SILBERG & LIEGH

FEDERAL CIRCUIT COURT OF AUSTRALIA

SILBERG & LIEGH

[2020] FCCA 381

Catchwords:
FAMILY LAW – Interim arrangements for care of children aged 10 & 4 – mother alleges children have made disclosures that the father has sexually abused younger child – father charged with having a sexual relationship with the younger child – allegations investigated by child protection authorities – younger child forensically examined – older child interviewed by police – allegation of sexual abuse not substantiated – criminal charge against father withdrawn – child protection report recommends no time between father and children until extensive parenting assessment undertaken – father alleges mother has concocted allegations or child has been sexually assaulted by person associated with the mother – father seeks immediate placement of children in his care – high conflict – mother alleges father subjected her to coercive and controlling family violence – assessment of risk – proportionate response to risks identified – questions to be asked – best interests.

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AB, 60CA, 60CC, 61DA, 65DAA, 67Z, 91B

Cases cited:

A v A (1998) FLC 92-800

B & B (1988) FLC 91-957

B & B (1993) FLC 92-357

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

M & M (1988) FLC 91-979

N & S and the Separate Representative (1996) FLC 92-655

Slater & Light [2013] FamCAFC 4

SS v AH [2010] FamCAFC 13

W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892

Applicant:

MR SILBERG

First Respondent:

MS LIEGH

File Number:

ADC 1205 of 2019

Judgment of:

Judge Brown

Hearing date:

12 February 2020

Date of Last Submission:

12 February 2020

Delivered at:

Adelaide

Delivered on:

25 February 2020

REPRESENTATION

Counsel for the Applicant:

Mr Bowler

Solicitors for the Applicant:

Marciano Lawyers

Counsel for the Respondents:

Ms Lee

Solicitors for the Respondents:

Georgina Parker Lawyers

Counsel for the Independent Children's Lawyer:

Mr Seymour

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of South Australia

NOTING

that the court is awaiting a response from the Department of Child Protection as to whether they will prepare the Family Assessment Report as outlined in these reasons for judgment;

ORDERS

That the children [X] born … 2009 and [Y] born … 2014 (“the children”) spend time with the father on either the Saturday or Sunday of each week, whichever day is more convenient to the parties, between 10.00am and 4.00pm, with such time to commence on the weekend starting 29 February 2020.
That the injunction contained in order (1) of the orders made on 12 February 2020 do continue.
That the parties be restrained and an injunction is hereby granted restraining each of them and those related to them from denigrating or abusing the other or discussing the proceedings generally in the hearing or presence of the children or via any form of social media.

IT IS NOTED that publication of this judgment under the pseudonym Silberg & Liegh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1205 of 2019

MR SILBERG

Applicant

And

MS LIEGH

First Respondent

REASONS FOR JUDGMENT

Introduction

All cases involving sexual and physical abuse of a child are difficult and confronting. Those arising at an interim stage are particularly difficult, given the untested and limited nature of the evidence, likely to be available to the court, at an early stage of proceedings.
Mr Silberg and Ms Liegh are the parents of [X] born … 2009 and [Y] born … 2014. The parties were married in October 2005 and finally separated in October of 2017. They are not as yet divorced.
Following separation, [X] and [Y] continued to live mainly with their mother, in the former family home in Suburb A, whilst the father spent time with the children, on an informal basis, on weekends. Although the parties’ separation was difficult, neither sought to formalise the arrangements.
It is the father’s position that this arrangement broke down in late January of 2019, when the mother withheld the children from him without consultation or due course. Against this background, on 29 March 2019, he commenced proceedings, in this court, seeking both interim and final parenting orders and the settlement of matrimonial property issues.
In broad terms, he sought a gradual increase in the amount of time he had hitherto spent with the children, until what is commonly called a shared care regime is reached. He also sought the conferral of equal shared parental responsibility for [X] and [Y] on him and Ms Liegh.
In the short term, he would also want to be able to spend time with the children from the conclusion of school Friday until the commencement of school the following Monday on a fortnightly basis and overnight on each Tuesday, in the intervening week. He proposes the division of school holidays and specific arrangements for special occasions, such as birthdays, Christmas and Easter.
The mother responded to this application on 16 May 2019. It is her position that the father has abused the children and behaved in a coercive and controlling manner towards her. As such, she asserts that Mr Silberg represents a threat to the physical and emotional safety of [X] and [Y].
In these circumstances, on both a final and interim basis, she seeks orders that [X] and [Y] live with her and spend no time whatsoever with their father. She also seeks the conferral on her of sole parental responsibility for the children.
These complex issues arise for the court at an interim stage at which the evidence available to inform its decision is far from complete and unable to be subjected to comprehensive scrutiny through any process of cross examination.
More significantly, as yet, there has been no independent assessment of the family itself, particularly the nature of the relationship [X] and [Y] share with each of their parents. Yet, notwithstanding any deficiencies in the evidence, the court must still fashion the orders which it considers will best serve the children’s interests.
In a case such as this one, which involves serious allegations of sexual and physical abuse of children, this is fundamentally a task which involves the assessment of risk. Is the risk of the children being exposed to the possibility of being further harmed too great for the court to countenance at this stage, given the provisional nature of the evidence available to it?
However, risk cuts two ways. On the other hand, will it represent a threat to the emotional well-being of the children and their best interests, if they are deprived of a potentially extremely worthwhile relationship, with their father, on the basis of inchoate and uncertain allegations of misconduct against him, which arise in the context of an acrimonious parenting relationship?
In summary, these are the issues with which the court must grapple at this stage of proceedings. In determining them the court must utilise as its lodestar the best interests of [X] and [Y].

Background

Mr Silberg is employed as a professional and earns a salary of approximately $106,000.00 per annum. Ms Liegh is employed as a community worker by Church B. She earns a modest salary, which is augmented by social security payments.
The outcome of these proceedings is governed by the provisions of the Family Law Act 1975.[1] Pursuant to section 67Z, a person alleging abuse of a child, in relevant proceedings, must file a notice setting out the particulars of the abuse to which a child in question has been subjected to. Abuse, in respect of a child, is defined by section 4(1) of the Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
[1] Hereinafter referred to as “the Act” or “the Family Law Act”
In the current matter, each party has filed a notice alleging that the other has subjected the children to abuse. In the father’s case, he alleges as follows:
“The respondent mother is a community worker at the Church B which can be compared to a ‘cult’ like system based primarily on the (omitted) system which brainwashes and controls the thinking of its members and focuses on implementing this system from a very young age, as early as four or five years of age. The mother is subjecting the children to the Church system. I understand the children attend at the Church for some parts of Saturday and the whole of Sunday and accompany the mother when she attends during the week. Without my consent the mother is allowing our son [X] to engage in very intense preaching to the extent that he has gone away for a long weekend where the hierarchy of the Church practice indoctrinating unconventional religious belief systems with the child.”[2]
[2] See Notice of Risk filed 29 March 2019
In the mother’s case, the Notice of Risk filed on her behalf indicated the following particulars of abuse being occasioned to the children:
“On the 27^th of January 2019 the children advised the mother that the father had acted in an extremely angry manner towards them and had verbally abused the children including yelling and swearing at them. The children were frightened as a result of the father’s behaviour. On the 10^th of February 2019 the children made disclosures with respect to the behaviour of the father indicating that the father had sexually assaulted [Y] in the presence of [X]. The father was arrested on … March and charged with child exploitation…
During the marriage the father often had angry outbursts including shouting and yelling at the mother in close proximity to her face. The children were exposed to the father’s outbursts of anger. The father was at times angry and dismissive towards the child [X]…
The father was arrested on … March and charged with child exploitation following interviews of the child [X] with police and the child [Y] at the AWCH CPS.”[3]
[3] See Notice of Risk filed 16 May 2019
It is common ground between the parties that the father was charged by Police, in respect of a serious sexual assault involving [Y], specifically that he had maintained a sexual relationship with her, in the early part of 2019.
The particulars of the offence were that he had inserted his penis and fingers into [Y]’s vagina; touched her genitals; and performed cunnilingus on her. On his arrest, Mr Silberg expressed incredulity at the allegations. At the formal interview stage, he maintained his right to silence, after having received legal advice.
As a consequence of the charge, Mr Silberg instructed the solicitor retained by him in respect of the current proceedings to act on his behalf in the criminal matter against him. As a consequence, his solicitor was provided with a brief of evidence, prepared by the Police, in respect of the charge. The main aspects of the evidence against him can be summarised as follows:
·A statement of Ms Liegh, in which she indicated she had observed unusual behaviours in both children, which had led her to speak with them about their father;
·She in turn had then recorded these discussions which led to [Y] making disclosures of having been sexually assaulted by her father, in the presence of [X], who had observed what had happened;
·Transcripts of forensic interviews between investigators and [X] in which he was questioned about what he had allegedly seen his father do to his sister.
In late 2019, the Director of Public Prosecutions elected not to proceed with the charge against Mr Silberg. In these circumstances, the charge against him was dismissed, in Court C, on … 2019. At the same time, his bail, which precluded him from contacting either the mother or the children in any way lapsed.
It is the father’s position, after having examined all the evidence available to him, that the allegations against him have either been concocted by the mother and those associated with her, in order to prevent him from having a proper level of relationship with [X] and [Y]; or, in the alternative and more disturbingly, some other person has sexually assaulted [Y].
Needless to say, he continues to resolutely deny that he has done anything untoward to either [X] or [Y], whom he has not seen for over a year. For obvious reasons, he is highly desirous of spending time with the children or, if it is accepted that the mother has been malicious in her actions towards him or has failed to adequately protect the children, that they should live immediately with him.
In these circumstances, through his barrister, Mr Bowler, he contends that there is a serious risk that the children are currently in a situation where their safety is at significant risk – either because they may be subject to the emotional manipulation of the mother, who is intent on alienating the children from him or that they are at continuing risk of being sexually abused by a person related to her.
Given there was an allegation of serious sexual abuse of one of the children to the proceedings, which had led to a Police prosecution against a party, on 20 May 2019, an interim order was made that [X] and [Y] live with their mother. No other orders were made in respect of the children spending time with their father.

The mother’s allegations

On 12 July 2019, on the application of the Police, an interim family violence order was made in the mother’s favour, against Mr Silberg. [X] and [Y] were included in the order as protected persons. I have been provided with the affidavit, completed by Ms Liegh, on which the Police based their application for this order.
Ms Liegh characterised Mr Silberg as having an explosive personality, which rendered him liable to react poorly to stressful situations, including those involving the care of the children. She alleged that he had frequently struck [X] and shaken him, as well as subjecting him to verbal abuse. She also alleged that she herself had been the subject of similar verbal and emotional abuse from the father.
In this statement, Ms Liegh also provided details as to the disclosures made to her by [Y] and how she came to record her conversations with both [Y] and [X]. This recording is part of the Police brief of evidence and has been made available to me through the committal papers provided by the prosecution to Mr Silberg’s solicitor, Mr Marciano.
In her statement, Ms Liegh detailed her criticisms of Mr Silberg as a violent and reactive parent, both during the parties’ marriage and, on the basis of what [X] had reported to her, afterwards. She also reported the fact that she had noticed [Y] exhibiting unusual behaviours, including touching her genital area from 2018 onwards and [X] begin to have melt downs, in connection with spending time with his father.
The mother also deposed that it was her understanding that there had been an incident between the father and the children during a contact visit on the weekend of Australia Day in 2019, during which the children subsequently reported that their father had said bad things about her and become upset. The catalyst for the argument was apparently a disagreement about a television program.
Around this time, Ms Liegh contacted a solicitor, who advised the mother that she should withhold the children from their father. Ms Liegh’s brother recommended that she should record anything unusual the children said to her about their interaction with their father. It seems apparent that the mother did not elect to discuss any of these matters with the father to ascertain his perspective on them.
Matters seem to have come to a head on the weekend of 10 February 2019. Ms Liegh deposes she woke and for some reason the thought came into her mind that the children slept in the same bed as their father. It also occurred to her that [X] had told her his father did not wear underwear in bed. In this context, Ms Liegh deposed to Police as follows:
“As I was thinking about everything I put these two pieces of information together and wondered about it. Because I had been so concerned the past couple of months about the number of nightmares the kids had been having and [X]’s breakdowns, and also [Y]’s behaviour of touching herself on the vagina, I was very wary by that point. Also because of what had happened on the 26^th January things started clicking. I was thinking he had clearly been horrible to them and had been a bad father. I just thought I’d start talking to them about things that they had told me.”[4]
[4] See affidavit of the mother completed 23 June 2019
In this context, the mother deposed that she asked [Y] the following question: “Daddy doesn’t wear underwear. Has he ever touched you?” [Y] apparently applied affirmatively. Thereafter, [X], who was also present took the lead and mentioned that the father’s penis had gone into [Y]’s vagina. [Y] was described as being giggly and [X] as being more matter of fact whilst disclosing this evidence.
Thereafter Ms Liegh recorded her conversation with the children, which was subsequently provided to Police and Department of Child Protection workers. In her statement, Ms Liegh also indicated that she had observed staining in [Y]’s knickers from time to time. As a consequence, she provided a pair of [Y]’s knickers to the Detective charged with investigating her complaint of sexual assault on [Y].

Other parties to the proceedings and other issues

Mr Silberg and Ms Liegh are not the only parties to the proceedings. Given the gravity of the matters raised in the case, on 1 August 2019, I determined that [X] and [Y] should be independently represented in these proceedings. Their representative is Mr Robert Seymour, a family lawyer employed by the Legal Services Commission of South Australia.
Mr Seymour is to be regarded as a party of equal significance, in the case, to the parents concerned. Pursuant to the provisions of section 68LA(2) of the Act, he is required to consider all the evidence available in the case and thereafter advocate the outcome, which he considers will best serve [X] and [Y]’s best interests.
The mother is concerned that the Police do not consider there is sufficient evidence to mount a prosecution against the father. She continues to regard Mr Silberg as a volatile and violent person, who has behaved inappropriately towards the children on numerous occasions. Although she concedes that the Police evidence regarding the case is complicated, she does not believe that it unequivocally exonerates the father from having behaved abusively towards [Y].
In these circumstances, it is her position that the court needs to proceed with the utmost caution before it considers any reintroduction of the children to their father. She is supported in this position by a recommendation made by Ms D, a clinical psychologist employed by the Child Protection Services, who oversaw the investigation into the abuse allegations involving [Y].
Given her involvement with Ms Liegh and [Y], Ms D recommended as follows:
“Given the serious nature of the allegations, [Y] and [X]’s safety would be best ensured if they did not have any unsupervised contact with their father, Mr Silberg, until a comprehensive family assessment is undertaken. This assessment, which should consider the findings of the CPS assessment and SAPOL investigation, is required to inform decision-making about the appropriateness and nature of future contact between the children and their father.”[5]
[5] See affidavit of Georgina Parker filed 4 February 2020 at annexure “GRP1” page 27

In the short to medium term, Ms Liegh accepts this recommendation. She continues to view Mr Silberg as a threat to the children’s safety, both in emotional and physical terms. For obvious reasons, she is strongly opposed to the children being placed in the immediate care of the father, given their current level of emotional vulnerability and the fact that she has been their primary carer, up to this stage, with the father having limited involvement since the parties’ separation and none at all since January 2019.
Initially, Mr Seymour was inclined to support the mother’s position. However, as will become apparent in more detail in due course, a further troubling and complicating circumstance has arisen, which has heightened the concerns of Mr Silberg that there is something untoward in the mother’s home.
During the course of the Police investigation, [Y]’s underclothing, which had been provided to Detective E, was subjected to forensic examination by Ms G, a forensic scientist. In October of 2019, she identified traces of semen on a pair of [Y]’s knickers.
DNA was able to be extracted from this sample, which when compared to the father’s DNA profile resulted in him being excluded as its source. However, a male person associated with the mother was not so excluded. Ms Liegh was advised by Detective E, in November of 2019, that semen had been extracted from an unknown person and the issues raised were complicated.
This evidence was clearly highly significant and has led to further notifications of child abuse being made to the Department of Child Protection, which are apparently still being subject to ongoing investigation. I have not been advised what form these investigations are taking.
In these circumstances, Mr Seymour still advocates a cautious approach but submits that it is appropriate that the court give consideration to the children beginning to spend periods of daylight time, in their father’s care, forthwith.
At an earlier stage of proceedings, pursuant to section 69ZW of the Act, I directed that the Police and Department of Child Protection provide documents to the court regarding all notifications of child abuse received by them in respect of both children. This included the ongoing investigations regarding the forensic evidence.
In part, this resulted in me being provided with an unsigned letter, dated 11 February 2020, from the Department of Child Protection. The letter restated the Department’s strong recommendation that a comprehensive family assessment be undertaken before the court gave any consideration to the children spending any time whatsoever with their father.
The letter also indicated that the Department had received a further notification of abuse in respect of [Y] on 30 January 2020 following the discovery of semen on her underwear. A later notifier indicated that the semen in question had been matched to a person who was a friend of the mother. Ms Liegh had indicated that this person had looked after the children on numerous occasions, including overnight and she trusted him.
It would appear to be the case that the father was aware, in general terms, from late 2019 onwards, of this forensic evidence but may not have been aware that a person had been linked to the semen. At the end of the DCP letter was written the following: “The department strongly and respectfully request that this information not be shared with the parties due to the ongoing SAPOL/CPS investigation”.
I was uncomfortable with this recommendation and the implication that significant evidence regarding the potential safety of a child be kept secret from the parents of that child. It was also unclear to me why there had been such significant delays in having the required forensic examination take place, during which period the father had not been able to interact with either child.
It also seemed to me that there was some tension between the Department’s recommendation of a cautious approach to the reintroduction of Mr Silberg to the children and the Department’s desire to keep the information regarding the forensic evidence from him. In these circumstances, I was desirous of exploring the possibility of the Department itself providing the family assessment recommended, at its own expense and expeditiously.
In these circumstances, I summonsed representatives of SAPOL, the DPP and DCP to court. Subsequently it was agreed that all of the parties concerned could have access to the material marked as sensitive in the police brief against the father and the letter from DCP in which the identity of the donor of the sperm on [Y]’s underwear was revealed.
The parties apparently first met when each of them was a part of the community of the church in which Ms Liegh is now a community worker. For obvious reasons, these proceedings have evinced a heated response in the parties and those associated with them. It has been alleged that there have been threats made and acrimonious posting placed on social media. The parties’ positions are polarised in the extreme.
Given the extensive involvement of DCP in this matter, pursuant to the provisions of section 91B of the Act, I have invited them to intervene in these proceedings. As yet, the Department has not formally responded to this invitation. I have however been provided with a great deal of material, which has been collated by the Department. This material can be summarised as follows:
·Child Protection Report dated 3 October 2019;
·Two interviews between Police and [X], which took place on 10 February 2019 and 17 March 2019;
·In the police brief of evidence was a CD disc of the conversation of 10 February 2019 between the mother and the children;
·Also in the police brief were CDs of [Y]’s three forensic interviews, with CPS, which took place on 26 February 2019, 7 March 2019 and 21 June 2019.
It is thus apparent that the forensic interviews of the children were completed prior to the information concerning the identity of the donor of the sperm on [Y]’s clothing coming to light. Whether the children will be further interviewed about this issue is not known to me as yet.

The Child Protection Report

The relevant report is twenty nine pages in length. It is a comprehensive document. In respect of the initial recorded conversation between the mother and the children, the former is described as serious and alarmed in tone and the latter as excitable and giggly, which struck the writer as being incongruent with the serious allegations being made.
The terminology used by [Y] was of the father shoving his dodo in her mimi. Mr Bowler, in his submissions, emphasises the fact that [X] does not use this terminology in his interview with Police as an alleged eye witness to the incident in question.
[X] was interviewed very shortly after the complaint had been made in recognition, it would seem, that he was a direct witness to the alleged sexual assault and, presumably because he was older, he would be able to provide a more coherent account of what had happened than his sister.
Mr Bowler is highly critical of this interview characterising it as being riddled with leading questions. He also raises concerns that [X] talks of raping in respect of [Y] and attributes his mother as the source of this terminology. In the second interview, [X] talks of his sister being injured by her father and there being blood all over the sheets and on the bed.
Mr Bowler points to the fact that there is no objective forensic evidence to support this statement and no injuries to [Y] reported or observed by either the mother or any other health professional. The medical report of a CPS paediatrician, who examined [Y] did not identify any signs of injury. This report has not been made available.
[Y] provided no details of abuse in the first interview which was used to gauge her language skills and ascertain whether she should be forensically interviewed. In this interview, the child spoke of her father digging his hands somewhere in her body. She was not able to identify genital areas accurately but this may have been due to her embarrassment.
Given the inconclusive nature of this interview, Ms Liegh agreed with the investigators concerned that there should be another interview. In this interview [Y] said her father did bad things to her and that he had been rude. When asked about her earlier comment about her father digging into her, she said she did not know and had forgot. [Y] also made reference to blood but later said she only knew about it because her brother told her.
In a forensic context, the investigators were concerned that [Y] conveyed to them that she was relying on information told to her by [X]. As a consequence, attempts were made to elicit from [Y] if anything had happened to her, at her father’s house, which bothered her. [Y] responded to these overtures with either a shake of her head or nope.
In April of 2019, Ms Liegh alleged that [Y] had made a further allegation to her in respect of her father touching her mimi. It was also alleged that the child had reported at her school that she had been stabbed in the butt by her father. As a consequence of these matters, a decision was made to interview [Y] forensically for a third time.
In this interview, [Y] repeated that she had been stabbed in the bum by her father’s hand resulting in blood. She was asked to draw what had occurred and did so. It was the view of the interviewer that the child had been speaking in general terms and had not given an account which could be considered detailed.
In summary, the forensic interviewer was concerned about some of [Y]’s statements but was unable to draw any strong conclusions from them for the following reasons:
·The child had consistently said she could not remember abuse having taken place;
·In the first two interviews, she said she was relying on information provided to her by her brother;
·The child’s account was limited in its nature and lacked contextual detail;
·She used repeated phrases to describe her experiences, rather than rich, varied language.
Given the tension arising in the forensic interviewer’s mind as a consequence of the worrying words which fell from [Y]’s lips – being stabbed in the butt; digging his hands in her body; - and the lack of a more detailed, contextual and specific account of what had allegedly happened to her, the interviewer conjectured as follows:
·[Y] had been abused but her recollection had been impaired by trauma;
·[Y] was too ashamed to disclose what had happened to her;
·The child had extrapolated information about other matters, which had upset her about her father, i.e. that he had smacked her and incorporated what [X] had said to her into her account.
These factors apparently caused the forensic examiner to reach the conclusion that there were risks, arising for [Y], from having unsupervised time with her father, given her statements of having been digged or stabbed in the bum by her father, which were potentially consistent with her having been sexually abused. In this context, the examiner was also concerned about the mother’s allegations that the children had been exposed to the father’s verbal abuse of them.
These factors were the basis for the recommendation that there should be no time between the father and the children until a detailed parenting assessment had been undertaken. It being the case that the examiner did not have the opportunity to observe any interactions between the father or children and, although Mr Silberg indicated his willingness to be interviewed by CPS, on the advice of his solicitor, he declined to do so.
There are, perhaps, other potential explanations for what [Y] said to the forensic examiner – namely, the child has not been sexually abused but is confused about what has been said to her by her mother and brother, in the atmosphere of hostility, which exists between her parents; or there is some other innocent explanation for the terminology utilised by the child which arises because of her undeveloped language skills and lack of cognitive maturity.
In addition, the forensic examiner did not have available to her the recently produced forensic evidence relating to [Y]’s underwear. As such, I do not know whether this information might have influenced the opinion of the examiner that no time should occur between [Y] and her father until a detailed family assessment had been undertaken.
Sexual abuse, when it occurs, more often than not occurs clandestinely in order for the perpetrator concerned to avoid detection. As such, the only individuals who will be able to definitively reveal that abuse has occurred will be the perpetrator, who, for obvious reasons will be disinclined to be frank about his/her conduct and the child victim, who because of his/her tender years may not be able to provide a coherent and logical account of what was done because of cognitive and linguistic under-development.
In these types of cases, forensic and medical evidence of assault, if it is available, may be pivotal in determining whether a young child has been sexually assaulted. However, that is a matter for the criminal courts. The task arising for this court is to determine the risk arising for any child of being subject to sexual abuse in any given circumstance. Necessarily this must involve an examination of the evidence available.

The father’s case and evidence

It is the father’s position that the police prosecution against him is fatally flawed. He contends that the forensic evidence positively excludes him from having sexually abused [Y] and leads inexorably [to the conclusion that] someone else has deposited semen in [Y]’s underwear.
It is further the father’s case that the interview between the forensic examiner and [Y] is inconclusive and the interview between [X] and Police is marred by leading questions, premised on false assumptions. In addition, it is apparent that [X] has a precocious but incomplete knowledge of sexual matters.
It is Mr Silberg’s view that whatever disclosures have been made by the children, which he believes are in any event fundamentally flawed, have been orchestrated by Ms Liegh to implicate him falsely and bring about the cessation of his relationship with the children. It is his case that prior to him being charged he had a close and loving relationship with both children.
Mr Silberg denies that his relationship with Ms Liegh was characterised by family violence. Rather, he contends that the marriage between the two broke down because of differences of opinion regarding the children’s involvement in the mother’s church. He further conjectures as to the possibility of the children having been sexually abused by a member of the mother’s church or exposed to pornography.
It is the father’s view that the person identified in the letter received from the Department is the mother’s partner, a person with whom she was involved during the latter stages of the parties’ marriage. In all these circumstances, it is the father’s case that the children are at grave risk of being subject to sexual abuse, if they remain in their mother’s care.

The mother’s case and evidence

It is the mother’s evidence that the Police have advised her that they regard [X] and [Y] as being safe in her care. It remains her view that the statements made to the examiner, by [Y], remain concerning, particularly when coupled with what [X] said in his police interviews.
In respect of the semen contamination on [Y]’s underwear, Ms Liegh deposes that she has been advised that it could have arisen from [Y]’s underwear coming into contact with that of an adult male. She further asserts that the children’s clothing is washed at the home of her friends from time to time. In this context, she conjectures that the contamination may have arisen in the wash, at some stage.
She characterises all the males, with whom she and the children come into contact, as being trusted and as being individuals in whose care the children are comfortable. By necessary implication, these are not attributes she allocates to the father. She denies having any form of affair with the person attributed to being the donor of the semen on [Y]’s clothing.
She further alleges that [X] is terrified of his father as a consequence of Mr Silberg’s behaviour towards him. She further characterises [Y] as a traumatised child. On these bases, she opposes the children spending any time whatsoever, with their father, until an exhaustive expert examination has been conducted in respect of the relationship between father and children.

Legal principles applicable

It is beyond the scope of these interim proceedings to determine definitively whether or not [Y] has been sexually abused and, if so, by whom. As I will explain in due course, in cases involving allegations of sexual abuse of a young child, who is developmentally immature, it is very often the case that such a child is unable to provide a clear narrative of what has happened. Rather, the court must focus on [X] and [Y]’s best interests, as the paramount or most important concern.
Necessarily, this exercise must focus on the degree of risk, which may arise for the children, if they are exposed to a person who may wish to use them as a source of sexual gratification or who is otherwise violent or emotionally unpredictable.
At the same time, there may also be significant risks of [X] and [Y] suffering emotional harm, if a potentially beneficial relationship, for them, is either severed or artificially curtailed, on the basis of an imprecise or uncertain level of risk.
Necessarily, this hearing also takes place against a background of high emotion. The parties do not trust one another and their capacity to communicate about issues to do with the children, previously extremely limited, is now nil. All concerned should bear in mind that, at this stage, I am not making final orders in respect of the children’s care nor am I in a position to make significant findings of fact about issues in dispute between the parties.
The central issue, in the case, at this stage, centres on child protection issues. However, as I have already pointed out, at this interim stage and perhaps even after a final hearing, the court will not be in a position to make definitive findings as to whether or not [Y] has been subject to some form of sexual abuse or exploitation.
Notwithstanding these evidentiary difficulties, arising at the interim stage, the court must still nonetheless make a decision and put in place the orders, which it considers will best regulate the situation, so far as [X] and [Y] are concerned, according to the relevant principles contained in the Family Law Act.
In this context, it is clear that the court is required to consider child protection issues, in its decision making processes, and should not defer its responsibility, in this regard, because of deficiencies in the evidence before it or, more importantly, because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues.
In Deiter & Deiter[6] the Full Court said as follows:
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
[6] See Deiter & Deiter [2011] FamCAFC 82 at [61]
In SS v AH[7] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned, as follows:
“Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
[7] See SS v AH [2010] FamCAFC 13 at [100]

In Eaby & Speelman[8] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.” In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage. This is the position in the matter currently before the court.
[8] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]
With those strictures in mind, I turn now to the specific provisions, within the Act, dealing with the making of parenting orders and the relevance of allegations of abuse to such orders. It is to be noted that although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same.
In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act set out in section 60B.
There are two primary considerations, which are as follows:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the courts with clear legislative guidance that protecting the child from harm is the priority consideration.”[9] Future protective issues for a child are the court’s priority.
[9] See Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 Explanatory Memorandum at [29]
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
As indicated above, in Deiter, the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, as in the present case, the risk of a child being exposed to a person’s sexual behaviour or more seriously the child being sexually assaulted or used as an object of sexual gratification.
In M & M,^[10] a case which is factually congruent with the current matter, because it deals with an allegation of sexual abuse, the High Court formulated a test, which has since been referred to as the “unacceptable risk test” as a means of balancing the benefits arising for a child of interacting with a parent with possible detriments arising from exposure to that parent. Essentially the court should not grant time to a parent with a child, if the situation envisaged would expose the child concerned to an unacceptable risk of suffering some form of harm or abuse.
[10] See M & M (1988) FLC 91-979 at page 77,081
In the current case, I must analyse the evidence available to me relating to the various concerns raised by Ms Liegh to determine the degree of risk, arising for both [X] and [Y], of spending time with their father. If, after this analysis, I consider any such risk to be unacceptably high, I should not countenance the children spending any time with their father, in such circumstances. The standard of proof applicable to the assessment of risk, in this context, is the ordinary civil standard.[11]
[11] See B & B (1988) FLC 91- 957 at 76,935
The Full Court in Slater & Light expressed the task of assessing risk 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.” [12]
[12] Slater & Light [2013] FamCAFC 4 at [37]
Cases involving allegations of sexual abuse are particularly difficult. Given the context, in which such allegations arise, which very often include a child of tender years, whose verbal and cognitive skills are not fully developed; where there is a lack of corroborating physical evidence; and the only witnesses to the alleged abuse are the victim and the alleged perpetrator concerned; it may not be possible for the court to make a definitive finding, one way or another, whether sexual abuse did or did not occur.
Some of these factors arise in the current case. The children’s initial disclosures occurred to their mother. It was noted that there was some incongruity between the children’s levity about these issues in contrast to the mother’s gravity. [X] is an older child. However, he remains far from mature. He may have some knowledge of sexual matters but this is not likely to be comprehensive.
It is also noteworthy that [X]’s terminology is different to that of his sister and his account is somewhat ambivalent as to what he is able to say he actually saw. There is no forensic evidence, but this is contradictory to the accounts said to be able to be gleaned from the children’s interviews.
Nonetheless, notwithstanding these difficulties, the court must attempt to analyse, as best it can, all the available evidence, because the consequences of getting the case wrong are potentially horrifying. On the one hand, the potential detriment to a child, of being subjected to sexual abuse, represents:
“…the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, in both the short and long term, can be devastating.”[13]
[13] Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892 at [94]
On the other hand, it may be equally emotionally devastating to a child to deprive him or her of a loving and worthwhile relationship, with a parent, on the basis of a risk which is nebulous or elusive in nature, but may remain very real and concrete in the mind of the other parent concerned.
In addition, in some cases, allegations of sexual abuse (and subsequent allegations that some manipulation of a child has occurred in order to secure some form of damaging disclosure) occur in the aftermath of relationship breakdown or where the parents concerned communicate poorly, if at all, because of antipathy and suspicion.
For obvious reasons, such circumstances provide fertile ground in which words or actions can be misconceived, misunderstood or indeed be manipulated. Regrettably, it is also not unknown for allegations of sexual abuse to be made for tactical or mischievous reasons. It may be difficult to differentiate between these various scenarios and in some cases there may be a conflation of them.
As Fogarty J said in N&S and the Separate Representative:
“…courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”[14]
[14] See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W (supra) at [95]
In W and W [Abuse allegations: unacceptable risk][15] the Full Court summarised a number of authorities dealing with abuse allegations. In particular, the Full Court approved the comments of Fogarty J in N & S and the Separate Representative[16]:
“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often by 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 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 for the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
[15] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
[16] See N & S and the Separate Representative (supra) at page 82,713-82,714
In the current case, I must endeavour to analyse the available evidence and pose to myself these types of questions to assess whether the risk is one which would be unacceptable for the court to countenance in absolute term at this stage of proceedings. I must also consider what is a proportionate response to the degree of risk so identified. This may range from no time whatsoever to supervised or restricted time in some way.
The difficulty of the task is exacerbated by the absence of any up to date assessment of [X] and [Y]’s level of intellectual development and language skills. I am also hampered by the lack of any detailed psychological assessment of the nature of the children’s relationship with each of their parents. Whatever is the ultimate outcome of this interim hearing, such a report appears to be of crucial importance.
Given the protracted nature of the child protection and police procedures and the fact that the forensic evidence was provided around ten months after Mr Silberg was charged, there appear to me to be compelling reasons which indicate that the Department should provide the report, which they recommend at its expense and with a high degree of expedition.
Each party has provided a number of lengthy affidavits in the proceedings. These are indicative of an extreme level of tension and animosity arising between the paternal and maternal aspects of the children’s family.
The mother complains that the father has vented his anger on social media and directly to members of her family. The father’s position is that he is entitled to vociferously maintain his innocence, particularly in the light of the recent forensic evidence. For reasons related to these tensions, as well as matters pertaining to the best interests of the children, it behoves the court to take a cautious approach.
In addition, I am as yet unaware of what have been the impact of these proceedings on the mother in psychological terms. For obvious reasons, it may be emotionally destabilising for her if the court changes the children’s primary living arrangements or makes an order for the children to spend time with a person she believes has subjected them to serious degrees of abuse.
As yet, Ms Liegh has not provided any evidence, expert or otherwise, to indicate how she would cope emotionally, if the court determines [X] and [Y] should spend some time with their father, at this stage. It is to be expected, however, that she would greet such an outcome with dismay. It is clear that the parties do not trust one another and have not communicated, face to face, for a number of months.
In B and B [17] the Full Court said as follows:
“…It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.”
[17] B & B (1993) FLC 92-357 at 79,780
Accordingly, in this case, the risk to the children is multifaceted and complex, comprising of the following elements, which remain inchoate:
·the risk that Mr Silberg has physically abused [X] and exposed the children to family violence;
·the risk that [Y] has been sexually abused by Mr Silberg and [X] has been exposed to that abuse;
·the risk that [Y] has been sexually abused by some other person associated with her mother;
·the risk that Ms Liegh has maliciously concocted evidence of sexual abuse and prompted the children to make false disclosures to police;
·the risk that the children will either lose or have unduly confined, for no proper reason, an otherwise worthwhile and loving relationship with their father;
·the risk that Ms Liegh genuinely but erroneously believes Mr Silberg has sexually abused [Y], in which circumstances, if the child spends time with her father, it will render Ms Liegh anxious and insecure and so compromise her psychological equilibrium with implications for her capacity to parent the children adequately;
·the risk that Ms Liegh is intent on destroying the children’s relationship with their father because of her longstanding malice for Mr Silberg or for some other improper purpose, and because of this is willing to alienate and manipulate the children against their father, which has the potential to cause them great and lasting psychological harm.
These risks are different in nature and, as a consequence, are likely to call for different responses. The difficulty being that the court is not as yet able to identify definitively which risks are real and which are not or indeed calibrate their potency with any degree of certainty.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.”
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. It is the mother’s case that the children have been directly exposed to family violence and [X] has been personally subjected to such violence.
At the interim stage, it is difficult for the court to characterise episodes of family violence and make precise findings in respect of allegations made. As with other aspects of abuse, it is a question of the court endeavouring to assess the relevant level of risk from any particular circumstance arising from the case.
In general terms, subject to child protective concerns and the overall best interests of the children concerned, the objects of Part VII of the Act and the principles underlying them, place an emphasis on the co-involvement of parents, in the lives and development of their children.
As a consequence of this emphasis, the legislation contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her [Family Law Act 1975 section 61DA].
The presumption contained in section 61DA is subject to rebuttal. As such, it is not to be automatically applied in every case. The court is directed to apply only if it considers that it has not been negated by other considerations specified in the section.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence [section 61DA(2)].
The presumption is also rebutted if evidence is provided which satisfies the court that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned [section 61DA(4)].
Significantly, at the interim stage, the court has a discretion not to apply the presumption if it considers it would not be appropriate to do so, in all the circumstances prevailing [section 61DA(3)].
The pathway, which the court is mandated to follow in determining parenting matters, as delineated by the Full Court in Goode & Goode, can be summarised as follows:
·consider the section 60CC matters relevant;
·decide whether the presumption in section 61DA should be applied or, if it is rebutted because:
Ø there are reasonable grounds to believe abuse or family violence has occurred;
Ø or in an interim matter only, it is not considered “appropriate” for it to be applied;
·If the presumption is rebutted or found not to apply, then make the orders considered to be in the best interests of the child, again as a result of applying the relevant section 60CC matters;
·If the presumption does apply, decide whether it should be rebutted because it would not be in the child's best interests;
·If the presumption applies, consider first making an order that the children spend equal time with each parent, then second, an order that the child spend substantial and significant time with each parent unless it is contrary to the children's best interests as a result of the consideration of any relevant section 60CC matter, or is impracticable in the terms specified by section 65DAA(5);
·If neither equal time nor substantial and significant time are considered to be in the best interests of the child, then make the orders which are considered to be in the best interests of the child when considering applicable matters in section 60CC;
·Even in this latter situation, it is open to the court to make an order for equal time or substantial and significant time, if the court considers it to be in the best interests of the child concerned.

In undertaking this task, the court must recognise the truncated nature of the hearing before it, which precludes it from making findings of fact in the face of contradictory evidence. However, because of the fundamental emphasis on the best interests of children, it cannot defer protective concerns because of such evidentiary deficiencies.
In the present case, it would appear axiomatic that the presumption of equal shared parental responsibility should be rebutted at this interim stage on the basis of its inappropriate application to these troubling circumstances which involve allegations of sexual abuse and contrary allegations of the fabrication of such matters.

Conclusions

The court is directed to give pre-eminence to protective concerns in respect of children. In this context, in my view, there is no outcome available to the court, which will adequately assuage all concerns of risk arising for the care of [X] and [Y], at this interim stage.
The allegations made in respect of [Y] having been subjected to sexual abuse by her father are extremely troubling. They have been subject to a very significant degree of professional investigation by both professional paediatric investigators and police. These investigators remain concerned at the children’s presentation but unable to draw any strong conclusions about the veracity of the allegations made against Mr Silberg.
I appreciate that there are significant differences in the levels of proof required to sustain a criminal prosecution and those pertaining to civil proceedings such as these. However, in my view, the lack of any definitive conclusion on the part of the forensic examiner is a factor in favour of the children resuming some form of relationship with their father sooner rather than later.
The comprehensive child protection report made available to me was prepared prior to the existence of the forensic evidence which possibly implicates an associate of the mother with some form of inappropriate involvement with the children. I have not, as yet, been provided with any scientific explanation as to how [Y]’s knickers may have been innocently contaminated with a person’s (who is not her father) semen.
This evidence must raise issues relating to the child’s safety in the care of their mother. The mother’s evidence is that she has been found to be a protective person, so far as [X] and [Y] are concerned, by Child Protection.
This may be so but the existence of the semen, which is exculpatory of the father, significantly degrades the concerns raised in respect of the probity of his past interactions with the children. It may also raise issues as to the mother’s capacity herself to provide an appropriate level of protection for them.
These conclusions must be weighed against the lack of any other physical evidence, such as indications of injury, pointing towards [Y] being assaulted after spending time with her father. The allegations of abuse said to have been made by [X] are graphic in nature and include reference to copious amounts of blood. The physical examination of [Y] revealed no such injury notwithstanding her disclosures of having been stabbed in the bum.
It is the mother’s case that the children each have displayed the sequellae of being emotionally traumatised children. The father has not been in a position to interact with them for over a year and, as such, is not in a position to comment himself from his own recent experience. The forensic examiner does not herself comment directly in respect of this issue other than to recommend that there be an independent assessment undertaken in respect of these issues.
[X] was interviewed on a number of occasions. Concerns arise in respect of his statements to Police, which have not been assessed as being sufficiently reliable to found a prosecution. It is, I think, noteworthy that neither he nor [Y] seemed to be particularly distressed in describing what they did to their various interlocutors. It would not appear to be possible to interview the children yet again about what their father is alleged to have done to them.
Accordingly, given the uncertain outcome of the forensic investigation, the central question for the court is whether it is appropriate to await the outcome of a further expert inquiry before the children resume any form of relationship with their father. In my view, informing the outcome of this question, is the collateral issue of whether there is evidence indicative of the children having been subject to some form of sexual exploitation whilst being subject to their mother’s supervision.
If some form of risk lies with Ms Liegh, it may be a disproportionate response to any risk which can be apportioned to Mr Silberg to continue to prevent him having any form of relationship with [X] and [Y]. In these circumstances, it is now necessary to turn to the other considerations arising in section 60CC.
Prior to the allegations of sexual abuse arising, the children spent regular periods of time in their father’s care and had done so since the parties’ separation. Prior to separation, the father was part of the children’s household. As such, it would appear to be the case that the children know their father well.
In these circumstances, notwithstanding the contradictory nature of the evidence currently available, it would appear to me to be the case that the court is not in a position to discount the strong possibility that the children will derive some benefits from having a meaningful level of relationship with their father.
I also appreciate that, from the father’s perspective, given the significant interruption to his relationship with the children, time is of the essence. It may well take a further period of between three and six months to prepare the expert family report recommended by DCP. This will mean potentially a period of over eighteen months will have elapsed since he last interacted with the children. In the case of [Y], this will represent about 20% of her life to date.
It is a significant period of time. To retain meaning, parental relationships, particularly with young children, require constant refreshment through regular and reliable periods of direct physical interaction. In my view, there is a very real danger that [X] and particularly [Y]’s relationship with their father may suffer a significant level of denature, if it is not reinforced expeditiously. In my view, added impetus is given to this conclusion by the forensic evidence recently made available by DCP.
The evidence is unequivocal that Ms Liegh has been the children’s principle provider of care since the dates of their respective births. In these circumstances, in my view, very great caution must be utilised, prior to the making of any dramatic change in these long standing care arrangements. Such a change being only justifiable if there is a clear and serious threat to [X] and [Y]’s care, if they remain in Ms Liegh’s custody.
I am not convinced that, at present, such a risk can be identified as emanating from Ms Liegh personally. I am unable to conclude definitively that she has colluded in fabricating evidence against the father or has, in some way, actively coached the children to make damaging disclosures against their father.
The nature of the relationship which the children have with the person identified in the DCP letter, recently produced to me, is unclear, particularly in terms of how long standing that relationship is and what the children have done with him in the past. In my assessment, a proportionate response to the degree of risk relating to this person is to continue the injunction preventing the mother from bringing the children into any form of contact with this person.
As such, I am not persuaded that it would be in the children’s best interests to remove them from the long standing care arrangements pursuant to which they live with their mother, who has hitherto been their major source of emotional and physical support. Such an outcome could only be justified in extraordinary circumstances. The Department of Child Protection, the state instrumentality charged with protecting children in the state of South Australia, does not support such an outcome.
As such, I do not think the children’s removal from their mother would be conducive to these best interests, given the paucity of the evidence currently available to me in respect of how readily they are likely to adapt to moving into the predominant care of their father or even how easily they will cope with a reintroduction to him, given the undisputed fact that Ms Liegh has hitherto been their primary carer.
In addition, I do not know what the impact of such an outcome would be on the mother in psychological terms. It would also seem likely that such an outcome would significantly exacerbate the already highly inflammatory relations between the various components of the children’s paternal and maternal family.
These reasons alone dictate a cautious approach, which does not discount the benefits likely to arise for the children of resuming some form of meaningful level of relationship with their father sooner rather than later. If a report could be done within a matter of days, rather than weeks or months, it might be justifiable to wait for such a report.
Given it is over a year since the children last interacted with their father I am gravely concerned that to await a further report before resuming some form of time with him would not be conducive to [X] and [Y]’s best interests. It is therefore a question of what form that time should take.
Issues of delay also pertain to access to professionally supervised time, particularly under the auspices of Commonwealth funded Children’s Contact Centres. In the Adelaide metropolitan area, it is not uncommon for parties to wait up to fifteen or more weeks for acceptance into such programs and when accepted, at best, such centres can only offer up to two hours of supervised time per fortnight.
Time which is subject to rigorous and perhaps objectively unnecessary supervision or which is extremely limited in its extent is not likely to provide an optimal environment in which to develop and extend a parent/child relationship. Unnecessary supervision may create an environment for parental interaction which is stilted and uncomfortable.
In W & W,[18] the Full Court spoke of a tension arising between the protection offered to a child by supervised contact and the potential detriments occasioned by the artificiality and limitations arising from such supervision, which can impact on the emotional wellbeing of the child concerned by creating an unwarranted curtailment of his or her parental relationship. Supervision has limitations.
[18] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
It may not provide sufficient time for the fostering of an appropriate parental relationship. It may prevent the parents concerned managing their own parenting relationship with one another. It may at best be a temporary or stop-gap measure. In addition, there may be a limit to potential supervisors, who have an understandable wish to get on with their own lives and not be tied indefinitely to a requirement to provide supervision.
Significantly, the parent who is subject to supervision may be resentful about it and this may, in turn, impact upon how he or she interacts with the child concerned. As such, it may act as an impediment to the child concerned feeling at ease, in the presence of the parent being supervised.
However, in cases where there is a high level of suspicion and apprehension in the residential parent’s household, supervision may be the only viable outcome, because otherwise excessive anxiety on the primary caregiver’s part may adversely impact on that parent’s ability to care for the child concerned. This exercise is part of the court’s task in assessing the magnitude of the risk involved and whether it is unacceptable.
In W & W[19] the Full Court said as follows:
“We appreciate that the decisions in these cases have the potential for long term consequences for a child, and they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.”
[19] W and W [Abuse allegations: unacceptable risk] (Supra) at [115]
In A v A[20] the Full Court of the Family Court said as follows:
“The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.”
[20] A v A (1998) FLC 92-800 at 87,996
In many cases, there will be an element of overlap between whether the anxiety of a parent providing primary care, about the other parent spending time with the child concerned, is objectively based and whether that parent has a flawed but nonetheless genuinely held view that there is a real risk of harm.
In some other cases, it may be said that these anxieties are either concocted or deliberately overblown, as a pretext to frustrate the other parent’s legitimate desire to spend time with a much loved child. All these considerations are present, to some degree or other, in the present case. At this stage, I am not in a position to tease out these various possible permutations in the context of the current case.
In the current matter, it is significant that the Independent Children’s Lawyer does not advocate some form of supervised contact. In addition, there is no proposal for supervision to be provided by some independent and trusted lay person. In addition, as previously indicated, the fact that there may be some forensic tie to the mother’s household, in respect of issues of potential sexual abuse, in my view, must significantly reduce the concerns arising from the father’s household.
The issues of family violence are also significant in this case. In this context, I note that the parties finally separated in late 2017 and thereafter the father was able to interact with the children reasonably regularly without court intervention. More significantly, it was only with the alleged disclosures of [Y] that the mother sought a family violence order against the father.
There is an evidentiary controversy regarding whether either of the children has been exposed to family violence. The forensic examiner placed significant weight on the history provided to her by Ms Liegh in reaching her recommendation that there be a family assessment before any consideration was given to the father being able to interact directly with the children.
In this context, I note that the examiner did not have the opportunity to garner any evidence from or impression of Mr Silberg directly from him. In addition, she was unaware of the deeply troubling evidence concerning the forensic examination of [Y]’s underwear.
In all these circumstances, I have come to the conclusion that an immediate change in the children’s living arrangements cannot be justified as being in their best interests. However, I also consider that it would not be in [X] and [Y]’s best interests for there to be a continued interruption in their relationship with their father whilst further evidence is gathered in the currently deeply concerning circumstances of unresolved sexual abuse.
In addition, I do not think it is warranted that the father’s time with the children should be subject to on-going supervision. In my assessment, a proportionate response to the degree of risk arising in this case is that Mr Silberg should have weekly day time involvement with the children on either the Saturday or Sunday of each week, whichever is more convenient to the parties, between the hours of 10.00am and 4.00pm, commencing this current weekend 29 February 2020.
The current injunction regarding the person identified in the DCP letter should continue. In addition, each party and those related to them should be restrained from denigrating or abusing the other or discussing the proceedings generally in the hearing or presence of the children or via any form of social media.
The case clearly requires an urgent family report. I have already requested of a representative of the Department of Child Protection that the Department give earnest consideration to whether it can provide such a report and how long it will take. I would hope that it could be done prior to Easter.
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 one hundred and eighty one (181) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate:

Date: 25 February 2020

[2020] FCCA 381

25 February 2020

Key Legal Topics

Areas of Law

Family Law

Criminal Law

Evidence

Legal Concepts

Injunction

Procedural Fairness

Proportionality

Charge

Remedies