TAUBER & BASLER

[2020] FamCA 159

FAMILY COURT OF AUSTRALIA

TAUBER & BASLER [2020] FamCA 159

FAMILY LAW – CHILDREN – SEX ABUSE – INTELLECTUAL DISABILITY – NEGLECT - With whom a child lives and spends time –  Where the father seeks that the children live with him and spend time with the mother – Where the mother seeks a continuation of the current arrangements whereby the siblings live separately and spend alternate weekends with the parent with whom they do not live and each other – Where the parents seek equal shared parental responsibility – Where the mother’s partner was committed to stand trial for sex offences against the female child – Where the charges were withdrawn due in part to a finding the child did not have capacity to give evidence – Where the mother’s partner poses an unacceptable risk of sexual and physical harm to the children – Where the mother’s primary allegiance is to her partner and she is unable to protect the children from him – Where the mother made unsubstantiated allegations of harm by the father to her and the children – Where the mother conceded that the father did not pose an unacceptable risk of harm to the children – Where there are warm and positive bonds between the children, and the children and each parent – Where the father suffers an intellectual disability and has been on a disability support pension since he turned 18 years old – Where evidence about his disability is minimal – Where there is some evidence of neglect of the children in the father’s household – Where the family report writer and the male child’s treating clinical social worker both opine that the father is an adequate parent – Where it is likely the female child will experience some emotional distress moving from her mother’s primary care to her father’s – Where it is necessary for her safety – Where the children both suffer developmental, intellectual and speech delays – Where the children will live with the father and spend time with the mother on alternate weekends not at the mother’s residence – Where the mother is restrained from permitting her partner to have contact with the children – Where the matter is referred to the Department of Child Safety, Youth and Women for urgent assessment of the risk to the mother’s three other children from her partner.

Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton [2019] FamCAFC 198
Johnson & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655

APPLICANT: Mr Tauber

RESPONDENT: Ms Basler

INDEPENDENT CHILDREN’S LAWYER: Ms J. Kingston

FILE NUMBER: BRC 8255 of 2018

DATE DELIVERED: 11 March 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 24 - 27 February 2020 and 5 – 6 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr G. Page QC

SOLICITOR FOR THE APPLICANT: Brooke Winter Solicitors

COUNSEL FOR THE RESPONDENT: Mr B. Dodd

SOLICITOR FOR THE RESPONDENT: Rhonda Sheehy and Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr J. Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

It is ordered that:

Parental responsibility

1. That the applicant father, Mr Tauber and the respondent mother, Ms Basler have equal shared parental responsibility for the major long-term issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)) for the children, V born … 2011 and W born … 2013 (“the children”).

Live with

1. The children live with the father.

Spent time with and communication

1. The mother spend time with the child V at such times as may be agreed in writing between the parents and failing agreement as follows:

   (a)       For a period of 4 months from the date of this Order, from 9.00am to 11.00am at the commencement of the time the child W spends with the mother;

   (b)       Then, for a further period of 4 months, from 9.00am to 1.00pm at the commencement of the time the child W spends with the mother;

   (c)       Then, for a further period of 4 months, from 9.00am to 3.00pm at the commencement of the time the child W spends with the mother;

   (d)       Thereafter, pursuant to paragraph 4 of this Order;

   (e)       V’s time with the mother pursuant to sub-paragraphs (a) and (b) of this Order shall occur in the presence of the maternal great grandmother, Ms B or, if she is unavailable, in the presence of an adult known to V and agreed upon by the parents in writing or, if they are unable to agree, then a person nominated by Ms B;

   (f)        V’s time with the mother pursuant to sub-paragraphs (a), (b) and (c) of this Order shall occur at a public place such as a park, beach, or shopping precinct as agreed between the parents or, if they are unable to agree, at Southbank Parklands, South Brisbane.

2. Subject to paragraph 3 herein, the mother spend time and communicate with the children, V and W at such times as may be agreed between the parents and failing agreement as follows:

   (a)       From 9.00am Saturday to 4.00pm Sunday each alternate weekend;

   (b)       From 9.00am on Christmas Eve to 4.00pm on Christmas Day in odd numbered years;

   (c)       From 9.00am Easter Sunday to 4.00pm Easter Monday in odd numbered years;

   (d)       From 9.00am to 4.00pm on Mother’s Day;

   (e)       For overnight time, the children will stay at the home of the maternal great grandmother, Ms B or, if she is unavailable or unwilling, at the home of such other person as agreed by the parents in writing or, if they are unable to agree, a person nominated by Ms B (this Order does not prevent the mother from taking the children to public places such as parks, beaches or shopping precincts during overnight visits);

   (f)        The Mother’s Day visits with the children shall occur at a public place such as a park, beach or shopping precinct;

   (g)       The children have Skype or FaceTime communication with the mother at 6.00pm each Tuesday and Thursday and at 6.00pm on the children’s birthdays with the mother to initiate the call;

   (h)       The mother will ensure that both children are in her care together when the children are spending time with her;

   (i)        The mother shall not permit the children to attend at her place of residence during their visits with her.

3. The mother is restrained from permitting Mr C (also known as Mr D) to spend time with or communicate with the children.

Changeovers

1. Changeovers shall occur at a location agreed upon between the parents in writing or, if they are unable to agree, at Roma Street Station, Brisbane City.

IT IS FURTHER ORDERED BY CONSENT

Specific Issues

1. Neither parent will denigrate the other or their family to or in front of or within the hearing of the children and shall direct third parties to refrain from denigrating either parent or their family to or in front of or within hearing of the children, and failing their compliance with such a direction shall remove the children from that environment immediately.

2. During the time the children are with either parent, that parent shall:

   (a)       Respect the privacy of the other parent and not question the children about the personal life of the other parent; and

   (b)       Speak of the other parent respectfully.

3. The parents shall keep each other informed of the children's doctors, health care providers, and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and this Order serves as such authority.

4. Each parent shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue, or significant illness suffered by the children and authorise any treating medical practitioner to release the children's medical information to the other parent.

5. The parents shall keep each other informed of any school, educational facility, or extra-curricular activity attended by the children and authorise those providers to provide the other parent with information that they are lawfully able to provide about the children and the option to purchase school photographs, and this Order serves as such authority.

6. If there is a cost associated with the provision of any information or documents under this Order from the children's doctors, health care providers, other treatment providers, schools, educational facilities, or extra-curricular activity providers the expense shall be borne by the parent requesting the information.

7. Each parent shall keep the other parent informed at all times of their contact mobile telephone number, residential address and email address.

8. Subject to the conditions imposed by the children’s schools/extra-curricular activity providers, this Order authorises both parents to attend school functions and extra-curricular activities which parents ordinarily attend including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

9. The parents will ensure that the children refer to only the mother as “Mum” or similar and to only the father as “Dad” or similar.

10. The father and mother be at liberty to provide a copy of this Order to the children’s school/s.

11. The father shall, within 7 days of this Order, take all steps necessary to arrange therapeutic counselling for W for the purpose of supporting W to transition to the father’s care and:

    (a)       The father will cause W to attend upon the therapist at such times as determined by the therapist;

    (b)       The father, and the mother if required, will attend upon the therapist at such times as determined by the therapist;

    (c)       The therapist will conduct such therapy as he/she considers appropriate;

    (d)       The cost of the therapy (if any) will be paid by the father;

    (e)       The father will provide the therapist with a copy of the Reasons for Judgment dated 11 March 2020.

12. The father has leave to provide V’s counsellor/therapist and his own counsellor/therapist with copies of the Reasons for Judgment dated 11 March 2020.

IT IS FURTHER ORDERED

Compliance with order

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order. It is requested that the mother’s lawyer forthwith provide the mother with a copy of this Order and the accompanying fact sheet and inform her of the possible penalties for failing to comply with an Order of this Honourable Court.

Miscellaneous

1. All previous parenting orders and parenting plans be discharged.

2. The father forthwith contact Family and Child Connect, by telephoning and request family support. The father is permitted to provide this service with a copy of the Reasons for Judgment dated 11 March 2020.

3. It is requested that the independent children’s lawyer forthwith inform Ms B of this Order, the reasons for it, and the importance of any person nominated by her to be present during the time the mother spends with the children also being aware of the Order and the reasons for it.

4. The Senior Registrar of the Family Court of Australia, Brisbane Registry, is requested to forthwith provide to the Department of Child Safety, Youth and Women a copy of the Reasons for Judgment dated 11 March 2020 together with a copy of the three family reports prepared by Ms E dated 12 December 2018, 11 June 2019 and 17 February 2020 with a request that urgent attention be given to assessing the safety of the children, X born … 2014, Y born … 2017 and Z born … 2019.

NOTATION

Whatever the outcome of the assessment of risk for the children, X, Y and Z it is important for all the children i.e. including V and W to maintain regular communication and contact with each other.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8255 of 2018

Mr Tauber

Applicant

And

Ms Basler

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Mr Tauber and Ms Basler have two children together. V is 8 years of age and W is 7 years of age. Currently the siblings are separated; V lives with the father and W lives with the mother. The children spend time with the parent with whom they are not living each alternate weekend.

2. The mother is in a relationship with a man who was previously charged with sex offences relating to the child, W. The father has an intellectual impairment. Both children have special needs.

3. The parents are unable to agree on whether W should continue to live with the mother or commence to live with the father.

Proposals

1. The father largely adopts the recommendation of the independent children’s lawyer (“ICL”) that the children live with him and spend time with the mother but unlike the ICL he proposes that he and the mother have equal shared parental responsibility for major long term issues for the children.[1]

   [1] The precise terms of the order sought by the father are set out in exhibit 19 (although he did not oppose the ICL orders in exhibit 15 save for parental responsibility and the person to be present for the time the mother spends with V in the initial stages.

2. The mother proposes that the current arrangement remain in place i.e. that V live with the father and W live with the mother and the children spend each weekend together. The mother agrees with the father that they should have equal shared parental responsibility.[2]

   [2] The precise terms of the order sought by the mother are set out in exhibit 16 (although the mother consents to paragraphs 10 – 19, 22 of the ICL’s recommendation in exhibit 15.

3. The ICL recommends that the children live with the father and that he have sole parental responsibility. Further, that the time the mother spends with the children should be restricted and overnight time take place at the home of the maternal grandmother.[3]

   [3] The precise terms of the order recommended by the ICL is set out in exhibit 15.

Issues

1. With the assistance of the parents and the ICL the following issues were identified as significant:

   (1)Does Mr C, the mother’s partner, pose an unacceptable risk of harm to the children?

   (2)Is the mother able to protect the children?

   (3)Does the mother pose an unacceptable risk of emotional or psychological harm to the children by reason of her repeated allegations of sexual abuse against the father?

   (4)Will either parent promote the relationship between the children and the other parent?

   (5)What, if any, impact does the father’s intellectual disability have on his parenting capacity?

   (6)What impact will there be for the children if there is a change in their respective primary living arrangements?

   (7)Should the siblings remain separated?

2. A further issue was initially raised by the mother, namely, “Does the father pose an unacceptable risk of harm to the child, W?” but the mother abandoned this issue, conceding that the father does not pose an unacceptable risk of harm. Although the ICL did not submit that the father posed an unacceptable risk of harm, it was submitted that the decision for the Court involves deciding on the “least worst” outcome for the children. Sadly, there is some truth in that observation.

Background

1. By way of background I note that the father is 34 years of age and the mother is 27 years of age. The mother and father had a short relationship which commenced in either late 2009 or early 2010. The parents separated on 27 December 2013.

2. The two children born to the relationship are V born on … 2011 and W born on … 2013.

3. The mother commenced a relationship with Mr F in early January 2014. This was a very brief relationship (about five months) but nevertheless there is a child of the relationship. X was born on … 2014. Mr F is 29 years of age and at the time of X’s birth was unemployed. The mother alleges that Mr F was violent and controlling and a protection order was made against him in mid-2014. He spends time with his daughter, although it is not entirely clear how often he does so. The mother says that Mr F suffers an intellectual impairment and/or Attention Deficit Hyperactivity Disorder (“ADHD”).

4. The mother commenced a relationship with Mr C (also known as Mr D) in September 2014. They have been in a relationship since then (although they say they have not lived together full time) and intend to commence a de facto relationship or marry at the conclusion of these proceedings. Mr C had a difficult upbringing and grew up in foster care. Historically, he had a serious drug addiction. Mr C works as a trades assistant. The mother and Mr C have two children together. Y was born on … 2017 and Z was born on … 2019.

5. The father lives independently in rental accommodation. He has been in receipt of a disability support pension since turning 18, although he has had some casual employment from time to time but not since 2009. The father’s fortnightly income consists of his pension of $850, a carer’s allowance for V of $131.90, rental assistance of $162.12, an energy supplement of $68.90, and a pension supplement of $68.00. The father pays fortnightly rent of $640. The father has also recently secured assistance for V from the National Disability Insurance Scheme which will provide funding for special services. The father receives practical assistance from his sister, Ms G Tauber (“Ms G”), and his mother, Ms H Tauber (“Ms H”). The father was diagnosed with cancer in 2013 but he is currently in remission.

6. The mother lives in rental accommodation with four of her five children. She receives a single parenting pension of approximately $1,700 per fortnight. I expect the mother also receives other supplements similar to that received by the father.

7. Both parents would also be entitled to a health care card and family tax benefits, the maximum rate of which is $186.20 per fortnight per child under 12 years. It is unclear if those amounts are included in the figures set out above.

8. Both parents received legal aid for these proceedings.

9. After separation between Mr Tauber and Ms Basler, the children continued to live with the mother, and the parents entered into a parenting plan on 3 April 2014 which provided for the parents to have equal shared parental responsibility and for the children to spend time with the father each Wednesday for the day and each alternate weekend. The parenting plan also included a provision that the children were to call the father ‘father’ or a derivative thereof and the mother ‘mother’ or a derivative thereof. Despite this, it is common ground that W used to call Mr F ‘daddy’ and called/calls Mr C ‘dad’ or ‘daddy’ or ‘daddy Mr C’. X, who is Mr F’s child, also calls Mr C ‘dad’.

10. The parents disagree on how it came about that the children commenced to spend week about with each parent although it seems there was a further parenting plan at some point where agreement was reached for equal time. After about six months (although it is not entirely clear from when), it seems that the children commenced to live full time with the father and spend weekend time with the mother until July 2017.

11. On 18 July 2017, W told the mother - “Daddy licked my wee wee”. The mother took no action and the child was returned to the father on 20 July 2017. On 21 July 2017, and while in the presence of the paternal grandmother, the child pointed to her private parts and said “[Mr C] does”. On 24 July 2017, the child told the paternal aunt - “[Mr C] licks my wee wee and puts his wee wee on my wee wee.”

1. The paternal aunt took the child to a doctor and to police on 25 July 2017 where the child was interviewed by police on 25 and again on 26 July 2017. The Department of Child Safety, Youth and Women (“the Department”) also became involved.

2. Mr C was arrested on … 2017 and charged with sexual offences in relation to W. His bail conditions prohibited him from attending at the mother’s address and from having any contact with the mother’s then three children. The mother was at that time pregnant with her first child with Mr C.

3. Upon the Department being satisfied that the children were not at risk, V remained living with the father and W continued to live with the mother. On 1 September 2017, the mother refused to permit W to spend time with the father after being told by the child’s counsellor that the child said both the father and Mr C licked her “wee wee”. As a consequence, neither child saw the other parent or each other for about 12 months.

4. On … 2018, Mr C was charged with breaching his bail conditions. He was arrested at the mother’s home at 11.30pm. W, X and Y were in the home. Mr C was dealt with for breaching bail on 16 October 2018 and fined $300. No conviction was recorded.

5. The father commenced proceedings in the Federal Circuit Court on 23 July 2018 alleging that W was at risk of abuse and family violence in the mother’s household. The father had first applied for legal aid in or about August 2017.

6. The mother filed a response alleging the children were at risk of abuse and family violence in the father’s household.

7. On 3 September 2018, an interim order was made by consent that V continue to live with the father and W continue to live with the mother and that each parent spend limited supervised time with the child not living with them. The paternal grandfather, Mr A Tauber (and later the paternal aunt, Ms G) supervised the father’s time with W and V, and the maternal great grandmother, Ms B Basler (“Ms B”) supervised the mother’s time with V and W. The time was limited to two hours with each parent each weekend.

8. On 30 January 2019, the mother provided an undertaking not to permit Mr C to attend at her home when the children, V and W are present and not to permit Mr C to have any contact with them. In addition to the undertaking the mother was restrained from permitting Mr C to have any contact or to communicate with the children. It is not clear why there was both an undertaking and an order. The undertaking and order remain in force. The 30 January 2019 order also requested the Department to intervene in the proceedings. The Department declined. The matter was transferred to this Court on 30 January 2019.

9. On 2 August 2019, an order was made by consent providing for W to spend alternate weekends with the father without supervision and for V to spend alternate weekends with the mother without supervision. The children were to spend each weekend together. The restrictions on Mr C coming into contact with the children continued.

10. The father alleges that the mother has permitted Mr C to have contact with the children on occasions other than 21 March 2018 based on what the children have told him. The mother and Mr C deny the allegation.

11. Having withdrawn her allegations in August 2019 that the child, W was at risk of sexual harm from the father, the mother renewed her allegations prior to this trial and contended that she was coerced into consenting to the removal of supervision in August 2019. At the end of this trial the mother again withdrew her allegations against the father.

12. The mother also raised a number of very serious family violence allegations against the father in her trial affidavit, which she did not press. The alleged history of family violence by the father towards the mother was not raised as a significant issue for trial nor was the father cross-examined about the allegations. The allegations are largely bare assertions without any description or provision of particulars.  The father denies the allegations.   

13. Since March 2014, there have been 20 child concern reports (i.e. when the alleged harm is not serious enough for the Department to undertake an investigation and assessment) and six child protection notifications (when the child protection information meets the threshold of significant harm or risk of significant harm) in relation to the children. The child protection notifications were assessed as unsubstantiated, “child not in need of protection” on all occasions other than 25 July 2017 when the risk of harm involving W was substantiated but the child was not assessed to be in need of protection. The unsubstantiated outcomes do not necessarily mean that the harm which led to the notification did not exist but rather that the Department had assessed the parent/s were able and willing to protect the child/ren.

14. Before turning to consider the significant issues in this case I set out the principles applicable when determining a parenting matter.

Applicable legal principles

1. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[4]

   [4]Family Law Act 1975 (Cth), s 65D.

2. A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:

   a)The person or persons with whom a child is to live;

   b)The time a child is to spend with another person or other persons;

   c)The communication a child is to have with another person or persons; and

   d)The allocation of parental responsibility for a child.

3. The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.

4. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).

5. The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc (s 60CC).

6. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).

7. Family violence is defined in s 4AB and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.

8. In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[5] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[6] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”. ^[7]

   [5] M & M (1988) 166 CLR 69 citing Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

   [6] M & M (supra) at 77; N and S and the Separate Representative (1996) FLC 92-655.

   [7] See Johnson & Page (2007) FLC 93-344, 81,890 [68], 81,891 [71].

9. The Full Court of the Family Court recently reviewed the role of the Court in assessing risk in Bant & Clayton[8] and said:

   [8] [2019] FamCAFC 198.

   38.  In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:

   Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   39.  It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).

   40.  The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment.  As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:

   151.       …Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …

   41.  As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.

10. The Full Court went on to stress the importance of the whole of the evidence in assessing risk and said:

    51. The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.

11. The Court is not required to make findings of fact on every factual dispute raised by the parties.[9] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[10]

    [9]Baghti & Baghtiand Ors [2015] FamCAFC 71.

    [10]M & M (1988) 166 CLR 69 at 76.

12. Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.

13. Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).

14. Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.

15. Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).

16. Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).

17. Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[11]

    [11]Banks & Banks (2015) FLC 93-637.

Does Mr C, the mother’s partner, pose an unacceptable risk of harm to the children?

1. The father and ICL submit that Mr C poses an unacceptable risk of sexual harm to the child, W. Neither the father nor the ICL submit that a positive finding of abuse against Mr C should be made. I accept that submission in light of the direction provided by the High Court in M v M [12](see above).

   [12] Supra.

2. The mother submits that a positive finding should be made that Mr C has not sexually abused W because there is a “reasonable hypothesis” other than the child having been sexual abused by Mr C.

3. In my view, a finding as sought by the mother is only available where, as the High Court held in M v M,[13] the allegations are found to be “groundless”. Such a submission could not be sustained in this case where there is substantial evidence implicating Mr C. Even the mother’s counsel conceded that there is a “reasonable hypothesis” that Mr C has sexually abused W.

   [13] Supra.

4. In those circumstances, the Court is required to consider all of the relevant evidence to assess and evaluate the magnitude of any future risk to W should Mr C spend time with her.

5. Although most of the focus during submissions related to the allegations of sexual abuse against Mr C, the allegations of physical abuse by Mr C against the child, V were a significant focus during the trial and are relevant to the assessment of risk posed by Mr C generally.

What is the evidence relating to sexual abuse?

1. The mother says in her trial affidavit:

   34.In mid-2017 the child [W] who was spending time with me without [V], disclosed to me “Dad licked my wee wee”.  I repeated it to her “Your Dad licked your wee wee?” to which she said “Yes”. I telephoned the Paternal (sic) Grandmother and told her what the child had disclosed to me. I accepted that the child was very young and that there was no proof, but to keep an eye on the child and wait to see if there were any other “red flags”. I spoke to a representative at [W’s] kindy at [J Child Care Suburb K] and advised of my concern over the child’s disclosure. I accepted the child was not forthcoming to the representatives at [J Child Care] with any disclosure. I did not take any further action. The child returned to the Applicant that day. …

   35.Three or four days later I received a telephone call from the Paternal Aunt, [MS G] requesting that I attend … Police Station. I thought this was a bit odd. I anticipated that if a complaint had been made and I was required to be interviewed that a representative of the relevant authority would have contacted me and not [MS TAUBER]. I asked her “Has this got to do with the disclosure W made about [MR TAUBER]?”. She replied “No, and it is better that you come down”… I had a discussion with a Police officer when it came to my attention that [W] had purportedly made a disclosure to [Ms TAUBER] that [Mr C] (formerly [Mr D]) had sexually assaulted her. No particulars were given to me. This was in complete contrast to what the child had told me. The child had been with the Applicant for some four days after she made the disclosure to me that the Applicant was the culprit to now turning it to [Mr C]. I informed the Police officer that the child had already made a disclosure to me that the Applicant was the culprit. I suspected at the time that the general thought was that I was trying to protect [Mr C]. I gained the impression that my overtures to the Police were completely dismissed. The child [W] stayed overnight with the Paternal Aunt, [Ms G TAUBER] and thereafter she continued to live with the Applicant. No one listened to me. I had no voice whatsoever.

   …

   37. At no stage from the commencement of our relationship to that date have either of the children [V] or [W] been left alone with [Mr C]. … The child has never been left alone with [Mr C] whatsoever.

   38. … I had my brother [Mr CC] with me. He was chatting to [W] and asked her “Did you have a good time?” The child replied in my presence “I had fun with V but not my dad. My Dad touched my wee wee.” …

   [emphasis added]

2. I reject the mother’s evidence that what the child told the police was in “complete contrast” to what the child told her. What the mother does not disclose in her trial affidavit is that the child also referred to Mr C as ‘dad’ at the relevant time. I also reject the mother’s evidence that W “has never been left alone with Mr C whatsoever”. I will discuss in further detail below the mother’s and Mr C’s inconsistent evidence on this point. I also reject the mother’s evidence of what the child purportedly said to her brother in her presence in circumstances where her brother was not called as a witness and no explanation for the failure to call him was forthcoming. Although, I note the mother’s evidence that he has an intellectual disability. In any event, even if the child said “My dad touched my wee wee” such a statement does not exclude Mr C. 

3. In the mother’s affidavit filed 30 August 2018[14] the mother deposed to the following:

   [14] Exhibit 11.

   33. In or about July 2017 …

   …

   35. I received a telephone call from [Ms G] … who informed me, “You need to come to the police station now” She sounded stressed. I asked [Ms G], “Is this about [Mr Taube]r and [W]”. [Ms G] told me to “just come”.

   36.Around four (4) days prior to this phone call, I had been sitting in the lounge room of my residence with the child [W], when she said to me, “My dad licked my private parts”. I asked [W, “Which Dad?” and she responded, “my dad [Mr Tauber].” I did not question [W] further.

   37.I was greatly concerned about this disclosure and later that day discussed my concerns with the Maternal Grandmother.  My mother advised me to not jump to conclusions and not react too quickly, as [W] may be confused. She advised me to take a few days to consider my actions.

   …

   39. When I arrived at the Police Station, I spoke to a Police Officer who informed me … that [W] had made disclosure (sic) to [Ms G] about [Mr C]. I was shocked. I immediately informed the Police of the disclosure by [W] to me prior, …

   …

   [emphasis added]

1. I note that the comments attributed to the child by the mother in her 2018 affidavit are different to those contained in her trial affidavit, as is the content of her conversation with Ms G, the father’s sister.

2. It is significant that the mother fails to disclose in either affidavit that prior to contacting the maternal grandmother, the mother told Mr C what W had said and that he was at her home, when the child was also present, for four or five hours on the same day the ‘disclosure’ was made by the child to the mother. During cross-examination the mother initially claimed, falsely, that Mr C had not seen W before she returned to the father. Mr C described in considerable detail the conversation he had with the mother on the day of the first ‘disclosure’ by W, his attendance at the mother’s home that same afternoon, and his observations of the mother’s demeanour at the time. He said she was “sobbing”. I accept his evidence on this point as it also accords with the mother’s statement to police on 25 July 2017 that Mr C came over to her place that day.  

3. I also reject the mother’s evidence that she was “shocked” when police told her that the child had implicated Mr C. I do so for three reasons. Firstly, the evidence given by the maternal grandmother about the conversation she had with the mother on the relevant day. Secondly, because of the mother’s evidence that the maternal grandmother said the child may be “confused”.

4. The maternal grandmother gave the following account of her conversation with the mother on the relevant day (prior to the police interview on 25 July 2017):

   [The mother] said that [W] was saying that it was her father. But then she is changing to - because she will go its daddy [Mr C] – first she will go its daddy then she will go its daddy [Mr C] sorry.

5. I find that the reference to confusion arose because the child had mentioned “Mr C” as well as “dad”. There is no other logical explanation for the reference to confusion. 

6. Thirdly, Mr C said during cross-examination that on the day of the first ‘disclosure’ the mother told him that the child was saying it was the father and then him. This accords with what Mr C told Ms E, the family report writer, on 5 November 2018:

   63.Regarding why he thinks [W] would make sexual abuse allegations against him, he said, “I don’t know why”. He stated he has “done nothing wrong” and “does not understand where it is coming from”. He asserted that he came home from work one day and the mother was crying and she told him about the allegations of abuse. He also claimed the mother told him “[W] is saying one minute [Mr Tauber] and then you”. He alleged the reason [W] told the Police he was the perpetrator was because “[Mr Tauber] told her to say it”. He also claimed to have had no opportunity to commit the offence because he “was not left with the children”. He implied that the father was actually the perpetrator. …

   [emphasis added]

7. During cross-examination the mother denied that the child said to her - “Mr C licked my wee wee”. The mother said that about a week before the police interviewed (on 25 July 2017), the child W said - “my dad licked my wee wee.” The mother said she asked the child “which dad?” because the child “on the odd occasion” called Mr C ‘dad’.

8. The mother maintained in her trial affidavit and also during cross-examination that Mr C did not have the opportunity to offend against the child, but eventually conceded that she may have left him with the children unattended because she had no reason to suspect Mr C and she was not monitoring him. The mother denied that Mr C ever took W to work with him. I reject the mother’s evidence because it is contrary to what Mr C told police on 26 July 2017. At that time, Mr C conceded he had taken all children, including W, to work with him. I reject Mr C’s denial during cross-examination that he had taken W to work with him. I do so because his statement to police was provided at a time more proximate to the relevant events and is therefore more likely to be accurate. Mr C also told Ms E on 5 November 2018:

   63. … [Mr D] asserted that [W] was acting “weirdly” over the proceeding weeks and “rubbing [her] private parts”. He added that when he “went for a walk with [W]” she was “scratching down there [private parts] and saying it’s itchy”, so he questioned her about if the father had touched her. He also claimed he asked W has “daddy [Mr Tauber] hit you before and she nodded yes”. He alleged [W] did not want to go to the father’s house for the next contact visit.

   [emphasis added]

9. During cross-examination the mother said she told Mr C that W said the father had licked her wee wee. Mr C told police on 26 July 2017 that the mother told him that “her dad licks her wee wee and touches it and rubs it and that”. Mr C maintained during cross-examination that this is what the mother told him. If correct, it represents a substantially different account to what the mother has said in these proceedings.

10. Mr C also said he told the mother she should go to police but took no further action when the mother told him she wanted to talk to W some more. Both the mother and Mr C denied that Mr C told W that her dad licked her wee wee. The mother maintained that Mr C did not have the opportunity to do so. I reject her evidence because Mr C was at her home for four or five hours before the child returned to the father. He had ample opportunity and I find it more likely than not that he did so in order to deflect the allegation from himself. It also accords with what W said during the police interviews i.e. that Mr C told her the father licked her “wee wee”.

11. The day after the child’s first ‘disclosure’ to the mother, the mother asked Ms N, the child’s kindergarten teacher to talk to the child. The child was in the mother’s arms at the time and the mother concedes that she, i.e. the mother, was upset and the child was clinging to her. The mother told Ms N that W had told her it was Mr Tauber who harmed her. The child did not say anything to Ms N at this time.

12. The child was collected that day from kindergarten by the father.

13. On 21 July 2017, the father called the paternal grandmother because W was distressed and he could not get her into her car seat. The father was at a shopping centre car park and the paternal grandmother was inside the shopping centre. The father told the paternal grandmother that the child was upset because a stranger had offered her a lolly and then not given it to her. The paternal grandmother provided a statement to police on 30 July 2017 and said the following:

    10.On Friday the 21^st of May (sic) I had an appointment at the Bank at 9.15am, after the bank I got a call from [Mr Tauber] saying [W] wouldn’t get in the car seat and wanted me to go out and help.

    11.I went to the carpark at Coles Suburb K and that is when I spoke to [Mr Taube]r and he told me that a stranger offered [W] a jelly bean and he didn’t give it to her.

    12.I said to [W] something like “You can’t get everything you want.”

    13.As I was putting [W] into the car seat to help [Mr Tauber] I started to talk to her about stranger danger.

    14.I said something like “You shouldn’t take lollies from people you don’t know because people might take you away and do naughty things to you and touch you in the private parts and no body touches you in the private parts.”

    15.That is when I saw [W] pointing to her vagina area.

    16.W said “[Mr C] does.”

    17.I was surprised and thought to myself we might need to take her to the Doctor. I wasn’t sure what to do so I decided to text my daughter [redacted]. While [W] was talking to me [Mr Tauber] was in the front seat of the car talking on the phone and did not hear what we were talking about.

    18.I did not ask [W] any other questions about what she had said while we were in the carpark.

14. The paternal grandmother was very defensive during cross-examination and seemed somewhat overwhelmed by the whole court process. She also presented with some speech difficulties. She repeatedly responded to a question by stating that she could not recall, sometimes even before the question was completed. However, I have no reason to doubt that her police statement is a reliable account of the events of that day and the days following. The paternal grandmother said she did not know who “[Mr C]” was at the time but I find that to be unlikely given her close relationship with the father and his ongoing problems with Mr C, including being injured by him during a fight. Of course, it is possible the father had not told his mother.

15. I accept that the paternal grandmother and the paternal aunt had no contact between 21 July 2017 and 24 July 2017 (their respective working hours conflicted) other than in the text messages exchanged on 21 July 2017 which were as follows:

    [Ms H]:Talking to [W] at Coles Suburb K carpark as she was having a temper tantrum cause some stranger offer her a jelly bean but never gave to her. Was talking to her about stranger danger and she that [Mr C] touches her in private parts. Have made Dr appointment for Monday at 9:30am, am I doing the right thing

    [Ms H]: Not telling anyone else thou. Want to see what happens at Drs.

    [Ms G]: Was anyone else with you when she said that? Did you bring it up or did she bring it up?

    [Ms H]: No [W] say when talking about stranger danger and say that strangers sometimes lure young children away with lollies etc. And I was saying that no one touches you in private parts and she show me where someone touches her. And that [Mr C] did. Really don’t know what to do as I don’t want to cause [Mr Tauber] dramas etc.

    [Ms H]:And only [Mr Tauber] sitting in front drivers seat. I was talking to [W] when got into her seat as say shouldn’t take lollies from strangers when offered.

    [Ms G]:Will talk on weekend re [W]

16. On 24 July 2017, the paternal aunt, Ms G, had the following relevant exchange with the child, W:

    …

    14.I was painting [W’s] toe nails when she placed her hand on my crotch area.

    15.I said something like “People aren’t allowed to touch people like that, no one is allowed to touch me like that and no one can touch you like that either.”

    16.      [W] said “But [Mr C] does.”

    17.      I said “What does [Mr C] do?”

    18.[W] said “He licks my wee wee and puts his wee wee on my wee wee.”

    19.I asked [W] “Do you know the difference between a truth and a lie?”

    20.      [W] said “Yes.”

    21.I then said “If you told Daddy that I punched you right now, is that a lie or the truth?”

    22.      [W] said “That’s a lie.”

    23.I then said “If you told Daddy I was painting your toe nails is that a lie or the truth?”

    24.      [W] said “That’s the truth.”

    25.      I then said “It’s really important you tell me the truth.”

    26.      [W] said “Yes”.

    27.      I said “When does [Mr C] do that to you?”

    28.      W said “When no one is around.”

    29.      I said “Have you told mummy?”

    30.      I thought [W] said “Yes”

    31.      So I asked her “What did mummy say?”

    32.      [W] said “It’s our secret.”

    33.      I then said “Does anyone else do that to you?”

    34.      [W] said “No”

    35.      I then said “Have you told anyone else? (sic)

    36.      [W] said “Nana.”

17. On 25 July 2017, Ms G took the child to the child’s general medical practitioner, Dr L. After seeing the child, the father was told for the first time of the allegations.

18. On 25 July 2017, Ms G took the child to the police where she was interviewed.

19. Ms G telephoned the mother and asked her to come to the police station. The mother says that she said to Ms G “Is this about what W said about Mr Tauber”. Ms G denies the mother said that to her. When asked about this during cross-examination Ms G looked genuinely shocked. I accept Ms G’s denial not only because of her reaction when asked but also because of the inconsistency in the account of the exchange given by the mother in her trial affidavit and 2018 affidavit. 

20. When the mother arrived at the police station on 25 July 2017 she told police that W had said the week before that the father “had licked her wee wee”. Police then arranged to re-interview W the following day. She spent the night at the paternal aunt’s home. Before returning to Ms G’s home, she and the child went to a park where Ms G says the following exchange occurred between her and W:

    …

    52.Whilst [W] was playing she yelled “[Mr C] licks my wee wee.”

    53.I took her away from the other people in the park to explain to her that we only tell certain people about this stuff.

    54.I then said “[W] can you tell [Ms G] anything else that [Mr C] does?”

    55.She said “He licks my wee wee and puts his wee wee on my wee wee.”

    56.I said “When does he do it, is anyone around?”

    57.She said “When mummy’s not home.”

    58.I said “Where does mummy go?”

    59.She said “To the hospital.”

    60.I said “Is anyone else home?”

    61.She said “[V].”

    62.I said “Where is [V]?”

    63.She said “Outside on his bike.”

    64.I said something like “Did it only happen once or more than once?”

    65.[W] didn’t answer.

    66.I said “Does he only do it when mummy’s not home?”

    67.She said “When mummy is sleeping.”

    68.I said something like “What does he do, where does he do it, does it happen at mummy’s old house or mummy’s new house?”

    69.She said “Old and new.”

    70.I said something like “Where in the house does he do it?”

    71.[W] said “My bedroom and next to the couch.”

    72.I asked “What does he say to you?”

    73.[W] said “He says can I lick your wee wee?”

    74.I said “What do you say?”

    75.She said “I say no!”

    76.I said “And what does he say?”

    77.She said “He says yes yes yes.”

    78.I said “Does he say anything else?”

    79.She said “He goes oh oh oh oh.”

    80.I said “Does he do anything else?”

    81.She said “He wees.”

    82.I said something like “Does he take you to the shower or clean you?”

    83.She said “He wipes me.”

    84.I said “With what?”

    85.She said “A baby wipe.”

21. The child was re-interviewed on 26 July 2017 and repeated - “[Mr C] licked my wee wee.” The child demonstrated a clear understanding of the difference between her biological father and Mr C.

22. On … 2017, Mr C was arrested and charged with sexual offences relating to the child, W. The particulars of the alleged offending included that he had licked the child’s vagina (count 1), that he had penetrated the child’s vagina with his penis (count 2), or alternatively that he put his penis on the child’s vagina (count 3). Mr C was released on bail with conditions that he not attend the mother’s home and not have contact with the mother’s then three children. He was later committed to stand trial in the District Court.

23. The charges against Mr C were dropped by the Office of the Director of Public Prosecutions (“DPP”) on 31 August 2018. The reasons given for that decision were that the child would not be a competent witness given the opinions expressed in a psychological assessment of the child by Dr M, the likely inadmissibility of two preliminary complaint witnesses (Ms G and Ms H), and there being no reasonable prospect of the prosecution proving the case beyond reasonable doubt.

24. In his psychological assessment, Dr M relied in part on information provided to him by the mother. He concluded that the child did not have the “capacity to provide the court with an intelligible account of the events” relating to the charges. In particular Dr M opined:

    4.19In summary, [Ms G] can communicate verbally but her pronunciation of particular words can be very difficult to understand. She reportedly has been assessed with severe to extreme speech development delay. I agree with that assessment. She likely has below average intellect and memory capacity compared to her age peers. She does not understand the purpose of a court hearing. She has no concept of what it means to take an oath. She does not understand the need to tell the truth in court at a higher than ordinary standard i.e. that in court she has an obligation to tell the truth that is over and above the ordinary duty to tell the truth. She knows the difference between simple statements that are true and simple statements that are false. She likely understands what it means to tell the truth but does not understand the consequences of not telling the truth. She does not have a developed concept of the passage of time and would have difficulty differentiating events broadly in time. She would not be able to be specific about the days, months, or years when events occurred in her earlier life.

25. I have reviewed the s 93A interviews between police and the child and while the child is difficult to understand at times, the statements suggesting sexual abuse are clear, as the agreed transcript in exhibit 13 demonstrates. The recordings were also played during the trial. The child made the following clear comments during the interview on 25 July 2017:

    Mr C he licked my wee

    Mr C licked my wee wee

    He licked my wee wee

    And he got his wee wee in it. He pushed my wee wee he put his wee wee in mine.

    Licked my wee wee

26. The child demonstrated what was done to her by pointing to between her legs and then to her tongue. She bent down on the ground indicating that is how she was licked between her legs.

27. During the interview on 26 July 2017 the child made the following clear comments:

    Mr C licked my wee wee

    I don’t love him (referring to Mr C)

    Mr C um that my dad licked my wee wee (when asked what Mr C said)

28. During the second interview the child also indicated by shaking her head that she did not feel safe at the mother’s house and immediately after that said “Mr C” and that she did not love him. The child said a number of times that “Mr C” said “My dad licked my wee wee” and when asked “Did daddy lick your wee wee?” the child responded “Mr C”.

29. When the mother was informed of the decision to withdraw the charges against Mr C she said she was happy for the matter to be discontinued and informed the officer from the DPP that the child had never told her that Mr C committed the offence. This evidence is contradicted by the maternal grandmother who said the mother told her the child said it was “daddy” but also “daddy [Mr C]” and Ms N, the kindergarten supervisor who told police the mother told her on 3 August 2017 that W “changed her story many times and was saying that [Mr C] was being accused” The mother also told the DPP officer that the child had told her and her counsellor that it was the child’s biological father who had committed the alleged offence. The mother also said that the child misses Mr C and cries for him.

30. As already noted Ms N was the Director at J Child Care Suburb K on 20 July 2017 when she was contacted by the mother and told that comments suggesting sexual abuse had been made by the child, W. At that time the mother told Ms N it was the father who was accused. Ms N had a general chat to W but she did not say anything of significance. W did not attend day care again until 3 August 2017, when the mother again asked Ms N to speak to the child. Ms N’s statement to police includes the following: [as per original]

    6.[Ms Basler] (sic) then did not return with [W] for over a week- upon her return pm Thursday 3/8/17 she had said that [W] had changed her story many times and was saying that [Mr C] was being accused of being inappropriate with [W] but she knows this is untrue as [Mr C] is never left alone with the children. She asked if I could again see if [W] was ok. Again, I said I would have a chat to her.

    7.I did have a chat to [W] whilst she was in the Kindergarten room engaged in play. I asked her where she had been had she been on a holiday she said no she was with Daddy and Mummy. I asked if she had fun she said ‘yes’, she had a barbie house at Daddy’s and he helped her dress her dolls. I said do you have one at Mummys (sic) house too, she said no I don’t. I asked do you have fun at Mummys (sic)  she replied no. I asked why? She replied Not [Mr C]. I asked why not [Mr C]. She replied ‘Coz he licked my wee’. I said oh, did you tell someone, [W] replied ‘Yes my mum’. I said that was a good choice to make [W]. She smiled and continued to play.

    [emphasis added]

1. The father’s capacity to parent two children with special needs will increase the risk to the children. That risk is likely to be reflected in neglect. While the full extent of the father’s disability is unknown I expect he overstates his abilities and there is no doubt any parent would find the particular disabilities present in V and W a challenge.

2. The ICL suggests that Ms G, the father’s sister, will be able to provide extensive assistance to the father as she has done in the past. While that may be true and, I have no doubt that she loves her niece and nephew and will assist when she can, she is only 24 years of age and is anticipating working full time in the near future. She has in the recent past lived overseas for an extended period. Ms G certainly provides a safety net. The father’s mother presents with her own challenges but I am sure she too will help when she can but she works full time and works shift work.

3. It will be difficult for children to be in the full time care of the father but I really do not have any other choice given my findings about Mr C and the mother’s inability to protect the children from him.

4. The Department offer a program called Family and Child Connect to provide services for vulnerable families. I propose to order the father to make contact with this service and receive assistance as offered.  

What impact will there be for the children if there is a change in their respective primary living arrangements?

1. The mother accepts that V should remain in the father’s primary care.

2. On each occasion that Ms E has observed the children with each parent (5 November 2018, 14 May 2019 and 20 January 2020) she assessed the bonds between the children and each parent and each other to be warm and loving.

3. During the most recent family report interviews the mother said that W continued to run to the father at changeovers and seems happy to spend time with him. Ms E observation of W with the father noted that she appeared relaxed with him. The children transitioned between the parents without any presenting distress. V was also noted to greet the mother warmly and excitedly running to her and hugging her. He was also very excited to see his siblings and seemed particularly fond of the baby, Z.

4. If W leaves her mother’s primary care I have no doubt she will find the transition traumatic. She will not only be leaving her mother but also her three younger siblings and the move will require a change of school. However, I note that W has historically lived in the primary care of the father for at least some period prior to July 2017 and also in a week about arrangement. For about a year from August 2017 W did not see the father or V. She has endured major upheavals in her short life but she has a close and loving relationship with both the father and her brother V. I have no doubt W will miss her younger siblings greatly but if the mother remains in a relationship with Mr C there may well be changes to their living arrangements as well. Whatever happens in the future, all siblings should have ongoing and regular contact.

5. In her most recent family report, Ms E opines:

   59.Ideally, after parental separation sibling groups would live in the same household and spend considerable time between each parent. However, this is not the case for many separated families and the separation of sibling groups does not necessarily predict negative outcomes for children. It seems [V] and [W] have been subject to various parenting arrangements since the parents separation and since 2017 have been separated between two households. It seems that both children love spending time together and miss each other when separated. However, the parents also report that overall the children appear settled in the current living situation and routine.

   60.Positively, the children are currently able to spend significant time together through contact every weekend. It was my impression that both parents support the children remaining in their current parenting arrangements if risk is not an issue in either household. I have reservations about significant changes to both [V] and [W’s] living arrangements, if unnecessary. It seems the children, but particularly [V] had some difficulty adjusting to recent changes in the parenting arrangements, evidenced by their disruptive and aggressive behaviours at school at the end of last year. If either child is subject to significant changes and moved to the care of the other parent, it seems likely to cause some emotional distress at least initially and may present in an increase in behavioural disturbances or regression, particularly for [V], though the extent is unknown. Obviously, if the Court determines significant risk in the care of either parent, then the safety of the child and subsequent impact of the risk outweighs any initial emotional distress of separation. In this situation, it is my suggestion that if either child changes residence that they commence therapeutic counselling with a child psychologist immediately to support their ability to adjust and develop coping strategies. It seems likely that any emotional distress will lessen by ensuring regular and consistent contact between the child and non-resident parent, the sibling group and extended family.

6. The change in W’s primary residence is necessary for her safety and while emotional distress is to be anticipated it is likely she will adapt. I propose to order that the father arrange for W to attend counselling to assist her with the transition.

Should the siblings remain separated?

1. But for my finding that Mr C presents an unacceptable risk of harm and that the mother cannot protect the children, I would leave the current arrangements in place. The children have lived separately for a number of years but I accept Ms E’s opinion that the children nevertheless have a close and loving relationship.  Their relationship could be maintained with regular contact of the type that is currently occurring.

2. My reservation about reuniting the siblings in the father’s care relates to the difficulties the father will face as a parent of two children with special needs.  

Conclusion

1. The dilemma for the Court in deciding what parenting order to make is that whatever order is made the children will be exposed to some risk of harm.  If both children live with the father there is an increased risk of neglect as the father is likely to struggle to parent two children with special needs. If W remains with the mother, there is an unacceptable risk of sexual and/or physical harm from Mr C. The mother cannot be relied on to protect the children from him.

2. Ms E, the family report writer, identified this matter as particularly challenging and complex not only because of the allegations of sexual abuse but also because of the children’s vulnerabilities due to their developmental, intellectual and speech delays. Additionally, she noted the father’s intellectual and speech impairment and the mother’s vulnerable personality and situation, the reported worries by the Department and police about the mother coaching W to implicate the father and her refusal to acknowledge that Mr C is a risk suggests an inability on the mother’s part to protect the children. I agree with Ms E’s observations that this matter is challenging and complex.

3. In her most recent report Ms E repeats her previous recommendation that if the Court determines there is a significant risk to the children in the care of the mother in relation to Mr C, the children should live with the father and spend alternate weekends with the mother, on condition that Mr C is not in attendance. If the Court is not satisfied that the mother will ensure the absence of Mr C then Ms E recommends the mother’s time with the children be limited to day time visits away from her home.

4. Despite my misgivings about the father’s capacity to adequately parent both children, the risk of harm if they remain with the mother is a greater risk which requires W’s removal from the mother.

5. The ICL recommends that the children live with the father and spend overnight time with the mother at the home of the maternal grandmother, Ms U. The recommendation also adopts the recommendation of V’s treating clinical social worker who opined that V’s time should be reduced for a period before gradually increasing. In Ms O’s view, V has demonstrated that he is not coping with the current regime of contact with the mother. She described him as uncharacteristically unresponsive in her most recent sessions with him. Ms E deferred to Ms O on an appropriate regime of time between V and the mother.

6. Rather than day time only, as recommended by Ms E, the ICL recommends overnight time but only if it does not occur at the mother’s home, to reduce the risk of the children coming into contact with Mr C. While I accept the risk may be reduced if the mother does not spend time with the children at her home, I am not persuaded that Ms U’s home is the appropriate venue given her involvement in the initial allegations and the father’s enmity towards her. Ms B is a person in whom both parents have some confidence, although she lives some distance from the mother but closer to the father. I consider that the mother’s overnight time should occur at Ms B’s home, if she is agreeable, and if she is not then the parents will have to agree on an alternative and if they cannot agree Ms B will be requested to nominate an alternative if she is willing. If not, then the mother’s time with the children will be limited to day time only.

7. Despite my findings about Mr C and the mother, it is essential for the children to maintain their relationship with the mother and their siblings.

8. The presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe that a parent has engaged in or exposed the children to family violence. The ICL recommends that the father should have sole parental responsibility. Although the parents have had their difficulties, historically there have been times when they have co-operated as parents and in recent times they have been able to communicate effectively about changes to the arrangements relating to the time the children spend with each of them. Although the father is likely to seek assistance from his mother and sister, I nevertheless consider that it will be of assistance to the children if the mother remains an equal decision maker for major long term issues. I also take into account that both parents urged the Court to make an order for equal shared parental responsibility.

9. The father would not provide his current residential address during the proceedings but provided it on a confidential basis. I was somewhat surprised therefore that the order proposed by him sought that the parents keep each other informed of their residential addresses. The mother agrees to such an order and accordingly it will be made by consent along with a number of ‘special issues’ that were also agreed to by the parents.

10. The Department offer family support to families experiencing vulnerabilities that impact on their ability to safely nurture their children. Although the father will have the assistance of his sister and mother, their assistance will be limited by their employment and other commitments. I propose to order the father to make contact and accept assistance from services available.

Other matters

1. Ms E has raised on a number of occasions during her involvement in this matter the need for the Department to undertake an assessment of the future risk posed by Mr C. Ms E on at least one occasion made a notification to the Department to this effect. In her 2019 report, Ms E said it was “confusing and concerning” that no assessment of the future risk of harm to the children from Mr C has been undertaken by the Department.

   53.  … If the disclosures made by [W] to QPS are true, then she and potentially the other children in the home of the mother are at significant risk of harm in the future if in [Mr C’s] care unsupervised.

2. Of course, a detailed assessment of the risk posed by Mr C has now been undertaken by this Court and it has been found that Mr C poses an unacceptable risk of sexual and physical harm to the children.

3. In my view, that risk is not limited to the children the subject of this hearing but also to the child, X and also Mr C’s own two daughters Y and Z. I urge the Department to take immediate steps to ensure these three children are not put at risk by exposure to Mr C. I also respectfully draw to the Department’s attention that information provided to them by the mother and Mr C should not be accepted unless corroborated by an independent source.  

4. I also draw to the Department’s attention the mother’s wish to have another child with Mr C. I respectfully suggest to the Department that discussions be undertaken with the mother about the risks to her children from Mr C and the advisability of using contraception.

5. I propose to order that a copy of my reasons for judgment be immediately provided to the Department.

I certify that the preceding one-hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 11 March 2020.

Associate: 

Date:  11.03.2020