that if orders were made for B to spend time with the father, it would impact the mother and she would be highly anxious. She was asked whether her assessment of the mother's prognosis would change if the court found the family violence allegations were false or exaggerated, and she stated it was likely this would improve her prognosis because she would have less trauma to work through. However, she gave the opinion that she did not believe the mother's reports were false based on her assessments. She stated the mother gave consistent accounts, and her emotions were consistent with having experienced trauma.
The Family Report of Ms R
Ms R prepared a Family Report in this matter dated 1 October 2020, and she was cross‑examined. In her interview with the mother at [50], she summarises the mother's concerns about if B spent time with the father:
50.Regarding her proposal for [B] to spend no time with [Mr Wilson], [Ms Jeans] said that she would be concerned that even supervised time would be distressing for [B], and revive some of his past memories (as she described) of trauma. She said that she would always be worried about [B] while he is with his father. When asked about the possibility of indirect contact, such as cards and missives on special occasions, [Ms Jeans] said she would be guided about this by [B’s] treating professionals.
51. [Ms Jeans] reported that, after [B’s] appointment with the Family Consultant (see below), [B] was distressed for several days and that [Ms Jeans] was obliged to marshal extra support from his family doctor, paediatrician and psychologist. [Ms Jeans] reported that [B] had been making comments about wanting to die or run in front of a car. She said that she was advised to maintain his normal routines and to acknowledge [B’s] emotions.
In her interview with the father, she records:
56. He believes that [B] is being raised and coached to hate his father. …
57.[Mr Wilson] described his previous relationship with [B] as a positive one. He said that [B] would run to him at changeover and ask where [E] was. He said that [B] would then ask [Mr Wilson] to carry him to wherever they were going…
60.[Mr Wilson] perceives that he has been maligned to the Court, and to [B], by [Ms Jeans'] allegations. He expressed incredulity that she had continued to claim that [B] sustained a broken hip while spending time with him, saying that [B] was assessed by a paediatrician and no such injury was found….
She also notes that the father raised allegations of the mother being abusive towards him.
Ms R summarises her interview with B from [76] - [88], including that:
[81] … he does not have a dad because "he is a bad man". …
[82] [B] volunteered again that he "used to have a bad dad" who would hurt him. He said that his dad wants to hurt him and that he once tried to kill [B] by trying to choke him, and [B] demonstrated by putting his own hands around his neck…
Ms R notes that "this is a difficult situation with some disturbing and concerning features". She states at [109] - [112] of her report dated 1 October 2020:
[109] If [Ms Jeans'] account is true then [Mr Wilson] could be considered a dangerous person to be caring for a child and it is unlikely to be in [B's] interests to continue this relationship. If [Mr Wilson's] account is true, [Ms Jeans] could be considered as behaving in an emotionally harmful way and [B] could also be considered at risk if he continues to only be exposed to the narrative of one parent, namely his mother.
[111] [B's] comments about his father were concerning in that he seems to believe [Mr Wilson] is actively looking for him with a murderous intent, which would be very frightening for a young child. It was noteworthy, however, that [B] did not seem to make these comments with a congruent fearful affect, but rather seemed quite chirpy and accustomed to making such comments. Even his reaction of momentarily backing into a corner seemed fleeting and quickly recovered.
[112] This is not suggesting that [B's] responses are inauthentic and it is not the Family Consultant's role to determine whether or not [B's] relations are responses to actual events. It is more a comment on the impression of a practised aspect to [B's] presentation, as if [B] perceives others as expecting him to respond in a certain way.
Recommendations of the Report Writer
The Report Writer recommended that if the applicant’s claims about the respondent were found to be true, that there by no orders for the child to spend time with the father and that the child only have indirect contact with the father. She further recommended that if time between the child and the father does take place, then this should initially be at a contact centre in NSW, fortnightly or monthly. If that time then goes well, she recommended that consideration be given for unsupervised time with changeover continuing to occur at a contact centre. Ms R also recommended that if time between the child and the father takes place that the applicant seek professional support and input to assist her in supporting these arrangements. She recommended that the applicant take steps so that the child can spend time with his half-brother E. Finally, her recommendation was for the applicant to have sole parental responsibility unless decision-making in relation to B is found to be problematic and then some aspects of parental responsibility could be shared with the father.
Under cross-examination, Ms R modified her recommendations on the basis that the report was almost three years old. In court, Ms R gave evidence that given B has not spent time with his father since October 2016, she would change her recommendations to consider orders for a no time arrangement. She noted that it was not necessarily her primary recommendation, but given that B is now 10 years of age, still in therapy, and that the evidence of his school and his psychologist shows he is settled, she voiced concerns that re-introducing the father at this point in B's life could have significant negative impacts. She acknowledged that there is benefit to B having a relationship with both parents, and there needs to be consideration of the pros and cons of any arrangement, which is a matter for the court.
When asked, she gave evidence that she would support a period of indirect contact such as letters and photos for around a month, before introducing direct time. She believed this would assist B to adjust to the arrangements.
SUBMISSIONS
The counsel for the ICL made submissions that there were three central issues in this case, being:
(1)Has the father abused B and therefore poses a risk?
(2)Has the father committed family violence, and if so, does it pose a risk to B?
(3)What would be the impact on B if time is ordered, given his belief that the father abused him?
In regard to the first issue of whether the father abused B, the ICL argues that the court cannot be satisfied that the father harmed B. They point out that B did not display fear during assessments conducted shortly after the alleged incidents. Additionally, an interview indicated that B was not afraid when the father was mentioned. The ICL also questions the credibility of some of the allegations, such as a scab on B's arm attributed to the father, which was assessed at the time by the Department as not probable given the age of the wound in comparison with when he had last seen his father. The ICL highlights that the mother's family unquestioningly believes everything B says, despite what they submit are inconsistencies and exaggerations. They argue that B's narrative has changed significantly over time and may have been influenced by the mother's family and psychologist.
The ICL further raises concerns about the mother's credibility and inconsistencies in her disclosures and evidence. They highlight instances where the mother embellished facts to suit her narrative, such as an incident involving the father kicking the baby capsule. The ICL emphasizes the lack of communication between the parents and the mother's immediate assumption that the father is responsible for any injuries B sustains.
Although the father denies harming B, the ICL acknowledges that he provided no explanation or context for the alleged incidents, leaving questions about his parenting style. The ICL suggests that if the court orders time, any time between B and the father should be supervised and limited to four times per year.
In regard to the second issue of whether the father committed family violence against the mother, the mother argues that family violence does not affect the outcome of the trial, but the ICL asserts that it is a significant issue. The ICL refers to evidence regarding the mother's allegations of family violence, including instances of physical abuse and verbal threats by the father. They question the father's lack of acceptance or acknowledgment of any violence, suggesting it demonstrates a lack of insight.
The ICL notes the findings of a previous judgment that the mother was not violent and highlights the father's contradictory claims. She expressed concerns about the father's lack of credibility and truthfulness, as well as his blame-shifting behaviour. The ICL suggests that the father's willingness to participate in men's behavioural change programs despite believing he has not committed any violence nor has any behaviour that requires change may be tokenistic and unlikely to be effective without his acknowledging his behaviour.
In relation to the impact on B if time were introduced in circumstances where B believes the father abused him, the ICL submits that there would be psychological trauma if B were reintroduced to the father. She references the opinions of professionals who express concerns about the impact on B, especially considering the time that has elapsed since the alleged incidents. The ICL acknowledges that the benefit of the father-child relationship may outweigh the harm caused, but suggests that ongoing therapy will be necessary to address the trauma.
The ICL proposes that if the court determines there is an unacceptable risk based on a finding of family violence from the father to the mother and child, there should be no time ordered. If the court finds there is no unacceptable risk, time should be limited to four times per year under supervision. They also recommend that the mother continue therapy to assist her to cope with facilitating time in the context of her PTSD.
The ICL proposes ceasing of B's sessions with Ms Q regardless of whether the court concludes that no deliberate harm was caused and that the injuries were accidental. The ICL suggests that a new therapist may be better suited to deconstruct the trauma, whereas Ms Q appears to be reinforcing the narrative of abuse.
Counsel for the mother made submissions highlighting the child's special needs, including an NDIS assessment that indicated the child had been diagnosed with a prenatal condition and associated issues, resulting in identified behavioural difficulties. The child had been receiving treatment from various professionals, such as speech pathologists, to address these challenges. These issues made everyday things like schooling more difficult for B.
In regard to B's schooling and the progress he had made up until the end of 2022, she highlighted that B had received support from a special team and had numerous meetings regarding his behavioural issues. Over time, there had been significant improvements in his behaviour, allowing for increased inclusion in mainstream schooling. His emotional regulation remained a primary concern, but it had significantly improved according to school reports from 2022.
B's current school reports show his strong academic abilities and minimal issues raised regarding his behaviour and running away from school during the previous year. The mother's affidavit provided evidence that B now attends a mainstream class a few times per week and is doing well. She documents the issues B had initially faced in 2019 including tantrums, running away, and having issues socialising; and compares this with his progress in recent years showing he has a good friendship group, and many achievements, such as ranking in the top 10 in a sporting event.
The submissions referred to in Ms Q's reports from 2017 - 2023, highlighted that her assessment of B's behaviours indicated Complex PTSD resulting from exposure to traumatic experiences. It was emphasised that it was put to her that there should be an alternative diagnosis. In response to the father's belief that B's behaviours are due to undiagnosed Autism, Ms Q also gave her opinion that it was unlikely B had Autism, as he had been extensively assessed by medical professionals over the years, making it highly unlikely for Autism to have gone undetected. She also noted an Autism diagnosis was inconsistent with her experience of B.
The mother, through her counsel, noted the importance of the first report by Ms Q, as it provided the basis for her referral of B to trauma psychology, which was based on her observations of B during five sessions with his mother. Under cross-examination, she refuted the suggestion that her report was based primarily on the history provided by the mother, and she gave evidence her reports are primarily based on her own observations of B. She concluded that B was suffering from PTSD resulting from complex trauma. The submissions put that there was no evidence challenging this diagnosis or suggesting manipulation on the mother's part.
The mother referred to disclosures made by B to Ms Q between 2017 - 2020 of spontaneous statements about his father hurting him. Ms Q gave evidence that disclosures were genuine, and it was her expert opinion that it was highly unlikely that B had been manipulated or had false memories. She stated that the trauma experienced by B was real and related to something that had happened to him.
Regardless of the court's findings on whether the father caused these injuries, the submissions emphasised that the diagnosis of PTSD was not adequately challenged, and the father had been unable to provide any explanation for the child's behaviour or the injuries he had sustained.
Regarding the allegations of family violence made by the mother, the mother refutes the father's allegations that she never raised these issues in previous proceedings, and she referred to her previous affidavits which were tendered into evidence. It was noted that while the mother had disclosed the history of family violence in previous proceedings, she had not made detailed accounts or raised specific allegations. However, it was submitted that this is consistent with the expert literature about the behaviour and reporting of victims of family violence. No literature was specifically referred to.
In the closing submissions made on behalf of the father it was highlighted that there was no explanation as to why the child was not taken to hospital or other medical specialists in the context of serious alleged abuse, especially considering the mandatory reporting obligations known to the mother and aunt through their professions. Nor did the mother attempt to communicate with the father about these injuries. This lack of action prevented the father from being informed about the injuries and being able to respond to them at the time. The father asserted that the child himself came to him with the marks that the mother alleges were caused by him, which is consistent with previous proceedings, which included numerous mutual allegations of harm to B.

Regarding the frequency of visits, it was submitted that the Family Report Writer recommended monthly visits in her written report, while the response in the witness box suggested four visits per year. It was submitted that the dramatic change in recommendations lacked proper reasoning and thus the court should not accept it.
Counsel for the father referred to a 2017 s11F Memorandum which was tendered into evidence, in which the Family Consultant reported on her observations of the father with the child, and she expressed no surprise as she did not perceive the child to be scared of the father.
Regarding the proposals for supervised time, the father submits that if reports indicate that it is going well, there should be a progression towards unsupervised time, given the clear attitude of the court that orders for indefinite supervised time should be avoided wherever possible. If this does not happen, the father indicated he may seek further legal action to request unsupervised time. I note that at [193] of the 2015 Judgment, Cronin J expressed concern about the father’s propensity to litigate:
The father's propensity to litigate is obvious. Final orders are needed in this case to stop what occurred with [E]. Indicative of the father's approach is that he filed a contravention application in this Court even as this final hearing approached ignoring the fact that the issue could have, and should have, been included in the evidence at trial. [14]
[14]Wilson & Jeans [2015] FamCA 688.
The father contended that there is no evidence to support the mother's allegations of harm against the child, as it was not raised in the previous proceedings, and there are no substantiated reports or hospital attendances that indicated harm had occurred. He further submitted that the mother retrospectively fabricated the allegations, or at the very least, deliberately exaggerated instances of accidental harm that are typical to a child of B's age, such as scrapes and bruises from play.
Submissions on his behalf were critical of the mother for re-enforcing B's narrative that the father has abused him, rather than working to break down these beliefs. He submits that the mother and the maternal family all believed everything B has said, regardless of the lack of evidence, and have, through their dislike of the father, reinforced the narrative of abuse.
PARENTING ORDERS
Part VII of the Family Law Act 1975 (Cth) ("the Act") sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Part VII. When making an order under Part VII of the Act, the best interests of the children are the paramount consideration (s 60CA).
In determining the best interests of the children there are two primary considerations which must be taken into account. The two primary considerations are as set out in s 60CC(2). The court must consider:
(a)The benefit to the children of having a meaningful relationship with both of their parents; and
(b)The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
In addition, amendments to the Act effected by subs 60CC(2A) require that, in respect of proceedings instituted after 7 June 2012, the court is required to give greater weight to the need to protect the children from physical or psychological harm, from being subjected, or exposed, to abuse, neglect or family violence. [15]
Primary Considerations
[15]Germain & Germain [2017] FCCA 1980.
Section 60CC(2)(a)
A central issue from the mother’s perspective is whether the child would benefit from having any relationship with the father. It was the strong view of the mother and members of her family who gave evidence that the child would be better off with the father removed from his life. Whilst I do not think that it is possible for the father to now insert himself into the child’s life and spend significant and meaningful time with the child, I do find that the child would benefit from knowing who his father is and being in a position to spend time with his step‑brother.
Unacceptable Risk
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In Isles & Nelissen [2022] the Full Court adopted Justice Austin's dissenting judgement in Fitzwater & Fitzwater [2019] FamCAFC 251, which emphasised that risk assessment is a predictive exercise that involves evaluating the potential seriousness of harm in the context of the probability of its occurrence. The court stated that the higher the chance of harm, the greater the risk, and risks of harm must be considered even if they are improbable eventualities. The court also noted that a comparatively small risk of serious harm can justify action in child-related proceedings, while the virtual certainty of slight harm might not. The Full Court highlighted the need for trial judges to assess not only the potential harm but also the probability of such harm occurring. The court may conclude that an unacceptable risk exists based on an accumulation of factors, even if each individual factor is not proven on the balance of probabilities. Finally, the level of confidence in a prediction of future risk will be based on the factual findings underlying the prediction.
In relation to the consideration of unacceptable risk, the Full Court in Bielen & Kozma [2022] FedCFamC1A 221 at [51-54] held:
51. In Helbig & Rowe [2016] FamCAFC 117, the Full Court explained at [214] (citing A v A [1998] FamCA 25; (1998) FLC 92-800), that where a case is conducted on the basis of it being contended that there is an unacceptable risk of harm to a child in the care of one parent, “[t]he first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk” (Emphasis added).
52. After referring to and applying that decision, the Full Court in Keane & Keane [2021] FamCAFC 1; (2021) 62 Fam LR 190 at [84] stated: In undertaking the task of considering what steps are “proportionate to the degree of risk”, the decision of Blinko makes it clear that the mere finding that a child may be at an unacceptable risk as a result of spending time in the care of another parent does not conclude the task before the primary judge. A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent.
(Emphasis added)
53. In Summerby & Cadogen [2011] FamCAFC 205 at [95], the Full Court also noted the potential adverse impact upon a child of permanent separation from their parent and, in the context of that case, agreed with and applied the analysis of the trial judge in those proceedings to conclude that “the termination of a child’s relationship with one of her parents is a course of last resort.”
54. Given the potential consequences for a child of such a separation, careful consideration is required on the part of a trial judge before reaching a conclusion of no time and no communication. This is made clear in Blinko & Blinko [2015] FamCAFC 146 (“Blinko”) where the Full Court said at [28]: The authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to “consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard”: see for example N and S and the Separate Representative (1996) FLC 92-655 at 82,714. That extends not merely to the identification and analysis of the risk itself, but also to the imposition of conditions or other safeguards in relation to the non-resident parent.
FINDINGS ON RISK
Having considered the evidence of the father and the mother I do not find that the father has committed family violence against the mother as alleged in the Police Report that she made in 2017. I do not accept that the mother would not have raised those matters at the time of the hearing before Justice Cronin when they were reasonably recent, particularly given that she raised other allegations of family violence in order to apply for an Intervention Order. It would appear that the mother has escalated her allegations against the father in support of her resistance to orders that the father spend time with the child and used those allegations as a means to establish the basis of suspending time between the father and the child in October 2016. The mother was unable to give any sensible explanation as to why those matters had not been raised in the earlier proceeding. Further, there was no evidence from any mental health expert which might explain the failure to raise those matters in the course of the earlier hearing.
To take one example, there is no reason why, if the mother had been smashed on the head with a glass beer bottle leaving a shard of glass imbedded in her head and causing permanent scarring, she would not have reported this to the police. She was not in a permanent relationship with the father, she was not dependent on him and there is no apparent reason preventing her from reporting the matter to the police or medical practitioners. The child was still in care in the hospital at the time of the alleged incident and the mother would have access to medical staff and social workers at the hospital to report such a serious incident.
I do not accept that the father has deliberately hurt or abused the child B whilst in his care since final orders were made. Given the gravity of the allegations and the fact that the mother was a psychologist by qualification, I do not understand or accept as plausible that she would have failed to report those matters to the police or protective authorities when she alleges she first observed them if she genuinely suspected the father of abusing the child.
In relation to the evidence the maternal father and maternal aunt, I consider it most unusual that neither of these people raised the alleged threats made by the father against them and the alleged abuse of B with third parties such as the police or medical practitioners – or the father. I find that those witnesses have become aligned with the mother and regard it as something of the utmost importance that the father not spend time with the child. The antipathy between the parties and their families has played out over two proceedings and it is notable that in the earlier proceedings it was the father who was found to have made unfounded allegations against the mother and grandfather. There is no evidence that the father suffers mental illness or has a history of drug and alcohol abuse. There has been no evidence relied on in this proceeding that he is abusive towards his elder son who he says he sees regularly (that evidence was not challenged).
That said, the court has before it evidence from a treating psychologist which is to the effect that the child's behaviour indicates Complex PTSD, resulting from exposure to traumatic experiences, and that trauma had impacted on his capacity to enjoy school and led to him requiring assistance from a psychologist. The risk in this case arises from the psychological harm to the child as a result of being reintroduced to the father in an unsupervised setting which might impact on the child's wellbeing and health. I do not believe that it is likely that harm will be caused as a result of the father deliberately hurting the child in that setting but the risk arises as a result of the complex set of circumstances which have confronted this child since a very young age. The benefits of the child having a relationship in the terms sought by the father where he sees his father on a monthly basis are outweighed by the risks arising from the child not coping with that time. There is the risk identified by the mother's treating psychologist that the mother will not cope with the father spending time. It is difficult to assess that risk given that the psychologist’s views have been partly based on what I have found to be exaggerated allegations about the father’s conduct.
It is against that background that the court will make orders for supervised time for 12 months and then orders for unsupervised time, but not on an overnight basis, and that time should occur four times a year. I do not think that the circumstances of this case warrant ongoing supervised time. The impression I got from the mother, her father and the child's great aunt was that the child is living in a settled and happy environment, being well looked after and making good progress. It is not in the best interests of the child to jeopardise that situation by imposing a spend time regime which is likely to place the mother and child under stress. The orders enable the child to know who his father is and to establish the basis for forming an ongoing relationship with his father. Having some relationship with his father is in the best interests of the child.
The presumption of equal shared parental responsibility
(1)Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
(3)Further, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. I have determined that it is not in the interests of the child for the presumption to apply, in the context of the lack of cooperation between the parents and because of the lack of time that the father has spent with the child.
(4)The presumption of equal shared parental responsibility is negatived in this case by the lack of cooperation between the parents and the particular circumstances of the case whereby the mother has had sole parental responsibility for the child for most of his life. The 2015 orders provided for the mother to have sole parental responsibility and those orders should not be disturbed.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:
Issues relating to the children – their views, level of maturity, culture and relationships:
Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
Given the length of time that has passed since B spent time with his father it is difficult for the court to place weight on the child’s views. I acknowledge that the child has disclosed to his psychologist that he is afraid of his father and particularly afraid that his father will hurt him. Given the findings that I have made in relation to the risk to the child, there are significant doubts as to whether the father has hurt the child as alleged, however the fears that were reported to the psychologist have been assessed as genuine and, whether or not B has been hurt by his father, he has expressed being fearful of him. I take those matters into account in crafting the orders, in particular the orders for a period of supervised time.
Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child
The child has a close relationship with his mother and the maternal grandparents and the mother’s relatives. The child has not had any relationship with the father since late 2016.
Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant
There is nothing particular about the maturity, sex, lifestyle and background of the child and the child’s parents which are relevant.
Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander
The child is neither Aboriginal nor Torres Strait Islander.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child
The father has not spent time with the child since October 2016. This is largely because of the mother suspending the father’s time with the child in November 2016. It is not the case that the father has not wished to spend time with the child and his evidence, which I accept, is to the effect that he was seeking to arrange to spend time in accordance with earlier orders and arrangements but was prevented doing so by the decision of the mother to suspend time. Parties have had to contend with the effects of the COVID pandemic and the restrictions on travel. The father’s time with the child has also been affected by the delays in the police investigating the reports made by the mother in 2017. As late as 18 February 2021, a case management hearing before Justice Harper was adjourned as a result of the Victoria Police investigation not having been completed. The fact that the father has not spent time with the child since 2016 is not as a result of the father not caring about the child.
Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother has fulfilled her obligation to maintain the child. There is no evidence that the father has paid child support or made contributions towards the child’s maintenance.
Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs
There is no evidence before the court that either parent lacks capacity to provide for the needs of the child. There is no evidence of the father having any mental incapacity. The father has not made sufficient efforts to support his son financially but that is not as a result of incapacity.
Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents
The evidence before the court supports a finding that the mother cares deeply for her child and has exercised parental responsibilities. The father has effectively been prevented from doing this since October 2016 by virtue of the mother’s decision to suspend time and then her failure to engage with the process of arranging for supervised time.
Issues of family violence:
Sub-section (3)(j) – any family violence involving a child or a member of the child’s family
Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters
Family violence has been discussed above. Clearly from the mother’s perspective this factor looms large. As a result of the findings that I have made I do not accept that the father has committed family violence to the extent that is alleged by the mother. I think the true position in relation to family violence is as was characterised by Justice Cronin. There is obviously tension between the parties which led to separation, but I do not accept that the father has committed family violence as particularly as alleged by the mother in the 2017 Police Report.
Effect of change:
Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Orders that I make will not result in significant changes in the child’s circumstances. Given the length of time that has passed I do not believe that it is practicable or in the best interests of the child to impose orders for significant time with the father. The orders as made provide for the child to know who his father is and spend some time with his step-sibling and to know who he is.
Practical difficulty of implementation:
Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
The orders made will involve some practical difficulty given that travel by the father will have to be arranged, as will the supervised time for the initial period of the orders. Obviously the orders will require that each party cooperate in their performance. If that cooperation occurs there should not be major difficulties in the child spending time with the father.
Avoiding further proceedings:
Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
These orders which provide for limited time between the father and the child are the ones that are most likely to lead to a resumption of some time, and are least likely to lead to the institution of further proceedings. The orders proposed by the father which progress from supervised time to unsupervised and for the time to occur once per month are likely to lead to disputes between the parties and further litigation.
Other relevant matters:
Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
The ICL sought orders that the mother be at liberty to contact E’s mother to arrange for B to spend time with his half-brother so as to foster a relationship between them when they had previously spent time together. I have doubts whether an order in those terms is required.

I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McNab.
Associate:
Dated: 15 August 2023

File number(s):	MLC 8543 of 2014
Judgment of:	MCNAB J
Date of judgment:	15 August 2023
Catchwords:	FAMILY LAW – PARENTING – Where the father has not spent time with the child for about seven years – Where there were previous final orders made in 2015 – Where the mother has made allegations of family violence and child abuse – Where those claims are not substantial – Question of whether the father spending time with the child is in the best interests of the child – Where the child has special needs and developmental issues – Judgment made for limited supervised time moving to limited unsupervised time.
Legislation:	Family Law Act 1975 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	Bielen & Kozma [2022] FedCFamC1A 221 Fitzwater & Fitzwater [2019] FamCAFC 251 Germain & Germain [2017] FCCA 1980 Isles & Nelissen [2022] Wilson & Jeans [2015] FamCA 688
Division:	Division 1 First Instance
Number of paragraphs:	137
Date of hearing:	8 – 11 May 2023
Place:	Melbourne
Counsel for the Applicant:	Ms Abelraheem
Solicitor for the Applicant:	McLachlan Thorpe Partners
Counsel for the Respondent	Ms Teicher
Solicitor for the Respondent	Pentana Stanton Lawyers
Counsel for the Independent Children’s Lawyer	Ms Villella
Solicitor for the Independent Children’s Lawyer	Legal Aid NSW

MLC 8543 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS JEANS Applicant
AND:	MR WILSON Respondent

ORDER MADE BY:	MCNAB J
DATE OF ORDER:	15 AUGUST 2023