Kelso and Finch and Anor (No 2)

The Family Court of Australia considered the parenting arrangements for two children, M and N, aged five and three respectively. The applicant father, Mr Kelso, sought orders for the children to live with him, while the respondent mother, Ms Finch, initially made serious allegations of sexual impropriety against the father. However, by the commencement of the hearing, the mother's position had shifted, and she no longer claimed there was an unacceptable risk to the children in the father's care. The intervenor, Mrs Kelso, was also involved in the proceedings.

The central legal issue before the Court was to determine the best interests of the children, specifically with whom they should live and spend time. This required the Court to assess the credibility of the parties' evidence, particularly the mother's change of heart regarding the allegations against the father, and to consider the potential emotional damage to the children and the mother's own psychological health. The Court also had to determine whether the father was a competent and capable parent who would support the children's relationship with the mother, and conversely, whether the mother would support the children's relationship with the father.

The Court found the mother's explanation for her change of heart regarding the allegations against the father to be unconvincing, noting inconsistencies and a lack of corroboration. Expert evidence suggested significant reservations about the mother's presentation and her account, indicating she remained a risk to the children and was likely to continue making allegations against the father. In contrast, the father was found to be a credible witness, calm and capable, with no evidence suggesting he posed a risk to the children. The Court applied the balance of probabilities standard of proof, as stipulated by the *Evidence Act 1995* (Cth), to determine the weight of evidence concerning risk.

Ultimately, the Court ordered that the children M and N live with their father, Mr Kelso, at all times other than when they were with their mother, Ms Finch, according to a specified alternate week schedule. The father was granted sole responsibility for making major long-term decisions about the children. The Court found that it was in the children's best interests to live predominantly with their father for their emotional wellbeing and security, while still maintaining a significant relationship with their mother.