YAYATHI & LETH

[2015] FamCA 143

FAMILY COURT OF AUSTRALIA

YAYATHI & LETH [2015] FamCA 143

FAMILY LAW – CHILDREN – where final orders were made recently – where the father filed an application for a passport – where the father amended his application to have the children live with him – where there were previous allegations of the father sexually assaulting the child – where final orders made provided the mother with sole parental responsibility for both children – where the father raises new allegations – where the matter is a Magellan matter – where the Department have been requested to intervene in the proceedings – interim parenting orders – where the matter is given expedited hearing dates – best interests of the children.

Family Law Act 1975 (Cth) s 60CC.

Deiter & Deiter [2011] FamCAFC 82
George and George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

Leth & Yayathi [2012] FamCA 1031

Leth & Yayathi [2014] FamCA 4
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Yayathi

RESPONDENT: Ms Leth

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DUC 28 of 2009

DATE DELIVERED: 9 March 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 16 February 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	Ms Hardie
SOLICITOR FOR THE RESPONDENT:	Ms Mason

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Whelan

Orders

1. The father’s application for interim orders is dismissed.

2. Orders 8, 9 and 11 of Orders dated 9 January 2014 are suspended, pending further order.

3. The mother is prohibited from allowing or arranging for B to participate in counselling relating to sexual abuse or alleged sexual abuse.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: DUC 28 of 2009

Mr Yayathi

Applicant

And

Ms Leth

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of two children B, who is almost 12 and C who is 10 have been involved in extremely acrimonious parenting proceedings for many years. In 2012, there was a contested hearing over several days, which resulted in interim orders with a view to rekindling the relationship between the father and B. The attempt at restoring B’s relationship with her father was unsuccessful, and final orders were made in this Court in January 2014.

2. Pursuant to the January 2014 Orders, the parents were to equally share parental responsibility for C and the mother was to have sole parental responsibility for B. Both of the children were to live with the mother and B was to spend time with her father solely at the discretion of the mother. C was to spend defined time with his father, including alternate weekends during term time and half of each school holiday period.

3. At the time of the hearing resulting in the January 2014 orders, B had been estranged from her father for some time. This estrangement arose from events surrounding an allegation made in September 2010 that the father had sexually assaulted B when she was seven.  In the trial judge’s  Reasons for the January 2014 orders His Honour found that the father had not sexually assaulted B. However, it appeared that B was convinced that such an assault had occurred.

4. In June 2014 the father filed an Initiating Application seeking orders permitting him  to obtain a passport for C and to travel to Country LL with C.

5. In September 2014 C was not made available to his father in accordance with the orders on Father’s Day and for the father’s wedding. Complaints were subsequently made to police by the mother of alleged violence by the father and his wife towards C and further complaints were made by B concerning the historical sexual assault.

6. The father then amended his application to seek sole parental responsibility for both children, and orders that they both live with him and spend supervised time with their mother. In February 2015 a Magellan report was released and the application for final orders was allocated expedited hearing dates in May 2015.

7. This application made by the father, which is opposed by the mother, is for interim orders in the same terms as the final orders he seeks, together with a request to the Department of Family and Community Services (“the Department”) to intervene in the proceedings. The order seeking the intervention of the Department has previously been made. These are the Reasons for that order and my decision with respect to the father’s interim application.

8. The question for me to determine is whether the interim orders sought by the father are in the best interests of the children.

Background

1. Both of the parents were born in 1978 and are currently aged 36. They began living together in early 2002 and married in 2004.

2. B was born in 2003 and C was born in 2004.

3. In April 2008, there was an incident where the father violently assaulted the mother.

4. The parents separated in June 2008 when B was five and C was four.

5. In July 2008, the mother commenced a relationship with Mr N and in August 2009, the mother had a child, Q, whose father is Mr N.

6. In September 2009, the father began living with Ms O, who he subsequently married.

7. In September 2009 final parenting orders were made in the Federal Magistrates Court (as it then was) providing for the parents to have equal shared parental responsibility for the children who were to live with the mother and spend alternate weekends, school holiday time and other time with the father.

8. The mother and father divorced in late 2009.

9. The children did not spend time with the father in accordance with the parenting orders and each parent blamed the other for this happening. The father did not contact the children by telephone in accordance with the September 2009 orders for a period of seven months. Both parents failed to cooperate in relation to the arrangements for the children to spend time with their father. The mother had moved with the children to G Town in the January 2007, a distance of 45 km further away from the father.

10. Difficulties between the parents in relation to the parenting orders continued to be experienced throughout 2010 and although the children spent some time with their father, this time was not often in accordance with the orders.

11. On 1 September 2010 the mother alleged that B told her that the father washes her “down there”, that she keeps telling him to stop and that the father told her not to tell the mother. The mother took B to a police station to report the allegation. B was interviewed by the JIRT team (Joint Investigation Response Team, a Joint team between the Department of Family and Community Services and NSW Police) on 3 September 2010 but no finding was made in relation to the allegation.

12. The children spent time with their father between 3 and 5 September 2010.

13. On 6 September 2010, the mother alleges that B told her “daddy didn’t wash me this weekend but he used to wash me and put his finger in and out of my hole and it hurt”. The mother telephoned the JIRT officer and reported the further allegation. The mother said B told her she did not want to see her father or anybody from H Town (where the father’s family reside) again.

14. On 8 September 2010 the mother had a conversation with a JIRT officer and requested that B be interviewed again. The JIRT officer suggested that B attend sexual assault counselling but advised she could not be interviewed, unless she made a disclosure to JIRT officers.

15. On 24 September 2010 the mother took B to a sexual assault counsellor and the counsellor made a mandatory report to the Department of Community Services.

16. In November 2010 the father filed a contravention application in relation to an incident relating to his time with the children in March 2010. The mother filed an application for final orders seeking that the father spend no time with either child.

17. On 13 December 2010 the September 2009 orders were suspended, all therapy/counselling for B was suspended and an Independent Children’s Lawyer was appointed. Orders were made for the children to live with their mother and for C only to have communication with his father.

18. On 21 March 2011 orders were made by consent for the father to spend time with C for two hours per fortnight at a Contact Centre. C commenced spending time with his father on 8 May 2011, but only monthly visits could be accommodated by the Contact Centre thereafter.

19. In May 2011, the parties were interviewed by the single expert, Dr J and his report was released in August 2011.

20. On 26 August 2011 further parenting orders were made by consent, increasing the time that C was to spend with his father to periods of six hours on alternate Sundays, increasing to alternate weekends and block holiday time. Orders were also made for the attendance of B upon a psychologist and a notation was made that sexual assault counselling be discontinued. Notwithstanding the notation made by the Court, the mother continued to take B to the sexual assault counsellor.

21. C continued to spend time with his father in accordance with the orders, though the mother says that in November 2011 C told her he did not want to go to H Town and was sick of travelling.

22. The trial of the mother’s parenting application was heard before Loughnan J in Parramatta for two days in February and four days in May 2012. A judgment with respect to interim parenting orders was delivered on 15 June 2012 (Leth & Yayathi [2012] FamCA 1031). In the course of that judgement it was noted at [96] that it was no longer the mother’s case that the court could find that the father abused B or that there is an unacceptable risk to B from the father. His Honour also said [at 102] that the mother sought an order for C to continue to spend unsupervised time with the father and sought that B be reintroduced to the father in a program that would lead to unsupervised and overnight time. Reference was made in the judgment to the opinion of Dr J who was particularly concerned about the long-term likely effect of B not having a relationship with her father being that she would grow up with a distorted belief about fathers and men which would impact negatively upon her ability to perform and enjoy relationships in the future.

23. Loughnan J dealt with the matter by making interim orders, including providing for extensive arrangements for B to be supported during a re-introduction to her father. The matter was adjourned for mention to 31 October 2012.

24. The process for B to be reintroduced to her father as proposed in the interim orders was not successful. At the mention in October 2012 further orders were made for the preparation of a Family Report.

25. Interviews with the Family Consultant for the purposes of the Family Report were held in April 2013. In April 2013, the mother also said that C told her that his father gets into bed with him with no clothes on, which the mother reported to the Community Services.

26. There were a number of further allegations and reports to various agencies including the police throughout May, June and October 2013 in relation to C spending time with his father. On occasions the mother did not make C available to the father.

27. The parenting hearing resumed for a further three days in November and December 2013. At the resumed hearing, the mother sought orders that the children live with her, that C only spend time with his father and that she have sole parental responsibility for B. The mother changed her position taken in the earlier phase of the hearing and contended at the resumed hearing that the father had sexually assaulted B. The father contended in the second phase that the mother presented an unacceptable risk of psychological harm to the children and sought orders that the children live with him and that for a period of six months they spend no time with the mother and that he have sole parental responsibility for both of them. The Independent Children’s Lawyer supported the father’s application.

28. The trial judge made final orders and delivered his Reasons for Judgment on 9 January 2014. The orders made were substantially in terms of the mother’s application. Each of the children were to live with their mother and she had sole parental responsibility for B. Any time that B was to spend with the father was to be at the sole discretion of the mother, but C was to spend designated time with his father, including alternate weekends during school term and half the school holidays.

29. In his Reasons for Judgment delivered in January 2014 Loughnan J (Leth & Yayathi [2014] FamCA 4) said the following in respect of the orders he made regarding the living arrangements for the children at [147] – [151]:

    147.Since the June 2012 interim orders, the proposals of the parties have become polarised. The father’s proposal is consistent with his primary application throughout the proceedings and is understandable. He has become estranged from his daughter when he knows there is no truth in the stated reason for that estrangement. He believes that the mother has played a part in that situation. He believes and [Ms D] agrees, that his relationship with [B] is unlikely to be restored unless [B] is removed from the mother’s influence. Although it has not occurred to date, the father is very worried that the same fate could befall his relationship with [C]. I share those concerns.

    148.Therefore a change of residence for both children and their isolation from the mother for a period is a logical proposal. The problem is that it might not work and significant trauma will be occasioned to [B], if not [C], in the attempt.

    149.The measured attempt to reintroduce [B] to the father through [Ms D], the ICL and [Mr E] had to be abandoned because it was too traumatic for [B]. The more draconian approach proposed by the father and canvassed by [Ms D] was rejected by [Dr J]. Among other things he said it would place [B] “in a no win situation”. [Dr J] was not challenged about his opinion. [Ms D] did not express any confidence that the father’s proposal would safely achieve a restoration of the father’s relationship with [B]. [Ms D] expressed concern about the impact on the children if the proposal failed.

    150.Whether the aim of restoring [B’s] relationship with her father was achieved or not, it would come at a considerable cost. In addition to entirely severing her contact with her primary attachment figure for 6 months and restricting it thereafter, the father’s proposal would have [B] substantially if not entirely removed from her brother, [Q], her school, her sporting activities, her friends and [Mr N].

    151.In relation to [C], there is no evidence that the proposed orders (including the option of him alone moving to live with the father) will improve things for him. They would involve separating [C] from his mother, [Mr N], his brother, [Q], his school, and his friends. For the reasons given above, on the father and the ICL’s alternate proposal, he would also be separated from [B]. The risks associated with a change of primary residence are not as great for [C] as, unlike [B], he has consistently expressed a desire to spend more time with his father. However he has been observed to have a loving relationship with his mother and has not expressed a wish to be separated from her.

30. Later at [154] His Honour summarised his findings, which included the following:

    ·The mother is unwilling and unable to facilitate and encourage a continuing relationship between B and the father. The father may be better able to support the relationship between B and C and their mother. It is not clear whether the mother is able to support the relationship between C and his father.

    ·Importantly, it is not clear that B’s relationship with her father can be restored by removing her from her mother’s household and the cost of trying is too high.

    ·The parents are capable of providing for the general needs of the children. There remains a doubt about the mother’s capacity to support the psychological health of the children, because of her attitude to the father.

31. His Honour concluded at [155]:

    155.In my view [B] will be disadvantaged by the orders proposed by the mother but a significant risk of greater harm would come with the proposals of the father and the ICL. I will make orders in the form sought by the mother.

32. As noted earlier in these Reasons, the father commenced these proceedings, by filing an Initiating Application in June 2014 seeking orders in relation to the issue of a passport and permission to travel to Country LL with C. The parenting orders with respect to C’s time with his father had generally been complied with, up until this time.

33. In June 2014 the court made an order that a Magellan report be prepared in relation to the children.

34. C last saw his father in late August 2014.

35. On 2 September 2014 the mother contacted police in relation to further information that B was said to have provided in relation to the alleged sexual assault incident in 2010.

36. On 5 September 2014 the mother cancelled C’s time with his father for the upcoming Father’s Day weekend, on the basis that C was “sick with Gastro and to (sic) unwell to travel anywhere”. The mother says that C has been refusing to speak to his father on the phone, since this time.

37. On 11 September 2014 the mother attended G Town police station with C and made a statement alleging that the father’s wife Ms O had held a knife to C’ throat and stomach. The father was unaware of this report to police at the time.

38. On Saturday 13 September 2014 the father and his partner held a celebration for their marriage, and it was proposed that C would play a part. On Friday 12 September 2014 the father sought the mother’s confirmation that she would be making C available to him but he did not receive a response to his text message.

39. B was interviewed by JIRT on 18 September and C was interviewed by JIRT on 26 September 2014 in relation to their respective allegations. Police declined to take any action, including making application for AVOs as a result of these allegations.

40. On 13 October 2014 the father filed an Amended Initiating Application seeking interim and final orders that he have sole parental responsibility for both children, that they live with him and that the mother spend supervised time with them.

41. On 24 October 2014 C was taken by his mother to the child and adolescent mental health service in G Town and presented with severe anxiety, suicidal and homicidal ideation in relation to an upcoming visit with his father scheduled for 24 to 26 October. C stated to health professionals that he would kill himself or his father and stepmother should he be required to attend the visit.

42. On 25 October 2014 C spent some time with his paternal grandmother for his birthday by arrangement with the mother.

43. Each of the parties has filed a Notice of Child Abuse, Family Violence or Risk of Family Violence in relation to the conduct of the other parent.

44. On 12 February 2015 the Magellan report in relation to the children was released.

The application

1. In summary, it is the father’s contention that since January 2014 and particularly since June 2014 when he sought to reopen the parenting proceedings (albeit initially on a limited basis only) the longstanding unacceptable risk associated with the children living with the mother has escalated to a point that is neither manageable or acceptable for the children if they are to remain living in the care of the mother. It is the father’s case that the mother has placed the children at significant risk of harm by both psychologically and sexually abusing them. So far as the sexual abuse is concerned the father notes that he has had no contact with B since September 2010 but her disclosures have changed from an allegation of an inappropriate touch during the course of a shower to repeated vaginal penetration twice a day on each occasion that she spent time with her father. The only possible scenarios for B’s new allegations he contends are that B has been sexually abused while in the mother’s care or that she has been subjected to sexually inappropriate material that has caused her to take on the false belief that she has been sexually assaulted by her father.

1. So far as psychological harm is concerned, the father refers to the extensive history of the mother making reports to the Department of Community Services, JIRT and the police all of which have led to no further action being taken. They have however, the father contends, had the cumulative effect over time of placing the children at significant psychological harm.

2. It is the father’s contention that the only way to stop this cycle for the children is for them to be immediately removed from the mother.

3. The father places particular weight upon the deterioration of the relationship between himself and the children over time. He relies upon the first Family Report in 2009 which is very positive in terms of the children’s relationship with him. During the original investigation of the 2010 allegations, B said she liked her father, had no fears of him and was happy to go and visit him, whereas in the recent JIRT interview she emphatically states that she hates her father. The father contends that concerns about the mother and her relationship with the children and her efforts to demonise the father to have her own needs met has escalated over time. His current concern and motivation for seeking interim orders is because he fears that the process of demonisation and alienation of B that has destroyed his relationship with her is also happening to C currently. It is the father’s position that if C is not removed now then the mother will escalate her abuse and by the time the matter is finally heard the position will be the same as in the last proceedings.

4. It is the mother’s contention that each of the children should be considered separately.

5. So far as C is concerned, the mother contends that the father’s position arises from matters which are in dispute and have not yet been the subject of cross-examination and expert opinion. The mother attaches significant weight to the current counselling records which indicate that C is in a state of great anxiety and that anxiety is related to his father. So far as B is concerned, it is contended by the mother that B is now able to speak more freely about her earlier abuse and that the disclosures she has made since the judgment in January 2014 will need to be considered in the final proceedings. In the meantime B’s very extreme opposition with her father as noted by the trial judge and Dr J has not lessened over time.

6. The Independent Children’s Lawyer does not support the father’s application for interim orders. The Independent Children’s Lawyer submits that the Court today is faced with the same dilemma that the trial judge faced when making orders in January 2014, but the court today does not have the assistance of any expert evidence relating to the current circumstances. The Independent Children’s Lawyer contends that the father’s case may very well be proven in time with the assistance of a psychiatrist’s report but to change the children’s residence today for a period of eight weeks for it to be possibly changed again is simply too destabilising for them.

7. The Independent Children’s Lawyer agreed with submissions put on behalf of the mother, that given C’s current state of great anxiety, the impact upon him of a change in circumstances could be very significant. Such a change he submitted ought only be made with the benefit of the opinion of the child and family psychiatrist.

Discussion

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1]. Goode sets a framework for the conduct of interim proceedings which includes identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts.

   [1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. In addition to the uncontested facts, in accordance with the decision of SS & AH[2], the Court may have some regard to the matters in dispute.  In that case, their Honours said at [100]:

   Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

   [2] [2010] FamCAFC 13

3. The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George and George[3], a decision of the Full Court citing Deiter & Deiter[4].

   [3] [2013] FamCAFC 182

   [4] [2011] FamCAFC 82

4. In Deiter the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said at [61]:

   … 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.

5. In this matter there are two particularly serious allegations about harmful events, the likelihood of which must be considered by a court. First, it is now being asserted by B that in around 2010 she was sexually assaulted by being digitally penetrated by her father in the shower on every occasion that she spent time with her father. Given the finding of Loughnan J in January 2014, the nature of the complaint, and all of the circumstances including the effluxion of time in which the father has had no contact with the child, it is unlikely, in my view, that these events will be found to have occurred, notwithstanding that it is likely that the child herself believes they occurred.

6. The second allegation relates to C claiming that the father’s wife, Ms O, had held a knife to his throat and stomach, apparently first reported to B. Given all of the circumstances in which this allegation has been made and the inherently incredible nature of the claim, in my view it is also unlikely that these events will be found to have occurred. However, it seems that there is no doubt that C is currently in a highly anxious state and that his anxiety relates to seeing his father. In his case, it may also be that he believes that the events have occurred.

7. In addition to considering the matters set out in Goode and having some regard to the matters in dispute, in Dieter, the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. In this case, a final hearing of the matter has been fixed for five days commencing on 11 May, a period of eight weeks from the date of this decision. In my view, while there may be some disadvantages that may need to be endured, this is not a particularly lengthy period of time.

8. In general terms I accept the submission of the Independent Children’s Lawyer that the court is currently a similar position to that faced by Loughnan J in January 2014, but has less information available to it.

Section 60CC Considerations – what order is in the best interests of the children?

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), are:

   a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and

   b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. Section 60CC(2A) provides that in applying these considerations, the Court is to give greater weight to the considerations set out in subsection (2)(b).

3. This interim application relates in particular to the primary consideration of the children receiving the benefit of having a meaningful relationship with both of their parents. Under the father’s proposal, for a period of eight weeks, the children would not receive the benefit of a meaningful relationship with their mother according to the meaning given in the authorities[5] to that expression, for a period of eight weeks. Under the proposal of the mother and Independent Children’s Lawyer, C only would have limited supervised contact at contact centre with his father. Neither of the children would receive the benefit of having a meaningful relationship with the father under this proposal.

   [5] Mazorski & Albright (2007) Fam LR 518;  McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92.

4. Each of the parent’s contends that the children need to be protected from harm by being subjected to abuse in the other parent’s home. Each rely upon factual matters relating to whether the children are being abused in the other parent’s home which are in dispute.

5. Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case, and I will refer to those which are relevant.

6. It appears that each of the children are expressing a view that they do not wish to have contact with their father. However in considering the factors underlying their views, I take into account C’s current extreme emotional distress which is not in dispute. I also give some consideration to the assessment in the Magellan report that it is believed by Community Services “that the mother has essentially coached the children to make the various disclosures in an effort to cease all contact between the children and the father”. However, once again I understand that the suggestion that the mother has coached the children will be a highly contested matter.

7. The nature of the relationship between the children and each of the parents is a matter upon which I do not have current expert opinion though there is no dispute that the mother has been primarily responsible for their care since mid 2008.

8. In my view a critical issue in this application is the likely effect of any change in the children’s circumstances including the likely effect of separation from their mother. In my opinion, despite the likelihood that the current allegations will be found to be unfounded, given their current levels of distress, a significant risk of greater harm will come about if the children are moved to reside with their father at this stage.

9. The capacity of each parent to provide for the children’s needs is also critical to the outcome of this matter and there is currently no expert advice available.

10. Issues relating to the responsibilities of parenthood such as the mother’s compliance with the court orders are also a matter of significant dispute and in the circumstances it is not possible to meaningfully apply this consideration to the undisputed facts.

11. The issue of family violence and in particular the allegations made against the father and stepmother are another matter of significant dispute which is unable to be resolved in these proceedings.

12. It is the father’s position that if the court does not make the orders he seeks transferring the children into his care, he does not seek that any order for contact between the children and himself in the interim as it would place the children in an untenable position. If the interim orders are not made as he seeks, there is little likelihood of the institution of further proceedings, such as contravention applications. The orders as sought by the mother and Independent Children’s Lawyer are for C to spend some supervised time with his father. Given the history of the matter it is likely, in my view, that if these orders were made further complaints will be made by C against his father and the mother is likely to institute further proceedings such as making an application for an AVO and it may also result in contravention proceedings. The children have been exposed to and harmed by the significant and ongoing conflict between the parents and in my view will continue to harmed for as long as the conflict continues. Providing for no contact with the children and their father during the interim is likely to reduce this conflict, which will be of benefit to the children.

13. In this matter, the court is placed in a very similar position to that of the trial judge in the previous proceedings. The father alleges that the children are at risk of grave psychological harm in the mother’s household and the mother alleges a risk of physical and sexual harm in the father’s household. A final determination can only be made when the underlying factual disputes are resolved. In the interim, it appears to be on the limited undisputed facts that the cost of moving the children now, possibly only to be moved again is too high, given C’s high state of anxiety and B’s fixed view of her father.

14. For these reasons in my view, it is not in the best interests of the children for the court to make the interim orders as sought by the father and his application is dismissed. For the reasons given, I also suspend the current orders relating to the time C is to spend with his father. As concerns about the children have been raised over a number of years about risk factors in both parents home, I have invited the Department of Community Services to intervene in these proceedings. Finally, as there seems to be no possible benefit in B continuing to receive counselling dealing in any way with alleged sexual abuse in light of the findings of Loughnan J, I will order and injunction against such counselling being providing to B.

I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 March 2015.

Legal Associate:  

Date:  6 March 2015.