Blann & Kenny - [2021] FamCA 322

FAMILY COURT OF AUSTRALIA
Blann & Kenny [2021] FamCA 322

File number(s): SYC 8232 of 2018

Judgment of: MACMILLAN J

Date of judgment: 21 May 2021

Catchwords:
FAMILY LAW – CHILDREN – MAGELLAN – Allegations of sexual abuse – where the mother alleges that the father and members of his family have sexually abused one of the children of the relationship and poses an unacceptable risk to both children of the relationship – where that child is alleged to have made disclosures to the maternal grandmother that he has been sexually abused by the father – where the child thereafter made further disclosures to the mother, maternal grandparents and treating psychologist – where the mother and maternal family believe the child has been sexually abused by the father and the paternal family – where the child did not make any disclosures to Police or Family and Community Services – where the allegations were not substantiated – where the Court is not satisfied to the requisite standard that the child has been sexually abused by the father or by any other member of his family – where the Court is satisfied that orders for the children to spend time with the father would not expose them to an unacceptable risk of harm – where the children will gradually be reintroduced to the father through a combination of supervised time and with the support of family therapy.

FAMILY LAW – CHILDREN – Physical abuse – where the evidence does not support the conclusion that the children have been physically abused by the father – where orders are made that are contrary to an Apprehended Domestic Violence Order (NSW).

FAMILY LAW – CHILDREN – spend time with – where the mother seeks that the children spend no time with the father – where the father proposes spending supervised time with the children progressing to unsupervised and then overnights – where orders are made for the father to spend supervised time with the children progressing to unsupervised day time.

FAMILY LAW – EVIDENCE – Failure to call a witness – where counsel for the mother submitted that in circumstances where the father had not sought to adduce evidence from his brothers the Court should draw an inference that their evidence would not have assisted the father’s case [Jones v Dunkel (1959) 101 CLR 298] – where the father being self-represented provided a reasonable explanation for not having adduced evidence from his brothers – where the circumstances of this case do not permit such an inference.

FAMILY LAW – COSTS – where the ICL sought a contribution from both parties – where the father is legally aided – where the mother’s senior counsel appeared pro bono – where neither party have been wholly unsuccessful and their conducted would warrant an order for costs – where the circumstances in this case do not justify the Court making an order for costs.

Legislation:
Evidence Act 1995 (Cth) ss 91, 140

Family Law Act 1975 (Cth) ss 102NA, 60B, 60CC, 69ZW

Cases cited:
B & J [2009] FamCAFC 103

Briginshaw v Briginshaw (1938) 60 CLR 336

Donnell & Dovey (2010) FLC 93-428

Fitzwater & Fitzwater [2019] FamCAFC 251

Jones v Dunkel (1959) 101 CLR 298

Keane & Keane [2020] FamCA 99

Kuhl v Zurich Financial Services (2011) 243 CLR 361

M v M (1988) 166 CLR 69

Mulvany & Lane (2009) FLC 93-404

Napier v Hepburn (2006) FLC 93-303

Re Andrew (1996) FLC 92-692

Re W ( Sex Abuse: Standard of Proof ) (2004) FLC 93-192

Schorel, In the Marriage of (1990) FLC 92-144

U v U (2002) 211 CLR 238

Number of paragraphs: 216

Date of hearing: 17-21 August 2020

Place: Melbourne

Counsel for the Applicant: Mr Lloyd SC

Solicitor for the Applicant: Uther Webster & Evans

Counsel for the Respondent: Mr Cairns

Solicitor for the Respondent: El Baba Lawyers Pty Ltd

Counsel for the Independent Children's Lawyer: Ms Rebehy

Solicitor for the Independent Children's Lawyer: Shedden & Associates
ORDERS

SYC 8232 of 2018

BETWEEN:
MS BLANN

Applicant

AND:
MR KENNY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MACMILLAN J

DATE OF ORDER:

21 MAY 2021

THE COURT ORDERS BY CONSENT THAT:
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the children B born … 2014 and C born … 2017 (“the children”).
3.The children live with the mother.
4.The father and the mother advise the other party of their respective residential address, mobile telephone number, and email address if they have not already done so, within forty-eight (48) hours of the date of these orders, and keep the other party advised of such details at all times and advise the other party by text message within twenty-four (24) hours of any change.

IT IS ORDERED THAT:
5.In the exercise of sole parental responsibility:
(a)the mother advise the father by email one (1) month prior to any proposed change to the children’s respective schools and/or any proposed medical treatment unless it is an emergency treatment in which case the mother shall notify the father by email or text as soon as practicable after the said treatment;
(b)As soon as practicable and in any event not more than seven (7) days after being so advised the father provide a response by email to the proposal to the mother;
(c)That the mother, having considered the father’s response to the proposal or in the event that the father has not provided the mother with a response within the seven (7) day period in accordance with Order 5(b) hereof may make the decision; and
(d)As soon as practicable and in any event not more than twenty-four (24) hours after making her decision the mother advise the father by email of her decision.

6.The children spend time with the father as follows:
(a)For twelve (12) consecutive visits of no more than 3 hours per week with such time to be supervised at a supervising contact centre (“the supervising service”) agreed upon in writing by the parties or in default of agreement to be nominated by the Independent Children’s Lawyer at the expense of the father and on days and at times as may be arranged with the supervising service;
(b)Within fourteen (14) days of the date of these orders the father and mother contact the supervising service agreed upon or in default of agreement the supervising service nominated by the Independent Children’s Lawyer and complete the intake process required by the supervising centre;
(c)Upon acceptance by the agreed supervising service or the nominated supervising service, the father and the mother forthwith authorise the supervising service to provide each of them with information relating to the supervised sessions;
(d)After the completion of the twelve (12) consecutive visits pursuant to Order 6(a) hereof each alternate Saturday from 10.00 am to 5.00 pm for a further three (3) calendar months with such time to be supervised by a responsible third person as agreed by the father and the mother in writing and failing agreement such time to be supervised by a private supervising service nominated by the Independent Children’s Lawyer at the father’s expense; and
(e)At the conclusion of the three (3) calendar month period pursuant to Order 6(d) hereof the children spend unsupervised time with the father each alternate Saturday from 10.00 am to 5.00 pm and changeover take place at a location to be agreed upon by the father and the mother in writing.

7.Until further order the mother facilitate the children making contact with the father by telephone or other electronic communication such as Facetime or Zoom at 8.00 am or otherwise as agreed in writing on each of the following occasions:
(a)Father’s Day;
(b)Christmas Day;
(c)New Year’s day;
(d)each of the children’s birthdays; and
(e)the father’s birthday.

8.The father be permitted to send letters, cards and gifts to the children’s residential address on special occasions including but not limited to each child on their respective birthdays and:
(a)The mother is to provide any letters, cards or gifts sent by the father to the children upon receipt of same; and
(b)The mother forward a photograph of the children with any gift received from the father to the father within twenty-eight (28) days of the gift being received.

9.Within seven (7) days of the date of these Orders, the Independent Children’s Lawyer provide the father and the mother with the names and contact details of three suitable psychologists experienced in complex family law matters (“the Psychologist”):
(a)Within seven (7) days of receiving the names, the mother select one of the psychologists and advise the Independent Children’s Lawyer and father by email; and
(b)The mother within seven (7) days thereafter, do all things necessary, to obtain from the children’s general practitioner a mental health referral to the Psychologist for assessment and ongoing treatment for each of the children, as required.

10.In the event the Psychologist assesses the children as suitable for ongoing treatment then the parties shall continue to engage with the Psychologist for the purposes of the children’s treatment and ensure the attendance of the children at such times and for such appointments as are required by the Psychologist.
11.The parties and the Independent Childrens Lawyer are permitted to provide to the Psychologist the following documents:
(a)Judgment delivered 21 May 2021;
(b)The Magellan Family Report by Ms D dated 8 July 2020;
(c)ICL Exhibit 3 – Subpoenaed Notes of E Services; and
(d)If requested, the affidavit material filed in these proceedings.

12.That should a mental health plan not be available for each of the children then the parties shall pay equally the net costs payable to the Psychologist, for any consultation with the children.

IT IS FURTHER ORDERED BY CONSENT THAT:
13.The father and the mother each attend upon their respective general practitioner, within seven (7) days from the date of these Orders for a referral to a psychiatrist or psychologist under a Mental Health Plan and each attend the said psychiatrist or psychologist for assessment and treatment.
14.The mother forthwith authorise the children’s school and day care to provide the father with any information he requires to enable him to access the school Portal and digital newsletter.
15.The father is at liberty to obtain term reports for each of the children, newsletters, photographs, order forms or other documents relating to the children’s schooling directly from the school at his expense, and access the school portal for each of the children’s school from time to time, and this Order operate as authority for the schools to provide information to father about the children’s education.
16.The father and the mother be and are hereby restrained from denigrating each other and/or discussing these proceedings in the presence, or hearing, of the children, and both parties are to use their best endeavours to stop any third party from doing so.
17.The mother has the sole responsibility for giving consent to making arrangements for the application and issue of an Australian passport for each of the children.
18.Pursuant to section 11(1)(b) of the Australian Passports Act2005 (Cth) the mother is permitted to apply for and obtain the issue and renewal of Australian passports for the children under the provisions of the Australian Passports Act2005 (Cth) without the father’s knowledge or consent.
19.Pursuant to section 65Y of the Family Law Act 1975 (Cth), the children are permitted to travel internationally with the mother, including outside the Commonwealth of Australia, without the father’s consent.
20.In the event that the mother intends to travel overseas with the children, or any of them, then the mother shall provide to the father by email no less than eight (8) weeks prior notice of her intention to travel with the children, or any of them, and shall provide the father with the following:
(a)Copies of any travel itinerary, airline tickets and booking confirmation; and
(b)Details of where the children will be staying including a contact number.

21.Within fourteen (14) days of the date of these orders the Independent Children’s Lawyer meet with the children in person at O Park, or another location as agreed with the mother.

IT IS FURTHER ORDERED THAT:
22.Until further order the father be and is hereby restrained from attending the children’s schools/day-care, school/day-care events, social events, extracurricular activities, including sporting events, without the mother’s written consent.
23.Until further order the father be and is hereby restrained from bringing the children into contact with Mr F Kenny and Mr G Kenny.
24.Unless agreed in writing between the parties, until further order the father be and is hereby restrained from:
(a)Attending at or being within 150 metres of the place of residence of the mother and/or the children;
(b)Attending at or being within 150 metres of any place of employment of the mother;
(c)Attending at or being within 150 metres of any school of preschool or extra-curricular activity attended by the children.

25.These orders are inconsistent with the Final Order - Apprehended Domestic Violence Order Case Number … made at H Town Local Court in NSW on 15 July 2019 as a result a copy of these orders be sent by the Melbourne Registry of the Family Court of Australia to the following:
(a)The Registrar of the Local Court of NSW at H Town in relation to Case Number … with a request that they be placed upon their file and brought to the attention of the presiding Magistrate; and
(b)The Domestic Violence Liaison Officer at H Town Local Police Station.

26.The question of the children spending additional day time and/or overnight time, holiday time and special occasions with the father, the discharge or variation of Orders 7, 22, 23 and 24 herein and the application of the father and the Independent Children’s Lawyer to restrain the mother from continuing B’s treatment with Ms M be otherwise reserved and adjourned for mention of the matter before Justice Macmillan at 10.00 am on 13 December 2021.
27.The Independent Children’s Lawyer application for costs is hereby dismissed.
28.The mother’s Initiating Application filed 20 December 2018 and the father’s Response to Initiating Application filed 28 February 2019 be otherwise dismissed and the matter be removed from the list of cases awaiting hearing.
29.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blann & Kenny has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MACMILLAN J

Whilst the parties in this case agree that the children, B KENNY ("B") who was born in 2014 and is currently aged 7 and C KENNY ("C") who was born in 2017 and is currently aged 3, should live with the mother, it is the mother’s case that it is not in their best interests to spend any time with the father and any orders for them to spend time with the father as well as exposing the children to a risk of abuse would have a significant impact on the emotional wellbeing of both B and the mother. B has not seen the father since May 2019. C last spent time with the father when she was less than 18 months old and having not spent time with him since then, it is agreed that she would be unlikely to have any independent recollection of the father or any of his extended family. If I accede to the mother’s proposals the children will at least for the foreseeable future have no ongoing relationship with the father his case being that this puts their psychological and emotional welfare at risk. The issues in this case are complex and there is no simple or easy resolution. Although the impact of the Courts determination upon the parents is relevant the focus must be on the welfare of the children and what is in their best interests.
BACKGROUND
The mother MS BLANN and the father MR KENNY commenced their relationship in 2010 when the mother moved into the father’s rental property in regional New South Wales (“NSW”).
The parties separated on a final basis in early December 2018 when the mother left the former matrimonial home and moved in with her mother and step-father in Sydney. The mother has not re-partnered. The father currently lives on a property owned by his family at J Town in NSW. The father has re-partnered however they do not currently live together.
HISTORY OF THE PROCEEDINGS
The mother commenced proceedings in the Federal Circuit Court of Australia in Sydney on 20 December 2018. On 28 February 2019 the father filed a Response to the mother’s Initiating Application.
On 6 March 2019, prior to there being any allegations of sexual abuse, the matter came before Judge Boyle who made orders for the parties to attend a Child Dispute Conference. Orders were also made by consent inter alia as follows:
a)That the children of the relationship live with the mother;
b)That without admissions by the father as to the need for supervision the parties apply to K Services for the purposes of supervising the fathers time with the children;
c)That the father spend supervised time with the children from 9.00am to 12.00pm each Saturday with the time to occur within a radius of 15km of Suburb L Sydney NSW;
d)That the father will meet the costs of the supervision;
e)That the mother arrange for the children to have Facetime communication with the father at 5pm on Thursdays when he is working day shifts and at 2pm on Thursdays when he is working afternoon shifts;
f)The father be at liberty to speak with and attend upon Ms M of E Services; and
g)The mother shall advise the father if she and the children cease living at the home of the maternal grandparents.
On 16 May 2019 the mother filed an urgent Application in a Case seeking to suspend the orders with respect to the children spending time with the father, the mother’s case being based upon B’s disclosures of sexual abuse and the reports completed by the supervision service of the children’s time with the father. The matter was listed for hearing that day and the husband who was unrepresented at that time consented to orders providing as follows:
a)That the Orders made on the 6 March 2019 for the father to spend supervised time with the children be suspended;
b)That an Independent Children’s Lawyer be appointed; and
c)The matter thereafter be adjourned to 16 July 2019.
On 16 July 2019 the matter was transferred to this Court with consideration to be given to whether it should be allocated to the Magellan List. Orders were also made for the mother to have sole parental responsibility for B in relation to his enrolment and attendance at primary school, with the mother to inform the father of all correspondence and school reports received from the school in relation to B.

On 23 August 2019 the mother filed an Amended Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case). This document contained inter alia the following allegations:
a)That the children were protected persons under a final ADVO made against the father by the H Town Local Court on 15 July 2019. The ADVO having been made based upon findings that B had been physically harmed by the father prior to the parents separation; and
b)That since separation in December 2018 B had made disclosures of sexual abuse by the father and other members of his family. These disclosures having been made to the mother, the maternal grandmother, the maternal grandfather and the child’s psychologist Ms M.
On 23 August 2019 the proceedings were allocated to the Magellan List and orders were made for a Magellan report to be prepared by Family and Community Services (“the Department”).
On 12 March 2020 the matter was listed for final hearing commencing on 17 August 2020 as a five day matter and orders were made for the parties to both file and serve trial material.
On 20 May 2020 an order was made by Stevenson J that the requirements of s 102NA of the Family Law Act 1975 (Cth) (‘the Act”) apply to any cross-examination in these proceedings.
The final hearing commenced on 17 August 2020 using Microsoft Teams. On 21 August 2020 the matter was adjourned to a date to be fixed for judgment.
LEGAL PRINCIPLES
The objects underlying Part VII are found in s 60B of the Act and are as follows:
(a) Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects, unless it would be contrary to a child’s best interests are as follows :
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
When this Court is asked to make parenting orders the paramount consideration is the best interests of the children the subject of those orders (s 60CA). In determining what orders will be in a child's best interests the Court must consider the matters in s 60CC(2) and (3) of the Act. When considering the matters in s 60CC(2) the Court is required to place greater weight on the need to protect a child from physical or psychological harm, and from being subjected or exposed to abuse, neglect or family violence. The court is not otherwise required to consider the primary and additional considerations in any particular order or give any particular consideration any greater weight and the weight placed upon the various considerations will depend upon the particular circumstances of the case.
In Donnell & Dovey (2010) FLC 93-428 the Full Court of the Family Court of Australia (“the Full Court”) (at [103]) described the s 60CC considerations as follows:
"…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another".
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ observed (at [76]-[77]) as follows:
…It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in Original)
Unless there are reasonable grounds to believe that a parent has abused a child the subject of the proceedings or another child of that parent's household at the time or engaged in family violence, the Court must apply the statutory presumption that it is in a child's best interests for the parents to have equal shared parental responsibility for that child. That presumption can be rebutted by evidence that satisfies the Court that it would not be in a child's best interests for the parents to share parental responsibility. If the presumption does apply or the Court is otherwise satisfied that it is in a child's best interests and makes an order for equal shared parental responsibility, then it must consider whether it is in the child's best interests and reasonably practical to spend equal time with each parent or, if not equal time, whether it is in a child's best interests and reasonably practical for a child to spend substantial time with each parent. The parties in this case agree that the mother should have sole parental responsibility for the children and on that basis it is not necessary for the Court to consider whether it is reasonably practical to spend either equal or substantial time with the father.
HOW THE COURT DEALS WITH ALLEGATIONS OF ABUSE
The overwhelming focus in this case was on the allegations of both the physical and sexual abuse of B by the father. However the fact that there are allegations of either physical or sexual abuse, as there are in this case, does not alter the fact that the primary issue to be determined is what orders the Court should make that will be in the children’s best interests. In M v M (1988) 166 CLR 69 (“M v M”) the High Court of Australia (“the High Court”) said (at [76]) as follows:
…The ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interest of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abuse by the parent whom seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive impact, on the resolution of that issue.
In M v M the High Court also observed with respect to the court resolving disputed allegations of abuse (at [76]) as follows:
…But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
(Citations omitted)
The High Court continued with respect to how the court should assess allegations of sexual abuse (at [76]-[77]) as follows:
…In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
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. The degree of risk has been described as a "risk of serious harm" (A. v. A.), "an element of risk" or "an appreciable risk" (Marriage of M.), "a real possibility" (B. v. B. (Access)), a "real risk" (Leveque v. Leveque), and an "unacceptable risk": In re G. (A minor). 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 sexual 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 sexual abuse.
(Citations omitted)
In the recent decision of Keane & Keane [2020] FamCA 99 (“Keane”) McEvoy J provided a helpful analysis of the way in which the Court makes its assessment of whether or not there is an unacceptable risk to a child referring in particular to the recent decision of the Full Court in Fitzwater & Fitzwater [2019] FamCAFC 251. McEvoy J stated as follows:
68.How the Court is to go about assessing whether there is an unacceptable risk of sexual abuse or risk of harm to the child involves, on the one hand, making findings of basal facts on the evidence before the Court and, on the other, using such facts as part of the predictive exercise in making findings about the possibility of the wider issue, that is any risk of harm posed to the relevant child or children which inform the parenting orders needed to resolve the dispute. The basal facts found, assessed in the light of all other relevant matters, form the factual substratum for an assessment of the unacceptability or otherwise of the risk.
69.The fact finding exercise is conducted in accordance with the civil standard of proof as provided in s 140 of the Evidence Act 1995. Importantly, s 140(2) reflects the factors mentioned by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, at 362 and referred to in M v M as applicable in circumstances where an allegation is one of particular seriousness or the consequences flowing from a particular finding are grave.
70.As Austin J observed in Fitzwater & Fitzwater, the conclusion reached by the Court in proceedings under Part VII of the Act, as reflected in whatever decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence. Critically, however, and as his Honour noted, the law draws a distinction between proof of historical facts and the prediction of future possibilities. Drawing on what the High Court said in Malec v J.C. Hutton (1990) 169 CLR 638 at 639 – 640 and at 643 (“Malec”), Austin J noted that in determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities.
71.In Malec, Brennan and Dawson JJ said (at 639 - 640):
… facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities… the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history… the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
72.In Fitzwater & Fitzwater, Austin J noted that although the High Court in Malec was referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction: see Oswald v Karrington (2016) FLC 93 – 726 at [60] and Bant & Clayton (2015) 54 FamLR 621 at [99], [107], [171] and [172]. His Honour considered, and I respectfully agree, that such application of principle is consistent with the principles essayed by the High Court in M v M.
73.Austin J’s analysis of the nature of the task confronting a trial judge of this Court when considering whether to make a parenting order in favour of a parent who is alleged to represent an unacceptable risk is, with respect, compelling and of considerable practical assistance. His Honour observed:
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140.It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).
141.Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
74.Although in Fitzwater & Fitzwater the majority expresses disagreement with Austin J on the proposition that s 140 of the Evidence Act has no role to play in a case where unacceptable risk of harm is alleged, their difference with his Honour on this point may be more imagined than real. Austin J does not contend that s 140 of the Evidence Act has no role to play in a case where an unacceptable risk of harm is alleged. His Honour’s point, consistently with M v M and Malec, is rather that the assessment of risk is predictive. While it will (and indeed must) be influenced by factual findings about past events, the risk assessment task itself involves considering all relevant matters, looking forward, and making a projection. This projection will in part be informed by past events which, consistently with settled principle, have been the subject of findings on the basis of s 140 of the Evidence Act.
(Citations omitted)

In the often quoted passage in Briginshaw v Briginshaw (1938) 60 CLR 336 Dixon J [361-362] said in with respect to the application of the relevant standard as follows:
…When the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence of existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality… it is enough that the affirmation of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
The consequences of the Court’s decision in a case such as this one are momentous and will likely have a long lasting impact on the lives of both of these young children. However the risk is not limited to the risk that one or both of them might be sexually or physically abused by their father or other members of his family. There is also the risk to these children of not having any relationship with the father and his extended family and the impact upon B in particular of identifying himself as a victim of sexual abuse, whether or not there is any substance to the allegations. That is not a course that should be adopted without a thorough assessment of the evidence. The Full Court (Kay, Holden and O’Ryan JJ) in Re W ( Sex Abuse: Standard of Proof) (2004) FLC 93-192 commencing (at [18]-[19]) said as follows:
…Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
The Court is required to rigorously assess all of the evidence and make findings having regard to the requisite standard of proof, in this case with respect to the allegations that the father has physically and sexually abused B. Those findings will be relevant for the purposes of predicting what risk is posed to the children of either physical and/or sexual abuse in the future and ultimately determining if there is a risk, whether that risk is unacceptable.
Having assessed the allegations and made its findings as to the degree of risk, if any, the Court must then determine what orders will be in the child’s best interests having regard to that risk and the other matters the Court is required to consider pursuant to s 60CC of the Act. In this case although there are allegations of specific incidents of physical abuse the allegations of sexual abuse are based upon what the child is reported to have told firstly the maternal grandmother and thereafter the mother, the maternal grandfather and Ms M.
THE EVIDENCE
The applicant mother relied on the following documents in support of her case:
a)Initiating Application filed 20 December 2018;
b)Affidavit of Ms Blann filed 5 April 2019;
c)Affidavit of Ms N filed 5 April 2019;
d)Affidavit of Ms Blann filed 9 April 2020;
e)Affidavit of Ms N filed 9 April 2020;
f)Affidavit of Mr N filed 9 April 2020;
g)Affidavit of Ms M filed 9 April 2020
h)Affidavit of Ms Blann filed 16 July 2020;
i)Affidavit of Ms N filed 14 August 2020; and
j)Affidavit of Mr N filed 14 August 2020;
The respondent father relied on the following documents in support of his case:
a)Response to Initiating Application filed 28 February 2019
b)Affidavit of Mr Kenny filed 28 February 2019
c)Affidavit of Mr Kenny filed 17 August 2020; and
d)Affidavit of Ms P Kenny dated 19 August 2020 (“Exhibit F1”).
The Independent Children’s Lawyer (“the ICL”) and the parties all relied upon the Magellan Report prepared by the Department dated 4 December 2019 (“Magellan Report”) and the Magellan Family Report (“Family Report”) dated 8 July 2020 prepared by the Family Consultant, Ms D (“Family Consultant”).
The father and mother were both cross-examined, as were the maternal grandparents and the paternal grandmother. In my view both the father and his mother were forthright and compelling witnesses. The father presented as an unsophisticated man somewhat bewildered by the circumstances in which he now finds himself. He was quite open about his concerns that B has been coached to say the things he is reported to have said to the mother, the maternal grandparents and his therapist Ms M. In circumstances where he has now not seen either of his children since May 2019 his frustration and attempts to find an explanation for what has happened are not all that surprising. Of course if he has both sexually and/or physically abused B this attitude would raise significant questions about his credit and even more importantly, for the purposes of the matters the Court must determine, his parenting capacity. However, I generally found him to be a forthright and honest witness doing his best to tell the truth in extremely difficult circumstances. I similarly found the paternal grandmother to be a good witness doing her best to tell the truth whilst not shying away from her obvious love and concern for her son.
In contrast I have significant concerns about the mother’s evidence and even greater concerns about the evidence of the maternal grandmother, which is of particular significance given that the allegations of sexual abuse started with the alleged conversation between B and the maternal grandmother on 12 March 2019 (“the first disclosure”). The difficulty in this case in particular is knowing based upon the evidence of the maternal grandmother exactly what was said and in what context on 12 March 2019 and what conclusions should be drawn based upon that conversation.
Although Affidavits sworn by both the mother and the maternal grandmother were filed on 5 April 2019, less than a month after the first disclosure, there was no mention in either of these affidavits of B having disclosed that he had been sexually abused by the father or any other member of his family. Nor was there any mention of the first disclosure when the father and mother were interviewed for the Child Dispute Conference Memorandum on 15 April 2019, a little over a month after the first disclosure was said to have been made and approximately two weeks after B participated in a Police interview in relation to the first disclosure. Although in cross-examination the family consultant did say that this can sometimes happen because the Department will ask parents not to discuss information that has been provided to them until they have had the chance to complete their investigation, it is not clear from the evidence before the Court if that was the reason in this case.
The maternal grandmother’s evidence raised a significant number of questions about her recollection of exactly what was said and the context in which it was said. For example in cross examination she said as follows:
And throughout your affidavit, you record some “I said/he said” conversation with –between yourself and [B]?---Yes, I did
All right. Now, the ..... conversations was from about October 2018, your affidavit stated April 2020 - - -?---Yes.
- - - about 18 months later. Did you make any notes somewhere else of these “I said/he said”, or you’re just working from your memory?---This is a document that’s consolidated from other documents in earlier proceedings, Mr Cairns. So this is not the first time I’ve written them down.
All right. So you’ve taken them word-for-word from a previous document. Is that right?---I can’t say that they’re word-for-word. This is my best recollection at 9 April 2020.
Right?---I viewed previous documents.
All right. So when you say it’s not word-for-word, whatever was in an original version or an earlier version, have you perhaps changed the words as you’ve prepared subsequent versions?---I’m not aware that I did that, but perhaps an occasional word is different. I haven’t sat down and compared documents, Mr Cairns.
The first time the maternal grandmother referred in an Affidavit to the first disclosure was in her Affidavit filed on 16 May 2019 in support of the mother’s application to suspend the children’s time with the father. Although the evidence in relation to the first disclosure in her trial Affidavit appears to be a direct copy of the evidence in her earlier affidavit, she qualified the evidence in the earlier affidavit in the following terms:
.. I am aware there is a need for brevity so have limited the evidence below to briefly describe the content of some conversations. I have used direct speech, though note that some of the conversations were of greater length. I respectfully seek to reserve my right to provide greater detail of the conversations deposed to herein should that be required.
In cross-examination the maternal grandmother’s recollection of what had been said and events generally was poor and she said repeatedly that she could not remember or recall word for word what she or B had said or the context of those conversations she had with B. This includes but is not limited to the following examples:
·…I can’t say that they’re word for word.
·…No not word for word…
·…I cannot give you an exact recollection of the words…
·…I don’t remember my exact response. No.
·..I may have I don’t recall now…
Whilst with the passage of time the ability to recall particular conversations and events may diminish, and the maternal grandmother’s ability to recall and her lack of detail may on that basis not be that surprising, it is however significant for the purposes of the Court being satisfied that what she reports the child saying to her is accurate in circumstances where even a word here or there could change the whole meaning of a conversation and how it should be interpreted.
My reservations about the maternal grandmother’s recollection of what occurred were amplified by the differences between what she deposed to, what the mother says she was told by the maternal grandmother following the first disclosure, what she reported to the Department and her email exchanges with the Police ahead of their first interview with B on 22 March 2019. One example was the information contained in the maternal grandmother’s email to Mr R on 20 March 2019 in which she said that it “appears many of the acts have taken place at [J Town] when [Ms P] was ‘at the shops’”. As put to the maternal grandmother by counsel for the ICL, there had been no mention of either Ms P or J Town when she had first reported the matter to the Department. The maternal grandmother was unable to offer any explanation. And although the maternal grandmother did not mention either Ms P or J Town when she first reported the matter to the Department, the mother in her trial Affidavit also described being told by the maternal grandmother about B having been abused at J Town.
Although the mother told the family consultant that before being told of the first disclosure she had not suspected any sexual abuse, she appears to have accepted without question that the maternal grandmother had accurately reported what B was alleged to have said to her. When she was asked by the family consultant about the father’s belief that the maternal grandmother may have fabricated the first disclosure the mother’s response was that she had “no reason to believe her mother would do this”. She added that “her mother was visibly distressed and crying when she revealed to her what B had told her on the first occasion he disclosed, so she does not believe her mother has made these things up.” When the family consultant raised with her the possibility “ that adults learning of a child’s disclosure of sexual abuse might have cause to wonder whether they might have misunderstood the child, or whether there could be some other explanation for what the child had told them” she said she could “only comment on what her mother had told her about the statements B made” and that the maternal grandmother “seemed to believe that what B was saying was the truth” and that what she was told he said was “not something that a five year old child could possibly come up with unless they had actually experienced this.” For her part the maternal grandmother said she did not “hesitate to believe what B was telling her because of the content of what he said, and the manner in which he said it, did not appear to be something that B could have made up.”
In the Family Report the family consultant said at paragraph 42 as follows:
…[the mother] said that, when she was first informed by her mother of the comments [B] allegedly made to her ([Ms N]), she ([the mother]) was “horrified” and “distraught”. It is noted in affidavit material that, upon being told by [the maternal grandmother] what [B] had said, [the mother] ran outside, and started screaming and crying. [The mother] was questioned about what led her to immediately accept and be so sure that [B’s] reported statements were disclosures of sexual abuse from [the father]. [The mother] firstly said that, as [an educator], she is of the view that children should be believed when they make disclosures of abuse. She went on to say that the reported disclosure involved [the father’s] brother, [Mr F], whom she always found to be “an extremely strange person”. [The mother] was asked if, upon her mother first telling her of [B’s] alleged statements, she experienced any doubt that [the father], whom she was formerly in a long term relationship with, could be capable of such abuse; it was pointed out to [the mother] that it is often difficult for parents to accept that someone they loved and trusted could be capable of sexually abusing their child. [The mother] said that, at that point, because of the way [the father] had behaved towards her towards the end of their relationship, she felt as though she did not know him, so she did not experience such doubt.
The family consultant also said as follows:
The only somewhat unusual aspect of [the mother] and [the maternal grandmother’s] accounts about [B’s] disclosures are that [the mother] and [the maternal grandmother] seemed to very readily accept [B’s] disclosure. While it may seem that the statement [B] made to [the maternal grandmother] initially was highly indicative of sexual abuse, it might normally be the case that an adult learning such information would be somewhat sceptical about whether they have clearly understood such utterances from a five year old and ponder the possible meanings before coming to a conclusion about what they meant. While [the maternal grandmother] may be more likely to readily accept such information given her relationship with [the father] was somewhat removed, it seems unusual that [the mother] would not question, or attempt to reject the news, that her son has made a disclosure of sexual abuse from the man that she once loved and trusted. Such a lack of doubt seems curious, but it is also accepted that it may have been possible that they readily accepted the information as there was a breakdown of trust with the deterioration of the relationship.
The family consultant also said in cross-examination in response to a question as follows:
HER HONOUR: Is it fair to say something may have happened but not specifically as described? I mean, some of the descriptions around these things are less clear than others?---Yes. And that’s - - -
Hundreds of times?---Yes. And that’s why - - -
The grandmother, the – less clear cut perhaps?---Yes. And that’s why it’s really difficult when a child makes a disclosure of some kind of abuse because they – they can exaggerate what they’re saying. They can make up elements of what they’re saying. I – I guess from the information I was given though for [B] to – to spontaneously come out with a story that – yes, of – to – to – the licking on the penises, that would be unusual for a five year old boy to spontaneously start talking about. And that, in combination with, you know, stuff – popping of penis and sticky stuff on their bed, that’s not – that would be unusual for a five year old or four year old child to – to talk about if they haven’t had some kind of experience with – with these things. And then, in top – on top of that spontaneously saying to his sister, “you’re so cute”, you know, what – what he said, that – yes. There would have to be, I think, a fair bit of encouragement and coaching then to – to tease this stuff out. I think – yes. I would probably try to concentrate on learning as much as – as – as could be learnt from the maternal grandmother about the context of these statements being made because certainly if you were probing a child and trying to elicit information that fitted with a view you had in your head, you could get a child to say those things.
But if they were spontaneous offerings it seems more likely that he’s talking about things that have happened. Look, the other thing too is that, you know, a child might – maybe something has happened to – to [B]. He has named three people. You know, is it – is it all three of them? Is it one of them and he’s conflating? These are all things that can happen with a four year old boy.
As previously referred to the maternal grandmother immediately, and it seems without any time for reflection, assumed that B had been sexually abused based upon the disclosure she said he made to her on 12 March 2019. Her evidence that a “a few minutes after my conversation with [B], I ran upstairs to our bedroom where [Mr N] was getting ready for work and said words to the effect of: ‘Darling, please attend to [C], [B’s] disclosing something to me” suggests that within minutes of her conversation with B she had already formed the view that he was disclosing to her that he had been sexually abused. It is also clear from the evidence with respect to the mother’s reaction to what was reported to her by the maternal grandmother that she similarly did not stop to reflect or consider that her mother may have misreported or misinterpreted what B had said to her or that there could be any other explanation.
The maternal grandmother said repeatedly in cross-examination that she believed B, including on a number of occasions when she was questioned about matters which were not necessarily consistent with the father having sexually abused B. She did not appear to have either analysed or questioned whether in fact B was describing something that had really happened. This is despite some of the allegations being quite extreme and on the face of it somewhat improbable including the allegation that he had been abused 100’s of times and that the father’s elderly mother and aunt had both been involved.
In my view the fact that both the maternal grandmother and then the mother, based upon what she was told by the maternal grandmother, immediately concluded following the first disclosure that B had been sexually abused by the father raises questions about what weight should be afforded to their evidence. This is particularly so with respect to the disclosures that followed and what weight should be afforded to those disclosures.

I found the maternal grandfather’s evidence, in contrast to the evidence of the maternal grandmother in particular and the mother, to be somewhat more measured and the contrast between his evidence and that of the maternal grandmother was quite stark. For example towards the end of his evidence he said as follows:
…I am not sure I accept that it is literally true that it occurred on hundreds of occasions he was only five when he said that, I took that to meant that it occurred more than once, I do believe generally what [B] says has happened, yes I do.
In my view this demonstrated that he did not, unlike the mother and the maternal grandmother, accept everything the child said at face value without any analysis of the likelihood of it being literally true. That being said apart from the one conversation he had with B, which I will discuss in more detail later in these reasons most of what he knew of the alleged physical and sexual abuse was based upon what he had been told by the mother and/or the maternal grandmother.
I also have very significant reservations about Ms M’s evidence even allowing for the fact that she has been treating B and that she ultimately acknowledged when pressed that there might be other reasons for B’s behaviour other than him having been sexually abused by the father.
In her report dated 13 May 2019 Ms M said in summary that:
…[B] is a five-year-old boy who has experienced complex trauma for most of his life due to the sexual, physical, emotional and psychological abuse, compounded by the domestic violence witnessed. He currently exhibits anxiety and complex trauma symptoms and related behaviours.
Ms M clearly accepted as a fact that B had been physically, sexually, emotionally and psychologically abused. This was a feature of all three of her reports. However and significantly in my view, the conclusion she drew in her first report, which was repeated and underpinned her later reports, had to be largely based upon what she had been told by the mother and the maternal grandmother about what B had said to them rather than disclosures made directly by B or her observations of him. Between 12 March 2019 and the date of her first report Ms M referred in her notes to what she was told by B based upon which she could have drawn her conclusions other than by reference to what she had been told by the mother and/or the maternal grandmother as follows:
a)On 18 March 2019 that “daddy plays games with me I don’t like it”, “touching games, I don’t like it”, “I told [Granma] about it’ referring to his grandmother”;
b)On 30 March 2019 that “daddy is ridiculous, he sent the police to get me”. He further reported “daddy told me not to talk to the sergent and to you”;
c)On 4 April 2019 that ‘dad said not to talk to you, Ms M and Sergent R’;
d)On 2 May 2019 spoke about being “in a room with dad, his penis popped with sticky stuff, but he blames me and tells me I did it” and that the father “wants me to get into trouble with the police” and
e)On 18 May 2019 “getting angry, because I am not seeing daddy”, “I want to see daddy” and about the father “getting angry with me’ regarding informing disclosed by his that he had been “hurt by daddy”.
Although Ms M acknowledged that her role as a treator was different to the family consultant’s role and that she was not assessing the truth of the allegations as the family consultant was required to do she did say that she would challenge a patient if something that patient said seemed unrealistic or unlikely. In my view that is not consistent with her evidence in cross examination in relation to the child having disclosed that he had been sexually abused by his paternal grandmother and great aunt. Ms M gave evidence that B had never suggested to her that he had been sexually abused by the paternal grandmother and great aunt. Whilst it may have been strictly true that B had not said anything to her about either the paternal grandmother and great aunt her answer was somewhat surprising given that according to her notes she had been told by the mother on 1 June 2019 that B had told her that the paternal grandmother and great aunt had placed his penis in their bottoms. A matter she appears to have chosen to disregard. When Ms M was asked in cross examination whether this information might have altered her view her response was, somewhat surprisingly, that she “…would probably make more FACS reports and be more concerned”. This in my view suggests that having concluded that B had been sexually abused she did not and still has not considered any other possibility.
In contrast when the family consultant was made aware during cross-examination of this allegation she readily conceded that this information may well have impacted upon her assessment of the accuracy of what B had said.
At times during her evidence Ms M either avoided or appeared to find it difficult to answer the questions put to her. Whether this was a deliberate attempt to avoid answering questions, because she was defending the position she had taken or because she was not able to answer them the result was that her evidence was in these circumstances not particularly helpful. Whilst counsel for the father objected to Ms M making findings and sought to exclude her evidence on that basis, in my view, it is a question of what weight should be afforded to her evidence rather than whether that evidence is admissible.
In all of the circumstances I have little confidence in Ms M’s evidence generally and in particular with respect to her conclusion that B has suffered trauma as a result of having been physically, sexually, emotionally and psychologically abused by the father.
In contrast I found the family consultant a considered and cogent witness who had considered the complexity of the case and the various conclusions that might be drawn from the evidence before the Court.
ALLEGATONS OF FAMILY VIOLENCE AND PHYSICAL ABUSE DURING THE RELATIONSHIP
Counsel for the mother submitted that in circumstances where the Local Court has made findings and issued an Apprehended Domestic Violence Order (“ADVO”) based upon the wife’s complaint about the father’s physical abuse of the children this Court is bound by those findings and the only finding it can make is that there has been a determination in favour of the mother with respect to the allegations of the father’s physical abuse of the children and for the Court to do otherwise would be for it to in effect act as an appellate Court. I do not accept that submission.
Whilst pursuant to s 91 of the Evidence Act 1995 (Cth) evidence of the decision or of a finding of fact in an Australian court or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding, pursuant to s 60CC(3)(j) of the Act in child related proceedings the Court is required to consider ‘any family violence involving the child or a member of the child’s family. Furthermore s 60CC(3)(k) of the Act states as follows:
If a family violence order applies or has applied to the child or a member of the child’s family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Section 69ZX(3) of the Act provides as follows:
(3) The court may, in child-related proceedings:
(a) Receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
This Court has a discretion as to whether or not it should adopt the findings or judgment of a lower court. I do not accept as submitted by counsel for the mother that it is bound to do so. The transcript of the evidence in the ADVO proceedings is not in evidence before me and it is difficult to see how in those circumstances this Court could adopt the findings or judgment of the Local Court. In B & J [2009] FamCAFC 103 the Full Court comprising of May, Thackray and Strickland JJ whilst addressing the application of issue estoppel principles referred to the decision of the Full Court in Schorel, In the Marriage of (1990) FLC 92-144 at 78,004 as follows:
…Issue estoppel has at best a very limited application in family law proceedings, for reasons referred to in the above cases. Public policy upon which estoppel is based, does not support the use of that doctrine within this jurisdiction – at least in its jurisdiction in relation to the custody of children. The Court has a clear obligation to concern itself with the welfare and interests of the child or children concerned and may not allow that duty to be circumscribed by what area basically technical rules of evidence…
The Act provides for this Court to make orders inconsistent with an ADVO in circumstances where it considers that it is in the child’s best interests to do so (s 68P of the Act). In order to do so this Court must make its own assessment of the evidence irrespective of the outcome of the proceedings in the Local Court.
In her Affidavit filed 9 April 2020 the mother deposed that by 2016 her relationship with the father had become more strained and she described not understanding why he frequently seemed angry. She described the father during this time as becoming rougher with B and smacking him hard on his arms, legs and body when he was fractious or difficult to handle. The mother’s evidence was that B’s behaviour was challenging and he had frequent physical tantrums. The mother says she contemplated separating from the father at that time because of the impact the husband's behaviour was having on B.
The mother also deposed that over the 2018 calendar year she observed the husband losing patience with B and using physical punishment to discipline him. The mother alleged that she heard the father yell loudly and angrily at B and that she observed the father forcefully pulling B away from C if he went near her and smacking him hard on the bottom, legs and arms. The mother’s evidence was that this happened on at least 10 occasions however she did not provide details of all of these incidents.
The mother also set out in some detail her concerns about the husband’s gun collection however those concerns were primarily in relation to the husband leaving guns where the children could see them and talking to B about his guns. Although the husband’s gun collection was confiscated as a result of the ADVO and B did talk about the father’s guns with Ms M on a number of occasions and on 9 March 2019 described the father as “making me eat noodles, he pointed his gun at me” and said that “you shouldn’t talk to my dad he can shoot you” there was no other evidence of the father using the guns to either threaten or harm the mother or the children.
This aspect of the mother’s case focused on three particular incidents of during which she said B had been physically abused by the father. At paragraph 35 of her Affidavit the mother described the following incident which she said occurred in or around June 2018 (the “Bed-Head Incident”):
...In or around June 2018, I was in the lounge-room and [the father] was in [B’s] room, getting him ready for bed. I heard [B] laughing and then heard [B] scream. I ran to the bedroom and saw [B] in the corner of the room, up against the wall, crying hysterically. [B] said to me words to the effect:
“Daddy hurt me.”
I said to [the father] words to the effect: “What happened?”
[The father] pushed past me and said words to the effect: “You deal with him, he’s being a fucking asshole.”
[The father] then left the room. I then tried to console [B] who was crying by this point. When he stopped crying, [B] said words to the effect: “Daddy pushed me onto the bed” and pointed to the back of his head. I said to [B] words to the effect: “What do you mean he pushed you?”
B turned his head face down and motioned back and forwards into the pillow a number of times. I said to him words to the effect: “Darling, why are you holding your head?”
B responded words to the effect: “Daddy was holding my head. My head is sore”.
After I settled B, I walked to the loungeroom, where [the father] was, and said words to the effect: “Did you smash B’s head into the pillow? He says you did it a number of times”.
[The father] said words to the effect: “Well, yeah, I did”.
(Emphasis in Original)
At paragraph 36 of her Affidavit the wife described a further incident on 22 November 2018 (the “Neck Incident”)
…On 22 November 2018, I was in the loungeroom at [H Town]. [The father] was in the children’s bedroom, with [B] and [C]. I heard [B] scream and ran to [B’s] bedroom. I saw [B] holding his neck. [B] said words to the effect: “Daddy hurt my throat”.
I said to the father words to the effect: “What happened?”
the father said words to the effect: “I grabbed him at the back of the neck to stop him going for [C]”.
[B] said words to the effect: “No, you didn’t, you did it round here”.
[B] indicated the front of his neck and throat region. I could see red marks on the side and front of [B’s] neck.
(Emphasis in Original)
The final incident occurred in late November 2018 and is described at paragraph 37 of her Affidavit as follows:
…In or around late November 2018, a further incident occurred when [the father] was in the children’s bedroom in the morning. I heard [the father] speak loudly to [B]. I then heard [B] start to cry.
I walked into the room and saw [B] on the floor holding his head and crying. I said to the father and [B], words to the effect: “What happened here?”
[B] said words to the effect: “Daddy threw me and I hit my head”.
[The father] said words to the effect: “I didn’t throw him, I pushed him and he fell over”
(Emphasis in Original)
The mother deposes that it was after this incident that she left the family home and moved to Sydney to live with the maternal grandmother and grandfather, because she said she could no longer tolerate the father’s behaviour and in particular his treatment of B.
The father was cross-examined about these allegations of physical abuse in particular the allegations with respect to the “Bed-Head Incident”, the “Neck Incident” and the incident in late November 2018 which the mother says occurred in C’s bedroom.
During cross-examination by counsel for the ICL in relation to the “Bed-Head incident” the father described what he said was a bedtime game as follows:
Now, [B] is reported to have said that, “Daddy pushed me onto the bed.”?---Yes, or did he say pillow?
He’s reported to have said, “Daddy pushed me onto the bed. Daddy was holding my head. My head is sore.” Can you recall that event and what you say happened between yourself and [B] on that occasion?---[B] and I had a game we played at bed time. We didn’t do it every time, but [B] would always want to be told three stories, three books. We would read more and I would just lay with [B] and talk to him and then I would say, “Okay. It’s time to get to bed now,” and so [B] would put his head up. He would be laying down facing me and I would be laying on my side facing him and he would put his head up as if he would want to get up and I would push his head back down and say, “No, no. Got to sleep now.” He would be giggling. He would put his head back up. “No, no, no. Go to sleep now,” and we would repeat that over and over, hence the giggling prior to [the mother] hearing the crying.
Okay, and so you would – you would play that game, basically pushing his head back into the pillow?---Yes, yes.
And you understood and he understood, you say, that that was a game?---Absolutely. We had done it many, many, many times.
All right. So what happened on that occasion that resulted in [B] crying out and crying?---Well, I don’t know whether his head hit the side of the bed, like, the bedframe or the actual wall .....
When you say that you don’t know, you were there and you were - - -?---Well - - -
- - - presumably pushing his head down, so - - -?---Yes, sure.
Yes. So how is it that you don’t know where his head hit?---Well, so he was – his back was against the wall - - -
Yes?--- - - - and my back was against the open room. [B] was on his side facing me, so the bedframe and the wall frame junction – the bedframe and the wall junction is there, so I don’t know which bit is he actually hit his head on because his head was – I can’t say. I couldn’t see it because it was on the other side from me.
So he’s, like, in a – it’s a corner of where the – so if I’m trying to imagine, the bed is in the corner of the room?---Yes, that’s correct. Yes.
Okay. So you’ve got two walls behind you?---Yes.
You’ve got a bedhead and he’s lying on his side?---Yes, that is correct.
Same as usual, and you’re lying on your side facing him. Is that correct?---Yes, yes.
Okay, and he’s putting his head up and so you’re putting your hands where exactly? On the side of his face?---Side of face like that, yes.
One side. And pushing his down?---Yes.
How did that get near either the bedhead or the wall behind him? How - - -?---Not – no, not the bedhead, so the bedframe, so the frame that runs horizontal, yes. So when he - - -
How did it happen?---Well, he was over against that side of the bed against the wall.
I see – did you – would I be right in asking or surmising that you must have – even though it was a game, there must have been a little bit of force for that to have actually hurt him if – you know, when you’re pushing down is it possible that it got a bit rough?---No, no, no, not at all because he would release or almost pull his head down with it because it was a game. Like, he would almost – he would go down or pull his own head down at the same time.
But on this occasion he screamed and did he jump out of bed?---He sat up an held the back of his head. He went like - - -
..... okay, and started crying and - - -?---Yes, that is correct.
- - - that’s when [the mother] came in?---Yes, that’s correct. Yes.
So you say that was a game that you played, but it just went a bit wrong on that occasion?---Absolutely. We had played that game many, many times before and if I was still with [B] now I would be still playing the same game with him if it came to that at bed time. I wouldn’t change that game. Absolutely not.
In summary what the father was saying and I accept his evidence was that this was a game that he and B had played many times.
In cross-examination by counsel for the ICL the father said in relation to the “Neck Incident”, as follows:
All right. The next incident is in November of 2018 and that’s at paragraph 36 of [the mother’s] affidavit, your Honour, page 44 down the bottom. the mother says that you were in the children’s bedroom with [B] and [C] and she heard [B] scream and she ran to the bedroom and B was holding his neck and he said words to the effect of, “Daddy hurt my throat.” Do you recall that event?---Absolutely, yes.
What do you remember happened?---We were in the lounge room where it started and [B] kept attacking and pushing [C] and he thought it was a good game. He was giggling and he’s winding himself up more and more and more and he’s bumping into [C]. She’s only just learning to walk. He’s bumping into her, knocking her over. She keeps crying. [The mother] was disconnected from the – us at that point in time where she was on her phone or whatever else, Snapchat, whatever she was doing, and he repeatedly did it. He knocked [C] over three or four times. [The mother] didn’t come in when [C] was crying and so I was soothing [C] until she was comfortable and settled enough and I put her down and I picked [B] up and I carried him into his bedroom. That wasn’t forceful. I picked him up, carried him in. I was sitting next to him. He was on my left side. I was sitting on his bed and we were talking about making good decisions, not to hurt [C], she’s just learning to walk. “You’ve got to be gentle with [C]. You can’t bump into her like that.” [C] wanders in. [The mother] still hasn’t come into the house or from the kitchen. I’m not sure exactly where she was. [C] comes in. [B] has got toys across the floor, the big block Lego, all that sort of thing. I’m talking to [B]. [C] comes in and she’s just – mosey on playing. [B] lunged for [C] and I’ve grabbed [B]. This hand has gone around behind [B’s] neck and I’ve grabbed him on the shoulder on this side as he has lunged forward for [C]. Unfortunately, I wasn’t quick enough and he still bumped into [C] and they both fell on the floor.
…
Now, you said then you grabbed [B] at the back of his neck and on the shoulder?---That’s correct, yes.
When looking back at that do you – was that just a heat of the moment thing?---Do you mean it was a reflex thing? Yes, it was a reflex thing. I just grabbed. It was – yes. I just grabbed. It was a reflex.
Do you understand that in retrospect that would – that could have been quite painful for the child to be grabbed round the neck?---I just – reflex. I wasn’t aiming for his neck. That’s just where my hands landed. I would have – sorry. I was going to digress, but that’s not the question. Sorry.
Yes, that’s okay. So I’m just trying to picture it. You were sitting on the bed with [B] and [C] toddled in .....?---Yes, toddled in.
..... toddled in?---Maybe two minutes or so later. Obviously, she was left alone and she has wandered in to see where we are.
Yes, and so you’re sitting on the bed. [B] jumped off the bed?---He’s sitting on the bed next to me and - - -
Yes.?--- - - - with his feet on the floor and - - -
Yes?--- - - - he’s lunged forward. Yes.
And he’s lunged forward? And so you’re still sitting on the bed?---Right next to [B], yes.
Yes, and the description is you grabbed the back of his neck and his shoulder to - - -?---His arm.
- - - stop him. Yes, and his arm. So literally to stop him getting off the bed, essentially?---He was – no. To not land on [C]. He was already out there.
Did it leave some marks on the side of his neck?---I don’t recall.
Is it possible that it left some marks?---I couldn’t say. I never noticed any marks myself.
Did [the mother] say anything to you about some marks on [B’s] neck on that occasion?---No, no.

This includes the wishes of the children. However, in my view the wishes of the children in this case are of little relevance. As submitted by counsel for the ICL C is still very young and is likely to have little or no recollection of spending time with the father based upon which she could express a wish. Although B is likely to recall the father and the time they spent together, I am satisfied that given all that has occurred, the fact that he has not seen the father for two years and having regard to the strongly held views of the mother and the maternal grandmother and Ms M with whom he has had ongoing therapy, his wishes should be afforded little weight.
I have already found that I am satisfied that the children had a meaningful relationship with the father prior to separation and that relationship continued when the children spent time with him after separation albeit that time was supervised time. However it is not possible to draw any further conclusions about that relationship in circumstances where the children and the father have not had the opportunity to continue to develop their relationship and absent evidence by the family consultant of her observations of that relationship. What is clear is that the father has also demonstrated, in very difficult circumstances, his commitment to having a relationship with the children. For obvious reasons the father has not had the opportunity to participate in making decisions with respect to the welfare of the children.
The father’s evidence is that, the mother having opted not to seek a child support assessment, he offered to pay child support but that the mother did not respond to his offer. The father’s evidence in relation to this issue was not challenged however in all of the circumstances of this case whether or not the father has paid child support is in my view not central to the outcome of the case.
Section 60CC(d) of the Act requires the court to consider the likely effect of any changes in the children’s circumstances including the effect of any separation from a parent or other relative with whom the child is living. The parties have agreed that the children will continue to live with the mother. She now lives independently of the maternal grandmother and grandfather albeit in reasonable proximity to their home. On the other hand the children have already been separated from the father for a substantial period and on the mother’s case would not have a relationship with the father for the foreseeable future which in my view would not be in their best interests. The orders the father seeks will give the children the opportunity to re-establish their relationship with him which I am satisfied is in their best interests.
In this case the question of the capacity of the parents to provide for the needs of their children has been focused on the allegations of physical and sexual abuse. As previously referred to the mother had some difficulty acknowledging the children’s relationship with the father notwithstanding the largely unchallenged evidence as to the father’s involvement in the children’s care during the relationship. The mother’s willingness to immediately accept that B had been sexually abused by the father, even though she was not present when the alleged disclosure was made, and her inability thereafter to consider any other possibility also raises questions about the mother’s insight into the emotional needs of the children. She did not, as the family consultant suggested a parent might normally do, consider whether her mother had understood what B had said or “ponder the possible meanings before coming to a conclusion about what they meant”. The consequences of her not doing so have had a significant impact on these young children’s lives. In my view given the seriousness of the consequences for the emotional wellbeing of these children some consideration of other possible explanations was warranted. And yet even now the mother seems not to be able to consider any other possibility. Nor did the mother have any real insight or understanding of the possible negative effects upon the children of not having any relationship with the father.
As previously referred to an ADVO order has been made albeit it is the subject of an appeal. Having found that I am not satisfied that the father physically abused B and not being satisfied that there is an unacceptable risk of sexual abuse of either child I propose notwithstanding the ADVO to make orders that the children spend time with the father. I note that in so far as the ADVO included the mother she was not a named PINOP for the purposes of that order.
The family consultant commented on the pressure that these proceedings have placed upon the parties in this case and it follows the children and there is a real likelihood that future proceedings will impact on both the parents and the children. I am satisfied that in these circumstances it would be preferable to make orders that would be least likely to lead to the institution of further proceedings so that the parties are able to get on with their lives without the spectre of further litigation hanging over them.
In my view whether or not there are further proceedings will depend to a significant extent upon the mother’s ability to support the orders the Court makes and the children’s relationship with the father. Given the strongly held views of the mother and the maternal grandmother that B has been sexually abused by the father and other members of his family I am concerned that if the Court were to make interim orders this could lead to ongoing litigation in relation to how the children and B in particular are coping with spending time with the father and invite if not encourage further litigation. I am satisfied that this should be avoided to the extent it is possible to do so.
IN SUMMARY
Although I am satisfied that orders for the children to spend unsupervised time with the father would not pose an unacceptable risk to them of either physical or sexual abuse I accept the family consultant’s evidence that as proposed by the father the children’s time with him should, at least initially, be supervised. The purpose of this supervision being twofold. Firstly to the extent that there is any risk it will ameliorate that risk, hopefully also providing some reassurance to the mother. And secondly it will support the children’s reintroduction to and future relationship with the father. It will have the added benefit of avoiding the possibility of any unsubstantiated allegations.
The ICL proposed that if the Court were to find that the father does not pose an unacceptable risk of abuse to the children they should spend time with him once a fortnight at a contact centre for a period of 6 months and thereafter in Sydney from 9.00am to 4.00pm on the first Sunday of each calendar month. It is not clear the basis upon which the ICL made this proposal and in any event the family consultant expressed a somewhat different view. When the family consultant was asked to express her opinion on the father’s proposal it was her evidence that it was reasonable and that she thought the children would cope and that although she said that the mother and her family might need some time to prepare themselves she also said that spending time with the father with some support if that was the Court’s decision should occur as soon as possible. She also said that although the children should be given support it “wouldn’t want to be too drawn out and possibly, you know, create some kind of anxiety for B. And so you would want it activated fairly quickly, but, maybe one or two sessions - maybe – maybe two- yes one, or two or three sessions beforehand, but I certainly wouldn’t want it drawn out too long.”
The father proposed that there be supervision for a more extended period that proposed by the ICL. Firstly at a contact centre for 12 consecutive visits, rather than the 6 months and thereafter the time to be supervised for a further 6 months by a responsible third person as agreed or failing agreement by a private supervision service. However the family consultant also said that supervision could send B a message that he needs to be protected from the father reinforcing his belief, whether that belief is soundly based or not, that he has been abused by the father. In my view spending time at a contact centre is more likely to reinforce that belief than the less formal setting proposed by the father after the first 12 visits. However I am also concerned that a further 6 months of supervised time, even in a less formal setting, has the potential to lead to both children believing that it is not safe for them to be with the father without supervision and possibly reinforcing in B’s mind that he has been sexually abused by the father. On that basis I propose make orders in the terms proposed by the father save that I propose to reduce the further period during which supervision will be required to three months making a total period of approximately 6 months.
Although the family consultant said in her evidence that there should be a further assessment before moving to unsupervised time to see how the children might be coping she also referred in that context to there “still being allegations hanging overhead of, you know, did this happen or didn’t this happen.” It was also before the family consultant was made aware of B having alleged that he had been sexually abused by the paternal grandmother and great aunt which as previously referred to she readily acknowledged would raise questions about the accuracy of what he had said. I have found that the risk of the children spending time with the father is not unacceptable and in my view there is no reason in these circumstances why the children should not after an initial period of supervision spend unsupervised time with the father. This accords with the ICL’s proposal in the event that the Court was to find that the risk of the children spending time with the father did not pose an unacceptable risk.
However, although I am satisfied that it is in the children’s best interests to spend time including unsupervised time with the father and there seems to be no reason why this should not in due course include overnight time, the risk of the children being abused by the father was not the only the risk in this case. There is also the question of how the children might be coping with their reintroduction to the father after so long particularly given that the mother may be unable to accept any other possibility other than that B has been sexually abused by the father. In circumstances where there was also some uncertainty about the father’s proposals for overnight time in Sydney and given his concession that there might be some benefit in the Court relisting the matter in 6 to 12 months I propose to adjourn the question of the children spending overnight time to a date after the commencement of unsupervised time. Although it is to be hoped that this family will be able to move forward and the father and mother reach agreement as to the way forward if they cannot there will be an opportunity for the father to pursue his application for overnight time putting forward his proposals based upon the circumstances at the time and for there to be a further assessment at that time if the Court considers it necessary.
FAMILY THERAPY
I also accept the family consultant’s evidence and the ICL’s submission that the children should attend family therapy with a therapist other than Ms M to support the reintroduction of their relationship with the father. Given my reservations about Ms M’s evidence and the conclusions she drew I do not accept as submitted by counsel for the mother that it would not be in B’s best interests for another expert to be appointed or that it would interfere with his recovery from the complex trauma Ms M says he has experienced.
I agree with counsel for the ICL submission that Ms M’s evidence was extremely concerning firstly because of her inability to recognise the possibility of their being harm to the children if they were to have no relationship with the father or offer any guidance as to how this might be managed and the lack of any certainty with respect to her ongoing treatment of B. Notwithstanding Ms M’s role as a treator rather than a forensic psychologist I also have significant reservations in relation to her acceptance of the fact that B is a victim of physical and sexual abuse, her inability to reflect, having regard to the information available to her, as to there being any other possible explanation and the impact that has had on B. The concern being, as observed by the family consultant, that the ongoing therapy with Ms M may have reinforced in B’s mind that he is a victim of abuse in circumstances where that may not be the case.
I also have significant reservations about Ms M’s opinion that B is suffering complex trauma after long exposure to physical, sexual and psychological abuse and family violence. Although Ms M may have been well intentioned and whether she has fuelled the mothers concerns or vice versa I cannot say, I am concerned that her lack of insight may further cement in B’s mind and indirectly in C’s mind that the father is a danger to them causing them irreparable long term psychological harm. It was on this basis that counsel for the ICL proposed an order restraining the mother from continuing B’s treatment with Ms M.
Notwithstanding the family consultant’s evidence that the role of the family therapist and Ms M would be different I share the ICL’s concerns about B having ongoing therapy with Ms M. Although I am not satisfied that it would be in B’s best interests to continue his therapy with Ms M I am hopeful that the mother will reflect upon the findings the Court has made with respect to Ms M and B’s ongoing therapy with her and engage with the family therapist recommended by the ICL rather than continue B’s therapy with Ms M. However my preference is that this be done voluntarily and in an orderly fashion rather than it being necessary for the Court to impose a time frame as proposed by the ICL. I do not on that basis propose to make the injunction sought by the ICL or the father. However if the mother were to continue the therapy with Ms M and there is evidence of that therapy interfering with the reintroduction of the children to the father or their relationship with him or otherwise impacting on their welfare it may well be that the Court would in the future have to consider making an injunction in the terms sought by the ICL. I will however make the orders proposed by the ICL for family therapy to support the reintroduction of the children’s time with the father. I note that the ICL proposed and the parties agreed that the family therapist should be provided with copies of the Magellan Report and the Magellan Family Report and the affidavits if required. In my view the family therapist also needs to be provided with a copy of these reasons and will make that order.
THE FAILURE OF THE FATHER’S BROTHERS TO GIVE EVIDENCE
Counsel for the ICL sought an order that the children not be brought into contact with the father’s brothers Mr F or Mr G Kenny. The basis of the ICL’s submission on this point was that whilst the Court could not make a positive finding with respect to the allegations made against them by the mother, in circumstances where the Court had not had the benefit of hearing evidence from them it should be sufficiently concerned about those allegations and not allow the children to be brought into contact with them.
Counsel for the mother in his closing submissions submitted as follows:
MR LLOYD: In the absence of [Mr F] coming along and - and supporting his brother [Mr Kenny] and denying that allegation, there's an inference that's available to your Honour to be drawn. [Mr F's] evidence would not be consistent with that of his brother. And I think I'm right in saying that they live on the same property.
In Jones v Dunkel (1959) 101 CLR 298 Menzies J said at 312 as follows:
…where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved contrary had he chosen to give evidence is properly to be taken into account as a circumstances in favour of drawing the inference.
In Kuhl v Zurich Financial Services (2011) 243 CLR 361 [at 384-385] the majority of the High Court said as follows:
…The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue. That problem did not arise here. The plaintiff's counsel did ask the plaintiff relevant questions.
The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.
(Footnotes omitted)
Although the proposed injunction refers to both Mr F and Mr G the cross examination in relation to this issue was focused on Mr F. The father’s evidence about this issue was that when the affidavit material was due to be filed he was self-represented and that he didn’t believe in circumstances where Mr F had not been interviewed by Police or Child Protection that he needed to put him on affidavit. I accept his evidence. I do not accept that in the circumstances of this case, including the limited nature of the legal assistance available to the father and having regard to the principles for conducting child related proceedings in Division 12A of the Act, that I should infer that their evidence would not have assisted the father’s case.
However although I am not satisfied for all of the reasons discussed that B has been sexually abused by the father or any other member of his family I propose, in order to ameliorate any risk, even if that risk is modest and not having heard any evidence from either Mr G or Mr F, to make the injunction sought by the ICL. I also accept the family consultant’s evidence that in any event it would be important to concentrate on building the children’s relationship with the father before introducing other family members. The father will however have the opportunity to seek orders discharging that injunction giving him the opportunity to adduce evidence from his brothers if he wishes to be permitted to bring the children into contact with them at some later date.
THE ORDERS
Although the parties agreed upon many of the orders proposed by the ICL there were a number of issues about which there was no agreement, the most obvious being what if any time the children should spend with the father and whether the children should attend family therapy with someone other than Ms M. I have already addressed these matters in my reasons. However although not the focus of the case there were other issues that required determination. Some of these issues were not addressed in the evidence and submissions or if they were addressed there were given limited attention. That is not surprising given the circumstances of the case however it does mean that some of these issues may need to be addressed when the matter is listed for a mention.

Although the father consented to an order that the mother have sole parental responsibility it was his case that in the event that the Court determined that the children should be spending time with him that the mother should be required to consult with him before making major long term decisions with respect to the children’s welfare. Although I am satisfied that the father and mother in this case would have difficulty communicating directly I am also satisfied that the father should be able to communicate his views about any major decision the mother proposes to make and that she should be required to consider his views before making her decision. The orders proposed by the ICL envisaged the mother advising the father by post or email of any decision she has made and there is no reason in my view why she could not advise the father of any proposed decision and the father respond in a similar fashion. I propose to make an order in those terms albeit in my view email is a better option.
The ICL also proposed that the mother should facilitate the children making contact with the father on special occasions such as their birthdays and Christmas Day. Although the father agreed with this proposal as a minimum it was his case that if the children were to be spending time with him provision should be made for the children to spend time with him on these special occasions. Although there is some force in the father’s submission none of the parties addressed me directly in relation to this issue. In any event I am satisfied that I should make the order proposed by the ICL and that this matter can be further considered after the children have been reintroduced to the father.
The father and mother also accepted the ICL’s proposal that the father be permitted to send the children letters, cards and gifts although it was the mother’s case that they should be vetted by the maternal grandfather. In circumstances where the children are to be spending time with the father I see no reason to require these letters, cards and gifts to be vetted by the maternal grandfather.
The ICL also sought orders restraining the father from attending the children’s schools or day care, extracurricular activities and the mother’s home and place of employment. Although I propose to adopt the ICL’s proposal and make the orders I will do so until further order. Although I am satisfied that these orders are appropriate during the children’s initial reintroduction to the father in my view they will need to be reconsidered as that relationship develops.
Although I have used the orders proposed by the ICL for the purposes of the orders I propose for clarity I have made some changes in the wording of those orders albeit not the substance.
Finally apart from those matters which will be adjourned to a date for mention the parties competing applications for final parenting orders will be otherwise dismissed and those applications removed from the list of cases awaiting hearing.
ICL’S APPLICATION FOR COSTS
Finally counsel for the ICL sought a contribution of $1,650 from both the father and the mother to the costs of the ICL. Apart from indicating that she was obliged to make the application counsel for the ICL did not otherwise make detailed submissions in support of that application. These proceedings have a long and very unfortunate history however I am not satisfied that there are circumstances in this case which would justify the Court making an order for costs. Whilst the father was a least for the purposes of the final hearing in receipt of legal aid the mother has had the benefit of Senior Counsels who appeared pro bono. Although I did not find either that B had been sexually abused by the father or that the children spending time with the father would expose them to an unacceptable risk of either physical or sexual abuse it cannot be said given the complexity of this matter that either party has been wholly successful. Nor is there anything about the way in which the parties have conducted the proceedings which would warrant an order for costs. In all of the circumstances I propose to dismiss the ICL’s application for costs.
The ICL in her minute or orders included an order that she be discharged. In circumstances where she may be called upon for the purposes of giving effect to these orders and there is to be a further mention of the matter I do not propose to make that order.

I certify that the preceding two hundred and sixteen (216) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Macmillan.
Associate:
Dated: 21 May 2021

File number(s):	SYC 8232 of 2018
Judgment of:	MACMILLAN J
Date of judgment:	21 May 2021
Catchwords:	FAMILY LAW – CHILDREN – MAGELLAN – Allegations of sexual abuse – where the mother alleges that the father and members of his family have sexually abused one of the children of the relationship and poses an unacceptable risk to both children of the relationship – where that child is alleged to have made disclosures to the maternal grandmother that he has been sexually abused by the father – where the child thereafter made further disclosures to the mother, maternal grandparents and treating psychologist – where the mother and maternal family believe the child has been sexually abused by the father and the paternal family – where the child did not make any disclosures to Police or Family and Community Services – where the allegations were not substantiated – where the Court is not satisfied to the requisite standard that the child has been sexually abused by the father or by any other member of his family – where the Court is satisfied that orders for the children to spend time with the father would not expose them to an unacceptable risk of harm – where the children will gradually be reintroduced to the father through a combination of supervised time and with the support of family therapy. FAMILY LAW – CHILDREN – Physical abuse – where the evidence does not support the conclusion that the children have been physically abused by the father – where orders are made that are contrary to an Apprehended Domestic Violence Order (NSW). FAMILY LAW – CHILDREN – spend time with – where the mother seeks that the children spend no time with the father – where the father proposes spending supervised time with the children progressing to unsupervised and then overnights – where orders are made for the father to spend supervised time with the children progressing to unsupervised day time. FAMILY LAW – EVIDENCE – Failure to call a witness – where counsel for the mother submitted that in circumstances where the father had not sought to adduce evidence from his brothers the Court should draw an inference that their evidence would not have assisted the father’s case [Jones v Dunkel (1959) 101 CLR 298] – where the father being self-represented provided a reasonable explanation for not having adduced evidence from his brothers – where the circumstances of this case do not permit such an inference. FAMILY LAW – COSTS – where the ICL sought a contribution from both parties – where the father is legally aided – where the mother’s senior counsel appeared pro bono – where neither party have been wholly unsuccessful and their conducted would warrant an order for costs – where the circumstances in this case do not justify the Court making an order for costs.
Legislation:	Evidence Act 1995 (Cth) ss 91, 140 Family Law Act 1975 (Cth) ss 102NA, 60B, 60CC, 69ZW
Cases cited:	B & J [2009] FamCAFC 103 Briginshaw v Briginshaw (1938) 60 CLR 336 Donnell & Dovey (2010) FLC 93-428 Fitzwater & Fitzwater [2019] FamCAFC 251 Jones v Dunkel (1959) 101 CLR 298 Keane & Keane [2020] FamCA 99 Kuhl v Zurich Financial Services (2011) 243 CLR 361 M v M (1988) 166 CLR 69 Mulvany & Lane (2009) FLC 93-404 Napier v Hepburn (2006) FLC 93-303 Re Andrew (1996) FLC 92-692 Re W ( Sex Abuse: Standard of Proof ) (2004) FLC 93-192 Schorel, In the Marriage of (1990) FLC 92-144 U v U (2002) 211 CLR 238
Number of paragraphs:	216
Date of hearing:	17-21 August 2020
Place:	Melbourne
Counsel for the Applicant:	Mr Lloyd SC
Solicitor for the Applicant:	Uther Webster & Evans
Counsel for the Respondent:	Mr Cairns
Solicitor for the Respondent:	El Baba Lawyers Pty Ltd
Counsel for the Independent Children's Lawyer:	Ms Rebehy
Solicitor for the Independent Children's Lawyer:	Shedden & Associates

SYC 8232 of 2018
BETWEEN:	MS BLANN Applicant
AND:	MR KENNY Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	MACMILLAN J
DATE OF ORDER:	21 MAY 2021