Standish and Lynch - [2016] FamCA 1034

FAMILY COURT OF AUSTRALIA

STANDISH & LYNCH

[2016] FamCA 1034

FAMILY LAW – CHILDREN – Parenting Orders – Abuse of crystal methamphetamine and other illegal drugs by both parents - Allegations by mother of sexual abuse of child by father - Whether children at risk in unsupervised care of the father – On the evidence the father does not present an unacceptable risk to the children in terms of the allegations of sexual abuse but does present an unacceptable risk in terms of his drug abuse - Orders that the father spend graduated supervised time with the children for a period of 12 months and for such time to move to unsupervised time on the condition that the father undergo regular drug testing

Family Law Act 1975 (Cth) ss 60B and 60CC

Mauldera & Orbel (2014) FLC 93-602

Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038

APPLICANT:

Mr Standish

RESPONDENT:

Ms Lynch

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

FILE NUMBER:

LNC:

463

2015

DATE DELIVERED:

2 December 2016

PLACE DELIVERED:

Hobart

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

13 & 14 September 2016 & 12 October 2016 – by consent leave was granted and further evidence was adduced on 8 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Higgins

SOLICITOR FOR THE APPLICANT:

Bishops

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Briffa

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

Orders

All previous parenting orders in relation to B (born … 2010) and C (born … 2011) (‘the children’) are vacated as and from 17 December 2016.
Ms Lynch (‘the mother’) and Mr Standish (‘the father’) have equal shared parental responsibility for the children.
The children shall live with the mother.
The children shall spend time with the father as agreed in writing between the parties and in the event that they are unable to agree then as follows:-
(a)to coincide when the father is present in Tasmania during the school term each second month as follows:-
(i)During week 1 – from 3.00pm Friday until 5.00pm Sunday;
(ii)During weeks 2 and 3 – from 3.00pm Friday until 3.00pm Monday;
(b)During each of the Tasmanian mid-term holiday periods for a block of one (1) week provided that the father provides to the mother a minimum of forty two (42) days written notice of the proposed dates.
(c)During the Christmas/summer school holiday periods, when the father returns to Tasmania:-
(i)for a period of two weeks each such holiday period;
(ii)for the 2016/2017 and 2017/2018 holiday periods, two one week periods separated by at least one week;
(iii)for 2018/2019 onwards a block of two weeks;
(iv)such times to commence 3.00pm on the Friday following the father’s return to Tasmania and end the following Friday or Friday week (as the case may be) at 3.00pm .
(v)with the children to spend time with the father (if he is in Tasmania) in even numbered years, from 3.00pm on Christmas Eve until 3.00pm on Christmas Day and in odd numbered years from 3.00pm Christmas Day to 3.00pm Boxing Day, otherwise the children spend Christmas Eve, Christmas Day and Boxing Day with the mother.
THAT for the purpose of Order 4(a), 4(b), 4(c) (i) and (ii) herein:-
(a)for a period of twelve months (12) from the date of these orders the paternal grandmother Ms D Standish shall be present at all times whilst the children are spending time with the father, including any outings;
(b)the father shall spend no overnight time (8.00pm to 8.00am) with the children for a period of six (6) months from the date of this Order, with the children to remain in the care of the paternal grandmother on such nights when they would have otherwise spent time with the father over this period;
(c)the father shall arrange at his own expense a weekly urine test to screen for drugs for a period of twelve (12) months from the date of this order and shall direct the result of such drug tests to be sent to the Independent Children’s Lawyer at the Legal Aid Commission of Tasmania (with such screens to be suspended while the father is working interstate);
(d)the father shall arrange at his own expense a weekly urine test to screen for drugs for a period of twelve (12) months from the first anniversary of date of this order and shall direct the result of such drug tests to be sent to the mother (with such screens to be suspended while the father is working interstate);
(e)In the event that the father misses a test (without reasonable excuse) or provides a false test result or such test produces a drug positive result; then the time the children see the father is suspended pending written agreement between the parties or further order of a court exercising jurisdiction under the Family Law Act 1975 (Cth); and in that regard leave is given to the mother, father and Independent Children's Lawyer to apply for urgent mention before this Court for a period of twelve (12) months from the date of this order.
Either party may make available to the general practitioner for each of the children and any mental health practitioner or counsellor:-
(a)a copy of these orders;
(b)the reasons upon which they are based;
(c)the Family Report; and
(d)the Magellan report.
BY CONSENT the mother and father shall each do all acts and sign all documents to continue the engagements of the children with therapeutic counsellor, Ms E, such treatment to continue for as much as is reasonably recommended by Ms E and/or is recommended by each of the children’s treating general practitioners.
BY CONSENT the mother and father are restrained from using any illicit drugs or being affected by illicit drugs whilst the children are in their care or supervision.
BY CONSENT the parties shall not use physical discipline on the children when they are in their care.
Both the mother and father be and are restrained from denigrating, belittling or abusing the other parent or members of the other parent’s family in the presence or hearing of the children or either of them.
BY CONSENT each of the parties shall attend and complete a drug rehabilitation course reasonably nominated by the Independent Children’s Lawyer. Such course to be commenced within twelve (12) months from the date of these orders and completed within eighteen (18) months of the date of these orders.
Each of the parents shall attend and complete a parenting after separation course within the same period of time as set out in order 11 above.
Each parent shall notify the other of any medical emergency, illness or injury suffered by either of the children whilst in their care warranting treatment by a third party and shall authorise any treating health professional to communicate with the other party regarding the condition and treatment of the children.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding applications be dismissed.
BY CONSENT the appointment of the Independent Children’s Lawyer be extended for a period of twelve (12) months from the date of these orders.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS DIRECTED

The Independent Children’s Lawyer forward a copy of these orders and these reasons that support the orders to the Tasmanian Child Safety Office together with a copy of the Family Report.

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

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

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: LNC 463 of 2005

Mr Standish

Applicant

And

Ms Lynch

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

These are proceedings between Mr Standish (‘the father’) and Ms Lynch (‘the mother’) in respect of parenting arrangements for their children B (‘the elder child’), aged six, and C (‘the younger child’), aged five.
This dispute was dealt with under the Magellan protocol of the Family Court; there being allegations that one or both of the children may have been sexually abused by the father. The mother believes that that was the case and the father has denied any such allegations. He contends that the mother has either intentionally or unintentionally inculcated the children with the false belief that they have been sexually abused. The father contends that the mother’s concern likely arises out of her delusional beliefs resulting from her drug use. The mother denies that that is the case.
The second area of risk is that the mother and the father have been (and in the case of the father – still is) significantly involved in the illegal drug culture. These parents were regular, if not daily, users of crystal methamphetamine (‘Ice’).
The father proposes a number of options, namely:-
1.In the event the Court finds that the father poses no unacceptable risk to the children and that the mother’s belief that the children have been sexually abused is unreasonable and that the mother is unable to meet the emotional needs of the children then it is the father’s case that the children should live with him and he should have sole parental responsibility with some limitations. Further, he seeks that the children have counselling and the mother have counselling in relation to her mental health and (asserted by the father) her present or former drug dependency. Once those matters have been addressed the children spend time with the mother on alternate weekends and at other times. This proposal was not the father’s strongest argument and was scuttled by the father when following the reserving of reasons he used Ice on two occasions, intentionally missed a drug test, and forged a false clear test to avoid detection.
2.In the event that the Court finds the father poses no unacceptable risk to the children, but that the best interests of the children are to remain living with the mother then the children live with the mother, the parents have equal shared parental responsibility and the father spends significant and substantial time with the children when he is in Tasmania. The time would include school holiday time. The father also seeks orders for therapy for the children and for the mother, which was the subject of consent.
3.In the event the Court finds the father does pose an unacceptable risk to the children then the children live with the mother, that the mother, subject to certain exceptions, has sole parental responsibility and the father spends supervised time with the children.
The mother seeks orders that the children live with her and that she have sole parental responsibility and that the children spend supervised time with the father on a limited basis.

BACKGROUND

The father is aged 38 and works out of F Town in Western Australia on a fly in fly out basis from Tasmania. He commenced this position in 2011. He works 28 days on and 28 days off. His travel time takes place in the time he has off, thus reducing the 28 days of to 24 or 25 days.
The father enjoys good health, apart from being drug addicted.
The mother is aged 32 and is the full time carer of the two children of the relationship. She has been their primary carer since birth. The mother was addicted to Ice and a user of marijuana. She deposed that she has not used Ice since shortly after separation and has not used marijuana since January/February 2015. Her evidence to this end has been supported by regular drug tests over the last year or so.
The parties commenced living together in 2004 and separated on about 15 June 2015.
It is not in issue that at the time of separation both parents were regular users of Ice and other illegal drugs. I will deal with the drug issues later in these reasons. Both parents used drugs during the time they cared for the children. The mother used drugs at times whilst she had the sole care of the children and the father was away working.
On 13 June 2015 the mother took the children to an appointment with Dr G and allegations of abuse were made by the elder child, although the doctor’s evidence is that those allegations substantially came from the mother. The following day the elder child was taken to H Hospital in relation to those complaints.
The mother contacted Tasmania Police on 17 June 2016 and, presumably, child protection authorities. She made allegations of the sexual abuse of the children and assault upon her.
Both children were interviewed by police on 18 June 2015 and later on 7 January 2016. The mother was interviewed by police on 25 June 2015. The father was interviewed by police on 30 June 2016. The four separate audio visual recordings constituted Exhibit ICL1. I viewed the available audio visual recordings outside the hearing times, and the parties had seen them or had had the opportunity of seeing them.
These proceedings were commenced by the father in the Federal Circuit Court on 23 September 2015 and were transferred to the Family Court on 23 November 2015. An Independent Children’s Lawyer was appointed at that time. A family report was ordered and the proceedings were listed for hearing in September 2016. Unfortunately, the hearing was delayed as the family consultant was unable to give evidence at that time and the hearing was completed in October 2016.
When the proceedings were reserved for reasons on 12 October 2016, consent orders were made providing that the children spend time with the father and that such time is supervised by the children’s paternal grandmother. The orders were up to 17 December 2016.
The paternal grandmother gave an undertaking to the Court as to her responsibilities as a supervisor, which undertaking was accepted by the Court and the mother said it gave her a sense of security for the children. A further order was made that the parties participate in weekly drug screens, whilst the father is in Tasmania.
An application was made to re-open on 8 November 2016 and leave was granted by consent. The father was required to undergo blood screening on 27 or 28 October 2016. He did not attend. However, he provided a forged drug and alcohol screening result, the nature of which was discovered through the careful attention to detail by the Independent Children’s Lawyer.
It was an agreed fact, at the re-opened hearing, that on 26 October 2016 the father used Ice. He was required to undertake a drug screening test on 28 October 2016 and purposefully missed that appointment.
On 1 November 2016 he used Ice again.
On neither of those occasions were the children in the care, or even supervised care, of the father.
It was submitted to me that the interim orders should be amended to provide that the father enrol, commence and participate in and complete a drug rehabilitation program after his return from his work commitments in early December 2016. I made that order by consent.
It was also agreed that the supervision by the paternal grandmother should continue, that the father should not spend overnight time with the children, when the children are overnight at the maternal grandmother’s home. I made that order.
I have had significant regard to these facts in this determination.
Any statement of fact in these proceedings is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.

THE LAW

The provisions of the Act which deals with children is set out in Part VII of the Family Law Act 1975 (Cth) (‘the Act’), in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)     parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The torturous terminology of the statutory provisions is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
1.Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
2.Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
3.In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.

The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests.
That section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a)     the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)    any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)    the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)    the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)     the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)    the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)    the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)     if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)    the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)    any family violence involving the child or a member of the child's family;
(k)     if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii) the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)    whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.

THE EVIDENCE

The father

The father relied upon the following documents:-
1.his initiating application filed 22 September 2015;
2.his affidavit filed 24 June 2016; and
3.affidavit of Ms D Standish, the paternal grandmother, filed 14 June 2016.
The father’s case outline was tendered in evidence.[1]
[1] Exhibit F1.

The mother

The mother relied upon the following documents:-
1.her response to initiating application filed 18 November 2015,
2.her affidavits filed 13 November 2015, 14 June 2016 and 30 June 2016;
3.affidavit of Ms I filed 14 June 2016;
4.two affidavits of Ms J filed 14 June 2016 and 4 July 2016; and
5.affidavit of Ms K, a counsellor from L Group, filed 14 June 2016.
The mother sought to rely on an affidavit of Ms M sworn 14 June 2016, however, given the contents of that affidavit and the mother’s concession it was struck out.
The mother provided a case outline which was tendered into evidence.[2]
[2] Exhibit M1.
The Independent Children’s Lawyer provided a summary of argument[3] and relied upon the following documents:-
1.The Family Report of Ms N dated 24 May 2016;
2.Magellan Report dated 11 January 2016;
3.Affidavit of the younger child’s kindergarten teacher, Ms O, filed 12 May 2016;
4.Affidavit of the elder child’s prep/grade one teacher, Ms P, filed 12 May 2016; and
5.Affidavit of principal of Q School, Ms R, filed 24 May 2016.
[3] Exhibit ICL2.
At the commencement of the October hearing date the parties and the Independent Children’s Lawyer told me that it was an agreed fact that no police prosecution was going to take place against the father given the current state of evidence.
It was also agreed that the father saw the children at the Children’s Contact Centre on 29 August 2016, 10 September 2016 and 8 October 2016.
At the conclusion of the hearing the mother agreed for the children to see the father provided they were supervised by Ms D Standish, the paternal grandmother, on the basis that she gave an undertaking to the Court.
At the end of the hearing Ms D Standish gave an undertaking and interim orders were made for the children to spend supervised time with the father pending the Court’s determination.
Further, consent orders were made that both parents undertake drug testing in the meantime and leave was given for the proceedings to be brought back pending the delivery of reasons and the making of orders.

The father’s evidence

Prior to the commencement of the father’s evidence I watched the twenty one minute recording of his interview with police. The father relied upon his affidavit referred to above which was read into evidence with one line of variation.
The father has had very limited contact with the children since separation but has, of recent times, been seeing them at the S Contact Service. On his evidence that contact was going quite well.
The father sought and obtained certificates under s 128 of the Evidence Act 1995 (Cth) and frankly disclosed his involvement in the drug culture and his use of drugs. He denied hiding property and the various allegations asserted against him in relation to his behaviour with the mother.
He conceded that during the relationship there were times that he was intoxicated and that he may have made inappropriate comments to the mother on social occasions. He gave evidence about the alleged disclosures and the mother’s concerns in mid-June 2015.
His evidence seemed frank and he was not shaken in cross-examination by either the Independent Children’s Lawyer or the mother. However, his forgery of the drug test result causes me to have serious concerns about the reliability of his evidence.
The father said that the children were rarely out of his sight or the mother’s sight. As to drugs, he said he was drug tested at work, which was random, and if he failed a test he would lose his job. He conceded using Ecstasy, Speed, Ice and other drugs. When cross-examined he said it was not daily, but it may have been close to it.
When asked about the impact on his parenting he said that he was there for the children, but it is hard to accept that he was not at many times unavailable due to his drug use and due to the drug use of the mother. He conceded that there were times when he looked after the children when he was affected by drugs.
The father was cross-examined about other aspects of their lives together and his responses were clear and straight forward.
There is some indication that the father’s views were coloured in support of the case he is putting forward, such as his assertion that his drug use did not significantly impact on his parenting of the children and that the children may not have seen him use drugs.
He seemed frank when he said that at times he left the home to visit a friend to use drugs and that he left the parenting to the mother in those circumstances; however it was likely that he used this as a cover for his drug use. He conceded that at first he thought the children may have been molested, but could not reconcile how that would have occurred given that he and the mother were the primary carers of the children and did not let them stay overnight and were with them almost all of the time.
He does not believe the children were sexually abused.
The mother cross-examined him in relation to a list which he made about possible areas of risk in which he included himself, his father, the mother’s father and another person. He said that was not a concession, but simply a task to try and work out who may have done it and all of the names were excluded. He said this exclusion was done by the parties.
He gave evidence that when the mother was at H Hospital on 14 June 2015 she became very loud and upset.
He does not wish the children to continue counselling at L Group because he does not believe they were sexually abused. However, he does want them to continue with some form of therapy because of the events arising from the parties’ separation over the last year and a half.
The father has said that he stopped using drugs early this year. I had treated that assertion with some level of scepticism and given the circumstance of his use of Ice in November 2016, that scepticism was well based.

Ms D Standish

Ms D Standish is the children’s paternal grandmother (‘the paternal grandmother’) and she gave evidence in accordance with her affidavit filed 14 June 2016.
Her affidavit was of a supportive paternal grandmother who had no detailed knowledge of the drug use by the father and the mother.
The paternal grandmother said she was sometimes concerned that the parties’ children took their clothes off when the family visited and that she would ask them to put their clothes on. She said they were naked more times than not.
She saw no sexualised behaviour, just ‘normal little girls’.
When she found out there was an allegation of abuse she was shocked and said that she does not believe that the father would have abused the children.
When asked about what she would do if she saw the father affected by drugs or taking drugs whilst the children were in her care she said that she would put the interests of the children first. She responded similarly in terms of any concerns she may have if she believed the children being abused.
I accept that she was unaware of the extensive drug use by the parties. She was concerned about the state of the house in which the parties lived, as it was often a mess and often unhygienic. I accept that evidence and that she was worried about the mother’s mental health. Given the evidence of the mother’s drug use at that time that is a reasonable concern on the part of the paternal grandmother.
The paternal grandmother is supportive of her son however, she endeavoured to give evidence in a reliable and straight forward manner.

The mother

The mother gave evidence in accordance with her three affidavits filed 18 November 2015, 14 June 2016 and 30 June 2016.
In considering the mother’s evidence and this matter generally I was conscious that she was unrepresented and clearly nervous about the process. Any assessments I have made of the mother is in terms of that underlying foundation.
The mother was not a particularly good witness. She had little insight into the nature of the evidence that she was giving. At times she understated her use of drugs. In her earlier affidavit, she deposed that she did not use drugs when the father was not present, and later conceded that she did use drugs and went to drug dealers’ homes and that a drug dealer came to her home, on her evidence on a limited basis, when the father was away.
I am satisfied that the mother was using Ice regularly both when the father was present at their home and when the father was absent from their home, and that this significantly interfered with her care of the children.
The mother says she has stopped using drugs effectively over the six months after separation. I treated that assertion with scepticism.
The mother agreed that her thought patterns were erratic and she had difficulties sleeping. She had been struggling with the children’s behaviour. She has engaged with L Group and other support since that time.
She now agrees that some of the allegations made in her affidavit are inherently implausible.
The mother said she used cannabis for a time after ceasing the use of Ice, but says that stopped in February. Her cannabis dealer, Mr T, had a personal relationship with her for some time. She said he came to her house on at least one occasion and she went to his house on at least one occasion. When she went to Mr T’s house she had a relative, aged 22, look after the children.
The mother is now seeing a psychiatrist although his report was not made available.
The children had been attending counselling at L Group, but it has been on an intermittent basis. The last appointment was 19 July 2016 with new counsellors.
In relation to sexual abuse, the mother said in cross-examination that she had never seen the father act inappropriately to the children, her concerns were about ‘a feeling’. Her cross-examination by counsel for the father in the last half an hour of day one was troubling. It provided:-
But it was just that feeling; wasn’t it?‑‑‑Yes, and I ‑ ‑ ‑ [4]
[4] Transcript of Proceedings as provided by Auscript dated 12 September 2016 at pages 5 to 7.
There was nothing firm you had to ‑ ‑ ‑?‑‑‑No, and the girls would give little bits of information of a dog at someone’s house or – you know, they would talk about someone that they had seen, but then they would quickly revert and be very quiet and – yes, the demeanour was quite different when they would return home.
And, again, when you spoke to police, you talked about – you said you had this feeling that something was going on?‑‑‑Yes.
And you admitted you’re not – hadn’t seen anything?‑‑‑That’s right.
And you talked about this belief that [the elder child] – particularly the elder child had been taken somewhere and photographed inappropriately?‑‑‑Yes.
So, like a child porn type situation; is that what you were worried about?‑‑‑She was – yes. Yes.
But, again – so you’ve not seen any photos?‑‑‑No.
No. And there has been nothing in your house that you’ve found that would, you know, link – have any, you know, firm link that your children were being photographed inappropriately; is there?‑‑‑No.
There’s just that feeling you have, and we’re talking about – again, this is last year when things weren’t great. Now, prior to you leaving – I just want to go over the events. So it was the Friday when [the elder child] as made some comment to you after toileting that there had been no blood in her pants?‑‑‑It was after bathing.
Yes?‑‑‑They had hopped out of the shower and I was wiping her quickly.
Yes?‑‑‑Because we had a ..... swimming lesson, and I remember grumbling, saying why do we need to shower before we go swimming, and I was, I guess, wiping quite quickly.
Yes?‑‑‑And, as I wiped her genitals, she jumped back in pain, and I said are you all right, what’s wrong, is it sore, you know, as you do, and she said it’s okay, mum. There’s – there’s no blood there today.
So ‑ ‑ ‑?‑‑‑And that was ‑ ‑ ‑
‑ ‑ ‑ you didn’t see any blood?‑‑‑No. She didn’t want to show me. She closed down, and we went to our swimming lesson.
So at that time did you actually have a look at the vagina region?‑‑‑No.
No?‑‑‑No, she wouldn’t – she didn’t want to show me. She – it was – and I do remember being in a rush and a disgraceful, drug-addict mother that, I guess, was concerned about getting out the door and – I mean, alarm bells were ringing, but I – I never – it didn’t cross my mind that she was sexually abused ‑ ‑ ‑
Okay?‑‑‑ ‑ ‑ ‑ to tell you the truth.
Okay. And you do the washing in your house?‑‑‑Yes.
How often do you normally wash?‑‑‑Then it was very minimal, yes. Now daily, but then minimal. Very minimal.
Back then you were trying to ensure that the girls changed their underwear daily?‑‑‑Yes.
Yes. And it’s fair to say you’ve never seen any blood in their underwear with the washing?‑‑‑I had. I had, yes. A lot of it I put down I didn’t think [the elder child] was wiping her bottom properly, but, to tell you the truth, I didn’t wash – I just didn’t wash regularly. I used to pick up big clumps and ‑ ‑ ‑
So, being young children, it’s a bit hard to tell, isn’t it, with their underpants, whether it is they haven’t wiped their bottom properly or blood?‑‑‑Yes, yes.
It’s hard to know?‑‑‑It would be very – yes.

She would not concede that she answered on behalf of the child when reporting abuse to the doctor, However, notwithstanding that point, the mother asserted that in the notes provided by the H Hospital on subpoena the doctor reported that there were signs of sexual abuse. Her evidence in this regard was troubling.
It was as if she had formed the view, perhaps in a drug affected state, and was doing all that she could to substantiate that view irrespective of the facts that were about.
A troubling aspect of her evidence was that she asserted that the elder child had said that there was blood in her pants. The mother, when pressed, said she found a pair of the child’s underpants with blood in them. The mother conceded it was sometimes difficult to tell the difference between blood and faeces, as indicated by the transcript to which I have previously referred. When further pressed she said that she had shown the child’s underpants to the police, but they had displayed no interest in it. She said she still had the underpants put aside, but had not presented them to the police in the second set of interviews.
The mother conceded that she and the father at times individually showered with the children although the mother rarely bathed with the children. There was no issue about children kissing adults on the lips provided that it was ‘a peck’ and there was no evidence to the contrary of other than that happening.
The mother, when seriously affected by Ice use and at a time her relationship with the father was or had failed, concluded without fact that her elder child had been abused by the father. She then set about looking for facts and circumstances to support that belief, including putting words in the mouth of her elder child.

Ms K

Ms K provided evidence in accordance with her affidavit filed 14 June 2016. She is a community educator/counsellor with L Group.
Ms K gave oral evidence as to her curriculum vitae, which disclosed the following:-[5]
[5] Transcript of Proceedings dated 13 September 2016 pages 10 to 12.
a)Bachelor of Arts with a major in History; a Master of Arts in History;
b)from February 2014 to September 2015, her occupation was a sexual assault crisis counsellor;
c)part-time work for a couple of months at a time counselling people on the ‘LGBTIQ’ spectrum who have experienced same sex sexual assault;
d)Work at a women’s centre that provided programs for women who have experienced barriers in society, who have experienced sexual assault, who have been to jail, lost their children, who have faced socioeconomic barriers;
e)Owner and director of a communications firm from 2009 to present;
f)She asserted that she had worked with women who had experienced trauma commencing from 1990 to the present time;
g)As to the dividend of her communication work and counselling work she said communications made up 40 per cent and the direct counselling experience made up about 60 per cent.
h)She completed a Mental Health first aid certificate this being a seven and a half hours a day course for a week;
i)She completed a Sexual Assault Crisis and Trauma Certification; this course was 55 hours of training;
j)She completed an Applied Suicide Intervention Skills training course, which was over about 15 hours; and
k)She is presently studying towards a Master’s Degree in Social Work.
Her qualifications are not impressive and her evidence is troubling. This Court understands and accepts that sexual assault counselling, such as that provided at L Group, adopts the model of ‘believe and support’. As Ms K was the mother’s counsellor, such an approach is appropriate in that context.
However, Ms K’s evidence is that she goes well beyond that approach. She has become an advocate, supporter and promotor of the mother’s beliefs and rejects any notion or evidence to the contrary.
Ms K believes absolutely that the children were sexually abused and she is also an advocate for the children, notwithstanding that she has never been a therapist for them. She deposed that each of the children have had four or five different counsellors with whom she has had discussions and read their notes. She relied on some information about anal penetration of one of the children, which had clearly come from the mother and not from the children.
Ms K set out ten indicators of sexual abuse. These were:-
1.Unexplained genital injury;[6]
2.Regression;[7]
3.Acute traumatic response;[8]
4.Sleep disturbances;[9]
5.Problems at School;[10]
6.Social problems;[11]
7.Poor self-esteem;[12]
8.Age-inappropriate sexual knowledge;[13]
9.Depression; and[14]
10.Sexualised behaviour.[15]
[6] Transcript of Proceedings dated 13 September 2016, page 14 at line 40.
[7] Ibid, page 16 line 8.
[8] Ibid, line 27.
[9] Ibid, line 34.
[10] Ibid, line 37.
[11] Ibid, line 41.
[12] Ibid, page17 line 1.
[13] Ibid, line 5.
[14] Ibid, line19.
[15] Ibid, line 21.
She said this was a ten out of ten, a one hundred per cent case that the children were abused. A contrary determination would not disabuse her of that belief. This was in circumstances where the mother said she would be comforted if the Court made a finding that way or even comforted that the children were not at risk.
Given Ms K’s completely fixed view in her evidence and views, I give her evidence little weight.
Ms K’s enquiries should be better than a broader objective enquiry having regard to what the mother says and discussions with the children’s, apparently nine, counsellors and from reading the notes. Any challenge to her thinking about her consideration of the indications of abuse was rejected. This is in the context that this witness was aware that there was heavy drug use in the home and that there may have been some neglect of the children. When asked about the neglect she endeavoured to minimise it in circumstances where she had not seen the home.

Ms I

Ms I provided evidence in accordance with her affidavit filed 14 June 2016. She has been a close friend of the mother’s for many years and is also a parent of a child who is of a similar age to the younger child.
Ms I does not like the father and thought that he was ‘sleazy’. Given his involvement in drugs and the involvement of both the mother and father in drugs that is a reasonable assessment by Ms I.
She was worried about the change in the mother’s behaviour, particularly in 2014. She said the mother became submissive, self-involved and sometimes erratic in her thinking. However, from Ms I’s point of view, the mother’s parenting did not diminish.
At one stage Ms I was concerned enough that she thought she may need to report her concerns to the child protection authorities such was the state of the mother’s home and her views of the mother. In that respect I conclude that Ms I is endeavouring to be truthful, but is somewhat partisan and loyal to her friend. I generally accept that her evidence is reliable, but needs to be seen through her friendship with the mother and dislike of the father.
I am satisfied that Ms I tried to be straight forward and frank in her evidence to the Court.
Ms I said the mother was consumed by thoughts that the father was having an affair, was upset by the elder child’s behaviour and was not happy in the relationship.
An example of Ms I’s views in relation to her closeness to the mother was when she was asked about the mother’s concern that there were meetings being held in the ceiling of her house. Ms I did not think it was a delusion and perhaps this is an indication of her, at times, partisan evidence.
There was evidence that the mother went out on Monday 16 June 2015 after all of these events and stayed out late that night leaving the younger child with Ms I and the elder child with the maternal grandmother. This reflects the mother prioritising her drug use and her own perceived needs over the real needs of the children, at that time.
The frankness of this witness was shown when asked about whether she saw the father inject himself and she said she did not. Ms I said it was something that she had been told. Similarly she said she did not see the child hit by the tennis ball (paragraph 23 of her affidavit), but had been told this.
I am satisfied she is a reliable, albeit at times, somewhat partisan witness.

Ms J

Ms J is a witness for the mother and provided evidence contained in her affidavits filed 14 June 2016 and 4 July 2016. Those affidavits were read into evidence.
Ms J is a cousin of the mother, but they were brought up in the same household and regard themselves as sisters. Ms J is a very direct, forceful person and gave her evidence in a frank and clear way. In her affidavit she gave the evidence ‘warts and all’. She was a breath of fresh air.
Ms J was concerned about the drug use of the mother and the father over many years. She gave evidence of the children’s drawings to which she referred in her later affidavit.
I am satisfied that the children’s drawings have been given a sinister interpretation following the allegations and the interpretations of the sinister nature may well have been innocent drawings seen though adult eyes.
In her evidence, Ms J said that the younger child occasionally undressed in front of others and steps had to be taken to ensure that she was dressed.
Ms J has observed the mother drinking alcohol at inappropriate times, including when driving, and said she was concerned about the mother’s capacity to parent the children.
At paragraph 34 of her affidavit she observed:-
Around the same time ([the father] had left a day or two earlier) mum called me in a distressed state and asked me if I could drive over and call [the mother] as she was unable to get hold of her. It was a Thursday I don’t remember the exact date. I was uneasy driving over and when I arrived the dogs were barking. The elder child answered the door half naked and I asked where mummy was. Auntie [J], Mummy is asleep. The house was a bomb site, with goat tracks for thoroughfares. Every dish was dirty, the house, smelt, there was food in bowls with flies hanging about and for a split second I thought [the mother] was dead on the couch. She woke to my heels and asked what I was doing there and where was her father. They’d argued about the house and he had gone off to read with [the elder child] and she must have dozed off with the younger child. I asked why [the father] hadn’t help (sic) clean this mess. She was inconsolable telling me she was depressed and asked if I’d remembered telling her after the death of my Dad that I was so sad. That was her, we discussed her and [the father], [the father’s] family, she had no money and was limited to $300 per week and she had to get fuel, groceries for the girls, pay for their activities as well as her smokes. She admitted she wasn’t happy. She’d asked to borrow money from her Father previously and he’d told her she was just like his Brother, …. I’d suggested she speak to [the father] about increasing her funds. I suggested she see a doctor to possibly get some antidepressants but they weren’t going to fix her problems for her. I noticed one of the dogs … was missing hair directly in front of her tail and asked what was wrong with her. [The younger child] was a nightmare, screaming the house down telling me to leave and [the elder child] was zoned out in front of the tv. I chastised them for their behaviours, pulling the dogs tails and poking them in the bum and said if they bite you I wouldn’t blame them. I asked [the mother] if she was on drugs which she denied.
Ms J was initially concerned about various aspects of the mother’s parenting of the children and the impact on the children.
On 17 June 2015 both children were being cared for by the maternal grandmother. This was the night after the mother had gone out while the younger child was in the care of Ms I. On this night the mother had gone out, yet again, and left the children with others. This reflects poorly on the mother’s parenting capacity in terms of the priority of her needs as against those of the children, at that time.
Sometime later the mother sat down with Ms J and made a series of allegations which were set out in Ms J’s 14 June 2016 affidavit.[16] This included an assertion that the father had held meetings or there was someone in the ceiling of the house in which they lived. Ms J considered this unbelievable.[17]
[16] Paragraph 57.
[17] Paragraph 41(xi).
Many of the assertions made by the mother to others about what was going on were inherently implausible.
Ms J said that she went to the mother’s home on Easter Tuesday 2015 and that she thought that the mother was displaying some paranoid tendencies.
Ms J was concerned that the mother was questioning the children in relation to her concerns about the father having an affair. This seemed to be indicative of the mother speaking in an uncontained way such as that set out in paragraph 51(v) of her affidavit filed 14 June 2016 saying that she ‘never wanted kids’ when the elder child was nearby and heard her.
At the time this witness found out about the allegations of sexual abuse she was, in my view, quite rightly sceptical.
Ms J and her husband arranged to see the father and met with him at their home. The father was untruthful to them. He denied the affair. He denied the use of drugs, claiming that he did not take Ice but took Speed. He denied any assertion of sexual abuse.
He produced an exercise book of the events since separation.
Following separation Ms J was concerned the mother was continuing to smoke marijuana and drink alcohol. Up to early 2016 Ms J was convinced, from what she knew, that the mother’s plan was to stop the father seeing the children and to hurt them because the father had hurt the mother.[18] Ms J later changed her view in relation to this given the lies that were told to her by the father and the ongoing police investigation. This arose when she found out that the father did know a person called ‘Ms U’ when he had asserted that he did not at that time.
[18] Paragraph 75 of her affidavit filed 4 June 2016.
I am satisfied she is a frank witness, a powerful support for the children and for the mother and is a good recorder of the facts.

Ms R

Ms R is the principal of the children’s school. She provided an affidavit filed 24 May 2016 and was available for cross-examination. She provided evidence of the interaction between the school and the parents. From her perspective there was no indication of sexualised behaviour by either child, no concerns about the children’s behaviour, no concerns about the children’s attendance and no issue about the children separating from the mother.
Ms R said both children were making good progress at school.

Ms P

Ms P is the elder child’s teacher and provided an affidavit filed 12 May 2016. Her affidavit evidence was of a child who attended school neat and clean and was given her lunch. She said the elder child is a child who fits well into school, has adjusted quickly and has made new friends.
There was nothing in the elder child’s behaviour which caused this teacher concern. That affidavit was read into evidence without contest.

Ms O

Ms O provided evidence in accordance with her affidavit filed 12 May 2016. She is the younger child’s teacher and first met her at the beginning of this year. The teacher does not believe the younger child needs any special attention and says that she is a quiet and reserved child, but as the day progresses she becomes more happy and socialises easily with other students.
Initially the younger child was teary and upset when separating from her mother in the morning, but quickly settled in and was happy for the balance of the day. She said the younger child presented well at school and had a healthy lunch. There is no behaviour which causes this teacher any concern.

The Family Consultant

Ms N is a family consultant (‘the Family Consultant’) who works with the Family Court. She is a psychologist and has been employed by the Court since 2001. She has significant practical experience as well as her under graduate and post graduate qualifications. No issue was taken as to her qualifications.
The report of the Family Consultant was tendered in evidence by the Independent Children’s Lawyer.[19] For that report the Family Consultant met each of the parents, and observed each with the children.
[19] Exhibit ICL4 dated 24 May 2016.
She also observed an unscheduled meeting between the children and their paternal grandmother in the waiting area. The Family Consultant had read the relevant trial affidavits of the mother and father and the affidavit of Ms K. She had viewed the police video interviews of the younger child, but not of the elder child.
That evidence did not cause her to change the views she set out in her evaluation and the recommendations she made in her report.
The Family Consultant also read the transcript of Ms K particularly in terms of her ten indicators and the circumstances where Ms K said that in her view it was ‘ten out of ten’ in terms of the father sexually abusing the children. It was clear that Ms K did not look at the objective evidence and had not interviewed the children.
The evidence of the Family Consultant was that, given all of the circumstances and having noted the Family Consultant’s observations of the children, their presentation was counter indicative to the serious allegation of sexual abuse made by the mother.
The Family Consultant was concerned about the delay in the detailed disclosure by the younger child. I am, perhaps, not as concerned about the delay in reporting the alleged abuse. There are a number of possibilities including that the child was traumatised and unable to speak about it for some time and of course there is the concern that the mother, in her determination that the children not see their father, given her strong beliefs, has encouraged the children to make specific disclosures.
The use of needles in the household seemed to have been a significant part of the discussions by the children. In that respect I note the reported comments of the younger child to the Family Consultant.[20]
[20] Family Report paragraphs 64 and 65.
The Family Consultant suggested the father spend significant time with the children if I am satisfied that they are not at an unacceptable risk having regard to the father’s 28 days on and 28 days off work regime. I have not accepted that approach given the father’s dishonesty in terms of his drug use since October 2016
Having regard to the closeness of the children to the mother I am not satisfied that it is in the children’s best interests to spend four or five nights over three weekends in a row, given the nature of the conflict between the parents.
The Family Consultant recommended a short graduation of time more for the benefit of the mother than for the children if I were satisfied that there was no unacceptable risk.
That graduation time will have occurred in the period between the completion of the evidence and the publication of these reasons, albeit supervised by the paternal grandmother.
The Family Consultant recommended that each of the parties undertake drug and alcohol counselling and post separation parenting counselling. Each of the parents agreed that that was a proposal they would adopt.
The Family Consultant’s evidence was that in the parents’ household there was a high risk to the children because of the drug use by the parents. On cross-examination by the father’s counsel the Family Consultant agreed that there were risks of the mother relapsing into drug use, exposing the children to her views and said that the mother would not support the relationship with the father.
I accept that there were those risks although, the mother has made it clear to the Court, and the Court accepts, that she will support the relationship between the children and the father if the Court makes a finding that there is not an unacceptable risk[21] to the children spending unsupervised time with the father.
[21] Family Report paragraphs 30 and 31.
The Family Consultant observed that the mother was angry with the father arising out of the relationship breakdown including her perceptions that he had been unfaithful to her and was not supportive of her.
From the evidence of the Family Consultant I accept that the children wanted to see their father and that their reunion with him was joyful, the interaction was appropriate and showed an established loving relationship.
I accept that the family consultant is highly qualified and her evidence reliable.

Ms V

Ms V is a child protection officer who gave evidence in terms of the Magellan Report.[22] The report was prepared by Ms V. Ms V is a child safety officer and interviewed the mother by way of a surprise visit in January 2016.
[22] Exhibit ICL5.
Her assessment of the mother was that her drug use had diminished or stopped and that there was a marked improvement in her presentation from 2015.
I accept the evidence of Ms V as reliable.

Ms W

Ms W is the acting senior counsellor at L Group. Her qualifications were outlined and there were no issues taken with them.
She provided evidence about the recent involvement with the children which were with new counsellors and were in essence ‘ice breaking’ sessions.
L Group is prepared to continue with counselling if the Court concludes that the children are not at unacceptable risk however, they will discuss that with the family. Her view was that it would be better to have a single long term counsellor for each of the children. I accept that evidence.

FINDINGS

At Paragraph 35 of Family Report the Family Consultant said:-
[The mother] reported that she has “definitely been a mother for my girls”. She said that after they returned home from the hospital she had packed a few belongings and told the girls that their father would never see them again. She said that [the elder child] became so distressed that she had wet herself. [The mother] reported that [the father] had looked at [the elder child] “like an animal” and as they were leaving he yelled after [the elder child] that she should tell the truth; [the mother] reported that in reply she had told [the elder child] they would never go home “because of the things that happened”. [The mother] said “I left everything to protect the girls”.

The mother said of this:-
I said it was unsafe because of daddy. [The eldest child] said its “ok it doesn’t happen to me anymore … it happens to [the younger child]”
In terms of the mother’s evidence about this she tried to minimise what she had said. The mother prevaricated to some extent about what she had said to the children about the father from time to time.
The Family Consultant said at paragraph 36:-
On several occasions, [the mother] stated that she did not like talking about the allegations of abuse and that she did not know what evidence the police might have, in addition to the children’s statements, to support the alleged intended charges against [the father]. At different times over the course of the interview the consultant asked [the mother] what she believed had occurred. [The mother] said she believes that other men in addition to [the father], and other children were present when [the elder child] and the younger child performed sexual acts and were photographed. She believes the children were “given medicine, told to wear my pretty underwear, other children there, really don’t know, so much to take in”. Asked about the most serious abuse that she believed had occurred, [the mother] said “[the elder child] was penetrated anally”. [The mother] reported that while driving in the car, [the elder child] had spontaneously said that her father had put his “doodle” in her bottom and it had hurt and she did not like it. [The mother] reported that she had said to [the elder child] words to the effect “he didn’t ever put it (his penis) near your private parts?” to which [the elder child] responded “yes he did he put it in my bottom and it hurts a lot” and [the elder child] then said she did not want to talk about it anymore.
The mother had believed there had been anal penetration of the children by the father prior to the elder child allegedly disclosing that circumstance.
The mother complained that the father read books to the children at bed time, because he took longer than she did, and took the children on bike rides because she said it was a cover for his drug use. There is probably some substance to that aspect of it although it is clear that the father had a close relationship with the children.
There was an annexure to an affidavit of Ms J sworn 4 July 2016 (Exhibit A) in which the mother and apparently friends of friends discussed that one of the drawings undertaken by the children about one year prior to separation looked like the father’s penis. The assessment of this drawing came out after separation and after the assertions of abuse. There was no expert evidence as to the meaning of the drawing. It appears to be a simple child’s drawing of two adults (tall) and one child.
In many ways this drawing is indicative of the mother’s view of things. The mother was terribly unhappy in respect of her relationship breaking down at the end of that time with the father. She was fixated that the father was having an affair, whether he was or was not. The evidence of Ms I confirmed the mother’s concern in that regard.
When the child said something which was probably relatively innocuous, but which may have had some sexualised meanings, I am satisfied that the mother, given her significant involvement with the drug Ice and the impact upon her, formed a belief that the children were sexually abused.
The evidence from that time is that the mother ‘assisted the children in their memory’. Having regard to the evidence of Dr G, the evidence of the hospital the following day and the mother’s statement to the police I am satisfied the mother has discussed these issues with the children and in their presence.
Unfortunately, the mother went to L Group and met a worker who was absolute in her beliefs, namely Ms K who was in turn fixed in her belief that the mother and the children had been sexually abused. She would not discount any alternative explanations in any way, shape or form and any challenge to that thinking was met with denial. Her evidence was ‘you will [not get me to admit I am wrong].’ It went further than that. She said that if the Court found as a matter of fact that there was no sexual abuse that this finding would not be indicative of the truth. Such was her absolute views in that regard.
As a consequence I am satisfied that the mother believes the children have been sexually abused and she has been more than counselled, she has been encouraged in that belief.
This has to be seen at the time when the mother was using Ice on a regular basis for two and a half years, sometimes daily. The mother’s evidence was that around the time of the disclosure she was using these drugs at least morning and night. She is now aware that it has significant psychological impacts upon her including loss of appetite, disturbed sleep patterns including a reduction of sleep to sometimes four hours a night, poor communication with the children, erratic behaviour and being short tempered.
The mother denied that she hallucinated. Yet looking at the mother’s affidavits in terms of the meetings in the ceiling of the house, the attacks on her, set out in her first affidavit at paragraph 15 and her second affidavit at paragraph 8 and onwards, many of these are just inherently implausible yet the mother believes them to be the facts.
It is significant in the history of the matter that the mother had what she thought was a disclosure from the child on Friday 13 June 2015. She took the child to the local doctor who found no objective evidence of assault, although Ms K believed that there was evidence of assaults. The mother phoned child protection services that day and the police.
The mother said the following day she attended H Hospital and moved out of the home. She discussed her concerns with Ms I into whose home she moved on 15 June.
The following night the elder child was put in the care of the maternal grandmother and the younger child was left in the care of Ms I. The mother went out and used drugs. It was necessary for Ms I to bring the mother back home.
Given the evidence it is clear that both the mother and father neglected these children at least up to the time of separation. Much of that arose out of their abuse of and addiction to drugs at that time.
The mother’ allegations are set out in her affidavit filed 14 June 2016; where she says:-
7. Since leaving [the father], [the elder child] and [the younger child] have slowly over time spoken of traumatic memories that they had experienced in their father’s care, which are highly disturbing and include additional adult’s names that I knew to be friends with [the father] when we were together. I had not met these people yet [the father] had spoken of them frequently to me.
8.Some of this information included the following in which I have no choice to believe when being faced with the information first hand from my children.
(a)That [the father] would administer drugs to myself, [the elder child] told me “Dad would give you special medicine for your special brain” and he would either put a needle in my neck while I was sleeping or add it to my drink if I was awake and that “it was yellow coloured medicine and I was not allowed to tell you about it, it was a secret” [the father] would not allow me to sleep in at all whilst I was a stay at home mother and in the last four to six months we were living together, unscheduled surprise sleep ins for myself were becoming more frequent. I would wake disorientated and confused and sometimes in pain over various parts of my body and head. I put this down to my drug usage with [the father].
(b)Upon [Mr Standish] administering the drugs to myself, [the elder child] has said that other people namely “Smartie” and “Scooby” , ”would come and visit you mummy and be rude to you and hurt you, Smartie would punch your face while being rude”
(c)That ([Ms X]) would get a DVD case and close it on my skin all over my body.
9.[The younger child] on one occasion before leaving our home environment in 2015 noticed I was in the mirror looking at scratches I had on my face in bewilderment as I had no knowledge of how I obtained them. She said “daddy threw a cat on your face” I dismissed this statement as it seemed ludicrous and told her that it was not true, but she seemed to be adamant that it occurred. This has again been recollected by both the children after leaving both retelling the same occurrence at separate times.
10.The younger child said she awoke to [the father] stabbing my private parts with a needle, the younger child did not tell me this until after we left. In December 2014 I discovered I was pregnant. Both the [father] and I mutually agreed to terminate and this was booked for January. In the meantime, my Grandmother passed away and subsequently the funeral fell on the same day as the abortion. I asked [the father] to stay home to help me as he was required back at work the day prior, yet he refused.
The morning we drove [the father] to the airport (5.30am flight) I awoke with immense pain in my abdominal and pelvic area. When I returned home with the girls I showered and discovered a rash like symptom surrounding my entire pubis area. That day my friend [Ms I] arrived to help me sort care for the children and transport to and from the abortion before the funeral. I confided in her about the pain I was experiencing and that I thought the [father] had given me an STI as I believed he was sleeping with other women. Upon her permission I showed her my pubis area and asked her opinion. She described it like a shaving rash although it was clear I had not shaved for days. Her advice was to go to the doctor and have it checked. Within two days the rash had cleared. With the younger child divulging such a heinous act that she had witnessed and this particular experience that I remember on the day before the abortion, I believe that this did in fact happen.
At paragraph 15(c) and (d) of the mother’s affidavit filed the 13 November 2015 she says the following:-
15.(c)The Girls also told me that “[Ms X], and [the father] were having an affair. The girls refer to her as ‘the naughty girl” and would tell me that she would wait until I would leave to spend time with [the father]. I believe [the father] was having this affair as in January 2013 he called me [Ms X] while we were in bed together.
15.(d)The Girls have further told me that [the father] and [Ms X] would give me “medicine” and would then dress me in lingerie and put earrings in (sic) and let three men come and look at me. This corresponds with concerns I had that I would wake up wearing different clothes, or no clothes, than when I last recall.
Ms K rejected evidence which was contrary to her conclusions and accepted, uncritically, the evidence of the mother.
When the mother first saw her doctor in June 2015 she was leading the evidence of the elder child. Neither the elder child nor the younger child made admissions to the police in their first interview. At that point in time the mother became fixed in her view that the children were sexually abused.
The mother, subsequent to that time, and from April 2016 had been counselled by Ms K, and I have set out my concerns about her involvement earlier in these reasons.
The words of children must be given voice and must be listened to. The circumstances and the context of the allegations must be seen. The mother was, at that time, affected by Ice on a daily basis. Such was the extent of her use of that drug that reports were made to child protection authorities. On 18 June 2015[23] child protection authorities received notification of the mother presenting as ‘heavily under the influence of drugs’ and ‘paranoid’.
[23] Exhibit ICL5, Magellan Report page 3.
It was in that context that allegations of sexual abuse were asserted to have been made by the elder child. In August 2015 there were a number of references to child protection authorities in relation to the mother’s presentation and use of marijuana and concerns about her mental health issues. There is some evidence that in November 2015 the mother was presenting as ‘manic’ and could not sit still.
It is clear from the mother’s own evidence and the evidence of child protection files and the evidence of members of the mother’s family that through 2015 the mother was affected by and was using drugs which impacted on her parenting capacity.
It is more likely than not that the mother encouraged the children to make disclosures, given that she was using drugs and held such a fixed belief that they had been abused by the father.
Fortunately for these children, by January 2015 the mother had commenced to effectively deal with drugs. There is no evidence following that time that the mother is engaged in use of drugs although this Court is concerned that, given the level of illegal drug abuse in 2015, the mother has managed to wean herself off drugs with such apparent ease. If this is what the mother has been able to achieve then she ought to be congratulated.
This, with the evidence of the Family Consultant that given the allegations and the seriousness of the allegations the children’s presentation with the father was counter indicative to that occurring. It is significant that these children still have a warm and loving relationship[24] with their father and it is likely that the complaints were learnt behaviour from the mother.
[24] Family Report paragraphs 59 and 60.
Some of the indicators relied upon by Ms K, such as the behavioural aspects, are more likely to have arisen from the neglect which I find occurred in the parents’ home up to June 2015, and arose from the chaos in the house around the times of separation.
At paragraph 81 of the Family Report the Family Consultant said:-
Reliable assessment of suspected sexual abuse requires an evaluation of the information supporting the concerns as soon as possible after the suspected abuse, most importantly a forensic interview with the alleged victim or victims. Delayed assessment interviews are prone to increased errors because adult and children’s memories become less reliable over time. Adults and children can develop false beliefs as a result of repeatedly being exposed to inaccurate information. Children, to a greater degree than adults, have not developed a good capacity to reflect on the source of their memories. Typically children are eager to please adults; this creates a tendency for children to answer questions they may not understand to ‘fill in the gaps’ when giving an account of event they may not remember well or at all. This helps to explain why a child may provide implausible answers to the questions asked of them.
This needs to be seen in the context that the children made no disclosures to the police in June or July 2015, albeit they made disclosures subsequently.
I am very conscious that sexual abuse of children does not typically involve activities which cause injuries and behaviour is not usually witnessed by other people. There is often no medical or eye witness proof to verify concerns that children have been abused.
There is no assessment tool that can eliminate the possibility that a child has been abused. The task is to look at the complaints made and the context of those complaints.
The things children say ought not to be rejected, however, they need to be heard in context. In this case the children are very close to their mother who has been their primary carer given the father flies in and flies out for work. The mother strongly believes that the children have been sexually abused and has made that clear since separation. It was the mother’s views that the children should never see their father again and she informed the children of that circumstance.[25]
[25] Family Report paragraph 35.
I have considered all of the evidence including the evidence of the parties, and in that respect I am not satisfied that the mother intentionally seeks to mislead the Court and rather that she genuinely believes the children have been abused by the father. However, I am on balance, satisfied that the children are not at an unacceptable risk of harm in the unsupervised care of the father.
I make it clear to the parties that this is not a finding that the abuse did not occur nor is it a finding that the abuse did occur.

Continuing counselling

The children have been counselled by counsellors from L Group. They have each recently commenced counselling with new counsellors, one of whom is a part-time counsellor. They have had at least nine counsellors between them over the period they have been attending counselling at L Group. That is not a criticism of L Group.
I accept that the children need some therapeutic support. Any counselling they receive needs to be consistent. A suggestion was made of a counsellor, Ms E, and orders were made for the children to see that counsellor. Ms E can appropriately interact with both parents as she thinks meets the best interests of the children. I will make that as one of the orders in these proceedings.
The Family Consultant was concerned about the approach adopted by Ms K, particularly her somewhat strident and unwavering beliefs which supported the mother’s beliefs. I accept that evidence and adopt those concerns.
I accept the evidence of the Family Consultant to be reliable, thoughtful and independent.

CONCLUSIONS

The Independent Children’s Lawyer submitted that the evidence in relation to sexual abuse is equivocal. He was, justifiably, critical of the evidence of Ms K and I accept his submissions in that regard. I do not intend to repeat them further in these reasons.
As to drug use, the Independent Children’s Lawyer asserted that this must have impacted on the parents’ care of the children, particularly on the mother who was their primary carer. The children were at risk of observing drug taking behaviour and the effect that that would have on the children.
Of course there is the question of engaging with the suppliers in the drug culture. The Independent Children’s Lawyer recommended that the parties not take illicit drugs or be affected by illicit drugs. Each of the parents seemed to accept this approach, albeit that the father continues to use Ice, and accordingly that order will be made.
The Independent Children’s Lawyer further recommended that a private psychologist be involved in counselling for the children. I had regard to the submissions of the Independent Children’s Lawyer contained in his case outline.[26]
[26] Exhibit ICL2.
Counsel for the father relied upon the submissions she tendered at the commencement of the trial[27] and I accept that both parents were participating in the use of Ice in the last two and half years of their relationship. I have found that the drug use did impact on the parties’ capacity to care for the children.
[27] Exhibit F1.
The father was the facilitator of drugs at the home, although the mother continued with the use of some drugs when he was away.
I accept that the mother seems to have been drug free in recent times and is now providing a healthy and emotionally stable home for the children. This is supported by the evidence of the school and the drug testing.
I accept counsel for the father’s submissions that on the evidence the children are not at unacceptable risk of sexual abuse in the care of the father.
I accept counsel for the father’s submissions in relation to drug counselling and it is significant that the father has not appeared malicious in this matter. He adopted a child focused approach in terms of the children.
Given the evidence when the hearing was re-opened on 8 November 2016, it seems to me that supervision of the time between the father and the children, by the paternal grandmother, should continue for at least a period of twelve (12) months and that the drug testing should continue for a period two (2) years after the order is made. I intend to make those orders including an order that the parties are given leave to have the matter restored before me for consideration of suspending the father’s time should he relapse again.

PARENTAL RESPONSIBLITY

These parties have not communicated since separation. However, each of the parents now seeks an order for equal shared parental responsibility as does the Independent Children’s Lawyer. It is not without some misgivings, having regard to the history of this matter over the last eighteen months and the mother’s view of the father, that I will make such an order which, on balance, if it works will better meet the needs of these children.

The relevant factors pursuant to section 60CC of the Act

The task of the Court is to consider the facts, and in that respect I have not endeavoured to repeat or reiterate all of the evidence, in the context of the orders sought by the parties and according to law. These proceedings commenced after June 2012 and as such the current iteration of the section applies.
In terms of those considerations I have had regard to both of the primary considerations. In that context, I have endeavoured to do so consistent with the objects set out in s 60B(1)(a) and (b) of the Act and I have given greater weight to the consideration set out in s 60CC(2)(b) of the Act.

Primary Considerations

60CC(a) the benefit to the child of having a meaningful relationship with both of the child's parents;

The children have spent most of their lives in the primary care of the mother, but the father has been, at least until separation, significantly involved. The evidence is that the mother, absent of drugs, is a warm and loving mother and that the children have a close and loving relationship with their father.
These children are strongly supported by both of their parents.
Absent the risk of an unacceptable risk the relationship with each parent should continue.

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

In Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038 Tree J gave consideration to the notion of unacceptable risk and said:-
51.It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
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 a particular case fall, and explain adequately their findings in this regard.
52.In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:
20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke[1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22.In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25.Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

As I have discussed elsewhere I am not satisfied that the children are at unacceptable risk of abuse in the care of the father.
The drug use of both parents is troubling. The order for equal shared parental responsibility may assist to protect the children. The forwarding of these reasons, orders and expert evidence to Tasmanian child safety authorities will also provide some protection. The father has demonstrated his weakness when it comes to Ice. As such I will require him to undergo drug testing for the next two years and, given the drug use, to have his time with the children supervised by his mother for the next twelve months and his overnight time restricted for about six months.
I have some concerns that the mother will have difficulty accepting this determination. Her belief, to her mind, is real and valid. However, the mother has said she is prepared to support the children if this is a finding I make and I accept her evidence in that regard.

Section 60CC (3) Factors

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

The children are of an age where they have not expressed any views although they clearly have a close relationship with both parents

Section 60CC 3(b) the nature of the relationship of the child with:

(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

Each of the children is strongly attached to the mother and I accept the evidence of the Family Consultant that the mother, absent of drugs, is a fine mother. The children have a close and loving relationship with the father and that has not been diminished by the allegations to which I have referred elsewhere and to which the mother refers.

Section 60CC (3)(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;

Each parent has participated to the best of their ability given the matters to which I have alluded to elsewhere in these reasons.

Section 60CC3(ca) the extent to which the child’s parents have filled or failed to fill their obligations to maintain the child;

There is no issue in relation to this provision.

Section 60CC 3(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

The effect of the orders I intend to make is that the children will spend supervised time with their father over the next twelve month. This will protect the children as will the régime of ongoing drug tests.
This was not a case where the Court could have, in all of the circumstances, removed the children from the primary care of the mother.
The only other option was to cut the children off indefinitely from the father. That would have entrenched in the views of the children that their father had abused them in circumstances where, on the evidence, they are not at an unacceptable risk into the future of any such abuse.

Section 60CC 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

There are no meaningful issues in this regard.

Section 60CC 3(f) the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

Each of the parents has the capacity to care for the children provided that they refrain from using drugs.

Section 60CC 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

and

Section 60CC 3 (h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;

Neither party identified as Aboriginal or Torres Strait Islander.

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

In relation to this ground, each of the parents has seriously engaged in the drug culture which has greatly impacted upon their parenting. I have no doubt, that this has impacted detrimentally upon the children, bearing in mind the stark evidence of the mother in terms of her state when she used Ice.

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

Section 60CC 3(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;

Not applicable.

Section 60CC 3(l) whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the children;

The orders have been structured to avoid further unnecessary litigation, but leaves open a quick return to the court in the event of drug use by the father.

Section 60CC 3(m) Any other relevant facts or circumstances the Court thinks is relevant;

Given all of the findings and the evidence I have determined that the orders set out at the commencement of these reasons will enable the children to be safe, albeit in the context of the dynamics of this family with their drug use and mutual dislike each of the other.
The times the children spend with the father is less than recommended by the family consultant but given all of the circumstance I am satisfied it is in the children’s best interests.

CONCLUSION

It is on these bases that I will make orders that the children live with the mother and that the parties have equal shared parental responsibility for the children. The children will spend time with the father while he is present in Tasmania as I find that they are not at an unacceptable risk of sexual abuse by him into the future and they have a good relationship with him. However, as the father does pose a risk to them due to his ongoing use of drugs, such time will be supervised by the paternal grandmother for a period of twelve months and is conditional upon the father undergoing regular drug testing.
The Independent Children’s Lawyer will be involved for that period of time and leave is given to the parties to bring the proceedings back to the Court on short notice.

I certify that the preceding two hundred and twenty six (226) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 2 December 2016.

Associate:

Date: 2 December 2016