Milton v Milton 2021 FamCAFC 64
Milton v Milton  FamCAFC 64 is a parenting case that considers the concept of unacceptable risk.
Both parents lodged an appeal.
The mother appealed from two orders made by a Judge of the Family Court of Australia in September and October 2020.
The children the subject of the proceedings were born in 2007 and 2008.
The mother’s case was that the father posed “an unacceptable risk of harm to the children of sexually abusing them in the context of bathing them and co-sleeping with them”.
The Trial Judge did not consider that the father’s conduct was sexual abuse.
The Trial Judge did find that the mother posed a risk of psychological harm because of her fixed “and implacable belief that the father was a sexual abuser and paedophile”.
Final parenting orders provided that the children would live with the father, and he was to have sole parental responsibility for them. There was a moratorium on the mother from approaching the children or seeing them for a period of 90 days.
The resumption of the mother’s relationship was to be with the assistance of an after-care professional.
By February 2017, the mother had determined that the children were not to see their father.
The father commenced Family Court proceedings in Western Australia in mid-February 2017.
On the day the mother was served, she took the children “to their general practitioner and one child told the doctor that the father had “˜hurt his penis in the bath'”.
The children were subject to interviews and investigation and by August 2017, the father was provided supervised time.
After two attempts by the supervisor to collect the children, there were two occasions where the children refused to leave their mother’s home.
Therapy began in November 2017.
In August 2018, a second report was prepared.
The expert “opined that it was a significant factor for a child to have a false belief of sexual abuse and raised the question as to whether it would be in the best interests of the children for there to be a change of residence”.
By mid-2018, the mother moved to a different city and didn’t tell the father.
By May 2019, the children’s therapist published an updated report.
The expert prepared a third report on 8 April 2020.
The father lodged an appeal seeking to adduce further evidence.
The Trial Judge had identified the risk of future harm to the children in their mother’s care as a significant issue.
The Trial Judge determined that there was no cogent evidence in relation to the father but in relation to the mother, there was a significant ongoing risk of psychological harm.
The Primary Judge understood the difficulties of moving the children to the father’s care and “in short, Her Honour expressly weighed the short-term difficulties the children would experience and the risk of failure against the long-term disadvantage by being left in the mother’s care. Her Honour found that the change of residence was in the children’s best interest”.
The mother continued to clearly reject the expert’s opinion that the children had not been sexually abused.
The Full Court accepted that the Primary Judge’s findings were open on the whole of the evidence.
A costs order was made against the mother as her appeals were dismissed.