Goode v Goode

(7) That these Orders authorise the family consultant to speak to and have access to any relevant materials from the Department of Child Protection or South Australian police in respect of notifications made in relation to the children.

(8) That the family consultant has leave to inspect the Court file and all documents produced pursuant to subpoena, provided that those documents have been released for inspection.

(9) That the substantive Application is listed for trial in the Federal Circuit Court at Adelaide on a date and time to be advised (noting a time estimate of 2 days).

(10) That the parties make file and serve all affidavit material upon which they intend to rely not later than 14 days prior to the trial date and unless the Court otherwise grants leave, the parties are to each rely upon only one trial affidavit and only one affidavit from each witness.

(11) That the party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

(12) That within 7 working days prior to the trial the solicitor for the parties each file and serve a document setting out:

• (a) the orders being sought
• (b) a list of documents to be relied upon; and
• (c) a brief summary of argument.

IT IS NOTED that publication of this judgment under the pseudonym Barros & Mackay is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

1. These are proceedings in respect of the parties' two children, [X] born 2010 (aged eight years) and [Y] born 12 (aged 6 years).
2. The applicant in this interim application is the father, Mr Mackay. He asks for an order that the time for [X] and [Y] with the mother be supervised at a Contact Centre.
3. The mother, Ms Barros, asks for an interim order whereby the force and effect of final orders made by consent on 11 September 2014 in respect of [X] and [Y] be reinstated and providing that the children live in a fortnightly regime between the parties and with the father from 4.00 p.m. Friday until 4.00 p.m. Monday in each second week and 5.00 p.m. Sunday until 4.00 p.m. Wednesday in the off week being six nights per fortnight and the other eight nights per fortnight with the mother.

1. The parents commenced a relationship in 2004. They were married 2009. Separation occurred on 7 July 2013.
2. The father retained the children on or about 31 October 2018. He asserted that [Y] had returned from the mother's home alleging that the mother's partner, Mr A, had punched him to the face and [X] also alleging that Mr A had scratched his face.
3. A comprehensive forensic psychosocial assessment report was prepared by Child Protection services. In that report, [Y] also alleged that he was burnt to the buttocks by Mr A some months prior to the alleged assault. Both boys asserted to the interviewer that they had been urged by their mother and Mr A to lie to their father about the alleged assaults.
4. Whilst the report noted and acknowledged a history of acrimony between the parents and a propensity for notifications to the child protection department, the tone of the report is suggestive of some empirical veracity to the boys' allegations.
5. It was also noted that South Australia police were a part of the interview and that Mr A had been charged with assault.
6. At the conclusion of that report of 13 December 2018 are the following recommendations:
   • Mr A should have no further contact with [X] and [Y] and the well-being of his other children should be assessed and monitored. (Mr A and Ms Barros are the parents of two younger children);
   • Should this matter be heard in the Family Court, Ms Barros should be referred for a comprehensive parenting assessment, which explores her protective capacity, ability to understand her children's experiences and the impact of the physical abuse on the children;
   • Should the matter be heard in the Family Court, and should the Court see fit, the clinician would recommend Ms Barros undergoing a mental health assessment, given that during the assessment Mr Mackay made allegations in relation to a history of mental health issues, non-compliance with medication and possible drug use which would potentially have a detrimental impact on her parenting capacity;
   • Referrals have been made for therapeutic services for the children and consideration should be given to the appropriateness of engaging Ms Barros in this process to assist her to understand her level of responsibility for the children's experiences, the associated impact of trauma, and respond appropriately to her children's physical and emotional needs.
7. The mother denied that the children were assaulted as alleged or at all.
8. The mother argued then, and continues to argue, that Mr Mackay has entered into a course of deliberate and false manipulation of the children towards alienating [Y] and [X] from her and to obtain orders whereby the children live primarily with him. She asserts that the father has made previous but unsubstantiated notifications to the protective authority. She says that the father has a history of controlling and harassing behaviour towards her. She provided alternative and plausible explanations in respect of [Y]'s injury being that it was an accidental play injury incurred whilst on a trampoline.
9. The matter came before my colleague Judge Kelly for interim hearing on 18 December 2018. I do not have the benefit of her Honour's reasons. I assume, however, that her Honour was appraised of the above factual history and had the benefit of the report from Child Protection of 13 December 2018. Her Honour made the following orders:
   • 1. The existing parenting Orders are suspended.
   • 2. The children [X] born ... 2010 and [Y] born ... 2012 live with the father.
   • 3. The children spend time with the mother during the school holidays as follows:

(a) from 12.00noon until 6.00pm each Wednesday and Saturday, commencing Wednesday 19 December 2018;

(b) on Christmas Day 2018 from 12.00noon until 6.00pm;

WITH all such time to be supervised by either the paternal grandparents or the maternal aunt and uncle Mr D Barros and Ms C Barros.

4. By consent the mother is restrained from bringing the children into contact with Mr A and from allowing or facilitating any communication between Mr A with the children.

5. The father is permitted to travel with the children [X] and [Y] from 26 December 2018 until 7 January 2019.

6. The father facilitate the children communicating with the mother by Skype at 10.00am (AEST) on 29 December 2018 and 5 January 2019.

7. The children spend additional make up periods of time in the mother's care from 12.00noon until 6.00pm on Monday 14 January and Monday 21 January 2019 and on the same terms and conditions.

8. Both parties are restrained from discussing any issues raised in these proceedings with the children and from allowing any other person to do so (save and except any police, child protection or family assessment process).

9. The mother undertake a psychiatric evaluation with Dr B or such other similarly qualified psychiatrist and endeavour to have that assessment completed by 25 January 2019.

10. Liberty to the parties to file updating Affidavits not exceeding six pages in length and to be filed and served no later than 1 March 2019.

11. The matter is adjourned to 13 March 2019 at 9.30am (allowing ½ hour) for further interim consideration.

13. Since the making of the those orders, the following has occurred:

(a) The father has brought a further Application in a Case asking for an order that the children's time with the mother be supervised at a formal contact centre. He has alleged that the children assert Mr A to be present at each of the three visits with the mother ordered by her Honour and that the mother, Mr A, the maternal grandparents and aunt have all communicated with the children by way of Xbox or internet pressuring the children to retract their allegations and hence to lie to the father. He says that the children were left unsupervised in the presence of Mr A. He says that during visits to the mother the children were separated for the purpose of questioning, manipulating and pressuring them to change their evidence. He says that the maternal grandparents are complicit in these breaches of Court order. He says that the children report being threatened to retract their allegations under threat of 'Mr A has a gun and he will kill your father and kill you.';

(b) South Australia police have elected not to proceed in prosecution of Mr A in respect of the matters then before her Honour and such charges have or are soon to be dropped; and

(c) The mother has obtained a psychiatric report annexed to an affidavit of her solicitor, Stephen Gibbons, of 22 January 2019 being a psychiatric assessment from Dr B dated 11 January 2019. Dr B reports no history of psychiatric illness and whilst noting that 'mental illness is not a pre-requisite for abusing children', he observes:

I did not see obvious signs of mental illness in the mother. This includes a personality disorder. There was some mild dependency and unassertive features in relationships present, but not sufficient to be described as disorder. Her capacity to arrange this assessment did not show features of unassertiveness.

.... To be clear, my opinion is that the mother does not show signs of mental illness or personality disorder. She reported a long history of difficulty relating with the father in this matter and her presentation appeared consistent with that history. Whilst her presentation was not consistent with the father's affidavit, that does not mean that the father's affidavit is wrong, because abuse of children can occur in situations in which the abuser does not have a mental illness or personality disorder.

• (d) Mr A affirmed an affidavit of 20 February 2019 in which he denies that he was present at any time spent by the children with the mother in December pursuant to her Honours orders. He provides alibi evidence by way of his workplace timecard for the relevant dates of Wednesday 19 December and Saturday 22 December 2019. He also provides an affidavit (annexed to his own affidavit) of a friend, Mr C, asserting that Mr A was with Mr C from 5:25 p.m. until 7 p.m. on the 22 December 2018. Mr A further asserts that he has eftpos records to verify that he was not with the children at any time on 19 December, 22 December or 25 December 2018. Mr A denies communicating with the children over the Internet or through the use of computer games;

• (e) The maternal grandmother, Ms J Barros, provided an affidavit sworn 20 February 2019. She denies that the children were separated from each other during visits to the mother. She denies that the children were left unsupervised during any of the three visits. She denies that Mr A was present at any of the three visits. She says that she and her husband are in their 60s and do not understand or use online games;

• (f) The mother, Ms Barros, affirmed an affidavit of 20 February 2019. She denies that Mr A was present at any of the relevant times. She denies communicating with the children by Internet or computer games. She denies that she was left with the children or either of them unsupervised on the relevant days. She offers a statement (not a sworn affidavit) of her sister, Ms D, who corroborates the mother's evidence and denies that she and her husband were also involved in communicating with the children by Xbox or PlayStation as alleged by the boys;

• (g) A further forensic psychosocial assessment report was prepared in respect of the later allegations and that report is dated 15 February 2019. The children were gain interviewed as were the parents. The children gave lengthy, at times detailed, and at times convoluted accounts of the allegations in respect of December time with their mother and as to being contacted by Internet/Xbox from their mother, Mr A and various other family members. At page 23 the reporter summarises the interviews with the [Y] and [X]:

[X] and [Y] were interviewed individually to explore these concerns and during the forensic interviews, [X] and [Y] appeared comfortable talking to the clinician and provided accounts of their experiences which were mainly consistent with what was reported by Mr Mackay to SAPOL and the clinicians, in relation to the children being contacted online by Mr A, and Mr A being present during visits with their mother....

Based on information provided by [X] during his interview, in relation to concerns that Mr A had been present at his contact visits with his mother, it was not possible to be certain that this had occurred. This uncertainty was due to [X] only being able to report that he had thought Mr A was hiding in his mother's bedroom based on seeing a foot and a hand in a wardrobe during one contact visit and that Mr A may have been in his car outside during another contact visit. However, [X] had stated that he believed Mr A to have been present and as such this cannot be completely discounted.... Regarding concerns about [X] being contacted online by Mr A, [X] provided an account of being spoken to by Mr A and Ms Barros, being threatened that he and his father would be killed, and was asked to lie to the CPS clinician. It was of concern that [X] reported that he had been instructed by his mother to report that Mr A had not hurt the children and that Mr Mackay was a liar. [X]'s account in relation to these concerns remained fairly consistent throughout his interview. Given this, the clinician held the view that this may have been possible and could not be completely discounted...

Further, [Y] provided idiosyncratic detail, including that his father had sworn and said that the children could go back to their mother, and that his father, [X] and himself had all said 'sorry' in the morning, in relation to his father's reaction when he discovered the communication by Ms Barros and Mr A.

[Y]'s account of online communication by Mr A was somewhat consistent with the accounts that had been provided by Mr Mackay and [X]. [Y] stated that Ms Barros, Mr A, his grandparents, aunt and her husband had been online when communication with [X] occurred via the Xbox game and he provided an account of Mr A having told [X] that he had a gun and would kill Mr Mackay. Further, [Y] commented on the fact that [X] had been worrying about this threat. Throughout [Y]'s account of what he and his brother, [X] had experienced, considerable contextual information about who, where, when and how the experiences happened was provided...

Overall, [Y]'s account was rich in information and included positive and negative experiences of contact with his mother, father, maternal and paternal family members suggesting that he was comfortable talking with the clinician and able to openly discuss all aspects of his life. Further, on multiple occasions both [X] and [Y] were inclined to correct the clinician when a mistake was made or clarification was sought...

[Y] and [X] provided a considerable volume of information about who, what, where, when and how the alleged contact and online communication had occurred. Further, much of [X]'s and [Y]'s account was spontaneous and provided in a narrative form, the accounts did not have a structured quality, the accounts were described from a child's perspective, and the accounts were mainly provided using age-appropriate speech and language. The accounts included emotional experiences and some idiosyncratic detail...

Generally, the accounts of [X] and [Y] were consistent when the clinician sought clarification; however, some exceptions were identified. Two inconsistencies were identified within [Y]'s account and one related to [Y] having stated that Mr A had been present during contact on all three occasions but then provided information towards the end of his interview that on one occasion of contact Mr A had been at work. Another inconsistency related to [Y] stating that he had not personally communicated with Mr A online but towards the end of his account he stated that Mr A had communicated with him on one occasion...

Further, some inconsistencies between [X] and [Y]'s accounts were noted. These included [X] stating that he thought Mr A had been present at Ms Barros's home during contact visits on two occasions while [Y] stated Mr A had been present at all three visits. [X] stated that he had seen a hand and foot in his mother's bedroom which he thought to be Mr A hiding in the cupboard and on another occasion Mr A in his car, while [Y] provided considerable detail about the interaction with Mr A which took place during these visits. The context of this interaction suggested that they had played together, but [Y]'s account suggested that it was not enjoyable....

While there was no direct evidence of coaching by Mr Mackay, the accounts of both children and information provided by Mr Mackay, suggested that Mr Mackay had shared considerable information with the children and presented in a highly emotional manner when dealing with situations... Mr Mackay became angry and accused the children of lying in relation to the alleged online communication by the Xbox game. Of interest was the fact that both [Y] and [X] corrected the clinician in relation to the contact with Mr A, Ms Barros and other family members by expressing adamantly that Mr A, Ms Barros and other family members had spoken to [X], not that [X] had spoken to them...

A further concern was Mr Mackay's questioning and videotaping the children repeating statements that were reportedly disclosed to him which was contrary to all CPS and SAPOL guidance... Therefore it is not possible to discount the possibility that [X] and [Y] experienced some influence from Mr Mackay. Nevertheless, Mr Mackay maintained that he was genuinely concerned about the children's physical and psychological well-being and that his goal was to be protective of them...

It is the opinion of the clinician that [X] and [Y] have been placed in an extremely difficult position which is beyond their delicate developmental capacities to manage and which is consequently affecting their psychological well-being.

1. The reporter makes the following recommendations at the end of the report of 15 February 2019:
   • Until the outcome of the SAPOL and prosecution process in relation to the existing charges against Mr A is complete, [Y] and [X] should have no contact with Mr A.
   • As this matter has been heard in the Family Court, Mr Mackay and Ms Barros should be referred to a comprehensive parenting assessment, which explores their protective capacity, ability to understand their children's experiences and emotional needs and the impact of the psychological harm on the children stop.
   • The Family Court determine the appropriateness of supervised or unsupervised contact between Ms Barros and [Y] and [X] until a parenting assessment is complete and protective capacity can be determined.
   • The children continue to receive therapeutic support to address the impact of their experiences and the psychological effects associated with the events of the last five months.
   • Therapeutic services for the children have commenced and consideration should be given to the appropriateness of engaging Ms Barros in this process to assist her to understand the associated impact of trauma and respond appropriately to her children's physical and psychological needs.
2. The Court now has the benefit of an Independent Children's Lawyer. Mr Croft has met the children. In his submissions to the Court, Mr Croft emphasised the difficulty confronting Courts at interim hearings and the complexity of this matter. Mr Croft noted that a contact centre would not be available for some four months or, as Counsel for the mother put it, "sixteen to eighteen weeks".
3. Mr Croft did submit, however, that he openly 'found the affidavits of the mother and her witnesses of 20 February 2019 and the fact that the police were not prosecuting Mr A to be 'compelling'.
4. Mr Croft alerted to the Court to the final paragraph of the text of the Child Protection report of 15 September 2019 as follows:
   • The content of some of the information provided by Mr Mackay and Ms Barros demonstrated that there had been a history of acrimony between the parents and that this acrimony had escalated to extreme levels. It was the clinician's view that the children had an awareness of this and their distressed behaviours could be explained by it. Urgent attention to the negative psychological impact of this acrimony on the children is required to be addressed by Mr Mackay and Ms Barros.
5. Mr Croft, having met the children, advised the Court that 'neither boy raised with me any of these issues being canvassed here'. He submitted that [X] 'felt good seeing his mother'.

1. This is an interim hearing and hence a truncated process where the Court does not have the benefit of a full forensic preparation and testing of the evidence by way of cross-examination. Such preparation and testing does, of course, take place at the later substantive hearing where the parties and their witnesses will be then called to account for material in the interim affidavits now before the Court. As such, the process for the Court in weighing and balancing the evidence is made difficult where it may be impossible for the Court to make findings of disputed fact and credit and where, in matters such as this now before me, credit is at the crux of the determinations. Nevertheless, and despite these limitations of interim hearings, the Court is still required to follow a course of statutory and intellectual consideration consistent with the well-known decision of the Full Court in Goode v Goode[1] whereupon the Court is to reference the probative evidence and the parties proposals to the numerous considerations set out in section 60CC(2) and (3) of the Family Law Act 1975 ("the Act"). Those considerations include matters such as the children's views as to their living and parenting arrangements, the capacity of the parents to attend to the children's physical, intellectual and emotional needs, and issues of family violence all of which are relevant to this matter. Importantly, however, there are two primary considerations which often, as in this case, feature prominently in the balancing process for the Court. Firstly, at subsection (a) the Court is to make orders which benefit children having meaningful relationships with their parents and, secondly, at (b), the Court is to make orders where necessary to protect children from family violence or abuse. Later amendments to the Family Law Act stipulate that the Court is to place 'greater emphasis' on the second or protective considerations.

1. Counsel for the father made strong submissions for his client that exposure of the children to the mother, Mr A, and the mother's extended family would, in all of the circumstances set out above, place these children at 'unacceptable risk' of physical and/or emotional harm. Counsel referred the Court to a number of decisions of superior Courts in respect of the notion of unacceptable risk.
2. Section 60CA of the Act provides that the Court must have the best interests of the children as its paramount consideration in determining their living and parenting arrangements.
3. A practical consideration of the notion of 'unacceptable risk' was simply but insightfully addressed by Federal Magistrate Walters (as he then was) in PST & CPR[2] and where his Honour relevantly observed:
   • In my opinion, that which converts an unacceptable risk to an acceptable risk is often little more than confidence on the part of the Court that the contact parent will comply with such Orders as it is minded to make in order to protect the child.
4. Whilst the consideration for the Court is one of making prospective Orders into the future, it is obviously evidence of a past or contemporary nature which assists the Court. Nevertheless, the role of Family Courts is not to be confused with that of the Criminal Courts where findings of fact will lead to punishment. It is not the role of Family Courts to impose penalty or to punish. Rather, the focus must remain on the best interests of the children.
5. The authorities in respect of 'unacceptable risk' have historically dealt with allegations of sexual abuse. Nevertheless, I am comfortable that those considerations are applicable across the range of physical, emotional and psychological abuse. In M & M[3] the Full Court said at [25]:
   • Efforts to define with greater precision the magnitude of the risk which will justify a Court in denying a parent access to a child have resulted in a variety of formulations... This imposing array indicates that the Courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the Courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from... 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 abuse.
6. In the same year a different Full Court in A & A[4] noted and after considering M & M said:
   • ... The primary question which a Court should have addressed was, looking at the whole of the evidence whether the contact (or contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father's care...
7. The Court in Napier & Hepburn[5] considered the notion of 'unacceptable risk' in a pragmatic sense in emphasising that it is not for the Court to find a solution which will eliminate all chance of serious harm but rather to balance the harm that will follow if the risk is not minimised or removed as opposed to a normal, healthy relationship between a parent and a child not being permitted to prosper. Their Honours noted that the Court must be alert to and balance all potential risks to a child including that of a cessation of a relationship between a child and a parent which might of itself manifest a risk of harm if only by reason of the cessation of the relationship.
8. More recently, Murphy J in Harridge & Anor & Harridge[6] compiled a helpful list to assist trial judges in dealing with issues of unacceptable risk. His Honour's list reads as follows:
   1. What harmful outcome is potentially present in this situation?
   2. What is the probability of this outcome coming about?
   3. What risks are probable in this situation in the short, medium and long term?
   4. What are the factors that could increase or decrease the risk that is probable?
   5. What measures are available whose deployment could mitigate the risks that are probable?
9. Despite the evidentiary difficulties referred to above where the evidence is not capable of testing by cross-examination, it remains for the Court to make determinations on the basis of evidence properly weighed and balanced and where a party making an assertion of fact carries an onus to prove that fact on the balance of probabilities noting a level of confidence in a Court to be reasonably satisfied as to the veracity of the allegation or assertion. As noted in previous judgments, the difficulty is that a parent may make an allegation which is denied by the other parent and where allegations may be easily made but not so easily refuted. On the other hand, such allegations by their very nature are often not capable of easy corroboration. Nevertheless, the onus remains with the party making the allegation or assertion of fact and it should never be the case that the recipient of an allegation should be required to 'prove their innocence'.
10. Section 140 of the Evidence Act (1995)(Cth) provides:
    • (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
    • (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
    • (a) the nature of the cause of action or defence; and
    • (b) the nature of the subject-matter of the proceeding; and
    • (c) the gravity of the matters alleged.
11. In the matter now before me, and in respect of s.140(2) of the Evidence Act, the father here makes serious allegations and in respect of children who are young, vulnerable, and not necessarily able to self-protect.
12. Finally, care must be taken to understand and make the distinction between, firstly, a positive finding of abuse and, secondly, a finding of 'unacceptable risk'. A finding of the former is not a necessary element to a finding of the latter.

1. Prima facie, the orders sought by the father are potentially damaging to the relationship between these young boys and their mother, if only by reason of the anticipated delay of some four plus months before a Contact Centre can be utilised. I note the submission of the Independent Children's Lawyer as to the older child, 'feeling good seeing his mother'. I note that these children have habitually lived with their mother for some eight nights per fortnight. Some two months have now passed since they have had any direct contact with their mother and some six weeks of no direct contact before her Honour's hearing in December 2018. I note the mother's case that the father himself has perpetrated emotional abuse on these children by making false allegations and attempting to alienate the children from her. It is trite to observe, of course, that should there be any merit in these allegations, then the father's behaviour would constitute serious abuse of an emotional kind and would compromise his general ability to parent these young children with any insight into their needs. Nevertheless, and given the limitations of interim hearings, I am unable at this stage to make any finding consistent with the mother's allegations.
2. The father brings allegations of two separate and broad types. Firstly, he alleges that each of the boys has been assaulted by Mr A in about the end of October 2018. The allegations are generally in respect of anger management issues in respect of Mr A. There is specifically an allegation that [Y] was been punched to the face and, some months earlier, deliberately burned to the buttocks by Mr A. It is alleged that [X] was scratched to the face by Mr A.
3. The father says that the mother has not acted protectively of their children. She has attempted to cover up Mr A's assaults and further attempted to influence the children against being truthful in respect of the allegations.
4. There is some medical evidence from a Dr E which is of limited probative assistance given much of the information is self-serving, including from Mr Mackay. The doctor observed some bruising and pigmentation to [Y]'s buttocks together with some more contemporaneous photographic evidence. Dr E's forensic medical opinion is:
   • There was bruising to [Y]'s right cheek under the right eye. This bruising is caused by forceful impact and can be accounted for by the report of Mr A punching him to the face.
   • The findings on the left buttock of a circular rim of increased pigmentation with central pallor was indicative of an area of prior skin damage, the hypopigmentation a common post-inflammatory response and the central pale area likely to represent scarring particularly given its presence four months after the reported injury.
5. Under the heading 'CONCLUSION' Dr E states:
   • [Y] has been physically assaulted on at least two occasions reportedly by Mr A (mother's partner), resulting in injury.
6. The Child Protection report of 13 December 2018 recommends no contact between Mr A and the boys. It also recommends an assessment in respect of the mother's protective capacity together with the mother undergoing a mental health assessment.
7. Armed with these materials, her Honour on 18 December 2018 made orders for the boy's time with the mother to be supervised and for them not to come into contact with Mr A. It would, with respect, be difficult to quibble with her Honour's orders given the material then before the Court and the legislative protective emphasis in s.60(2) of the Act.
8. Since the making of her Honour's orders, the Court now has the further evidence in respect of the first set of allegations as follows:-
   • (1) That the police having charged Mr A, have now determined not to prosecute those charges in respect of alleged assaults on the children;
   • (2) The father now alleges further protective concerns in that the mother, Mr A and various members of the mother's family have conspired to pressure the children to retract the allegations;
   • (3) The mother has completed a psychiatric assessment by Dr B which is relevant given Mr Mackay's report to the Child Protection interviewer (see p.5 of first report) that:
     • Mr Mackay stated that Ms Barros had a history of depression, had been discharged from the [Australian Defence Force] three years earlier than planned due to depression, was later diagnosed with bi-polar affective disorder that had been non-compliant with medication and that this had affected the relationship. Mr Mackay recounted that when depressed Ms Barros spent all day in her pyjamas, had been unable to care for the children or maintain the home, and had had to get assistance from her parents. Further, according to Mr Mackay, Ms Barros's parents struggled with debt due to Ms Barros's mothers gambling difficulties. Since the separation and divorce, Mr Mackay stated that there had been a history of difficulties with Ms Barros which resulted in SAPOL having 'raided the house three times due to false accusations about drugs' made against him by Ms Barros.
9. The report from Dr B does not offer any corroboration of the assertions of the mother being diagnosed with depression and/or Bi-Polar Disorder. The doctor found 'no obvious signs of mental illness in the mother... including Personality Disorder. The mother did not report any history of mental illness and certainly not consistent with the assertions of the father. This is an obvious issue of credit which should be easily resolved, but unfortunately not at this stage.
10. The mother has also offered plausible explanations for [Y]'s bruising including photographs which contradict the father's asserted time-line of the alleged assaults. (note that the photographs tendered on behalf of the mother are dated on particular dates in November but I accept that they are meant to reference the particular days in October 2018)
11. Nevertheless, there remains evidence of the Child Protection case worker whose first report suggests some veracity to the children's claims of assault together with the report of Dr E which, at its lowest, suggests 'consistency' of injury with the allegations.
12. There is, of course, now a documented history of acrimony between these two parents of some long-standing including a propensity by each to make notifications to Child Protection or SAPOL against the other. In my view, such a propensity is something to be taken into account when considering the veracity of allegations of abuse given its relevance to motivation but of course is not determinative and relative also to whether or not previous notifications have been substantial. Although, the evidence here is not complete and not in its preferred form, the suggestion is that post complaints by both parents have not been substantiated.
13. On reflection, like her Honour on 18 December 2018, I cannot be satisfied, in the sense of his Honour's list in Harridge, that that these children's safety is secured by a return to the unconditional orders for shared care between their parents as existed prior to 18 December.
14. There are, however, now a second set of allegations in respect of abuse of these children and, in particular, the alleged emotional abuse by the mother, Mr A and members of the mother's family in pressuring and threatening the children to have them withdraw the initial complaints. Whilst these are separate considerations and certainly not before her Honour on 18 December 2018, there is clearly a connection and, in particular, in respect of the mother's assertion that the father has entered into a course of alienation of the children from her and of assistance generally as to credit. The father relies on this second set of allegations as a form of corroboration of the first. The mother equally relies on them to throw doubt on the first set of allegations.
15. The father alleges that Mr A, the mother and with the mother's family being complicit, have deliberately breached her Honour's orders of 18 December 2018. He says that Mr A was present on three occasions when the children spent time with their mother in December 2018. He says that the children have been separated and questioned and spoken to in respect of their initial allegations. He says that the children have been contacted by Internet or PlayStation game by Mr A, the mother, the mother's parents and other members of the mother's family to pressure the children to make retractions of their allegations. He says that such pressure has included threats to the children that the father himself and/or the children would be shot by Mr A.
16. A second report from the Department of Child Assessment and after interviewing the children has been of some assistance. Suffice to say that the report suggests both consistencies and inconsistencies in the allegations and narratives given by [Y] and [X] in respect of this second set of allegations. I note the children's young ages and that perhaps some inconsistency might be expected. Nevertheless, such inconsistencies are notable and of concern. Specifically, I have concerns in that whilst both boys report Mr A being present at the three time-with visits that took place, one child suggests no actual visual sighting by him of Mr A whereas the other child provides a strikingly different narrative including of Mr A engaging and playing with the children or, at least, that child. Generally, the narratives of the boys are of a less precise and empirical nature than those of their earlier allegations. For example, [X] at one stage speaks of having a dream 'about what Mr A said... that he, is actually gunna kill me and then I heard a, when I went back to sleep I heard dad go out the front and then heard, like, people out the front. And then came in and then shut the door and, like, went to bed...'
17. Prima Facie Mr A provides alibi evidence of his whereabouts when the children allege that he, the mother and the grandparents were breaching Court orders in December 2018. He provides a copy of his work time sheet which appears to be a mechanical record of when he clocks on and off. The maternal grandmother has filed an affidavit disputing both a breach of the Court orders and engaging in nocturnal communications with the boys by Internet or Xbox.
18. On consideration and on balance, I have serious doubts as to the veracity of the allegations of breach of Court orders and of the attempts through the Internet/Xbox to influence and threaten the boys. I find the alibi evidence of Mr A and the affidavits of the mother and the maternal grandmother to be persuasive. The narratives of [Y] and [X] in respect of the events of December and of the alleged Internet communications are inconsistent and, in my view, are circumstantially dubious as to factual basis.
19. It follows, therefore, that I am not persuaded on the balance of probabilities that the interim orders of her Honour have been breached and the children's safety consequently compromised as alleged by the father and the children. That is, I am satisfied that the mother and the maternal grandparents have acted protectively in the sense of her Honour's orders. It follows, however, that I must have concerns more generally in respect of the veracity of all the allegations of these two young boys including the first set of allegations. The mother and Mr A deny the allegations of assault. The mother offers plausible explanations for the injury. She also disputes the timeline of the father's and the children's allegations and provides photographic evidence although of little probity. All of these facts must be considered within a climate of long-standing and mutual acrimony between these two parents and where it seems each are prone to making notification to various authorities against the other.
20. In summary, therefore, I am not persuaded on the balance of probabilities in respect of the second set of allegations and assertions made by the father and the two boys. I remain concerned generally, therefore, as to the veracity of the initial set of allegations although I am mindful of, firstly, Dr E's report as to [Y]'s injuries being consistent with his allegations and, secondly, the views of the Child Protection officer. As against this, however, I am comfortably satisfied that the mother and the maternal grandparents have acted protectively in line with her Honour's orders. I gleaned some confidence from the psychiatric report of the Dr B which throws some doubt on the father's assertions in respect of the mother's mental health. I remain concerned generally as to the disturbance in these children's relationship with their mother and the prospect of a further substantial delay and gap in their direct relationship. Taking all of these matters into account and with emphasis on the remaining protective issues in respect of Mr A, I am satisfied that the mother will act protectively in respect of the children. Whilst I intend to order a family report which will assist in determining the veracity of all the allegations, I am satisfied that the children's safety would be attended by an order that the mother not to leave the children alone in the care or presence of Mr A until such investigations are complete. In these considerations I again have generally referred to the helpful "checklist" from his Honour in Harridge. It follows that I am satisfied that the children's best interests are satisfied by and their safety addressed by the previous orders being restored whereby the children live between their parents homes but with the additional order that the children not be left alone in the presence of Mr A.
21. I am mindful that there remains to be determined the competing broad allegations of physical and/or emotional abuse made by these parents each against the other and the references of the Child Protection report author as to the emotional vulnerabilities of these two young boys. Consequently, I will order by injunctions that each parent by themselves or their agents be restrained from discussing any aspect of these proceedings with the children and I will direct the Independent Children's Lawyer to meet with the children as soon as possible so that he can objectively and sympathetically explain to the boys the fact and nature of my orders.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of Judge McGuire

[1] [2006] FamCA 1346

[2] [2006] FMCAfam 36 @ [71]

[3] (1998) FLC 91-979 @ p.77,081

[4] [1998] FamCA 25; (1998) FLC 92-800 @ p.84,959

[5] [2006] FamCA 1316; (2006) FLC 93-303