Naylor & Naylor
[2021] FCCA 844
•20 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Naylor & Naylor [2021] FCCA 844
File number(s): ADC 4381 of 2020 Judgment of: JUDGE BROWN Date of judgment: 20 April 2021 Catchwords: FAMILY LAW – review of decision by Senior Registrar – interim parenting proceedings – exclusion of evidence of negotiation – role of independent children’s lawyer – where allegations of family violence – assessment of risk –– children aged 9 and 6 years – application for review dismissed Legislation: Evidence Act 1995 (Cth), ss 131(1),(2)
Family Law Act 1975 (Cth), ss 4, 4AB, 68LA, 67Z
Federal Circuit Court Act 1999 (Cth), ss 104(2)
Federal Circuit Court Rules 2001 (Cth), r 20.03
Cases cited: Slater & Light [2013] FamCAFC 4 Number of paragraphs: 99 Date of hearing: 13 April 2021 Place: Adelaide Counsel for the Applicant: Mr Boehm Solicitor for the Applicant: Ryans Lawyers Solicitor for the Respondent: Mr Sim for Degaris Legal Solicitor for the Independent Children's Lawyer: Ms Atchison for Nicola Atchison ORDERS
ADC 4381 of 2020 BETWEEN: MR NAYLOR
Applicant
AND: MS NAYLOR
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
20 APRIL 2021
THE COURT ORDERS THAT:
1.The application for review is dismissed.
2.The orders of the Senior Registrar are undisturbed.
3.The application for costs is adjourned to the previously listed date of 19 May 2021 at 9:30am in Mount Gambier before Judge Brown.
4.On or before 12 May 2021, the father has liberty to file any affidavit on costs.
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 under the pseudonym Naylor & Naylor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Settled from ex temp reasons)JUDGE BROWN
This is an application for review of a decision of a senior registrar of the court made on 1 March 2021, pursuant to the provisions of section 104(2) of the Federal Circuit Court of Australia Act 1999 (Cth). The procedure to be followed for review is set out in rule 20.03 of the Federal Circuit Court Rules 2001 (Cth).
In brief, the hearing is one that is conducted de novo. What this means is that, on review, the court must consider the case before it afresh. The court may, however:
·receive evidence by affidavit or exhibit which were tendered before the registrar;
·may, with leave, receive further evidence; and
·may receive evidence by way of transcript.
The review application was filed on 18 March 2021. The parties to the review are Mr Naylor, the father, and Ms Naylor, the mother. It arrives in respect of parenting arrangements for two children. The children are X, born in 2012, and Y, born in 2015.
On 18 November 2020, it was ordered, by Senior Registrar Heuer that X and Y be independently represented in the proceedings, pursuant to the provisions of section 68LA of the Family Law Act 1975 (Cth) (‘The Act’).
The children's representative is Ms Nicola Atchison, an extremely experienced solicitor who practices in family law in the Mount Gambier area. Ms Atchison has extensive experience as an Independent Children's Lawyer (‘ICL’) in this court, the Family Court and the Youth Court of South Australia.
She is to be regarded as a party of equal importance to the parents concerned and, as will become clear shortly, she is under a number of statutory obligations created by the provisions of the Act. Those provisions are central to the disposition of these proceedings.
By way of background, the parties agree that they met in City B in 2010 and began living together later that year. They married in 2013.
The father has two children from an earlier relationship. They are Ms C, now aged 21, and D, now aged 17. These individuals now, in the case of Ms C, an adult, lived with the parties during significant periods of their relationship together.
It is the mother's case that she provided the majority of care for X and Y during the parties' relationship and also parented Ms C and D significantly. The father concedes that he worked long hours, whilst the mother had left the paid workforce prior to X’s birth. The mother returned to work in 2017 as a carer, but on a part time basis.
From the father's perspective, there were issues relating to the manner in which the mother discharged her responsibilities in respect of Ms C and D whilst he was at work. These issues have received significant weight in the father's case.
In her affidavit material, the mother deposes as follows:
As the father was working such long hours, I was solely responsible for all home duties, including care of all four children. I also would not get assistance from the father in the night. Because he was working long hours, he needed to sleep. The father would occasionally assist me with cooking, and I would encourage him to help me with bathing the younger ones. However, this rarely happened.[1]
I would also be required to be the disciplinarian for Ms C and D, which D, in particular, resented and he would often yell me [sic] that, “You’re not my real mother.” I did not want to take on this role, but the father was not home when the disciplinary issues arose, so I had to deal with it.[2]
[1] Affidavit of the mother, filed 14 September 2020 [15].
[2] Ibid [16].
For his part, the father, in his answering affidavit, deposes as follows:
While I accept that Ms Naylor was primarily responsible for the care of the children during the relationship due to my long work hours, I do not accept that Ms Naylor took on all parental responsibilities, particularly, in respect to disciplining Ms C and D. [3]
The disciplining of Ms C and D was a regular argument between Ms Naylor and I. This was particularly so in the 12 months leading up to separation. It was a regular point of argument, as I did not agree with Ms Naylor physically disciplining the children, nor speaking to them in the manner that she did.[4]
[3] Affidavit of the father, filed 16 December 2020 [20].
[4] Ibid [21].
Accordingly, issues to do with the mother's involvement and with the father's two children and whether that interaction was appropriate were live from an early stage of the proceedings.
The mother asserts that the father suffered from depression in the latter years of the parties' marriage. She felt frustrated that he was not more proactive in its management and did not seek medical assistance.
For his part the father asserts that the mother had issues with her own mental health, particularly, in coping with the children. There can be no doubt that the parties' separation was one which occurred in extremely difficult circumstances in September 2019.
The parties dispute whether the father attempted suicide in November and December 2019 or whether, as he asserts, he had an adverse reaction to medication. The situation in this period was clearly volatile and difficult, during which the children remained in their mother's care.
Throughout 2020, the father spent periods of daytime with X and Y, and later in the year began to spend some overnight time with them. It is his position that this time went well for all concerned.
The mother alleges that the father abuses illicit drugs and is a heavy drinker. These are also related with her concerns about the father's poor psychiatric health. The father concedes some mental health issues but asserts that his health is well managed. He denies alcohol abuse.
It is also abundantly clear, from the papers filed, that the parties communicate extremely poorly. It is in this difficult context that the mother commenced these proceedings on 14 September 2020.
On both an interim and final basis, she sought orders that the parties be conferred with equal shared parental responsibility for the two children, that the children live with her and spend time with their father from the conclusion of school Friday to 6 pm Sunday in one week of each fortnight and, in the other week of each fortnight, from after school until 6.00 pm. In her application, she also raised issues relating to the settlement of property.
Pursuant to section 67Z of the Family Law Act, the parties to proceedings relating to children are required to file a notice of risk in respect of issues relating to possible exposure of any child concerned to either family violence or abuse. The mother did file such a document.
In her notice of risk the mother asserted that the children were at risk of suffering abuse because the father had been diagnosed with severe depression, had made threats of suicide, had attempted suicide twice in 2019 and, when depressed, the father remained in bed and so was not able to adequately care for the children.
She also alleged that the father had previously used illicit substances and large amounts of alcohol, which presented a risk to the children if he was under the influence of drugs or alcohol. The case came on before the Senior Registrar, initially, on 18 November 2020.
At this stage, the father had not filed any answering documents. Accordingly, the Senior Registrar directed that the father have 14 days to file his documents. Because property issues had been raised, the parties were referred to a financial mediation conference and the case was otherwise adjourned until the New Year.
During the adjournment, it was ordered that the two children live with their mother and spend time with their father every second weekend from the conclusion of school on Friday until 7.30 pm on Sunday and, in the alternate week, from the conclusion of school on Wednesday until 7.30 pm on that Wednesday.
Arrangements were made for the father to have Christmas night with the children, until the afternoon on Boxing Day. Some orders were also made for the father to spend reasonably extended periods of time with the children during the school holidays.
At that stage, it was also ordered, sensibly, that the parties attend a Family Dispute Resolution Conference with a Family Consultant, and that was scheduled for 2 February 2021, and it was at this early stage that an Independent Children's Lawyer was appointed.
Accordingly, on any view, the Senior Registrar took a proactive approach to the case and made a number of significant orders which, in my view, were an appropriate response to the conflict between the parties and the very significant polarisation of their views in respect of all manner of things.
The father filed his responding documents on 16 December 2020. Essentially, it is his position that there should be what is known as a shared care or fifty-fifty care arrangement for the two children.
As with the mother before him, he, too, filed a notice of risk. In answer to questions about family violence, he said that he had not experienced family violence nor had any child to whom the proceedings related.
However, what he did assert in respect of part F of the notice of risk, which is headed Mental Health Issues, was that the mother had mental health issues, which allegedly caused her to scream and yell at the children.
He also alleged that the mother suffers from depression which he asserts she has admitted to him in text messages in which she has asserted that her condition is getting worse and she is unable to cope. He raises as a criticism that she has not sought medical assistance for her mental health issues.
Without wishing to be trite or simplistic, the father, as far as I know, is not medically qualified. He has not filed any expert evidence to support his allegations regarding the mother's alleged mental health issues. Rather, he relies on these text messages sent to a friend sent by the mother to him to support his position.
The text messages are annexed to his affidavits. In common with many text messages, which come to the court's attention long after they have been compiled and sent and in circumstances when it was not anticipated by the person who was sending them that they would become part of the litigious material, the relevant messages are not particularly felicitously expressed and are obviously not intended for wide consumption. They are private in nature.
No doubt Ms Naylor now regrets having sent them. Their tone is one of frustration and unhappiness at the time of their despatch. In my view, that does not necessarily indicate that she has a particularly high degree of potency in respect of the danger she represents to these children now.
Rather, they reflect the difficulty she experienced in parenting D and Ms C, whilst the parties' relationship was ongoing which she concedes was extremely difficult for her from time to time. In addition, these matters arose prior to the parties' separation and it is in this context that it is noteworthy to point out the father did nothing expressly about these matters at the time. It is only later when the relationship between the parties had become so difficult that they have surfaced.
The father filed a financial statement, which essentially indicated that there were no assets but superannuation. It seems in these circumstances, although I am not entirely certain, that when the parties attended the conciliation conference they were able to resolve these issues, I am not sure about that. Those issues do not seem to be ongoing but, on any view, this was not a case which related to a large pool of property.
The Family Consultant who provided the Child Dispute Conference was Family Consultant Ms E and she reported back to the court and the parties on or about 4 February 2021.
To Ms E, the mother asserted that, prior to separation, Mr Naylor would shout insults at her, criticise her, control the finances, hide things from her and isolate her from her friends and family.
Mr Naylor alleged that Ms Naylor verbally abuses the children by shouting and believes in smacking, which he does not.
Mr Naylor also alleged that Ms Naylor had physically chastised his two older children, Ms C and D, and therefore he was concerned that Ms Naylor would continue this behaviour with Y and X.
Ms Naylor denied shouting and smacking the children and denied an allegation that her own father has smacked Y. Both parties asserted, as they did in their affidavit material, that the other had mental health issues.
In terms of her impressions of each of the parties, Ms E was of the view that the mother appeared to be able to focus on the children's wellbeing, whereas she considered the father appeared focused on gaining more time with his children closer to parity of time between himself and Ms Naylor and, indeed, shared care, ostensibly at least, is his goal in these proceedings.
In terms of her view of the current dynamic from the perspective of the children, Ms E noted as follows:
Whilst it’s important for Y and X to sustain positive relationship with both parents this should occur in a developmentally appropriate manner. An equal-shared care arrangement is often contradicted with children when conflict is present within the co-parenting relationship.[5]
[5] Child Dispute Conference Memorandum to the Court, dated 2 February 2021 [27].
Pausing, and bearing in mind that this is an hearing de novo, which I am conducting, and I am not in a position to make concluded findings of facts, it would appear to me to be axiomatic from what the parties have said about the other that there is a significant level of conflict and compromised communication in their parenting relationship with one another.
In those circumstances, I acknowledge Ms E's professional view that at this stage a share-parenting regime is contra-indicated and in this context Ms E recommended that the parties each attend a parenting course and begin to use some form of app to exchange parenting information about the children.
This was the background to the case coming back before Senior Registrar Heuer. Her Honour ordered, on 9 February 2021, that the children spend time with their father during school terms on each alternate weekend from the conclusion of school on Friday until 7.30 pm the following Sunday and during school terms on the other Wednesday from the conclusion of school until 7.30 pm. She also made orders for the school holiday that was going to fall in April this year, that the father spend time with the children from 17 April until 25 April.
Her Honour also made an injunction that the mother be restrained from physically disciplining X or Y, in deference to the concerns raised by the father. She also ordered that the father ensure that D is not present when X was in the father's care, unless X said he wanted to see D.
Orders were made for drug urinalysis on the Independent Children's Lawyer's nomination. Standard orders were made in respect of the parties not abusing or denigrating the other and to ensure that each of them received appropriate parenting education and health information from the other parent concerned.
The parties were each order to complete a Kids Are First parenting course and provide the Independent Children's Lawyer with a certificate to indicate completion.
I have not been told or been provided with a transcript of what was said before the Senior Registrar. What I do know is that each party was represented by their respective solicitor and Ms Atchison herself appeared in person.
What happened next was that on 15 February 2021, a few days after the interim hearing before the Senior Registrar, the father filed an application in a case, which was supported by a number of affidavits, including one of his oldest child, Ms C. In that affidavit, Ms C asserted as follows:
I was subject to physical discipline from Ms Naylor including smacking and there was an occasion when Ms Naylor punched me. Ms Naylor punched me in my arm because I disagreed with her.[6]
During my childhood, D would cope more yelling, screaming and degrading from Ms Naylor than me. There were numerous occasions when Ms Naylor was physically violent towards D. On one occasion, I saw Ms Naylor hit D across the side of the head.[7]
Ms Naylor was also regularly emotionally abusive towards D and myself…[8]
[6] Affidavit of Ms C, filed 15 February 2021 [7].
[7] Ibid [8].
[8] Ibid [9].
Ms C said she found it difficult to raise these issues with her father earlier and more contemporaneously with their occurrence because she did not want to add to conflict in the family. The implication being that there was an explanation as to why they had not been raised earlier. As I have already observed, the father himself did not do anything of an official nature in respect of these issues.
In support of his application in a case, Mr Naylor filed an affidavit of himself, to which was attached a letter from Ms Atchison dated 7 February 2021 - so prior to the interim hearing before the Senior Registrar. Ms Atchison, as she was entitled to do elected to see Y and X prior to the interim hearing. She also elected to report what was the content of her interview with the children to each of the parties concerned.
Ms Atchison reported as follows:
X also spoke about the physical discipline that he receives at his mother's, both being smacked and kicked. Y also mentioned both of these actions. This type of behaviour was extremely upsetting for X and needs to stop immediately. Irrespective of whether the mother agrees with X’s depiction of her behaviour, this is how X views the same and she needs to be mindful of this. Physical discipline of any child such that it impacts on their emotional wellbeing is never acceptable.
I would also add that during my discussions with X, when he was describing the above matters, he became quite teary. Whilst he declined my offer of tissues, it was clear that those discussions brought forward very strongly negative emotions for him. I praised X for his ability to be open and honest with me and advise him that he had been extremely brave in discussion these emotional situations. I would hope that both parents also praise X in a similar manner and applaud his ability to be open about his emotional vulnerability.
X and Y (though I believe Y was following X’s view) indicated that they wanted time spending to remain as currently is.
The main reason, provided by Ms Atchison for X’s wish for time spending to remain as it currently is, was that X had expressed a fear of having an increased level of interactions with D. In this context, Ms Atchison had reported that there had been, possibly, what she considered to have been roughhousing between D and X, which X did not appreciate.
In her role as an Independent Children's Lawyer, Ms Atchison decided to meet the two children, whom she was representing and then to write to the parties' solicitors about her impressions of the children as well as her impressions of the dynamic of the parties' relationship with one another, particularly in terms of its implications for X and Y.
As I will indicate in due course, in my view, Ms Atchison was perfectly entitled to do what she did, and, indeed, in my view, was under a statutory obligation to do so. It is the use to which Mr Naylor has put her letter, which is now highly controversial between all concerned.
As I say, I have not been told specifically what Ms Atchison herself said to Senior Registrar Heuer on 9 February 2021. It seems clear that the issue about the relationship between D and X was, at least, alluded to, because otherwise, there would be no explanation for why that order was made in respect of D's interaction with X. Similarly, the issue about the injunction restraining physical discipline.
However, it was clearly the import of the father's application in a case that the matters raised by Ms Atchison in her letter to the parties warranted the Court reconsidering the case again, particularly in the light of what Ms C had said.
In this context, Mr Naylor launched a collateral attack on the mother's credit, asserting that it was self-apparent that she had been dishonest in her interactions with Family Consultant Ms E. In these circumstances, he submitted that he had serious concerns for the children's welfare now that the mother had become aware of what the children had disclosed to the Independent Children's Lawyer. He deposed as follows:
I am concerned that the children will be punished and/or coerced before their next meeting with her, and they may suffer violence should they not cooperate.[9]
[9] Affidavit of the father, filed 15 February 2021 [9].
In this context, prior to this current hearing, I was advised by Ms Fuda, who had been briefed to appear on behalf of Ms Atchison in the review application, that Ms Atchison had herself spoken to X and Y again, and they had informed her that they had not been subject to any retribution from their mother.
Whether the father accepts that or not, I do not know, but, certainly, from the Independent Children's Lawyer, it is her position that there is no reason to depart from the orders which were made by the Senior Registrar on 9 February 2021.
It is clear that, when the case returned to court on 1 March 2021, on the father's application in a case, which relied in significant part on Ms Atchison's letter to the parties, Ms Atchison objected to the letter being used in that way.
On that basis, it was submitted that the letter and its production offended the provisions of section 131(1) of the Evidence Act 1995 (Cth) in that it was evidence of a communication between parties, which was in the nature of a negotiation.
It was further asserted that none of the exceptions contained in subsection (2) applied and that there was no implied consent arising that that document be used in the manner adopted by Mr Naylor. In any event, on 1 March 2021, Senior Registrar Heuer ordered that the annexure be uplifted, and she was content to continue the orders that she made on 9 February 2021.
It is in respect of those orders, I think, that the applications for review is filed. What occurred after 1 March 2021 - in fact, on 9 April 2021, - was that the mother filed an affidavit, in which she asserted as follows:
I dispute that the father has been concerned about physical discipline, as he used to engage in it occasionally as well. I recall that when Ms C and D were younger – about 12 and nine years of age, respectively – if they were fighting, generally misbehaving or speaking rudely towards us or each other, the father would give them a smack. As I was not their biological mother, I felt it would be inappropriate for me to discipline them, so I would generally raise my voice at them if they were misbehaving. I recall at least three occasions when Ms C was around 12 where the father slapped her across the ear for being rude to him. I saw him do the same thing to D on at least two occasions. I do not remember him ever smacking Y; however, I have witnessed him smack X for misbehaving.[10]
[10] Affidavit of the mother, filed 9 April 2021 [14].
So for her part, the mother takes issue with some of the issues raised by Ms C and the father, and it seems to be the position that before the Senior Registrar, as indeed it is before me, that it is the position of the independent children's lawyer that the views of the children, as expressed to Ms Atchison, that they are content for the current arrangements to continue should continue.
As I say, the obligations of an Independent Children's Lawyer are set out in the section 68LA of the Act, and it is, I think, instructive to detail them now.
Pursuant to section 68LA(2), the Independent Children's Lawyer is statutorily required to:
(a)form an independent view, based on the evidence available to the independent children's lawyer, of what is in the best interests of the child; and
(b)act in relation to the proceedings in what the independent children's lawyer believes to be the best interests of the child.
So Ms Atchison is under a statutory obligation to utilise her professional endeavours to analyse all the material and then present what she believes is the outcome which is most likely to serve the best interests of the child concerned.
Thereafter, pursuant to section 68LA(3), she must make a submission to the court to this effect. She is obliged to do so. She must. Pursuant to subsection (4), it is noted that the Independent Children's Lawyer is not the child's lawyer and therefore, is not obliged to do what the child says he or she wants. Rather, the ICL has a statutory duty of objectivity, as referenced by the ICL's assessment of the child's best interests.
In this context, pursuant to subsection 68LA(5), the ICL has a duty to act impartially. And, significantly, pursuant to subsection (7), the Independent Children's Lawyer may disclose to the Court any information that the child communicates to them, if the Independent Children's Lawyer considers the disclosure to be in the best interests of the child. However, pursuant to subsection (6), the ICL is not under any obligation to communicate any information that the child tells him or her.
It is in that context, that the letter Ms Atchison wrote must be considered. I think it is also germane to have regard to the principals that the Act enshrines in respect of how the court is to conduct child related proceedings, which are delineated in Division 12A of Part VII of the Act, which is the part dealing with children.
There are five principles which must be applied of which two seem to me to be particularly germane. The first principle is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining how the proceedings are to be conducted. The fifth principle is that the proceedings be conducted without undue delay and with as little formality and legal technicality and format as possible.
In order to protect a child from the deleterious consequences of adversarial litigation, Independent Children's Lawyers are often appointed. Their role is multifaceted. One of which is to act as an honest broker - an impartial broker - between the parties concerned and bring to the attention of those parties the likely consequences of litigation for their child's emotional wellbeing, so that such litigation does not become unduly bitter, polarising or protracted.
It is for the Independent Children's Lawyer, who has that sole responsibility, to decide what he or she submits to the court. It is a role of significant statutory importance and responsibility entailing the exercise of a discretion to be exercised in a manner consistent with the best interests of the child who is being represented.
In this context, I can understand why Ms Atchison would have written the letter which she did to the parties in an attempt to assist them to focus on the impact of the proceedings and their own conduct - each of them - on these children. If Ms Atchison had wanted the court to see her letter, she could have provided it herself. She elected not to do so. In my view, this was her sole prerogative.
She certainly did not provide it to the parties so that they could put to it any forensic purpose which they wanted to pursue. If Ms Atchison had wanted to make some such forensic point, it was open for her to do so. I am satisfied that the letter was sent as a communication from Ms Atchison, who is a party to the proceedings, to assist the parties to negotiate some sensible outcome in the case.
In my view, there are significant public policy considerations relating to the best interests of the children, which support the view that Ms Atchison, and those appointed to similar positions, should be allowed to communicate without the fear that their communications will be utilised in vigorously contested adversarial proceedings such as this. For those reasons I can see no error in the order of the Senior Registrar in legal terms.
The next issue, of course, is what should be the interim arrangements for the care of the two children concerned. At this juncture, it is necessary for me to outline as best I can what are the legal principles to be applied.
The proceedings are at an interim stage. Interim hearings occur in a truncated form and rely only on affidavits. As such, controversies arising in affidavits cannot be resolved at an interim hearing. In addition, very often such affidavits have been hastily prepared and many are largely reactive in nature, as a consequence of a serious crisis arising in the family concerned. This is certainly the case in this matter.
In the context of the current proceedings, it is not possible for the court to make any definitive finding as to whether either of the children has been subjected to abuse as defined in section 4 of the Family Law Act or been exposed to family violence as defined by section 4AB of the Act.
Rather, at this stage, the function of the court is to assess the degree of risk arising for the children from being subjected to either abuse or family violence in the future. In addition, the court cannot ignore the risk of a child being deprived of an otherwise meaningful relationship with a loving parent on the basis of uncertain allegations or untested evidence.
At this stage, as I understand it, it is the father's position that because of the risk that the mother will abuse either Y or X that the children should live solely with the him and the mother should have only supervised professional time with the children at a children's contact centre. He wants both parties to attend a parenting course.
In this context, it would appear to be the position that the mother has done such a course, but I do not know whether the father himself has. So I must assess the risk, as the father identifies it, and determine whether what he purposes is a proportionate degree to the response so identified.
In making this assessment, I am required to assess the degree of possibility that a harmful event will occur in future and what will be its level of severity to any individual, particularly any child who will be potentially affected by it.
Clearly, at the interim stage where evidence is limited, this is very often an extremely difficult task. However, it cannot be deferred because of deficiencies in assessing the truth or other of the evidence of risk provided, which is necessarily provisional and incomplete at the interim stage.
The Full Court in the case of Slater & Light[11] expressed the task of assessing risks in the following terms:
The nature of the risk is best expressed by the term unacceptable risk. It is an evaluation of the nature and degree of the risk and whether with or without safeguards it is acceptable.
[11] [2013] FamCAFC 4.
In addition, in cases like this, which is highly adversarial in nature, there is always a possibility that a parent, either acting in good faith or as a result of a misperception of information, erroneously believes something to have happened. In addition, it is not known for a parent to deliberately fabricate allegations or exaggerate them in order to gain advantage in proceedings. Ambiguous events sometimes have an innocent explanation.
So in this context, I am required in assessing risk, to examine the relevant evidence by asking myself questions of the following kind: what is said to have taken place, who made the allegations, to whom have the allegations been made, what is the level of detail and so on and so forth, including what are the effects on the child or children concerned.
In respect of Ms C, her allegations relate to periods some years ago now. There is no evidence that those issues were raised with the authorities at the time. There is no medical material. They are denied by the mother. In fact, she asserts that the father from time to time used physical discipline on the children concerned.
In all of these circumstances, I think it would be a disproportionate response to the risk, as identified for the father, for there to be an immediate change in the children's living arrangements and for there to be only professionally supervised time between the children and their mother.
I also consider that this would unduly disrupt the relationship with the children and their mother, which must be regarded as a significant one, given the father concedes that during the parties' relationship it was the mother who was the children's primary carer whilst he was a busy person engaged in paid work.
It is, I think, also significant that the Independent Children's Lawyer is of the view that the children do not wish to change the regime for their care which the senior registrar put into place.
In my view, the regime envisaged by the Senior Registrar is one which amounts to a substantial and significant time for the children spend time with their father. It falls on weekends, during the week and on special occasions.
In my view, a conservative approach is warranted to this case and one which sees the children spending significant periods of time with each of their parents but also recognises that one parent, as Ms E recognised, has hitherto been the children's primary carer.
Bearing in mind the tender years of the children concerned, it is my view that I should make orders in the same terms as those made by the Senior Registrar on 9 February 2021. In those circumstances, for the reasons I have provided, the orders of the Senior Registrar are undisturbed.
Her Honour adjourned the matter to 19 May at 9.30 in Mount Gambier. On that date, the case will come before me. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 28 April 2021