KEEN & BAIRD

FAMILY COURT OF AUSTRALIA

KEEN & BAIRD

[2020] FamCA 1122

FAMILY LAW – CHILDREN – Where it is not in the best interests of the children for the parents to have equal shared parental responsibility – Where there are perils to the best interests in the care of each of the parties, although not such as to warrant a finding of unacceptable risk – Orders for the children to spend time and communicate with their father in accordance with their wishes

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA

Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1988) 166 CLR 69
MRR v GR (2010) 240 CLR 461
N and S & the Separate Representative (1996) FLC 92-655
W v W (abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr Keen

RESPONDENT:

Ms Baird

INDEPENDENT CHILDREN’S LAWYER:

Ark Law Lawyers

FILE NUMBER:

SYC

5878

2015

DATE DELIVERED:

22 December 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

3-6 August 2020, 30 September 2020 and 2 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carr

SOLICITOR FOR THE APPLICANT:

David H. Cohen & Co.

THE RESPONDENT:

Ms Baird

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McConaghy

INDEPENDENT CHILDREN’S LAWYER:

Ark Law Lawyers

Orders

All existing orders in relation to the children:
● X born on … 2007
● Y born on … 2010
("the children") are discharged.
The mother has sole parental responsibility for the children, on the following conditions:
2.1before making any decision in relation to the long-term care, welfare and development of the children she will obtain and take into account the views of the father
2.2the mother will inform the father forthwith of all decisions which she makes in relation to the long-term care, welfare and development of the children
2.3the mother will provide and keep current all authorities necessary to enable the father to obtain such information as he may request from the children's treating health professionals and staff of their schools from time to time
2.4the mother will keep the father informed at all times of the names and addresses of the children's treating health professionals and the school which they attend form time to time.
The children live with the mother.
4.1 The children spend time and communicate with the father in accordance with their wishes from time to time.
4.2The mother do all things necessary to facilitate the children spending time and communicating with the father in accordance with their wishes from time to time.
The Independent Children's Lawyer will provide to Ms J, Psychologist, copies of the Orders and reasons for judgment of the Court and the report of Dr L and thereafter the appointment of the Independent Children's Lawyer stands discharged.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5878 of 2015

Mr Keen

Applicant

And

Ms Baird

Respondent

And

Independent Children's Lawyer

Ark Law Lawyers

REASONS FOR JUDGMENT

The proceedings

Mr Keen and Ms Baird are the parents of two children:
● X born in 2007 (13)
● Y born in 2010 (10).
These proceedings concern parenting orders in respect of the children. There was a wealth of evidence X and Y are both damaged and vulnerable children, who have suffered from exposure to the acrimonious relationship between the parties.
In a Family Report dated 9 June 2016 Ms K opined as follows:
19.It was evidence (sic), despite their protestations to the contrary, that both are adults have very poor boundaries around their conflict and the boys have been exposed to a level of acrimony and antipathy that they would be finding almost impossible to process both cognitively and emotionally.
In a report dated 17 October 2019 the single expert in these proceedings, Dr L, opined as follows:
310.... It is most unfortunate that Y and X have been embroiled in the bitter dispute between their parents and they have been affected by this. Further to this however, there are more distal risks associated with exposure to an acrimonious parental relationship and parental substance abuse and mental illness...
The applicant father sought orders which may be summarised as follows:
1. the father have sole parental responsibility for the children
2. the children live with the father
3.the father forthwith arrange family therapy for himself and the children at his expense
4.the children spend time with the mother each alternate weekend, for half of all school holidays and on special occasions
5.in the event that the mother retains the children after such periods of time, they have no contact with her for six months
6.the mother is restrained from suggesting to the children that they have been subjected to inappropriate sexual conduct on the part of the father
7.the mother is restrained from continuing with sexual assault counselling of the children
8.the mother is restrained from continuing with counselling of the children by Ms J.
The father offered no proposals as to the children's time and communication with him, in the event that they remain in the primary care of the mother.
The respondent mother sought orders which may be summarised as follows:
1. the mother have sole parental responsibility for the children
2. the children live with the mother
3.the children have no contact with the father or, alternatively, telephone communication on one occasion per week
4.in the alternative, the children spend two hours every four weeks with the father at a contact centre.
The Independent Children's Lawyer ("the ICL") proposed orders in the following terms:
1. the father have sole parental responsibility for the children
2. the children live with the father
3.the father forthwith arrange family therapy for himself and the children at his expense
4.the children spend time with the mother each alternate weekend, for half of all school holidays and on special occasions
5.in the event that the mother retains the children after such periods, they spend no time with her for six months and thereafter they spend time with her only at a contact centre
6.the mother is restrained from continuing with counselling of the children by Ms J
7.the mother is restrained from continuing with sexual assault counselling of the children
8.the mother is restrained from bringing the children into contact with Mr M
The ICL offered no proposals in the alternative to a change in primary residence of the children.

Background

The mother and the father, who are aged 41 and 40 respectively, began to cohabit early in 2002 and married in 2013. They separated in July 2014 but attempted unsuccessfully to reconcile on several occasions during 2015 and 2016.
Both parties used illegal drugs during their turbulent relationship. During cross- examination the mother agreed that she "had been physically violent to the father and the children" during the parties' cohabitation. She conceded that she "gave [the father] at least one or maybe two black eyes" and that she kicked him while he was lying on the floor in a drug-affected state. It would appear that the children witnessed, as well as experienced, this family violence on the part of the mother.
In August 2015 the mother sent numerous text messages to the father, in which she appeared to make threats to harm the children. In a text message on 20 August 2015 the mother wrote:
I am going to kill those boys now
When asked about this message the mother said:
I imagine I was not in a good state and I was trying to get to work
although this communication was time-coded 7.20 pm.
In another text message sent to the father in August 2015 the mother wrote:
I’m done u need to know that I’m done if ur not here I promise u I will be taking every last pill I can I will kill those boys I don't have any hope left in life I’m done
(As per the original)
In another message sent to the father in August 2015 the mother wrote:
U be here for the boys or I will call the police and tell them I'm scared I might kill them I will be taken away
(As per the original)
In a further message sent to the father in August 2015 the mother wrote:
I don't trust myself I'm going to do something u better get here fast if u have any love for them
(As per the original)
The mother wrote also in a text to the father in August 2018:
I am going to smother them to death ok
(As per the original)
When asked about these communications the mother said:
I see a very desperate woman struggling to get to work
and
It was incredibly difficult to keep it all together then.
The mother maintained that the children were never at any risk of harm at her hands.
In 2016 the father began to receive psychiatric and psychological assistance for his dependency on opiates and alcohol and also for anxiety and depression. He had previously engaged with such professional assistance but, apparently, he could not sustain a drug-free lifestyle. In approximately 2012 a psychiatrist prescribed the father with Suboxone in relation to his opiate addiction. The dosage has reduced gradually, in accordance with medical advice, and the father continues to take this medication. The father has been free of illicit drugs since 2016 and continues to see a counsellor.
The mother contended that she ceased all use of illegal drugs in 2007, at the time of the birth of X. In her report of 17 October 2017, however, Dr L stated:
38. Ms Baird noted that she has smoked crystal methamphetamines on perhaps ten occasions over the years with the last use being about two years ago.
In April 2017 the mother experienced a sudden onset of psychotic symptoms. She has consulted a psychiatrist, Dr H, since May 2017 and is prescribed anti-psychotic medication. In an email to Dr L, Dr H wrote inter alia as follows:
Ms Baird has a formal DSM-5 diagnosis of schizophrenia, in remission. While Ms Baird had clear symptoms of psychosis that responded to treatment with antipsychotic medications, her very good recovery and absence of negative symptoms are not typical of schizophrenia, and I think that her prognosis is much better than this diagnosis suggests. I think the form of her symptoms is more typical of a reactive psychosis.
Ms Baird is prescribed antipsychotic medications. She is quite compliant with treatment. I recommend ongoing treatment at the current dose at least until her current stressful circumstances related to court proceedings are over. In the longer term gradual reduction in dose should be possible, and it may eventually be possible to cease treatment.
Ms Baird would benefit from psychological treatment, and this is part of her therapy with me. ...
On 26 June 2017 the parties consented to final orders which provided that the children live with each parent on a week-about basis. This arrangement broke down in December 2017, following their mother's first allegation that the father sexually abused X. The mother unilaterally suspended the children's time with the father in December 2017. On 23 August 2018 interim orders were made which provided that the children spend time with the father from 9.00 am until 5.00 pm each Sunday, under the supervision of the paternal aunt, Ms B.
The Magellan Report dated 13 July 2018 (Exhibit 6) contained the following account of the incidents in December 2017:
On 24 December 2017, Community Services received a report that X had drawings of sexual nature on his Ipad. The drawings included the drawing of a person with a penis in its mouth, a drawing with a person with what appears to be an erection, a drawing of a set of testicles, another drawing of a penis, and another drawing of a person with what appears to be an erection with wording on it saying "tiptoe through the window". The report also stated that Police heard two voice recordings on the phone with X talking about sucking a penis. X spoke with Police however did not disclose anything, but appeared to be extremely fidgety, very anxious and nervous, avoided eye contact with Police and was unable to sit still and looked very uncomfortable having a conversation with Police. It was also reported that in the past few months X had been returning from his father, Mr Keen's ('Mr Keen's) house very lethargic, drowsy, dazed, exhausted and very often sick with a cough, loss of appetite and motivation. This report was screened-in as a ROSH report under suspicious indicators consistent with sexual abuse.
On 28 December 2017, Community Services received a report related to the ROSH report received on 24 December 2018. It is reported that on 23 December 2018, Police attended Mr Keen's residence and found Mr Keen left with the children to their mother's place as requested by the mother, after she processed the information from X and asked Mr Keen to return the children to her. Ms Baird also reported to the Police that X was seen making gestures with his finger inside his hand and saying "you think I like it" but no further information was obtained from X. ...
COPS entries dated 24 December 2017 and 26 December 2017 in relation to these events read as follows:
DATE: 24/12/17 YP: ... Police have spoken with the PR to enquire if there were any further disclosures the YP has made since the reporting of the incident. The PR stated that she had asked the YP further questions about the matter and "what happened with dad?" The PR stated that the YP said "No, you think I liked it" and "Nothing happened". The PR has went on to say that she will be applying for an in-juncture for the current family law court orders until the matter is sorted out. Police have contacted the child protection helpline ...
DATE: 26/12/2017 YP: ... Detectives have attended .......... .......... .......... and spoke with the YP. The YP answered a number of questions about the incident reported and stated that he was "being silly" or "having fun". The YP did not disclose any incident to police. During the conversation the PR interjected a number of times and attempted to sway the YP towards a disclosure. The YP did state that he had seen some naked picture "pop ups" on his I pad and made particular reference to pictures he had received on his I pad that were meant for his mother (shots of a males penis). The YP stated that he had not seen the lower half of the fathers body since he was a young child. The YP appears to be happy and healthy. No disclosures made at this time.
Records of the then Department of Family and Community Services ("FACS") in relation to the events of December 2017 read in part as follows:
There are 22 previous reports dating back till (30/08/15). The most recent report is dated (24/10/17) and relates to: Y (7 years old) has become extremely upset at school and has been crying uncontrollably as well as developed behavioural symptoms such as finding it difficult to breath and showing other uncontrollable movements. Y gets upset and repeatedly says that he wants his father. X (10 years old) disclosed that his mother said that he will not be able to see his father anymore which may have caused Y's response.
Following the separation of the parties, the mother entered into a relationship with Mr M. They met in an online forum and began to live together two months later. New South Wales Police records indicated that Mr M has a criminal record which extends over several years and involves driving, drug and property offences and one charge of common assault. On 1 August 2020 an Apprehended Violence Order was issued against Mr M for the protection of the mother. During cross-examination the mother said:
There was quite a lot of fighting between Mr M and me. I tried to fight with him only when the boys were with their [grandmother]. He had a very aggressive manner of speaking, a strict manner of discipline and yelling at the boys. When I met him I thought he was a solid figure for the boys with a lot of money.
The mother conceded in cross-examination that Mr M "was not a positive influence on the boys". She said that she "made a bad choice". It seems that Mr M and the mother ceased living together in about October 2019.
Allegations of sexual abuse of X by the father re-emerged in June 2020, when Ms J made a mandatory notification to the Department of Communities and Justice ("DCJ"). Ms J is a psychologist who sees both children and has held discussions with the mother. The notes of Ms J in regard to a session on 9 June 2020 included the following:
X reported that he-
Not as easy to talk with and to discuss issues- kept repeating saying I don' know
the court case was put off due to COVID
Choices worksheet- best and worst choices - haven't had to visit my father ...
surviving troubling times worksheet- worst thing that has happened- having to visit my father; maybe my father will get custody after the court case ...
How has this experience affected you- became very upset and tried to hide himself in the chair; my father sexually abused me- inappropriate touching.
(As per the original)
Ms J's notes for a session on 25 June 2020 read inter alia as follows:
surviving troubling times worksheet- worst thing that has happened- having to visit my father; maybe my father will get custody after the court case
How has this experience affected you from past session
stated father wasn't nice to me- hit me on the legs, bottom
father touched me where he wasn't supposed to- on the penis ( started to cry and asked for is mother)
(As per the original)
Records of New South Wales Police Service indicated that this matter was accepted by the Joint Referral Unit on 25 June 2020. X was interviewed by a detective and a DCJ worker on 3 July 2020. The relevant entry in the DCJ file recorded:
During the interview, X did not disclose a criminal offence.
On 21 July 2020 X was interviewed at home in his bedroom by a DCJ worker. DCJ notes for this interview included the following:
The ROSH report was received on 9/06/2020 by Central Metropolitan JCPR detailing the above; a further ROSH report was received on 10/06/2020 where X disclosed the following: Dad wasn't very nice to him in the past and has hit him "sometimes on legs and sometimes on bottom" – X also stated that ‘he touched me on my penis he just touched it’. X then became very upset and didn't disclose any additional detail. X stated "I'm really scared of him" – Was asked whether anything like this had happened to Y; X said "don't know about Y".
(As per the original)
DCJ records in relation to the interview on 3 July 2020 stated inter alia as follows:
- he came to talk about what his dad did a few years ago – it happened in his father's home in Suburb F – his father's name is Mr Keen and he is approximately 39 years old – it was hard for him to describe what his father did to him. X became emotionally distressed and the interview was suspended. X agreed to come in another time.
On 15 July 2020 Ms Baird advised the caseworker that X told her he felt intimidated by three people present for the interview and freaked out when police wanted all the details of the sexual abuse. X told her he is really scared to tell police as he doesn't want his dad to go to jail. X said he doesn't (sic) want to think his dad is gay or want people to think he liked it.

On 7 September 2020 the father attended an interview with DCJ officers in the company of his sister. The father vehemently denied that he had subjected X to any sexually inappropriate behaviour. The notes of the interview recorded, inter alia, that the father said that he left his bed and held X until he went to sleep on occasion. Dr L observed that the father "took a lot of opportunities to make negative comments about the mother" during this interview.
This investigation substantiated sexual abuse of X by the father. DCJ notes recorded the father's reaction when an officer informed him of this outcome. The father said:
This is unbelievable; this is not true; X has been told to lie by his mother. I have made it clear, the truth will come out...
I refer below to the expert opinions of Dr L in relation to this substantiation by DCJ officers.
After completion of this investigation, a DCJ officer wrote inter alia in a report:
The following was considered in terms of substantiation of harm on the balance of probabilities:
●X has disclosed sexual harm to caseworkers and other professionals, including specifically stating that he was "sexually abused" and that he was touched on the penis by his father. This fits the definition of actual sexual harm.
●Behaviours/characteristics/risk factors associated with perpetrators of sexual harm are present and increase the likelihood that harmful behaviour has occurred, these are:
●Need for secrecy (dad said it was a secret before it happened).
●Hurting pets (throwing cat).
●Domestic violence perpetrating behaviours/physical harm of children.
●Violent/criminal behaviour (armed robbery, driving substance affected with children in car).
●Mental health concerns (anxiety, depression, "zombie" like state).
●Substance misuse (cannabis, cocaine, ice, alcohol).
X's behaviours:
●Professionals feel his disclosures appear authentic.
●His responses to discussing the events indicate a significant trauma response.
●He has previously exhibited sexualised behaviours (drawing and comments related to oral sex).
●He is fearful of his father ("I'm really scared of him"), to the extent where the siblings plan to run away if required to live with their father.
●X is at an age where he would understand socially acceptable sexual behaviours and boundaries and whether a sexual behaviour was inappropriate, meaning it is highly unlikely there has been any misinterpretation of the actions reported.
●X has very clearly experienced the actions as being a form of abuse and the child's experience needs to be considered when forming a view of whether harm has occurred.
(As per the Original)
This DCJ officer relied upon the following matters as the basis for naming Mr Keen as a personal causing harm on the balance of probabilities:
●Opportunity: there has been opportunity for harm during X's visits with Mr Keen, in particular when he has entered his bedroom in the evening.
●Opportunity was also verified by X's sibling Y, and later by the father Mr Keen.
●Y also said he heard X distressed and thought Mr Keen may have been hurting him.
●X has not identified any other Person of Interest.
●X's age means that there is little likelihood of confusion in respect to him naming a specific PCH.
These reports were signed by Ms T, casework specialist. Ms T concluded her report by observing that "any Children's Court legal actions would trump Family Court orders”.

Approach to these proceedings

In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two “primary” and several “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3), (4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:
[8]Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9]Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
…
[13]Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
…
[15]Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …
In previous decisions, I have adopted the following approach for cases which involve allegations of child sexual abuse:
17.A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in
M v M (1988) 166 CLR 69 (“M v M”). Their Honours said at page 76:
…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…
and at page 76:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
18.In M v M at pp.76-77 the High Court identified the relevant standard of proof in these terms:
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 362]. There Dixon J said:
The seriousness of an allegation made, the inherent likelihood 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.
19.The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
20.The High Court in M v M addressed the issue of “unacceptable risk” of sexual abuse and said at page 77:
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.
21.In W v W (abuse allegations: unacceptable risk) (2005)
FLC 93-235 (“W v W”) the Full Court (Warnick, May and
Boland JJ) discussed the “unacceptable risk test”, and said:
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M v M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in [105], do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
22.The Full Court in W v W cited with approval the following passage from the judgment of Fogarty J in N and S & the Separate Representative (1996) FLC 92-655:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
I would respectfully observe that this series of questions is a useful, practical tool for a court to utilise in assessing whether there exists an “unacceptable risk” of sexual abuse of a child.

The evidence and witnesses

The applicant father relied upon the following affidavits:
1. Mr Keen (the father) sworn on 18 February 2020
2. Ms B (paternal aunt) sworn on 19 February 2020.
The father gave oral evidence by way of cross-examination by the mother and counsel for the ICL.
The respondent mother relied upon the following affidavits:
1. Ms Baird (the mother) sworn on 2 March 2020
2. Ms N (maternal grandmother) sworn on 2 March 2020.
The mother and Mrs N gave oral evidence by way of cross-examination by counsel for the father and the ICL.
I had the benefit of a single expert report from a psychologist, Dr L dated 17 October 2019. Dr L also gave oral evidence. The ICL tendered in evidence a Family Report, by Ms K dated 9 June 2016. Ms K was not required for cross-examination.

The best interests of the children: section 60CC considerations

Section 60CC(2) considerations

(2) The primary considerations are:
(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, neglect or family violence.

(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents

Dr L opined that an important element of the emotional and psychological wellbeing of the children is that they have a relationship with each of their parents. It would appear that a change in primary residence is the only realistic outcome by which the children could have a relationship with each of their mother and their father. In my view a fundamental issue, however, is whether they would accept and adjust to such a major change in their living arrangements which is contrary to their currently expressed wishes.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

In her report Dr L opined as follows in relation to the issue of sexual abuse of X by the father:
303.Mr Keen denies ever sexually abusing X and on the basis of the present assessment, there is no other indication that Mr Keen has a history of sexually abusive behaviour nor an emotional identification with the children, nor did he endorse a pattern of intimacy concerns that would commonly be present in cases where men have sexually abused children. I note however, that I did not do a detailed psychosexual assessment in this case. This is because Mr Keen has not been charged with a sexual offence nor does he have a reported history of sexually abusive behaviour and on the basis of the information available to me, I did not form the view that there was convincing evidence that Mr Keen did sexually abuse X as alleged.
304.It may be that X has been sexually abused and it may be that this was perpetrated by his father or by someone else. For example, I note the claim that his maternal grandmother placed her hands on X's genitals. In any case, the pictures exist and are concerning but given the various ways in which X may have come to draw those images, if he did, indeed draw them, I do not place much weight on the assertion that X was sexually abused or that if he was, that Mr Keen was the perpetrator of this sexual abuse. I know Ms Baird believes that Mr Keen abused their son but I am also aware that her belief about this was formed during a period when she was mentally ill and thus, she may have made an association that was unfounded within this context and this belief has, over time, become fixed.
Dr L adhered to her view as to the likelihood that the father sexually abused X, after she had read and considered the DCJ records in relation to the 2020 investigation (Exhibit 9). Dr L said that JCRP workers:
are primed to accept children and treating practitioners. I thought reading the notes that substantiation was almost inevitable.
Dr L said also:
I can understand their logic.
In her oral evidence Dr L proffered these opinions and assessments:
●“the words "sexually abused me" and "inappropriate touching" recorded by Ms J on 9 June 2020 could not be considered to be the natural language of a 12 year old, unless he had talked about it”
●“the words "touched me where he wasn't supposed to ... on the penis" fall within the normal language of a 12 year old”
●“X, Y and the mother believe that the father has sexually abused X”
●“if X had a good relationship with the father and there was one incident of sexual abuse, his level of distress is unexpected- it is unusual that he curls up into a foetal position. It may be that he feels guilty about perpetuating a lie to appease the mother”
●“the mother's mental health has been very fragile in the past and the children have borne the brunt of that. If they say these things, she is very loving and nurturing and much nicer than the other mum”
●“I am not suggesting that the mother is doing this consciously, I believe that she has not coached, however there are subtle influences at work with the mother which she may not appreciate”
●“I think the mother is trying to understand what has happened and blaming the father for sexual abuse is an easy way out”

Counsel for the ICL submitted that "there are inconsistencies in relation to the sexual abuse allegations" for the following reasons:
45.The ICL submits that there are inconsistencies in relation to the sexual abuse allegations:
(a)X's hand gesture made to the Mother on 24 December 2017 is inconsistent with his disclosure that his Father touched his penis a few times;
(b)X disclosed that his Father touched his penis on the lounge. It is unclear what connection is being made to the admission by the Father and Y's evidence that the Father went to X's bed to comfort him at night. X does not disclose that his Father touched his penis when X was in bed;
(c)There is no evidence to connect the Father to X's iPad drawings. X said he sent the images to his cousin, he was being silly and having fun, he saw pop-up images of male penises on his iPad meant for his Mother, he saw the penis on a uTube of Pictionary;
(d)Y said his Father was cruel to the cat. Y has not been in his Father's home since early 2019. There is no evidence in the voluminous material before the court that the Father was cruel to the cat. If the children had seen the father be cruel to the cat they would have told their Mother and she would have reported it to DCJ or other authority and included it in her evidence.
The ICL pointed out that X's complaints in June 2020 occurred in a context where he was aware of, and strongly resistant to, the recommendation of Dr L for a change in primary residence. As noted, Dr L opined that the children may be taking steps to avoid psychological dysregulation on the part of the mother and thus avoid further instability and distress in their lives.
The expert evidence indicated in very clear terms that the children are at some risk in the care of the mother. I have referred above to the mother's mental health condition, her concessions as to violent behaviour toward the father and the children and similar elements of her relationship with Mr M.
In evidence were COPS entries which recorded allegations of physical and psychological mistreatment of the children by the mother. For example on 30 August 2019, a police officer noted that Y told the father that he did not want to go with the mother because she hurt him by having smacked his face. This COPS entry recorded also that the mother said that she "tapped him on the cheek in reprimand" when asked to comment on Y's allegation. It appears that an onlooker contacted police with concerns on observing this incident.
Records of P School contained reference to concerning behaviour on the part of the mother. For example, on 30 October 2017 Y's class teacher made a file note in the following terms:
While we were sitting and talking Ms Baird walked past with X, saw us there and began asking about what we were doing. This was a very awkward moment, Ms Baird was very tense and abrupt, Y became visibly upset (coward, began crying, moved closer to Ms O) Y had not stayed with Ms Baird since 19/10. Ms Baird left and I took Y to class. Ms O and I had a conversation about how her concerns about the boys living with Ms Baird and about Y's recent anxiety as well as the school's concerns about frequent absences.
Y was sensitive throughout the day, sometimes teary eyed and needed to go to the toilet at least five times during class time. He did not display the same extreme signs of anxiety that were observed throughout the previous two weeks (difficulty breathing, uncontrollable crying and continually asking to see his dad).
Dr L spoke to the school principal, Mr Q, in the course of preparation of her report. She noted as follows:
271.I asked Mr. Q about whether the school were having any current difficulties in managing X and Y. Mr. Q stated that X's behaviour has been challenging of late, such that he has a "lack of respect for authority", in addition to which, X has "teamed up with an at-risk boy". Within this context, he has been somewhat more defiant and resistant of late however, Mr. Q commented that X's behaviour "is not more extreme than any other child in his cohort”.
272.Mr. Q told me that he knows less about Y when compared to X. However, whilst he does not believe there are behavioural concerns for Y, he described Y as being a more vulnerable child, who is also "more immature". Mr. Q added that school teachers have made reference to Y having "socioemotional issues" and he has apparently been referred to the School Counsellor as a result. On this basis, he is aware that Y, and also X, have personalised plans developed for them, which allows for "adjustments" to be made for the children to cope better in school. Mr. Q added that both children have been referred to the Learning Support Unit in the school.
273.In sum, Mr. Q stated that in the time that the children have been at the school, Mr. Keen has been respectful of the school and has abided by any conditions in place in relation to the children. However, he commented that Ms. Baird has "been the one to cause grief if things are on edge", such that she will "harass" the school office and so on.
(As per the original)
In my view, there are perils to the well-being of the children in the care of each of their parents and the appropriate course is that I attempt to assess whether any of these risks reach an unacceptable level. I agree with this observation of Dr L:
These children have been exposed to terrible trauma in their lives – the mother's mental illness, exposure to violence, exposure to police, the father's drug abuse and the mother's possible drug abuse, Y's anxiety and X's possible mental illness, so it is a mistake to focus on sexual abuse.
There was no evidence of drug abuse by either party in recent times. The father receives ongoing professional assistance which is focussed directly on his history of opiate and alcohol addiction. He receives counselling in relation to his anxiety and depression. The prospect of a relapse into substance abuse cannot be discounted but the father's history gives a solid basis for confidence that he will remain free of illicit drug use.
The mother consults regularly with Dr H, who provides her with psychiatric treatment and counselling assistance. The prospect of further episodes of psychosis or other psychiatric symptoms cannot be discounted but the mother has put in place appropriate professional support structures. Nothing in the evidence suggested that the mother has used illegal drugs in recent times.
The mother conceded that she "made bad choices" in entering into a relationship with Mr M and that the children were exposed to violence in this context. There can be no guarantee that the mother will refrain from making similar "bad choices" in the future. It appeared, however, that she has reflected genuinely on the damaging impact of this relationship and her behaviour generally upon the children.
In my view, the expert evidence of Dr L cast considerable doubt upon the likelihood that X was sexually abused by the father. Inter alia, Dr L proffered an alternative dynamic which could account for X's statements and behaviour. Additionally, I consider that there is substance to the submissions of counsel for the ICL that the court could not be satisfied on the balance of probabilities that X has been sexually abused by the father.
For these reasons, and despite substantiation by DCJ, I find that there is no unacceptable risk of sexual abuse to the children in the unsupervised care of the father. As set out above, there are perils to the well-being of the children in the care of each of the parties but I find that none of these risks reaches an unacceptable level.

Section 60CC(3) considerations

(3) Additional considerations are:
(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
(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)
(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
(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
(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
(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
(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
(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
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
(j)any family violence involving the child or a member of the child’s family
(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
(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
(m)any other fact or circumstance that the court thinks is relevant

I will refer only to those considerations set out in section 60CC(3) which are relevant to the present proceedings.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

X told Dr L that he did not want to see his father "ever again" but declined to explain his reasons. X proffered that he may wish to speak to the father on the telephone occasionally.
Dr L reported as follows in relation to her interview with Y:
194.Y reported that he does not see his father and he claimed that he does not know why this is. Y claimed that he does not like going to his father's house and when I asked him why this, he replied in stating that he does not "mind it" and in fact, he enjoys seeing his father but that he does not want his mother to know this. Y added that he likes his mother more than his father. However, Y stated that he does not want Mr. Keen to know that he likes Ms. Baird more than him and that he does not want Ms. Baird to know that he wants to see his father. Y commented that he wants to spend time with Mr. Keen because he is his father.
195.Y suggested that if X wants to see his father, then he will also go along to see him. However, Y stated that he does not want to see Mr. Keen by himself and he would like X to be there so he feels "safe". Y also noted that he would like to see his cousins on the paternal side of the family. I asked Y why he feels unsafe with his father and he could not articulate any reason but stated that he "likes to be with X. If I'm sad, he can cheer me up”. Further to this, Y reported that "it would be a bit weird" to see Mr. Keen without his brother also being present. Y claimed that Mr. Keen does not do and has not done anything to make him feel unsafe at any time.
Dr L elected not to conduct an observation of the children with their father, noting that they "refused to see their father as part of this assessment and this refusal was primarily directed by X”. No challenge to this clinical judgment was put to Dr L in cross-examination.
On the question of the views of the children and the weight which should be attached thereto, Dr L opined as follows:
311. X informed me that he does not want to ever see his father again, although he refused to discuss with me the reasons for this opinion. Y told me that he likes his father and wants to see his father but only if X is also with him. Both boys stated that they like their mother and Mr. M and liked living with their mother. Both children in this case are of such an age that some weight should be given to their views. However, both X and Y were, and have been, seemingly anxious, although this is more significant for Y. Further to this, based on the information available to me, I am of the view that the children's account has likely been tempered, limited and sanitised as part of their desire to appease their mother and avoid her becoming dysregulated and potentially volatile. This may be a function of direct or indirect influence on the part of Ms. Baird. These factors reduce the weight that should be placed on the children's views.

Section 60CC(3)(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)

Obviously, the children's relationship with the father has been disrupted by a lack of contact and communication since approximately November 2018. In a Family Report dated 9 June 2016 Ms K noted that the children "seemed pleased to see their father and ran to him for a kiss and a cuddle". The Family Consultant offered these opinions of the nature of the relationship of the children with the father in 2016:
88.While both boys expressed a desire to spend more time with their father, it was difficult to assess from one interaction if this is because they are getting something of value out of their relationship with him, or if it is because they know what their father wants and they want to make him happy (and he presents to them as more needy than their mother). It is probably a combination of both. All of the supervised visit reports from S Contact Service ... are uniformly positive about Mr Keen's warm and affectionate relationship with the boys and how much they appear to enjoy their time with him...
This situation has now changed to one of complete refusal by the children to see the father in the course of the interviews conducted by Dr L.
The single expert identified problematic elements of the relationships of the children with each of their parents. Dr L expressed these opinions:
298.The observation of the time that the children spent with their mother as part of this assessment, suggests that the connection between mother and sons is not particularly strong, with the children ignoring her much of the time and Ms. Baird being self-focussed in her attempts to engage with them. I suspect, on the information available to me, that Ms. Baird has also been less than forthcoming with the present assessment, in addition to perhaps discouraging the children from being forthcoming too. I do note the father's high levels of positive impression management on testing but this kind of test finding is not necessarily uncommon in Family Court matters such as this and his account in all other respects aligns well with the accounts of others, although I do accept that there is likely some sanitisation through positive impression management in Mr. Keen's account.
299.The children in this case impress to me as having been seriously affected by the acrimony in recent years, in addition to probably also their mother's mental health issues and their parents' substance abuse. Both children are anxious, although this is more so for Y and both children have also engaged in behaviours that, to my mind, are a cry for help, in addition to signifying significant concerns in the parent-child relationship between Ms. Baird and the children. These include Y saying that he will kill himself if he can't see his father, the children running away late at night, Y sleeping at his grandparents' house, X misbehaving at school and the children claiming to police and others that they have been hurt in their mother's house. They were not forthcoming with me either and both impressed as uncomfortable and nervous and Y, particularly, expressed fear if his parents really knew and understood what he thinks and feels about each of them. I formed the view that both children presented their account to me in such a way that they perceive will minimise their mother's distress and therefore, emotional and behavioural volatility.
300.In sum, it is my assessment that the children's developmental experience has been disrupted, particularly in relation to their attachments, in addition to which they have also been exposed to parental mental health issues and substance abuse, volatile and acrimonious encounters between their parents, and instability in residence. Further to this, I opine that this behaviour is also a function of parenting that has not been responsive to the children's needs, especially on Ms. Baird's part. In terms of their wishes, X states that he never wants to see his father again whereas Y told me that he likes his father and would like to spend time with him but only if X is with him at the same time. I place limited weight on these views however, as I believe the children are influenced by seeking to limit their mother's distress.

Section 60CC(3)(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

In my view, a reasonable assumption is that both children would be highly resistant to a change in primary residence. Y may be somewhat more amenable to such an outcome but, in my view, he is likely to be influenced by X's current negativity toward the father. In an assessment dated 29 September 2020 a DCJ worker noted:
Y said he and his brother are scared to live with the father; that he and X have made a deal if the court says they have to live with the father they will run away.
Dr L recommended a change in primary residence in her report, while cognisant of X's "resistance to his father". In October 2019 Dr L expressed some optimism for a successful change in primary residence. She opined as follows:
313.The primary obstacle to the aforementioned recommendations is X's resistance to his father. It may well be that this will soften with appropriate support and structure with the provision of appropriate treatment for him and I hope this will be the case. I would also hope that a quick transition that allows X to spend time with his father and to minimise the possible influence of Ms. Baird and her distress will assist with this. However, if this does not occur, X is of an age where he cannot be forced to see Mr. Keen and he may well run away or engage in self-destructive or risky behaviours if forced to spend time with his father. In this case, the court may consider making separate recommendations for Y and X in this case. Y would need to be carefully prepared for this, with the aid of a therapist, as he does not want to be separated from his brother nor would it be helpful to create an unnecessary rift between the siblings if Y could not tolerate this different arrangement. In this case, the only other option is for the court to award the primary residence and responsibility for the children to Ms. Baird. If this were to occur, I would recommend that the children see their father every second weekend, ideally progressing up to overnight over the weekend from supervised basis...

In her oral evidence in October 2020, however, Dr L expressed greater reservations and concerns as to the prospect of a change in primary residence. She said inter alia:
●“the relationship with the father has now been affected by JCRP and no contact for another 15 months. The relationship with the mother has become stronger. Now it has become more polarised and harder...”
●“in 2019 I would have said that the father is best able to provide stability and consistency – but now with both the mother and the father”
●“it is even harder now for the children to transition to time with the father, how to enforce any orders that are contrary to their wishes”
●“it is important that they experience the father as non-scary. [They should spend time with the father] initially in short bursts in public places and then in his home”
●“there is a danger in separate arrangements for X and Y, real risks”
●“every second weekend with the father may be the best alternative in a bad situation”
●“I am not hopeful about any of this…”
●“I would say absolutely [that there should be a change in primary residence] if the children were 5 years old. Now it would be traumatic for the children and the mother. Their mental health would deteriorate and it would be difficult for the father to deal with that”.

Section 60CC(3)(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

and

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

I have referred above in these reasons to numerous concerns in relation to the capacity of each of the parties to provide for the children's needs and their attitude to the children and the responsibilities and duties of parenthood. It is clear that each of the parties has prioritised his or her needs over those of the children at times and displayed an alarming lack of insight into the damaging effects of their chronic acrimony.
In my view the father failed to appreciate the gravity of the task which he invites the court to entrust to him, in terms of his capacity to deal with the effects on the children of a change in primary residence. I do not doubt that the father's motivation is sincere and well-intentioned but the evidence of Dr L left no room for doubt as to the seriousness of the consequences of a change in primary residence.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

As set out above, these children have been exposed to violence between their parents and the mother and Mr M. In my view they have likely experienced violence, within the parameters of the statutory definition, at the hands of the mother. It seems, however, that a degree of stability now is available to the boys in the care of the mother.

Parental responsibility

In my view, the presumption of equal shared parental responsibility is rebutted by evidence that such an outcome would be contrary to the best interests of the children. There was evidence from two experts, to the effect that the children have been damaged psychologically by exposure to the chronic acrimony between the parties.
It seems to me that there is no realistic prospect that these parties could put aside their mutual antipathy and focus on making joint decisions in the best interests of the children. Accordingly, the primary carer of the children should have sole parental responsibility.

Conclusion

As there will be no order for equal shared parental responsibility, I am at liberty to proceed directly to a determination as to what parenting orders are in the best interests of the children. I am not required to undertake the artificial exercise of considering whether it is in the best interests of the children that they spend equal, or substantial and significant, time in the care of each of their parents.
Sadly, there is no outcome to these proceedings which will be optimal to the best interests of the children. As set out above, there are perils to the best interests in the care of each of the parties, although not such as to warrant a finding of unacceptable risk.
It seems to me that there is a substantial prospect that a change or primary residence from the mother to the father would fail, with resultant emotional trauma to the children. Additionally, there could well be risk to the physical safety of the children if they "vote with their feet" and attempt to return to the mother. As indicated above, I have serious reservations as to the capacity of the father to cope with the consequences of a change in primary residence.
Accordingly, I conclude that the outcome which presents fewer risks to the best interests of the children is that they remain in the primary care of the mother. There remains the issue of arrangements for the children to spend time and communicate with the father.
As noted, neither the father nor the ICL made any proposals for the children to spend time and communicate with him in the event that they remain in the primary care of the mother. Dr L suggested that an alternate weekend arrangement "may be the best alternative in a bad situation" but observed "I am not hopeful about any of this".
Regrettably, it would appear that orders for the children to spend regular time with the father would be likely to cause additional trauma to them and trigger further litigation. In my view, it can be predicted with confidence that the mother would undermine any such arrangement and encourage X in particular to refuse to spend time with the father.
X is 13 years old and highly resistant to spending time with the father. Regardless of whether or not his resistance to the father is soundly based, the reality is that he is most unlikely to accept any orders for a regime of regular time. In my view, Y is likely to follow X's lead and both boys will continue to appease the mother for the sake of their own psychological stability. All of these considerations indicate to me that orders for regular time for the children in the care of the father are unlikely to be successful and probably would be damaging to the children's emotional state.
If there are orders for regular time and the children refuse to transition to the care of the father, there is a real prospect of further litigation. These children have been exposed to interviews and assessments by a Family Consultant, a single expert psychologist, police officers and DCJ workers. To state the obvious, they need respite from such scrutiny and great certainty in relation to their future.
All of these considerations lead me to conclude that orders which prescribe that the children spend regular time in the care of the father would be likely to be contrary to their best interests. I decline to make an order that the children spend no time or have no communication with the father. I will order that the children spend time and communicate with the father in accordance with their wishes and that the mother do all things necessary to facilitate such arrangements.
I will make no orders in respect of counselling for either party. In my view, it is the responsibility of the parties to seek out and/or continue with such professional assistance as is required from time to time.
I will order that the ICL cause copies of the Orders and reasons for judgment of the Court and the report of Dr L to be provided to the children's psychologist, Ms J. Dr L opined that "counselling with Ms J could continue if, for example, she sees my report and can soften her view”. I will not make orders which would put an end to counselling of the children at R Hospital, although I doubt that they gain benefit from this intervention. In my view, Ms J usefully could address that matter when she receives the report of Dr L and the reasons for judgment of the Court.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 22 December 2020.

Associate:

Date: 22 December 2020

[2020] FamCA 1122

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Procedural Fairness