Children – Court not satisfied that sexual abuse occurred but where mother’s belief of risk was reasonably held – No time to the father – Anxiety of the mother considered
In Starkey (No. 2)  FamCA 977 (13 December 2013) Dawe J considered a Magellan list matter involving two children, a 10 year old and a 8 year old; where the father suffered from “29 per cent incapacity” as a result of a “motor vehicle accident … head injury” (para 17); where “allegations [were] made by the children suggesting sexual abuse by the father” (para 38); where the Child Protection Service (CPS) had found substantiated sexual abuse (para 32); and the CPS family assessment report concluded that “sexual abuse [by the father] remained the most likely hypothesis to explain” experiences described by the eldest child (para 66).
The father denied the allegations of abuse. A report of a clinical psychologist said “[the father] … has totally rejected the Child Protection Service and denied any sexual impropriety. I therefore believe he has poor insight into the sexual role boundary violations between parent and child. Consequently, I believe he will require some psychological therapy to address this issue” (see para 98).
After referring to the decision of M v M  HCA 68 and W & W (Abuse Allegations: Unacceptable Risk)  FamCA 982, Dawe J said (at para 94):
“Notwithstanding the inconsistencies in some parts of the father’s evidence and the detail in the CPS interviews concerning [the eldest child’s] statements and the initial findings by the CPS, the evidence of the father raised considerable doubt about the allegation of sexual abuse by the father. His evidence did however form a basis for concern about the father’s memory, his understanding of parental responsibility and the continuing ongoing poor relationship between the mother and father.”
And (from para 144):
“As indicated above the allegations of sexual abuse by the father of the children were substantiated so far as the [eldest] child … was concerned by the CPS. The oral evidence under cross-examination however called into question, due to inconsistencies and presumptions, the reliability of the conclusions drawn following the interviews with [the eldest child] …
 The Court is therefore not able to be satisfied to the standard of proof required that sexual abuse occurred or that there is an unacceptable risk of sexual abuse by the father.
 It is still however necessary to consider the background to the allegations and the impact it has had, and will continue to have, upon the children.
 I am satisfied from the evidence of the mother and the evidence of the Family Consultant that the mother was reasonable in forming her belief that the children had been abused by the father, or that there was a serious unacceptable risk that the children might be abused by the father.
 This reasonable belief by the mother requires the Court to consider the impact that any order requiring her to hand the children over into the care of the father might have upon her future parenting capacity. I am satisfied that having heard the evidence of the mother, that any order requiring her to hand the children over to the father for any unsupervised time, would be likely to have a significant effect upon her psychological health and her capacity to provide ongoing, emotional and psychological care for the children.
 In the joint judgment of Fogarty, Baker and Lindenmayer JJ in Russell & Close (Appeal SA45 of 1992, unreported judgment delivered 25 June 1993) at paragraph - reference was made to the issue of parental anxiety which is a significant factor in this matter:
‘In upholding children’s rights to protection from sexual, psychological or emotional harm, the Court must take into account any anxiety on the part of the primary caregiver concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on that parent’s caregiving ability.’
In taking into account the belief of the custodial parent of abuse by the non-custodial parent of the children and the effect of such belief on that parent as primary caregiver of the children, and consequent harm to the children, a subjective test is employed. However, it must be shown that such belief on the part of the custodial parent is genuinely held. Where it appears on the whole of the evidence such belief is entirely irrational and baseless, the genuineness of the belief of the custodial parent will clearly be open to doubt.
 This is consistent with the comments of Fogarty, Baker and Purvis JJ in B & B (1993) FLC 92-357 at page 79,780:
‘It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need for a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.’”
As to s 60CC(2)(a) Dawe J said (at para 151):
“ … The children’s meaningful relationship with their mother is likely to be put at risk if she is required to ensure that the children spend unsupervised time with the father.”
As to s 60CC(2)(b) Dawe J said at paras 153-154:
“As indicated above the Court is not satisfied that the evidence establishes to the necessary standard of proof that the children have been subjected to physical or sexual abuse whilst in the care of the father. The evidence establishes a risk that the children will be subjected to psychological harm if orders were made requiring them to spend unsupervised time with the father.
Orders which provided for the children to be in the sole care of the mother with no order being made for them to spend time with the father, would increase the mother’s capacity to provide for their psychological and emotional development.”
Dawe J concluded at paras 176-178:
“I am satisfied that the evidence indicates that the mother genuinely believes that the children would not be safe in the father’s care and that this belief would impinge upon her capacity to provide for the needs of the children if the children were required to attend upon unsupervised time with the father.
There appears to be no reasonable prospect of any ongoing supervision available nor would such ongoing supervised be in the best interests of the children.
The best interests of the children therefore clearly indicate their practical day to day needs and their emotional and psychological needs will be promoted by the mother having sole parental responsibility, the children residing with her and there being no order requiring them to spend time supervised or unsupervised with the father.”