Jin & Jin - [2022] FedCFamC1F 927

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jin & Jin [2022] FedCFamC1F 927

File number: SYC 7272 of 2017

Judgment of: HENDERSON J

Date of judgment: 28 November 2022

Catchwords: FAMILY LAW – CHILDREN – Best interests – Where there are three children of the marriage – Where the first child reached 18 years old during the proceedings and the second child died during the proceedings – Where the third child is the only child subject to the proceedings – Where the mother seeks the child live with her and spend supervised time with the father until age 16 – Where the father seeks alternate weekend time and holiday time unsupervised forthwith – Where the mother initially sought no time and the father initially sought the child live with him and spend supervised time with the mother – Parental responsibility to be held by the parent with whom the child primarily resides – Family violence – Risk – Where the mother seeks a finding that the father posed an unacceptable risk of harm to the second child and therefore caution needs to be taken with time for the third child – Where the father seeks a finding that the mother poses an unacceptable risk of emotional harm to the child – Finding that the father posed an unacceptable risk of harm to the second child – Finding the father poses an unacceptable risk of harm to the third child currently if time is unsupervised – Finding that the father has engaged in highly inappropriate behaviour towards all the children – Balancing risks of harm – Where the child is at a risk of harm in spending unsupervised time with the father immediately – With whom a child lives – Orders made for the child to live with the mother – With whom a child spends time – Child’s views – Where at the hearing the child was nearly 14 years old – Where the expert evidence identifies that the child feels restrained by interim supervision orders – Where the risk of harm posed by the father necessitates time being initially supervised – Where the father’s time is to progress to unsupervised day time at 15 years old.

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC(2)(a), (2)(b), (2A), (3)(a), (3)(b), (3)(d), (3)(e), (3)(f), (3)(i), (3)(j).

Cases cited:
Fitzwater & Fitzwater [2019] FamCAFC 251.

Isles & Nelissen (2021) 65 Fam LR 1; [2021] FedCFamC1F 295.

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97.

Division: Division 1 First Instance

Number of paragraphs: 507

Date of last submissions: 19 August 2022

Date of hearing: 4–7 April 2022, 15–16 August 2022, 18–19 August 2022

Place: Sydney

Counsel for the Applicant: Ms Lawson

Solicitor for the Applicant: Crawford Ryan Lawyers Pty Ltd

Counsel for the Respondent: Mr Watkins

Solicitor for the Respondent: Duffy Law Group

Counsel for the Independent Children's Lawyer: Ms Rebehy

Solicitor for the Independent Children's Lawyer: Legal Aid NSW

Table of Corrections

12 April 2023 In the cover page, next to “Number of paragraphs”, the number “509” has been replaced with “507”.

12 April 2023 Paragraphs 320–509 inclusive have been replaced with Paragraphs 318–507 inclusive.

12 April 2023 In the certification, the number “509” has been replaced with “507”.
ORDERS

SYC 7272 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS JIN

Applicant

AND:
MR JIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HENDERSON J

DATE OF ORDER:

28 November 2022

THE COURT ORDERS THAT:
1.All previous orders in relation to Y, born 2008 (“the child”) are discharged.

Parental responsibility
2.The mother have sole parental responsibility for the child.

Live with
3.The child shall live with the mother.

Spend time
4.The child shall spend time with the father as follows:
(a)Commencing forthwith each alternate Sunday between 9.00am to 5.00pm, with such time to take place in the presence of or supervised by Ms QQ;
(b)From the child’s 15th birthday in 2023 and thereafter, each alternate Sunday from 9.00am to 5.00pm for a period of six months;
(c)Thereafter, each alternate Saturday and Sunday from 9.00 am to 5.00pm each day; and
(d)As agreed in writing between the parents.

Spend time – special occasions
5.In addition to Order 4, the child shall spend time with the father on the following special occasions:
(a)On 25 December 2022, from 9.00am to 2.00pm, with such time to take place in the presence of or supervised by Ms QQ;
(b)On 26 December 2023, and each alternate year thereafter, from 9.00am to 5.00pm;
(c)On Father’s Day in 2023 and each year thereafter and in the event the child is not already spending time with the father, from 9.00am to 5.00pm;
(d)On 25 December 2024, from 9.00am to 5.00pm and each alternate year thereafter; and
(e)As agreed in writing between the parents.

6.In the event that the child’s time with the father falls on Mother’s Day, the child’s time with the father shall be suspended for that day.
7.For the purposes of changeover, the father is to collect the child from and return the child to the mother or her agent at the McDonald’s Suburb RR, being SS Street, Suburb RR.

Telephone communication
8.On the child’s birthday, the child is to have telephone communication with the father between 4.00pm and 5.00pm, with the mother to facilitate the child telephoning the father on the father’s mobile telephone number.
9.For the purposes of Order 8, the father is to advise the mother of any changes to his mobile telephone number within seven days of such change.

Extra-curricular activities, school records and parent-teacher interviews
10.Within seven days of the date of these orders, the mother shall sign the appropriate authority at the child’s school to authorise the school to provide the father with copies of the child’s school reports and any other document ordinarily provided to parents.
11.The father is at liberty to attend two sporting, social or academic events each school semester that parents are ordinarily entitled to attend, even if such events fall outside the father’s time, provided the father gives the mother seven days written notice of his intention to attend.
12.For the purposes of Order 11, these events do not include parent-teacher interviews, and the father is at liberty to organise parent-teacher interviews separate to the mother.

Injunctions
13.The parents are hereby restrained by injunction from:
(a)Discussing these proceedings with the child or within the child’s presence or hearing;
(b)Showing the child any document pertaining to these proceedings; and
(c)Denigrating the other parent, or any member of the other parent’s family or household, to or within the presence or hearing of the child, and each parent shall use their best endeavours to ensure that no other person does so.

Independent Children’s Lawyer
14.These orders shall be explained to the child by the Independent Children’s Lawyer, and within seven days of the date of these orders, the mother shall arrange an appointment at Legal Aid NSW for this purpose.
15.Upon the completion of Order 14, the Independent Children’s Lawyer shall be discharged.

Costs
16.The parents, if not already done, will equally share the costs of:
(a)The initial contribution of the Independent Children’s Lawyer in the sum of $1,650, with each parent liable to pay $825; and
(b)The court attendance fee of the Family Report writer, Dr F, in the sum of $1,650, with each parent liable to pay $825.

17.For the purposes of Order 16, such costs are to be paid within three months of the date of these orders.

Miscellaneous
18.In addition to the parents, the parents’ legal representatives and the Independent Children’s Lawyer, it is permitted that these Reasons for Judgment be provided to the parents’ extended families, as well as any medical professional the parents or the child attend upon.
19.Should Ms QQ be unavailable to be present to supervise the father’s time with the child pursuant to Orders 4(a) and 5(a), Mr TT, the husband of Ms QQ, be permitted to supervise the father’s time with the child upon the following conditions being satisfied:
(a)That Mr TT sign and serve an Undertaking in the same wording that Ms QQ signed (and contained in Exhibit F4) no earlier than 14 days prior to the time the father is to spend with the child pursuant to these orders;
(b)That upon serving the signed Undertaking of Mr TT, that the father notify the mother, in writing, with the reason(s) why Ms QQ is unavailable to supervise the father’s time with the child; and
(c)The mother provides her written consent for Mr TT supervising the father’s time with the child.

AND THE COURT NOTES THAT:
A.The mother consents to Ms QQ supervising or being present during the father’s time with the child pursuant to Orders 4(a) and 5(a) and in lieu of QQ her husband Mr TT.
B.The father and X are strongly encouraged to seek a grief counsellor with respect to Z’s passing, and the events leading up to and after Z’s passing.
C.Pursuant to sections 62B and 65DA(2) 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 are set out in ‘Annexure A’ and those 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jin & Jin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HENDERSON J

The matter of Jin is a parenting application concerning the parenting arrangements for the parents’ youngest child, Y (“Y”), born 2008.
The parents had three children: X (“X”), born 2003, now 19 years of age; Z (“Z”), born 2006, who tragically took her own life in 2021; and Y, who was just shy of 14 years of age at the conclusion of the hearing.
With Z's passing, the parents faced an unimaginable tragedy, as did X and Y. There are further tragedies for this family as follows.
X lives with the father, and has done so since late 2019, and is estranged from the mother and spends little time with Y.
Y lives with the mother and spends limited supervised time with the father on Saturday’s for some three hours and spends little time with X. To use Y’s words expressed in the second Family Report:
[Y] stated that his preference was to be with [X] as it was a very lonely time for him.[1]
[1] Exhibit C2.
The mother spends no time with X as she is an adult and has determined not to spend time with the mother.
Aside from a short period of time on a day in mid-2018, Z spent no time with the father from 23 September 2017 until her passing. From early 2018, Z alleged the father had shown a lack of boundaries with her and she was frightened of him and his temper. In 2021 and just prior to her death, Z’s allegations had evolved to the father having sexually assaulted her by penile, anal and digital penetration from around nine years of age.
The mother believed Z’s disturbing allegations and that the father’s treatment of Z had led to her deteriorating mental health, which culminated in her taking her own life.
The father believes the mother “put” these ideas into Z’s head to obtain an advantage over him; an advantage that was not apparent to me.
Y is caught in the middle of this sad and nasty dispute and wants to be able to spend time with the father as it was before Z’s allegations reached their zenith.
Z’s first allegation, after an incident in mid-2017, was that the father frightened her due to his angry outbursts and the pressure he placed upon her and she did not want to spend time with him. In early 2018, her allegations were the father’s anger, that the father had been inappropriate with her by way of coming into the shower when she was showering, showering with her, sleeping naked with her, sleeping in her bed, asking her to kiss him, cuddle him, and kissing her on the lips.
These allegations escalated over the next few years until Z’s death in 2021 when she alleged the father washed her all over with soap on her breasts, between her legs, including digital penetration of her vagina with his fingers and his penis sometimes going inside her vagina and anus as well.
THE HEARING
The hearing occurred over eight days; four days in April 2022 and a further four days in August 2022.
The applicant mother (“the mother”) was represented by Ms Lawson of counsel, the respondent father (“the father”) represented by Mr Watkins of counsel, and the Independent Children’s Lawyer (“ICL”) represented by Ms Rebehy of counsel.
The witnesses that gave evidence during the hearing were as follows:
(1)For the mother:
(a)The mother, Ms Jin;
(b)Detective UU (“Detective UU”) (a detective assigned to investigate the allegations and disclosures made by Z);
(c)Ms VV (a previous partner of the father);
(d)Mr WW (the mother’s brother); and
(e)Ms XX (the mother’s sister-in-law and wife of Mr WW).
(2)For the father:
(a)The father, Mr Jin; and
(b)Ms QQ (the former sister-in-law of the father).
(3)The Family Report writer, Dr F.
DOCUMENTS AND EXHIBITS
The material I read was as follows:
(1)For the mother:
(a)Documents stipulated in her Case Outline to be relied upon:
(i)Affidavit of Ms Jin filed 14 March 2022;
(ii)Affidavit of Detective UU filed 14 March 2022;
(iii)Affidavit of Ms VV filed 14 March 2022;
(iv)Affidavit of Mr WW filed 14 March 2022; and
(v)Affidavit of Ms XX filed 14 March 2022.
(b)Further documents to be relied upon:
(i)A proposed Minute of Order provided to the Court on the final day of the hearing with handwritten amendments and additions.
(c)Documents tendered at the hearing:
(i)Case Outline filed 31 March 2022 (Exhibit M1);
(ii)A single page of a colour photograph of four children in a shower, produced under subpoena by NSW Police (Exhibit M2); and
(iii)A bundle of photographs and videos (Exhibit M3).
(2)For the father:
(a)Documents stipulated in his Case Outline to be relied upon:
(i)Affidavit of Mr Jin filed 16 March 2022;
(ii)Affidavit of Ms YY filed 26 March 2018 (the father’s sister);
(iii)Affidavit of Ms ZZ filed 26 March 2018 (the father’s former sister-in-law);
(iv)Affidavit of Mr MM filed 27 July 2021 (the father’s brother); and
(v)Affidavit of Ms AC filed 27 July 2021 (the father’s niece).
(b)Further documents to be relied upon:
(i)A proposed Minute of Order provided to the Court on the final day of the hearing.
(c)Documents tendered at the hearing:
(i)Case Outline filed 31 March 2022 (Exhibit F1);
(ii)A family calendar for the year 2008 (Exhibit F2);
(iii)Proof of Response evidence titled “[Mr Jin] evidence to be led” (Exhibit F3); and
(iv)Undertaking and Statement of Facts of Ms QQ with handwritten amendments to the undertaking (Exhibit F4).
(3)For the ICL:
(a)Documents stipulated in her Case Outline to be relied upon:
(i)Child Inclusive Conference (“CIC”) Memorandum of Family Consultant Ms L dated early 2018;
(ii)Family Report prepared by Dr F dated mid-2020 (“first Family Report” marked as Exhibit C1); and
(iii)Family Report prepared by Dr F dated late 2021 (“second Family Report” marked as Exhibit C2).
(b)Further documents to be relied upon:
(i)A proposed Minute of Order provided to the Court on the final day of the hearing.
(c)Documents tendered at the hearing:
(i)Case Outline filed 31 March 2022 (Exhibit ICL1);
(ii)Transcript of police interviews dated early 2018, mid-2018, and mid-2020 (Exhibit ICL2);
(iii)Video of the police interview dated early 2018 (Exhibit ICL3);
(iv)Video of the police interview dated mid-2018 (Exhibit ICL4);
(v)Video of the police interview dated mid-2020 (Exhibit ICL5);
(vi)Floor plan of GG Street, Suburb J (Exhibit ICL6);
(vii)GP Mental Health Treatment Plan for X dated early 2017 (Exhibit ICL7);
(viii)Documents produced under subpoena from the Department of Communities and Justice in relation to interviews of AD (Exhibit ICL8);
(ix)Updated Family Report from Dr F dated mid-2022 (Exhibit ICL9) (“updating Family Report”); and
(x)Letter from Y’s psychologist, Mr AE, dated mid-2022 (Exhibit ICL10).
(4)A joint tender bundle containing material only produced under subpoena.
CHRONOLOGY
In 1970, the father is born and at the end of the hearing was 52 years of age.
In 1980, the mother is born and at the end of the hearing was 42 years of age.
In 2002, the parents commence cohabitation.
In 2003, X (“X”) is born and was over 18 years old at the hearing.
In 2006, the parents marry.
In 2006, Z (“Z”) is born.
In 2008, Y (“Y”) is born.
In 2011, the mother was diagnosed with a health condition.
In 2015, AD (“AD”), the child of Ms VV, is born.
In November 2016, the parents separate on a final basis while living under the same roof.
In early 2017, the mother vacates the former matrimonial home. At this stage, the parenting arrangements for the children are an equal time, alternating week arrangement.
In early 2017, the parents have an argument while at a friend’s house. The father pressures the mother to give affection to him. Z is exposed to this argument.
In early 2017, the mother finds a suicide note in Z’s room. The mother immediately organises for Z to see a therapist.
A few days later, Z has her first session with psychologist, Ms R. Around this time, the mother also arranges for X to see psychologist, Ms AA.
In mid-2017, the father and Z engaged in a text message exchange regarding the parenting arrangements.
In late 2017, X is diagnosed with a medical condition.
On 23 September 2017, an incident occurs between the father and Z regarding wet towels. Z states that she feels “scared” in the father’s care and calls the mother to be picked up. The maternal grandmother takes Z to Mr WW’s house. This is the last time Z was at the father’s house and from this point on refused to see the father.
In late 2017, the father and Ms VV commence their relationship.
In late 2017, the mother takes Z to City E Police Station regarding the wet towels incident. The police take no action.
In late 2017, the mother finds X going through her bedroom “looking for evidence”.
In late 2017, the father contacts Ms R to organise a meeting.
In late 2017, Z discloses to Ms R that the father had “gotten a lot angrier and aggressive”.
In late 2017, the father has a meeting with Ms R, who tells him that Z is upset with him because he “mimicked” her.
On 3 November 2017, the mother files an Initiating Application seeking property orders only.
On 1 December 2017, the father files a Response seeking parenting and property orders.

In late 2017, Z discloses to Ms R that the father forced her to “kiss him on his lips”.
In late 2017, the mother writes to Ms R about proposals for Z to resume spending time with the father.
A few days later, the mother arranged for Z to spend time with the father and the paternal family for the next day, and the mother found Z hiding in a cupboard and saying that she did not want to go. The following day, when the children attended a restaurant with the paternal family, Z ran out, hid behind the mother and refused to say goodbye to the father.
At the end of 2017, after staying overnight with the paternal grandparents, Z said to the mother she had been asked by the paternal grandparents why she does not want to see the father and disclosed incidences of the father sleeping in the same bed as her and showering with her.
In early 2018, Z makes her first disclosure to Ms R that the father would sleep with her and Y in the same bed while naked, and that the father would shower with Z. Ms R makes a mandatory report to Family and Community Services (“FACS”), as it was then known.
In early 2018, but after Z’s first disclosure to Ms R, Z ceases seeing Ms R.
In early 2018, following the mandatory report made by Ms R, Z has her first interview with the police, conducted by Detective AF where she disclosed the father would shower together, sleep in the same bed with the father naked, and kiss on the lips.
In early 2018, the father has an informal interview with police regarding Z’s allegations and was told that although he denied the allegations, this behaviour was inappropriate and something he should address. No police action is taken.
In early 2018, the father has an interview with FACS.
Three days later, the CIC Memorandum prepared by Family Consultant Ms L is released to the parents.
On 12 February 2018, an order is made appointing an Independent Children’s Lawyer.
In mid-2018, Z shows up at the father’s house after a fight between the mother and her partner. The father organises for Z to attend a friend’s house for a sleepover.
The next day, the father receives a call from Z and she tells him she is returning to the mother’s house. This is the last time the father spoke to Z.
On 17 July 2018, orders are made by consent appointing Dr F as a single expert witness.
In mid-2018, Z has her second interview with the police, conducted again by Detective AF.
In mid-2018, the father, accompanied by his lawyer, sister and father, meet with police outside City E Police Station to advise them that the father will not participate in an interview.
In mid-2018, Z is admitted to JJ Hospital for the first time after an overdose.
In late 2018, the mother makes arrangements for Z to attend counselling sessions with Ms P, a sexual assault counsellor.
Soon after, Z has her first session with Ms P.
On 4 October 2018, the parents are divorced.
For a period in mid-2019, Ms VV lives with the father at Suburb J.
On 30 July 2019, the parents settled the property proceedings by consent.
In late 2019, X and Y returned to the father’s care as per the parenting arrangements at that time. X discloses to the father that the mother was angry at her and alleges that the mother said the father abused her and she does not remember because she has “supressed memories”. X then self-places with the father and refuses to spend time with the mother.
In 2019, the mother commenced cohabitation with her partner, Mr G.
In late 2019, AD discloses to Ms VV that the father told her to bend forward after using the toilet to check and see if she was clean. Ms VV states that AD did not require assistance and was toilet trained. Ms VV does not raise this issue with the father or any other person until mid-2020.
In early 2020, Z makes her second disclosure to Ms P that the father would insert his fingers and penis into her vagina.
The next day, Ms P makes a mandatory report to FACS.
In mid-2020, AD makes her first disclosure to Ms VV, being that the father “pats” AD’s vagina. AD repeated this disclosure the following day to Ms VV. Ms VV does not raise this issue with the father or any other person until a few months later.
In mid-2020, the father and Ms VV have a text message exchange regarding renting a property for his parents.
The next day, Ms VV attends the father’s house at the father’s invitation.
A few days later, Ms VV alleges in her affidavit that she began to pull away from her relationship with the father. This is also the last time AD stayed at the father’s house in Suburb J.
The next day, AD makes a further disclosure to Ms VV that the “patting” occurred while they and the father were watching a film. Ms VV does not raise this issue with the father or any other person until a few months later.
In mid-2020, Z makes a further disclosure to the mother that the father engaged in penetrative sex with her and Z stating she wanted to “reclaim sex back”. This was the first occasion the mother knew that Z made allegations that the father engaged in penetrative sex with Z.
In mid-2020, Z makes her third disclosure to Ms P, which in addition to her previous disclosures, included that the father would wash her while in the shower and penetrate her anally, and that this would occur every day.
Following these disclosures, the mother takes a mobile phone away from Y and through her legal representatives, advises the father that she will not be facilitating the week-about arrangement for Y because of the disclosures made by Z to Ms P in mid-2020.
In mid-2020, X commenced seeing a psychologist, Dr N.
In mid-2020, the father attends Ms VV’s house for her birthday.
On 19 May 2020, the father files an urgent Application in a Case on 19 May 2020 for Y to live with him, inter alia. It is also around this date that the father started playing an online multiplayer video game to communicate with Y.
In mid-2020, AD makes a further disclosure to Ms VV, being that when the father “pats” her on her vagina, that he moves his hand up and down between her vagina and anus. Ms VV does not raise this issue with the father or any other person until a few months later.
In mid-2020, X has her fourth and last session with Dr N.
On 10 June 2020, orders are made releasing the first Family Report prepared by Dr F.
On 12 June 2020, the mother files a Response to the father’s Application in a Case, seeking the father be restrained by injunction from communicating with Y, inter alia.
In mid-2020, Y’s mobile phone is returned to him.
In mid-2020, Z attends her third interview with the police, conducted by Detective UU. Z discloses that her previous and current disclosures of sexual abuse alleged against the father occurred “every night”.
In mid-2020, Ms VV asserts she ends her relationship with the father.
In mid-2020, Y texts the father to say that the mother has changed the sports club that Y plays for from Suburb J to Suburb AG.
The next day, Mr MM texts Y asking if he wants to do an activity with him and X. Y responds he does. This is at a time when the mother had suspended time with Y and the father.
A few days later, Y sends a text message to the father asking him to collect him from the mother’s house.
A few days later, in the early hours of the morning, the father kidnaps Y from the mother’s house, with X and Mr MM in the car.
On 14 July 2020, the mother files an Application in a Case seeking that the children live with her and spend supervised time with the father each Saturday, inter alia.
On 11 August 2020, a senior registrar of the Court makes orders for the father to return Y to the mother that day, Y live with the mother and spend supervised time with the father each Saturday for eight hours, inter alia.
In mid-2020, Ms VV confronts the father regarding AD’s disclosures, which the father denies all the allegations. Ms VV and the father only communicate after this regarding the return of Ms VV’s property at the father’s house. This is when the relationship between the father and Ms VV ceases.
During 2020, but after the previous incident, Ms VV attends the father’s house and finds a USB with various family photos, which include photos of X, Z and cousins naked in the bath and shower.
In late 2020, Ms VV speaks with Detective UU regarding an “unrelated matter” but noted the disclosures made by AD. On the same day, the father files an Application in a Case seeking a review of the orders made on 11 August 2020.
In late 2020, Ms VV speaks with Detective UU and provides further details of AD’s disclosures.
The next day, AD has an interview with police regarding her disclosures about the father. No disclosures are made and no action is taken.
On 3 November 2020, the father’s Application in a Case to review the orders made on 11 August 2020 is dismissed.
In early 2021, Z is admitted to JJ Hospital for the second time regarding a self-harm episode.
Two days later, Z is transferred from JJ Hospital to AH Hospital regarding her self-harm episode.
Approximately a week later, Z is discharged from AH Hospital.
In early 2021, Y attends therapy with Mr AJ, a psychologist.
In mid-2021, Z dies by suicide. The mother finds Z in her room, calls for her partner, and Y walks in. Emergency services are called and take Z to JJ Hospital. The father, X and other members of the paternal family attend the hospital, but are denied seeing Z’s body.
A few days later, the mother gives Ms XX an old computer which contains various family photos and videos.
In mid-2021, Z’s funeral is held. No member of the paternal family is permitted to attend. X attends the funeral.
At some point in mid-2021, Ms VV speaks with Detective UU and authorises her to provide the mother with her telephone number. The mother contacts Ms VV, and is provided information regarding AD’s disclosures.
During the same period, but after this conversation with Detective UU and the mother, Mr WW contacts Ms VV and asks her if she would be okay to speak with Y about what AD had disclosed, to which Ms VV agrees.
In mid-2021, Ms VV texts Y to provide details about AD’s disclosures.
A few days later, Ms VV provides Detective UU with the USB she found at the father’s house.
A few days later, Mr WW speaks with Y about Z’s disclosures and provides an explanation as to why he is not seeing the father.
In mid-2021, Mr WW, along with the mother, attends a session with Mr AJ to notify him that Y has been informed of Z’s disclosures and why he is not seeing the father.
On 30 June 2021, orders were made that the father spend supervised time with Y for three hours per week and that Dr F prepare an updated report, inter alia. These orders were the current parenting arrangements at the hearing.
In mid-2021, the father’s legal representatives send a graphic and aggressive letter to the mother’s legal representatives regarding the coroner’s evidence of Z’s death, inter alia.
On 24 November 2021, orders are made releasing the second Family Report prepared by Dr F.
In early 2022, Ms XX went through some of the photos on the mother’s old laptop found some photos and a video from 2015 of the children, particularly Z, that she found “concerning”.
THE PARENTS’ POSITIONS
The mother’s position based on Z’s allegations
In her affidavit, the mother alleges that she and Z had a conversation on in mid-2020 to the effect of the following:
[Z]: Can I talk to you about something? I’m not sure if you’ll want to though, and that’s okay.
THE MOTHER: What do you want to talk to me about?
[Z]: I don’t know how to bring it up.
THE MOTHER: What is the topic?
[Z]: What happened to me.
THE MOTHER: It is difficult for me to understand exactly what you mean. I don’t want to assume anything. I’ve always listened to any conversation you want to have with me and you do not need to worry about me and I will always be there for you.
[Z]: It may change your view about me.
THE MOTHER: No it won’t.
[Z]: Do you know why I have such long showers?
THE MOTHER: No.
[Z]: I want to reclaim the shower back.
The mother did not ask Z what she meant and stated in her affidavit:
… I assumed she was intending to speak about those matters that had been raised in therapy with the Police previously.
(As per the original)
The conversation between the mother and Z continued:
[Z]: I want to start to get my life back to reclaim myself. You know that I need to have a lot of sex to reclaim sex back.
THE MOTHER: Did it get to that level?
[Z]: Yes.
THE MOTHER: Just so that we can be clear, who are you talking about?
[Z]: [Mr Jin].
THE MOTHER: Your father?
[Z]: Yes.
THE MOTHER: So, when you say you would need to have a lot of sex to reclaim that back, what do you mean by that?
[Z]: For me to reclaim sex back and for it not to be a disgusting thing.
THE MOTHER: So, you are saying that you and your father had sex?
[Z]: Yes.
THE MOTHER: Just so I can clarify, you’re saying it happened a lot?
[Z]: Yes.
THE MOTHER: [Z], I am so sorry you had to go through that.
[Z]: Do you look at me differently?
THE MOTHER: No. Of course not. Shame and guilt are common feelings for children to deal with. Have you spoken to [Ms P] about this?
[Z]: Yeah, I think so. I feel comfortable about talking to [Ms P] about everything.
The mother later deposed in her affidavit:
I first became aware that [Z] had alleged that [Mr Jin] had engaged in penetrative sexual intercourse when she made the disclosure to me [in mid-2020]. I am aware that prior to this date the allegation was that they had showered together and he had touched her between the legs while showering.
(As per the original)
Z was interviewed in mid-2020 by Detective UU. This record of interview was extremely concerning both as to Z’s extreme distress and clear deteriorating mental health from the prior two police interviews in 2018. Further, it was clear from the outset that Detective UU believed what Z said. On several occasions, Detective UU patted Z on the leg and said things to her including:
Oh you’re very brave, sweetheart, you’re doing really well.
…
That’s okay, sweetheart. You’re doing really well. I know it’s really hard for you. It’s a hard thing to talk about.
…
… there’s this thing that he’s done here that is totally wrong, and you’re, you’re innocent in all of this because of, he’s your father and you don’t do those things with your daughter.
Z took her life in 2021. Detective UU was firm in her oral evidence that she believed Z that the father had committed the most grievous of sexual assaults upon her and the matter could not be taken to court due to Z’s fragile mental health.
In light of this evidence, the mother asserted initially that there are four risks of harm to Y in spending any time, including supervised time with the father:
(1)The mother fears the father will perpetrate the same abusive behaviour upon Y she believes he perpetrated upon Z.
(2)The paternal family will speak badly about her to Y and this will cause him psychological and emotional damage.
(3)Y may, like X, be swayed by the father and determine to live with the father and she will lose all the children, and conversely, Y will lose the mother and maternal family.
(4)The mother may not be able to emotionally tolerate Y spending time with the father due to her anxieties and fears of his treatment of Z.
The mother’s fears are not without foundation.
Dr F described Y as an impressive young man who knows his own mind. It is apparent Y is an emotionally-robust child and Dr F opined he has been able to withstand the war between the paternal and maternal families that erupted, if not prior to, at least at the time Z expressed fear in spending time with the father in late 2017.
Mr WW, the mother’s brother, works as a community worker. Mr WW had conversations with Y a month or so after Z’s death, to answer Y’s questions as to why he was not spending time with the father.
As part of this explanation, Mr WW told Y the reasons for Z's death according to the “[maternal family] narrative”. To use Mr WW’s words, he told Y the “nuts and bolts” of this narrative, why this had happened and thus why he was not spending time with the father. Mr WW told Y that Z took her life because the father had “sexually assaulted her”, “raped her”, that a lot of “agencies believed her”, and that the father “is what’s known as a paedophile”.
Mr WW told Y that the father had behaved in the same fashion to another child AD, the daughter of the father’s former partner Ms VV, who Y had met and liked.
Despite this confronting evidence, Y is most desirous of spending time with the father and this was made clear from Dr F’s evidence. Dr F was of the opinion that if he can withstand the “nuts and bolts” of the “[maternal family] narrative” about the father, he can withstand any narrative from the paternal family about the mother.
Towards the end of the hearing and at the request of the bench, the father put forward his former sister-in-law, Ms QQ, as a supervisor who gave evidence. The mother trusts this woman and with that safeguard and Dr F’s clear evidence that if Y is continued to be “contained” and his desire to spend time with the father is not accommodated by the mother, the mother ran a risk of Y simply doing what he wished in the next year or so when he is 15 years old the mother’s position moved to the father spending time with Y, supervised by Ms QQ, until 16 years old, each alternate Sunday.
The father’s position
The father’s initial position was that Y live with him and spend three hours supervised time with the mother, as he alleged the mother posed an unacceptable risk of psychological harm to Y. This position was amended on the morning of the final day of the hearing, wherein the father sought, as his primary position, orders that Y live with him and spend alternate weekends with the mother. Ultimately, the father abandoned his primary and first alternate position, and agreed that Y live with her, the mother have sole parental responsibility for Y, that Y spend alternate weekends, half of school holidays and some special occasions with the father forthwith.
ISSUES FOR DETERMINATION
The issues ultimately for determination are as follows:
(1)Parental responsibility for Y which is to be exercised by the parent he primarily resides with an agreed position ultimately.
(2)Whether Z was at an unacceptable risk of harm in the father’s care and the impact of such a positive finding on the spend time with orders for Y.
(3)The regime of time between Y and the father and whether it is to be supervised, and if so, for how long.
THE EVIDENCE
Z’s evidence
When Z was 10 years old, the mother became concerned in relation to Z’s mental health due to a letter she found Z had written. The mother took Z to see Ms R, a clinical psychologist, first commencing in early 2017.
In late 2017, from a reading of Ms R’s notes, there is a significant deterioration in Z’s mental health in six months, from early 2017 to late 2017:
… phone call from [Z]
Crying – wanting to go to Mum’s – ran in w Dad. [Z] reported Dad yelled at her, she was scared Dad would hit her. Dad put his hands on her shoulders – screamed in her face. He pointed at her – really close to her face, when she told him “you’re being rude to me”. He mocked her in a little girls voice.
He has grabbed her a few times on the shoulders. Yelled at [X] because she did not automatically clean up [Y]’s plate.
(As per the original)
In late 2017, Ms R’s notes read:
[Z]:
-Dad would be at the foot of my bed, watching me - happened once or twice
…
Dad has gotten a lot angrier and aggressive. He grabs my shoulder now, points in my face, 2cm away from my face. Really aggressive and loud. Every time I see him, he yells at me now.
When I’m with him, I feel really scared of him. I’m scared he will hit me. Hasn’t hit me, not that I can remember. He grabs my shoulder really hard, and I’m scared it will progress if I stay. I run to my room.
I don’t want to see Dad. He asks me a lot of questions about what Mum has said to us and if Mum has said stuff to us. I’m worried if I see Dad, he’ll ask that Mum “put” in my head.
…
Yells at us because we leave a plate on the bench. Gets angry when we’re fighting. He yells because we don’t do the washing up properly – if we leave a drink bottle there to dry he yells “why aren’t you doing the job properly”.
(As per the original)

Notes regarding what is likely the incident on 23 September 2017:
Incident with towels – Saturday just gone
I was doing homework or watching something. Dad called me downstairs – he said “did you leave these here?” “I said no” “He said, you did, didn’t you” “I said no” “He said why do you always leave your mess for me to clean up?” “I said I don’t”. He repeated “you left them here, didn’t you?” – each time getting louder, he was in my face. Took one of my shoulders really hard and pointed in my face with the other. I eventually said yes because I wanted it to stop. He shoved the towels into me and said “take these to your room”.
Outside – he said why are you so moody and rude to me? I don’t want to tell you because you’ll get angry. I won’t get angry, when have I ever got angry or yelled at you? I said I don’t feel safe here, I want to be with Mum. He said do you really feel that way? What a terrible thing to say. I was already crying. He said fine, go to your Mum’s.
(As per the original)
In late 2017, it appears the father had a session with Ms R, who reports the following in her notes:
Wants to see [Z]. Thinks [Ms Jin] is keeping her from him.
Went over text messages. Since March – very loving between them evidence by “I love you” text messages. Then [Z] stopped replying.
(As per the original)
The father’s position was that the mother was the root cause of the family dysfunction and Z’s poor mental health. The father did not accept any responsibility for the sad state of affairs of his marriage and the concerning mental health of Z.
In late 2017, Ms R’s notes read as follows:
[Z] told [Ms Jin] when she moved out, dad would give her a kiss on the lips. She would put her cheek out, he would move her face and hiss her on the lips. He’s overly affectionate with me.
(As per the original)
In late 2017, the mother writes to Ms R with proposals for Z to resume some time with the father prior to Christmas Day. This conduct is not consistent with the father’s opinion that the mother was keeping Z from him.
The first disclosure
In early 2018, Ms R records Z's first disclosure:
[Ms Jin]:
-Would have to sleep in the bed with Dad, however he would be naked. Him, [Z] – then space and [Y] in bed too. When [Z] went to her own bed, Dad would sleep in the bed with her, in her bed. He would be naked.
-[Z] also reported when she is in the shower, Dad would walk in naked and want to shower with her. [Ms Jin] reported he would do this with [X] in the past.
(As per the original)
It appears that Ms R made the mandatory report immediately after this therapy session with Z.
The mother had earlier in the marriage confronted the father about the inappropriateness of showering with X. The father’s response was the mother implying this had a “dark undertone on something that was natural between children and their father”. The mother told Ms R that she had to have this conversation about X with the father a few times. I have no doubt, given this evidence, that the father continued this behaviour with Z as she alleged he did.
Ms R’s notes continue:
•He, every night, made me sleep in the same bed as him while he was naked
•He would make me take shower with him at least once when I saw him
He would tell me to kiss him on his cheek, then when I would go to, he would turn his head and make me kiss him on his lips.
(As per the original)
In late 2017, the mother wrote a long letter to Ms R setting out her experiences in the marriage and the father believed the mother put her ideas into Z’s head. The father was extremely critical of this letter denying her allegations. The mothers’ experiences are her own and it is not for the father to say she is wrong. The mother has a right to put forward her version of events and experiences during the marriage and there is no evidence Z was aware of this letter and she never referred to it. Additionally, the letter provided was requested by Ms R.
In late 2017, Ms R writes to Z’s general practitioner:
[Z] presented were [sic] with symptoms consistent with stress in the context of her parents separating and her mother moving out of the family home. Since the initial consultation, [Z] has also reported having a strained relationship with her father.
In late 2017, the mother wrote to Ms R about her concerns that Ms R was speaking to the father without Z’s permission, yet alone her knowledge. Despite Ms R writing to the father about a month later stating she cannot provide further details as to Z’s therapy sessions, the father insisted on seeing Ms R. This caused problems for Z in continuing therapy and her therapy ceased. It was the father insisting he put his point of view across to Ms R that resulted in this appropriate therapy being denied to Z.
Z commenced seeing Ms P, a sexual assault counsellor, in late 2018.
In early 2019, Ms P writes Z had said:
I like my brother – nice and mellow, honest and sensitive and kind.
…
When we were really little, [X] had pressure placed on her to do well academically. I came along and was naturally gifted in Maths. [Z] got treats and [X] got none. [X] said that she had to work harder.
…
I think she’s [X] got a lot of hurt in her. I don’t miss my father. I do miss that side [paternal] of the family.
…
I don’t trust her [X].
…
All she [X] want is for them [the paternal family] to approve of her.
…
[Mr Jin] said to me almost every night that he would leave the business to me and I think that’s disgusting. I loved it because I felt like I was in the inner circle but now I think it’s disgusting.
In late 2019, Ms P reports:
[X] – she’s probably gotten it worse than I ever have – e.g. getting screamed at every single day.
I was in yr 7 … In the kitchen, [Mr Jin] was screaming at [X]. She had tried to change her grades. He was screaming at her saying she was a disappointment to the family. Mum was bawling at the top of the stairs. I was crying. … That was a normal thing that went on.
… With [Mr Jin] – you don’t know what you’re supposed to do. Hard to navigate. You could get teared apart for anything. You could be perfect and still get teared apart. You could be the perfect [Jin] and still get teared apart.
(As per the original)
In early 2020, Ms P’s notes report:
[Mr Jin] used to kiss me on the lips and I found that disgusting.
The second disclosure
In early 2020, Ms P details a conversation she had with Z being the second tranche of allegations of abuse by the father:
Call to check on [Z]’s opinion re ‘the idea of reconnecting and repairing with her father’ – to be the topic of [Dr F]’s call scheduled for [early] 2020.
[Z]: At this point I think for the rest of my life I don’t want to see him.
[Ms P]: Why did you leave?
[Z]: Thought about it a lot. Everything got way too much. So sick and fed up of that being the routine. I was really scared. I didn’t feel safe.
[Ms P]: What do you mean by ‘that’ – the routine?
[Z]: Him nit-picking and dissecting – saying how wrong I was and how disgusting I was.
[Ms P]: What sort of things did he say?
[Z]: He would call me ‘ungrateful’, ‘disgusting’, ‘a slob’, ‘a pig’. If I called him out on it, he would turn it around and say something like ‘I’m disgusted … how could you do that to me’. There were other creepy things that he did. Throughout my life he very much encouraged showering together. Especially when Mum left it became a nightly thing.
[Ms P]: When did your Mum leave?
[Z]: She left a few months – maybe 6-7 months before, in year 5 or 6. I would say – ‘I’m going to have a shower’ and he would invite himself. He would say ‘Oh I’m just going to finish this and be there in a few minutes’. He was like washing me and I was 10 years old.
[Ms P]: Did he touch you on your genitals and breasts?
[Z]: Yes.
Ms P led the child to the most serious of disclosures:
[Z]: He would always sleep in my bed. If I woke up at 2am he’d be behind me in my bed. He would say I was his favourite and he was going to leave everything to me.
[Ms P] – apologised to [Z] and explained that I needed to ask some personal questions because I needed to speak to the psychologist – the report writer [Dr F].
[Ms P]: Did he put his finger into your vagina?
[Z]: (silence)
[Ms P]: Did he put his finger into your vagina?
[Z]: Yes.
[Ms P]: Did he put his penis into your body?
[Z]: Yes.
[Ms P]: Into your vagina?
[Z]: Yes.
(silence and unidentified sound)
[Ms P]: Are you shaking?
[Z]: Yes.
[Ms P] encouraged [Z] to get a blanket and wrap it tightly around her shoulders (for containment and reassurance).
[Z]: I can remember him hurting me a few times. I’d have bruises for days.
[Z] explained that on the last day when [she] left, he pushed her.
[Z]: He was standing over me, then my memory goes blank after that.
[Ms P]: So, just to summarise, do you want to go back?
[Z]: No, I don’t feel safe or comfortable.
[Ms P]: Do you think the others are safe with him?
[Z]: [X] and [Y] are 2 completely different people to me. It’s not my place to dictate what happens to their lives. I personally don’t think they are safe with him. I’m fairly certain that [X] and he used to shower together. Then it started narrowing down to me. [X] used to get screamed at a lot. He would escalate quite quickly and be over her and hitting her sometimes.
The third disclosure
In mid-2020, Ms P notes the following during a telephone session with Z:
Growing up I didn’t have many boundaries with [Mr Jin]. I think in a lot of ways I feel bad for him because from what I’ve heard I don’t think he had a very good upbringing.
I think the reason that he showed this weird kind of love was because he didn’t every get any maternal love. He wasn’t really taught any kind of love. He wasn’t ever treated like a kid. The only way he’s expressed love. I guess he’s never experienced any form of true love.
Growing up he used to shower with me almost like every single night. I don’t think my Mum knew stuff happened to me in the shower.
He used to wash me. Sometimes he’d slip his fingers in my vagina or in my butt. That’s kind of weird. He used to sleep in my bed at night and [Y] was in here too and we were all naked. He’s 2 yrs younger than me and he was super small. I don’t think he’d remember. I was probably 6 or 7 when it all started.
There were times when he’d do stuff to me. He used to like do stuff to me with his fingers or his penis. When we were alone especially he’d say stuff to me like you’re my favourite and I’m going to leave everything to you when I die. He’d say it then regularly in front of my siblings except maybe when he was mad at them. There were times when we’d be cuddling on the couch and he’d have his hands on my boobs. He’d make me massage him, his feet and all over. Any time we were lying down he’d encourage me to be in between his legs and put my head on his penis.
It was mainly the bedroom or the shower where he’d do the creepy stuff. The stuff he’d do to me. He’d put his penis inside of me and sometimes in my butt.
I was 6 or 7 when it first started and it got more frequent when I was like probably 8 or 9 and it continued to happen until I left. I think I left when I was 11. The most frequent times were 8, 9 or 10.
(As per the original)
There are three specific events of self-harm/suicidal ideation of concern with Z:
(1)The concerning letter she wrote in early 2017 after which the mother took her to see Ms R.
(2)The self-harming incident and admission to JJ Hospital in mid-2018.
(3)The self-harming incident, and admission to JJ Hospital and transfer to AH Hospital in early 2021.
Z’s second hospital admission to JJ Hospital in early 2021. She was transferred to AH Hospital in early 2021. This is a few months prior to her taking her own life.
A discharge referral from the AK Health District reads as follows:
Dear Colleague,
Thank you for reviewing [Z] a 14 year old female to be discharged from [AH Hospital].
[Z] presented to the [JJ Hospital] with Self-harming behaviour. Her current crisis started when she had a flashback of a moment of childhood sexual abuse at school which was not managed elegantly or effectively. She called her therapist [Ms P] and mum. After that her step dad [Mr G] came & picked her up. She was in a panic and when she was home [repeatedly self-harmed]. As her panic rolled on, the family brought her to ED, where she was admitted to the PECC as a voluntary patient. This led to her transfer to the [AH Hospital] for diagnostic clarification, reformulation, medication review and treatment recommendations.
Summary of Care
[Z] quickly settled in to the Unit and took part in all activities and groups.
…
She was … missing her mother, while at the same time wanting to try to keep working on the group program.
[Z] has an intense relationship with her mother and at times feels disconnected from her younger brother and older sister. She is angry with her sister who lives with biological father who is the perpetrator of CSA.
She struggles with connections to same aged peers and also worried about her grades at school. She broke up with her ex-boyfriend three days prior to admission when she discovered him on a "friendship date" with a girl – but they were holding hands.
She discussed themes of being sensitive to rejection as well as having difficult in getting her needs met in relationships.
She has symptoms of partially treated depression and has been on [medication] for five months but does not think this has helpful. We started her on [another medication] in the morning and continued [another medication] at night.
[Z] has a good relationship with [Ms P], a therapist, who specialises in dealing with victims of crime. This work is funded by the NSW Victim support Scheme. We recommend that she return to this therapeutic relationship after discharge.
Health Status
Identification of Risks: Suicide
low risk, Self Harm:
low risk, Violence:
low risk, Vulnerability / harm from others:
low risk, Absconding (if inpatient):
low risk, Risk to children under 18 years:
low risk
Formulation / Clinical Impression
[Z] is a fourteen young old female currently in middle school at [CC School]. She has a long history of emotional dysregulation and mood instability which started when she was sexually abused, as a child, by her estranged father. [Z] lives at home with [Ms Jin], her mother, [Mr G], her stepfather, and her younger brother [Y] (12). Her mother says that [Z]'s involvement in education is a mood stabilising factor. [Z] has symptoms of partially treated depression and is not sure if her old medication […] has helpful. We commenced [another medication] in the morning and [another medication] at night.
[Z] demonstrates a number of traits suggestive of personality vulnerabilities of the borderline type - however her early history (from admission note and brief discussion about CSA and family relationships) suggests these vulnerabilities are the result of complex trauma on the domains of attachment, biology, affect regulation, dissociation, behavioural regulation, cognition and self-concept. On the positive side, she is close to her mother and she loves books and reading stories which she finds is a good way to escape from a frightening world.
Mixed anxiety and depressive disorder (MH Inpatient)
Post traumatic stress disorder (MH Inpatient)
Issues Identified at Initial Assessment
Partially treated depression - switch antidepressant to [new medication] in am – a low starting dose
Anxiety – needs DBT groups and grounding techniques and continue current medication
Emotional dysregulation – needs Distress Tolerance Plan and DBT groups
Feels rejected needs radical acceptance work and compassion focused therapy as well as DBT groups
Complex Trauma – triggered by a bad examination result
Huge loss of self-confidence – group activities and play with other young people
(As per the original)
In early 2021, the mother was called by the hospital to follow up on the progress of Z. The notes of this phone call read as follows:
[Ms Jin] reported that [Z] was doing “better than before”, denied having any acute concerns for her daughter at the moment.
[Z] will be transitioning back into school starting tomorrow, [Ms Jin] plans to formulate a plan with the school counsellor to allow [Z] to do 2 periods a day for 2/3 weeks and then increase these hours.
…
[Z] is attending her psychologist fortnightly for psychotherapy and on the other week attending an art therapist. …
(As per the original)
The notes of the phone call refer to current incidents causing Z stress and anxiety. The discharge notes mention generally that Z had a “flashback … of childhood sexual abuse” and that the father is “the [alleged] perpetrator of CSA [childhood sexual abuse]”. Z was discharged with a finding of low risk of self-harm and the following month she took her own life.
Family dynamics for Z and the mother’s evidence
The mother’s evidence was difficult to hear. This was in part due to the palpable tragedy of her losing her middle daughter together with the clear toll these proceedings had taken on her. The mother’s demeanour was passive and defeated at times and she had a child-like soft voice. Dr F reported the mother presented as “quite labile at points in the interview and her self-esteem seemed low” in the first Family Report and “distressed and burdened … [and] quite labile at points in the interview” in the second Family Report, noting the latter observations were after the death of Z.
Z told Dr F in the first Family Report that the mother was unable to protect her from the father. That is a grief the mother lives with daily. The mother’s effect was consistent with her having an impaired capacity to protect the children, to stand up for the children or her beliefs, or controvert someone when they are doing the wrong thing, such as the father and her brother Mr WW. Even when pressed, it was clear the mother rarely stood up to others and could be easily bullied and cajoled and in so finding I am not being at all critical – this is her personality.
Z was a highly intelligent child and likely needed firm and consistent boundaries to contain her vivid imagination and high-functioning intellect and she may have had a far more dominant personality than the mother. The combination of a passive mother and a highly intelligent and creatively gifted child, who for her own valid reasons did not want to spend time with the father, and perhaps believing the mother could not carry out this wish as she could not protect her, with for reasons that later appear, a highly self-absorbed father, whose needs were dominant, created a potential problem for Z.
If Z believed the mother could not protect her and she validly did not want to spend time with the father, her options to be protected from the father became limited and her fears escalated. Combining those factors with Ms P’s therapy, which is to believe all she was told, having the child re-live her alleged experiences and thus reinforcing her alleged experiences, combined with Ms P at times escalating or amplifying Z’s disclosures, may well be the reason for Z’s disclosures escalating over time.
Z was clearly desperate to not spend time with nor communicate with the father, and the father was equally desperate to spend time with her and employed X, Y and members of the paternal family at times to try to persuade her to come back to him. I accept the father was genuinely desperate to resume his prior close relationship with Z. However, as the evidence reveals, the father’s needs overwhelmed Z’s needs at all levels.
Dr F noted Z’s mental health deteriorated and her behaviours become more florid before court events when there was a prospect she may have to spend time with the father, which he was contending for in earnest on every occasion.
The mother alleged that after Z had determined not to see the father in late 2017, the father would, via X and Y, send Z gifts such as chocolate, makeup, jewellery, purses and the like with notes in them. Upon receiving these gifts or reading the notes, Z would sometimes become so distressed she could not function, she could not go to school for two days, would not bathe, would not eat, or sometimes she would cry uncontrollably.

During cross-examination of the mother by the ICL, I asked the mother if she told X and Y not to bring these gifts into the home, or check X and Y when they entered the home and take the gifts off them. The mother stated:
I had discussions with both of them to the point where they had promised that they wouldn’t bring gifts in anymore or if gifts were given that they would be given to me. … But that didn’t happen.
The mother and ICL had the following discourse:
MS REBEHY: Do you see that as being as a result of what [Mr Jin] [does to] influence them?
THE MOTHER: Yes.
MS REBEHY: I see, okay. And you’re saying it was affecting your relationship with [Y] and [X]?
THE MOTHER: Yes.
MS REBEHY: Is it also fair to say, and feel free to disagree, but I’m wondering whether you felt some apprehension that if you were to be forceful or disciplinary towards [Y] and [X] that they would also turn against you?
THE MOTHER: Yes.
This is a further example of the mother being unable to protect Z. The mother took few effective steps to ensure the other children did not bring gifts into the home nor did she write to the father and tell him to desist, and if he continued, that she would take action.
A significant concern was the video evidence detailing Z’s deteriorating mental health over the three police records of interview occurring in early 2018, late 2018 and mid-2020.[2] Z's physical appearance and demeanour had significantly deteriorated by the third interview. It is concerning that Z was not being seen by a psychologist and/or a psychiatrist to assist her to overcome the trauma she believed she had suffered at the hands of the father.
[2] Exhibits ICL3, ICL4, and ICL5.
However, the notes from her two hospital admissions to JJ Hospital and AH Hospital, after an attempted suicide and an incident of self-harm respectively, did not make any such recommendations and she was simply discharged after a period of time with medication.
Further, in her affidavit, the mother deposed:
Following [Z]’s discharge from [JJ Hospital], I … attempted to engage with NSW Health, however, there was no response to my contact and the Child and Adolescent Mental Health Service did not offer ongoing support for [Z].
I accept this is correct and it is a disgrace that the mother was not offered further support.
Up to late 2017, the children were living in a week-about arrangement with the parents and they had been so since early 2017, when the mother left the former matrimonial home. At his young age, this may have been difficult for Y. However, consistent with my view of the mother’s passivity, the father would have easily overbore her to agree to this arrangement. I accept that this is the arrangement the parents came to.
On 23 September 2017, the father and Z had an argument. The father said it was an ordinary disciplinary incident as she had not picked up her wet towel and left it on the banister and would not put it away. From that date, Z spent no time with the father, except in late 2017 at a restaurant, although the father deposed that Z “did not engage with [him]” and “barely engaged with any of [the paternal] family members”, and again in mid-2018, when Z showed up to the father’s house unexpectedly. The father is still at a loss to understand how this came about, namely Z spending no time with him up to her death, let alone understand the serious and disturbing allegations made against him of sexually abusing her.
The mother said when Z rang her to collect her on 23 September 2017, she never heard Z so upset and frightened about the father’s behaviour and she told Z to go into the maternal grandmother’s part of the property as the parents and the maternal grandmother had adjoining properties at Suburb J. The mother was with her now fiancée, Mr G, in Town AL. The maternal grandmother then rang Mr WW and brought Z to his house.
Mr WW confirmed that when the maternal grandmother brought Z to his house, he too had never seen Z so distressed and upset. Upon collecting Z from Mr WW’s house, Z said to the mother that she was too scared to stay in Suburb J as the father was so angry. Neither X nor Y reported any difficulty with their father, only Z did.
The mother agreed she had said to X:
If your father becomes unusually angry that you can go to your friend [Mr PP]’s home and I have made arrangements for you to go there with [Mr PP]’s mother […].
The mother also told Z to go see the maternal grandmother, who lived in the adjoining property at the former matrimonial home, if she felt unsafe. The father asserted this comment caused Z to become frightened of him and that the mother had put this idea into her head. Such a comment only resonated with Z it would seem on the father’s evidence.
The mother said that, although the parents had been separated physically for a few weeks, she collected the father and the children in early 2017 and went to a friend’s house for a barbecue. At that barbecue, the father cornered the mother in the kitchen, the mother became fearful and frightened and the father would not let her leave and Z observed this. The mother’s evidence was that the father cornered her behind the kitchen bench, was asking for a kiss and a cuddle, and that if she kissed and cuddled him, he would let her go.
This evidence resonates with many of Z’s disclosures of the father pressuring her for physical affection. There is no doubt that the father is a physically tactile, affectionate man and that he crossed boundaries with the mother on that occasion and no doubt on other occasions, as the following evidence confirms this was not an isolated incident of the father’s needs overwhelming the mother’s sensibilities.
During cross-examination, counsel for the father asked the mother about the week-about arrangement after she left the former matrimonial home:
THE MOTHER: That was the arrangement, yes.
MR WATKINS: How do you say it was going?
THE MOTHER: It was difficult.
MR WATKINS: Why was it difficult?
THE MOTHER: Because I didn’t have any access to money and my rent was subject to my behaviour, being what [Mr Jin] wanted it to be.
Later during cross-examination, counsel for the ICL asked the mother:
MS REBEHY: So, are you saying that in your experience [Mr Jin] would physically force affection on you?
THE MOTHER: Yes.
MS REBEHY: So, he’d forcibly hug you?
THE MOTHER: Yes.
MS REBEHY: Forcibly kiss you?
THE MOTHER: Yes.
MS REBEHY: And from what I understand from you, demand that you reciprocate that?
THE MOTHER: Yes.
MS REBEHY: How did that make you feel?
THE MOTHER: Terrible.
The mother was crying this time. The mother said the father was angry, controlled her physically, emotionally and financially and her evidence had the ring of truth given her passive nature and the father’s lack of appropriate physical boundaries with others.
The father confronted the mother via a telephone call when he found out that Z was in her care after the incident on 23 September 2017. The mother said she would not allow Z to return to the father’s care nor speak to him while she was scared and threatened by his aggressive behaviour. The mother has not raised with the father any concerns about any of the children in his care, such as sleeping in bed with them naked, showering naked. The only concern the mother raised in her affidavit is as follows:
60.I believed when [Mr Jin] and I were living together and [X] was about 11 years of age he would get in the shower with her. I said to [Mr Jin] in words to the effect:-
“It is not appropriate for you to get in the shower with [X]. You’ve got to stop. She is developing, she is not a little girl anymore she has her period and it is inappropriate.”
To which he replied in words to the effect:-
“You’re making it out to be something evil when it is just a normal fatherly thing.”
61.So far as I am aware [Z] had no previous knowledge of [Mr Jin] getting into the shower with [X] and I did not disclose this to [Z].
(As per the original)
The father had crossed boundaries with X. The mother said she had no idea the father was showering with Z, yet must have had a suspicion that this could be happening, given the father’s poor response when she raised the issue with him of so doing with X.
The father was sleeping with both Z and Y in the one bed for a period. It became clear from the mother’s evidence that she was diagnosed with a serious medical condition in 2011 and had her first relapse in 2013. The mother will have this condition all her life and there have been periods where she has been unable to function because of it. The mother, although not bedridden, was required to lie down for lengthy periods of time to recover procedures, which are required due to her illness and this occurred numerous times over a period of three years. Such a condition would have placed an extraordinary strain on this young family and the father, who was also the main breadwinner, to assist in the care of his young family.
In cross-examination, the mother explained that she needed to lock her bedroom door because of the father. The mother stated that this begun in 2016. X and Z shared a bedroom, and Y had his own bedroom. The father had no bedroom. When questioned on where the father slept, the mother said:
THE MOTHER: Typically, throughout our marriage, he slept in the downstairs bedroom or in a child’s bed.
MS REBEHY: With the child?
THE MOTHER: (no audible response, nods)
The mother was well aware the father slept with the children. In fact, it was the normal occurrence in this house, particularly when the mother was unwell.
It is difficult to understand that if the father had no respect physically with you and no boundaries by way of cuddling, kissing, wanting physical affection and not accepting no for an answer, that you knew had showered with your eldest daughter when she was developing and made light of this, that you would not be alert to similar behaviour towards your younger daughter. Thus, it is not surprising that if the father behaved as Z alleged, she felt the mother could not protect her and Z’s evidence of not feeling protected by the mother is accepted by the Court. This is in part due to the dynamics of the parents’ relationship and personalities, and no doubt, the mother’s ill health.
If the father behaved as alleged by Z, this is in no way the fault of the mother and it is behaviour of the most reprehensible kind. The father alone is responsible for his behaviour. However, the evidence is far from clear whether the father behaved in all respects as Z alleged.
Although Z’s voice looms large in this matter, I am tasked to make a decision about Y’s time with the father.
All of the evidence that has been brought by the mother is of the father’s obsession with young girls, being his daughters and their female cousins. There are photographs of young girls – the Jin children and their cousins – in the shower, which Ms XX referred to as concerning, and if viewed in isolation, as sinister.
One of those cousins, Ms AC, who is now an adult, deposed in her affidavit that this was something they did regularly. The four of them hopped in the shower after the beach to get clean. The parents were well aware of it, nothing untoward happened and her uncle (i.e. the father) has never done anything to her. There are photographs of Z and X eating ice blocks allegedly in a sexual manner. Photographs in a family calendar that the parents gave to people for Christmas of their naked children. I was unable to see anything sinister in the photographs as presented. However, that is not the totality of the mother’s evidence in relation to the father’s conduct.
In her summary of the marriage to Ms R, the mother says the following:
During my pregnancy [with X], [Mr Jin] would get angry and yell at me and tell me that I’d ruined his life. That I’d trapped him by falling pregnant, that he’d told me that he didn’t want to have a baby that year. That he wasn’t ready. He would make me feel like a horrible person.
…
Christmas Eve 2004 I was getting our video camera ready for the next morning. I’d accidently left it on in the kitchen earlier that day when I was recording [X]. As I was rewinding the tape back so I could tape over it, I stopped on a section where [Mr AM] was talking with his mother and saying that I was a fat cow …
[Mr Jin] saw the tape and confronted [Mr AM]. The whole family was brought into discussions and the general view was that I had ruined Christmas.
...
Throughout my whole marriage, I felt invisible, and inconsequential to [Mr Jin].
…
[H]e put an electronic tracking device on [my computer] (a keylogger) which basically meant that whatever I’m doing on my computer, he can see on his in real time.
…
[Late] 2016 [Mr Jin] attempts to take my locked bedroom door off with a screwdriver because he wants to talk with me at 2am and I’m refusing to unlock the door. I get worried that he’s going to wake the kids up and scare them so I open the door and [Mr Jin] forces me to hug him. He tells me that he loves me. I ask him to leave as I want to go back to sleep … [h]e says that this is his house, and I am his wife and he will do whatever he likes.
…
He [the father] continued this talk for the entire trip to the point where [X] (13) joined in and stated chiming, yeah mum, what’s more important than us? Why don’t you want to spend a family night with us? [Z] then jumped in and said, leave her alone everyone.
The last extract of this summary occurred after the incident at the barbecue in early 2017, where the father asked the mother to come and have dinner with him and the children at the former matrimonial home.
By this point, X and Z had aligned; X with the father, Z with the mother, and this alignment continued and strengthened. In early 2017, the mother said X had already intervened, taking the father’s side in the story and marriage break up. This is a consequence for children who have parents that lean emotionally upon their children for support in difficult times as both the mother and father have done as the following evidence reveals. Y, fortunately, has been spared this impact.
The mother deposed that X was spying on her in her room, trying to get information for the father to show that the mother was having an affair. One such conversation took place in late 2017, several months after physical separation:
THE MOTHER: What are you doing?
[X]: Dad said I should look for the evidence [of the affair] myself in your personal belongings and especially on your computer.
When the mother found a note in Z’s room in early 2017 and indications of suicidal ideation, she obtained counselling for Z with Ms R. The mother told the father about obtaining a mental health plan and Ms R. The father became upset about this, believing the mother was creating an issue where there was none, as is clear from the notes the mother provided to Ms R:
He [the father] reluctantly agreed to allow me to pick [Z] up on Saturday [to take [Z] to obtain a mental health plan]. I immediately tried to ring [Z] to let her know the plans for the next day. There was no answer so I sent her a message asking her to call me. [Z] rang crying and upset and the first thing she said was “I’m not suicidal, Mum.” I said, I never said you were. She said, “Dad said you said I was suicidal and needed a mental illness check.” I explained to her that I wanted to take her to the GP because I wanted to get her a mental health plan … She was upset and angry that I’d done this to her and she didn’t want to go see the Dr because she said she wasn’t mentally unwell like [Mr Jin] was telling her I was saying she was. I assured her that I would never do anything I didn’t think was in her best interest. That it was important for her and her siblings to have an independent person they could confide in about anything and that dad and I would never know what was said to that person.
It is apparent Z needed this intervention desperately and the mother pursuing this was a positive course of action.
The father was wrong to speak to Z in that fashion and should have raised any issues he had about therapy with the mother. Further, it should have been apparent to the father that Z was a troubled child well before the incident on 23 September 2017. However, as the evidence disclosed, he was clueless.
After the incident on 23 September 2017, the mother took Z to City E Police Station a few days later to report her allegations of being fearful of the father and of the father showering and sleeping with her. The police officer she spoke to had little sympathy for the mother and Z, and was dismissive of the complaints, stating that anything the father had done was “normal and it’s not abuse because [Mr Jin] never hit her [Z] nor did he call her names like little bitch”.
The incident that caused Z to leave the father’s house on 23 September 2017, was, according to the father:
The disciplining was in my view not over the top in any way. It was appropriate in the circumstances.
The mother confirmed she had never heard Z sound so scared before. Perhaps Z was gilding the lily, as it is agreed she had a very good relationship with the father, as all the children did up until that time. Once Z did not spend time with the father, had difficulties in late 2017, and at the end of 2017 spending time with the paternal grandparents, the relationship between the mother and X deteriorated significantly. X went to live with the father in late 2019 and Z spent no time with the father since 23 September 2017, save for days in late 2017 and mid-2018.
In contrast to the mother’s effort to have Z at least spend time with the father and paternal family, even in light of Z’s concerning disclosures, the father took no positive steps to assist X to restore her all-important relationship with the mother. The father’s needs overwhelmed X’s needs entirely.
The first time Z disclosed to the mother that the father showered with her was when she and the mother were discussing what happened between the parents at the barbecue in early 2017, in a conversation upon Z’s return from staying at the paternal grandparents house:
[Z]: It’s kinda like when I don’t want dad to get in the shower.
THE MOTHER: What do you mean by that?
[Z]: When I am in the shower sometimes I look up and dad is naked and gets in the shower with me. I got so scared of that happening that I stopped showering at dads.
THE MOTHER: Is there anything else along those lines?
[Z]: (nods), I don’t want to keep talking.
Z said in the first police record of interview that the father showering with her only happened when the mother left the former matrimonial home when she was around 10 years old.
A week later, the mother deposed that her and Z had a further conversation to the effect of:
[Z]: I don’t like it when dad makes me sleep in the bed with him.
THE MOTHER: What do you mean by that? Do you just fall asleep on the lounge watching a movie or what?
[Z]: No he will tell me to sleep in his bed with him. Dad is on one side and [Y] is on the other side and dad is naked.
THE MOTHER: Are you naked?
[Z]: No he always makes sure I have clothes on.
THE MOTHER: Why do you sleep in the bed with him?
[Z]: If I don’t I will wake up with him sitting on the end of my bed staring at me or he has crawled into my bed. My bed is a lot smaller than his so if he crawls into my bed I have to be closer to him.
THE MOTHER: This is something we need to tell [Ms R].
At the subsequent police interviews, not only was the father naked, she was naked and his penis came near her vaginal area.
In mid-2018, when Z overdosed and was admitted to JJ Hospital, the mother recalled the following conversation between Z and a psychiatrist:
During the conversation, the psychiatrist said to [Z] words to the effect of:
“Just to summarise, was the abuse sexual?”
to which [Z] nodded in the affirmative.
(As per the original)
The mother said that after Z was discharged, she sought assistance by engaging with a general practitioner, Dr T, and continuing with art therapy, which Z was previously engaged in and enjoyed. It was at this point that the mother contacted NSW Health, specifically the Child and Adolescent Mental Health Service, which did not offer any further support for Z or the mother.

Dr F was torn in giving an opinion on whether the mother’s proposal that time be supervised until Y was 16 years old, or the ICL’s proposal that it be supervised until 15 years old, then unsupervised for the day until 15 and a half years old and then alternate weekends Saturday to Sunday unsupervised was best for Y. However, Dr F was clear at 15 years old Y may just determine his own time with the father and little could be done by the mother and that this was the balance point for the Court.
FINDINGS
I pressed counsel for the mother whether the mother wanted me to make a positive finding that the father had sexually abused Z. Initially, this was the mother’s position. However, after hearing the evidence of Dr F regarding:
(1)The imperative that Y remain living with the mother;
(2)That Y is quite a remarkable and impressive young man, and is doing extremely well in the mother’s care;
(3)Y has a clear desire and need to spend time with the father, and that if this is not facilitated, Y may take a risky action and vote with his feet and spend time with the father;
(4)The introduction of Ms QQ as an agreed supervisor of the father’s time; and
(5)The mother shifted her position substantially from her initial position of no time between the father and Y;
I was informed that the mother did not press that I make a positive finding of sexual abuse, but that, I make a finding that Z was at an unacceptable risk of harm in the father’s care and that caution needed to be taken with Y’s time.
The combined evidence of Dr F and Ms QQ significantly changed the focus of the hearing and provided a pathway for Y to safely spend time with the father, from the point of view of the mother and minimised the risk to Y in spending such time for the Court.
Ms QQ gave evidence at the end of the hearing and she was a most impressive witness. It is no wonder the mother trusts her. Ms QQ is not embroiled in either the maternal or paternal clans, has a good relationship with Y, and has the trust of both parents.
The mother proposed Y spend supervised time with the father for a whole day, once a fortnight, until he was 16 years old. After this, Y’s time with the father would become unsupervised. The mother’s position on an order as posed by the ICL for Y’s time to be overnight for a weekend unsupervised, at age 15 and a half or so was that she could not “conceive of that”.
After the father had sat in the courtroom, heard the case against him and the insightful evidence of Dr F, his primary position was that Y live with him and spend alternate weekends with the mother. This was disappointing for Y, however, not unexpected given, as consistent with Dr F’s position and the view I had formed, the father has little insight into the impact of his behaviour upon the children or the mother. To this day, the father does not understand how he breached boundaries of safety with Z and the mother. Z’s story was echoed in the mother’s evidence regarding her experiences with the father. Z and the mother were consistent in that they did not feel safe in the father’s care or presence. This appears not to be the case for X and Y.
The father could not understand that he had breached boundaries by showering with the children, crossing over in the shower with the children as they aged, taking photographs of Z on the toilet naked, while she had her hands over her face. The father said he took it because it was a funny photo. It is not funny, rather, it was clearly embarrassing for Z. Insisting on kissing the children on the lips and turning their head at the last moment to make sure he did so when Z did not want to be kissed on the lips. Photographs of Z taken at nine years old, naked in the dining room doing her homework, because he found it cute, yet not sharing that photograph with the mother or any other person, but just taking it. Sleeping with both Z and Y at times with only boxers on, if that be correct. The tactile nature of his relationship and massaging the children and them massaging him.
A further cause for concern was the father’s anger. The father denied having anger issues. I accept the evidence from the mother and Z that the father had anger issues. The father pressured the children. There is ample evidence in all the therapy notes from Z of the pressure the father placed on the children to perform well academically. Z described to Ms P how the father became angry with X when she did not do well in an exam, of X wanting to please the father, of Z feeling like she was the favourite and how this caused friction between herself and X, particularly when Z was performing so well at school.
The father annexed to his affidavit a series of 100 pages of text messages between him and Z alone post-separation. This amount of messaging alone may be inappropriate and supports the notion that the father placed pressure on the children. Although they are in the main supportive and complimentary, the texts are filled with messages that would further show that the father pressured the children and were at times inappropriate. For example, in early 2017, the father said to Z:
I love how smart and funny you are, how insightful and mature you are, how I can talk to you like a best friend I love it.
(As per the original)
There is no doubt from Z’s point of view that the father made her feel unsafe, because of his anger and his lack of boundaries with her, particularly in a physical sense. The father may not have seen this behaviour as being sexual. I do not say he derived any sexual gratification from this behaviour. From Z’s point of view, she did not like it, it frightened her and the father did not pick up on this fear at all.
The mother describes the behaviour at the barbecue in early 2017, when the father cornered the mother in the kitchen and tries to get a kiss from her. Z observes this and it is consistent with behaviour she did not like, namely the father kissing her on the lips. Z’s words were, as recorded in Ms R’s notes dated early 2018:
He would tell me to kiss him on his cheek, then when I would go to, he would turn his head and make me kiss him on his lips.
I find that Z used the incident on 23 September 2017 to break off her relationship with the father because she did not feel safe, consistent with her telling Dr F in the first Family Report that the mother did not keep her safe. It is noted by Dr F that Z’s allegations became more florid and increased, and her behaviour became more uncontained, as court events approached, no doubt, as Z thought she might have to spend time with the father.
The father had a significant contribution to Z’s troubled mental health functioning from his pressuring on her to perform academically, anger issues and lack of physical boundaries culminating in Z feeling unsafe and fearful of him. The mother’s contribution was that she was unable to protect Z from the father, given her somewhat passive approach and fear of the father in parenting the children.
On the state of the evidence, it is proper I was not asked to make a positive finding that the father sexually abused Z. I have been asked to make a finding of unacceptable risk of harm to her in the father’s care. The evidence as a whole supports a finding that Z was at an unacceptable risk of harm in the father’s care from his anger, the pressure the father placed upon her and his lack of boundaries with her in all aspects of her life, including of a physical, and for Z, a sexual nature.
There is no substance to the father’s allegations that the mother put Z up to this or that in some way the mother was attempting to besmirch his name for any reason. There was no advantage to the mother whatsoever to “put” in Z’s mind the allegations she made against the father. The mother had to deal with a significantly troubled child whose mental health deteriorated to the state where she took her own life. There was nothing in this for the mother.
The father’s focus, as Z said in the various notes of Ms R and Ms P, as well as reports to the police, was his needs and what suited him. This was evident in the father’s behaviour with Y and kidnapping him from the mother’s house in the early hours of the morning in mid-2020. This was all about the father and had little to do with Y. Even after being cross-examined on this issue, the father showed little understanding or insight into the consequences for Y, the mother or X of his conduct in putting both X and Y in the middle of the parental dispute.
In light of these findings, it was understandable the mother came to this hearing wanting there to be no order for time. I accept that the mother does not trust the father and she is justified in this belief. The father does not trust the mother.
The totality of the evidence supports a finding of an unacceptable risk of harm to Z from the father. In Fitzwater & Fitzwater,[9] Austin J (in dissent) discussed the evaluation of an unacceptable risk of harm to a child in the future from sexual abuse when there has not been a positive finding of sexual abuse in the past. This analysis applies to a finding of unacceptable risk from any harm:
138The 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. Risks of harm must be heeded even if they are improbable eventualities.
139Speaking 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.
140It 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.
141Indeed, 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.[10]
(In-text citations omitted)
[9] [2019] FamCAFC 125 (Strickland, Aldridge & Austin JJ).
[10] Fitzwater & Fitzwater [2019] FamCAFC 125 at [138]–[141] (Austin J).
This issue was faced by the primary judge recently in Isles & Nelissen,[11] whose decision was unanimously upheld by the Full Bench of the Full Court of Federal Circuit and Family Court of Australia.[12]
[11] [2021] FedCFamC1F 295 (McGuire J).
[12] Isles & Nelissen [2022] FedCFamC1A 97 (Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ) (“Isles & Nelissen”).
The Full Bench of the Full Court in Isles & Nelissen said the following:
84In this instance, the primary judge inferred the existence of an unacceptable risk of harm to the children from a combination of facts and circumstances, including: the elder child’s plausible but unproven allegations of sexual abuse by the father; the evidence of the father’s sexual interest in other adolescents; and evidence of the father’s interest in child exploitation material.
85The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton … is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment, though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[13]
(In-text citations omitted)
[13] Isles & Nelissen [2022] FedCFamC1A 97 at [84]–[85].
The issue now is what are the risks to Y in spending time with the father and are they unacceptable, given I have found that Z was at an unacceptable risk of harm in the father’s care from the possibility of sexual, psychological and emotional abuse.
THE FAMILY LAW ACT 1975 (CTH)
Proceedings commenced under Part VII of the Family Law Act1975 (Cth) (“the Act”) require me to make orders that are in the best interests of children, which in this case, for Y.[14]
[14] Family Law Act 1975 (Cth) s 60CA.
The matters set out in sections 60CC(2), (2A) and (3) are what I must consider when determining what is in the best interests of Y, which are set out below:
60CC How a court determines what is in a child’s best interests
…
Primary considerations
(2)      The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)      Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)       the nature of the relationship of the child with:
(i)        each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long term issues in relation to the child; and
(ii)       to spend time with the child; and
(iii)      to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)        either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)        each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)       if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)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;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)      any other fact or circumstance that the court thinks is relevant.
Y has been exposed to poor behaviour in his parents’ house, being the father’s anger and behaviour from both of his extended families. Z was at an unacceptable risk of harm in the father’s care.[15]
[15] Family Law Act 1975 (Cth) s 60CC(3)(j).
Y benefits from a meaningful relationship with both of his parents.[16]
[16] Family Law Act 1975 (Cth) s 60CC(2)(a).
There is risk of harm to him in spending unsupervised time with the father at this time as follows:
(1)The mother’s response to immediate unsupervised time given Z’s allegations;
(2)The father’s focus being on his needs and not the children’s needs as evident in kidnapping Y from the mother’s care;[17] and
(3)The father having little insight into the importance of assisting X to restore her relationship with the mother.
[17] Family Law Act 1975 (Cth) s 60CC(3)(i).
Y’s closest emotional attachment is to the mother, however, he has a strong attachment to the father.[18]
[18] Family Law Act 1975 (Cth) s 60CC(3)(b).
Y’s level of maturity means his strongly held desire and wish to spend unsupervised time with the father and X must be given weight.[19]
[19] Family Law Act 1975 (Cth) s 60CC(3)(a).
There may be a negative impact upon Y if he spends unsupervised time with the father, being the mother’s emotional reaction.[20]
[20] Family Law Act 1975 (Cth) s 60CC(2)(b).
The mother has the greater capacity to put Y’s needs to the fore, whereas the father’s needs have overwhelmed the children’s needs at times and his parenting capacity has been compromised at times.[21]
[21] Family Law Act 1975 (Cth) s 60CC(3)(f).
I only need to address the factors that are relevant to my decision and I have found there are no practical difficulties or expenses for Y in spending time with either parent.[22]
[22] Family Law Act 1975 (Cth) s 60CC(3)(e).
I am cognisant that the orders I make are those that would least likely lead to further proceedings.[23]
[23] Family Law Act 1975 (Cth) s 60CC(3)(l).
Assessing the risk of harm to Y
Y is at no risk of sexual or other physical abuse or harm in spending supervised time with the father, nor is he at risk of emotional or psychological harm as any negative comments about the mother or his maternal family to him will result in time being suspended and Y has professed no fear of the father at all.

There is a risk to Y from spending unsupervised time with the father and extended paternal family given their conduct in the past. However, Dr F opined that Y can withstand such behaviour as he has withstood similar poor behaviour from the maternal extended family and that his relationship with the mother would not be affected and that this is a low risk.
Y’s greatest risk of harm is if time is immediately unsupervised, the mother may dissemble and her soundly-based anxieties and fears for Y’s well-being and her relationship with him not continuing may overwhelm her.[24] This would be a disaster for Y, as the mother is his closest emotional attachment and he is doing well in her care and this risk is an unacceptable risk of harm.
[24] Family Law Act 1975 (Cth) s 60CC(3)(d).
The unacceptable risk of harm to Y arises from immediate unsupervised time with the father and paternal extended family and the mother’s reaction to this. I must balance this unacceptable risk having regard to Y’s age and emotional robustness, the mother’s capacity to tolerate unsupervised time before age 16, with Y’s strong wish to spend time “like it was before” with the father, namely unsupervised time and the consequences if he does not. I am required to give greater weight to protecting Y from harm than to him having a meaningful relationship with both parents.[25]
[25] Family Law Act 1975 (Cth) s 60CC(2A).
The saving grace for Y in this matter is at least fivefold:
(1)Y has been able to withstand enormous pressure from the maternal and paternal families to take sides, unlike X and Z, who did take sides. Y loves the mother. Y wants to live with the mother. Y loves the father and X and wants to spend time with them. Y has been clear and firm on this, and he was clear and firm in this with Dr F, as she was with the Court that these are Y’s words, needs and thoughts.
(2)Y’s age and emotional robustness and that he is doing well in the mother’s care are protective factors, as are the therapies he has engaged in as noted by Dr F.
(3)The wonderful Ms QQ, who will supervise time between the father and Y, and a woman the mother has complete confidence in. This will allow Y to mature and spend the time he craves with the father and provide the mother with confidence that she will not lose her child or dissemble.
(4)The mother, unlike the father, significantly changed her position and wants Y to spend time with his father agreeing to time once a fortnight supervised by Ms QQ. This was the greatest fear for the mother; that she would lose her relationship with Y as she has with X. Ms QQ gives the mother a safe way to balance Y’s need to spend time with the father and her fears in him so doing, and she placed Y’s needs at the forefront of her decision.
(5)The mother has the capacity to move her position and look to Y’s best interests as the paramount concern, if this is done with sensitivity and safety in mind.
I must strive to strike a delicate balance between the strong and overwhelming desire of Y to spend time with the father and X, and the mother’s properly held concerns that unsupervised time with the father and X may lead to an alienation from her only remaining child and her fears that she may dissemble. Yet, if she does not let Y have proper time with the father, Y may be alienated from her by that decision and at 15 or 16 years of age, simply spend the time he wants with the father.
I am confident that with the significant change in her position and Y’s maturity that in some months’ time, the mother will be able to tolerate unsupervised time for Y with the father during the day if the supervised time proceeds well and the father and paternal family just enjoy their important time with Y. This will then minimise the current unacceptable risk for Y in spending unsupervised time with the father to a risk that is manageable and acceptable.
As to overnight time, I am less confident the mother could tolerate this as an order. The mother was accepting of the fact that at 16 years old, Y will likely do what he wants and make decisions about time with the father for himself. In light of the evidence, I see little utility in an order for overnight time being made at any point given Y’s age and to do so may cause the mother anxiety now and this may be harmful to Y.
Unfortunately, I do not have the same confidence in the father as I do in the mother to put the children’s needs to the forefront.
When the matter returned in August 2022, the mother, Detective UU and Ms VV had given their evidence. The father’s position at this time was he have sole parental responsibility for Y, that Y live with him, and that Y spend three hours supervised time with the mother, citing that she was an unacceptable risk of psychological harm to Y.
After Dr F had given her evidence, the father provided an amended position, in which the only change was in relation to time with the mother, which was to increase to alternate weekends. Prior to closing submissions, I asked counsel for the father how I could make the orders proposed by the father given the clear evidence of Dr F that Y should continue to live with the mother primarily. After a short adjournment, counsel for the father advised the Court that his client will only press for the orders that Y live with the mother and spend alternate weekends unsupervised with him immediately.
Y is well able to deal with any physical inappropriate behaviour towards him. Y can withstand the emotional baggage the father has placed upon him, as well as that which the maternal and paternal families have placed upon him. Y can withstand the emotional baggage X has placed upon him. All of this was clear from Dr F’s evidence.
Z could not withstand the pressure Y has withstood, and her emotional fragility was evident to Dr F and she was overburdened. Z’s emotional fragility is in contrast to her superior and fine intellect, many gifts in music and art, and her intellectual capacity.
If the father could see his way clear to encouraging X to restore her relationship with the mother, things may progress well. The parents need healing and therapeutic intervention to assist them with healing. The mother has sought psychological assistance. The father has not taken any positive step to assist himself or X, and instead, has simply blamed the mother. This was wrong of the father and the consequences are now clear. The father and X each need to see a grief counsellor to assist them to overcome these terrible events where they were poorly treated at times, such as at Z’s death, and where they have treated others poorly at times, such as the kidnapping of Y.
Having regard to all of the above the orders I propose to make the following orders, which strike the balance as I see it for Y to spend appropriate time with the father and to protect him in so doing.
Y is to spend from 9.00am to 5.00pm each alternate Sunday with the father or such other day as is agreed supervised by Ms QQ until Y’s 15th birthday and on his birthday, time is to be unsupervised for a period of six months. After six months’ time will be each alternate Saturday and Sunday from 9.00am to 5.00pm each of those days day and/or as agreed.
In the event Ms QQ is unable to supervise time, her husband, Mr TT, may be substituted for her as a supervisor, provided the conditions in the orders I make are met.
I have formed the view that these orders strike the balance between Y’s age and need to spend proper time with the father, and the mother’s justifiably held concerns and minimise the current unacceptable risk now evident to an acceptable risk in some months’ time given his age and maturity and the mother’s capacity.
In relation to special occasions, and attendance at school and extra-curricular events, I will make the orders the mother proposes generally, given she will hold parental responsibility for Y as he is to primarily reside with her.
Given that there are multiple narratives of the tragic events these parents and their extended families have had to endure, it is appropriate that these Reasons for Judgement be given to the maternal and paternal extended families to read and reflect upon.
Further, these Reasons for Judgement can be provided to any medical professional the parents or the children attend upon.

I certify that the preceding five hundred and seven (507) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson.
Associate:
Dated: 28 November 2022

File number:	SYC 7272 of 2017
Judgment of:	HENDERSON J
Date of judgment:	28 November 2022
Catchwords:	FAMILY LAW – CHILDREN – Best interests – Where there are three children of the marriage – Where the first child reached 18 years old during the proceedings and the second child died during the proceedings – Where the third child is the only child subject to the proceedings – Where the mother seeks the child live with her and spend supervised time with the father until age 16 – Where the father seeks alternate weekend time and holiday time unsupervised forthwith – Where the mother initially sought no time and the father initially sought the child live with him and spend supervised time with the mother – Parental responsibility to be held by the parent with whom the child primarily resides – Family violence – Risk – Where the mother seeks a finding that the father posed an unacceptable risk of harm to the second child and therefore caution needs to be taken with time for the third child – Where the father seeks a finding that the mother poses an unacceptable risk of emotional harm to the child – Finding that the father posed an unacceptable risk of harm to the second child – Finding the father poses an unacceptable risk of harm to the third child currently if time is unsupervised – Finding that the father has engaged in highly inappropriate behaviour towards all the children – Balancing risks of harm – Where the child is at a risk of harm in spending unsupervised time with the father immediately – With whom a child lives – Orders made for the child to live with the mother – With whom a child spends time – Child’s views – Where at the hearing the child was nearly 14 years old – Where the expert evidence identifies that the child feels restrained by interim supervision orders – Where the risk of harm posed by the father necessitates time being initially supervised – Where the father’s time is to progress to unsupervised day time at 15 years old.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC(2)(a), (2)(b), (2A), (3)(a), (3)(b), (3)(d), (3)(e), (3)(f), (3)(i), (3)(j).
Cases cited:	Fitzwater & Fitzwater [2019] FamCAFC 251. Isles & Nelissen (2021) 65 Fam LR 1; [2021] FedCFamC1F 295. Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97.
Division:	Division 1 First Instance
Number of paragraphs:	507
Date of last submissions:	19 August 2022
Date of hearing:	4–7 April 2022, 15–16 August 2022, 18–19 August 2022
Place:	Sydney
Counsel for the Applicant:	Ms Lawson
Solicitor for the Applicant:	Crawford Ryan Lawyers Pty Ltd
Counsel for the Respondent:	Mr Watkins
Solicitor for the Respondent:	Duffy Law Group
Counsel for the Independent Children's Lawyer:	Ms Rebehy
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

Table of Corrections
12 April 2023	In the cover page, next to “Number of paragraphs”, the number “509” has been replaced with “507”.
12 April 2023	Paragraphs 320–509 inclusive have been replaced with Paragraphs 318–507 inclusive.
12 April 2023	In the certification, the number “509” has been replaced with “507”.

SYC 7272 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS JIN Applicant
AND:	MR JIN Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	HENDERSON J
DATE OF ORDER:	28 November 2022