Starkey and Starkey (No 2)

FAMILY COURT OF AUSTRALIA

STARKEY & STARKEY (NO. 2)

[2013] FamCA 977

FAMILY LAW – CHILDREN – Final Orders – with whom a child lives – with whom a child spends time – best interests – orders made for the children to live with the mother and spend no time with the father.

FAMILY LAW – CHILDREN – Final Orders – with whom a child lives – relocation – where the mother seeks to relocate the primary residence of the children interstate – orders made in accordance with the mother’s proposal.

Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) s 60B; 60CA; 60CC; 61DA; 65DAA

M v M (1988) 166 CLR 69
B v B (1988) FLC 91-978
Russell & Close (Appeal SA45 of 1992, unreported judgment delivered 25 June 1993)
B & B (1993) FLC 92-357
W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93-235

APPLICANT:

Ms Starkey

RESPONDENT:

Mr Starkey

INDEPENDENT CHILDREN’S LAWYER:

Alderman Redman Lawyers & Mediators

FILE NUMBER:

ADC

1167

2009

DATE DELIVERED:

13 December 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Justice Dawe

HEARING DATE:

11-15 February 2013;
18-19 February 2013;
2-4 April 2013;
7 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Fuda (11-15 Feb 2013)
N/A thereafter.

SOLICITOR FOR THE APPLICANT:

Legal Services Commission of SA (11-15 Feb 2013)

In Person thereafter.

COUNSEL FOR THE RESPONDENT:

Mr Lewis

SOLICITOR FOR THE RESPONDENT:

R J Cole & Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Childs

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Alderman Redman Lawyers & Mediators

Orders

All previous parenting and injunction orders are discharged.
The mother have sole parental responsibility for the children J born on … 2003 and U born on … 2005.
The said children live with the mother.
The mother be permitted to relocate the children’s primary place of residence, if she so desires, to Town M in the State of Victoria.
Upon the child U attaining the age of 12 years the mother shall facilitate both children attending upon a child counsellor or psychologist as follows:
(a)for the children to be counselled as to their ongoing relationship with the father and any suggested change to that relationship;
(b)such counselling take place in the absence of the mother;
(c)the time duration and nature of the counselling be at the discretion of the counsellor or psychologist;
(d)the counsellor or psychologist be provided with a copy of these orders and reasons for judgment;
(e)the counselling to be confidential;
(f)the mother pay the costs of such counselling.
The father be at liberty to forward age appropriate letters, cards, gifts and photographs to the children at Christmas, Easter and the children’s birthdays.
The mother comply with any request from the children to forward letters, cards, gifts and other photographs to the father including at Christmas, Easter, the father’s birthday and on Father’s Day.
Each party keep the other party advised at all times of a current postal address for the other.
The mother shall keep the father advised of any school at which either of the children is attending.
The father be at liberty to obtain directly from the children’s schools (at his own cost) copies of the children’s school reports and school photographs and the mother shall authorise the school to release such reports and photographs to the father.
The mother shall notify the father as soon reasonably practicable in the event that either child suffers a serious illness, injury or accident whilst in her care.
The father be restrained and an injunction is granted restraining him from attending within one kilometre of the school of either child or the residence of the mother without the prior written consent of the mother.
Upon the expiration of two [2] months from this date the appointment of the Independent Children’s Lawyer is discharged.
All applications are dismissed and removed from the active pending cases list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Starkey & Starkey (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1167 of 2009

Ms Starkey

Applicant

And

Mr Starkey

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings between the mother Ms Starkey (“the mother”) and the father Mr Starkey (“the father”) concern the parenting orders to be made for the children J born in 2003 (now aged 10 years) and U born in 2005 (now aged eight years) (“the children”).
The significant issue to be determined was whether the children should spend any time with the father, and if so, upon what conditions.
By oral application made during the final hearing, the mother sought orders that permitted her to relocate interstate to live with the children in Victoria.

The hearing

At the commencement of the trial the mother was represented by Ms Fuda of counsel. Ms Fuda was given permission to withdraw and thereafter the mother was unrepresented at the trial.
The father was represented by Mr Lewis of counsel and the Independent Children’s Lawyer represented by Mr Childs of counsel.
Following upon the directions hearing, the trial was allocated seven days. The trial commenced on 11 February 2013 and continued for the allocated seven days, when it was adjourned part heard on 19 February 2013. The trial resumed on 2 April 2013 and continued for a further three days. Closing submissions were heard on the final day of 7 May 2013 when judgment was reserved.

Relevant background

The applicant mother was born in 1970 and is now aged 43. She describes her occupation as home duties.
The father was born in 1958 and is now aged 55. He gives his occupation as pensioner.
The father receives a disability support pension. The evidence indicated that some time ago in the 1980s and early 1990s, he received two head injuries. He has subsequently suffered from epilepsy. Issues were raised about his memory and general mental capacity.
The parties commenced a relationship in 1996 and commenced to live together in February 1996. They were married in, South Australia in 1998.
Early in the relationship the mother gave birth to a child E who died at an early age from SIDS.
The parties separated in mid-October 2008. The father brought proceedings for divorce in March 2010, resulting in a divorce being granted on 29 June 2010.
Each party alleges that the other was violent and abusive towards the other party. The parties also make allegations about the other party’s abuse of drugs and alcohol.
The two children of the marriage, J and U, have primarily resided with the mother.
Shortly after the separation in October 2008, arrangements were in place which provided for J to remain in the mother’s care and U to spend Monday to Thursday each week in the mother’s care and Thursday to Monday each week in the father’s care. This continued until early 2009 when U remained in the care of the father spending limited time of approximately two nights per week in the mother’s care.
The father alleges that following the separation the parties entered into an arrangement whereby both parents would have time with both children. He asserts however that this did not occur with the mother restricting his time with J, but allowing him to have time with U.
In the trial affidavit filed by the father in October 2012, he gave particulars of his health difficulties. He referred to a motor vehicle accident in “the late 80s or early 90s” (paragraph 21 of the father’s affidavit filed on 5 October 2012) which resulted in a head injury, leaving him with a 29 per cent incapacity. His evidence referred to this injury triggering epilepsy and requiring him to take medication, including Lamictal and Valium.
The father maintained that he is still permitted to drive and holds a current driver’s licence. He also admitted to a criminal record in South Australia for shoplifting and in Victoria.
The mother admitted to using marijuana, but claimed to have limited current use. The father admitted to previous addiction to heroin, but claimed not to have used heroin for “nearly 25 years”.
Proceedings were commenced by the mother in late March 2009. In the Initiating Application the mother sought final orders which provided for the children to live with her and that the time spent with the children by the father be “as may be ordered” by the Court. But by way of interim orders the mother sought that the children live with her, that she have sole parental responsibility and that the father undertake certain courses, including an anger management course and provide medical and psychological reports. She sought other interim injunctions.
By the amended response to the Initiating Application filed by the father in February 2010, the father sought final orders that the parties have equal shared responsibility for the children and that the children live with each of the parties on a week about basis.
Subsequently at the commencement of the trial both parties sought specific orders in relation to the children. At the conclusion of the trial the submissions were that the mother sought orders providing for her to have sole parental responsibility, that the children live with her, that she be permitted to relocate interstate with the children to live in Victoria and other ancillary orders.
The mother sought orders that the children spend “no unsupervised time” with the father. She proposed that when each turns 12 years of age each child choose whether to regain contact with the father.
At the conclusion of the trial the father sought orders that provided for the parties to have equal shared parental responsibility for the children and that there be a gradual increase in time he spent with the children commencing each alternate Sunday, then increasing times over a period of more than two years at 12 weekly intervals providing in the end for the children to live with the parents on a week about basis.
The proceedings were commenced in the Federal Magistrates Court (as it then was) and various orders were made providing for interim arrangements in relation to the children.
Orders were made in December 2009 which provided for the father to see the children from 10.00 am to 2.00 pm each Wednesday and from 10.00 am to 4.00 pm each Saturday, which were then to move in early January 2010 to an arrangement for the father to spend time with the children each alternate weekend from 10.00 am Saturday until 4.00 pm on Sunday and in the intervening weekend from 4.00 pm Friday until 2.00 pm Saturday. These orders also referred to requirements concerning the father’s health (epilepsy) and drug tests for both parents.
There were ongoing difficulties in the relationship between the parties and difficulties at handover arising out of these arrangements.
Subsequently, various interim hearings took place and further interim orders made in the Federal Magistrates Court (as it then was).
Family Consultant reports were prepared in late 2009 and July 2010.
Following allegations made in late July 2010 that alleged the father had sexually abused the children the CPS conducted investigations. Reports were released in early December 2010.
In October 2010 an order was made which noted “The recent information regarding allegations and investigations that have been underway with the Child Protection Services”. The matter was transferred to the Family Court of Australia. The order also provided that the children live with the mother and that all previous orders for the children to spend time with the father were suspended (27 October 2010).
Subsequently, the matter was placed in the Family Court of Australia Magellan list and orders made by the Magellan Registrar and His Honour Justice Burr (as he then was), including notations made on 6 January 2011 which provided:
Upon noting:
(a)      The findings of the Child Protection Service that sexual abuse of the    child [J] by the father is substantiated;
(b)      The report of Families SA dated 9 December 2010 to the same           effect;
(c)      Recommendation of the Child Protection Service that a family assessment be undertaken.
Orders were made for another Family Report. Following upon receipt of the report, orders were made by Justice O’Reilly (as she then was) providing for an assessment report from forensic psychologist concerning the risk the father presented to the children and an assessment of supervisors.
On 5 September 2011, his Honour Justice Burr made Consent Orders which provided for the father to obtain reports concerning his drug and alcohol abuse and psychologist’s report and drug urine analysis. The order also provided for the father to spend time with the children supervised by Mr L, Social Worker. This was to occur for two hours each fortnight.
Similar orders were made on 17 January 2012. Subsequently, Consent Orders were made providing for the father’s time to be supervised at the B Children’s Contact Service.
The father spent time with the children at the contact service between June 2012 and January 2013.
Procedural orders were made to prepare the matter for final hearing which commenced on 11 February 2013.

Main issues

The allegations made by the children suggesting sexual abuse by the father and the father’s allegations that the mother was deliberately alienating the children from him were significant matters.
The mother also raised the issue of the father’s capacity to provide appropriate care for the children, in particular relating to:
(1)His drug and alcohol abuse;
(2)His epilepsy and risk to the children should he suffer a fit whilst they were in his care; and
(3)Generally, his capacity and understanding of the children’s needs.
The mother raised during the trial her desire to move to Victoria.
The father strenuously denied any allegations of sexual abuse and asserted an ability to provide care for the children, notwithstanding his epilepsy. The father maintained that the mother had consistently sought to undermine his relationship with the children and sought to rebuild the relationship with the children.

Evidence and findings

The mother relied upon affidavits filed on 14 January 2012, 6 August 2010 (in relation to the Notice of Abuse) and the trial affidavit of 27 September 2012. The Court also received the transcript and recorded interviews with the child J at the Child Protection Service (“CPS”) of the X Hospital, which took place on 10 September 2010.
The mother’s evidence needs to be seen in the context of the reports provided to the parties by the CPS as a result of requests for assessment by Families SA and SA Police, following the allegations of sexual abuse upon J by the father.
The assessment report is dated 1 December 2010. The detailed report followed an assessment, including interviews with both of the children and the parties.
The mother was cross-examined in detail about the remarks J had made to her and the context in which those remarks were made.
During the cross-examination of the mother there were occasions when she was somewhat inconsistent. For example, when cross-examined about whether she gives any encouragement for the children to attend upon the arranged contact with the father, and the relationship with the father, she was reluctant to admit that she did not encourage the children.
Her evidence was however consistent with someone who had become concerned about the relationship between the father and the children as a result of comments the child J had made and as a result of the assessment carried out by the CPS.
I also accept that the mother’s evidence about her concerns for the children’s welfare and the care of the father were legitimate taking into account the history of the father’s health, drug abuse and convictions.
The mother gave evidence which indicated that she was not supporting the ongoing relationship between the children and the father. This was based upon her concerns for the welfare of the children.
The mother in her evidence referred to both the mother and father abusing drugs and alcohol “on and off” in the relationship. She referred to the father being reported for growing marijuana. Her affidavit filed in 2010 said that she no longer consumed alcohol and had not done so since 2007 and that she still occasionally has marijuana, but not when the children are in her care or only after they are in bed (paragraph 65 of the affidavit filed on 14 January 2010).
The mother’s evidence included incidents of violence when she claimed to have been assaulted by the father.
The mother maintained that the father participated only to a very limited extend in the care and upbringing of the children whilst they were residing together.
Notwithstanding the mother’s concerns, arrangements were however in place following separation where the father spent time with both children. The mother asserted that considerably more time was spent by the father with the child U, rather than J.
Following the separation there were various incidents in which allegations were made about the appropriate care provided by the father.
The Family Report of 15 July 2010 was prepared by Family Consultant, Ms R, following upon orders made by Federal Magistrate Simpson (as he then was) in February 2010. The interviews took place in May and July 2010. The Family Consultant also had access to medical reports of the father’s General Practitioner, Dr S, and pathology reports for drug testing carried out in January 2010.
At that time the mother was seeking that the children live with her full time and have only day time visits with the father. She expressed concerns about overnight visits due to the father’s drug and alcohol abuse and his health condition. The father was seeking that the children live with him on a weekly shared basis.
That report referred to U’s apparent unwillingness to spend time with his father and J’s comments about liking the visits with her father but also describing his behaviour as “silly” and that he embarrasses her when they are out.
The recommendations of that report considered that the children live with the mother and spend time with the father extending over a period to overnight:
Recommendations
Unless any evidentiary material should indicate otherwise, the   following is recommended:
29.      The children should live with their mother and continue with                daytime visits as currently ordered. A weeknight after school                   to 7.00 pm should be introduced.
30.Overnight stays on alternate Saturday’s (sic) should continue               now all conditions have been met.
31.A six-week period of overnight visits should occur before two             nights are introduced.
32.Extra days with their father should be introduced during school            holidays.
33.      [The father] should attend therapy with [U] to look at what   is interfering with their relationship.
In the affidavit filed by the mother on 6 August 2010 she sets out the events which occurred on the weekend of 24 and 25 July 2010. This affidavit sets out the allegations made by the children, which were subsequently investigated by the CPS. The CPS report concluded:
In short sexual abuse remains the most likely hypothesis to explain [J’s] experiences in bed with her father.
The conversation between the mother and J was the subject of detailed cross-examination. In particular there was significant cross-examination about J’s reference to feeling the father’s “doodle” on her legs. The cross-examination dealt with considerable detail concerning where the conversation took place, where the child was pointing and where the events with the father allegedly took place. This also included J’s reference to the father being in the bath naked with her.

The mother’s evidence was that during the conversation between the mother and J on this occasion, U said to her “when I would have a bath with Daddy, he would stick his doodle in my mouth”. The child U is alleged to have made gestures and claimed that it had hurt his throat.
Following the mother’s conversation with the children, the mother reported the conversation to the child abuse line. As a result the children were interviewed and a report prepared by Senior Social Worker, Ms K, of the CPS. The assessment report dated 1 December 2010 was before the Court. Ms K also gave evidence and was cross-examined in detail.
Following the interviews with the mother, father and both children, the report was prepared and released. The CPS Social Worker’s interview with the child J included J making references to her father’s penis. The significant parts of the report following that interview are the following:
On a diagram of a little boy, [J] was also able to identify the penis and confirmed that she had seen her brother’s and father’s penis. [J] then clarified that she had seen [the father’s] penis “when he went to the toilet … (because) he never shuts the door”. Further neutral conversation ensured, and in a discussion about having a “bath at dad’s and normally a shower at my mum’s” [J] was invited to provide detail about bathing at her father’s. When asked with whom she bathed at her father’s house (having just mentioned that sometimes she bathed with her brother at her mother’s house), [J] stated “sometimes he like jumps in and out then I just get out cause I’m not really allowed to”. [J] then clarified that she meant [the father] who was “a bit too old” to be bathing with [J], but that he was in the bath with her “’cause sometimes the shower’s not working”, prompting [J] to get out of the bath once he (sic) father “hops” in. In response to being asked to consider why she thought this was not allowed, [J] stated “he is really a bit too old to be jumping in the bath with me”, followed by “well you know ‘cause his penis can easily go over my side which is a bit rude”. In a later exploration of these comments, while [J] clarified that [the father] had not touched her in the bath, nor had his penis touched her, “he might be trying to get his penis in my vagina …cause his penis is like normally on the same opposite direction as I am”, evidently trying to describe her visual perception of the her father’s penis as she saw it in the bath.
Furthermore, [J] then spontaneously stated “yeah and something else has happened like when I’m in bed and sometimes I say like good morning to Dade when I like jump in like in the bed like for a couple of minutes and then his penis is like rubbing all over my leg. [J] then responded to an invitation to provide a narrative about this incident, informing the CPS again that when she jumped into her father’s bed “it’s like his penis is rubbing all over my leg”, and that she knew it was her father’s penis as “sometimes he goes to bed like without no underpants on”. [J] also clarified that she had felt [the father’s] penis on her “thigh”, and indicated that “it’s normally more close to the vagina”. I thought Dad he was trying to rub his penis into my vagina…cause (the penis) it’s more near the thigh and the vagina is up more like closer”. [J] later repeated this detail “he might have been trying to get the penis in my vagina”. In being asked to consider what this felt like, [J] stated “I thought it was like some skin going onto my leg at first I thought my skin was staring to peel off or something”. She later repeated this sensation (“feels like my skin is peeling off”) then provided further detail about feeling her father’s penis on her leg move in and up and down motion, repeatedly.
[J] then attempted to draw a picture of her in her father’s bed, and provided considerable detail about how she and her father were positioned. During this exercise, [J] reported that “I just drew myself with a smiley face … (because) I’m not really good at drawing sad faces”, and then clarified that she had felt “sort of like annoyed …’cause it’s (the penis) like on my leg”. Later, [J] stated that this touching made her feel “yucky” because “penises like are yuck” due to her belief “’cause you know how mum and dad are in bed kissing? ‘Cause sometimes I think my Dad must have got the idea rubbing like the penis on her leg cause they used to that …sex”. [J] stated that she did not feel able to mention this to her father “’cause he’s asleep and I don’t want to wake him up”, and that this touching had happened “a couple of times”. [J] herself hypothesised that, in relation to her father’s actions, “maybe he didn’t really know …maybe he might have been having a wet dream or something”, later clarifying her understanding of a ‘wet dream’ (“like having about a like dream …like a lady kissing a man”) and that she had learnt this from the video her mother had gotten her “from the library …to teach me about the nice parts of the body and the rude parts of the body”.
The child J stated that she felt able to tell her mother about her experiences, and understood that it was for this reason that she was not currently seeing the father. J also indicated that her experiences made her feel “gross” and “disgusting”, but found elaborating on this aspect difficult. In a follow up session J was invited further to reflect upon the impact of her attendance at the CPS, and she stated that it was “good that I don’t have to see ([the father])”, she also “felt bad I went there (to stay with [the father]) that last weekend, when he did that (the touching), I stayed home the week before because he did that, he did it every week”, clarifying that she stayed overnight at her father’s on three occasions. Under the heading of “Opinion and Recommendations” the report referred to factors which were considered “to enhance the reliability of both [U’s] and [J’s]” disclosures to the mother. The following comments were made in that section:
Furthermore, consistent with having experienced abusive events was the information [the mother] provided about the children’s recent behaviour, particularly [U’s] (e.g. their reluctance to have contact with [the father], [U’s] aggression). However, it must be acknowledged that similar challenging behaviours can be shown by children who are experiencing emotional instability in other areas of their life, and cannot be solely attributed to sexual abuse. The CPS considered that [J’s] and [U’s] behaviour may have been affected by emotions elicited in them by their parents’ acrimonious relationship. These factors, in addition to [the mother’s] open presentation, and past attempts to understand her children’s behaviour without reference to sexual abuse, gave the CPS no apparent reasons to suspect that her account of what [the children] reported was not reliable.
The report concluded that the child U’s presentation was such that the sexual abuse allegations in relation to U “could not be clarified”. However, in relation to J’s allegations, the report said:
In direct contrast to [U], [J] provided a free-flowing narrative to the CPS about [the father’s] penis touching her while she was in bed with her father and her account included several factors of reliability. Firstly, [J’s] initial confirmation of her experiences was spontaneous and remained consistent over time, in terms of her use of language and the descriptions she gave, with the disclosures she had made to her mother. Additionally, [J] provided considerable contextual detail, about how she came to be in bed with her father, the feeling of being touched by [the father’s] penis, and how these experiences had made her feel emotionally. [J] was also able to provide peripheral detail about this incident (e.g. tapping her father on his shoulder), and to inform the CPS more about the environment in which the alleged sexual activity with [the father] had occurred. (The ease with which [J] recounted her experiences may have been the result of the fact that her father had not frightened or coerced her, thus making it easier to talk about what she believed happened). Also, it was evident that [J] was well supported by her mother and had not been spoken to about her experiences prior to her attendance at the CPS (apart from her initial disclosure).
Another feature was [J’s] feelings of guilt and remorse that she had continued to see her father, despite his actions, and that she could have somehow prevented what had occurred. Also, [J] made attempts to understand her father’s behaviour using her own evolving ideas about intend and causality.
Both these cognitive and emotional aspects of [J’s] presentation were congruent with her current age and stage of development.
At the conclusion of the assessment, the CPS was of the opinion that J’s account of the father’s behaviour towards her while in bed with her was a reliable description of what she had experienced. In short, sexual abuse remained the most likely hypothesis to explain J’s experiences in bed with her father. Following upon the assessment by the CPS, Families SA prepared a report of 9 December 2010 which included reference to the CPS report of 1 December 2010 and said:
The report by Child Protection Services clearly states that [J’s] disclosure that her father sexually abused her in bed is viable, and that the allegations of abuse perpetrated by the father [Mr Starkey] are substantiated. Families SA concur with the Child Protection Services findings.
The report also concluded that the father should only have access to the children if safe arrangements could be made, including where supervision could be provided by a person that is assessed as “protective”, that such time be subject to the children’s wishes and the opinion of the children’s counsellor or psychologist. The report recommended the father participate in a forensic psychologist assessment by a psychologist who specialises in sexual offending.
Ms R, the Family Consultant, prepared a further report dated 2 March 2011. She had perused the Families SA and CPS reports and conducted further interviews with the parents, the children and observed interactions with the father and the children.
Both children said that they would like to have some contact with the father however, the report writer noted concerns, including the CPS assessment and the observations by the Family Consultant of the father physically stroking the children and “bribing” them with presents.
Paragraph 24 of the report states:
[The father’s] behaviours such as bribing the children with gifts and physical stroking are often used as routine behaviours that eventually set a climate to groom a child for later abuse. There is also some concern regarding his cognitive abilities, immature behaviours and poor internal inhibitors, which need to be assessed.
That report appropriately recommended that further steps be taken before consideration should be given to the father communicating with or spending time with the children.
Ms R also prepared a report of 29 August 2012 following upon interviews with each of the parties, each of the children and observations of interactions between the father and the children.
The Family Consultant had access to reports prepared by the Social Worker, Mr L, who had observed the father’s time with the children, the father’s General Practitioner’s report of 13 July 2012, the Psychologist, Mr H’s report of 23 August 2012 and case outlines of the mother, father and the Independent Children’s Lawyer.
This report includes details of the interviews with the children and in particular dealt with the children’s wishes as follows:
26.      [J] said she had been seeing her father every fortnight at the Centre and she enjoys the time when they do some baking. She said that when she was visiting her father at his home with [Mr L] (social worker) she liked playing with the puppy but did not elaborate on what else she enjoyed about the visits.
27.      [J] said she does not want to spend more time with her father and on questioning she said she does not like him because of what he did. She was not asked to elaborate on the abuse but said she is not afraid of him but she does not like to be alone with him. [J] made it plain that she did not like going out in public places with him, stating he walks funny, he talks loudly, he keeps repeating himself, he does silly things and he treats me like a baby. This area has always been a problem for [J] and the older she gets, the more she is likely to be embarrassed by his behaviour.
28.      [J] then talked about her brother [U] and his reading problems and about her favourite singer and school.
29.      [U] was friendly and he was much calmer than he has been on   previous visits. While he speaks very fast and without clarity he was       also aware of why he was being interviewed. He made it clear that he   does not like seeing his father, that he finds him “creepy” and said “he   kept me and I could not find mum”. [U] said he liked going to his        father’s home with [Mr L] but does not want to go without him. [U]   said he was afraid that “he might keep me”.
During the evidence the mother also obtained a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) in relation to driving whilst not in possession of a licence to drive.
It was only at the commencement of the trial that the mother sought orders which would permit her and the children to reside in Victoria with her new partner. Her evidence indicated that this relationship had existed as an intimate relationship with her female friend, a teacher, for approximately five months and that she wished to move to Town M in Victoria to continue this relationship. The mother’s evidence was that she had known her proposed partner for approximately 18 years.
The mother did not give detailed evidence about any detailed plans or enquiries she had undertaken about a possible move with the children to Victoria. She however remained adamant that it was her desire to continue the relationship and if permitted move to Victoria. She maintained that she would have the practical and emotional support for herself and the children when living with her partner.
When cross-examined about her current belief about the allegations that the father had sexually abused J, the mother said that she remained concerned that he might have done so, but that “she could not say”. She said words to the effect “I pray to God that he hasn’t”. She continued however to express her concern about the father’s drinking, his epilepsy, the effect upon him of his medication and his past drug abuse.
The mother was cross-examined about the earlier times before the sexual abuse allegations when she let the children attend upon overnight time with the father and how she had agreed to these arrangements notwithstanding her concerns about the father’s drug history and health.
Taking into account the allegations made by J and the ongoing concerns the mother had I find that her opposition to the father’s request for unsupervised time was not a deliberate attempt by the mother to prevent the ongoing relationship between the father and the children, but was based upon her concerns for the children’s welfare.
Notwithstanding the concerns about parts of her evidence, I am however satisfied that the mother genuinely has a serious concern about the welfare of the children should they be required to spend time with the father unsupervised. I am also satisfied that this concern of the mother would make it difficult for her to genuinely encourage the children to spend time with the father. This would require the mother to set aside, what are now her genuine concerns, when attempting to encourage the children to maintain a relationship with the father.
The father relied upon his affidavit filed on 5 October 2012 and his oral evidence. Annexed to his affidavit were various documents, including the reports of the psychologist, Mr F, and the General Practitioner, Mr S.
During his evidence-in-chief he maintained that he had not suffered any seizures related to his epilepsy for about five or six years, due to change in medication and had maintained his ongoing relationship with his General Practitioner, Dr S.
He gave evidence that he continued to be on medication, including valium. His evidence contradicted the mother’s evidence about who was responsible for the care of the children during the relationship and shortly after the separation.
During his oral evidence the father was adamant that he had not sexually abuse either of the children in any way, but admitted that on occasions he had let J sleep in his bed.
When cross-examined by counsel for the Independent Children’s Lawyer, the father conceded that although he accepted that alcohol increased the risk of an epileptic fit, he had given evidence that he drinks three or four cans of beer every second weekend. He said that he had not had any whisky for two years. He believed that this could possibly trigger an epileptic fit.
When cross-examined by counsel for the Independent Children’s Lawyer the father appeared unable to recall serious incidents which had resulted in criminal charges being laid against him as alleged by the mother.
When cross-examined about his use of marijuana and the detection of marijuana in his system, the father gave very confusing evidence about dates and times. He at first said that he had not smoked marijuana for six years and then, when questioned about his first affidavit in which he said he had been still smoking in May 2009, he attempted to explain his earlier evidence by saying that he actually was not “quite sure”. He tried to explain the differences in his evidence by saying that he was under pressure when giving evidence.
This is one example of the evidence of the father which makes it difficult to accept him as a reliable witness, particularly in relation to dates or past events concerning his health, drug use and medication.
The father also explained the test results in 2010 which were positive for cannabinoids by asserting that he was sharing a house with a man who smoked marijuana and that he must have inhaled the drug when in the same room.
When cross-examined about the allegations that the children made to the mother and the CPS, he was adamant that nothing inappropriate had occurred whilst bathing the children or showering the children. He admitted that on one occasion J may have seen his penis whilst he was going to the toilet. He strenuously denied ever having a bath with J or in any way abusing either J or U.
The father was cross-examined in detail about J coming into his bed and sleeping in the bed with him. His detailed evidence about the pyjamas J was wearing and his underpants on that one particular occasion, which he admitted, was not entirely consistent with the CPS recorded interviews. In particular, he maintained that he did not think that he had said some of the remarks referred to in the CPS interview, but then said, in relation to the question concerning J feeling his doodle near her “bum”, that he could not explain, he did not think he had said that but said “if it is written down” he must have.
At another part of the cross-examination he maintained that on no occasion could J have felt his penis near her bottom.
Notwithstanding the inconsistencies in some parts of the father’s evidence and the detail in the CPS interviews concerning J’s statements and the initial findings by the CPS, the evidence of the father raised considerable doubt about the allegation of sexual abuse by the father. His evidence did however form a basis for concern about the father’s memory, his understanding of parental responsibility and the continuing ongoing poor relationship between the mother and father.

(a)Evidence of Mr F – Clinical Psychologist

Annexed to the father’s affidavit, was a report from Mr F. Mr F relied upon material supplied by the Independent Children’s Lawyer which included the Families SA report, the CPS report and Ms R’s reports of November, 2009, July 2010 and February 2011. The psychologist’s report includes the history provided to him by the father which referred to him being twice apprehended for possessing heroin for personal use in Victoria and imprisonment for three months as a result.
Under the heading “Drug and Alcohol History” the psychologist sets out the information the father provided about being a cigarette smoker, previous use of cannabis and intravenously administered heroin.
On page 9 of Mr F’s report it states:
At the age of 17 years, [the father] commenced experimenting with heroin. He initially snorted heroin. He was 18 years old when he became an intravenous heroin user. He said that after three months he became addicted. He has never used heroin more than 2-3 times a week because he was worried about the illegality of the drug and he could not afford to frequently purchase more heroin. He mainly used heroin on social occasions such as parties. He ceased using heroin 20 years ago because he grew wearisome of the lifestyle.
I became aware that [the father] was giving me inconsistent answers about when he had last used illegal drugs. He then clarified that he last used heroin three years ago. I tried to ask him a straight question about when he had last used heroin and cannabis and he gave conflicting responses. He initially said that he last used heroin 20 years ago. I then asked him directly when did he last use heroin and he said three years ago. Then he volunteered he thought I was talking about cannabis.
In the detailed “Clinical Opinions and Recommendations” in the report the psychologist concludes:
I have assessed [the father’s] psychosexual functioning. I accept the Child Protection Service’s assessment that his children’s reports of sexual abuse have been substantiated. However, I could find no other clinical evidence to suggest that he exhibits any of the other behavioural characteristics commonly associated with paedophilia, or that he has an entrenched history of paedophilia. He has totally rejected the Child Protection Service and denied any sexual impropriety. I therefore believe he has poor insight into the sexual role boundary violations between parent and child. Consequently, I believe he will require some psychological therapy to address this issue.
I believe the level of sexual risk that [the father] presents to his children can be adequately managed and reduced to an acceptable level by having him participate in psychological therapy, and having his contact with his children supervised by a responsible third party. I believe it would be premature to permanently forbid him from having any contact with his children. The background documentation clearly indicates that he has played a significant role in his children’s lives at various times. This appears to have been corroborated by his social worker, Mr [L], and the Family Court assessments by [Ms R], a psychologist. The frequency of contact would have to be guided by his children’s wishes and input from any child therapists who are supporting them.
[The father] has nominated his social worker, Mr [L], to be his supervisor during contact visits with his children. I have had telephone contact with Mr [L] who has strongly indicated to me that he has no significant concerns regarding [the father] having supervised contact with his children. Mr [L] has also agreed to make himself available to supervise [the father] during access visits with his two children. I believe that Mr [L] is an appropriate person to supervise Mr [L] (sic) during contact visits.
My recommendations regarding [the father] are as follows:
1.        Due to his inconsistent answers regarding when he last used illegal drugs, I believe he should undergo random drug urinalysis testing, on a monthly basis, for at least six months. Furthermore, out of an abundance of caution, I think he should be referred to DASSA for a second opinion to confirm that he is totally free of drug and alcohol abuse problems.
2.        He be allowed to have supervised access to his children. The supervisor should be Mr [L]. The timing, frequency, and place of his supervised access will need to be negotiated between Mr [L], [the father] and the children’s treating therapist. I would envisage that fortnightly access for two hours would be a good starting point. Mr [L] and the children’s therapist could then report to the court how the supervised access is progressing and the frequency can then be increased. After a period of supervised access, I believe the family’s situation would need to be reviewed to determine if [the father] having unsupervised access to the children is a realistic possibility.
3.        The father should be referred to Owenia House to determine if he requires any specific therapy for his paedophilia, or alternatively a private clinical psychologist though (sic) the Better Mental Health Care Plan by his general practitioner.
The Clinical Psychologist, Mr F, provided the Court with a report concerning the father’s health. His conclusion was that the father did not show any signs of a psychological illness.
When it was put to him that if the CPS findings were deemed to be correct, he agreed that this would show poor insight by the father.
Mr F also conceded that the father’s reports could not be considered reliable, there being some difficulty to ascertain whether it was either confusion or the father not telling the truth.
During cross-examination by the counsel for the Independent Children’s Lawyer, Mr F conceded that the level of risk of abuse of the children was considered to be manageable. He conceded that the risk increased if the time the father spent with the children was unsupervised.

(b)Evidence of Mr H - Psychologist

The Court received on 22 August 2012 the report of Mr H being the father’s treating psychologist referred by the General Practitioner. He was referred following the CPS allegations of sexualised behaviour with his children.
When interviewed by his psychologist the father continued to deny the allegations.
The psychologist concluded after viewing all of the available material and assessing the father “…his behaviour showed poor definitions of boundaries around nakedness”.
The Court also heard the oral the evidence of Mr H, psychologist.
His assessment of the father’s behaviour, taking into account the report of Mr F and the CPS report, was that he did not accept the conclusion that sexual abuse had occurred. His evidence was that the behaviour may have been unpleasant but was not outside the boundaries which would categorise the father’s behaviour towards J in the bed as sexual abuse.

(c)Evidence of Mr T – Social Worker

The father relied upon the report dated 26 October 2011 and evidence of Mr T, Social Worker, (Drug and Alcohol Services of South Australia – DASSA).
Mr T provided the report following an initial DASSA therapeutic assessment counselling session.
The report concluded that the father did not have alcohol or other drug issues.
During cross-examination the witness conceded that he was not aware that drug screen testing had taken place about that time. He was not aware of the finding of the drug testing in October 2011 indicating cannabinoids in the father’s system.
The witness indicated that such information would have raised concerns at the time as the father had given information that he had not used any form of illicit drug for six years. The witness also conceded that if the circumstances were such that the marijuana had simply been inhaled by the father because of smoke in the household this would also cause concern.

(d)Evidence of Mr L – Social Worker

Mr L, Social Worker, supervised the father’s time with the children. Mr L was an experienced social worker who has had dealings with the father since 2005. He assisted the father by supervising the father’s time with the children.
His report (Annexure M to the father’s affidavit) set out his observations of the six visits which he supervised from late January to early April 2012.
His evidence confirmed the material in the report in that he saw no inappropriate behaviour by the father towards the children, nor any behaviour which raised any concerns about the interaction between the father and the children.
Mr L was not significantly challenged in his evidence. He accepted that some of his background material and understanding of the father’s and mother’s relationship was based solely upon what the father had told him.

(e)Evidence of Dr S – father’s General Practitioner

Annexed to the father’s affidavit filed on 5 October 2012 were several letters from Dr S supporting the father’s case, indicating that the father’s epileptic condition had been adequately managed and reported upon his medication which included, Diazepam and Codeine.
When the trial resumed in early April 2013, the father’s General Practitioner, Dr S gave evidence. The father had been his patient since 1996. He gave evidence concerning the father’s condition, including post-traumatic condition, epilepsy and details of his medications. His evidence was consistent with the father’s case namely, that he takes the medication for which he has been prescribed. The General Practitioner’s evidence was that he did not know of any reason why the father’s capacity to manage the children should be considered in doubt.
Dr S was also not concerned about the positive test which indicated cannabis in the father’s blood. He accepted that it could be as a result of the father entering a room where another person had been smoking. He recommended that the father “pick his company more carefully”.
During cross-examination by counsel for the Independent Children’s Lawyer, Dr S confirmed that some time ago the mother had been his patient. She had received treatment on a methadone programme a considerable time ago. His evidence was that the mother’s condition thereafter was well under control.
Dr S’s evidence in cross-examination confirmed that he was not aware of the father suffering any seizure since August 2007.
Dr S gave clear evidence that he would prefer that the father not consume four or five cans of beer every second weekend. He said that this would not be acceptable if he was in charge of children. During cross-examination Dr S maintained his support for the father by maintaining that there was no risk to the children caused by the father’s epileptic condition or medication, nor by the reduction in his memory or any cognitive impairment caused as a result of the injuries or epilepsy.

(f)Ms K – Senior Social Worker - CPS

Ms K from the Child Protection Service gave oral evidence. She is the Senior Social Worker who prepared the report of 1 December 2010 following upon the investigation and assessment. She interviewed the child J on 10 September 2010.
During cross-examination by counsel for the father, Ms K was convincing in her evidence that she takes into account, and is alert for, signs that the children may have been “coached”. She maintained her evidence that J’s allegation of what occurred when in bed with the father was a reliable account which indicated abuse, which they considered had been substantiated. She was not as confident about J’s report of alleged abuse whilst in the bath, but nevertheless maintained that J’s comments about the father’s behaviour whilst in bed indicated a risk of sexual abuse.
When the transcript of the interview was put to her in detail during cross-examination, Ms K at times explained any apparent inconsistency as her drawing an appropriate inference from the information provided by the children.
The witness also conceded that there were inconsistencies in J’s interview which raised questions about interpreting the statements J made as indicating sexual abuse by the father. At times the witness accepted that there were inconsistencies and at other times attributed the differences to J’s difficulty in explaining the circumstances.
The conclusions in the report of the CPS dated 9 December 2010 need to be considered together with Ms K’s oral evidence, the transcript and DVD of the interview with J.

(g)Ms R – Family Consultant

Ms R, Family Consultant, prepared four reports in this matter. She gave oral evidence. She confirmed in her evidence the material in her reports, including that the father had behaved in an immature way in the presence of the children. She maintained however that although she was aware of the sexual abuse allegations against the father, she did take into account the possibility that allegations may not be true.
The Family Consultant did not accept that the evidence indicated that the mother had “coached” J into making allegations about the father. During cross-examination the Family Consultant agreed that if the abuse allegations was not substantiated then the mother’s concerns or fears for the children would need to be considered, with a possibility of the mother obtaining some assistance to encourage her to support a relationship being renewed between the children and the father. Her evidence was that this should be attempted when the children were aged approximately 10 to 12 years.
Her evidence was that, if the allegations of abuse by the father were not substantiated, then the mother’s proposed move to Victoria may interfere with any process to be put in place for the children to re-establish a relationship with the father.
The Family Consultant was adamant that the father’s proposal for equal shared care was not at all possible due to the significant conflict between the parents, the mother’s uncertainty about the abuse allegations and the considerable doubts about the father’s ongoing ability to parent the children.
During cross-examination by the Independent Children’s Lawyer, the Family Consultant conceded there was some evidence of the children being influenced by both parents inappropriately.
However, the Family Consultant’s evidence confirmed that J had expressed clear views which should be given serious consideration. The child U’s views were not necessarily of the same strength, but clearly indicated a discomfort for U about spending time with the father. She accepted that the mother’s anxiety about the children spending time with the father may have been picked up by the children and that this anxiety, if it continued, would have a significant impact upon the family as a whole.
The Family Consultant considered that J was a mature child for her age. Although at the time she was only 10, she was showing a maturity of a 12 or 13 year old who had a close relationship with the mother.
When asked if the mother did not relocate whether she supported unsupervised time with the father in Adelaide, the Family Consultant said that she would prefer the time to be supervised as there were ongoing risks in relation to the father’s ability to spend time with the children without denigrating the mother. She opposed any unsupervised time between the children and the father overnight based upon the findings in the CPS report, doubts about the father’s ability to parent the children rather than play with them like a sibling and the children’s negative wishes.

(h)Further evidence of Ms K – Social Worker CPS

Subsequently, the ongoing cross-examination of the CPS Social Worker, Ms K continued. During that cross-examination the conclusions drawn by the Social Worker from the comments that J made during the interview were called into question. At one point during cross-examination by counsel for the Independent Children’s Lawyer she conceded that part of J’s remarks could have been interpreted as J “telling a story”. She also conceded that she had asked J a leading question which may have encouraged J to give the answers she gave. She also conceded that there were significant inconsistencies in what J was reporting to her.
In the final submissions the Independent Children’s Lawyer’s counsel highlighted the inconsistencies in J’s report to Ms K and confirmed the concerns about the reliability of J’s report as to what happened in the bed and uncertainty about what the child was reporting had occurred in the bath. Counsel submitted that there were however concerns about the father’s ability to set appropriate boundaries when dealing with children of J’s and U’s age at the time.
There is not sufficient evidence to find that the mother has coached either child to make the allegations concerning sexual abuse. There is not sufficient evidence, taking into account the successful challenges to the conclusions in the report to make a finding on the necessary standard of proof (the balance of probabilities taking into account the seriousness of the allegations) that the father has sexually abused either of the children.
Notwithstanding, that there is no finding on the standard of proof that the father did sexually abuse either of the children, it is clear that the mother formed a strong view that he had sexually abused both children, that there was an appropriate basis for the mother forming that view and an appropriate basis for the mother’s ongoing, serious concerns about the father’s capacity to provide appropriate care for the children in any unsupervised situation. This is supported by the Family Consultant’s evidence.

The Law

Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the matters which the Court is required to take into account when deciding children’s issues. The most relevant of these provisions in this matter are sections 60B, 60CA, 60CC, 61DA and 65DAA.
Section 60B
Object of Part and principles underlying it
(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).
(3)      For the purposes of subparagraph (2)(e), an Aboriginal child’s or          Torres Strait Islander child’s right to enjoy his or her Aboriginal or     Torres Strait Islander culture includes the right:
(a)      to maintain a connection with that culture; and
(b)      to have the support, opportunity and encouragement   necessary:
(i)       to explore the full extent of that culture, consistent   with the child’s age and developmental level and the   child’s views; and
(ii)      to develop a positive appreciation of that culture.
Section 60CA
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC
How a court determines what is in a child’s best interests
Determining child’s best interests
(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).
Primary considerations
(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).
Additional considerations
(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 willingness and ability of each of the child's parents to                    facilitate, and encourage, a close and continuing relationship   between the child and the other parent;
(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)      any family violence order that applies to the child or a   member of the child's family, if:
(i)       the order is a final order; or
(ii)      the making of the order was contested by a person;
(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.
(4)      Without limiting paragraphs (3)(c) and (i), the court must consider      the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the           extent to which each of the child’s parents:
(a)      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; and
(b)      has facilitated, or failed to facilitate, the other parent:
(i)       participating in making decisions about major long-  term issues in relation to the child; and
(ii)      spending time with the child; and
(iii)     communicating with the child; and
(c)      has fulfilled, or failed to fulfil, the parent’s obligation to   maintain the child.
(4A)    If the child’s parents have separated, the court must, in applying           subsection (4), have regard, in particular, to events that have        happened, and circumstances that have existed, since the separation occurred.
Section 61DA
Presumption of equal shared parental responsibility when making parenting orders
(1)      When making a parenting order in relation to a child, the court must     apply a presumption that it is in the best interests of the child for the     child's parents to have equal shared parental responsibility for the         child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)      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:
(a)      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
(b)      family violence.
(3)      When the court is making an interim order, the presumption applies      unless the court considers that it would not be appropriate in the             circumstances for the presumption to be applied when making that           order.
(4)      The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the      child's parents to have equal shared parental responsibility for the          child.
Section 65DAA
Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)      Subject to subsection (6), if a parenting order provides (or is to           provide) that a child's parents are to have equal shared parental    responsibility for the child, the court must:
(a)      consider whether the child spending equal time with each of                 the parents would be in the best interests of the child; and
(b)      consider whether the child spending equal time with each of                 the parents is reasonably practicable; and
(c)      if it is, consider making an order to provide (or including a                   provision in the order) for the child to spend equal time with   each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)      Subject to subsection (6), if:
(a)      a parenting order provides (or is to provide) that a child's   parents are to have equal shared parental responsibility for                   the child; and
(b)      the court does not make an order (or include a provision in                   the order) for the child to spend equal time with each of the   parents;
the court must:
(c)      consider whether the child spending substantial and   significant time with each of the parents would be in the best   interests of the child; and
(d)      consider whether the child spending substantial and   significant time with each of the parents is reasonably   practicable; and
(e)      if it is, consider making an order to provide (or including a                   provision in the order) for the child to spend substantial and   significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)      For the purposes of subsection (2), a child will be taken to spend         substantial and significant time with a parent only if:
(a)      the time the child spends with the parent includes both:
(i)       days that fall on weekends and holidays; and
(ii)      days that do not fall on weekends or holidays; and
(b)      the time the child spends with the parent allows the parent to                be involved in:
(i)       the child's daily routine; and
(ii)      occasions and events that are of particular   significance to the child;
and
(c)      the time the child spends with the parent allows the child to                  be involved in occasions and events that are of special   significance to the parent.
(4)      Subsection (3) does not limit the other matters to which a court can     have regard in determining whether the time a child spends with a         parent would be substantial and significant.
Reasonable practicality
(5)      In determining for the purposes of subsections (1) and (2) whether it    is reasonably practicable for a child to spend equal time, or      substantial and significant time, with each of the child's parents, the         court must have regard to:
(a)      how far apart the parents live from each other; and
(b)      the parents' current and future capacity to implement an   arrangement for the child spending equal time, or substantial                and significant time, with each of the parents; and
(c)      the parents' current and future capacity to communicate with                each other and resolve difficulties that might arise in   implementing an arrangement of that kind; and
(d)      the impact that an arrangement of that kind would have on   the child; and
(e)      such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a)      The willingness and ability of each of the child’s parents to   facilitate, and encourage, a close and continuing relationship                  between the child and the other parent (paragraph 60CC(3)(c));
(b)      The attitude to the child, and to the responsibilities of   parenthood, demonstrated by each of the child’s parents   (paragraph 60CC(3)(i)).
Note 2:           Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.

The decisions of M v M (1988) 166 CLR 69 and B v B (1988) FLC 91-978 of the High Court of Australia are frequently cited. In M v M (Supra) pages 75 and 76 it is said:
The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
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 partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. 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.
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.”
…
… 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 Full Court decision of W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93-235 dealt with the issue of unacceptable risk and the considerations which the Court must take into account.

Discussion and Findings

Taking into account the objects of the Family Law Act 1975 (Cth) (“the Act”) and the objects and principles underlying Part VII of the Act it is necessary to carefully weigh the primary considerations which require the consideration of the benefit to the children of having a meaningful relationship with both parents and the need to protect the children from harm.

Allegations of sexual abuse

As indicated above the allegations of sexual abuse by the father of the children were substantiated so far as the child J was concerned by the CPS. The oral evidence under cross-examination however called into question, due to inconsistencies and presumptions, the reliability of the conclusions drawn following the interviews with J.
The Court is therefore not able to be satisfied to the standard of proof required that sexual abuse occurred or that there is an unacceptable risk of sexual abuse by the father.
It is still however necessary to consider the background to the allegations and the impact it has had, and will continue to have, upon the children.
I am satisfied from the evidence of the mother and the evidence of the Family Consultant that the mother was reasonable in forming her belief that the children had been abused by the father, or that there was a serious unacceptable risk that the children might be abused by the father.
This reasonable belief by the mother requires the Court to consider the impact that any order requiring her to hand the children over into the care of the father might have upon her future parenting capacity. I am satisfied that having heard the evidence of the mother, that any order requiring her to hand the children over to the father for any unsupervised time, would be likely to have a significant effect upon her psychological health and her capacity to provide ongoing, emotional and psychological care for the children.
In the joint judgment of Fogarty, Baker and Lindenmayer JJ in Russell & Close (Appeal SA45 of 1992, unreported judgment delivered 25 June 1993) at paragraph [32]-[33] reference was made to the issue of parental anxiety which is a significant factor in this matter:
In upholding children’s rights to protection from sexual, psychological or emotional harm, the Court must take into account any anxiety on the part of the primary caregiver concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on that parent’s caregiving ability.
In taking into account the belief of the custodial parent of abuse by the non-custodial parent of the children and the effect of such belief on that parent as primary caregiver of the children, and consequent harm to the children, a subjective test is employed. However, it must be shown that such belief on the part of the custodial parent is genuinely held. Where it appears on the whole of the evidence such belief is entirely irrational and baseless, the genuineness of the belief of the custodial parent will clearly be open to doubt.
This is consistent with the comments of Fogarty, Baker and Purvis JJ in B & B (1993) FLC 92-357 at page 79,780:
It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need for a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
This primary consideration needs to be seen in the overall context of this matter. The children’s meaningful relationship with their mother is likely to be put at risk if she is required to ensure that the children spend unsupervised time with the father.
The Family Consultant’s evidence was that the relationship between the father and the children appeared to be more of a “sibling” relationship, rather than a parent / child relationship. As such the benefit to the children of continuing this relationship would not necessarily be a meaningful relationship with a parent. The father’s past health difficulties support this conclusion.
(b)the need to protect the child from physical or psychological harm and being subjected to, or exposed to, abuse, neglect or family violence;
As indicated above the Court is not satisfied that the evidence establishes to the necessary standard of proof that the children have been subjected to physical or sexual abuse whilst in the care of the father. The evidence establishes a risk that the children will be subjected to psychological harm if orders were made requiring them to spend unsupervised time with the father.
Orders which provided for the children to be in the sole care of the mother with no order being made for them to spend time with the father, would increase the mother’s capacity to provide for their psychological and emotional development.
Additional considerations.
(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;
I accept the evidence of the mother and the Family Consultant concerning the children’s views. In particular, the child J was described as having strong views. She was also described as being above her age in development with her views then likely to be considered as if she were aged 12 or 13 at that time.
Whilst the child U is much younger and has not expressed views of the same strength, he has also shown considerable reluctance when asked about spending time with his father.
While some of the evidence indicated that there was a risk that the children may have been inadvertently influenced by the mother in forming these views, I am satisfied that, particularly so far as J is concerned, that her view should be given some weight.
(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);
As discussed above I accept the evidence of the Family Consultant that the nature of the relationship between the children and the father may be considered similar to that of siblings and not a parent / child relationship.
The relationship between the mother and the children is clearly established as a significant, close and loving relationship with both children.
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother has clearly indicated that she is not willing, and maintains that she would not be able to encourage or facilitate a close relationship between the children and the father. I accept that this attitude by the mother is based upon her genuine belief that the children would be at risk in the care of the father.
The father says that he has a willingness and ability to encourage an ongoing relationship with the children and the mother, however, his strong, assertive criticism of the mother does not support such a finding.
(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;
As previously indicated there is a substantial risk that any change in the children’s circumstances which required them to spend time with the father is likely to have a significant impact upon the children. It is likely to be disruptive and put at risk their ongoing emotional and psychological welfare.
(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;
This would not be a significant factor, save and except, if the children are permitted to reside with the mother in Victoria. I accept the evidence that both parties would find the necessary travel difficult to arrange. The children’s schooling would limit the frequency of any such time. This however is not a significant factor when considering the overall issues of the best interests of the children.
(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;
and
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I accept the mother’s evidence that she has had, and will continue to have, the capacity to provide for the needs of the children both on a practical basis and for their emotional and intellectual needs. The mother has shown an appropriate attitude towards the responsibilities of parenthood. Her attitude towards the protection of the children based upon the CPS report should not be a criticism, rather it should be seen as the mother relying upon advice, accepting that advice and acting to protect the children.
The capacity of the father to provide for the children’s needs remain uncertain. The father was not clear about arrangements he would make for the practical care of the children. When cross-examined he provided limited information. His evidence suggested that he had not taken any significant steps to plan for the children living with him for any significant time.
The other significant factors to be taken into account in relation to the father’s capacity and his attitude to the responsibilities of parenthood relate to the father’s health. The evidence of his General Practitioner suggested that the father would be capable of providing appropriate care, notwithstanding his long history of health issues and ongoing medication. The evidence however does indicate that there is an ongoing risk that the father’s health may have an impact upon his physical, mental and psychological capacity to provide for the children’s practical, emotional and psychological 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;
This is not a particularly relevant factor in this case.
Sub-sections (h), (j) and (k) are not significant factors in this matter.
The question of the allegation of sexual abuse of the children by the father has already been dealt with.
(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;
The mother has a strong view that the children would not be safe in the care of the father. She has maintained this view throughout the proceedings. Any order which required the children to spend time with the father is likely to create a situation where further proceedings are likely. The order which is least likely to lead to further proceedings is an order which provides the mother to have the care of the children, permits her to move to Victoria and limits the father’s contact with the children to that which the mother considers appropriate.
The other provisions of section 60CC are not relevant to this matter.
Section 61DA requires the Court to apply a presumption that is in the best interests of the children for the parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child, or family violence. As set out above the Court is not in a position to make the finding that the father has sexually abused either of the children. The court however does take into account that the mother’s belief (based upon the children’s statements in the CPS report) that the father had abused the children and is not capable of caring for the children safely.
Section 61DA(4) provides that the presumption is rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility. In this case the evidence clearly establishes that the parents have no ability to communicate. The mother has high-level of mistrust of the father, both as to his capacity to care for the children, his understanding of their needs and his capacity to interact with her on a reasonable basis.
I am satisfied that the presumption is rebutted by the history of conflict and mistrust between the parents.
Even if the presumption did apply, the antagonism and conflict between the parents establishes that it would neither be in the children’s best interests, nor reasonably practicable for the children to spend equal or substantial or significant time, with each parent.

Conclusions

I am satisfied that the evidence indicates that the mother genuinely believes that the children would not be safe in the father’s care and that this belief would impinge upon her capacity to provide for the needs of the children if the children were required to attend upon unsupervised time with the father.
There appears to be no reasonable prospect of any ongoing supervision available nor would such ongoing supervised be in the best interests of the children.
The best interests of the children therefore clearly indicate their practical day to day needs and their emotional and psychological needs will be promoted by the mother having sole parental responsibility, the children residing with her and there being no order requiring them to spend time supervised or unsupervised with the father.
The best interests of the children are met by this arrangement because this removes any risk to the children’s welfare which may arise as a result of the father’s limited capacity to provide for the children’s needs and removes any risk that the mother’s psychological and emotional wellbeing might suffer.
The mother’s final orders proposed that the children choose once they have each turned 12 years if they wish to “regain contact” with the father. She left that decision to each of the children.
It is not in the best interests of the children that they be given this responsibility.
The Independent Children’s Lawyer proposed orders which would provide for the children to receive counselling once they turned 12 years. The Independent Children’s Lawyer also proposed that the children be able to contact the father and communicate with him by Skype once a fortnight, with other ancillary orders concerning the mother advising the father of the children’s development.
I do not consider it to be in the children’s interests that these arrangements take place for J when she is 12 years, but do not apply to U until he is 12 years. I consider it to be in the best interests of both children that any counselling concerning their relationship with the father should take place at the same time although not necessarily together with the counsellor. It is more appropriate therefore for this to take place once U turns 12 years.
For the above reasons I consider it to be in the best interests of the children for orders to be made which provide for the mother to have sole parental responsibility for both children, that the children live with her and that she be permitted to relocate to Victoria. Such an order permitting her to relocate does not require her to relocate, but allows her to have the option to move from South Australia to Victoria. It should also be clear that the mother is not required to remain living in South Australia or Victoria. This would be unnecessary considering the Court is proposing to make orders which do not require the children to spend any time with the father.
The orders will also provide that when U turns 12 years, the mother shall make arrangements for the children to attend upon a counsellor or psychologist to receive counselling in relation to the possible renewal of their relationship with the father.
I do not propose to make any order that the children communicate with the father by Skype. This will not prevent the mother from making arrangements if she considers it appropriate to enable Skype communication to take place.
It will also be part of the order that each party keep the other advised of a contact address so that the father can send appropriate letters and gifts to the children and so that the mother can advise the father of any significant issues concerning the children.
Taking into account all of the evidence I consider the orders that commence at page two of this judgment to be in the best interests of the children.

I certify that the preceding one hundred and eighty-eight (188) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 13 December 2013.

Associate:

Date: 13 December 2013

[2013] FamCA 977

13 December 2013

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