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CASE NOTE: Helbig & Rowe [2015] FamCA 146

Judge
Applicant
Respondent
Solicitor for the Applicant
Counsel for the Applicant
Solicitor for the Respondent
Solicitor for the ICL
Jurisdiction
Parental Responsibility Outcome
Residential Outcome

1.

Rees J
Ms Helbig
Mr Rowe
Ms Merkin
Mr OSullivan
Ms ORourke
Family Court of Australia
Sole Parental Responsibility - with
Father.
Sole Residence - limited, supervised,
or no physical contact with Mother.

Background

The parents separated in January 2009 when the children were three and
eight weeks old, respectively. The mother moved away from the matrimonial
home with the children, who lived with her.
This case has a signification history of litigation since then, culminating into
these proceedings.
In this case, the mother has made serious allegations of child sexual abuse by
the father against a child of the marriage. As a result she has requested that
the children live with her and that any time that the children spend with the
father be supervised.
After investigation, the allegations were deemed to be 'false'. The family
report went so far as to recommend that the children be 'immediately'
removed from the mother's care because of her unrepentant beliefs that the
father was a paedophile who had harmed the children. The mother repeatedly
voiced these allegations to the children that they had been irreparably
harmed, potentially causing significant and lasting emotional and mental
damage to the children.
These proceedings also included documentation falsified by the mother, and
an application by the mother to dismiss the ICL.
The Court had considered the very likely possibility that the children were at
risk of losing their relationship with their father entirely if they continued to live
with their mother, and as such had to consider which arrangement which
arrangement would best preserve the children's best interests, realising there
was no ideal outcome option available.

2.

Issue(s)

This case hinged on whether the allegations made by the mother that the
father had sexually abused the child or children of the marriage were reliable
and plausible to the extent that they would raise the issue of
"unacceptable risk".
The family courts responsibility is not to determine whether child sexual abuse
did or did not occur, unlike the criminal courts. However when faced with an
allegation of child sexual abuse, it refers to the standard of proof of
"unacceptable risk.
3.

Decision

i.

That X (X) born ... 2005 and Y (Y) born ... 2008 (the children) live
with their father, Mr Rowe (the father).

ii.

That the father have sole parental responsibility for the children.

iii.

That the father inform Ms Helbig (the mother) in writing (including by


email or text message) as soon as practical of any specialist medical
appointments for either of the children with any medical consultant.

iv.

That the father do all acts and things to ensure that the mother is
provided with all reports by any such consultant, and in particular with
all reports in relation to each specialist review of Xs diabetes, and to
authorise the mothers individual attendance upon such specialists.

v.

That the mother may obtain both oral and written information from the
childrens medical specialists and make individual appointments with
them to obtain information regarding the childrens medical issues and
the father is to ensure that all treating doctors are aware that the
mother is so entitled.

vi.

That the mother be permitted to provide gifts, letters and cards for the
children to the father and that the father is to give the same to the
children, subject to the father considering that the gift and/or
communication is appropriate.