Orr & Pinter 2014 FamCA 119

A child aged 5 years was ordered to live with the father and spend time with the mother.  The mother’s time with the child had previously been supervised.  The father withheld the child on two occasions, claiming a reasonable excuse.

On the first occasion the father found a bruise on the child’s face that the mother attributed to the child running into a doorframe while in her house.  The father considered the bruise more likely to have been caused by blunt force.  The child resumed spending time with the mother.  The judge found that this to be a reasonable excuse.

On the second occasion the child told the mother that the uncle had shown the boy his natural parts while the boy was being cared for by the uncle.  The mother recorded this comment on her phone and asked the child protection Department to permit an investigation.  The father than withheld the child claiming that the mother had coached the child to make the comment.  The father claimed that both Police and the Department had advised him to withhold the boy, but neither agency confirmed this to the mother.

The Department recorded that the claim was unsubstantiated.  The father believed it was necessary to protect the child’s psychological health and to prevent him from suffering psychological harm resulting from exposure to the mother’s questioning him about his interactions with his uncle, or interrogating the child.  The father stated he had received legal advice that it was not in the child’s best interests to spend time with the mother until investigations were completed.  The father alleged that the mother had consistently made threats to allege sexual abuse by members of his family toward the child.

The judge found that the father had not established a reasonable excuse to withhold the child.  The judge commented that the father’s concerns could have been met by proposing a return to supervised time rather than by a complete cessation of contact time.