BARLOW & SELLERS

FAMILY COURT OF AUSTRALIA

BARLOW & SELLERS

[2018] FamCA 207

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of the child – Where the mother seeks sole parental responsibility – Where the father seeks equal shared parental responsibility – Where each party seeks that the children live with them – Where there are historical unsubstantiated allegations of physical and sexual abuse – Where the mother has resiled from the allegations of physical and sexual abuse – Whether the mother is likely to present as an emotional risk to the children – Where a child has significant healthcare requirements – Where the father has not engaged with the children’s health practitioners to enable a better understanding of how to manage their needs – Consideration of “meaningful relationship” – Where the mother has not supported a relationship between the father and the children – Where equal time is not practical due to the children’s healthcare needs – Where the children should spend significant and substantial time with the father

FAMILY LAW – CHILDREN – Family consultants – The weight to be given to a Family Assessment Report – The weight to be given to the recommendations of the family consultant

Family Law Act 1975 (Cth) div 12A, ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2A), 60CC(3), 61DA, 61DA(2), 65DAA, 69ZN, 69ZT, 69ZT(1), 69ZW, 69ZW(5)

Andrew & Delaine [2009] FamCAFC 182
Baglio & Baglio [2013] FamCA 105
M v M [1988] HCA 68
Mazorski & Albright [2007] FamCA 520
MRR v GR (2010) 240 CLR 461
Sigley & Evor [2011] FamCAFC 22
Vasser & Taylor Black (2007) FLC 93-329

APPLICANT:

Ms Barlow

RESPONDENT:

Mr Sellers

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

3611

2012

DATE DELIVERED:

5 April 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

9 & 10 October 2017, 29 November 2017 and 5 & 6 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Lindsay

SOLICITOR FOR THE APPLICANT:

Johnston Withers

COUNSEL FOR THE RESPONDENT:

Litigant in Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lee

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

That the parties have equal shared parental responsibility for B born … 2010 and C born … 2012 (“the children”).
That the children live with the father for a period of twenty eight (28) days from the date of this order.
That as and from the conclusion of twenty eight (28) days from the date of this order the children live with the mother.
That the children spend time with the father as follows:-
(a)Each alternate weekend from the conclusion of school Thursday (or 3 pm if a non-school day) until the commencement of school Monday (or 9 am if a non-school day);
(b)For one half of the short term school holidays from the conclusion of school on the last day of term until 5 pm on the middle Sunday;
(c)For one half of the long Christmas school holidays from the conclusion of school on the last day of term until 5 pm on the following Friday and each alternate week thereafter;
(d)For Father’s Day from 9 am until 5 pm if not already in the father’s care PROVIDED that the children spend time with the mother from 9 am until 5 pm on Mother’s Day if not already in the mother’s care;
(e)From 3 pm Christmas Eve until 3 pm Christmas Day in 2018 and each alternate year thereafter PROVIDED that the children will spend time with the mother from 3 pm Christmas Day until 5 pm Boxing Day in each alternate year;
(f)From 3 pm Christmas Day until 5 pm Boxing Day in 2019 and each alternate year thereafter PROVIDED that the children will spend time with the mother from 3 pm Christmas Eve until 3 pm Christmas Day 2019 and each alternate year thereafter;
(g)For Easter 2019 from 5 pm Maundy Thursday until 5 pm Easter Saturday and each alternate year thereafter PROVIDED that the said children will spend time with the mother from 5 pm Easter Saturday until 5 pm Easter Monday in 2019 and each alternate year thereafter;
(h)For Easter 2020 from 5 pm Easter Saturday until 5 pm Easter Monday and each alternate year thereafter PROVIDED that the said children will spend time with the mother from 5 pm Maundy Thursday until 5 pm Easter Saturday in 2020 and each alternate year thereafter;
(i)On each of the children’s birthdays for a period of at least three (3) hours at times to be agreed between the parties if the children are not already with the father PROVIDED that the children will spend time with the mother on each of their birthdays for a period of at least three (3) hours at times to be agreed between the parties if the children are not already with the mother;
(j)Such other times as may be agreed between the parties.
That handovers that do not take place to and from the children’s school shall be at such other place as may be agreed between the parties but failing agreement THEN at the McDonald’s Restaurant, D Street, E Town PROVIDED THAT with not less than 24 hours’ notice each party shall be able to nominate an adult to effect the handover if they are not able to attend.
That communication between the parties be limited to email and text message communication except in the case of emergency.
That the parties shall do all things necessary to ensure that the children are enrolled and remain so enrolled at F School, located at Suburb G, subject to any other agreement of the parties.
That the mother will do all things necessary and provide all such authorisations to the school administration of F School to ensure that the father is entitled to receive all information pertaining to the children, is able to contact the school administration and teachers to discuss the educational requirements and progress of the children and to ensure that the children’s enrolment reflects the father as their parent and as an alternate contact in case of emergency.
That the parties be at liberty to attend all school and extra-curricular activities that parents would ordinarily invited to attend including but not limited to sports days, concerts, parent-teacher interviews and the like PROVIDED that they shall each advise the other in writing of their intentions to attend.
That both parties be at liberty to receive copies of all correspondence from the said children’s school and extra-curricular activities including but not limited to newsletters, bulletins, photographs and the like.
That injunctions be granted and each party be restrained from:-
(a) Physically disciplining the children;
(b)Discussing these proceedings in the presence of the children or allowing anyone else to do so;
(c)Denigrating the other party, the other party’s family or the other party’s partner in the presence of the said children or from allowing anyone else to do so;
(d)Posting on social media about the other party, the other party’s family, the other party’s partner or these proceedings in any way whatsoever;
(e)Taking the children to any psychologist, counsellor, social worker or mental health practitioner without the consent of the other parent first being obtained in writing SAVE AND EXCEPT for the current health professionals involved in the children’s care and any psychologist, medical practitioner, counsellor, therapist or other health professional as may be recommended by any of them;
(f)Changing the children’s school without the prior consent of the other parent first having been obtained in writing.
That the parties forthwith advise the other of the residential address of the children and shall provide to the other contact details including email address and mobile phone numbers.
In the event of a medical emergency involving the said children the parent with whom the children are spending time with shall notify the other parent forthwith and allow the other parent to attend upon the said children.
That the mother shall forthwith advise the father of the contact details of the children’s health professionals and care providers to the intent that the father shall forthwith make contact with those persons to enable him to better understand the needs of the children.
That the appointment of the Independent Children’s Lawyer be discharged.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3611 of 2012

Ms Barlow

Applicant

And

Mr Sellers

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Initiating Application filed 18 February 2014 Ms Barlow (“the mother”) seeks parenting orders in respect of B born in 2010 (“B”) and C born in 2012 (“ C”) (collectively “the children”).
By Amended Response filed 20 November 2014, Mr Sellers (“the father”) opposes the orders sought by the mother.
The mother contends that she has been the primary caregiver to the children. The children each have special needs. They have been diagnosed with Autism Spectrum Disorder (“ASD”); however C functions at a significantly higher level than B who is significantly impacted and was assessed at a severity level two in the report of psychologist Mr H dated 11 January 2014 which forms “JB-5” of the mother’s trial affidavit.
The history of the litigation would suggest that the mother considers that the father presents as a risk to the children by assertion that he has behaved in a sexually inappropriate manner to the children, that he presents as a physical risk and during the period of the relationship he was the perpetrator of family violence towards both the mother and the children.
The mother did not press that the father presented as an unacceptable risk at trial, but rather focussed on her assessment of the very detailed needs of the children and an assertion that the father was either not prepared or not able to provide for their necessary care.
It appears uncontroversial that there are a number of health professionals that have been engaged to assist the children, but in particular B whose behaviour is more challenging and requiring a greater level of care, management and attention.
The mother contends that whilst she remains fiercely protective of the children, she recognises that it is important for them to maintain a meaningful relationship with the father. She acknowledges that the children have not spent time with him for now more than one year but that is not to be seen as an indication of her resistance but rather, a consequence of a breakdown in communication between the parties.
The father does not accept the mother’s proposition and her explanation for the non-compliance with the current interim order and argues that she has no intention of complying with any order that the children would spend time with him. He considers that the mother is set on fundamentally disrupting his relationship with the children.
The mother seeks sole parental responsibility for the children. The father seeks equal shared parental responsibility.
The parties seek orders that are the mirror opposite of the other. In particular, each seeks orders that provide for the children to spend time with the non-primary care parent upon such conditions as the Court may deem appropriate. Such an order is of little assistance to the Court. It is not an order that can be made in its literal terms. If taken as read it purports to encourage the Court to make orders within the widest possible discretion and without reference to any proposal of the parties.

DOCUMENTS RELIED UPON

The mother relies upon the following documents:-
(1)Initiating Application filed 18 February 2014
(2)Trial Affidavit of mother filed 18 September 2017
(3)Affidavit of Mr Barlow filed 18 September 2017
The father relies upon the following documents:-
(1)Amended Response filed 20 November 2014
(2)Trial Affidavit of father filed 4 October 2017
(3)Affidavit of Ms J filed 4 October 2017
(4)Affidavit of Ms Sellers filed 4 October 2017
The Independent Children’s Lawyer (“ICL”) did not file any documents but relies upon the family assessment reports of Ms K (“the family consultant”) of 24 October 2014 and 26 February 2018.
Each of the parties and the ICL filed a Case Outline document. Other than identifying orders sought, a short history and the documents relied upon by each of the parties and the ICL, the documents provided scant assistance to the Court.
At the commencement of the proceedings consideration was given to the application of Part VII – Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular the principles applicable to parenting cases as set out in s 69ZN of the Act and issues of evidence that arise from a consideration of s 69ZT.
Whilst the thrust of the mother’s case was not clearly enunciated, there was the suggestion that the father may have sexually or physically assaulted the children and perpetrated family violence towards the mother. It may well have been reasonable for either party to apply to dispense with the provisions of s 69ZT in preference for a greater evidentiary rigor of the Evidence Act 1995 (Cth) (“the Evidence Act”).
No application was made by either party and accordingly the admissibility of evidence was determined by reference to s 69ZT(1) of the Act.
It should be noted that the mother was represented by solicitor and counsel whereas the father was a self-represented litigant. An opportunity was provided to the father to obtain legal representation but he was either unable to do so or determined that he would conduct his own case.

TRIAL HISTORY

The trial commenced on 9 October 2017 and continued on 10 October 2017 when it was adjourned part-heard to 9 am on 29 November 2017 to enable the ICL to enquire as to the availability of a single expert with experience in Autism to assist the Court in determining how B and to a lesser extent C may react to the orders that may be made.
At the directions hearing on 29 November 2017 arrangements were made for the parties to attend upon the family consultant and the trial was adjourned to 5 March 2018. The Court was advised that Ms L was either not available or could not be arranged and the family consultant was not able to give evidence until 6 March 2018. At the conclusion of the evidence and final submissions, judgment was reserved.

HEARING ON 29 NOVEMBER 2017

At the conclusion of the second day of trial, I raised with counsel and the father that there was a significant lacuna in the evidence as to how the diagnosis that each of the children presented with ASD should be brought to account if at all.
It is not controversial that both parties agree the children have special needs albeit to a differing level. The Court is not able to take judicial notice of how a child with ASD will react or be affected by a particular order without evidence to provide the appropriate link.
I considered that with the father as a self-represented party and the mother not evincing any intention to call such evidence that it would be desirable for the ICL to do so.
On 29 November 2017 the ICL confirmed that Ms L was available to give evidence when the trial resumes. There was no apparent difficulty with his availability but the ICL did not have confirmation in writing. The Court advised that his evidence could be heard orally without the need for an affidavit or a report. The intimation was intended to convey the potential importance of the evidence from the expert.
The mother’s solicitor thought that it would be helpful for an occupational therapist to give evidence. Counsel and the parties were advised that it was a relevant consideration as to how the children would cope with orders proposed to be made.
The Court gave a clear direction that in this case it was appropriate for the ICL to take an active role. In the Case Outline document of the ICL no view had been formed nor any orders sought, but rather, that the ICL wished to reserve her position until the evidence had been heard.
It is a matter for the ICL but in a case such as this, the absence of an initial view may well lead to the outcome that the ICL presents no independent evidence, does not receive any direct involvement or engagement with a child or children and as a result maintains a sphinx-like presentation.
The evidence of Mr Barlow, Ms Sellers and Ms J as set out in their separate affidavits was accepted into evidence and not required for cross examination by either of the parties.

BACKGROUND

The father was born in 1975 and the mother in 1979. The parties commenced a relationship in October 2009 and commenced cohabitation in April 2010. Following the birth of B in 2010 and C in 2012, the parties separated on 13 September 2012.
The proceedings were commenced on 19 September 2012 with the parties reaching a consent order on 9 October 2013 that provided for the parties to have equal shared parental responsibility for the children, that they live with the mother and spend time with the father each Tuesday, Thursday and Saturday from 10 am to 3.30pm and from C’s second birthday from 9 am Saturday to 9 am Sunday of each week. Handover was to occur at the home of the maternal grandparents and on other occasions from a fast food restaurant close to the parties’ residences.
Order 7 provided:-
Without admitting the necessity for the same, that the father is restrained from leaving either of the said children unsupervised in the presence of his son [Mr M] and to be supervised by a suitable adult.
Mr M is now aged 18 years and whist living with the paternal grandmother retains a close relationship with the father. The injunction has relevance to the current proceedings given allegations made by the mother that Mr M may have harmed B by urinating on him and burning him with a cigarette.
The mother has maintained historical allegations of sexual and physical abuse by the father and Mr M towards the children.
The consent orders were of temporary assistance to the parties and the litigation was reinstated by the mother’s Initiating Application filed 18 February 2014. On 5 June 2014 the father’s time pursuant to the consent orders was suspended and he was able only to have supervised time with the children.
The family consultant published her first report on 24 October 2014. The evaluation of the family consultant was that the father may not pose the risk as asserted by the mother, but the mother’s motives in pursuing the allegations against the father may well have either a malevolent or mental health basis. The family consultant was concerned that the various allegations had been the subject of detailed investigation without abuse being substantiated.
The report was given considerable weight and the father’s time was reinstated. Further allegations were made by the mother that the children were returning from the father’s care in a distressed state with cuts, bruises and abrasions.
Of note is an allegation that B sustained a black eye on 30 October 2015 whilst in the father’s care. The father denies that he caused the injury. The mother does not accept the father’s denial.
There are further allegations made by the mother that on 9 January 2016 Mr M had urinated on B and that on 3 February 2016 Mr M butted out a cigarette on B’s body.
The orders for the children to spend time with the father have not been complied with. The father has not seen the children since February 2017. Each of the parties strongly assert that for more than a year they have each attended at the place of handover but the other has not been present.

There is no suggestion that either party has attempted to correct the miscommunication. The mother either directly or via her solicitor acknowledges that she has not sent any communication to the father attempting to synchronise their attendance to enable the children to resume a relationship with the father.

PROPOSALS OF THE PARTIES

The father seeks an order for equal shared parental responsibility. The mother seeks that she have sole parental responsibility. Each of the parties seek that the children live with them and spend time with the other upon such and terms and conditions as the Court may consider appropriate.
The presentation of those orders are unhelpful.
The evidence presented by the parties is demonstrably without focus and the Court was not helped by final submissions to better identify the evidence in the proceedings that is relevant to the orders sought or that may define the period of time that the children would spend with the other party.
Counsel for the ICL supported orders loosely in line with the primary recommendation of the family consultant namely, that the children should live in the primary care of the father with the mother’s time to be reintroduced cautiously and subject to her engaging in a therapeutic process to promote her support of the children’s relationship with their father.
The father was not able to make final submissions. Opportunity was given to him to collect his thoughts but he declined the offer. Final submissions on behalf of the mother provided some limited assistance. Counsel for the mother did make an important concession namely, that the mother was not asserting that the father presented as an unacceptable risk with obvious reference to the previous allegations made by her. Her opposition to the primary order sought by the father that the children live with him was a focus on the considerable involvement in the children’s health by various health professionals and the unchallenged evidence that the father has not involved himself in the management of the children’s health, has not contacted any of the relevant health professionals and does not appear inclined to do so.

ALLEGATIONS OF SEXUAL AND PHYSICAL ABUSE

The mother has alleged historically that the father presents as a risk to the children. She also considers that Mr M has abused B by urinating on him and burning him with a cigarette. The following references appear in the mother’s trial affidavit:-
16.I say further that both children started to exhibit disturbing behaviour of a sexual nature. In particular, I noticed that [C] started to rub her genital area quite excessively following periods of time in the father’s care. She placed her doll between her legs and proceeded to rub her genital area on her doll quite vigorously. I consulted with my General Practitioner, [Dr N]. I am well aware that it is quite common for young children to rub their genital area, but I thought it was an excessive amount of rubbing. She agreed and thought that it was excessive and not what you would normally expect from a child of her age.
17.Further [B] started disclosing to me that “Daddy touches my bottom” and “Daddy puts things up my bottom”. I say that I did not interrogate or coach [B] in disclosing this information and at the time [B] struggled to verbalise his thoughts. As a result I deeply concerned by the information [B] was disclosing.
18.I did not raise this issue with the father because I did not want to cause unnecessary friction between us until I had reason to communicate with him about the issue. I was awaiting advice from my doctor and other health professions as to whether there was genuine cause for concern. I am aware that children can at times exaggerate the truth.
As a result of the children’s behaviour the mother then made contact with Child Protection Services (“CPS”). She asserts that she was told by a social worker that the matter should be reported to the Child Abuse Report Line and that she may need to obtain an injunction in order to stop the children coming into contact with the father until there had been a full investigation.
At [81] of the mother’s Trial Affidavit the following appears:-
I say that when I asked [B] what he had told the doctor later, [B] told me that Daddy and [Mr M] put things up my bottom, or words to that effect. I say that after hearing [B] disclose this information I reported the incident to Families SA. I say that I do not attempt to coerce B in any way, nor did I ask him any leading question.
The mother records at [82] that on 30 October 2015 B returned with a black eye. The mother took a photograph of the injury and B was seen by a general practitioner. The mother then took B to the hospital and a police report was made.
The mother alleges at [87] that on 9 January 2016 B returned to her car smelling of urine and told her that Mr M had urinated on his face. The mother referred the matter to the police.
There is an apparent inconsistency in the presentation of the mother’s case. Counsel conceded that it was not the mother’s case that the father presented as an unacceptable risk. It is not clear why the various references to the father’s and Mr M’s alleged abuse of the children have been included in the affidavit if not to suggest that the Court should adopt a cautious approach to the orders sought by the father.
The construct of the affidavit seems to link the mother’s perceived observation that the children have a reluctance to spend time with and/or see the father by reference to their reluctance being a reaction to their abuse by the father.
Whilst the allegations are not now pursued with any vigour, that was not the case in the interim proceedings.
On 6 July 2015Judge Simpson ordered as follows:-
2. Pursuant to Section 69ZW of the Family Law Act 1975, the Department for Education and Child Development (Families SA) do provide the Court with the following documents or information:
(a)copies of any notifications regarding abuse allegations arising relating to the children…;
(b)any assessments of investigations into such abuse allegations;
(c)the outcome or findings of any such investigations;
(d)copies of any reports received by the Department for Education and Child Development in the course of investigating any such notifications.
Section 69ZW(5) requires that if the Court is to rely on the information or documents provided in response to an order it must be tendered into evidence.
The obvious relevance of the report arises from the contention of the father and the ICL that the report is evidence of a comprehensive investigation of the allegations made by the mother with the result that the allegations are not corroborated.
The mother would seek to place a gloss on the interpretation of the allegations not being substantiated by suggesting that it does not necessarily mean that the father did not abuse the children, but rather there was insufficient proof.
In M v M [1988] HCA 68 the Full Court gave consideration to the treatment of allegations of sexual abuse. The Full Court considered at [19] that treating an allegation of sexual abuse as the paramount consideration was an error.
In Vasser & Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind. Their Honours quoted, with approval, the following passages from M v M (supra) at pages 81,673-75:-
In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a Court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds(1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336, at p 362. There Dixon J said:
“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.”
His Honour'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. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
…
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case. … (our emphasis)
I am therefore not obliged, nor is it considered desirable that I make a positive finding that the father has physically or sexually abused the children (or for that matter Mr M) unless the evidence satisfies the appropriate standard of proof.
The Court is to determine what is in the best interests of the children. The parameters of such a determination must of necessity bring to account allegations of sexual and physical abuse. It may be an important consideration that whilst unable to make a finding of sexual or physical abuse, the circumstances are such that would justify the Court finding that the father presents as a risk which subject to certain conditions may be balanced against the importance of a child maintaining a relationship with a parent, or that the father presents as an unacceptable risk which is likely to be determinative of the father’s application for the children to live with him or spend significant time in his care.
The allegations promoted by the mother are not put forward with an intention that the Court should make a positive finding that the father has sexually or physically abused the children, but rather, go to risk. The weight to be given to the allegations and possibly the motivation behind the making of the allegations may become relevant considerations.
The mother makes certain allegations which are the subject of strong denial by the father. The Court does have the advantage of the report produced per s 69ZW and it is reasonable to consider the matters raised in the report if it assists in determining whether the father presents as a risk and if so to what extent.
The report is comprised of the case notes of Families SA in respect of B for the period 16 October 2014 to 11 May 2015.
The note dated 16 October 2014 confirms that there have been eight notifications that have been made with child abuse not having been substantiated. There were further concerns that the mother had used excessive discipline towards B and that the children had been exposed to the parental conflict which at times had descended into violence and abuse. The allegation that B exhibited “suspicious indicators of sexual abuse and [C] having bruising and redness on her vagina which may have been the result of sexual abuse” were investigated and found not to be substantiated
Allegations that C exhibited sexualised behaviour and physical signs of having been sexually abused were further investigated without substantiation.
In a note dated 6 March 2015 the following is recorded:-
CP HISTORY
10 previous CP intakes, none substantiated.
The most recent 2x intakes were:
16/10/14 NOC re children unsettled following access with their father and concerns that [C] may have had an infection due to the distinctive smell of her urine.
21/2/14 NOC re children distressed following access with their father, [C] “excessively” rubbed her genitals following access with her father.
The allegations were investigated without substantiation.
In a separate case note dated 6March 2015 the following appears:-
… met with mother for 5 appointments, at the end of 2014 - start of 2015, last appointment being 21 January 2015. Appointments were in relation to concerns of children [B] and [C] presenting with sexualised behaviours. An assessment was complete based of mother’s information, it was assessed [C] with clinically sexualised behvaiours (sic), no concerns raised in relation to [B]. CPS noted the assessment is subjective, based solely on informaiton (sic) from the mother, father not included in the assessment. CPS chose to work with the mother in a therapeutic sense, assisting in how she understands and responds to behaviours…
The child protection officer considered that the mother had behaved inconsistently in relation to allegations of sexual abuse. Whilst alleging that B had made a clear disclosure of sexual abuse against the father, the mother nonetheless sent the child to kindy rather than seeking medical attention knowing that the father was to collect him later that morning.
The mother also alleged that the father “slammed a drawer” into C’s chest resulting in bruising at the time, however on observation there was no injury.
In a case note dated 15 March 2015, B’s allegation that he had a “special sandwich with daddy” and “daddy puts things in my bottom” was also considered to be without foundation.
The concern of the department is summarised in a case note of 17 March 2015:-
Concerns The mother continues to allow the children to have contact with the father despite reporting concerns herself that he is perpetrating sexual abuse. If this is the case, the mother is failing to protect. If there is no sexual abuse taking place, Families SA remain concerned as the mother appears to be coaching the children in relaiton (sic) to sexual abuse, having the children seen by medical professionals and discussing inappropriate information with them, potentially causing the children emotional harm.
Further allegations were made by the mother and recorded in a case note dated 18 March 2015 that when B returned from the father’s home on 14 March 2015 he “could not ‘poo’ he was also allegedly distressed, agitated, banging his head and could not sleep but instead mentioning that he and daddy had a ‘special sandwich’.”
The case note records the mother reported that:-
… she was advised by [O] FSA to apply for an injunction at Family Court. Mother continued to discuss concerns and the reason as to why she went to Family Court to attempt to stop father from having contact with children. [C] was allegedly swollen and grazed near her genitals, [C] allegedly masturbates, and she was clinically assessed as presenting with sexualised behaviours.
The child protection officer recorded that:-
… it would be concerning if the mother was continually discussing inappropriate topics such as sexual abuse with the children, and having the children medically examined if there were no concerns of sexual abuse, that could cause unnecessary emotional harm.
The child protection officer recorded in a note dated 14 April 2015 there were concerns that the mother was not able to “prioritise the children’s needs” in circumstances where:-
…Families SA found no evidence to suggest [B] has been sexually abused as per the recent intake. Families SA have assessed in conjunction with CPS and [South Australia Police] that the mother has continued to make allegations against the father and discuss issues with the children as a result of her beliefs, rather than evidence that abuse has occurred.
By letter dated 15 April 2015 Families SA wrote to the parties that:-
… Families SA found no evidence to suggest [B] had been sexually abused or made a disclosure that such abuse had occurred. There was no medical evidence or professionals able to confirm a disclosure was in fact made to them. As a result Families SA are not substantiating this concern.
The letter confirms that the investigations in respect of B and C were substantial and the following appears in the letter to the mother:-
However Families SA are substantiating concern regarding your mental health and the impact it has on the children’s emotional wellbeing. Families SA have assessed that information you provided was not consistent or able to be corroborated. Furthermore despite recommendations from the Family Law Court assessment completed in October 2014 that you not have the children assessed or interrogated unnecessarily, this appears to have taken place recently. [B] and [C’s] emotional wellbeing is at risk if they continue to be assessed or interrogated unnecessarily. Families SA would be in support of their father seeking full custody through the Family Law Court.

The mother’s presentation was such that the relevant supervisor Ms P held concerns in respect of the mother’s mental health and it was noted in a case note dated 16 April 2014 that the “Family Law Court Assessment completed in October 2014 discussed the fact that the mother appears to have a distorted version of reality.” Families SA agreed with this assessment. They considered that the mother’s continued assessment and interrogation of the children was a form of abuse.
A case note dated 30 April 2015 notes the mother’s response to having received the correspondence from Families SA. The mother was distressed and appeared to argue with the relevant supervisor as to what constitutes “unnecessary medical examination”.
Families SA confirmed by letter dated 1 May 2015 that there is no need for Families SA to have further contact with the mother. The file is closed. No further investigation will be undertaken.
It is apparent that CPS in conjunction with the police undertook significant investigations into the allegations made by the mother about the father’s conduct and were satisfied, not simply that there was insufficient evidence to corroborate the allegations, but that it was more likely than not there was no substance to the allegations.
The manner in which the mother conducted herself led the agency to consider that the mother’s mental health may be a relevant risk factor, but in any event her conduct in pursuing the assessment and interrogation of the children placed them at significant risk.
I do not find that there is any substance in the mother’s allegations that the father presents as a risk to the children by reason of sexual or physical abuse.
The thread that weaves its way through the warp and weft of the s 69ZW report is to highlight that it is more likely that the mother presents as a risk to the children than the father.
Notwithstanding the clarity of outcome of the investigations, it would appear that the mother was not prepared to accept that the allegations were without substance and should not be pursued with the children.
The father contends that the mother’s presentation is disingenuous. He considers that the allegations are simply a concoction and strategy by the mother to disrupt the children’s relationship with him.
The importance to the father therefore is not that the allegations are without substance, but rather, that the mother’s presentation is one of manipulation to achieve her desired outcome of alienating the children from the father rather than any motivation based on child protection.

THE EVIDENCE

The mother

The mother agreed with the proposition that B was severely Autistic whereas C could be considered as high functioning.
She held the strong view that the hurdles to be overcome by the children as they mature are primarily related to their diagnoses of ASD.
The mother reiterated her position that the father’s history of violence perpetrated against the family was significant, but her primary concern was that the father was resistant to accepting the extent of the problems faced by the children and when given an opportunity to do so, has refused, neglected or shown little interest in engaging with the various health professionals.
The mother considers the Picture Exchange Communication System (PECS) is central to B’s management in circumstances where his Autism has left him with little or limited communication abilities. PECS assists the development of communication skills by using pictures. A child or adult with Autism can use the PECS Communication Book to communicate with another person by pictorial representation.
The PECS Communication Book has had wide acceptance over a long period of time.
It is not a complicated system to use, but requires some effort for it to be implemented on a daily basis.
With the PECS Communication Book, the child is able to better communicate and to understand the activities he is likely to engage in, providing some regulation and routine.
The mother asserts that the father refuses to comply with any direction or suggestion that he should adopt visual aids in his parenting of B.
The mother is also critical of the father’s home environment. She states that it is not air-conditioned, there are no visual aids for the children and no equipment that would aid in the children’s physical activity and as required by his occupational therapist.
The mother has arranged for various assistance for the children through the National Disability Insurance Scheme. The process is detailed and rigorous and the mother is not confident that the father has the ability or the interest to have services currently approved to the mother transferred to the father.
Until the final submission of the mother’s counsel, it was not clear whether the mother was alleging that the father presented as an unacceptable risk to the children.
The mother was challenged as to the allegations that she had made and conceded that many of the alleged disclosures were not followed through with the police.
B was home-schooled since May 2017. The mother’s explanation is that his behaviour is not easily accommodated by other schools, however, B and C will attend F School from 2018.
The mother had not advised the father of any change to the children’s education.
The mother remains suspicious of the father’s conduct towards the children when they are in his care. She is vigilant in inspecting the children upon their return from their time with the father and says that her concern arises from the children returning to her care with physical injuries. She alleges B sustained a black eye and C had a scratch on her face.
The mother said that she was supportive of the children maintaining a relationship with the father, but that it would be more conducive to their development if it was supervised.
The mother acknowledged that the observational reports of the children’s time with their father were positive, but she was dismissive of any suggestion that the children had a good relationship with their father. She confirmed that she had made a complaint about the contact service and considered that the service did not really take into account the particular needs of the children.
The mother admitted that she had told the supervisor of the contact centre that the father had been investigated on seven occasions for child abuse. She was questioned as to why it was necessary to do so and she denied that her intention was to convey the father in a negative light. She considered that it was necessary history for the contact centre to know of the background.
The mother’s response was disingenuous. There is little doubt that the mother intended to convey to the contact supervisor that the father was a risk to the children. At all material times, the mother knew that no allegation of abuse had been substantiated and that the concern of the relevant child protection agency was upon her presentation rather than the father.
The mother was asked to outline the encouragement that she gave to the children to spend time with the father. She agreed that she had stopped presenting the children to the father in February 2017. She conceded that he had spent little time with the children from 20 May 2016.
The mother’s evidence was unimpressive. I consider that she had little or no intention or interest to facilitate or foster a relationship between the children and their father.
The mother repeated her belief that following the children’s return from time with the father on 9 January 2016 B smelled of urine and had sustained a cigarette burn on his stomach. It is her belief that Mr M had urinated on B and had used a cigarette to burn him. The allegations had been the subject of investigation by CPS and Families SA. There was no evidence presented to support the allegation. I reject the mother’s assertion.

The father

The father confirmed that he continues to reside in the paternal grandmother’s home. She lives in a flat separate to the main house. The father intends that he and the children will live in the main house which comprises four bedrooms, a loft and an en suite bathroom.
Steps have been taken to install an indoor swing in B’s bedroom.
The father agreed that B is on the autism spectrum and is significantly affected by ASD. He acknowledged that B also has ear, nose and throat problems.
The father accepted that his last involvement directly with B’s health professionals was in June 2016. He has not attended any speech pathology sessions and proffers as an explanation that he is “time poor” by reason of his continued care for the paternal grandmother and his part-time studies.
The evidence supports a finding that the father has taken little interest in any of the programs or courses that have been arranged to assist B’s ongoing healthcare and management. The father did consider he had undertaken some online research to better understand the issues in respect of over-stimulation.
He does not yet have a PECS Communication Book but intends to obtain the equipment to do so.
The order of 1 December 2015 provides for the father to be at liberty to obtain medical records and information from the children’s health professionals.
He agreed that he had not yet sought the information that the order made available to him.
Whilst the father agreed that B is on the autism spectrum, he was reluctant to concede that the child’s behaviour is as severe as described by the mother. When in the father’s care B appears to be better behaved than the mother’s description.
The father has a relatively poor understanding of B’s potential for dysregulated behaviour.
The father was challenged as to the circumstances by which B sustained a black eye. He was frank and forthright in his response that the injury had occurred as a result of B falling over. It may have been as a result of inadvertence by B arising from his poor eyesight, but is unlikely to have occurred as a result of either neglect of physical assault from the father.
When pressed, the father conceded that there was no real challenge to the mother’s evidence that she now manages the children’s care to a high degree.
Communication between the parties has been problematic. The use of a communication book has not occurred for more than 12 months.
The father referred to the text messages passing between the parties for the period 29 August 2015 to 21 May 2016 which form Annexure “MJS-5” to the father’s Trial Affidavit. Whilst the parties were physically able to communicate with each other, the tenor of the communication was accusatory and devoid of any consensus or focus on the children’s needs as opposed to the ongoing dispute.
The father seeks to highlight the mother’s communication as being aggressive and non-conciliatory, but the weight to be given to the text messaging confirms the ongoing conflict between the parties.
The father conceded that a change in the primary care for the children would represent a dramatic difference in their lives. His proposal is that they live with him and spend time with the mother three out of four weekends from Friday to Sunday.
It was apparent that the father was thinking about his proposal as his evidence progressed. He had little idea of the orders that he was seeking and certainly had not given any clear consideration to how they would work and whether any issues were likely to arise adverse to the children’s interests.
He conceded that it was a mistake on his part that he did not take advantage of the orders allowing him to engage in discussion and correspondence with B’s health professionals. He did not impress as being likely to more energetically engage in the future.
The father’s evidence was given in an open and transparent fashion. His evidence did not strengthen any allegation or assertion that he presents as a risk to the children.
The father made appropriate concessions in terms of the quality of the mother’s ongoing care of the children and did not seek to minimise the importance of him not seeking information and engagement with B’s medical and health professionals.

Family consultant

The family consultant was appointed by order made 6 June 2014 to prepare a family report to determine the best interests of the children. Her first report was published on 22 October 2014.
The background to the dispute records that the focus was the time that the children would spend with the father taking into account the recent allegations of sexual abuse promoted by the mother.
The first report accurately identifies the issues in dispute relevant at the time namely, that the mother considered that the children were at risk if in the father’s care without supervision.
The orders promoted by the mother were that she have sole parental responsibility for the children and that they have no contact with the father until they are older.
The mother acknowledged the consent orders in November 2013, but reported to the family consultant that she considered that she had been under duress. At [33] of the report it is recorded that the mother reported that she “feels that the lawyers ‘bullied her into’ signing the Orders.”
At the time it was not only the mother who alleged that the father acted aggressively to the children. The father also asserted that the mother was quick to resort to excessive physical punishment of the children.
Each of the allegations made by the parties against the other were the subject of repeated investigation. The father’s assertion of the mother’s aggressive conduct towards the children was not substantiated. Equally, the mother’s allegations that the father was physically violent and had sexually abused the children were not supported.
At the time of interview Mr M was aged 14 years. He was included in the interview and assessment process and was considered to present “as a mature young man.”
The family consultant’s description of his presentation was complimentary. He appeared polite, genuine and credible.
Mr M was not kindly disposed to the mother. He was highly emotional when being asked about his interaction with B and Anna and expressed the view that the mother would not let him have a relationship with the children. He viewed the allegations made by the mother as “destroying” the potential for the family to benefit from having a relationship with each other.
The observations of the family consultant was that the children clearly had a warm and open attachment to their mother, but B was difficult to manage and was often demanding.
An assessment of the mother’s summary of the children’s attitude to their father suggested that they would have been reluctant to engage with him.
The observations of the family consultant were to the contrary. The family consultant observed the children to interact warmly with the father. They were excited to see him and they were not reticent about engaging in appropriate physical interaction.
The children were also at ease with Mr M.
In her evaluation, the family consultant summarised the position as follows:-
88.Much depends upon the outcome of the current investigation of the sexual abuse allegation. However, the mother has at various times made certain allegations against the father or misinterpreted events, which gives rise to concerns about the veracity of her allegations. From the subpoenaed documents, it appears that, at this stage, there is no basis to the concerns that [the mother] has raised. Indeed, there is a case note from Families SA to say that there appears to be no reasonable grounds to suspect abuse/neglect has occurred or that the children are at significant risk of harm (Case note 21 February 2014). Families SA notes also indicate that there have been eight notifications, with no child abuse substantiated.
89.[The mother] may be using the suggestion of sexual abuse perpetrated by the father against [Mr M], as reason to suspect the father capable of such behaviour. However, the ‘old’ allegation appears without basis and [Mr M’s] behaviour with, and attitude to his father, indicates there is a good relationship between the two.
The family consultant found that the mother had not provided necessary reassurances to the children to spend time with their father.
She considered that there needs to be positive reinforcement by the mother that their father loves them, wants to see them and that it is important to them that it occur rather than that they are obliged to see him by reason of Court orders.
The concern of the family consultant focussed mainly on the mother’s presentation. She was concerned that if the sexual abuse allegations were without foundation then the continued exposure of the children to ongoing assessment, investigation and interrogation may indicate that the mother poses an emotional and psychological risk to the children. The family consultant highlighted that if the mother’s behaviour continued it would be appropriate for the Court to consider her parenting capacity.
The recommendations of the family consultant did not seek to change the primary care arrangements, but did support the parties having shared parental responsibility, the children remaining with the mother, spending time with the father but with the mother to attend counselling and/or parenting courses to better manager her anxiety.
Relevant to more current considerations was the further recommendation that the parties avail themselves of all relevant information pertaining to B’s diagnosis and in particular that the father be a recipient of information and assessment.
The proceedings were adjourned to enable an updated family report to be undertaken in circumstances where the mother’s personal circumstances caused the assessment on 13 September 2017 to be abandoned.
A comparison of the final report dated 26 February 2018 and the first report of the family consultant completed 22 October 2014 would suggest that little had changed.
The family consultant considered that it was appropriate to place weight on the outcome of the various child protection investigations in respect of the allegations directed against the father and Mr M. Abuse was not substantiated.
The family consultant found the mother’s presentation to be “hostile and aggressive”. It could not be said that the mother and the family consultant were able to establish a professional rapport.
The mother considered that the father no longer wanted to see the children based upon him not having attended at the handover location. The mother was challenged as to her last attendance but was not able to provide the requested information.
The mother still pursued the allegation that the father had caused B to sustain the black eye and asserted that it was a non-accidental injury.
She made the point that if the father was interested in a relationship with the children then he would have made more effort to engage with the children’s therapists and health professionals.
The family consultant’s observations between the children, the parties and Mr M were consistent with the earlier observations in 2014.
The children had not seen their father for an extended time. Nonetheless, they were prepared to engage with him warmly and in particular B was observed to seek out a close physical contact with his father.
The father appeared to act appropriately to both children and divided his attention between them.
C was more reserved than B, but when left to her own devices she sought the father out and was interested to engage in any activity undertaken between B and the father.
The family consultant was critical of the observed interaction between the children and the mother. She observed that upon entering the room the children hugged her and C was recorded to say the following at [54] of the final report:-
‘mummy we said we wanted to stay with you’.
It is noted at [57] that one of the children said to the mother that:-
‘Daddy was trying to be good to us.’
The implication for the family consultant was that the children understood that they were to adopt a certain approach to the father and to be sceptical of the father’s benign conduct.
The family consultant recorded the following summary of her observations:-
63.The most noteworthy aspect to this observation was the way in which the mother was not able to respond appropriately to the children, in particular to reassure them after their time with their father. It appeared as though the mother provoked the children into becoming dysregulated and then was not able to manage their responses. For example, the mother’s comment around them all going to the park when they left the Court, was early in the observation and this led to the children wanting to leave and becoming more oppositional. After this the child [B] threw a shoe and the children started to fight with each other. The mother’s responses to the Consultant, to the Court process and to the children also seemed hostile and she appeared to make little attempt to disguise this…

The manner in which the allegations are raised in the mother’s trial affidavit is consistent with her involvement with CPS. Allegations are made but without any ability to substantiate or corroborate them. Little or no further evidence has been presented. I have already found that no weight should be given to the allegations other than they may poorly reflect on the mother in pursuing allegations that are unlikely to have any substance and where the mother is aware of the extent of the investigations undertaken without corroboration.

The parents’ ability to communicate with each other.

The parties have a dysfunctional relationship, but the history is that they are able to communicate albeit on a barely civil level. There should be no difficulty with text or email communication between the parties. That finding stops short of a determination that the parties are able to confer sufficiently to be able to jointly parent. Such a proposition is beyond their separate capacities.
Of the two, the mother is the more brittle and has demonstrated a level of volatility and aggression when dealing with those that she considers seek to challenge her proposed course of conduct.
I do not consider that the evidence of the family consultant was exaggerated in the description of the mother’s hostile demeanour and presentation during the assessments.
It is not a coincidence that the mother presented poorly in 2014 and appears not to have ameliorated her behaviour or view of the father in 2018.

Capacity of the children’s parents to provide for the needs of the children.

The mother contends that whatever opinion the Court may form of her presentation, there can be no criticism of the energy that she expends in caring for the children and attending to B’s particular and demanding needs.
It is a curious aspect of the father’s presentation that he has not engaged with B’s health professionals. Orders were made that enabled appropriate information to be forwarded to him. All that was required was some effort on his part to engage with the identified practitioners. The father did not. His evidence as to why not was unimpressive. I am still uncertain as to the issues that seem to provide a barrier to the father informing himself as to what is required for B’s proper management.
The fact that he has not done so is entirely inconsistent with the order that he seeks, namely, that the children live with him and spend limited time with the mother.
There is no evidence as to the father’s environment, nor that he has any real understanding of B’s needs.
The Court is informed that the father is “time poor” and has significant personal obligations arising out of the care of his mother and the rigour of his part-time studies.
The evidence supports the finding that the mother has the capacity to provide for the physical needs of the children. The father has only a limited capacity in that regard.
If the focus is upon the emotional needs of the children, then the mother’s behaviour could be considered damaging. She has actively sought to alienate the children from the father and her evidence, with some support from the family consultant, does not invite a belief that the mother is in any way kindly disposed to the children having a relationship with the father.
The evidence of the family consultant must be considered as supporting a finding that the mother presents as an emotional risk to the children. It could not be considered otherwise in circumstances where the mother shows no inclination to support the children’s relationship with the father notwithstanding the evidence is strongly supportive of that relationship being fostered.
In Sigley & Evor [2011] FamCAFC 22 the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at 83,513:-
The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.

As Murphy J said at [111] in Baglio & Baglio [2013] FamCA 105 that “there is a chance of a meaningful relationship … which is beneficial to” the child, but that the corollary was also true and that the absence of a relationship “had the potential to cause [the child] harm in the long-term”.
Further at [148] in Baglio & Baglio (supra) Murphy J said:-
...I am concerned by the mother’s actions in intentionally alienating the child from her father and removing from her life all references to him, other than references to violence. The child’s rights, enshrined in Part VII Objects and Principles, pertain. I am also concerned by the mother’s repeated assertions that she will not encourage a relationship between the chid and her father, even if the Court were to find that the father does not pose an unacceptable risk of harm to the child. I consider such statements and conduct to be completely antithetical to the child’s best interests and demonstrative of an inability on the part of the mother to place the child’s needs, and in particular the benefit she may obtain from a relationship with her father, over her own issues with the father.
I cannot ignore the specific needs of the children, but in particular B, who has a higher level of need.
I consider that in the absence of the father presenting as a risk to the children, the focus on the need to promote a meaningful relationship should have as the foundation the proposition that the maximum parental involvement is an important objective.
The orders sought by the father would represent a dramatic change for the children. The immediate effect is likely to be confusing and unsettling for them.
The evidence of the family consultant is that the children need stability and certainty in their lives. B requires significant ongoing therapy. That can only be provided to maximum effect if the child is not dysregulated and therefore able to benefit from the therapeutic intervention.
There is little doubt that the father is able to provide warmth, emotional connection and a safe environment. There is however no evidence from the father that he is able to provide for the physical needs of the children, in particular B. His evidence in terms of a preparedness to engage with B’s therapists did not impress. There has been ample opportunity for the father to become involved in B’s requirements, but he has not done so and without satisfactory explanation.
B requires input from health professions who have a skill base that is beyond the ability of the parties. Whilst it may be asserted that the mother has adopted an unnecessarily energetic approach to providing for B’s special needs, there can be no doubt that they are at the forefront of the mother’s attention and action.
The same cannot be said of the father.
Little evidence was presented by the father as to his domestic arrangements and the effort that is involved in caring for the paternal grandmother.
A change in the children’s primary care from the mother to the father would be a transition from a stable and certain environment to one of uncertainty.
An advantage to the father’s proposed orders is that it would result in the children resuming a relationship with their father which would be to their overall benefit. The gravamen of the evidence of the family consultant is to highlight the benefits to the children of resuming and fostering a relationship with their father. The consequences of this not occurring could be the children’s development being adversely affected by an erroneous belief that their father either does not have any affection for them, or of greater mischief, that he has perpetrated physical and sexual abuse to them.

The capacity of each parent to provide for the needs of the children including emotional and intellectual needs

Both parties are able to provide for the children’s intellectual needs. The mother is deficient in her ability to support and promote the emotional needs of the children in having a relationship with their father. The father is not able to establish that he can support the children’s physical needs, but in particular B in so far as it relates to ongoing therapeutic and medical intervention.

Family violence

The mother specifically resiled from any allegation that the father presents as an unacceptable risk of either physical or sexual assault or abuse.
I have found that there is no evidence that would support either a finding to the contrary, or that would present the father as an unacceptable risk to the children.

Whether it would be preferable to make orders lease likely to lead to further proceedings

The family consultant assessed that the children need the stability of a stable living environment, their health needs catered for and to have a proper relationship with their parents.
Specifically, the family consultant did not consider that there would be any advantage to the children, and indeed there is a likelihood of significant detriment, if the proceeds were dealt with on an interim basis rather than finality.
I do not propose to adjourn the proceedings pending further assessment.
The litigation between the parties commenced in 2012.

PARENTAL RESPONSIBILITY

The evidence supports a finding that the children would benefit by each of the parties remaining involved in the major issues and decisions that are likely to impact upon them.
The parties are not able to communicate in any personal sense, but despite a tenor of some hostility and aggressive undertone by the mother towards the father, the lines of communication are open.
There is advantage in an order for equal shared parental responsibility and the very nature of the mother’s preparedness to make unilateral decisions in relation to the children strongly supports the need for orders that will provide a check and a balance. The father will need to become appropriately engage in the children’s medical and health requirements, but his presentation was such that the Court is entitled to find that there is no impediment to him doing so, nor any malicious intent to disrupt B’s various programs.
I have considered whether the children should spend equal time with the parties. The evidence does not support such an outcome. Whilst it is not beyond the parties to improve their communication and consult as to major issues affecting the children, their relationship is not conducive to shared care. Moreover, there would need to be a consistency of care which is not established on the evidence as presented by the father.
It is reasonable that if the Court can be satisfied that it is within the ability of the mother to finally support the children’s relationship with the father, then their primary care would be better suited to remain with the mother, but with the children to have significant and substantial time with the father.

CONCLUSION

For reasons as discussed, the Court was not assisted by the parties or the ICL in terms of the presentation of evidence that would enable the Court to better understand how the children and in particular B would react to the separate proposals of the parties and the ICL.
The ICL is strongly supportive of the children living with the father and spending limited time with the mother. That position would have been more easily understood if evidence had been called to explain how the children would cope with such a dramatic change in their care arrangements. Little consideration was given to the father’s ability to replicate the care arrangements currently in place in the mother’s home.
In the absence of assistance that the father can provide, I find that B’s needs are overwhelming in their importance and given the family consultant’s view that the children will better thrive in a more stable environment, it should follow that the children should remain in the primary care of the mother.
That outcome must be tempered by the significant importance of the children resuming and thereafter maintaining a relationship with their father. I have found that he does not present as a risk to the children and providing the mother is now able to support that relationship, then the risk that she could perpetrate emotional harm to the children also dissipates.
The children have spent no time with the father for now more than a year. I do not accept the mother’s evidence that there has been a breakdown in communication and therefore a misunderstanding as to the time that the children should spend with the father and the necessary handover arrangements. The mother has been deliberately misleading in her evidence and disingenuous in respect of her assertion that she recognises the importance of the children’s relationship with their father.
An order should be made that whilst the children remain in her primary care, they spend significant and substantial time with the father. It is also necessary that the orders reflect the need for the children to forthwith re-establish a relationship with the father and I consider that can be achieved by any order made for the children to live with the mother to be suspended for a period of twenty eight days during which time the children will live with the father.
The suspension of the children’s time with the mother accords with the evidence of the family consultant. She considered that the children should reside with the father and spend limited time with the mother. There was obviously confidence in his ability to care for the children. A period of twenty eight days will also enable him to acquaint himself with the children’s needs and to contact various health professionals.
It should not be assumed that the mother will inevitably refuse or fail to comply with Court orders. She should be given the benefit of the doubt and the orders that I make are predicated upon the reasonable assumption that the children’s needs require support and involvement from each of the parties.
I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and seventy-two (272) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 5 April 2018.

Associate:

Date: 5 April 2018

[2018] FamCA 207

5 April 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies