Griggs & Oduro (No 2) - [2022] FedCFamC2F 703

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Griggs & Oduro (No 2) [2022] FedCFamC2F 703

File number(s): ADC 5103 of 2018

Judgment of: JUDGE DICKSON

Date of judgment: 1 June 2022

Catchwords: FAMILY LAW - Parenting – almost 6 year old child - final consent orders from January 2020 for equal shared parental responsibility and shared care arrangement –mother reopened parenting proceedings in February 2021 –mother has withheld the child from the care of the father on three occasions since final orders were entered into on the basis of abuse allegations – mother has continued to make allegations that the father physically and sexually abuses the child - where the child has been forensically interviewed on multiple occasions – where the mother’s allegations have not been substantiated – where mother seeks at Trial for the father’s time with the child to be terminated or in the alternative occur on a limited supervised basis – where father seeks for the child to live in his primary care due to the mother’s conduct and failure to support the child’s relationship with him – where the mother and her family members hold an implacable view that the child has been abused by the father – where both parties seek a finding of the other being an unacceptable risk to the child - where if the child continues to live in the mother’s primary care his relationship with the father will be compromised – no unacceptable risk in the father’s care – where Court has little confidence in the mother’s ability to support the child’s relationship with his father - where it is in the child’s best interests for there to be a reversal of primary care and sole parental responsibility to the father – for the mother’s time with the child to be suspended for a period of time and then gradually increased over time – where the Independent Children’s Lawyer supports such orders being made

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60A, 60B, 60CC, 61DA

Cases cited:
Andrew v Delaine [2009] FamCAFC 182

Johnson & Page [2007] FamCA 1235, (2007) FLC 93-344

Jurchenko & Foster [2014] FamCAFC 127

M v M (1988) 166 CLR 69.

Mazorski & Albright [2007] FamCA 520

Vassser & Taylor-Black (2007) FLC 93-329

Division: Division 2 Family Law

Number of paragraphs: 418

Date of last submission/s: 25 May 2022

Date of hearing: 7-10 March 2022 & 15-17 March 2022 & 25 May 2022

Place: Adelaide

Counsel for the Applicant: Mr Anderson

Solicitor for the Applicant: Stanley & Co

Counsel for the Respondent: Mr Praolini

Solicitor for the Respondent: Adelaide Legal Solutions

Counsel for the Independent Children's Lawyer: Ms Bailey

Solicitor for the Independent Children's Lawyer: Georgina Parker Lawyers
ORDERS

ADC 5103 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS GRIGGS

Applicant

AND:
MR ODURO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

1 JUNE 2022

IT IS ORDERED THAT:
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for the child X born in 2016 (‘the child’).
3.The child live with the father.
4.To facilitate paragraph 3 herein the mother (or if she is unavailable, then the mother’s agent) do deliver the child to the father inside the B Street Police Station at B Street, Adelaide at 9:00am on 2 June 2022.
5.For the purposes of paragraph 4 herein the mother is restrained and an injunction is hereby granted restraining her from:
(a)Allowing any other person to accompany her inside the said B Street Police Station or to participate in the handover; and
(b)Recording or photographing the said handover or allowing any other person to do so.

6.Upon the mother delivering the child pursuant to paragraph 4 herein, the mother shall immediately vacate the B Street Police Station and its environs.
7.Upon compliance with paragraph 4 herein, the child spend no time with the mother for a period of six (6) consecutive weeks thereafter.
8.During the period of time referred to in paragraph 7 herein, the mother is restrained and injunctions are hereby granted restraining her from:
(a)Entering upon or coming within 50 metres of C School or allowing anyone else to do so:
(b)Entering upon or coming within 50 metres of the father’s residence or allowing anyone else to do so; and
(c)Communicating with the child save and except with the father’s prior written consent.

9.Pursuant to section 67Q of the Family Law Act 1975 (as amended), a Recovery Order do urgently issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the child X born in 2016; and
(b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found; and
(c)to deliver the child to the father MR ODURO at such a place as the father and the person effecting such recovery agree to be appropriate.

10.Paragraph 9 herein be stayed pending the mother’s compliance with paragraph 4 herein.
11.Paragraph 9 herein shall be discharged upon the mother’s compliance with paragraph 4 herein.
12.The mother shall continue to attend upon Ms D, psychologist (‘Ms D’) for the purposes of personal therapy with the cost of such appointments to be paid solely by the mother and with the therapy to continue for such period as recommended by Ms D.
13.The mother shall provide Ms D with a copy of these Reasons for Judgment and orders made prior to her next appointment.
14.As and from Saturday 16 July 2022, the child spend time with the mother each Saturday between the hours of 10:00am and 2:00pm.
15.Thereafter the child spend time with the mother as follows:
(a)As and from Friday 12 August 2022, from the conclusion of school Friday (or 4:00pm if a non-school day) to 4:00pm on Saturday and each alternate weekend thereafter.
(b)As and from Friday 30 September 2022, the time provided for in paragraph 15(a) herein be extended to conclude at 4:00pm Sunday each alternate weekend thereafter.
(c)That as and from Friday 25 November 2022, the time referred to in paragraph 15(a) herein be extended to the commencement of school Monday (or 9:00am if a non-school day).
(d)That as and from Friday 20 January 2023, the time referred to in paragraph 15(a) herein be extended to the commencement of school Tuesday (or 9:00am if a non school day).

16.As and from the April 2023 school holidays, the child spend time with the parties for all short school holidays as follows:
(a)With the mother from the conclusion of school on the last day of the school term until 5:00pm on the middle Saturday; and
(b)With the father from 5:00pm on the middle Saturday until the commencement of school on the first day of the new school term NOTING that the child shall be in the mother’s care pursuant to paragraph 15(a) herein for the first weekend of the said school term.
(c)The time referred to in paragraph 15 herein shall be suspended.

17.As and from the 2023/2024 Christmas school holidays on a week about basis (subject to paragraphs 18(e) and (f) and herein) as follows:
(a)With the mother from the conclusion of school (or 5:00pm if a non-school day) on the last Friday of the school term until 5:00pm the following Friday and each alternate week thereafter.
(b)With the father from 5:00pm on Friday of the first week of the school holidays until 5:00pm the following Friday (or the commencement of school in Term 1) and each alternate week thereafter.
(c)That the time referred to in paragraph 15 herein shall be suspended.

18.For the purposes of special occasions the child spend time with each of the parties as follows:
(a)On Mother’s Day each year with the mother from 5:00pm on the Saturday immediately preceding Mother’s Day until 5:00pm on Mother’s Day.
(b)On Father’s Day each year with the father from 5:00pm on the Saturday immediately preceding Father’s Day until 5:00pm on Father’s Day.
(c)On the said child’s birthday commencing in 2023, telephone communication with the parent who does not have the care of the child at such time to be agreed between the parties in writing or failing agreement at 5:00pm.
(d)On each of the parties’ birthdays, telephone communication with the parent who does not have the care of the child at such time to be agreed between the parties in writing or failing agreement at 5:00pm.
(e)For Christmas in 2022 and each alternate year thereafter, with the father from 10:00am Christmas Day until 10:00am Boxing Day and with the mother from 10:00am 24 December until 10:00am on Christmas Day.
(f)In Christmas 2023 and each alternate thereafter, with the mother from 10:00am Christmas Day until 10:00am Boxing Day and with the father from 10:00am 24 December until 10:00am Christmas Day.
(g)For Easter in 2023 and each alternate year thereafter, with the mother from the conclusion of school Maundy Thursday (or 3:00pm if a non-school day) until 5:00pm Easter Monday.
(h)For Easter in 2024 and each alternate year thereafter with the father from the conclusion of school Maundy Thursday (or 3:00pm if a non-school day) until 5:00pm Easter Monday.
(i)On any other special occasion not otherwise provided for herein as agreed between the parties in writing.

19.Any handover not taking place at the said child’s school do occur at E Street, Suburb F in the said State being currently the “G Store” between the parties, only unless otherwise agreed in writing.
20.The mother is restrained and an injunction is hereby granted restraining her from instructing her solicitors Stanley & Co from releasing the child’s passport into her possession.
21.Forthwith and in any event no later than 4:00pm on 2 June 2022, the mother do cause her solicitor to deliver up the child’s passport to the Adelaide Registry of the Federal Circuit and Family Court of Australia and provide confirmation to the father in writing upon same having occurred.
22.The child’s passport be held at the Adelaide Registry of the Federal Circuit and Family Court of Australia and shall not be released to either party save and except upon the joint written authority of the parties in written communication from each of their respective solicitors or by way of order of this Honourable Court.
23.In the event the child’s passport requires renewal, each party shall sign any passport application or application for renewal and should the other party refuse or neglect to sign the application the other party be authorised to sign in default.
24.Each party be restrained and an injunctions are hereby granted restraining them from removing the child from the State of South Australia except for the purposes of a holiday interstate, as agreed in writing and unless the travelling party has provided to the other party not less than twenty eight (28) days’ notice prior to the proposed travel of the following:
(a)A detailed itinerary in respect of such travel including addresses and telephone numbers for all venues which it is proposed the child will stay during the course of the travel and the period and dates the child is to stay at those venues.
(b)All travel dates and copies of tickets showing departure and return;
(c)Flight numbers and/or details as to the mode of transport;
(d)A mobile telephone contact number which is to remain operational and is to be answered personally by the travelling party for the duration of the travel period; and
(e)A proposal for make up time, if the non-travelling party’s times with the child is to be suspended or interrupted by the travel.

25.Each party be restrained and an injunction is hereby granted restraining them from removing the child from the Commonwealth of Australia, except for the purpose of a holiday overseas, as agreed in writing, and unless the travelling party has provided to the other party not less than sixty (60) days’ prior to the proposed travel the following:
(a)A detailed itinerary in respect of such travel including addresses and telephone numbers for all venues which it is proposed the child will stay during the course of the travel and the period and dates the child is to stay at those venues:
(b)All travel dates and copies of tickets showing departure and return;
(c)Flight numbers and/or details as to the mode of transport;
(d)A mobile telephone contact number which is to remain operational and is to be answered personally by the travelling party for the duration of the travel period; and
(e)A proposal for makeup time, if the non-travelling party’s times with the child is to be suspended or interrupted by the travel.

26.Each of the parties be restrained and an injunction be granted restraining each of them from:
(a)Physically disciplining the child or allowing any other person to do so;
(b)Abusing, criticising or denigrating the other parent or the other parent’s family in the presence of or hearing of the child, or allowing any other person to do so;
(c)Discussing these proceedings or the issues raised in these proceedings with or in the presence of the child or permitting any other person to do so;
(d)Travelling with the child to a location subject to an adverse travel warning issued by the Australian Government that is higher than “exercise normal safety precautions” at the time of travel;
(e)Videoing or recording any handover between the parties; and
(f)Permitting any other person from attending at the handovers referred to in paragraph 19 herein without the written consent of the other parent having first been obtained.

27.The mother and her agents be restrained by way of injunction from referring to her partner Mr H as “Daddy” or using any other form of address other than “Daddy Mr H” with respect to Mr H.
28.The parties facilitate the said child communicating with the other parent by telephone at any time as reasonably requested by the child.
29.Each party keep the other informed of their respective telephone numbers and residential addresses and advise the other within 24 hours of any change.
30.The parties shall keep the other informed of:
(a)Any medical problems or illness suffered by the child whilst in their respective care;
(b)Any medication that is prescribed for the child;
(c)Any social, school or religious function that the child is to attend;
(d)Any other matter relevant to the child’s welfare.

31.In the event of a medical or health emergency concerning the child, the parent who has the care of the child shall notify the other parent by telephone immediately and inform the other as to the presenting medical issue and the name of the medical practitioner, medical centre or hospital.
32.The parties shall be at liberty to receive at their sole expense copies of all reports, photographs, notifications and other documents relevant to the child’s attendance and a copy of these Orders shall be sufficient authority enabling them to do so.
33.The parties shall be at liberty to attend events at the child’s school to which parents are usually invited to attend, including but not limited to concerts, sports days, carnivals, presentations, assemblies, excursions, parent teacher interviews and similar events or school related extracurricular activities as may be held from time to time.
34.Upon compliance with paragraphs 4 or 9 herein, the appointment of the Independent Children’s Lawyer be discharged.
35.All extant applications be dismissed.

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

The proceedings between Ms Griggs (‘the mother’) and Mr Oduro (‘the father’) involve competing parenting applications in relation to future arrangements for their one child, X (‘the child’) born in 2016. The child is now 5 years and 11 months of age.
DOCUMENTS RELIED UPON AT TRIAL
Court documents
The mother relies upon the following documents:
(1)Amended Initiating Application filed 4 March 2022;
(2)Trial affidavits filed on 25 January 2022 and 4 March 2022;
(3)Trial affidavit filed 10 February 2022;
(4)Trial affidavit of Ms J, maternal grandmother, filed 25 January 2022;
(5)Trial affidavit of Mr H filed 25 January 2022;
(6)Trial affidavit of Ms D filed 2 March 2022; and
(7)An Outline of Case Document.
The father relies upon the following documents:
(1)Amended Response to Initiating Application filed 23 February 2021;
(2)Trial affidavits filed 3 February 2022 and 25 February 2022;
(3)The report of Ms K, Psychologist (tendered by consent without the need for Ms K to be cross examined); and
(4)An Outline of Case Document.
Exhibits
The parties also tendered by way of exhibit:
Mother
(a)USB Stick of video and audio taken of handovers on 23 December 2021 and 6 January 2022 (Exhibit M2);
(b)Photocopy of mother’s diary entry dated 23 June 2021 (Exhibit M3);
(c)Selection of SMS messages between the parties in October 2018 in relation to the child (Exhibit M4);
(d)CPS Carer Interview with the father dated 28 January 2021 (Exhibit M5); and
(e)Photograph of Mr Oduro (the father) wearing silver ring on middle finger dated 2014 (Exhibit M6).
Father
(a)Text messages between parties dated 23 December 2021 (Exhibit F1);
(b)Medical Report dated 8 February 2021 by Dr L Forensic Paediatrician Child Protection Services in relation to the child X (Exhibit F2);
(c)Child Protection Service Continuation Sheet dated 20 January 2022 (Exhibit F3);
(d)Child Protection Service Intake Form dated 9 April 2021 (Exhibit F4);
(e)Photocopy of mother’s diary entry dated 8 April 2021 (Exhibit F5);
(f)Child Protection Service Continuation Sheet dated 22 February 2022 (Exhibit F6);
(g)Photocopy of mother’s diary entry dated 18 November 2021 (Exhibit F7);
(h)Child Protection Service Continuation Sheet dated 7 January 2020 (but should read 7 January 2021) (Exhibit F8);
(i)Child Protection Service Continuation Sheet dated 12 January 2020 (but should read 2021) (Exhibit F9);
(j)Photocopies of diary entries made by Ms J (the maternal grandmother) (Exhibit F10);
(k)Co-parenting counselling report dated 3 March 2022 prepared by Ms K (Exhibit F11); and
(l)Photographs of father’s plants in his apartment dated March 2022 (Exhibit F12).
Independent Children’s Lawyer
(a)CPS Case Note dated 21 January 2021 (Exhibit I1);
(b)Forensic Psychosocial Assessment Report dated 26 March 2021 (Exhibit I2);
(c)Department of Child Protection Familial Intake Report in relation to the child X (Exhibit I3);
(d)Transcripts of interviews between child X and Ms M CPS dated 8 February 2022 and 14 February 2022 respectively (Exhibit I4);
(e)Child Protection Services Forensic Psychosocial Assessment Report dated 24 February 2022 (Exhibit I5); and
(f)Video interviews of the child X and Ms M of CPS on 8 February 2022 (Exhibit I6).
(g)Addendum Forensic Psychosocial Report dated 16 May 2022 from Ms M of the Child Protection Service (Exhibit I7).

The Court also heard evidence from:
(1)Ms N, Court Child Expert (‘the Court Child Expert’). The Court Child Expert’s oral evidence supplemented her Family Reports dated 29 May 2019 and 30 September 2021; and
(2)Ms M from the Child Protection Service (‘CPS’) at the O Hospital. Ms M oral evidence supplemented her Forensic Psychosocial Assessment Report dated 24 February 2022. The Addendum Forensic Psychosocial Report dated 16 May 2022 was admitted into evidence by consent on 25 May 2022 without the need for Ms M to be called for further cross examination.
ISSUES IN DISPUTE
The parties are at odds with respect to the final orders sought by each of them in relation to the child at Trial.
The issues in dispute can be summarised as follows:
(1)Whether or not the mother or the father should have the sole parental responsibility for the child;
(2)Whether or not the child should live either with his mother or his father;
(3)If the mother is successful with her application, then whether or not the child’s relationship with his father should be permanently terminated, or in the alternative, whether or not the child should spend time with the father supervised by a professional supervisor for 2 hours each week;
(4)If the father’s application for primary care is successful, whether or not the mother should spend time with the child each alternate weekend from Friday to Monday (or such other longer period), school holidays and special occasions; and
(5)Is the child at risk in the care of either or both of the parties?
BACKGROUND
The father was born in 1974 and is currently 47 years of age. The father is employed as a professional in Adelaide.
The mother was born in 1985 and is now 36 years of age. The mother is employed as a sales manager.
The mother has re-partnered. The mother is now in a domestic relationship with Mr H (‘Mr H’). Mr H was born in 1984 and is now 37 years of age. Mr H works as a tradesman. The mother and Mr H have a child of their relationship, namely P (‘P’) born in 2019 and now aged 2 years and 8 months.
Both the father and Mr H are of Country Q heritage.
The parties commenced cohabitation in 2012 and were married in 2015. The parties separated under the one roof in August 2017 and separated for the final time on 23 March 2018. The parties were divorced on 11 October 2020.
Following separation in March 2018, the parties implemented an informal shared care arrangement of the child by consent.
On 19 November 2018, the mother and Mr H entered the father’s residence without his consent, during a period when the mother knew that the father would be absent from his home. The mother, having entered the property, took photographs of the father’s residence and thereafter withheld the child from spending time with the father alleging that the child was at risk in the father’s care. The specifics of the allegations are contained in paragraph 28 of the mother’s Trial affidavit filed 25 January 2022 and can be summarised as follows:
(1)That the father’s residence was in filthy condition, there was mouldy food on the counters and a cat litter tray next to the food preparation area;
(2)That the father had left children’s medication unrefrigerated and on a counter; and
(3)That the mother, on accessing the father’s iPad under the pretence of checking to see whether or not the father was accessing her personal bank accounts, discovered that the father had been viewing female pornography. The mother was unsure as to whether or not the women were underage.
A notification was made to the Department of Child Protection (‘the Department’) on 19 November 2018 alleging the father’s home was unhygienic and that the father had pornography on his iPad.
Thereafter, the child was withheld from spending time with the father save for some limited supervised time each Saturday for 2 hours in a public park.
On 10 December 2018, the father issued urgent proceedings in the Federal Circuit Court (as it then was).
On 11 December 2018, a notification was made to the Department that the mother was isolating the child from the father.
On 4 February 2019, a notification was made to the Department regarding poor living conditions at the father’s residence, allegations the child had sustained injuries and prior domestic violence between the parties.
On 7 February 2019, following interim argument the Court ordered the reinstatement of the shared care arrangement of the child on a split week basis. By this date, the child had not seen the father for about 3 months.
On 14 February 2019, the mother alleged that the child returned from child care after living with the father suffering from a rash on his face. The child was taken to a medical centre for treatment.
On 28 February 2019, the mother collected the child from child care at which time the child presented with swelling under his eye. The child was taken to a medical centre for treatment. The mother considered that the child had been fed food by the father which caused an allergic reaction.
On 14 March 2019, the mother collected the child from child care after a period of time with the father. The mother observed the child to be unwell and took the child to a medical practitioner. The mother contends that the child was diagnosed with an upper respiratory infection for which antibiotics were prescribed.
On 28 March 2019, the mother collected the child from child care after time with the father at which time he presented with a high temperature, cough and runny nose. The child was taken to a medical centre for assessment and prescribed antibiotics.
On 25 April 2019, the mother alleges that the child was delivered into her care by the father presenting with a rash, high temperature, suffering severe dehydration and bleeding gums. The child was subsequently diagnosed with Influenza A.
On 13 May 2019, the mother filed an Application in a Case seeking to reduce the number of nights that the child was in the father’s care to 4 nights per fortnight.
On 30 August 2019, the first Family Report of Court Child Expert Ms N was released. In broad terms, the report recommended a continuation of the equal shared care arrangement and that the parties nominate a preferred medical and dental practitioner to provide consistency in health care planning for the child.
On 28 January 2020, detailed final orders were made to provide for equal shared parental responsibility and for the week about arrangement for the child continue, together with a raft of other parenting orders. Importantly, the final orders were made by consent of the parties.
Across the month of 26 March 2020, the mother alleged that the child was returned to her from the father with a rash on his face and a bruise on his wrist which the mother attributed to the child being tied up. The child was photographed to document the injuries.
On 8 October 2020, the mother alleged that the child came into her care with bruising around his neck consistent with the child being “strangled” or being “grabbed” around the neck. The child was photographed to document the injuries on both occasions. Similar allegations with respect to bruising were also raised by the mother on 5 November 2020.
From October 2020 the mother alleged that the child commenced having “night terrors” and would wake up screaming “daddy is going to come out of the wall and get me” or “Mr Oduro is strangling me” or “Mr Oduro is going to tie me up”.
From September 2020 onward, the mother alleged that the child was returning to her care presenting as “pale, skinny, gaunt, hungry and withdrawn”.
On 26 November 2020, the mother alleged that the child became distressed at handover and refused to go into the father’s care.
On 3 December 2020, the mother received a telephone call from the maternal grandmother. The maternal grandmother reported that the child’s childcare worker had commented to her that the child was “very pale this morning and his behaviour improved throughout the day but they were worried about him or words to that effect”. At the direction of the mother, the maternal grandmother then showered the child to specifically see whether or not the child had any bruising or “was hurt”.
The maternal grandmother then observed what was described as a “large bruise” on the child’s back. A locum doctor was summonsed. A short form medical certificate was provided which noted that “the child has faint bruise lines on the left loin area. Full report at NHD Office”. The child was questioned about his bruising by the mother. In paragraph 57(c) of her Trial affidavit filed 25 January 2022 the mother reports the child when questioned about the alleged bruising:
He said looking down in a shy, embarrassed and scared manner, “not sure”. As a result of his demeanour, I did not feel comfortable pressing him further. It was not until 16 December 2020 that he told me that he was being hit by a baseball bat and a golf stick. I rang the child abuse hotline immediately.
On 3 December 2020 a mandatory notification was made by the maternal grandmother. The CPS “Strategy Discussion” dated 4 December 2020 records the maternal grandmother as being unable to provide further information about the alleged injury because “the child is not speaking about what happened”.[1] The notification triggered an investigation by the Department and the Child Protection Service (‘the CPS’).
[1] See father’s Trial affidavit filed 25 February 2022 at pg 78.
On 3 December 2020, the mother withheld the child from the father due to concerns about “physical and psychological harm”.
Based on the abovementioned chronology, the evidence suggests that between 3 December 2020 and 16 December 2020 the mother remained alert to the possibility that the child’s “faint bruise lines” were suspicious and that conversation continued to take place with or in the presence of the child as to the provenance of the injury. The alleged disclosure by the child occurred nearly 2 weeks after the bruising was first noticed by the maternal grandmother and during a period when the child was not living with his father at all pursuant to the final consent orders.
On 11 December 2020, the mother signed a Safety Plan with the Department which provided for the child to remain in the mother’s care until advised otherwise and the child was to be interviewed.
A CPS Strategy Discussion File Note dated 5 January 2020 noted “new concerns – this time about alleged sexual abuse”. The File Note refers to concerns that the child had failed to give contextual detail to the allegations of physical abuse and was “keen to end the interview”. The mother was reported as stating that the child “may be feeling safe…in her care and thus more likely to speak about experiences”. Despite concerns by the child welfare authorities that the child was about to be interviewed for the third time, given the sexual abuse allegations were new, the child was re-interviewed.
On the final page of the said Strategy Discussion, the following is recorded:
DCP; the father has been fine in his interactions with DCP – seems understanding of the process but concerned about the impact on X of no contact and he has expressed concerns that for the past 3 Christmases, the mother has stopped contact. He said he sees it as a pattern by the mother to prevent him from having contact at the special times of the year. The father has presented as being child focussed and has been asking how X is going and querying the impact of no contact. The mother has made several comments which have put doubts into the minds of DCP worker about whether she is being driven by other factors – she called again this morning and left voicemail message in heightened tone, saying it was an urgent matter and needed the worker to call her back in relation to the new allegations. DCP more concerned about the mother’s presentation as compared with the father.[2]
[2] Ibid at pg 83.
Across December 2020 and January 2021, the child continued to make alleged disclosures to the mother and the maternal grandmother alleging:
(1)Strangulation by his father;
(2)That the father had placed sticky tape on his mouth;
(3)That the father had chained the child to the bed if he was naughty;
(4)That the child had nightmares at night informing his mother that his father had been “coming out of the wall” and trying to tie him up and strangle him;
(5)That the father had hit the child with a “baseball bat” and a “golf thing”;
(6)On 28 December 2020 an allegation that the father had touched his “bum” and “penis”.
(7)That the father only fed him noodles, that he did not have his own bedroom and slept with his father; and
(8)That the father had touched the child’s “bum and willy”.
In December 2020 and January 2021, the child was interviewed on no less than 4 occasions by workers from CPS.
On 6 January 2021, the mother entered into a further Safety Plan with the Department which provided that the child was to have no contact with the father, the mother was not to prompt any conversations with the child in relation to alleged abuse and the mother was to continue to engage with the said Department.
On 7 January 2021, the maternal grandmother is recorded in a CPS Continuation Sheet referring to the allegations of sexual abuse, the father “coming out of the wall” and the father using profane language. The maternal grandmother also described the child as being “sadder and borderline depressed” than he had been, although “a bit better of late” (Exhibit F8).
A Continuation Sheet from the Department dated 12 January 2021 records a telephone call between an officer from the Department and the maternal grandmother as follows:
She said that both she and the mother were very disappointed about the current situation, following the third forensic interview and said that they have seen the way that X reacts to Mr Oduro (the father) and said he is scared of Mr Oduro and has been having recurring nightmares about Mr Oduro coming out of the wall.
DL explained that X had not been able to provide enough contextual and clear information about abuse for police to take any further criminal action.
Ms J said she questions giving X back to Mr Oduro and said that X does not make things up and has said that Dad hits him with a golf bat and Mr Oduro put a chain around his neck if he does not behave. She also expressed concerns about possible sexual abuse and said that there is a history of sexual abuse in the father’s family. She said that “ putting everything together” the family has concerns about X being with his father.
Further in the document it was recorded:
She said that her family knows that something has happened to X and said “we won’t give up and we will go for custody and maybe supervised visits” for the father.
The Continuation Sheet dated 12 January 2021 records the third forensic interview.
The child attended in the company of his mother and maternal grandmother. The focus of the interview was on sexual abuse. The child presented as tired and not as engaged as in the previous 2 interviews and early in the session started to indicate that he wanted to leave and was tired. The child “spoke about being touched on his willy and his bum by his father and that he was not allowed to talk about it”. However, he again was lacking in contextual information. He said it happened in Dad’s bed and then said it happened in the shower and also provided information that appeared fantastical – such as Daddy touching his penis with a needle.[3]
[3] Ibid at pg 91.
On 19 January 2021, the mother alleged that whilst putting the child to bed and as they were reading a bible story the child said to her “he loves God and maybe one day God will kill him (Dad)”.
On 21 January 2021, the parties were advised by the Department that they would not proceed any further with the investigation and that the final orders should be reinstated. A CPS Case Note dated 21 January 2021 records the mother being informed by the Social Worker that:
due to CPS and SAPOL finalizing (sic) their Investigation processes, DCP are now not in a position to stipulate that X should not have contact with his fa, as DCP have not been able to make any conclusive findings either. Mo became quite heightened on the phone and raised her voice at SSW
…
Mo stated that she would not be letting X have contact with fa and will be speaking with her lawyer requesting an urgent hearing. SSW discussed that if mo would like to withhold contact from fa, then that is now her choice and she should seek legal advise (sic) around making this decision.[4]
[4] Ibid at pg 93.
It is evident from paragraph 72 of the mother’s Trial affidavit filed 25 January 2022 that she was dissatisfied with the outcome of the CPS investigation and continued to hold the belief that the child was at risk in the care of the father.
Despite the advice provided by the Department, SAPOL and CPS that no further action would be taken, the mother continued to withhold the child and instructed her solicitor that the child was continuing to make allegations of physical and sexual abuse against the father.
On 8 February 2021, a forensic medical report was completed by Dr L, CPS Forensic Paediatrician (Exhibit F2). The child had been taken to the appointment by the maternal grandmother. The report was inconclusive but noted that bruising to soft tissue on the child’s thighs would be unusual and required that further explanations be sought.
On 18 February 2021, an internal email from the CPS reports that on 17 February 2021 a worker from CAMHS (Child Adolescent Mental Health Service) received a telephone call from the mother, in which the mother was:
requesting therapy (for the child). The Mother said that X’s behaviours are escalating, for example he is having night terrors and thinks that his father is coming through the wall to get him. Reportedly, child care and the grandmother needed to call Mum to help calm him. In addition X has started throwing things at her and is yelling at her, and is having eating issues, whereby he will not during the day and then gorge himself in the evening.
Ms R is asking if we would consider offering him therapy given that X is beginning to ‘open up and disclose more’, and that we may be able to offer longer term therapy.[5]
[5] Ibid pg 94.
On 5 March 2021 a Case Note from the CPS dated 5 March 2021 records:
Assessment:
Conclusive findings were not able to be determined from the forensic medical and interviews complete with X. There are some suspicions indicators of emotional distress but in the absence of DCP being able to assess the child in the father’s care (mother has chosen to withhold contact) DCP are unable to substantiate the allegations made against the father.[6]
[6] Ibid pg 97.
On 26 March 2021, the CPS released a comprehensive Forensic Psychosocial Assessment Report (Exhibit I2). As part of the assessment, the child was interviewed three times in addition to a preliminary session. Both parents and the maternal grandmother were also interviewed.
On 31 March 2021, the Court ordered that the child’s time with the father was to recommence as and from 1 April 2021 in accordance with the final consent orders made in 2019 (sic). It is agreed by the parties that the reference to orders in 2019 should in fact have been reference to the final orders that were made by consent on 28 January 2020.
The mother thereafter continued to allege that the child presented with bruising after living with the father, in particular on the dates of 8 April 2021, 5 June 2021 and on 17 June 2021. On each occasion the child was photographed by the mother to document the alleged injuries.
On 9 April 2021, the child was taken to the O Hospital by the mother due to alleged bruising evident on the child. The child was examined by Dr S, Paediatrician. On page 5 of Exhibit F4 being the Department Intake Form dated 9 April 2021, it records “consult provided. No further action required”.

On 5 July 2021, the Department confirmed in writing that abuse had not been substantiated in written correspondence. The detailed letter is Annexure A8 to the father’s Trial affidavit and the Department’s findings in the said letter can be summarised as follows:
The ground “child has significant symptoms of emotional distress” has NOT been substantiated
…
The ground “violent behaviour directed toward the child” has NOT been substantiated.
…
The ground “unexplained injury” has NOT been substantiated.
…
The ground “sexual act or exploitation” has NOT been substantiated.[7]
(original emphasis)
[7] Ibid pg 75.
On 26 August 2021, the mother procured a letter from a child care worker at T Children’s Centre referencing the behaviour of the child after being in the care of the father (Annexure 23 to the mother’s Trial affidavit). It was alleged that the child was defiant, withdrawn and used inappropriate language which was in ‘stark contrast’ to the child’s behaviour when with the mother.
On 30 September 2021, an updated Family Report was published by Court Child Expert Ms N.
On 17 November 2021, the father collected the child from child care. The father observed that the child had a “bump” on his head. The father’s evidence is that the child informed him that he was unsure as to how the injury was sustained.
On 18 November 2021, the father sent a text message to the mother informing her that the child had an injury to the right side of his temple which had occurred in child care. The father’s evidence is that he had commenced a practice of informing the mother of any injury the child had exhibited to protect himself from new allegations.
On 18 November 2021, the mother’s partner Mr H collected the child from child care at 4:30pm. The mother arrived home at approximately 6:00pm. The mother alleges that the child appeared “withdrawn and quiet” and complained of having a “sore ear”. The mother observed what she described as a “head injury” which had dried blood on it. The child was then photographed by the mother’s partner Mr H. The mother questioned the child as to what had happened and whether he was okay. The mother alleged in paragraph 81 of her Trial affidavit that:
He looked down (as if he was embarrassed or scared) and said “it happened at child care”. I asked what happened at child care and he said “I don’t know”. I did not press him further because he already appeared upset. I did not want to get him even more upset close to bed time and he clearly did not want to talk about it. I simply accepted his answer, although I suspected that it was untrue.
On 19 November 2021, the mother contacted the V Child Care to obtain a copy of the Incident Report Form which should have been completed if the child was injured. The Incident Report Form was emailed to the mother. It did not contain any reference to an alleged head injury, but rather contained reference to an incident whereby the child had asked a female child at the centre to “pull her pants down”. The mother’s evidence is that she suspected that the father had become angry at the child for asking the child to “pull her pants down” and had then struck the child causing the injury to his head.
On 19 November 2021, the child was alleged to have disclosed to the mother that the child had been assaulted by the father because of the incident referred to in paragraph 66 herein. The child is alleged to have been struck by the father with his hand and “he had a silver ring on”.
On 20 November 2021, the mother’s partner Mr H gave the child a haircut. The child’s hair was cut close to his skull and a photograph taken of the alleged injury.
On 21 November 2021, it is alleged that Mr H telephoned the father alleging that he had assaulted the child and allegedly used profane language toward the father. Mr H denies the allegations in its entirety.
On 21 November 2021, the mother contacted the father by text message seeking clarification regarding the child’s head injury. The father encouraged the mother to ask the child as to the cause of the injury. The mother then telephoned the father to inform the father of the child’s disclosure. The father informed the mother that he had received a verbally abusive telephone call from the mother’s partner Mr H as referred to in paragraph 69 herein.
On 22 November 2021, the mother took the child to consult Dr W at the AH Medical Centre. The mother was present during the consultation. The mother states in paragraph 88 of her Trial affidavit that the child had reported to Dr W that the father had “hit him on the head with a ring (he said it in a whisper)”. The child was referred by Dr W to the O Hospital. The mother conceded that she did not attend at the O Hospital with the child as recommended by Dr W.
On 23 November 2021, the mother withdrew the child from the C Street Childcare Centre.
On 25 November 2021, the mother withheld the child from time spending with the father.
On 6 December 2021, the parties attended their first session of co-parenting counselling with Ms K, Therapist.
On 22 December 2021, following interim argument, orders were made by the Court reinstating the shared care order made by consent on 1 April 2020. The child had not seen the father for about 4 weeks.
On 23 December 2021, a handover took place wherein the child became distressed. The handover was recorded by the mother without the father’s knowledge or consent using her mobile telephone. The recording forms part of Exhibit M2.
Handover occurred on 24 December 2021 back to the mother and again back to the father on 27 December 2021 without incident. From 27 December 2021 to 30 December 2021, the father took the child camping.
On 6 January 2022, the parties undertook a handover at which time the child became distressed transitioning into the father’s care. The handover was recorded by the mother without the father’s knowledge or consent using her mobile telephone. The recording forms part of Exhibit M2.
Following the handover on 6 January 2022, Mr H attended at the Y Street Police Station and made a complaint in relation to the father’s care of the child (including the incident from November 2021) and incidents at handover referred to in paragraph 76 and 78 herein. Mr H provided SAPOL with copies of the photographs of the child taken by himself and the mother on their mobile telephones. The handover recordings dated 23 December 2021 and 6 January 2022 were provided by the mother to SAPOL officers at a later date.
On 16 January 2022 and 19 January 2022, an Officer from SAPOL attended at the mother’s property to investigate Mr H’s complaint.
On 20 January 2022, the mother alleged that she was advised that an interview of the child would not be undertaken by CPS if the child was handed over to the father. Consequently, the child was withheld from spending time with the father after his care on 6 January 2022. A CPS Continuation Sheet dated 20 January 2022 (Exhibit F3) confirms that at this time the Department did not have an open case and that a forensic interview could not proceed if time continued between the father and the child. It was further noted that “SAPOL said that the mother informed them that she initially notified in November 2021 – SAPOL could not see any record of this notification”.
The parties (either individually or jointly) attended co-parenting counselling with Ms K, Family Therapist on 6 December 2021, 10 January 2022, 17 January 2022 and 31 January 2022.
On 2 February 2022, the child commenced at the C Street Primary School.
On 4 February 2022, the father filed an Application in a Proceeding seeking reinstatement of time pursuant to the final order.
The child was interviewed by Ms M of the CPS on 7, 8 and 14 February 2022.
On 22 February 2022, Dr L, CPS Paediatrician Consultant declined to provide an opinion in relation to the photographs taken of the child’s alleged head injury sustained in November 2021 (Exhibit F6).
On 24 February 2022, a Forensic Psychosocial Assessment Report was released by Ms M of the CPS. The child was interviewed twice for this report. The father was not interviewed at all.
On 25 May 2022, an order was made by consent granting the Independent Children’s Lawyer leave to reopen her case and to adduce further evidence from the CPS. An Addendum Forensic Psychosocial Assessment report dated 16 May 2022 had been forward to the Independent Children’s Lawyer after the Trial had concluded. The Independent Children’s Lawyer had brought an Application in a Proceeding to reopen her case and adduce further evidence which was ultimately not opposed by the parties.
The clinician was not required for further cross examination by counsel for either party or the Independent Children’s Lawyer. The Addendum report dated 16 May 2022 was tendered into evidence and marked Exhibit I7.
It is an agreed position that as at the date of Trial, the child had not spent time with his father since 13 January 2022. By the time of Trial, there had been 4 separate withholdings by the mother ranging from between 1 month to almost 6 months since the final date of separation.
The existing orders, as at the date of Trial are the final orders which were made by consent on 28 January 2020.
THE MOTHER’S POSITION
At Trial, the mother sought the following orders:
1.   That all previous parenting orders be discharged.
2.   That the Mother shall have sole parental responsibility for the child X born in 2016 (“the child”).
3.   That the child live with the Mother.
4.   That the child spend no time with the Father.
5.   In the alternative to paragraph 4 herein:
5.1.The Father shall spend supervised time with the child for 2 hours per week
5.2.That the Father’s time with the children shall be supervised by Mr Z, Ms AB or such other supervisor as may be agreed between the parties.
5.3.The costs of such supervision shall be borne by the Father.
5.4.The time and location of the Father’s time shall occur at such time and location as may be nominated by the said supervisor.
5.5.Handover shall occur at the location of the Father’s time.
6.   That in the event of the child being hospitalised or receiving medical attention, the spending time with the child shall notify the other parent as soon as practicable by telephone after the first contact with either the medical practitioner, medical centre or hospital.
7.   That the Father is at liberty to communicate with and to obtain information including photographs and reports from any school attended by the child at his own expense and this order shall stand as authority for the same.
8.   That the Father is at liberty to communicate with and to obtain information from any medical or other allied health professional providing or having provided treatment to the child and this order shall stand as authority for the same.
9.   That on no more than one occasion per month, the Father is at liberty to send cards and gifts to the child addressed to the home of the maternal grandparents and the mother shall ensure that the child receives the same.
10.   That the parties create a personal email address and inform the other of it within four days of the date of these orders, which addresses are to be used for the sole purpose of The Mother providing the Father, on no less than one occasion per month, information concerning the child, with the information provided to consist of the following together with any other matter germane to the child’s care, welfare and development:
10.1The child’s dietary requirements and any relevant preferences and allergies;
10.2Sleeping patterns;
10.3Significant milestones;
10.4Participation in extra-curricular activities;
10.5Any illness or significant accidents or mishaps suffered by the child;
10.6Details of any medication prescribed for the child; and
10.7Any necessary medical appointments arranged for the child and the outcome of such appointments.
11.   That unless otherwise provided for herein, the Father be restrained and an injunction is hereby granted restraining him from:
11.1.attending at or within 100 metres of the child’s school or child care centre, or any other education facility at which the child attends or at any facility at which the child undertakes extracurricular activities;
11.2.coming within 100 metres of the child;
11.3.coming within 100 metres of the child’s place of residence;
11.4.coming within 100 metres of the Mother’s place of employment;
11.5.discussing these proceedings with or allowing the child to read any documents filed in the within proceedings or prepared in connection with these proceedings and from allowing any third person to do so; and
11.6.denigrating the other party or any partner or family member of the other party to or within the presence of hearing of the child or from allowing any other person to do so.
12.   That the appointment of the Independent Children’s Lawyer be discharged.
13.   Such further or other Order as may be deemed necessary by this Honourable Court.
14.   That the Father do pay the Mother’s costs of and incidental to these proceedings.
THE FATHER’S POSITION
At Trial, the father sought the following orders:
1.   All previous parenting Orders be discharged.
2.   The father have sole parental responsibility for the child X born in 2016 (“X”).
3.   X live with the father.
4.   X spend time with the mother each alternate weekend from the conclusion of school (or 3pm on a non-school day) Friday until the commencement of school (or 9am on a non-school day) Monday.
5.   Notwithstanding paragraphs 2 and 3 herein, X spend time with the parties during school holidays as follows:
5.1.For short school holidays;
5.1.1.With the mother from the conclusion of school o the last day of the school term until 5pm Saturday of the middle weekend of the school term; and
5.1.2.With the father from 5pm on the middle Saturday of the school holidays until the commencement of school on the first day of school NOTING X shall be in the mother’s care pursuant to paragraph 3 for the first weekend of the school term.
5.2.For Christmas school holidays on a week about basis (subject to paragraph 6.5):
5.2.1.With the mother from the conclusion of school (or 5pm if a non-school day) on the last Friday of the school term until 5pm the following Friday and each alternate week thereafter; and
5.2.2.With the father from 5pm on Friday of the first week of school holidays until 5pm the following Friday and each alternate week thereafter.
6.   Notwithstanding the care arrangements in paragraphs 2, 3 and 4 herein, X spend time and communicate with each party for special occasions as follows:
6.1.On Mother’s Day, with the mother from 5pm on the Saturday immediately prior to Mother’s Day until 5pm on Mother’s Day;
6.2.On Father’s Day, with the father from 5pm on the Saturday immediately prior to Father’s Day until 5pm on Father’s Day;
6.3.On X’s birthday, telephone communication with the parent who does not have the care of the child at a time to be agreed by the parties in writing, or failing agreement, 5pm;
6.4.On each of the party’s birthday, if X is not otherwise in that party’s care, at a time to be agreed in writing or failing agreement, 5pm;
6.5.For Christmas:
6.5.1.In 2022 and each alternate year thereafter, with the father from 10am on Christmas Day until 10am Boxing Day; and
6.5.2.In 2023 and each alternate year thereafter, with the mother from 10am Christmas Day until 10am Boxing Day.
6.6.For Easter:
6.6.1.In 2022 and each alternate year thereafter, with the father from the conclusion of school on Thursday (or 3pm if a non-school day) until 5pm Easter Monday; and
6.6.2.In 2023 and each alternate year thereafter with the mother from the conclusion of school on Thursday (or 3pm if a non-school day) until 5pm Easter Monday.
6.7.On any other special occasion no otherwise aforementioned, as agreed by the parties in writing.
7.   Any handover not at X’s school take place at the father’s residence between the parties only.
8.   The mother forthwith deliver up X’s passport to the Adelaide Registry of the Federal Circuit and Family Court of Australia.
9.   Thereafter, X’s passport be held at the Adelaide Registry of the Federal Circuit and Family Court of Australia and not be released to ether party save and except with joint written authority from the parties, or Order of this Honourable Court.
10.   In the event X’s passport requires renewal, each party shall sign any passport application or application for renewal and should the other party refuse or neglect to sign the application the other party be authorised to sign in default.
11.   Each party undertakes not to travel with the child to a location subject to an adverse travel warning issued by the Australian Government that is higher than ‘exercise normal safety precautions’ at the time of travel.
12.   Each party be restrained and an injunction is hereby granted restraining them from removing X from the State of South Australia except for the purposes of a holiday interstate, as agreed in writing and unless the travelling party has provided to the other party not less than fourteen (14) days’ notice prior to the proposed travel of the following:
12.1.A detailed itinerary in respect of such travel including addresses and telephone numbers for all venues which it is proposed the child will stay during the course of the travel and the period and dates the child is to stay at those venues.
12.2.All travel dates and copies of tickets showing departure and return;
12.3.Flight numbers and/or details as to the mode of transport;
12.4.A mobile telephone contact number which is to remain operational and is to be answered personally by the travelling party for the duration of the travel period; and
12.5.A proposal for make up time, if the non-travelling party’s times with the child is to be suspended or interrupted by the travel.
13.   Each party be restrained and an injunction is hereby granted restraining them from removing X from the Commonwealth of Australia, except for the purpose of a holiday overseas, as agreed in writing, and unless the travelling party has provided to the other party not less than sixty (60) days’ prior to the proposed travel the following:
13.1.A detailed itinerary in respect of such travel including addresses and telephone numbers for all venues which it is proposed the child will stay during the course of the travel and the period and dates the child is to stay at those venues:
13.2.All travel dates and copies of tickets showing departure and return;
13.3.Flight numbers and/or details as to the mode of transport;
13.4.A mobile telephone contact number which is to remain operational and is to be answered personally by the travelling party for the duration of the travel period; and
13.5.A proposal for make up time, if the non-travelling party’s times with the child is to be suspended or interrupted by the travel.
14.   The parties facilitate X communicating with the other parent by telephone at any time as reasonably requested by X.
15.   Each party keep each other informed of their respective telephone numbers and residential addresses and advise the other within 24 hours of any change.
16.   The parties shall keep the other informed of:
16.1.Any medical problems or illness suffered by the child while in their care;
16.2.Any medication that is prescribed for X;
16.3.Any social school or religious function which X is to attend; and
16.4.Any other matter relevant to X’s welfare.
17.   In the event of a medical or health emergency concerning X, the parent who has the care of X shall notify the other parent by telephone as soon as is reasonably practicable after the first contact with either the medical practitioner, medical centre or hospital.
18.   That the parties shall be at liberty to receive (at their expense) copies of all reports, photographs, notifications and other documents relevant to the children’s attendance and a copy of these Orders shall be sufficient authority for them to do so.
19.   That the parties shall be at liberty to attend events at the children’s school, to which parents are usually invited including, but not limited to, concerts, sports, carnivals, presentation nights,, assemblies, excursions, parent teacher interviews and similar events or agreed school related extra curricular activities as may be held from time to time.
20.   Both parties be at liberty to receive any and all information or records from any (sic)
21.   That the parties are restrained and injunctions are hereby granted restraining either of them from:
21.1.Physically disciplining X, and from allowing any other person to do so;
21.2.Abusing, criticising or denigrating the other party or the other parent’s family in the presence or hearing of X or from allowing any other person to do so;
21.3.Discussing these proceedings or the issues raised in these proceedings with or in the presence of X (other than the outcome with respect to living and time spending arrangements for the children) or permitting any other person from doing so.
22.   The mother be restrained and an injunction is hereby granted restraining her from referring to her party as “daddy” or using any other form of address other than “Daddy Mr H” with respect to her partner that are traditionally reserved for a parent or encouraging X or any other person to do so.
23.   The appointment of the Independent Children’s Lawyer be discharged.
24.   The mother pay the father’s costs of and incidental to the within proceedings.
25.   All outstanding applications be dismissed and the matter be removed from the active pending list.
INDEPENDENT’S CHILDREN’S LAWYER’S POSITION

In the Outline of Case document, the Independent Children’s Lawyer proposed that if evidence was sufficient to do so, the Independent Children’s Lawyer invited the Court to make findings with respect to the following:
(a) Whether the father presents a risk to the child because of his alleged physical abuse of the child;
(b) Whether the mother presents a risk to the child as a consequence of:
(i) Deliberately making unfounded allegations with respect to the father’s alleged abuse of the child; and
(ii) Any likelihood that allegations of a similar nature would continue to be made.
The Independent Children’s Lawyer submitted that if the father was found to pose a risk to the child and the mother’ allegations have foundation in fact, then the Independent Children’s Lawyer supported the child remaining in the mother’s primary care and spending limited time with the father.
The Independent Children’s Lawyer did not support a finding of “no time” between the parents and the child unless the Court found that a parent posed an unacceptable risk to the child. The Independent Children’s Lawyer submitted that if the Court found that the mother’s allegations were deliberately unfounded, then her actions could amount to a form of abuse. Furthermore, if the child was to remain in the mother’s primary care her “misguided belief the child was abused may pose such a risk to the child’s relationship with the father that the relationship between the father and the child would not survive”.
The Independent Children’s Lawyer submitted that without therapeutic assistance it may be that the mother could misinterpret future information and events to support a belief that abuse had occurred and behave in a manner which would place the child at risk of emotional harm.
The Independent Children’s Lawyer submitted however, that even if an adverse finding is made against the mother, the Independent Children’s Lawyer acknowledges that the child has a loving and meaningful relationship with the mother and that it would be in the best interests of the child for the relationship to be supported in a “safe and appropriate manner”.
In summary, the Independent Children’s Lawyer promoted a position at Trial whereby:
(1)The Court should make an order for sole parental responsibility in favour of one of the parties depending on the Court’s findings.
(2)The Independent Children’s Lawyer did not support a position where there would be “no time” with the parent who is not the primary caregiver.
(3)The Independent Children’s Lawyer did not support a return to any shared care arrangement.
Rather, the Independent Children’s Lawyer proposed orders whereby one parent would be the primary caregiver with sole parental responsibility and the child would continue to spend time with the other parent.
SIGNIFICANT ISSUES IN THE PROCEEDINGS
The mother seeks a finding that the father presents as an unacceptable risk of abuse to the child.
The mother asks the Court to accept that the child is at risk of being physically and sexually abused by the father and that her apprehension is genuine and reasonable.
The mother’s submission as to the issue of unacceptable risk is said to be supported by the recommendations made by Ms M in her Forensic Psychosocial Assessment Report dated 24 February 2022.
The father asserts that the mother has unreasonably withheld the child since separation and contrary to Court order on four previous occasions. More recently, the mother ceased to facilitate the child spending time with him in November/December 2021 on account of the mother’s allegations in relation to the child’s head injury.
On 22 December 2021 and following argument the Court reinstated the final orders for shared care. It was noted that the proceedings were listed for final hearing to commence on 7 March 2022.
The father contends that the mother complied with the orders for Christmas Day and week about shared care up and until 6 January 2022. The mother’s partner Mr H then made a complaint to SAPOL raising the matters which had been considered by the Court when delivering the Judgment on 22 December 2021.
The mother’s position is that she ceased the father spending time with the child on the advice of SAPOL, given it was intended that the child be interviewed by the CPS at the O Hospital.
The allegations made by the mother’s partner Mr H triggered the CPS investigation which resulted in the child being involved again in a formal interview process.
At the date of Trial, the father had co-operated with SAPOL and had been interviewed in relation to the allegations raised by the mother. At the date of Trial, the father had not been charged with any criminal offence arising from those allegations.
The father’s care of the child has not recommenced despite there being no involvement by the Department and no charges being brought against the father by SAPOL at the date of Trial.
It is the father’s position at Trial that the mother will not comply with orders of the Court and will not facilitate the child having a meaningful relationship with him or members of the child’s extended paternal family.
The father alleged that the mother, Mr H and members of the maternal family are united in opposition to ongoing time spending between the father and the child and that the child remains at risk if he remains in their primary care, not only of not having a relationship with his father but of being informed that he has been the victim of sexual and/or physical abuse at the hands of his own father.
It is the father’s position that the mother’s conduct in withholding after 13 January 2022 is yet another example of her attempt to alienate the child from the father and to take matters into her own hands. The father submits that it is the mother who remains a risk to the child from emotional and psychological harm.
THE EVIDENCE
The mother
The mother adopted the evidence in her Trial affidavits and gave further brief evidence in chief.
The mother’s Trial affidavit sets out her concerns leading up to the final orders made by consent on 28 January 2020. In paragraph 46 of her Trial affidavit filed 25 January 2022, the mother states as follows:
I felt pressured to enter into the Final Orders to finalise the matter because I was concerned about the heavy criticism made of me in the Family Assessment Report dated 30 August 2019 and this made me second-guess my parenting.[8]
[8] See mother’s Trial affidavit filed 25 January 2022 at [46].
Given the mother’s concession in her affidavit that she felt “pressured” to agree to the final consent orders, it can be reasonably inferred that the mother was never truly supportive of the final orders made that day confirming the orders for equal shared parental responsibility and the shared care arrangement for the child.
The mother’s Trial affidavit then goes on to highlight ongoing allegations of abuse said to have occurred by the father including, bruising, which looked to the mother as if the child has been “tied up”, and bruising to the child’s neck and knee which looked to the mother as if the child has been “strangled” or “grabbed” by his neck. The mother opines that the child was dressed in long t-shirts and long pants even in warm weather, suspecting that the clothing was being used to “hide X’s bruises”.
In paragraph 54 of the Trial affidavit, the mother deposes to the child not speaking to her about “missing his dad or his cousins or the paternal family”. The mother goes on to allege that the child does not speak of his paternal family because “he does not want to spend any time with the paternal family.” In response to a question put by the mother to the child in late 2020 about how the child had gone during his week at his father’s, the mother interpreted the child’s response of “I don’t know” as the child being “too afraid to say anything about what happened in his father’s care”.
The balance of the mother’s Trial affidavit refers extensively to allegations of physical and emotional abuse, alleged to have been perpetrated by the father, together with reference of the involvement of the CPS in late 2020 and early 2021.
The mother deposes of the father’s efforts to inform her of the child’s injuries sustained whilst in his care and describes the “reports” by the father as “defensive” and providing a “definitive excuse for every one of X’s injuries”.
The mother contends that it is her concern about “X’s emotional welfare” which underpins her decision to have “taken significant steps to withhold him from the father”.
The mother specifically refers to the handovers which occurred at the apartment lobby where the father resides on 23 December 2021 and 6 January 2022. Nowhere in the mother’s Trial affidavit does she inform the Court that she had video and audio recorded each of the handovers without the father’s consent. The recording of the handover on 23 December 2021 went for 17 minutes and the handover on 6 January 2022 for almost 5 minutes. Under cross examination by the Independent Children’s Lawyer, the mother confirmed that the purpose of the recordings was to provide them to SAPOL as evidence of the child’s distress and that she had attempted to transfer the video to Mr H prior to his attendance upon SAPOL, but was not successful because it would not be accepted through text message.
The videos taken by the mother of those handovers were tendered into evidence and marked Exhibit M2. The Court had the benefit of watching the videos, which are enlightening. In each of the videos, the mother continues to remain in the vicinity of handover despite the child’s increasing distress and with the mother repeatedly using the words “I know, I know” when attempting to soothe the child. The mother was also observed to alter the angle of her mobile telephone to ensure that the camera recorded the persons present at the handover and obtained the optimal view. From my observation, the conduct of the father throughout both of the handovers was child focussed and appropriate. Despite extremely challenging circumstances and unaware that he was being recorded, the father maintained a reassuring and soothing tone with the child in circumstances where the mother’s failure to promptly depart the handover location only fuelled the child’s increasing anxiety at being separated and transitioning into his father’s care.
The mother was cross examined by counsel for the father regarding the orders sought by her at Trial. The mother confirmed her position, namely that the child should spend no time at all with the father, or in the alternative, be supervised on a professional basis for two hours per week. When questioned as to when an order for supervision might be varied, the mother considered that this would occur when the child was older and could “make his own decision”. The mother confirmed in evidence that she did not believe there was any benefit to the child having a relationship with his father.
The mother agreed that her view regarding the child being at risk in the father’s care and there being no time between the child and the father was a view held she held for a significant period of time. The mother gave evidence in this regard as follows:
And, of course, that has been your concern for quite some time now. The father notes that on 21 January 2021, you told a meeting with CPS and SAPOL that X will never be seeing his father again. That was in January last year. Do you remember saying that? --- Yes, I do.
And that’s a view that you have maintained for quite some time now, isn’t it? --- Yes.[9]
[9] See Transcript of Proceedings from 7 March 2022 at pg 17, lines 6-11.
The mother was asked whether or not she would facilitate a relationship between the child and his paternal grandparents if the child was not spending time with his father. The mother responded by indicating that there would need to be further discussions and that she also had “reservations” about the child seeing his paternal family because the child had previously disclosed being “hit over the head” by the paternal grandfather.
Counsel for the father asked the mother what conditions she would seek for the child maintain a relationship with the paternal grandparents, to which the mother replied “I would have to ask X what he would like to do”.
When cross examined about the use of the word “daddy” the mother confirmed under cross examination by the father’s counsel the child referred to her partner Mr H as “daddy Mr H” and only ever referred to his biological father as “Mr Oduro” and never “daddy Mr Oduro”. The mother indicated that the child commenced calling his father “Mr Oduro” in or around October 2020.
The mother was cross examined regarding the allegations of family violence as set out in paragraph 129 of her Trial affidavit. The mother alleged that the father would lose his temper in the presence of the child at least once per week. The mother also alleged that the father would yell at the child in frustration. The mother was challenged as to her statement to Ms M during an intake interview that she had been strangled by the father “about 10 times”. Counsel for the father cross examined the mother regarding paragraph 16 of her affidavit filed 3 February 2019 wherein the mother stated:
I say that prior to our separation, there was family violence in the relationship. The violence was not physical, in that the father never assaulted me.
The mother was challenged that the content of her affidavit was inconsistent to the matters put by her to Ms M. The mother described her earlier affidavit sworn in 2019 as being “misworded” because there was “no physical evidence” so “there was no bruising”.
Counsel for the father cross examined the mother about the failure to raise any allegation of strangulation in either paragraphs 16 or 17 of her Trial affidavit. It was put to the mother that she was inventing her evidence. The mother denied the allegation and again contended that her earlier affidavit from 2019 had been “misworded”. In response to a question put by the Court, the mother eventually conceded that the failure to set out clearly the allegations of strangulation was a significant omission from her primary Trial affidavit.
Under cross examination by the Independent Children’s Lawyer and when challenged as to why there was no reference to an allegation of strangulation or physical violence in her Trial affidavit, the mother gave evidence as follows:
But again, there is no reference to that or any other physical violence in your trial affidavit? --- Okay. I understand what you’re saying, and I feel that it is a major mistake.
It’s not a matter of whether it’s a mistake or not. It’s whether or not you think that information would be of assistance to her Honour in her final orders for the parenting arrangements for your son? --- Absolutely, it’s relevant.
But you still didn’t think to include this in your trial affidavit? --- As I said, it was misworded and a mistake.[10]
[10] See Transcript of Proceedings from 8 March 2022 at pg 71, lines 38-47.
The mother’s suspicion in relation to the father’s care of the child extended to her belief that the father had deliberately hurt the child by stepping on his foot during a period of supervised time spending in January 2019. At the time that the incident occurred, the father’s time was being supervised by the mother’s parents after a hiatus in their relationship for a period of approximately six weeks. The mother considered it “possible” that the father had deliberately hurt the child during a period of supervised time. After being challenged by the father’s counsel, she eventually conceded that the likelihood of this occurring (i.e. a deliberate assault) was the least likely scenario out of a range of possibilities. It is my observation from the mother’s evidence that this was a concession reluctantly made by her.
The mother was cross examined about the multitude of photographs which have been taken by her, or members of her family, documenting the child’s alleged injuries. It was put to the mother that the photographs were taken by her to produce evidence to be used in these proceedings. The mother denied that this was the case and stated that she had taken the photographs out of concern for the child. When challenged as to what she then intended to do with the photographs, the mother responded:
And – you were concerned about him. What were you going to do with the photographs? --- I wanted to communicate with the father. That’s my whole idea this whole time.[11]
[11] See Transcript of Proceedings from 7 March 2022 at pg 38, lines 28-30.
The mother was challenged about the impact on the child in being photographed by the mother, particularly when the child was unwell and clearly distressed given the child’s presentation in each of the relevant photographs. The mother denied giving any consideration to the impact of taking such photographs of the child’s emotional state at the time when they were taken.
In response to questions put by the Court regarding the photographs, the following evidence occurred:
HER HONOUR: Does he ever ask you, “Why are you taking a photo, Mummy”? ---Like, often, he wants to show me, like, a rash or something. So, you know, if I wanted to show the doctor, for example, like, how he came into my care, then yes. But he – he doesn’t really ask, no.
Right. Does he understand that if he shows you something like that, that it would be the ordinary practice to take a photo of it? --- Perhaps. But I don’t take hundreds of photos. It’s only if he presents unwell. If something – if there’s a rash or, you know, something that’s suspicious.
Right. How many photos – I mean, we’ve seen a lot in this book. How many photos do you think you have of X with – presenting with injuries or illnesses or rashes or something of that descriptive? --- I would say no more than 40.
So can I understand, then, that the photos that are in this book – that’s not all of the photos. This is a selection of the photos? --- I would say that’s majority of them, your Honour.[12]
[12] See Transcript of Proceedings from 7 March 2022 at pg 41, lines 1-17.
The mother agreed with a question put by counsel for the father that she had instructed her partner Mr H to take photographs of the child whenever he considered that “something is not right or suspicious”. The mother also agreed under cross examination that she had only attached the photographs considered by her to be “severe” in relation to the child’s marks and bruising, rather than the full photographic gallery taken by herself and Mr H of the child.
The mother conceded under cross examination by counsel for the Independent Children’s Lawyer that the child now “presents himself” for photographs to be taken whenever he has injured himself. The mother’s evidence was that this behaviour commenced in 2020 when the child was four years of age. Whilst the child did not ask for a photo to be taken of every reported injury, the mother’s evidence was that the child was “not surprised” when one was taken. Of the 40 or so photographs that the mother and her partner Mr H had stored on their mobile telephones, the majority of them were said to have been taken within 24 hours of the child returning to the mother’s care after time spending with the father.
The mother was cross examined about the incident on 3 December 2020 when the child was taken to see Dr AC in relation to a faint bruise line on the left loin area. The mother confirmed her view that this injury was caused by the child being hit by the father with a baseball bat and a golf stick, notwithstanding that there were other explanations for the alleged injury. When asked by counsel for the father whether or not there was any other possible explanation for the bruise, including it being sustained at child care, the mother denied that this was likely because no incident report had been prepared by a child care worker.
The following exchange then took place between the father’s counsel and the mother as to the possibility of other explanations for the alleged bruising:
And when he says that it’s your view that there can be no other explanation except for Mr Oduro using violence? --- There was no incident reports at the childcare so, again.
No, that wasn’t my question. When Mr – when X tells you that he was hit by the father your only explanation is that must have been an act of violence? --- Correct.
It could not have been – it could not have been an accident? --- No.
And it could not have been perhaps in play? --- No.
Did you ever consider either of those explanations? --- No.
Did you consider that X was making that up? --- No.
And beyond the bruising there was no broken bones or the like. It was just bruising in terms of the injury? --- Correct.[13]
[13] See Transcript of Proceedings from 8 March 2022 at pg 15, lines 29-44.

It was submitted that if the father was successful at Trial then the time promoted by him did not constitute a time spending arrangement which would promote a “meaningful” relationship between the child and the mother. It was submitted that if the father was successful at Trial then orders should be made for 4 to 5 nights per fortnight in the mother’s care, rather than the 3 nights as promoted by the father.
The mother’s counsel submitted that he held an instruction that his client would continue to attend upon Ms D and follow her advice.
In response to the orders sought by the father in his Outline of Case document, if the Court found against the mother in relation to unacceptable risk, the mother’s counsel submitted that his client did not oppose orders being made in terms of the father’s Outline of Case document, paragraphs 5, 6, 11, 14, 15, 16, 17, 18, 19, 21 and 22.
The mother did not oppose the child’s passport being held by the Adelaide Registry of the Court in terms of paragraphs 8 and 9 of the said Outline. Paragraph 10 was also agreed.
Paragraph 12 was opposed on the basis that the parties provide the other with notice of any interstate travel rather than seeking permission from the other parent.
In relation to paragraph 13, it was said that each party could travel overseas upon obtaining the other’s consent with such consent not to be unreasonably withheld.
At the conclusion of the Trial, the parties had agreed that if physical time was to continue that any handover not taking place at the child’s school will occur at the E Street, Suburb F which is currently the business premises of the outlet known as “G Store” and with such handovers to occur between the mother and father only and with no other person to be present.
UNACCEPTABLE RISK
It is the mother’s case that the father presents as an unacceptable risk to the child as a consequence of the allegations of physical and sexual abuse made by her as detailed herein. The allegations have been reported to either the Department or SAPOL by the mother, the maternal grandmother or Mr H.
The mother argues that positive findings should be made by the Court such that either the child spend no time with his father or that such time be significantly curtailed such that it be indefinitely supervised on a limited basis.
The mother argues that in the event that she is successful in securing orders in terms of her application, then the impact on the child would be relatively minor given that the child has not seen the father since January 2022 despite there being an extant consent order for shared care.
The basis for the mother’s assertion that the father presents as an unacceptable risk to the child relies upon her consideration of the father’s conduct following separation, the evidence of her mother and partner and the recommendations of Ms M in her report dated 24 February 2022.
Conversely, the father argues that the allegations are untrue and that the mother will stop at nothing to ensure that the relationship between the father and the child is severed. The father argues that the mother’s consistently disruptive behaviour and seemingly endless allegations of abuse are such that the Court can find on the balance of probabilities that the mother’s allegations of abuse are false.
If such a finding is made the father then invites the Court to consider whether the mother presents as an unacceptable risk to the child due to her emotional and psychological abuse in severing the child’s strong relationship with his father and instilling and reinforcing a false belief that the child has been physically and sexually abused by his father.
At Trial there was no evidence that there were any outstanding criminal proceedings. The father was interviewed by SAPOL in January 2022 over the allegation of assault from November 2021. At Trial, the father had not been charged with any offence.
In Vasser & Taylor-Black[54] the Full Court considered that the High Court decision in M v M[55] (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind. Their Honour’s quoted, with approval, the following passages from M v M (supra):
[54] Vassser & Taylor-Black (2007) FLC 93-329.
[55] M v M (1988) 166 CLR 69.
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” (s 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by s 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 is 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.”
…
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.[56]
[56] Ibid at 81, 673-75.
I have given careful consideration to the previous child protection concerns as identified by the various notifications that were made as and from 19 November 2018 to January 2022. The Court cannot ignore the fact that notwithstanding allegations being made during the period 19 November 2018 and 28 January 2020, the mother entered into final consent orders providing for equal shared parental responsibility and shared care. I reject the mother’s assertion that she did not understand the nature of the order she was consenting to, noting that she continues to be represented by the same firm of solicitors in the current proceedings as she was when the final orders were made with her consent.
The notifications made by the mother and members of her family have been the subject of scrutiny by the Department and SAPOL and an earlier Psychosocial Forensic Report of the Child Protection Service dated 26 March 2021.
The mother’s complaints have resulted in the child being subjected to two Psychosocial Forensic Reports and a medical report at the CPS in 2021 and 2022. The file notes from the Department and the CPS total approximately 600 pages. The child has been photographed on at least 40 occasions for the purpose of documenting alleged injuries said to be caused by the father. The child has also attended upon general medical practitioners at the behest of the mother for the purpose of documenting the mother’s complaints. The child is yet to turn 6 years of age.
The Court is concerned with the number of interviews undertaken of the child, the level of conversation regarding allegations of abuse and the impact that all of this would have had on a child impressionable and understanding that the allegations of repeated abuse would result in interests by adults around him.
I find that the mother has deliberately attempted to engineer a situation by encouraging SAPOL to take action against the father following the attendance by Mr H on 6 January 2022. The evidence supports a finding that the mother has made a concerted effort to disrupt the father’s relationship with the child by promoting the allegations she presents as risk.
The evidence supports a finding that the mother has taken active steps to exaggerate the evidence to achieve the ultimate aim of severing the child’s relationship with the father. The mother has also shown herself capable of misleading professionals where she considered it helped her case, shown by her misleading Court Child Expert Ms N over her proposed orders for the second Family Report.
The father has been compliant with orders of the Court and even when under scrutiny by virtue of the mother’s secret recording of handovers and when faced with the most challenging of circumstances regarding the child’s behaviour, has remained passive and child focussed.
It is regrettable that the observations made by Mr AD of the CPS and Court Child Expert Ms N in her Family Reports were not given greater consideration by the mother. By the time of Trial, the child was attending at three separate childcare centres and was being cared for in three separate households, namely his mother, his father and the maternal grandparents. Both Mr AD and Court Child Expert Ms N specifically refer to the impact on a child caught up in adult disputes and how this could impact on the child’s behaviour.
It is an interpretation by Ms M of the child’s responses that provides support for the recommendations contained in the 2022 CPS report. The records of interview do not in my view support the allegations made against the father, nor that he presents as an unacceptable risk to the child.
I find that little weight can be attached to the CPS report. The assessment of Ms M ignores the extent to which the mother was prepared to pursue her complaints in an effort to sever the relationship between the father and the child. The evidence supports a finding that the child has been repeatedly questioned by the mother and members of her family in an effort to confirm what the mother suspects, namely, that the father is the perpetrator of physical and/or sexual abuse. The mother also conceded that she had filed an affidavit in 2019 specifically denying any allegations of family violence by the father, whilst informing the CPS Clinician that the father had attempted to strangle her during their relationship “quite a few times, at least 10” times.[57]
[57] See Forensic Psychosocial Report dated 24 February 2022 at pg 11.
In considering the weight to be given to Ms M’s evidence and her comments contained in the report, I have had regard to the decision of Andrew v Delaine[58] where the Full Court considered the treatment and weight to be given to the recommendations by a Family Consultant:
It is not in doubt that an expert’s opinion, which is based on an appropriate foundation and given by a suitably qualified person, will carry substantial weight. Departure from an expert report in such circumstance requires careful consideration by a trial Judge. However, the ultimate decision still must be that of the trial Judge. The weight to be given to a family report was explained by the Full Court in Hall & Hall (1979) FLC 90-713 at 78,819.[59]
[58] Andrew v Delaine [2009] FamCAFC 182.
[59] Ibid [72].
I have carefully read the reports of Ms M. However, the said reports are one part of the totality of the evidence given at Trial. The Court has had the benefit of hearing all of the evidence from the parties, the maternal grandmother, Mr H, Court Child Expert Ms N and other professionals. Ms M did not have the benefit of all of the evidence available to the Court.
I am satisfied that there is no evidence which could support a finding on the balance of probabilities (or at all) that the father sexually or physically abused the child or presents as a risk to the child.
As set out above, the father contends that should there be a finding of unacceptable risk of psychological abuse by the mother. The father considers that there should be a finding of an unacceptable risk of psychological abuse by the mother based on the following:
(1)The mother is unwilling or unable to support the child’s relationship with the father;
(2)The mother made no concession in the witness box that her assessment of the facts could be in error or showed any insight into the possibility of there being other explanations for the child’s conduct;
(3)The mother has exposed the child to repeated assessments, observations and interviews with medical professionals and others;
(4)The mother and her family have repeatedly photographed the child to catalogue alleged injuries said to be caused by the father; and
(5)The mother secretly recorded two handovers without the father’s knowledge.
The Independent Children’s Lawyer also invites the Court to consider making a finding of unacceptable risk against the mother should the evidence support same.
The mother is a high functioning parent. However, there is a limit to her parenting capacity in that she interprets any behaviour of or bruising on the child through the lens of abuse.
The risks to the child should this behaviour continue are obvious, namely:
(a)The child may be subjected to what has been described as “systems abuse” with further interviews, interventions or appointments:
(b)The child may ultimately cause to view himself as a victim of sexual and/or physical abuse by his father; and
(c)The mother and her immediate family may expose the child to their views that the child has been abused or is at risk of abuse.
These risks are more real than not. The fact that the mother has been prepared to ignore orders of the Court and to take matters into her own hands, does not give rise to confidence that further incidents won’t happen again.
Whilst the risk is appreciable, it is not so unacceptable so as to justify a cessation of the child’s relationship with his mother. Nor is such an order sought by either the father or the Independent Children’s Lawyer. Rather, the mother should receive therapy from Ms D and her time reduced by the Independent Children’s Lawyer before returning to overnights, and ultimately school holidays.
Provided the mother can accept the findings of the Court, then the child will not be at risk of psychological abuse in the mother’s care. The future of the mother’s relationship with the child will be dependent on her acceptance of the Court’s decision at Trial and engaging in therapy with Ms D.
OBJECTS AND PRINCIPLES OF THE ACT
Part VII of the Family Law Act 1975 (Cth) (‘the Act’) deals with orders relating to children. The overarching consideration is that the Court must consider the best interests of any child concerned as the paramount consideration.[60]
[60] Family Law Act 1975 (Cth) s 60CA.
Part VII of the Act is subject to a number of principles and objects set out in section 60B. The Court is required to ensure that a child’s best interests are served by ensuring that it considers various fundamental principles. They are:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.[61]
[61] Ibid s 60B(1).
The principles which underpin these objects are set out in section 60B(2) of the Act. They are described as follows:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d)parents should agree about the future parenting of their children; and
(e)children have the right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).[62]
[62] Ibid s 60B(2).
Section 60CC of the Act sets out two classes of considerations which apply to the Court’s determination as to how a child’s interests will best be served. They are described as ‘primary considerations’ and ‘additional considerations’.
The two primary considerations in s 60CC(2) are as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse and neglect or family violence.[63]
[63] Ibid 60CC(2).
In Mazorski & Albright[64] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child”[65] concerned. In Jurchenko & Foster,[66] the Full Court also noted in “having a meaningful relationship with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.”[67]
[64] Mazorski & Albright [2007] FamCA 520.
[65] Ibid [26].
[66] Jurchenko & Foster [2014] FamCAFC 127.
[67] Ibid [123].

Section 60CC(2A) of the Act directs the Court that in applying the primary considerations, to give greater weight to section 60CC(2)(b) which is the primary consideration directing the Court to protect children from physical or psychological harm, or from being subjected to or exposed to neglect, abuse or family violence.
Section 60CC(2)(a) – Meaningful relationship
The father’s proposed orders reflect the importance of the child having a relationship with the mother and her extended family despite the father’s primary position that the child should be living predominantly with him.
The mother seeks an order that the child spend either no time with the father or in the alternative, spend limited supervised time.
The mother’s primary position raises into stark focus what is intended by “a meaningful relationship” and whether it is in the best interests of the child to maintain a relationship with the father.
The Independent Children’s Lawyer is supportive of the child having an ongoing meaningful relationship with his father and at Trial supports the child being placed in the father’s primary care.
The 2020 final orders clearly demonstrate at that time an acceptance by the parties that the child would benefit from a meaningful relationship with each of his parents. I consider on the mother’s evidence that she never truly accepted the final consent orders in 2020. Following those final orders, it wasn’t long before fresh allegations arose and the child was withheld. The mother has shown a determination for taking matters into her own hands and to ignore orders of this Court. The decision to report to SAPOL on 6 January 2022 rather than the Department demonstrates a level of forethought. I find this was a deliberate decision to side-step the Department, whom the mother considered not to be supportive of her desired outcome and had determined not to investigate the incident from 17 November 2021.
Section 60CC(2)(b) – Need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The allegations made by the mother and the basis for the father’s time being disrupted since the final orders were made form the basis for the mother’s concern that the father presents as an unacceptable risk to the child.
The relevant consideration therefore is whether or not there is a risk to the child arising from the father’s proposal that the child transition to his primary care or in the alternative that the child spend no time with the father as promoted by the mother.
There is no evidence to support a finding that the father poses a physical or psychological risk to the child due to abuse, neglect or family violence. There is evidence to support a finding that the mother poses a psychological risk to the child by severing his relationship with the father and viewing the child’s alleged presentation through the lens of abuse.
Section 60CC(3) – Additional considerations
In considering the additional considerations, pursuant to section 60CC(3) of the Act, I bring to account the following:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
I do not consider any spontaneous statement by the child that he “did not want to see daddy” to be persuasive or indeed influential on the Court. Given the very young age of the child and the disruption to his relationship with the father, any views expressed by him need to be approached with great caution. There is no evidence at Trial upon which the Court can give weight to the child’s views.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child);
The child has had a loving relationship with each of his parents and extended families. Both Family Reports involved extended family and Mr H and P. It is the risk to his future relationship with his father which features at this Trial, given the conduct of the mother and those closest to her. I accept the father’s evidence that normally the child has a good relationship with the paternal family, including numerous cousins. The first Family Report by Court Child Expert Ms N supports a finding that the relationship between the father and the child (if uninterrupted) is a mutually loving one and should be maintained. The updated Family Report recommends that consideration be given to changing the child’s primary care if a finding is made by the Court that the mother is not able to support the father/son relationship.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child
The father has always sought to take any opportunity to spend time with the child. The parties have agreed the child’s primary school. The parties have failed to agree on the child’s medical treatment or who should provide same.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Each of the parties have maintained the child during their periods of care. The agreed position is that, to date, neither party has sought any payment of Child Support from the other.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The primary order sought by the mother would continue the current status quo which has been imposed by the mother since January 2022 and contrary to final Court Order. The child has, since 13 January 2022, remained in the full time care of the mother and spent no time with the father. The mother’s secondary order proposes permanent supervision on a restricted day time basis and paid for by the father.
The orders proposed by the father would have a change in the child’s circumstances in that if the Court is to accede to his application, there would no longer be a shared care arrangement. Rather, the father promotes that there be one primary base for the child but with regular ongoing time between the mother and child following a period of suspension to allow the child to adjust back into the care of the father without interference and disruption from the mother and/or members of her family and for the mother to undergo therapy.
The Independent Children’s Lawyer largely supports the orders promoted by the father as being in the child’s best interests.
I am satisfied on the evidence that the child’s relationship with his father is strong enough to withstand the orders sought by the father. I have little confidence that the mother will or is capable of supporting the child’s relationship with the father.
In order for the child to reinstate his relationship with the father I propose to suspend the mother’s time with the child for a period of six weeks and thereafter to gradually reinstate the mother’s time spending as recommended by the Independent Children’s Lawyer. Court Child Expert Ms N opined that a suspension of time between eight and 12 weeks was appropriate. Given that the child will have no contact with his half sibling in that time, I consider that six weeks is an appropriate balance so that the mother can commence therapy with Ms D and for the father to re-engage with the child after a significant disruption of their relationship.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There should be no practical difficulties in implementing the proposed orders. The child will continue to attend at the C Street Primary School where he was enrolled with the consent of each of his parents and has attended since Term 1 2022.
Each of the parties will continue to reside in the accommodation occupied by them at Trial. Any handover not taking place at the child’s school should occur at the G Store outlet nominated by the parties during their final submissions.
(f) the capacity of (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs
There is no evidence to suggest that the child is anything other than settled into his current school. Both parties appear capable of providing for the child’s physical needs.
The mother should continue with her therapeutic intervention with Ms D to support her to adjust to the orders now made and to assist the mother in gaining some insight into the possibility for there being other explanations for the child’s alleged complaints other than they were caused by abuse levelled at the child by his father.
I am satisfied that the father has the capacity to provide for the child’s emotional needs and will do whatever is needed to assist the child to transition in accordance with these orders.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child is almost 6 years of age. The father is of Country Q heritage, as is the mother’s partner Mr H. The mother considered that the child’s exposure to the Country Q culture and tradition could be taught by Mr H rather than the child’s own father. The father’s evidence suggests that there is an extended network of Country Q family in Adelaide who can provide a rich opportunity for the child to enjoy his cultural traditions.
(h) if the child is an Aboriginal child or a Torres Strait Islander child
Not applicable.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father has demonstrated a strong commitment and level of vigilance in relation to his responsibilities of parenthood. I have no concern that the father will continue to do so into the future.
The mother appears to be a high functioning parent but one who fails to recognise the importance of the relationship between the child and his father and the need to consider other options other than sexual or physical abuse at the hand of the child’s other parent.
Both parties have attempted to address the responsibilities of parenthood post separation. Unfortunately, they were unable to do that together. The evidence confirmed that the parties used different medical practitioners for the child, had the child attend at three different childcare centres during any given fortnight and the disputes about the child’s haircuts all support the need for the child to have a primary secure base.
(j) any family violence involving the child or a member of the child’s family
The parties consented to final orders for equal shared parental responsibility in 2020. The mother’s allegations of family violence raised at Trial which fall within the definition of section 4AB of the Act are vague and not particularised. The mother conceded that she did not raise allegations of physical family violence (specifically strangulation) in her affidavits filed before the 2020 final orders were made. I do not accept that this failure was a “mistake” as she suggested in her oral evidence. I do not consider that the mother’s recent allegations should prevent the Court from making the proposed orders at Trial.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family -any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
There is no family violence order.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The only way to avoid further litigation would be to permanently sever the child’s relationship with the other parent. Such an order is clearly not in the child’s best interest and is not supported by the Court Child Expert or the Independent Children’s Lawyer.
The mother shall continue to attend upon Ms D for personal therapy. With her professional input, it is hoped that the mother will be assisted in being able to support the child’s relationship with the father and the further litigation will not occur.
(m) any other fact or circumstance that the court thinks is relevant
Not applicable.
Parental Responsibility
Section 61DA of the Act requires the Court to consider whether to apply the presumption of equal shared parental responsibility by having regard to whether the matters set out in section 61DA (if relevant) would rebut the presumption.
Section 61DA of the Act provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.[68]
[68] Family Law Act 1975 (Cth) s 61DA.
Each party seeks an order for sole parental responsibility. The final order made on the 28 January 2022 provides for the parties to have equal shared parental responsibility.
In this case, I intend to have particular regard to section 61DA(4) of the Act in circumstances where I am not satisfied that it would be in the child’s best interests for an order to be made continuing equal shared parental responsibility. Having considered all of the evidence and the submissions made on behalf of the child, I consider that it is in the child’s best interests in this case for an order to be made that the father have an order for sole parental responsibility, particularly in circumstances where neither party seeks an order for equal shared parental responsibility and the Independent Children’s Lawyer supports an order for sole parental responsibility in favour of the father.
The child’s education insofar as it relates to primary school is the subject of agreement. The child will continue at the C Street Primary School.
There are likely to be ongoing difficulties in terms of the parties’ ability to communicate. In addition, the mother’s conduct with respect to having the child assessed and examined is of great concern. The evidence supports a finding that the mother has used medical professionals in an attempt to gain evidence to support her position in these proceedings.
In those circumstances, I propose to adopt the proposal put forward by the Independent Children’s Lawyer and make an order in favour of the father for sole parental responsibility.
CONCLUSION
The Court declines to make an order for the child to receive personal therapy. Such an order is not supported by the Independent Children’s Lawyer.
The Court adopts the evidence of Court Child Expert Ms N and promoted by the Independent Children’s Lawyer to suspend the mother’s time spending to enable her to receive therapy from Ms D and for the father to have a period of uninterrupted time with the child to re-establish their relationship.
The orders for travel largely adopt the father’s proposal and permit travel interstate and overseas with appropriate safeguards. The injunctions reflect existing orders of the Court or were conceded during final submissions.
For all of the reasons given, and attaching particular weight to the two primary considerations, parental capacity and the findings as to risk, I am satisfied that it is in the best interests of the child to live with the father and for orders to be made as set out at the commencement of these Reasons.

I certify that the preceding four hundred and eighteen (418) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson.
Associate:
Dated: 1 June 2022

File number(s):	ADC 5103 of 2018
Judgment of:	JUDGE DICKSON
Date of judgment:	1 June 2022
Catchwords:	FAMILY LAW - Parenting – almost 6 year old child - final consent orders from January 2020 for equal shared parental responsibility and shared care arrangement –mother reopened parenting proceedings in February 2021 –mother has withheld the child from the care of the father on three occasions since final orders were entered into on the basis of abuse allegations – mother has continued to make allegations that the father physically and sexually abuses the child - where the child has been forensically interviewed on multiple occasions – where the mother’s allegations have not been substantiated – where mother seeks at Trial for the father’s time with the child to be terminated or in the alternative occur on a limited supervised basis – where father seeks for the child to live in his primary care due to the mother’s conduct and failure to support the child’s relationship with him – where the mother and her family members hold an implacable view that the child has been abused by the father – where both parties seek a finding of the other being an unacceptable risk to the child - where if the child continues to live in the mother’s primary care his relationship with the father will be compromised – no unacceptable risk in the father’s care – where Court has little confidence in the mother’s ability to support the child’s relationship with his father - where it is in the child’s best interests for there to be a reversal of primary care and sole parental responsibility to the father – for the mother’s time with the child to be suspended for a period of time and then gradually increased over time – where the Independent Children’s Lawyer supports such orders being made
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60A, 60B, 60CC, 61DA
Cases cited:	Andrew v Delaine [2009] FamCAFC 182 Johnson & Page [2007] FamCA 1235, (2007) FLC 93-344 Jurchenko & Foster [2014] FamCAFC 127 M v M (1988) 166 CLR 69. Mazorski & Albright [2007] FamCA 520 Vassser & Taylor-Black (2007) FLC 93-329
Division:	Division 2 Family Law
Number of paragraphs:	418
Date of last submission/s:	25 May 2022
Date of hearing:	7-10 March 2022 & 15-17 March 2022 & 25 May 2022
Place:	Adelaide
Counsel for the Applicant:	Mr Anderson
Solicitor for the Applicant:	Stanley & Co
Counsel for the Respondent:	Mr Praolini
Solicitor for the Respondent:	Adelaide Legal Solutions
Counsel for the Independent Children's Lawyer:	Ms Bailey
Solicitor for the Independent Children's Lawyer:	Georgina Parker Lawyers

ADC 5103 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS GRIGGS Applicant
AND:	MR ODURO Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE DICKSON
DATE OF ORDER:	1 JUNE 2022