Laffer & Laffer

This matter concerned applications relating to the living arrangements and time spent with a child, brought before the Court by the father and mother. The father had discontinued his applications and taken no further part in the proceedings after extensive evidence had already been taken. Both the mother and the child have mild intellectual disabilities and epilepsy. Allegations of sexual abuse of the child by the father were raised.

The Court was required to determine with whom the child should live and spend time, and whether the presumption of equal shared parental responsibility applied. Crucially, the Court also had to consider the implications of the father's withdrawal on the ability to make findings regarding allegations of sexual abuse and the standard of proof applicable to such allegations, particularly in light of s 140 of the *Evidence Act 1995* (Cth) and the principles in s 60CC of the *Family Law Act 1975* (Cth).

The Court reasoned that, given the father's withdrawal and the untested nature of parts of the evidence, it was unsafe to make a positive finding of an unacceptable risk of sexual abuse. However, a preliminary finding was justified on the available evidence. The Court found that the presumption of equal shared parental responsibility was not appropriate in these circumstances. Applying the principles of s 60CC, the Court prioritised the need to protect the child from the possibility of abuse.

The Court ordered that the child live with the mother and that the mother have sole parental responsibility. The child was to spend time with the paternal grandmother as agreed, and with the father on occasions when the child was with the paternal grandmother, but always under the supervision of the paternal grandmother. The Court also made orders regarding the preservation of exhibits and stipulated that the current orders should not form a basis for refusing future applications under the *Rice and Asplund* test, and that evidence taken during the trial would constitute part of the evidence in any subsequent proceedings.