Starrett & Bacca - [2023] FedCFamC1F 808

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Starrett & Bacca [2023] FedCFamC1F 808

File number(s): ADC 60 of 2022

Judgment of: KARI J

Date of judgment: 25 September 2023

Catchwords: FAMILY LAW – CHILDREN – Where the parents have three children aged 17, 12 and 9 – Where all of the children are in the father’s sole care – Whether the mother should spend supervised time with the children – Where the children have not seen the mother for over a year - Where the eldest and youngest children have made serious allegations of sexual abuse perpetrated by the mother’s husband – Where the Department of Child Protection implemented a Safety Plan removing the children from the mother’s care and placing them in the care of the father – Where the Department of Child Protection have investigated the allegations and determined that the alleged abuse has been substantiated – Where in addition there are allegations about the mother’s lifestyle and her relationship with her husband - Where all allegations are denied by the mother and her husband – No order for time spending prior to final hearing

Legislation: Family Law Act1975 (Cth) ss 60B, 60CC, 91B

Cases cited:
Bant & Clayton (2019) FLC 93-924

Deiter & Deiter [2011] FamCAFC 82

Edwards v Noble (1971) 125 CLR 296

Isles & Nelissen (2022) FLC 94-092

M and M [1988] 166 CLR 69

Norbis v Norbis (1986) 161 CLR 513

Secretary of Department of Health and Human Services & Ray and Ors (2010) FLC 92-457 Goode & Goode (2006) FLC 93-286

Division: Division 1 First Instance

Number of paragraphs: 86

Date of hearing: 30 August 2023

Place: Heard in Adelaide, delivered in Melbourne

Counsel for the Applicant: Mr McQuade

Solicitor for the Applicant: Themis Family Lawyers

Counsel for the Respondent: Mr Lewis

Solicitor for the Respondent: Devine Murdoch

Solicitor for the Independent Children's Lawyer: Ryder Family Law
ORDERS

ADC 60 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BACCA

Applicant Mother

AND:
MR STARRETT

Respondent Father

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

25 SEPTEMBER 2023

THE COURT ORDERS THAT:
1.That the Application in a Proceeding filed by the mother on 21 July 2023 be dismissed.
2.That the Response filed by the father on 23 August 2023 be dismissed.
3.That the matter remain in the pool of matters awaiting the allocation of a final hearing.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Starrett & Bacca has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J
INTRODUCTION

These proceedings relate to the parenting arrangements for the parties’ three daughters aged 17, 12 and 9.
The present interlocutory application comes against a backdrop of the matter awaiting a trial listing.
The present application was filed by the mother on 21 July 2023. The mother is seeking orders to commence spending supervised time with the eldest and youngest child.
It is an agreed fact that the mother has not seen or spent time with the children since at least the middle of 2022. That circumstance has come about as a result of very serious sexual abuse disclosures being made by the parties’ oldest and youngest children against the mother’s husband.
For the reasons that follow, it is the court’s considered view that there should not be an order for time spending prior to any trial of these proceedings.
BACKGROUND
The short background for this family is as follows:
(1)The father was born in 1977 and he is 46 years of age.
(2)The mother was born in 1969 and she is 54 years of age.
(3)The parents commenced living together in approximately 2004.
(4)The parents married in 2006.
(5)The parents separated on 30 September 2017.
(6)The parents were divorced in 2021.
There are three children born of the relationship, namely:
(a)X, born 2006 who is presently 17 years of age;
(b)Y, born 2010 who is presently 12 years of age; and
(c)Z, born 2014 who is presently 9 years of age.
The mother has four adult children from a previous relationship, namely:
(a)Ms B, born 1992;
(b)Mr C, born 1996;
(c)Ms E, born 1999; and
(d)Ms D, born 2000.
The father has one child from a previous relationship called Ms F, who is an adult.
Both of the parents have re-partnered. The mother has re-married to a man named Mr G and they live together. It is not clear to the court exactly when the mother and Mr G commenced their relationship, however they began cohabiting in 2017 and married in 2022.
The father has re-partnered with a woman named Ms H. The father does not live with Ms H. However, Ms H plays a significant role in caring for the parties’ three children.
THE LITIGATION
These proceedings are not the first time that this family have come before the court seeking parenting orders. There were previous proceedings commenced by the mother on 14 June 2018 which were ultimately finalised by way of an order made by consent between the parties on 14 June 2019. Those orders in summary provided as follows:
(a)That the parties have equal shared parental responsibility for the three children.
(b)That the children live between the parents on an equal shared care week about basis with handovers taking place at the conclusion of school on a Monday or 3.00 pm if not a school day.
(c)That handovers occur at the J Shop at Town K.
(d)Time spending arrangements for the children to see each of their parents on special occasions including Christmas Day, Mother’s Day and Father’s Day.
(e)Injunctions restraining each of the parties from:
(i)Abusing, denigrating or assaulting the other party in the presence of hearing of the children or allowing any other person to do so;
(a)Using any illicit substances whilst the children or any of them are in their care for a period of 24 hour prior to or during any period of time that the children are in their care;
(b)Changing the children’s enrolment from the L School or M School without the written consent of the other parent.
Following the making of final parenting orders on 14 June 2019 the arrangements between the parties appear to have proceeded uncontroversially. That included circumstances from about August 2021 when the child X indicated to the father that she no longer wished to live with him and she ceased to do so. In terms of X’s expressed wish at that stage, it appears uncontroversial that the father supported X’s decision and did not seek to interfere with it.
Issues however came to a head between the parents in November 2021. It does not appear to be the subject of dispute that at that time the child, Y in particular, but also the child Z were expressing some distress and reluctance at transitioning to the mother for the commencement of the children’s week of living with her.
It is understood that from approximately late November/early December 2021 the child Y ceased spending any time with the mother, and she has not lived with or spent time with her since.
So far as the child Z is concerned, she equally did not spend any time with the mother from approximately late November/early December 2021 until events which took place in early 2022 (after the first court hearing) which saw the mother attending Z’s school and removing Z into her primary care. From early 2022 Z thereafter did not see the father for a period of approximately four months.
The current proceedings were commenced by the father in Division 2 of the court on 10 January 2022. When he commenced these proceedings the father did not originally seek orders in relation to the child X, presumably given her age and his acquiescence to her expressed wishes to live with the mother. So far as the children Y and Z were concerned, the father sought orders that both children live with him. The father did not otherwise seek any final orders relating to parental responsibility for the children. Additionally the father did not specifically seek any final orders which would see the discharge of the final orders made on 14 June 2019, however it appears implicit in the final orders sought, that he sought to disrupt the week about shared care arrangement provided for in those orders. The father also sought a final order that the children spend time with the mother each alternate weekend from 3.00 pm or the conclusion of school Friday until the commencement of school on a Monday or 3.00 pm on a Monday.
By the time the proceedings came before the court (before a Judicial Registrar) for a first hearing on 21 February 2022 a number of things had occurred as follows:
(a)On 8 February 2022 the mother filed a Response to the Application for Final Orders in which she sought orders suspending the final orders made on 14 June 2019 and otherwise orders that all three children live with her. The mother otherwise proposed that the children Y and Z spend time with the father “at such times as this Honourable court may seem fit”.
(b)When the mother filed her responding material she filed an affidavit which had been sworn by her daughter Ms B. In that affidavit Ms B alleged witnessing the father smoking marijuana and otherwise supplying marijuana, including being under the influence of marijuana while driving the children.
(c)As commonly occurs in parenting litigation in this jurisdiction when these proceedings were commenced and likely as a result of matters raised in the material, requests were made of the court’s co-located workers from the Department for Children Protection and South Australia Police. These enquiries resulted in responses being received from each the Department for Child Protection (“DCP”) and South Australia Police (“SAPOL”) on two dates in early 2022.
(d)Those responses provided a summary of a rather concerning pattern of notifications made to the DCP over an extended period of time commencing in or about 2009. In that regard:
(i)In 2015 the DCP received 17 separate notifications in relation to the children the subject of these proceedings together with the mother’s older children.
(ii)In 2018, eight separate notifications were made to the DCP, raising among other things concerns about the mother’s ability to meet the needs of the children, her failure to attend to the children’s medical needs, illicit substance abuse by the mother and Mr G, excess alcohol consumption by the mother and Mr G, inappropriate sexual activity between the mother and Mr G to which the children were exposed, domestic violence between the mother and Mr G and that the mother had unaddressed mental difficulties.
(iii)In 2021 the DCP received notifications of a similar nature to those made in 2018.
(iv)In 2022 the DCP received two separate notifications including one that the father was dealing in an illicit substance. Otherwise, allegations similar to those made in relation to the mother and Mr G in 2018 and repeated in 2021, were further made. It would appear that the notifications made in 2022 may well have come from the Notice of Child Abuse Family Violence or Risk filed in these proceedings, although that is not clear.
(e)When SAPOL responded to the request for information they provided information in relation to historic traffic offences and spent convictions for each the mother and the father.
(f)Of more concern, however, was the criminal history reported by SAPOL in relation to Mr G, which included a conviction in 2020 for driving with excess blood alcohol, a series of traffic offences and convictions dating back to 1991. Additionally, SAPOL recorded:
(i)That in early 2020 the Police stopped a vehicle containing Mr G and the mother whereby Mr G was reported to be naked and the mother was partially clothed. Mr G was driving the vehicle and he recorded a blood alcohol level of 0.227. It is this incident which resulted in Mr G’s conviction.
(ii)That dating back to at least the year 2000 extending through to late 2021, there were numerous reports to Police involving Mr G in which a range of allegations of inappropriate sexual behaviour had been reported to Police. Those allegations include allegations of inappropriate behaviour towards both adult females and males but additionally an incident in mid-2009 involving an allegation as to a sexual incident in relation to a female child.
At the first hearing in the matter on 21 February 2022 a Judicial Registrar made a range of orders. Importantly the matter was listed for interim hearing before a Senior Judicial Registrar on 19 May 2022.
In addition, a raft of general “standardised” orders were made including:
(a)Orders pursuant to s 69ZW of the Family Law Act1975 (Cth) (‘the Act’) to obtain fulsome information from each the DCP and SAPOL;
(b)An order appointing an Independent Children's Lawyer;
(c)An order for the preparation of a Child Impact Report by a Court Child Expert with appointments in mid-June 2022; and
(d)An order for dispute resolution.
Some three days later on 24 February 2022 orders were made in chambers by another Judicial Registrar allocating the matter to the “Lighthouse Project and Evatt List”. As a result, a new set of “standardised” orders were made, which included discharging some of the orders that had been made only three days earlier. Of significance:
(a)The matter was allocated an interim hearing before a Senior Judicial Registrar on 31 May 2022, which was a date 11 days after the date originally allocated;
(b)New arrangements were made for the preparation of a Child Impact Report by a Court Child Expert with appointments to take place on 11 and 13 May 2022, which meant that the report was capable of being available for the new hearing date on 31 May 2022, but incidentally should also have been available for the original hearing date that had been given on 19 May 2022.
(c)An order was made pursuant to s 91B of the Act inviting the DCP to intervene in the proceedings and provide a report to the court.
I pause to briefly consider and comment upon the significance of the orders made across 21 and 24 February 2022 in the context of these proceedings. In that regard:
(a)The making of the order pursuant to s 91B of the Act inviting the Department of Child Protection to intervene is not one that is ever lightly made. An order inviting a state welfare agency to intervene in proceedings is not a standard order made in any parenting proceeding. In a general sense the court makes an order pursuant to s 91B where there is a concern that “there may not be any person or party suitable to care for and/or be responsible” for the children (see for example Secretary of Department of Health and Human Services & Ray and Ors (2010) FLC 92-457 at [3]). When such an order is made, it should act as an alert to the parties, the Independent Children’s Lawyer and the court that there is a very immediate concern that the children the subject of the proceedings are at risk. It therefore is troubling that having made an order inviting the DCP to intervene, the matter was then adjourned to a hearing before a Senior Judicial Registrar some 3 months hence, rather than being transferred to a Judge for case management and hearing.
(b)Of equal concern, the two separate court events across 21 and 24 February 2022 appear to have been an unnecessary double handling of the matter, and must have undoubtedly been confusing for the parties given they were present at court on 21 February 2022 to have one set of orders made, and then some three days later when they were not present at court, orders were made in chambers discharging various orders and bringing forward the appointments with the Court Child Expert, but otherwise delaying the interim hearing date.
(c)What the parties may not have understood is that the designation of the matter into the Evatt List necessarily meant that the matter was deemed “high risk” as a result of at least one of the parents completing the Family DOORS Triage process. The allocation of the matter into the Evatt List thereafter meant that the proceedings were to be prioritised within the court’s case management pathways with a view to a final hearing taking place within 9 to12 months from the case being designated as an Evatt List matter. As these reasons bear out, it would appear that the unfolding nature of serious allegations made by the children, these proceedings have not come before a Judge for any consideration at any point from the commencement of the proceedings until now; a period in excess of 18 months.
Interviews for the Court Child Expert’s Child Impact Report took place in May 2022. As it turns out, the report prepared by the Court Child Expert was dated 19 May 2022, and was released to the parties on 30 May 2022; the day before the scheduled interlocutory hearing before the Senior Judicial Registrar on 31 May 2022.
The Report of the Court Child Expert of 19 May 2022 of significance set out the following:
(a)During her interview X indicated that she wished to remain living with the mother and that she did not want to spend any time with the father, indicating that she “felt unsafe” in his home, without being able to “articulate why”.[1]
(b)During her interview Y indicated that she wished to remain living with the father, but that she wished to spend “some time”, but not “no overnights” with the mother.[2]
(c)During her interview Z indicated that she wished to resume the week about living arrangements between her parents (which incidentally by that stage meant that Z had not seen the father for a period of 3 months).[3]
(d)All three children indicated that they missed living together, particularly Y.
(e)During the interviews the children did not disclose any concerns of a sexual nature.
(f)During her interview the mother denied the allegations made against her and Mr G, and expressed the view that “the father was falsifying the allegations and was ‘out to destroy [her]’ and using the court to facilitate this”.[4]
[1] Child Impact Report of Court Child Expert Ms N dated 19 May 2022, paragraph 18.
[2] Child Impact Report of Court Child Expert Ms N dated 19 May 2022, paragraph 19.
[3] Child Impact Report of Court Child Expert Ms N dated 19 May 2022, paragraph 20.
[4] Child Impact Report of Court Child Expert Ms N dated 19 May 2022, paragraph 24.
Of significance the Court Child Expert formed the following views:
38.CCE has concerns the children are exposed to adult matters because of the fallout of the parents' inability to communicate and cooperate on their behalves. This may involve them carrying information between the parents (e.g. providing information about what is occurring at the other parent’s house for the purpose of the dispute, not the children's wellbeing), navigating their parents’ sensitivities and views of the other parent (whether spoken or unspoken) and managing the tense dynamics between the parents. As a result, the children's emotional wellbeing is at significant risk, particularly in terms of the rupture in the parent-child relationships and within the sibling relationships. This may also be impacting the children's overall sense of stability/security. All of these alleged behaviours can be a means of strengthening the alliance between the children and the associated parent, but results in the children being hurt in the process by losing a significant attachment figure in their lives who is a part of their identity.
39. In reference to the risk and harm considerations, the children’s exposure to conflict between the people they love the most may have had an impact on their wellbeing. Unresolved conflict between parents is one of the major stresses for children, potentially affecting all aspects of their emotional life. Children can become embroiled in the parent disputes and ‘triangulated’ between them as demands for loyalty are pressed on them from both sides.
40. When children become overwhelmed with these disputes, their experience of safety and trust can be compromised and they may develop maladaptive strategies to manage their feelings. It is a possibility that the children may not have had an opportunity to have reliable adult available to them to. Support them in understanding and communicating their experiences due to the parent’s being focused on the adult dispute. Pairing this with the children’s experience of disruptions in their contact with their mother and father, and the disruptions in the relationship between the siblings, the likelihood of the children’s development and wellbeing being affected is high.
41. All three children present with vulnerabilities that place their learning, development and emotional wellbeing at further risk. They were observed to function younger than their respective ages, in particular [X] and [Y].
42. [X] was difficult to engage and initially became upset regarding speaking with CCE, however eventually agreed. [X] reportedly lives with Autism, a sleep disorder and learning and social difficulties and was observed to have social difficulties, had limited eye contact and often remained silent when spoken to. The parents identified [X] experiences mental health issues, including depression, suicidal ideation and anxiety and has recently commenced medication to manage such feelings. [X] does not have a National Disability Support Scheme (NDIS) plan, despite being eligible. The mother claims she has the forms but had not completed them due to the complexity of the process.
43.[Y] reportedly has a speech impairment, dyslexia and a learning [difficulty]. During the interview, [Y] presented as anxious, fidgeting and hiding her face from worker. When she is feeling sad, [Y] informed CCE she did not tell anyone. She expressed feeling sad due to missing [X] and [Z] but did not inform her father because “he got sad”. Following the interview, [Y] returned to the childcare area in the Registry and hid behind a curtain, remaining there until the father returned, whom she sought comfort from. [Y] also indicated that she was scared at night time, and as a result, slept in the bed with the father. CCE is concerned for [Y's] emotional wellbeing, so it is encouraging she is engaged with a counsellor. [Y] would benefit from a Global Development Assessment to further understand her needs.
44. [Z] reportedly lives with learning [difficulties]. The mother reported [Z] experienced anxiety separating from her at school. It is a possibility this is related to her experience of being separated from the mother for periods of time, however may also be attributed to the mother's own anxiety related to the possibility of the father removing [Z] from school and [Z] reacting to this. For the interview, [Z] separated from her mother and presented as carefree when discussing school, her friends and the family pets. [Z] did appear reluctant to engage in discussions relating to any concerns or worries she might have regarding either parent and it was at this time when she started saying “are we finished now”. It is a possibility [Z's] care-free demeanour may be an external presentation whilst internalising feelings of discomfort and anxiety. [Z] would benefit from a Global Development Assessment to further understand her needs.
45. To support the children's learning, development and emotional wellbeing, they need an arrangement that is stable and predictable, together with their parents' support to help them make sense of their experiences and know they can rely on their parents to meet their physical and emotional needs. What is particularly important is for the children to have a meaningful relationship with both parents, if safe to do so, together with their siblings. All children expressed missing the sibling relationship, and it is likely, this is particularly difficult for [Y] who is separated from her siblings and only seeing them at school.
46.The DCP investigation may provide more thorough assessment regarding the level of risk, if any, to the children and may be better able to facilitate any necessary service referrals and developmental assessments as deemed appropriate.
47. Any weight given to [X], [Y] and [Z's] wishes is recommended to be considered in the context of the court's determination of risk and their potential cognitive limitations.
…
55.The primary issue related to this matter is the safety and wellbeing of the children in each parent's care, given the allegations highlighted in this report. A future report from DCP outlining the outcome of their investigation may provide further information to the court regarding the level of risk to the children. This may further support the court's determination regarding the children's living and time spending arrangements. In the interim, it is recommended that a contact arrangement for the sibling relationships is established as a matter of urgency. Should the parents not be in a position to facilitate this, negotiation of an appropriate person to facilitate the sibling contact may be considered.
56. CCE does not believe this matter is suitable for dispute resolution due to the parent's current poor co-parenting relationship.
57. Given the children reside, or have contact with, their step-father [Mr G], and given allegations have included him, little information is known about the level of risk he may pose to the children. Collateral information from SAPOL and DCP for [Mr G] may support the court to determine the level of risk, if any, he may pose to the children.
58. Given allegations relation to substance use the CCE would support orders that neither party use, nor be under the influence, of any illegal substances or excess alcohol (ie. over the legal limit to drive) whilst spending time with or when responsible for the children.
59. Given developmental vulnerabilities have been identified for [Y] and [Z], an urgent referral for a “Global Development Assessment” with a paediatrician or psychologist is recommended. This will assist with understanding their functioning at all levels of development and to develop interventions that will support their learning and emotional wellbeing. This may also assist the court in determining what weight should be placed on their wishes.
…
61.It is recommended the children continue with, or are connected with an allied health professional, such as a child counsellor or child psychologist, to support them to make sense of their experiences, the parent's dispute and provide them with a safe place to discuss their worries.

On 24 May 2022 the court received a response from the DCP to the s 91B order made requesting their intervention in the proceedings. By that report, the DCP declined the court’s request to intervene, determining that the children X and Z were safe in the mother’s care and the child Y was safe in the father’s care.
That conclusion reached by the DCP is difficult to reconcile when regard is had to the matters set out in the body of the report and the ultimate recommendations that were made by the DCP. With the benefit of hindsight and knowing the events that later unfolded it is difficult to understand how the very serious issues raised in the DCP investigation did not act as a warning clarion to all.
The matters of most significance raised in the DCP report dated 24 May 2022 were:
(a)In relation to Mr G:
(i)SAPOL informed the DCP that the indecent assault charges that had been laid in 2010 were withdrawn due to a lack of evidence, and not as Mr G had reported to the DCP as a result of mistaking Mr G with the child’s father whom Mr G reported had committed the assault.[5]
[5] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.3.
(ii)When the mother was informed of the allegations about Mr G she appeared “emotional… creating the assumption that she did not know everything, although [Mr G] stated that she did know.” The mother additionally advised the DCP that she did not consider Mr G to be a risk to the children.[6]
[6] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.3.
(b)In relation to the mother across two separate appointments on 3 May and 23 May 2022, concerns around the mother’s mental health became obvious:
(i)At the first appointment the mother was observed to have “poor mental health” and was “heightened throughout the home visit, often yelling at workers to articulate what she was feeling or crying’. She was described to be “dismissive” of concerns raised with her by the DCP around her mental health and “denied” needing any help in relation to the same.[7]
[7] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.3.
(ii)At the second appointment the report records the mother’s presentation as:
poor, unstable and dysregulated mental health, being erratic (direct/forceful in communication or crying) and having tangential conversations with workers. Throughout conversations, [Ms Bacca] would be verbally direct with her statements towards workers, then altering to crying and making statements that she is over her life. Extensive conversations were held around [Ms Bacca’s] mental health and the impacts this has on the children. At points [Ms Bacca] appeared insightful about how the children are affected by her mental health, although would then contradict the statement in stating the children do not see her cry, and they do not know she is suffering mentally. [Mr G] agreed that [Ms Bacca] needs mental health support and that she cries often and has difficulties managing and regulating her emotions. [Ms Bacca] after an extensive amount of time did consent to the department placing a mental health counselling referral.[8]
[8] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.3-4.
(c)As to the reported allegations of the mother and Mr G engaging in nudism in the home:
(i)The mother and Mr G admitted to sleeping naked, but that they “do not present within the home naked”. However when questioned about this topic at a second appointment Mr G was recorded to have made “contradictory” comments about gardening naked when the children are not home.[9]
[9] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.4.
(ii)Mr G is recorded to have said he was “paranoid” about the allegations and “now makes a clear and conscious effort to ensure that this does not occur”.[10]
[10] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.4.
(d)As to the reported allegations of the mother and Mr G engaging in sexual acts in the presence of the children:
(i)The mother and Mr G denied the allegations at their first appointment with the DCP and “provided no further information”.[11]
[11] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.4.
(ii)At the second appointment with the DCP the mother and Mr G continued to deny the allegations. The mother however later made admissions that on “multiple” occasions the children have “busted” them during acts of intimacy, reporting that the acts thereafter ceased immediately. The mother reported that when this had occurred it had been after the children had been put to bed, and that the mother sleeps with her door “open for the children”.[12]
[12] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.4.
(e)As to reported concerns around the mother and Mr G’s substance and alcohol misuse:
(i)Both the mother and Mr G denied the allegations. Instead they reported going to the O Community Centre “once every six weeks, they have a “few” drinks but they do not get “drunk”.[13]
[13] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.5.
(ii)Mr G reported that he had an alcohol interlock device fitted to his car and is unable to drive any other car due to his drink driving offence in early 2022.[14]
[14] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.5.
(f)Significantly the child Y was interviewed across two separate appointments, the first at school in mid-2022 and the second at school a short time later following a request for a further interview made by Y when DCP workers attended the father’s home in mid‑2022. Of importance, during those appointments Y disclosed:
(i)At her first interview that “mostly she feels unsafe when her mother and [Mr G] “get drunk” this happened on “weekends and school holidays”. Continuing that Ms Bacca and Mr G fight verbally, and there is a lot of yelling. Y stated that feels safe with Mr G sometimes, but feels unsafe when he is drunk.”[15]
[15] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.6.
(ii)At her second interview Y provided the DCP with a “handwritten list of worries that she has being in [Ms Bacca] and [Mr G’s] home. The list contained concerns of [Ms Bacca] and [Mr G] naked, [Ms Bacca] and [Mr G] “always drinking”, “drunk parties”, “[Mr G] ‘licking and putting fingers in mum’s ([Ms Bacca’s]) privates, and “drink driving”.”[16]
[16] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.6.
(iii)During the second interview Y additionally made disclosures of:
·The mother and Mr G walking around “naked most of the time”, and that seeing Mr G naked made her feel uncomfortable;[17]
[17] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.7.
·That when the mother and Mr G are naked they “engage in sexual acts”, which occur in the bedroom, with the door open and that she and Z have approached them to “ask questions”;[18]
[18] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.7.
·The mother and Mr G “get intoxicated regularly” at the O Community Centre, and that they go to the club in the “black car” not Mr G’s “white car” which is fitted with the alcohol interlock device. That when the mother and Mr G are drunk “they fight, “yelling” and this makes her feel unsafe”;[19]
[19] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.7.
(g)The child Z was interviewed twice; once at school in mid-2022, with an attempt at a second interview a short time later. The second interview was described as an “attempt” as a result of Z’s failure to engage in that process. On that occasion Z was described to have “nodded her head at feeling ‘scared’ to speak to the department”. [20]
[20] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.8.
(h)During Z’s first interview:
(i)Z was reported to be “exceptionally fidgety throughout the interviews, although maintained eye contact with workers”;[21] and
[21] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.7.
(ii)Of significance Z reported:
·That she misses the father and wants to see him and Y (because at that time she had not seen either since late February 2022);[22]
[22] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.7.
·The mother and Mr G “often ‘get drunk’ at the pub and she stays home with [X] for long hours of the night”.[23]
(i)During Z’s second interview:
(i)Z was observed to have been “very hesitant to speak with workers further”;[24]
(ii)Z disclosed having to “walk home from the pub when [Ms Bacca] was drunk”;[25]
(iii)Z identified that Y had spoken to her about seeing the mother and Mr G having sex and “[Z] nodded confirming she had also seen this. [Z] did not engage in any further discussions with the worker regarding the child protection concerns and the interview was ended”.[26]
(j)X was interviewed at the L School in mid-2022. The report records that X:
appeared reserved, guarded, and unsure if it was safe to speak with workers. [X’s] body language remained closed, and she made minimal eye contact with workers throughout… Regardless of open or closed questions, [X’s] answers were always short and required prompting to respond, again indicating to workers that she did not feel safe to be talking about her home life… In some ways [X’s] responses appeared to be regimented or as if she was informed of the information she was telling workers, rather then it being her personal experience. [X] was unable or unwilling to give a full explanation about why she did not feel safe in her father’s care, alternatively [X’s] responses to her home life with her mother and [Mr G] again appeared rehearsed.[27]
[23] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.8.
[24] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.8.
[25] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.8.
[26] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.8.
[27] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.10.
Against those reported discussions and observations, the recommendations made by the DCP were as follows:
Recommendation/s:
For [Mr Starrett]
It is the recommendation of the department that when [Mr Starrett] is contacted by Child and Adolescent Mental Health Service in regard to the referral placed for [Y], that he support her in attending and engaging in this service.
It is the recommendation of the department that [Mr Starrett] seeks the Autism assessment for [Y], as this will further support her development and wellbeing.
For [Ms Bacca] and [Mr G]
[Mr G] is not to be with the children unsupervised, due to the 2010 indecent assault allegations and the concerns raised regarding his regular nudity within their presence. [Ms Bacca] and [Mr G] agreed to this.
It is the recommendation that when [Ms Bacca] is contacted by [P Health Service] or [Q Health Service] regarding the departments referral, that she engages actively and attentively with this service to improve her mental health.
[Mr G] and [Ms Bacca] are not to engage in nudism within the home whilst the children are present due to their clearly articulated discomfort with this behaviour. Given the children's ages, and [Mr G's] history of criminal charges against a [young] child, this behaviour is considered to pose a risk to the children. [Ms Bacca] and [Mr G] have agreed to this condition.
It is the recommendation of the department that [Ms Bacca] and [Mr G] are to only engage in intimate acts with a closed and locked door in the future. To prevent the children walking into the room whilst the acts are happening, and for clothes to be put back on before opening the door.
It is the recommendation of the department that [Ms Bacca] and [Mr G] consider the impact of their alcohol consumption on the children's wellbeing, and make appropriate decisions regarding driving and their behaviour. [Ms Bacca] and [Mr G] are not to engage in consumption of alcohol to the point of intoxication whilst the children are in their care.
[Ms Bacca] and [Mr G] are recommended to engage in support services identified by the department to enhance their parenting capacity and protective behaviours to ensure the children's ongoing safety and protection whilst in their care.
[Ms Bacca] is recommended to consent to [X], [Z] and [Y] being referred to alternative services and supports to assist them to meet their developmental milestones and receive appropriate therapeutic intervention to ensure their ongoing psychological and mental health and wellbeing.
For the children
It is the recommendation of the department that [Mr Starrett] and [Ms Bacca] continue to consent [Z] to access counselling support at the [L School]. This is considered imperative to [Z] having stable mental health and developing coping strategies to deal with the adversities and stressors of [Mr Starrett] and [Ms Bacca's] separation, and the Family Court Matter.
It is the recommendation of the department that the children continue to reside within their current homes, [X] and [Z] with [Ms Bacca] and [Y] with [Mr Starrett]. The children have articulated clearly what they wish to be occurring and the department hopes that the court holds the children's wants and views highly.
[X] would like to remain in [Ms Bacca's] care, the department do not oppose this or hold any safety concerns for this. [X] does not wish to see [Mr Starrett] or reside with him. The department have been unable to obtain the full reason to why [X] would not like to see or why she does not feel safe in [Mr Starrett's] care. The department do not assess [Mr Starrett] to pose a risk to [X] or her safety.
[Y] would like to remain in [Mr Starrett's] care, the department do not oppose this or hold any safety concerns for this. [Y] wishes to see [Ms Bacca] on a fortnightly basis for a short period of time throughout the day. [Y] does not want to reside with [Ms Bacca] overnight. The department do not assess [Ms Bacca] or [Mr G] to pose a risk to Scarlett or her safety at this time on the provision they adhere to the recommendations made within this report.
[Z] would like to remain in [Ms Bacca's] care, the department do not oppose this on the basis that [Ms Bacca] and [Mr G] adhere to the recommendations made within this report, in relation to their alcohol consumption and supervision of [Mr G] with the children present. [Z] wishes to see both [Ms Bacca] and [Mr Starrett] the same amount of time and return to doing 50/50 custody. The department do not assess [Mr Starrett] to pose a risk to [Z] or her safety.
It is recommended that the parents do not come into contact with one another for pick up/drop off, as this will only increase stress for the children.[28]
(As per original)
[28] Summary of the Departmental Investigation by the Department for Child Protection dated 27 May 2022, p.11-12.
On 30 May 2022 the father caused an affidavit to be filed by the one of the mother’s adult children, Ms E. That affidavit made for concerning reading, as Ms E made serious detailed allegations including:
(a)An incident in early 2017 when Mr G was said to have been drunk and had thrown a cordless drill at Ms E’s leg causing Ms E to fall to the ground with Mr G thereafter punching Ms E in the head. The mother was said to have been present and told Ms E to “get out of the house or she would call the cops on me”. [29]
(b)Incidents of the mother and Mr G drinking alcohol and fighting, with Ms E on occasion having to intervene and act protectively of X, Y and Z.
(c)Mr G often being naked and walking around the house nude.
(d)Mr G asking Ms E if he could watch him and his girlfriend having intercourse.
(e)Mr G asking Ms E if he could watch him and his girlfriend in the bath.
(f)Finding the mother and Mr G having sex on the kitchen table, and not stopping despite seeing Ms E.
(g)Mr G buying the mother’s child Ms D a “dildo” as a birthday present.
(h)Ms E and her siblings talking via a group chat in which the siblings discussed among other things Mr G’s inappropriate sexualised behaviour towards the siblings.
(i)Mr G being suspected of operating a fake Instagram account through which he had contacted Ms E, Ms D and Ms B asking “do you like to send nude messages”.
[29] Affidavit of Ms D filed 30 May 2022, paragraph 19.
At the hearing on 31 May 2022 the Senior Judicial Registrar adjourned the interlocutory hearing to 20 June 2022. It is not clear why that adjournment occurred. It may however be safe to assume that it was because of all of the information that had come into the court only the day prior.
On 31 May 2022, mere days after formally declining the court’s request to intervene in the proceedings (and presumably after the hearing that same day, given the adjournment), the father received a letter from the DCP which recorded:
Harm: S01 Sexual Act or Exploration
HAS NOT been substantiated due to limited or insufficient evidence.
Risk: L01 Alcohol Use
HAS BEEN substantiated ONLY to [MS BACCA] and [MR STARRETT]
The department have found significance evidence of alcohol use that has directly impacted or poses a significant risk to the emotional wellbeing of the children.
L02 Substance Use
HAS NOT been substantiated due to limited or insufficient evidence.
L03 Mental Health
HAS NOT been substantiated due to limited or insufficient evidence.
(As per original)
After receiving this letter from the DCP and on 10 June 2022, the father filed an Amended Initiating Application in which he sought the primary care of all three children on both an interim and final basis.
At the hearing on 20 June 2022 the Senior Judicial Registrar heard argument and reserved her decision. The parties however asked the court to make orders by consent during the period of the adjournment in the following terms:
1.That [Z] born […] 2014 spend time with the father each alternate Saturday from 9am to 4pm commencing 25 June 2022.
2. That [Y] born […] 2010 spend time with the mother each alternate Saturday from 9am to 4pm commencing 2 July 2022.
3. That handovers occur at the IGA supermarket at [Town K].
4. That the father do all things necessary to ensure that [Y] attend upon CAMHS for assessment/professional support.
5. Without admission, that the mother be restrained and injunctions be granted restraining her from:
a. Allowing the children to be left unsupervised in the presence of her husband, [Mr G];
b. Allowing the children to be exposed to nudism of herself or [Mr G];
c. Allowing the children to be exposed to sexual acts between herself and [Mr G];
d. Exposing the children to family violence or allowing any other person to do so; and
e. Consuming alcohol to excess while the children are in her care or allowing any other person to do so.
6. That the mother do all things necessary to attend upon a psychologist or psychiatrist to support her mental health and further do follow the reasonable directions of such psychologist or psychiatrist with respect to ongoing treatment.
7. That the mother do all things necessary to ensure that [X] and [Z] attend upon [AA Counselling Service] for assessment/professional support.
8. That the mother and father be restrained and injunctions be granted restraining each of them from:
a. Discussing these proceedings or the arrangements for the care of the children with the children or within the hearing of the children or allowing any other person to do so; and
b. Denigrating or abusing the other party or members of their respective families to the children or within the hearing of the children or allowing any other person to do so.

On 28 June 2022 and following the father’s time resuming with Z pursuant to the orders made 20 June 2022, he filed an affidavit in which he significantly deposed that on 25 June 2022 the child Z had made disclosures which the father deposed to in the following terms:
22.… [Z] started by saying Dad I want to tell you something and began saying "I think it was about a year ago .... " and then repeated this statement, seeming anxious, stressed and slightly upset. She then continued with and said " about over a year ago I was sleeping in mum's bed and mum was already up in the laundry, bathroom or somewhere and I was pretending to be asleep and [Mr G] came in and put his fingers in my private parts". Whilst I wanted to know more information about the disclosure that [Z] had made, I was shocked by what she was telling me. This was the first time that I was hearing this disclosure about this from her. I was surprised by it, as the children had just been playing.
The father went on to depose that thereafter he sought legal advice and then made a report to police.
The father then deposed:
29.After I had finished my telephone discussion with the Police, [Ms H] told me that whilst I was on the telephone, [Z] had continued to tell [Ms H] more information about what had happened. [Ms H] informed me that [Z] told her that there was one occasion that [Mr G] was on top of [Z] and [Mr G] put his privates into her privates while [Ms Bacca] was there and they told [Z] it was for her eczema.
30. I heard [Z] mention to [Ms H] that [X] had spoken to [Z] about a report about [Mr G] being with a [child] supposedly [Mr G’s] friend’s child. I was surprised by what [Z] was saying and mouthed to [Ms H] “how does she know that”. I did not ask [Z] anymore about this as I assumed that [X] had knowledge of this event through hearing the mother and [Mr G] discussing these proceedings or discussing the matter with the DCP.
The father then at the request of the police took Z to the City U Police station to be interviewed, ultimately in the presence of his older child Ms F.
As a consequence of Z’s disclosures:
(a)In mid-2022, Mr G was arrested and charged.
(b)On 28 June 2022, the DCP implemented a Safety Plan to remain in place between 28 June and 8 July 2022. That Safety Plan provided for all three children to live with the father and for him not to facilitate contact between the children, the mother and Mr G.
In mid-2022 the court’s co-located SAPOL officer provided a further report to the court containing new information as follows:
[…] – Child Protection – [Ms Bacca’s] partner [Mr G] was arrested by police and charged […]. It will be alleged that [Mr G] digitally raped [Z] (7 at time of offence) and [X] (14 at time of offence). [Mr G] is currently being held in remand.
Status: Next in court […]/2022[30]
[30] South Australia Police – Information Release dated mid-2022, p.2.
The matter was recalled before the Senior Judicial Registrar on 5 July 2022. At that hearing:
(a)There was an oral application made to re-open the interlocutory hearing. This application was granted.
(b)Orders were otherwise made providing for:
(i)All three children to live with the father;
(ii)Suspending the following orders:
(A)Orders 1 and 2 of the orders made by consent on 20 June 2022, which provided for Z to spend time with the father for a period of seven hours each alternate Saturday and Y to spend time with the mother for a period of seven hours each alternate Saturday; and
(B)Orders 3 to 8 of the parenting orders made by consent in the previous proceedings, which provided for the children to live with the parties on a week about basis, details of handovers and provision for special occasion time with each parent on Christmas Day, Mother’s Day and Father’s Day.
(iii)The matter was adjourned to a further hearing on 1 September 2022.
On 8 July 2022 a further Safety Plan was implemented by the DCP providing for all three children to live with the father and there to be no contact between the children, and the mother and Mr G. That Safety Plan was to expire on 8 August 2022.
On 15 July 2022 two things occurred:
(a)Firstly the court’s co-located DCP worker provided a further report to the court which significantly among other things identified:
On 25 June 2022, the department received a child protection notification relating to disclosures of multiple instances of digital rape perpetrated against [Z] by [Mr G] which occurred in 2021. The department received further information that similar acts of sexual abuse had been perpetrated against [X] by [Mr G] this included instances of sexual touching on both the inside and outside of her genital area. It was reported that when [X] obtained her learner’s permit [Mr G] had sent a message “asking for nudes”.
As a result of the above notification, the department commenced a further investigation in which the department worked with [Mr Starrett] and SA Police to ensure appropriate and safe care arrangements were made for all of the children which included the children residing in [Mr Starrett’s] fulltime care.
…
The department put into place a safety plan on 28 June 2022 and 8 July 2022 with both [Mr Starrett] and [Ms Bacca], stipulating [Ms Bacca] and [Mr G] cannot have any contact with the children throughout the SAPOL and departmental investigation. The children were placed into [Mr Starrett’s] care at this time where they remain. As a result of the investigation, the department substantiated emotional harm for [X], [Y] and [Z] in relation to [Ms Bacca] and [Mr G].
In their initial investigation in February 2021 the department has been advised that [X] has been diagnosed with anxiety and had been prescribed medication in relation to this. However during the second investigation, since not having contact with [Mr G], and no longer being in [Ms Bacca’s] care [X] has advised she wishes to have this reviewed by a doctor, as she feels she no longer needs medication. [X] disclosed her concerns around how [Ms Bacca] would respond when she was informed of the children’s disclosures and that [Ms Bacca’s] behaviours would be hostile, manipulating, criticising, or scapegoating. As a result of this the department assessed that [Ms Bacca] and [Mr G] heavily manipulated and pressured [X] to act against her interest (and wishes) in having a relationship with her father [Mr Starrett]. This is further evidenced by [X] having been observed to appear more relaxed and comfortable since being in [Mr Starrett’s] care. [X] has also advised she feels safe in [Mr Starrett’s] care, indicating that external factors such as [Ms Bacca] and [Mr G] were a potential hindrance to that relationship. [Y] and [Z] have not been diagnosed with any mental health concerns however, both children continue to display profound fear or worry about [Ms Bacca’s] behaviours, or being alone with [Mr G]. The department has assessed that this is due to [Ms Bacca’s] erratic and hostile behaviours towards the children when concerns have been raised previously. The children have been asked by departmental workers about seeing [Ms Bacca], neither [Z] nor [Y] made any comments in in relation to this. [X] advised she would like to see [Ms Bacca] but not alone.
The department has substantiated the neglect grounds of ‘failure to protect from others’ in relation to all three children against [Ms Bacca] as she was aware of the assaults taking place and failed to intervene or take protective action for her children, and continuing to allow them to have contact with [Mr G]. Furthermore, the department were witness to [Ms Bacca] being informed of the current allegations coming directly from the children, and despite this she refused to act protectively, rather choosing to support [Mr G] and maintain their relationship moving forward.
The department has substantiated the sexual harm grounds of ‘sexual act or exploitation’ in relation to [X] and [Z] against [Mr G] given [X] and [Z] have made disclosures of sexual assault naming [Mr G] as the perpetrator. The department has assessed that if the children were to have any form of contact with [Mr G] the children may be subject to further harm. In addition [Mr G] have been recorded as Responsible for Harm on 7 July 2022 for S02 Suspicious indicators consistent with sexual harm in relation to [Y].
The department has substantiated the sexual harm grounds of ‘suspicious indicators consistent with sexual harm’ in relation to [Y] against [Mr G] due to [Y] exhibiting emotional/psychological indicators strongly consistent with sexual harm, such as age‑inappropriate sexual knowledge.
[Ms Bacca] has been reluctant to work with the department throughout the investigation, refusing to acknowledge the child protection concerns relating to [Mr G], despite being informed that the disclosures came from her children. [Mr G] presented as difficult and denied the allegations during the home visit with departmental workers. [Mr G] was observed to further heighten [Ms Bacca’s] anxiety around the situation, communicating with his lawyer during the home visit, and trying to obtain control over the situation. Furthermore, on 4 July 2022, [Ms Bacca] advised the allocated worker that she did not want the children to return to her care and that she would be supporting [Mr G] moving forward.
The department have assessed that [Ms Bacca] is unable and unwilling to reflect on the serious nature of the allegations made towards [Mr G]. [Ms Bacca’s] refusal to engage with the department to address the allegations in an appropriate manner supports the department’s concern that she is unwilling or unable to protect her children from the abuse they have encountered by [Mr G]. [Ms Bacca] has chosen to continue her relationship with [Mr G] therefore likely exposing the children to further abuse. [Ms Bacca] has demonstrated that she is going to prioritise her relationship with [Mr G] over the safety and well-being of her children. The department assess that [Ms Bacca] would be unable to protect her children from future harm, if they were to return to her care.
As part of the investigation the department has made attempts to contact [Ms Bacca] to assist with the children’s possessions being returned to the children now they are in [Mr Starrett’s] care. [X] has a therapy cat and [Z] has a kitten which [Ms Bacca] will not allow to be returned to the children. Both the children have highlighted their wish to have their items and pets returned and is causing both [X] and [Z] distress which appears to be a deliberate action of punishment by [Ms Bacca] for disclosing the abuse they had suffered in her care. The department acknowledges the additional stress that not having their items of clothing, school, books, toys and animals is having on [X] and [Z]. The department will continue to engage with [Ms Bacca] to have these items returned to the children.[31]
[31] Letter from the Department for Child Protection dated 13 July 2022, p.2-3.
(As per original)
(b)Secondly the DCP wrote to the father (although not received by him until 28 July 2022) providing a follow up about the investigation and assessment completed during June/July 2022 advising:
Harm:
E01 Child is significantly impaired (e.g Anxiety, Depression) ([X] ONLY)
HAS BEEN SUBSTANTIATED, both [Ms Bacca] and [Mr G] have been recorded as responsible for harm. It has been assessed that [X’s] current mental health is correlated to the inadequate care environment she has experienced whilst in the care of [Ms Bacca] and Mr G.
E02 Child has significant symptoms of emotional distress ([Y] and [Z] ONLY)
HAS BEEN SUBSTANTIATED, both [Ms Bacca] and [Mr G] have been recorded as responsible for harm.
N06 Failure to protect from other ([X], [Y], and [Z])
HAS BEEN SUBSTANTIATED, [Ms Bacca] has been recorded as responsible for harm. It has been assessed by the department that [Ms Bacca] did not take protective action for her children, and continued to allow them contact with [Mr G].
S01 Sexual act or exploitation ([X] and [Z] ONLY)
HAS BEEN SUBSTANTIATED, [Mr G] has been recorded as responsible for harm. Due to the department confirming that [Mr G] has likely sexually assaulted both the children.
S02 Suspicious indicators consistent with sexual harm ([Y] ONLY)
HAS BEEN SUBSTANTIATED, [Mr G] has been recorded as responsible for harm. The department assesses that [Y] exhibits emotional and psychological indicators strongly consistent with sexual harm.
It is highly recommended that all the recommendations made by the department within the Alert Letter provided to Family Court are followed to prevent harm, risk or further departmental involvement.
(As per original)
On 2 August 2022 the father filed an Application in a Proceeding in which among other things he sought:
(a)Sole parental responsibility for all three children;
(b)That Mr G be joined as a party to the proceedings;
(c)Injunctions against Mr G directed to preventing his contact with the children; and
(d)Injunctions against the mother directed to preventing her contact with the children and from posting on Facebook or social media “pictures of the children or their animals or any text about the children, the Applicant [father] and/or these proceedings”.
(e)An order discharging the appointment of the Independent Children’s Lawyer.
The matter came before the Senior Judicial Registrar on 10 August 2022. At that hearing the following orders of significance were made:
(a)Restraining the mother from having contact with the children other than with the approval of the DCP;
(b)Maintaining the hearing on 1 September 2022.
On the day of the interim hearing (1 September 2022), the father’s solicitor filed an affidavit addressing her attempts to serve Mr G with the father’s Application in a Proceeding filed on 2 August 2022. That affidavit included details of a telephone conversation between the solicitor and Mr G in which among other things Mr G repeatedly advised the solicitor that he was away working in Queensland (something the solicitor knew to be incorrect given Mr G’s bail arrangements). In addition, the solicitor deposed:
6. [Mr G] then said:
(a)he needed to tell me that he had made a police report yesterday about [Mr Starrett]’s safety.
(b)that “I don’t mind if your client is sex feet under but I don’t want anything to do with what was going to happen to him [Mr Starrett];
(c)had called Police “online” on the 131444 number to advise that [Mr Starrett’s] life is in danger
(d)that he did not want anything to happen to the girls, that he loved the girls.
7. I asked [Mr G] if it was his friends who were going to hurt people. [Mr G] said they were not his friends and that he wanted nothing to do with the violence that was to occur. [Mr G] went on to say again “I love those girls, I don’t want anything to happen to them”.
8.[Mr G] said [Mr Starrett] is a small man and that he [Mr G] is a “mountain” and that if he wanted to hurt [Mr Starrett] he could have done that years ago. [Mr G] continued that [Mr Starrett] “started all this 5 years ago and he would not step in front of anyone who is going to hurt [Mr Starrett] or his partner” [Ms H].
At the interim hearing before the Senior Judicial Registrar on 1 September 2022, orders were made as follows:
1. That the applicant father do have sole parental responsibility for the children [X] born […] 2006, Y born […] 2010 and Z born […] 2014 (“the children”).
2. That the children live with the applicant father.
3.That the respondent mother be at liberty to write letters and send cards and Birthday and Christmas gifts to the children and the applicant father do facilitate the children receiving same PROVIDED THAT the applicant father be at liberty to reject any letter, gift or card that he reasonably believes to be inappropriate.
4. Within 14 days the applicant father do nominate a postal address for the purposes of communication in paragraph 3 hereof.
5.That the respondent mother be at liberty to obtain at her expense copies of the school reports, records and photographs of the children and the applicant father do instruct the children’s school to release the same to the respondent mother.
6.That the applicant father do inform the respondent mother as soon as practicable of any significant health issues for which any of the children requires medical attention.
7.That the respondent mother be restrained and an injunction is hereby granted restraining her from attending at any school at which any of the said children may be in attendance.
8. That all interim applications be dismissed as finalised.
On 2 November 2022 the father filed a further Amended Application for Final Orders. By that document the father:
(a)Continued to seek orders that the children live with him.
(b)Sought orders that he have sole parental responsibility for the children.
(c)Sought orders “UPON NOTING the mother poses an unacceptable risk to the children, the mother is restrained and hereby injuncted” from spending any time with the children or being within 250 metres of the children’s schools.
On 3 November 2022 the matter returned before the Senior Judicial Registrar and the matter was transferred to Division 1 of the Federal Circuit and Family Court of Australia.
The matter came before a Judicial Registrar of Division 1 on 9 December 2022, at that hearing, the Judicial Registrar significantly made orders:
(a)For the preparation of a Family Report by a Court Child Expert, with the same to be released by 28 April 2023; and
(b)The matter was referred to the list of matters awaiting a trial listing.
On 15 December 2022 the court received an updated report from the court’s co-located SAPOL officer. Of significance that report identified that the sexual abuse charges laid against Mr G on 25 June 2022 had an outcome recorded as follows:
Outcome: Charges not Proceeded With, [Intervention Order] application in consideration.[32]
[32] Information Summary Report – South Australia Police dated late 2022, p.3.
The Family Report was prepared by Court Child Expert Ms S and is dated 3 May 2023.
By that report the Court Child Expert made recommendations as follows:
98.That the children remain in the sole care of [Mr Starrett] and that [Mr Starrett] have sole parental responsibility.
99. That [Ms Bacca] provide [Mr Starrett], via the court, with records relating to any past medical or disability diagnoses for [X], [Y] or [Z].
100. That [X] and [Z] be supported to have supervised time with [Ms Bacca] via a children’s contact service, such as the [R Children’s Contact Service] which has a contact centre in [Town W].
101. That [X] and [Z’s] time spending with [Ms Bacca] be infrequent, for example once a month, and remain supervised permanently.
102. That [Mr G] not have any contact with the children.
103. That [Y] be offered the opportunity to spend time with [Ms Bacca] when her sisters do.
104. That [Mr Starrett] seek therapeutic support for [X], [Y] and [Z], including further assessment or confirmation regarding any potential Autism diagnosis, in particular for [X] and [Y]. Any diagnosis or therapeutic support in relation to Autism for any of the children should be through as psychology service that has a sound understanding of childhood trauma as well as Autism (for example ‘[CC Psychologists]’, ‘[DD Psychologists]’, ‘[EE Psychologists]’ or ‘[FF Psychologists]’)
Those recommendations were made against a background of:
(a)The Court Child Expert properly identifying that significant disclosures of sexual abuse by Mr G had been made by Z and X (at [83]-[84]);
(b)Concerns about the mother’s capacity to be a safe caregiver and ability to protect the children from Mr G (at [84]);
(c)That shared care was not supported, even absent the disclosures made by the children, given the poor co-parenting relationship between the parents (at [85]);
(d)That all three children “feel a sense of belonging and safety with the father, Ms H and with one another. All indicated they wished to remain in their father’s full-time care (at [87]);
(e)The mother’s apparent fixed views about the falsity of the allegations and her inability to prioritise the children over her relationship with Mr G (at [88]-[89]);
(f)That while the allegations and disclosures made by the children were a matter to be determined at trial, if accurate Mr G would pose a risk to the children (at [90]);
(g)The child Y expressing the view that she did not want to spend time with the mother (summarised at [93]);
(h)The children X and Z expressing a wish to spend time with the mother but in the absence of Mr G (at [63] and [77] respectively);

Of significance the Court Child Expert opined in relation to the prospect of time spending between the children and the mother:
92. Although some time spending with their mother may be positive for [X] and [Z], it is was concerning to the report writer that [Ms Bacca] was not able to adopt a child focussed approach and maintained a negative opinion of [Mr Starrett]. [X], [Z] and [Y] have experienced significant instability, including changes in care arrangements, being withheld in the context of the parental dispute, and potentially being exposed to parental conflict. If the court accepts that the children have experienced sexual abuse and trauma, they are likely to need ongoing reassurance that they are safe and will remain in a safe care arrangement. Given these concerns, if time spending with [Ms Bacca] were to be frequent it may impact on the children’s ability to feel secure and settled with their father. As such it is likely to be best for them if time spending with their mother is occasional, for example once a month.
93. [Y] did not appear to want to spend time with [Ms Bacca] at this stage. [Y] appears settled and content in [Mr Starrett’s] care and clearly has a strong sense of family identity with him, her siblings and [Ms H]. It may benefit [Y] to have opportunities to spend time with [Ms Bacca] in the future if she wishes however if [Y] has experienced abuse as alleged, it is possible her reluctance to see her mother is related to this. As such the best approach is likely to be to ensure [Y] is regularly offered the chance to see [Ms Bacca] if she wishes, i.e. when her sisters do, but that her wishes are respected if she chooses not to.
94. It may support [X], [Z] and [Y’s] sense of identity and family for them to maintain relationships with their older siblings. It is noted that [Mr Starrett] already facilitates them spending time with [Ms Bacca’s] older sons, and [Mr Starrett’s] own older daughter. The children are not currently having contact with their older siblings [Ms D] and [Ms B] […], however caution appears warranted in this regard, given the issues both [Mr Starrett] and [Ms Bacca] reported regarding [Ms D’s] mental health and substance abuse difficulties, and uncertainty regarding whether she and/or [Ms B] […] believe the disclosures made by the children about [Mr G]. [Mr Starrett] was able to reflect in a balanced way on the children’s need to have relationships and contact with their older siblings while also recognising that this needs to be done in a way that is safe and appropriate for them. It is the view of the report writer that [Mr Starrett] has capacity to assess the suitability of and facilitate any time spending between the children and their older siblings in the future.
Of some significance to the present application, the Court Child Expert did not consider it appropriate to observe any interactions between the mother and the children, recording (at [80]):
… Given the nature of the concerns and [Ms Bacca] not believing the children’s allegations the children are likely to require significant therapeutic support and preparation before seeing their mother against and this was not able to be provided I the context of observations for a Family Report.
THE PROPOSALS OF THE PARTIES
The Applications before the Court are:
(a)The mother’s Application in a Proceeding filed 21 July 2023; and
(b)The father’s Response filed 23 August 2023.
By her Application the mother seeks orders as follows:
1.That the parties forthwith enrol at [BB Contact Centre] Service.
2.The mother attend and complete six supervised visits with the children once a fortnight.
3.Upon the completion of six visits the parties obtain and file an observational report from the Children's Contact Centre at the sole expense of the mother.
4.The father forthwith re-enrol the children [X] born […] 2006 and [Z] born […] 2014 to [L School].
5.The father be restrained from changing the children's school from [L School] to any other school without the mother's written consent or order of the court.
6.That the father be restrained from changing the children's place of residence from [Town K] without the mother's written consent or order of the court.
7.The father pay the mother's cost of and incidental to this application in a proceeding.
By his Response, the father seeks orders as follows:
1.The application be wholly dismissed.
2.The applicant be restrained from travelling on an road that is within 1 kilometre of [T School], [City U] or the [V School] between 8.15 am and 9.00 am and between 3.00 pm and 3.30 pm except on Wednesdays wen the exclusion time is 2.15 pm to 3.15 pm.
3.This matter be listed before a Judicial Registrar for a compliance and readiness hearing.
In her affidavit filed on 15 August 2022 in support of her application to spend supervised time with the children, the mother variously deposes:
(a)Denying exposing the children to harm (at [16]).
(b)“Vehemently” denying the allegations of sexual abuse of the children by Mr G (at [18]).
(c)Her belief that the children were “coerced to make false allegations against me and my husband which have adverse effects on their emotional wellbeing” (at [38]).
In addition the mother caused affidavit’s to be filed by each Mr G and her child Ms B. Mr G’s affidavit was brief. In it Mr G:
(a)“Vehemently” denied the serious allegations “that the children’s father raised” against him (at [4]).
(b)Denied sending a text message to X asking for nude photographs, with the police being unable to find any such text messages on his device (at [5]).
(c)“Vehemently” denied the allegations of sexual abuse made by Z (at [6]-[7]).
(d)Denying various additional allegations including those of nudism, gifting Ms D a vibrator for her 17^th birthday, telling Ms D to “insert a finger into her pussy”, encouraging the children to go nude (at [9]).
The parties’ competing applications came before the court for argument on 30 August 2023.
At that hearing the matter was fully argued and judgment was reserved. The parties however were able to narrow various issues and/or agree some orders, which were made in the following terms:
1.That the mother be restrained and an injunction granted restraining her from:
a.Attending at the children’s schools or instructing or allowing anyone else to do so on her behalf;
b.Parking outside the children’s schools;
c.Removing or attempting to remove any of the children from the father’s care, or allowing anyone else to do so;
d.Contacting or attempting to contact the children other than as provided in these orders.
2.That the father be restrained and an injunction is granted restraining him from enrolling the children in any school other than their current schools, namely [T School] for the child [Z] and [V School] for the children [Y] and [X].
3.That both parties be restrained and an injunction is granted restraining each of them from:
a.Abusing, denigrating or criticising the other parent or the other parent’s partner or family members in the presence or hearing of the children, or allowing anyone else to do so;
b.Discussing these proceedings including any allegations made with any of the children, or allowing anyone else to do so (save and except for any therapist treating any of the children).
4.That with respect to paragraph 25 of the Mother’s Affidavit filed on 15 August 2023:
a. The words commencing on the third line “the father did not agree to my proposal” through to the conclusion of the paragraph shall be struck out;
b.Document 1 annexed to the Affidavit shall be struck out.
WHAT PARENTING ORDERS SHOULD BE MADE PENDING TRIAL?
The Legal Framework
The court’s task whenever it is called upon to make a parenting order, is to make orders that are in a child’s best interests.
In determining what is in a child’s best interests, the court is assisted by s 60CC of the Act, which sets out the considerations (primary and additional) to which the court is to have regard.
Section 60CC(2) of the Act sets out the primary considerations to which the court is to give greater weight to, namely:-
(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.
The additional considerations set out in s 60CC(3) of the Act 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.
In addition, the Court is to have regard to the objects expressed in s 60B(1) of the Act as well as the underlying principles which underpin the parenting provisions of the legislation set out at s 60B(2) of the Act, which are as follows:
(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).
In Goode & Goode (2006) FLC 93-286 at [82], the Full Court set out the “legislative pathway” that is to be followed in interim parenting cases as follows:
a.        identifying the competing proposals of the parties;
b.        identifying the issues in dispute in the interim hearing;
c.        identifying any agreed or uncontested relevant facts;
d.considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
e.deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;
f.if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
g.if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
h.if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
i.if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
j.if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
k.even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Discussion
The mother’s application for time spending is moderate. Implicit in the mother asking the court to make orders for supervised time spending is an acknowledgement on her part that there is some form of risk that is appropriately ameliorated by supervision. Unfortunately, during the hearing, the mother’s counsel did not identify what that risk might be or how supervision might act to ameliorate any risk.
As identified by the Full Court in Deiter & Deiter [2011] FamCAFC 82 at [61] (‘Deiter’):
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the court.
As identified earlier in the summary of the history of the matter, there are very serious multi‑faceted allegations that have been made. Those allegations include allegations of:
(a)Sexual abuse allegedly perpetrated by the mother’s partner Mr G towards the children X and Z;
(b)Inappropriate sexualised behaviours in the presence of the children by the mother and Mr G;
(c)The mother’s poor mental health;
(d)The mother and Mr G’s excessive alcohol consumption which has exposed the children to family violence in the form of arguments;
(e)Physical abuse allegedly perpetrated by Mr G towards the mother’s child Ms E;
(f)The inability of the mother to act protectively of the children the subject of these proceedings, together with her older children, given the allegations made by the mother’s child Ms E.
At this stage the allegations remain just that, however it is important to record that:
(a)The DCP assessed various allegations to have been substantiated (as earlier identified);
(b)Mr G was charged with serious offences as a result of the allegations;
(c)The DCP implemented a change of the primary care of the children X and Z on the strength of the disclosures they made, and, through two Safety Plans, recommended that the children remain living with the father and that they have no contact with the mother and/or Mr G.
While those matters are not conclusive to a positive finding about any of the allegations, they are factors that must weigh heavily in the court’s mind at this interlocutory stage, when the evidence of the parties and all of the witnesses has not been tested and the court is not in a position to make any findings.
While it is understood that both the mother and Mr G deny the allegations that have been made, and the charges laid against Mr G have been withdrawn, that does not mean that suddenly the allegations become any less serious, and/or that the court is able to make findings at this interlocutory stage that the allegations are not made out. Again, these are questions to be considered by the court at a final hearing when all of the evidence is able to be tested.
Moreover, while the question of any ultimate findings is one to be considered at trial, the resolution of any allegations, are, as the High Court has cautioned, “subservient” to the court’s determination of what is in a child’s best interests (see M and M [1988] 166 CLR 69).
I am also mindful of matters discussed recently by the Full Court in Isles & Nelissen (2022) FLC 94-092 when considering the question of findings, risk assessment and unacceptable risk:
82.Correctly, the primary judge said this to distinguish positive findings of sexual abuse from findings of unacceptable risk of harm:
60.The primary position of the mother and the [child welfare agency] is that the Court make a finding of fact, on the balance of probabilities, that the father has sexually abused [the child] with consequent orders to attend to future risk. This would constitute a finding of fact based on the empirical evidence as, indeed, would be the task of the Court in respect of the father's submissions that the mother has fabricated or opportunistically manipulated an otherwise innocent statement from [the child]. Put simply, this is an exercise of findings of fact. The notion of ‘an unacceptable risk,’ is, however, a predictive or prospective exercise for the Court in determining whether there is a ‘risk’ into the future; the magnitude of the that risk; and whether there are tools or circumstances to adequately mitigate that risk.
…
65.The evidentiary fact-finding exercise is conducted to the standard of on the balance of probabilities pursuant to s 140 of the Evidence Act whereas the predictive consideration of unacceptable risk, not being limited to findings of past fact, looks more to “possibilities” …
(Emphasis in original)
83. Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.
84.In this instance, the primary judge inferred the existence of an unacceptable risk of harm to the children from a combination of facts and circumstances, including: the elder child’s plausible but unproven allegations of sexual abuse by the father; the evidence of the father’s sexual interest in other adolescents; and evidence of the father’s interest in child exploitation material.
85.The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.

While I accept that the court may ultimately consider that either the allegations are not made out and/or be unable to make findings about them, at this juncture, where the evidence before the court is that the children have not resiled from their respective allegations, this factor weighs heavily.
Returning to the questions posed in Deiter, the issues for the court at this stage are:
(a)What harm is likely to be occasioned by any time spending between the mother and the children; and
(b)What is the severity of that harm if it eventuates for these children in the context of their time spending with the mother.
In answer to the first question, the harm at this stage at the very minimum is likely to be emotional harm; particularly in circumstances where the children have not withdrawn their allegations and the mother holds strident and unshakeable views that the allegations are false.
In my view, there is a very real risk that the children will be exposed to the mother’s views if there was to be any time spending. Understandably, if that was to occur, and in answer to the second question posed in Deiter, the risk of emotional harm to the children and their sense of safety and security is significant.
This dichotomy between the allegations made by the children and the position taken by the mother, and the impact upon the children, is the real conundrum identified by the Court Child Expert and discussed particularly at [92-94] set out earlier in these reasons.
Moreover, I am mindful of those matters raised by the Court Child Expert at [80] as earlier identified, that the children would likely require “significant therapeutic support and preparation before seeing the mother again”. While the court understands from the father’s affidavit filed 23 August 2023 that each of the children have received some mental health counselling, there is no evidence before the court about the same, including but not limited to the children’s general functioning but more specifically whether such counselling has canvassed the potential for the children resuming their relationship with the mother, nor how they would manage the same. Again, in all of the circumstances of this case, this is a factor that weighs heavily.
In addition, I am troubled by the potential for significant disruption to the children, and the emotional burden upon them if there was to be a reintroduction of time spending with the mother prior to trial, but then a determination made as a result of the final hearing, that there should not be time spending between the mother and the children in the future.
While I accept that if ultimately after a final hearing the court considers that there is no risk to the children in resuming their relationship with the mother, and/or that any risks are able to be ameliorated by conditions being imposed on any such time spending (for example supervision), continuing the current hiatus of time spending between the children and the mother has the potential to inflict emotional harm upon them. However, on balance, and particularly where the children have not now seen the mother for over a year, my view is that this is an assessment that is best made after having assessed all of the evidence fulsomely through the final hearing process.
It is for all of these reasons that I now make those orders that appear at the commencement of these reasons.

I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari.
Associate:
Dated: 25 September 2023

File number(s):	ADC 60 of 2022
Judgment of:	KARI J
Date of judgment:	25 September 2023
Catchwords:	FAMILY LAW – CHILDREN – Where the parents have three children aged 17, 12 and 9 – Where all of the children are in the father’s sole care – Whether the mother should spend supervised time with the children – Where the children have not seen the mother for over a year - Where the eldest and youngest children have made serious allegations of sexual abuse perpetrated by the mother’s husband – Where the Department of Child Protection implemented a Safety Plan removing the children from the mother’s care and placing them in the care of the father – Where the Department of Child Protection have investigated the allegations and determined that the alleged abuse has been substantiated – Where in addition there are allegations about the mother’s lifestyle and her relationship with her husband - Where all allegations are denied by the mother and her husband – No order for time spending prior to final hearing
Legislation:	Family Law Act1975 (Cth) ss 60B, 60CC, 91B
Cases cited:	Bant & Clayton (2019) FLC 93-924 Deiter & Deiter [2011] FamCAFC 82 Edwards v Noble (1971) 125 CLR 296 Isles & Nelissen (2022) FLC 94-092 M and M [1988] 166 CLR 69 Norbis v Norbis (1986) 161 CLR 513 Secretary of Department of Health and Human Services & Ray and Ors (2010) FLC 92-457 Goode & Goode (2006) FLC 93-286
Division:	Division 1 First Instance
Number of paragraphs:	86
Date of hearing:	30 August 2023
Place:	Heard in Adelaide, delivered in Melbourne
Counsel for the Applicant:	Mr McQuade
Solicitor for the Applicant:	Themis Family Lawyers
Counsel for the Respondent:	Mr Lewis
Solicitor for the Respondent:	Devine Murdoch
Solicitor for the Independent Children's Lawyer:	Ryder Family Law

ADC 60 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BACCA Applicant Mother
AND:	MR STARRETT Respondent Father
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	KARI J
DATE OF ORDER:	25 SEPTEMBER 2023