Briginshaw v Briginshaw

1. For the purpose of exercising his sole parental and decision making responsibility the Father must inform the Mother in writing of the decision he has made within seven days of making that decision.
2. The child live with the Father.
3. The child shall spend time with the Paternal Grandmother at all times as agreed between the Father and the Paternal Grandmother.
4. The child shall spend time with the Maternal Grandmother at all times as agreed between the Father and the Maternal Grandmother.
5. The child spend supervised time with the Mother as agreed between the Father and Mother, but failing agreement as follows:

(a) At B Contact Centre ("Contact Centre") at least once per fortnight for two (2) hours; and

(b) That the Mother will pay all costs associated with the Contact Centre.

1. The Mother undergo hair follicle testing at an accredited testing centre to detect any illicit substances or non-prescription medication on the following dates:

(a) 3 March 2026;

(b) 3 June 2026;

(c) 3 September 2026;

(d) 3 December 2026;

(e) 3 March 2027;

(f) 3 June 2027;

(g) 3 September 2027; and

(h) 3 December 2027.

1. The Mother shall bear the costs of the hair follicle testing.
2. The Mother shall supply a copy of the hair follicle test results to the father.
3. If there is a failure by the Mother to complete the hair follicle testing within forty-eight (48) hours of the required date in Order 7, such test shall be deemed to be a positive result and the Mother shall be deemed to have failed that test.
4. Should the Mother test positive for any illicit substances or non-prescription medication then she shall be excused from the remainder of the schedule of testing in Order 7 herein and time will remain in accordance with Order 6 herein.
5. If the Mother completes the schedule of testing contained in Order 7 and all results are negative (i.e. the results are clear), then time shall proceed unsupervised, as agreed between the parties, but failing agreement as follows:

(a) Each alternate Saturday for three (3) hours for three (3) months;

(b) Then each alternate Saturday for four (4) hours for three (3) months;

(c) Then each alternate Saturday from 9.00am until 5.00pm for three (3) months; and

(d) Then each alternate weekend from 9.00am Saturday until 4.00pm Sunday.

1. The Mother shall not consume alcohol or use non-prescribed drugs for at least 24 hours before or during any time spent with the child.
2. Once the Mother commences spending unsupervised time with the child (and until the child turns 18), the Father is at liberty to request the Mother undergo hair follicle testing and the same terms as Orders 7 to 9 herein apply, save that the Father may only request two (2) hair follicle tests per year and such tests shall be at least three (3) months apart.

1. On Christmas Day 2025, the Mother shall spend time with the child from 10.00am until 2.00pm with such time to be supervised by Ms D.

1. Once the Mother's time with the child is unsupervised, for the purposes of changeover, the Mother shall collect the child from the Father's residence at the commencement of time and the Father shall collect the child from the Mother's residence at the conclusion of time.

(a) By telephone or video call twice per week, on days agreed between the parents through the parenting application, and in the absence of agreement, on Tuesday and Thursday;

(b) Between 5.00pm and 6.00pm, for a duration of up to 20 minutes per call (or such longer duration as the child wishes); and

(c) At any other times agreed between the parents through the parenting application.

1. The Mother must engage with a counsellor for a period of no less than two years from the making of these orders to assist the Mother with developing the necessary skills and strategies to prevent relapse on a long-term basis and to assist the Mother with developing coping strategies to manage her mental health concerns.
2. The Father must engage with a counsellor for no less than one year from the making of these Orders and must follow all reasonable directions of his treating clinicians including but not limited to the frequency of appointments to discuss strategies to assist with his understanding and meeting the child's needs in the context of the complex family dynamics.
3. The Mother and Father will each bear their own costs for their respective counsellors.
4. The Father will engage and retain a psychologist, to provide therapeutic support for the child (as needed), at the Father's expense.
5. The Father is to facilitate the child's attendance and his own attendance (if the Father is required to attend) on the psychologist at all times as recommended by the psychologist, for a period of not less than 12 months, at the father's expense.

1. For the purpose of section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), the child is permitted to hold Australian Travel Documents including an Australian passport.
2. The Father is authorised, by these Orders, to make an application for a passport, or renewal of a passport, for the child and this Order stands as an authority for the Australian Passport Office to issue a passport to the child on the basis of any application/s made solely by the Father.
3. In the event the child travels internationally with the Father, the Father is to provide the Mother with notice of the travel including the date of departure and date of return.
4. The Mother, her servants and/or agents be, and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia until such time that the Mother is spending unsupervised time with the child in accordance with Order 12 herein.
5. Upon the Mother commencing to spend time with the child unsupervised in accordance with Order 12 herein, the Mother is at liberty to remove the child from the Commonwealth of Australia at any time with the agreement of the Father in writing.
6. It is requested that the Australian Federal Police give effect to Order 26 by placing the name of the child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist until the Court orders its removal.
7. Despite Orders 27 and 28 herein, pursuant to s 65Y of the Family Law Act 1975 (Cth), the Father is at liberty to remove the child from the Commonwealth of Australia at any time with no restriction and without the consent of the Mother.
8. That the child's passport is to be retained by the Father.

1. Pursuant to section 68B of the Family Law Act 1975 (Cth), the Mother is restrained and an injunction issue preventing her:

(a) Having any contact with the child, including but not limited to telephone, or by applications, email, messenger service, or letters, other than in accordance with these Orders;

(b) Entering or being within 250 metres of the child's school/s, after school care or extra-curricular activity venues that the child attends;

(c) Removing the child from his school/s, after school care and extra-curricular activity venues that the child attends;

(d) Contacting or sending information to the child's extra-curricular activity providers;

(e) Causing any third parties to do any of the above on her behalf.

1. Pursuant to section 68B of the Family Law Act 1975 (Cth), the Mother is restrained and an injunction issue preventing her from attending or entering any of the following, herself or through any third party:

(a) The Paternal Grandmother's or Father's home;

(b) The Paternal Grandmother's or Father's place of employment;

(c) The Paternal Grandmother's or Father's partner's place of employment; and

(d) The clinic/rooms of any professional engaged in the therapeutic treatment and/or support of the child, unless the practitioner provides his/her consent in writing.

1. Pursuant to section 68B of the Family Law Act 1975 (Cth), the Mother is restrained and an injunction issued preventing her from approaching or following the Paternal Grandmother or Father or causing any third parties to do any of these things on her behalf.
2. The following exceptions apply to the injunctions referred to in Orders 31 and 32:

(a) To effect changeover between the parents;

(b) For the Mother to spend time with the child.

1. All parties are restrained from allowing the child to come into contact with Mr C.

1. The parents are to communicate with each other by way of a parenting app as agreed and failing agreement 'AppClose', unless in the case of an emergency when a phone call is to be made.
2. Each party is to keep the other informed of their current telephone contact number, email address and residential address and advise the other within twenty-four (24) hours of any change to these details.
3. The father shall inform the Mother as soon as reasonably practicable in the event of an emergency, serious illness or attendance at hospital by the child.

1. Pursuant to section 114Q of the Family Law Act 1975 (Cth), leave is granted to the Father to provide a copy of these Orders and Reasons for Judgment to:

(a) Any school, education institution, or care provider for the child;

(b) Any treating medical practitioner, hospital, or health care professional for the child; and

(c) Any government department or instrumentality

That may seek or require to hold a copy of these Orders for the purpose of discharging any duties, legislative or policy requirements on the condition that these Orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian Privacy Principles as set out in Schedule 1 of the Privacy Act 1988 (Cth).

1. The Paternal Grandmother or Father supply copies of the child's school reports; school photographs; award; and other relevant educational materials to the Mother.
2. During the time the child is with either parent, that parent shall:

(a) Respect the privacy of the other parent and not question the child about the personal life of the other parent;

(b) Speak of the other parent respectfully; and

(c) Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

These reasons were delivered Ex Tempore on 3 December 2025 and have been settled and corrected for grammatical errors and in order to convey the precise intention of the Court.

1. The Applicant Father in this case is Mr Geeta. The Father was born in 1997. The Respondent in the proceedings is the mother, Ms Felim. The mother was born in 1995. The First Intervener in the case is the Paternal Grandmother, Ms Juni. The Second Intervener is Ms Norling. Ms Norling is the Maternal Grandmother. Mr Duplock of Counsel has appeared at this trial on behalf of the Father. Mr Jones of Counsel has appeared at the trial on behalf of the Mother. Mr Christie of Counsel has appeared at the trial on behalf of the Independent Children's Lawyer. The First and Second Interveners are self-represented litigants, and they have attended the entire trial. The mother and the father have one child. He is the subject of these parenting proceedings. His name is X, and he was born in 2018.
2. The parties commenced a relationship in 2017. The Mother moved in to live with the Father at the Paternal Grandmother's home, in or about January 2018, but then they separated on a final basis in February 2018. These parents had used illicit drugs. The Father ceased using in January 2016. The Mother continued, it seems, to use illicit drugs until she found out she was pregnant, which I understand was when she was eight weeks along with the pregnancy. Although the Mother did tell the Father that she had not taken any illicit substances after two weeks into her pregnancy, my recollection is that the Mother's evidence in the witness box was somewhat different. In any event, whatever the precise date, it will not make any difference to the outcome of these parenting proceedings.
3. The situation that we have is that, to a large extent, there is significant agreement between the parties as to the structure of the final orders. There was a good deal of cross-examination though, primarily of the Father and the Mother in relation to risk issues. So far as risk issues are concerned relating to the Father, he was cross-examined at length by Mr Jones of Counsel for the Mother and Mr Christie of Counsel for the Independent Children's Lawyer. In relation to cross-examination of the Mother, the Mother was cross-examined by Mr Duplock on behalf of the Father and by Mr Christie for the Independent Children's Lawyer. And whilst, to a large extent, a lot of the orders, in broad terms, are agreed, there are a couple of items that remain outstanding, but this is also the sort of case where, it seems to me, it is essential that the Court make some findings in relation to some of the allegations that have been raised in the evidence. Some of the allegations are extremely serious.
4. The first allegation to which I will turn my mind is the Mother's concern that the child has been, or might have been, sexually abused by the Father. The mother was quite clear in her evidence and in her submissions, not only at the trial but in the lead-up to the trial. Her view always was - she was not sure. Her view always was that the child had said certain things to her, and she was concerned and wanted to leave it to the Court to determine what did or did not occur. In these types of cases, the Court is always guided by the relevant authorities, starting with the High Court's decision in M v M (1988) 166 CLR 69 ("M v M"). In turning my mind to the question of the allegations raised by the mother, I am very mindful of section 140(2) of the Evidence Act 1995 (Cth). I am very mindful of what Justice Dixon said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, especially at page 362. There his Honour stated:

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

1. The High Court said in M v M that Justice Dixon's remarks:

"... have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute."

1. At page 77 of M v M, the High Court stated, inter alia, that:

"No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place."

1. The case that is currently before the Court, in relation to young X, is one of those cases where this Court has no hesitation in rejecting the allegation of sexual abuse as groundless. There is a good deal of evidence that is contained in the Mother's trial affidavit. I do not intend to go into particular detail concerning each and every allegation, but I will make it clear that the following findings are made:

(a) I find, as a fact, that the allegations of sexual abuse are groundless.

(b) I find, as a fact, that the allegations against the Father of physical or other abuse are also groundless. That is to say, sexual abuse did not occur.

(c) Furthermore, there has been no form of abuse perpetrated by this Father against this child.

(d) The child is not at any risk whatsoever in the unsupervised care of the Father.

1. One of the functions of this Court is to assess future risk and the matters relating thereto. Flowing from M v M, there was a line of authority which culminated in the decision of the Full Court of this Court in Isles & Nelissen [2022] FedCFamC1A 97; (2022) 65 Fam LR 288 ("Isles & Nelissen"). The assessment of risk is, of course, fairly and squarely within the domain of the Court. That is because the Court is best placed to weigh all of the evidence. I have weighed the evidence. I have heard from the Mother and the Father. I have seen the documents that are relevant, pertaining to the allegations of sexual abuse. In respect of the witnesses, I had a very good opportunity to observe the Father. As the Full Court said in Isles & Nelissen, after referring to a decision of the High Court in CDJ v VAJ (No 2) (1998) 197 CLR 172, and this is in paragraph 7 of Isles & Nelissen:

"Risks of harm are not susceptible of scientific demonstration or proof, but are instead postulated from known historical facts and present circumstances."

1. It is with these principles in mind, that is to say those enunciated in cases such as M v M and Isles & Nelissen, that have led me to conclude that this child is not at risk of any form of harm in the unsupervised care of his father.
2. I turn now to some of the documentation. It is convenient for the Court to refer to this evidence by reference to the exhibits, even if they are not necessarily in chronological order. On 5 October 2022, the Mother reported to the police, which is shown in Exhibit 1, and the Mother was concerned because there was some bruising on the child's back. The mother observed, according to the police document:

"[the child] has returned from visitation and [the mother] has observed two bruises/ red marks on [the child's] tummy...Pictures and videos obtained from informant. Attempted to 93A child. Child would not sit still, was extremely distracted, running up and down hallway. Child did not want to speak to police, did not want mum to leave the room. Child was not forming full sentences."

1. I pause here to note that this child has suffered from developmental delays and I understand there is a diagnosis of Attention Deficit Disorder. On that occasion:

"Investigating Officer (IO) has reviewed two videos provided by [MS FELIN], which she stated she recorded on [...] of September 2022. She advised that the videos showed [X] disclosing sexual abuse. IO found it difficult to understand the child at times as his vocabulary is not the best and be babbles at times."

1. Of concern to the Court is that the police officer noted:

"It appears as though the mother makes the sentences for him in some parts even though the child has not said that."

1. The police officer also included, on page 138 of Exhibit 1, that:

"At no point in time does the child disclose any sexual offences... [the father] was asked what happened about the red mark to which he replied, "He got some carpet burn when playing"."

"The injury is very minor and that is a reasonable explanation for the mark."

1. Exhibit 1 also then refers to something that had occurred on 4 April 2022, when the Mother had messaged the Father with a photo of three bruises on the child's back, asking, "What are these from?" and the father at that point had said, "I'm not sure". The document states further:

"When asked about the bruises on the childs back he [the Father] advised that he and his mother had no idea what it was from, then after some investigating realised it was from the car seat. They both advised that the car seat has some raised plastic parts underneath the padding to provide extra padding."

1. As to the red marks on the child's belly, the Father had told the police, and I noted this earlier, that the child had been playing underneath a table with carpeted floors on the ground, and he had grabbed the child by his wrists and hands and pulled him out slowly as they were playing, and the child expressed that he hurt his belly, but he was still laughing. Essentially, that this was a carpet burn injury. At page 139 of exhibit 1, the police officer notes and the police records state that:

"IO [Investigating Officer] believes that there is no evidence of any assaults or sexual abuse being perpetrated against the child by his father. The child has not made any disclosures of any abuse to police. The recordings do not show any disclosures of abuse. The child appears to have developmental issues and behavioural issues and support services have been offered and accepted. IO believes the [GEETA FAMILY] are willing and able to care for the child appropriately and holds no concerns for the safety and wellbeing of the child in the care of the [GEETA FAMILY]. Child Safety have determined no concerns for the safety and wellbeing of the child in the care of the [GEETA FAMILY]. This appears to be a custody issue."

1. In Exhibit 1, there are photographs of the car seat and the towel. Exhibit 2 is from an earlier point in time. The child was taken to the police station by the Mother. This seems to have occurred in June 2021. The child had returned home to his Mother's place in Suburb E with a black eye. It is said that the child disclosed to the mother, at page 64 of Exhibit 2, that:

1. The police reviewed the F Childcare Centre notes which indicated that they considered the injury was accidental and have stated that they do not believe the injury to be suspicious.
2. The police reviewed other documents including from medical centres. The police considered that the Father had provided a reasonable explanation for the cause of the injury on the child's face. The police were not concerned that any sort of offence had occurred. The Father has given evidence as to what occurred, and I accept the Father's evidence as to how the child came to have an injury to his eye. The Father states in his trial affidavit filed on 3 November 2025, that:

"24. On [...] May 2021, whilst [X] was in my care he was jumping on his bed and fell and hit his head on the bedhead. It was an accident, and I contacted the Mother straight away to report this to her. [X] had a small bruise and a cut near his left eye, and I monitored him closely after the incident and there were no signs of concussion nor any requirements for medical assistance."

1. The Father's evidence is that the child had been jumping on the bed, and fell hitting the bedpost. I accept that evidence from the Father. I note the F Childcare Centre notes at Exhibit 3. Sometime later, on in August 2023, the Mother took the child to the police again. Exhibit 4 is evidence of this. The Mother had told the police at Suburb G Police Station that there had been sexual disclosures by her five-year-old son, X, against the Father, but there is nothing in the police notes to indicate that the police considered that any offence had occurred.
2. The next documents which are relevant to the allegations made in this case are from the Department of Child Safety which are Exhibit 5. In particular, at page 204 in Exhibit 5, of concern to the Court, are the notes made by the Department of Child Safety that there were concerns that the mother was coaching the child, and the department noted that this "could subject [X] to emotional harms."
3. At page 215, of Exhibit 5 the Department of Child Safety noted, and it is clear enough from the evidence, and the inference I draw that they are talking about the mother here, that:

"...[X] is being exposed to ongoing parental dysfunction through parental behaviours and actions such as substance misuse and mental health issues. There are worries that these behaviours are placing [X] at risk of experiencing emotional harm that is likely to be cumulative in nature over time if things remain unchanged."

1. These documents, from August 2023, were crucial, in the eventual decision of the Department of Child Safety to remove the child from the care of the Mother. The Mother says that the child said a number of things to her, and they have been detailed in the Mother's affidavit. I have considered everything that was said, and it seems to me that the Court would have to be extremely wary of accepting precisely what is contained in the Mother's affidavit for a number of reasons.
2. Firstly, the comments made by the police to the effect that the Mother was finishing sentences for the child.
3. Secondly, the comment by the Department of Child Safety that the Mother was coaching the child.
4. Thirdly, the evidence of the Mother herself in her affidavit, where she heard the child say the word "shower" and then proceeded to ask the child a suggestive and leading question in relation to what might have occurred to the child in the shower.
5. This gives the Court reason for great concern. I have had close regard to all of the various allegations made. The child undoubtedly has behavioural problems and developmental delay. There is no evidence whatsoever to link this to abuse of any kind by the Father. The child seems to say things, including things to get the Mother's attention. I think there was some weight in the submission that was made by Mr Duplock for the Father, when he put to the Mother yesterday that the child seemed to be responding to the attention he was getting from the Mother when he made allegations or mentioned matters concerning the Father. The attention given included trips to the police stations on several occasions. I heard the Father's evidence about how he used to shower in the shower and the child would be in the bath, but there was nothing untoward or concerning in that evidence or that approach by the Father.
6. For the reasons stated, the evidence of the Mother is, at best, unreliable. To the extent that there was some injuries suffered by the child, like the bruising on his back or the red mark on his stomach or an apparent blow to the head at some stage or the injury to the eye, these are all explained by the Father. They are all usual childhood injuries and mishaps. The police came to the same conclusion. They were not concerned about any of the complaints.
7. The Father gave evidence and he was a truthful witness. I agree with the submission made by Mr Christie, on behalf of the Independent Children's Lawyer. The Father was an impressive witness. The Father, to his credit, was able to go through rehabilitation after drug use and is now studying. He had been living with his Mother because of Orders that were made. In respect of many of the allegations that are made, some of those allegations relating to harm caused to the child, relate to times when the Grandmother was in the residence as well making the allegations even more doubtful. The Grandmother was not cross-examined, so I will not place any great weight on that.
8. The Mother stopped the Father's time in August 2022, and it was more than a year until he saw the child again pursuant to a supervised contact order and the time started in about March or April 2024. I have had close regard to all of the evidence, even if I have not specifically referred to it.
9. I would add here a reference to Exhibit 6. By the time the Mother went to H Hospital in May 2023, she was concerned her PTSD was at its worst, and she told the hospital she had found out in August 2022 that her ex, that is the father of X, had been sexually abusing him. For the Mother to make that positive statement to the hospital is just extraordinary. There was no confirmation by anyone that that had occurred, and by the time the Mother was talking to that hospital, she was well aware that, (because she had been to the police, and they had told her) there was no evidence that the child had been sexually abused.
10. Of great concern to the Court is the fact that the child had possession of perhaps an iPad, upon which there was a film of the Mother and her then partner, Mr C, engaging in sexual intercourse. It is not clear whether the child had seen the film, but it has to be a distinct possibility, given that the child had that particular iPad for his own entertainment.
11. This Court is not concerned that this child is at any risk of harm in the unsupervised care of the Father, and positive findings have been made that sexual abuse of the child by the Father did not occur. Positive findings are made that the Father has not in any way harmed this child. That relates to physical harm or emotional harm.
12. The child, on the other hand, has been at risk of emotional harm in the care of the Mother, and worse. The Mother has taken the child to the police station on several occasions, as well as to doctors. The Mother has convinced herself and has conducted herself in such a way that she considered that sexual abuse had occurred. In addition to the harm caused to the child by the constant allegations made by the Mother against the Father, and the photographing of the child and the recording of the child, and the visits to police stations and so on, in addition to all of that, there is the very concerning evidence that the Court heard yesterday in relation to the Mother's drug usage, apparently with her then-partner, Mr C.
13. When the child was in the care of the mother, Mr C and the Mother would use an illicit substance. The Mother maintains that this only occurred in the garage and not in the presence of the child. I do not accept that evidence from the Mother. Her evidence is inherently unreliable in that regard and not believable. I consider it highly likely that this child witnessed the mother and Mr C consuming the illicit substance and perhaps other drugs. Of concern to the Court is the evidence that was drawn to my attention of the danger to anyone, let alone children, of the contamination that can be caused by people using illicit substances, and the residue or smoke coming to rest on surfaces, which could mean that the child came into contact with them.
14. I accept that the Mother has had a difficult time in life, including when she was very young. I have taken all those things into account. The mother has a very supporting mother, that is to say, Ms Norling, the maternal grandmother. There had been something of a falling out between them, but I urged the Mother in Court yesterday to rebuild those bridges with her Mother. She needs to do the same with her friendship group. She needs to avoid people like Mr C at all costs. She needs to stop all communication with Mr C. I was concerned that she seemed to know precisely when he had gone into prison and where he was. She needs to obtain whatever help from professionals that she can, and I am confident that she will be able to do that with the help of her Mother and other friends, and gain the help that she does need.
15. The risks to the child in the unsupervised care of the Mother are abundantly apparent, including in relation to the Mother's ongoing drug dependency, and including in relation to the risk of emotional harm to be caused by the child by the Mother's conduct and behaviour. Dr J had indeed provided a psychiatric report, and I have taken note of what was said in there. I have had regard to both of the family reports. I have had regard to the evidence, in particular the exhibits, the affidavits, the oral testimony and other matters that have been drawn to my attention, other documents and so on. The risks of harm to the child in the unsupervised care to the mother are apparent, and her time must be supervised.
16. I have had regard to the orders suggested by the Father, the Mother and the Independent Children's Lawyer. The drug testing has to go on for well more than 12 months. The Mother has consistently failed to follow Court orders and failed to follow the directions of the Independent Children's Lawyer. The Mother has not at any stage actually completed a hair follicle test. The Mother had asked for just 12 months of tests, but this simply will not do in the circumstances. Such are the risks to the child, noting the Mother's long drug dependency.
17. Having come to the conclusion that the child is not at an unacceptable risk of harm in the unsupervised care of the Father, I do not consider it necessary to require him by order to live at the Paternal Grandmother's residence. I apprehend from what I was told that he was, perhaps from a financial perspective, having to go back there to his Mother's for a time, but I am not going to require him to do it by order because to do so would be somewhat contradict the findings of the Court that the child is not at any unacceptable risk of harm in the unsupervised care of the Father.
18. I do not consider that there needs to be joint decision making between the Paternal Grandmother and the Father. The Father is perfectly fine to exercise sole parental responsibility. Because of the findings made by the Court, there is no reason whatsoever to require the Paternal Grandmother's involvement and further - she does not wish to be involved, either in the primary care of the child or in parental decision-making. That is a matter that will rest with her son. The fact of the matter is that the Mother, because of her issues relating to drug dependency and her mental health and other issues, is not in a position to exercise parental responsibility of the child.
19. The conclusion I have come to is that the consultation ought not be required. The Father's proposed order on parental responsibility is more in line with the best interests of this child rather than the Independent Children's Lawyer's and the mother's for the following reasons:

(a) The Mother is not in a good situation. She remains dependent on drugs. She has refused to take hair follicle testings over the course of the last one to two years or longer. She has never actually completed a hair follicle test. The idea that the Mother could, at this stage provide sensible counselling or decision-making for the benefit of this child is contrary to the weight of the evidence. The weight of the evidence does not support it.

(b) As I said earlier, I was very concerned about the evidence I heard yesterday and the continuing drug dependency of the Mother militates against the making of an order that would require this Father to consult with the Mother.

(c) Even though the idea is that he would retain the final decision-making responsibility, it does seem to me that there should be an order that once he makes an important decision, for instance, in relation to the matters which currently appear in order 1 (a), (b), (c) and (d), he should inform the Mother of the decision, but he is not required to consult or await her communication.

1. I am well aware that the preferred approach of the Courts is not to make long-term supervision orders, but there are exceptions to that rule. There are benefits to the child in seeing the Mother. There is no doubt about it. The family report confirms it. I know it is not ideal. It is far from ideal. But the benefits to the child of continuing to go to see the Mother in a supervised location are such that the Court, on this occasion, is inclined to leave in place the possibility that long‑term supervision will be what occurs in this instance. Because if the Mother cannot comply with those hair follicle test dates and fails one of the tests - that is to say something comes back positive, or the results are not clear - then the order will be that which is outlined by the Independent Children's Lawyer. It is supervised time at a contact centre.
2. Then down the track, what would have to happen is the Mother would need to eventually, hopefully, if it goes this way, get through rehabilitation, get herself off the drugs, cease her drug dependency, and approach the Court again on the point that it is a changed circumstance of such significance that the order should be varied. That is a matter down the track for the Mother, and I am certainly hoping that is not the path that this matter takes. My earnest hope is that the Mother's time will progress to unsupervised in accordance with the Independent Children's Lawyer's proposal, because that is clearly in the best interests of the child.
3. There is one other matter, in particular, to which I should make reference, because a very serious allegation was made against the Father that he had raped the Mother. I heard the evidence about this. My view is that these two were young at the time. That they were relatively sexually inexperienced. There seemed to be a good deal of misunderstanding as to precisely what was going to occur. The Mother did consent to the father penetrating her. It then becomes very unclear as to what happened next, but I accept the Father's evidence that when he realised that the Mother wanted him to stop, he stopped. I accept that evidence. To the extent then that the versions differ between what the Mother says happened on the one hand, and what the Father says happened on the other hand, I accept the Father's evidence. The Father was a far better witness, and the circumstances of what occurred were unfortunate, and one of the most unfortunate parts is that the Mother does appear to have carried it somewhat as a burden. I do not know precisely why that is the case, but it could be linked to her mental health issues. It could be linked to her drug usage.
4. At the end of the day, the Court had both parties in the witness box. I considered what both of them had to say. I have considered the circumstances. I take into account in section 140(2) of the Evidence Act 1995 (Cth) and Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 and whilst I do not need to descend into particulars in relation to the definition of "rape" in the Queensland Criminal Code or elsewhere, what I do know is that the Court accepts the version given to it by the Father, and that the sexual inexperience of both of them, and the highly unusual circumstances that occurred on that day, lead me to conclude that I accept the Father's evidence concerning that issue. I have taken into account all of the matters that I am required to take into account in Part VII of the Family Law Act 1975 (Cth). I have considered the question of family violence. I have considered the question of the importance of the child's relationships with both parents. I have considered all of the various aspects and I do not need to specifically refer to any particular section or subsection of the Act.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Howard.