Kaluza & Jefford - [2025] FedCFamC1F 281

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kaluza & Jefford [2025] FedCFamC1F 281

File number(s): NCC 1398 of 2020

Judgment of: SMITH J

Date of judgment: 20 March 2025

Catchwords: FAMILY LAW – PARENTING – previous final hearing and orders made for children to live with the mother and spend unsupervised time with the father – child made fresh disclosures of sexual touching by father – where child repeated disclosures to her therapist and to the court child expert – court child expert considered “disclosures appear to be clear, repeated, decisive and consistent in nature” – no finding of sexual abuse to civil standard - finding of unacceptable risk – father’s new wife not an appropriate supervisor where she denies possibility of risk – ongoing supervision not in children’s best interests - orders for no time and no communication with the father

Legislation:
Evidence Act 1995 (Cth), s 140(2)

Family Law Act 1975 (Cth), Pts I, VII, ss 4, 60B, 60CC, 61B, 61C, 61D, 61DAA, 61DAB, 64B, 65D, 65DAAA, 68B, 69ZX

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

In the Marriage of B & B (1993) 16 Fam LR 353; [1993] FLC 92-357

In the Marriage of Schorel (1990) 99 FLR 375

Jefford & Jefford [2022] FedCFamC1F 539

Isles and Nelissen (2022) 65 Fam LR 288; [2022]

FedCFamClA 97

Division: Division 1 First Instance

Number of paragraphs: 242

Date of hearing: 17-21 February 2025
4-5 March 2025

Place: Newcastle

Counsel for the Applicant: Mr Weightman

Solicitor for the Applicant: Kekeff & Associates Solicitors

Counsel for the Respondent: Mr Bithrey

Solicitor for the Respondent: Todd Street Lawyer

Counsel for the Independent Children's Lawyer: Ms O’Rourke

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

NCC 1398 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS KALUZA

Applicant

AND:
MR JEFFORD

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

20 MARCH 2025

THE COURT ORDERS THAT:
1.All extant parenting orders concerning X, born in 2017 and Y, born in 2019 (“the children”) are discharged.
2.MS KALUZA, born in 1984 (“the mother”) shall have sole parental responsibility and sole decision making authority for all "major long-term issues" (as defined in s 4(1) of the Family Law Act 1975 (Cth)) in respect of the children.
3.The children shall live with the mother.
4.The children shall spend no time with MR JEFFORD, born in 1986 (“the father”).
5.The children shall have no communication with the father.
6.The mother (Ms Kaluza, born in 1984) shall have parental responsibility and sole decision making authority in respect of the children (X, born in 2017 and Y, born in 2019) in respect of any application for a passport and in respect of any travel outside the Commonwealth of Australia.
7.The mother be authorised to apply and forthwith obtain an Australian passport for the children so as to enable her to travel in and out of the Commonwealth of Australia.
8.The consent of the father (Mr Jefford, born in 1986) to the issuing of such an Australian passport for the children be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.
9.The mother be permitted to relocate with the children, including outside of the Commonwealth of Australia.
10.The mother may provide copies of these orders to any educational institution where the children attend from time to time, to any treating medical or allied health practitioner who treats the children, to any government department or authority, to any other body or institution or authority including in the United Kingdoms, which reasonably requires notice that she holds sole parental responsibility and sole decision making authority and/or of the no time and no communication injunction in place on the father.
11.Pursuant to section 68B of the Family Law Act 1975 (Cth), MR JEFFORD (born in 1986) be restrained by injunction from:
(a)attempting to contact either of the children by any means, including through a third party;
(b)knowingly approaching or coming within 100 metres of either of the children;
(c)approaching or coming within 100 metres of any place where either of the children reside from time to time;
(d)approaching or coming within 100 metres of any place where either of the children attend school from time to time.

12.Pursuant to ss 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 the Annexure and these particulars are included in these Orders.
13.The Independent Children's Lawyer is discharged upon the latter of the determination of any appeal or the expiration of the applicable appeal period.
14.The Independent Children's Lawyer, or any party, have liberty to approach within 28 days to list the proceedings for further hearing in relation to any costs application.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 pseudonyms Kaluza & Jefford has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SMITH J:

These are oral reasons for judgment in parenting concerning the appropriate parenting orders pursuant to the Family Law Act 1975 (Cth) (“the Act”), for the children X, aged eight and commencing year 2 at a local public school, and Y, aged five, who has just commenced kindergarten at the same school (“the children”).
The applicant mother is Ms Kaluza, aged 40. The respondent father is Mr Jefford, aged 38.
The mother was born in the United Kingdom, came to Australia in September 2010, and has lived here since. The father was born in Australia.
The parties entered into a relationship in about September 2011, married in 2013, and purchased a property in joint names in about October 2014.
The children were born as a result of IVF treatment using a sperm donor. There is no issue as to standing to seek parenting orders under the Act.
There was an issue as to when the parties separated. That does not require resolution. They had definitely separated by 8 March 2020, with the mother remaining in the former matrimonial home until late March 2020, when she took the children to live at a friend's home, until moving into an apartment with the children in August 2020.
The parties divorced in 2021.
The mother is employed at a local hospital as a medical professional. She is undertaking specialist training.
She lives with the children in a suburb of City M. The mother is working two to three days a week. She employs a nanny to mind the children when she is working and they are not in school.
Among other issues, the mother seeks leave to relocate to the United Kingdom with the children, where her parents and sister still reside in City AA. The mother has a new romantic partner, Ms CC, who is a health professional. They have known each other for about 10 years. They became close friends mid last year and commenced a romantic relationship in about October 2024.
Ms CC has three children – aged seven, five and three. Ms CC and her children have all stayed at the mother's house on occasion. At present, the children simply know Ms CC as the mother's good friend. Ms CC has had some involvement with the children, and it may increase depending upon whether the relationship continues. There is no evidence or submissions that Ms CC poses any risk to the children.
The father works full-time in the Australian Defence Force as a professional, working remotely. The father met his now wife, Ms V, aged 30, in early 2020, and commenced a relationship with her soon thereafter. The father and Ms V live in Suburb FF, which is about 45 minutes’ drive from the mother, depending upon traffic.
Ms V is a mental health professional, with experience in child-related work. She is pregnant with a child which was conceived using sperm from the same donor who is the biological father of the children. This new child is due in a few months. Ms V's evidence is that she has taken a supporting role in the father's time with the children, and that the children refer to her as Ms V. There is no evidence or submissions that Ms V poses any risk to children. The father submits she is both a positive and a protective factor in his household.
PRIOR PROCEEDINGS
This is the second set of parenting proceedings between these parties concerning these children. The prior proceedings (NCC 1398 of 2020) were commenced by the mother in May 2020, soon after leaving the former matrimonial home with the children. There was a final hearing before a justice of Division 1 of this Court, for four days in July 2022.
A prior judgment, Jefford & Jefford [2022] FedCFamC1F 539 (“the prior judgment”) was delivered, and final orders were entered on 29 July 2022 (“2022 final orders”). That judgment was tendered and admitted without objection (Exhibit 1). I note section 69ZX(3) of the Act. Parts of the transcript of the prior proceedings were also admitted without objection, see Exhibits 17 and U in particular.
The primary issue at the trial in 2022 was whether the father posed an unacceptable risk of sexual harm to X, in particular based on disclosures by X in 2019 and 2020. A secondary issue was the father's general parenting capacity. The disclosure allegations were summarised by the prior judge as follows:[1]
27. In summary, the mother alleges that, in December 2019, the elder child disclosed (in language commensurate with her age) the father had massaged her vagina with his penis. She later confronted the father with the child’s disclosure. He conceded the elder child had caught him in the act of masturbation (which entailed him thrusting his penis into the genitals of a sex aid, crafted in the form of a female abdomen) while watching pornography. He said he told the child he was massaging the device’s vagina with his penis. He denied massaging the elder child’s genitals with his penis. The mother alleges the child repeated the disclosure in February 2020. Following the parties’ final separation in March 2020, the mother reported the elder child’s disclosures to the police, but the disclosures were not substantiated and the father was never charged with any criminal offence.
[1] Exhibit 1, paragraph 27.
At the conclusion of the 2022 trial, counsel for the mother properly conceded that the “evidence was insufficiently probative to demonstrate the father posed the alleged risk of harm.”[2]
[2] Exhibit 1, paragraph 29.
The reasons the court gave confirming with that conclusion were set out in the prior judgment at paragraph 30. The prior judgment also found (see paragraphs 76 to 77), that whilst there were no doubts about the mother's capacity to meet the children's needs, the father's capacity was inferior to her. The court and found that:[3]
[3] Exhibit 1, paragraph 78.
78. Despite the father’s reluctance to accept the reality, the evidence strongly tends to demonstrate that he:
(a)provided inconsistent subsidiary parental support to the mother in her role as the children’s primary carer while they still lived together, even though she was employed and he was not, which evidence is accepted in preference to that given by the father;
(b)places his own needs above the children, the most acute examples being, first, when he left the children alone at night in the former family home in February 2020 so he could attend a romantic dinner, and secondly, when he insisted on explaining to the elder child his relationship with his current wife despite the child being distressed and him having been advised by his psychologist to be gentle;
(c)does not tend to the children’s physical needs as meticulously as the mother;
(d)tends to focus his attention on the elder child at the expense of the younger child, which he admitted in cross-examination was “potentially correct”;
(e)interacts with the elder child in a childish way and cannot easily settle her;
(f) is easily distracted and inconsistent when caring for the children;
(g)has personality traits which tend to make him erratic and unreliable; and
(h)has physical limitations that may hinder his care for the children, as he recently applied for a disability parking permit, which he presumably would not have done unless he thought it was needed.
The issue of family violence was also raised, and the court found, at paragraph 39 and following, that the mother's evidence of some frank physical assaults was proven on the balance of probabilities. The court accepted the mother's evidence of other incidents of family violence.
However, and without minimising the events of family violence that were found to have occurred, the court did not consider the extent of the family violence was such that the children needed protection from exposure to family violence.[4]
[4] See the prior judgement, paragraph 51 and onwards.
The 2022 final orders in summary and relevantly given subsequent events, order that: the children live with the mother; the mother have sole parental responsibility; permit the mother to relocate with the children to the United Kingdom at the end of 2023, conditional on her proof that she obtained from a court of competent jurisdiction in the United Kingdom a declaration of registration and enforceability of this Court's orders in the United Kingdom pursuant to Article 26 of the Child Protection Convention; that while living in Australia, she will reside within 220 kilometres of the City M Post Office, with the children to spend unsupervised time with the father each Sunday from 12 pm to 4 pm.
The orders also dealt with the parties living further distances apart and issues if and when the mother moved to the UK, which did not arise prior to these proceedings commencing, and dealt with standard ancillary matters.
THESE PROCEEDINGS
These proceedings arise out of disclosures in January 2023 by X, made to the mother, maternal grandmother and her counsellor Ms DD, that the father was touching her genital regions in a way that upset her.
Ms DD was X's counsellor who she had seen from 2020 in the context of the prior allegations, and so someone X had an existing relationship of trust with.
X maintained the main disclosure of sexual touching in an interview with a Court Child Expert Dr EE, who I will refer to as the expert, at an interview in these proceedings later that same year, which is to say on 18 September 2023.
The expert considered X’s disclosures from 2023 and, in the Family Report stated the opinion that X’s disclosures were “clear, repeated, decisive, and consistent in nature.”[5]
[5] Exhibit ICL4, paragraph 142.
The expert substantially maintained that opinion in cross-examination.
Having said that, the expert, quite properly, deferred to the court on the issue of whether or not sexual abuse had occurred, and on the assessment or risk and unacceptable risk if positive findings could not be made on the occurrence of the abuse.
It was not in contest that the January 2023 disclosures constituted a significant change in circumstances, and that it was and is in the children's best interest and appropriate for the court to further consider the extant parenting orders of 2022, pursuant to section 65DAAA of the Act, even though only made in 2022. I find that it was and is appropriate to reconsider the extant final parenting orders pursuant to that provision in light of X’s subsequent disclosures.
Accordingly, the first and main issue at trial was whether the father sexually abused X, or in the alternative whether he may have, and whether or not he poses an unacceptable risk of sexual harm to X and possibly to Y.
The father vehemently denies any sexual abuse or sexual touching occurred.
The second issue, which arises if there is no unacceptable risk of sexual harm, was whether the 2022 order should be revived by removal of the interim orders or suspending them, or whether, as the father submitted, there should be a finding that his parenting capacity has substantially improved, so that the children should spend substantially more time with their father than the four hours a week under the 2022 orders, and further, whether the mother's international relocation, which was permitted, should now be prohibited.
While the parties led evidence before me concerning the various issues addressed in the prior trial, those prior issues were not the main focus of this trial.[6]
[6] See Mother’s affidavit filed 11 November 2024, paragraphs 52–61; Father’s affidavit file 11 November 2024, paragraphs 15–24; the prior judgment, paragraphs 78(b) and 78(d).
I note there was, ultimately, no contest that the children should live with the mother and that she should exercise sole parental responsibility. The range of proposals before me were, starting with the mother, a no time and no communication order based on an unacceptable risk of sexual harm, but in the alternative, the 2022 orders. In the middle, so the speak, the Independent Children’s Lawyer (“ICL”) who submitted the evidence did not reach the threshold for establishing unacceptable risk of sexual harm and sought the 2022 orders be reinstated, and then the father who sought increased time and a prohibition on the mother's relocation, but in the alternative, the re-instatement of the 2022 orders.
As this is an oral decision, I will indicate my findings in summary now, and the orders that will be made, before setting out my reasons for them.
On the first issue of the 2023 disclosure, it was properly conceded for the mother, and I agree, that because of the great gravity of the alleged conduct and the consequences of a positive finding that the father sexually abused X, the proper application of the civil evidentiary standard in s 140(2) of the Evidence Act 1995 (Cth) noting the authorities[7]that it is not appropriate on the evidence to make a positive finding that the father sexually abused X.
[7] See, Briginshaw v Briginshaw (1938) 60 CLR 336; M v M (1988) 166 CLR 69 (“M & M”).
That submission or concession was made, in particular, given the circumstances where neither Department of Communities and Justice (“DCJ”) nor any other qualified person conducted a full and proper forensic interview of X and noting the expert's opinion that this was a limitation on the assessment of the disclosures and not something that the expert did.
There is no criticism intended of DCJ, nor is there implicit criticism of either the expert nor of Ms DD in this statement. With the latter two it was not their role, nor would it have been appropriate for them to undertake such a forensic interview to seek to assess the details of the disclosure.
This concession, in effect, accepts the father's submissions about the uncertainty involved in the allegations in the absence of such a forensic interview, including for example that it was never actually ascertained on what date or dates of unsupervised time this touching was said to have occurred, precisely how many times it is said to have occurred, where in the house it is said to have occurred or, if not in the house, where it was said to have occurred, who, if anyone else, was said to be there, why there was a reference to bleeding, which I will come to, when none was identified, and the various potential inconsistencies as to details around what occurred in the different disclosures made by X to different people.

All parties accepted, and I agree, that these issues mean that the required level of comfortable satisfaction cannot be achieved to make a positive finding that the father has sexually abused X.
I note that, given the significance of the absence of a forensic interview to establish or test the details of the alleged touching, and to clarify any potential misunderstandings, I offered the parties and ICL the opportunity to seek an adjournment to have X undertake a forensic interview to try and establish with greater certainty either whether the statements made were disclosures of inappropriate sexual touching, as they appeared to be on their face, or whether they were perhaps explicable by events, such as the event on 8 January 2023 when X wet herself and the father cleaned her up, or by some other misunderstanding. The parties and the ICL all declined this approach as being too late to be useful, as was their right.
This leaves me in the difficult position of having to assess the risk of future sexual harm to X, and possibly Y, posed by the father in the context of disclosures which do not reach the civil standard of positive proof. I am required to act by reference to the relevant principles, which require me to consider the matter within the rubric of unacceptable risk as identified in the High Court in M & M (1988) 166 CLR 69 (“M & M”), and I refer to the more recent discussion and the illumination of those principles in Isles v Nelissen (2022) 65 Fam LR 288 (“Isles & Nelissen”).
Weighing all of the evidence, and without placing any weight on the prior disclosures or the events before January 2023, and being aware of the gravity of the finding and its consequences, not only for the father, but for Ms V and their soon to be born child, and for X and Y, who will suffer as a consequence of the findings and orders I make a complete loss of the paternal relationship, I have concluded and find that X's repeated disclosures of the key fact that the father touched her vagina or genital area in a way which made her uncomfortable and which she wanted to stop, was sufficiently consistent and sufficiently reliable to give rise to the finding, which I make, that there is a real and substantial possibility that the father sexually touched X's genital region, and sexually abused her, even though the evidence is insufficient to establish that he in fact did so.
On the basis of my assessment of the degree of this real and substantial possibility of past sexual abuse, and accepting the expert's unchallenged evidence as to the grave harm suffered by child victims of sexual abuse, which I find would be suffered by X, and possibly Y, if they were to be sexually abused in the future, and applying the principles articulated in Isles & Nelissen, I find that the evidence establishes to the relevant standard that the father poses a real and unacceptable risk of future sexual harm to X, and possibly Y, if these children were allowed to spend unsupervised time with him.
I note that the evidence focused on X, but no submission was made that different orders would be made for Y if it were to be found that the father poses an unacceptable risk of sexual harm to X.
I find that Ms V is a good person and does not pose any risk to the children, however, as she said in her affidavit:[8]
59. I do have a firm belief that [Mr Jefford] does not pose any risk of harm to children. If I did not believe that, I simply would not be with him, let alone currently pregnant and preparing to have a child with him.
[8] Affidavit of Ms V filed 3 December 2024, paragraph 59.
Her position in oral evidence was consistent with that, and was understandable, given her position. In this context, her presence does not constitute effective supervision and does not provide a factor which ameliorates the risk to make what would otherwise be an unacceptable risk of unsupervised time acceptable. To the extent to which reasons are required for that finding, I respectfully adopt what was said by the Full Court In the Marriage of B & B (1993) 112 FLR 45 at 61-62 under the heading “Who should supervise access?” I consider what was said there applies to Ms V.
The expert recommended at paragraph 158 of the Family Report that in the case of such a finding of unacceptable risk of sexual harm there should be a no-time order. She was not challenged on that finding.
I consider and find it to be the order that must flow from a finding of unacceptable risk which cannot be ameliorated by other measures and having taken into account all of the other s 60CC factors in the Act, which I will come to in due course.
The orders will then be as I now read them.
I make these orders recognising it will inevitably involve significant psychological and emotional harm to the children, and in particular to X, who clearly already understands that the change from unsupervised to supervised time resulted directly from her disclosure, and who I find will blame herself for the removal of the father from her and Y's life, but I find that the inevitable and significant long-term psychological harm that X, and possibly Y, are likely to suffer from the termination of the paternal relationship, and also the relationship with Ms V and the coming half-sibling of whom X, at least, is aware, is less than the risk of the possible harm to the children from spending unsupervised time with the father, given what I consider to be the very real risk that he may in future commit acts of sexual abuse of X if there is an order for unsupervised time.
There is no submission that there be indefinite supervised time, and I note that, in any event, I would have not considered it appropriate.
I note that I have considered the issue raised by the ICL in particular with the expert, although no final submissions were made about it, that there could be supervised identity time in the case of a finding of unacceptable risk, particularly noting the expected birth of a half-sibling. On balance, however, I do not think that such identity visits are in the interests of the children, given that I find it is likely to exacerbate and perpetuate the psychological harm X and Y are likely to experience from the eventual cessation of the paternal relationship.
For completeness, in case the matter goes elsewhere, for reasons I will also briefly outline later, if there had been a finding that the evidence did not reach the threshold for a finding of unacceptable risk, I would have found that the evidence, including the disclosures and the CCTV evidence, would not have supported any increase in the father's time or a change to the 2022 orders, so that I would have reverted to the 2022 orders as submitted by the ICL.
BACKGROUND TO THESE PROCEEDINGS
Following the making of orders in July 2022, the children spent unsupervised time with the father in accordance with the 2022 orders for four hours each Sunday.
Following a visit on Saturday, 7 January, which was varied from the Sunday at the mother's request, X made certain disclosures. X made further disclosures following the next visit on Sunday, 15 January 2023. X made these disclosures to the mother, the maternal grandmother and her existing counsellor, Ms DD, of sexual touching by the father.
Reports were made to the Department of Communities and Justice, but no action was taken by them and X was not interviewed.
The mother terminated unsupervised time.
There were two supervised visits during February 2023. The time then ceased. I will come to the specifics in a moment.
PROCEDURAL HISTORY AND TRIAL
The current proceedings were commenced by the mother on 22 May 2023. An ICL was appointed. The matter was allocated to the Magellan protocol.
On 24 July 2023, it was ordered the father spend supervised time with the children for a period of two hours once a fortnight. Supervised time recommenced in September 2023.
The Magellan Family Report interviews were conducted in September 2023. The report was released on 11 October 2023.
On 1 July 2024, the matter was listed for a final hearing to commence before me on Monday, 17 February 2025, for five days at the Newcastle registry.
The trial ran for seven days from 17–21 February and then from 4–5 March, with all parties represented, including by counsel.
At trial the mother relied upon the minute of order contained in her submissions bundle (MFI 9). Her primary position was that the father poses an unacceptable risk of harm to the children and so should spend no time and have no communication with them, and, as I understand it, sought s 68B orders. In the alternative, if there was found to be no unacceptable risk of harm, she proposed the 2022 final orders continue.
The mother read, tendered or relied upon:
(1)Her Initiating Application filed 11 November 2024;
(2)Notice of Risk filed 22 May 2023;
(3)Her five affidavits filed 11 November 2024, 6 December 2024, 3 January 2025, 14 February 2025, 20 February 2025;
(4)Affidavit of Ms BB filed 14 September 2023;
(5)Affidavit of Mr R filed 30 June 2023;
(6)Affidavit of Ms T filed 30 January 2025;
(7)Affidavit of Ms CC filed 10 February 2025; and
(8)Submissions bundle filed 7 February 2025.
The mother and her witnesses were all required for cross-examination and were cross-examined.
In his opening case outline, MFI 10, the father relied upon the orders sought in his Amended Response filed 11 November 2024, seeking, in summary, equal shared parental responsibility and for the children to live with him. During the trial, the father amended his position to seek final orders as set out in MFI 25, which included two alternatives.
The first and preferred alternative was for the mother to have sole parental responsibility, the children to live with the mother, and then to spend unsupervised time with the father in a graduating regime, starting with six months of alternate Saturdays from 10.00 am to 6.00 pm, then six months of alternate weekends, Saturday 10.00 am to Sunday 10.00 am, then six months Saturday 10.00 am to Sunday 4.00 pm, then Friday after school to Sunday 2.30 pm, and then five days each short holiday, two weeks in the long holidays, plus special occasions and other ancillary orders.
The second alternative was merely to return to the 2022 final orders. That was not his preferred position.
The father tendered or relied upon:
(1)Amended Response filed 11 November 2024;
(2)Notice of Risk filed 17 July 2023;
(3)His affidavit filed 11 November 2024;
(4)Affidavit of Ms V filed 11 November 2024;
(5)Case Outline and Notice of Objections filed 12 February 2025; and
(6)His Amended Minute of Order provided 4 February 2025.
The ICL reserved their position until the conclusion of trial, and then proposed final orders in MFI 26 that, in effect, provided the final orders of 2022 be re-instated by removing the stay upon them effected by the interim orders in these proceedings.
The ICL read, tendered or relied upon the:
(1)Magellan Family Report of the Court Child Expert, Dr EE dated 9 October 2023, which I will refer to as the Family Report;
(2)Children and Parents Issues Assessment Report of the Family Consultant, Ms GG, dated 18 September 2022, prepared for the prior proceedings;
(3)Single Expert Report of Ms HH, forensic psychologist, dated 23 June 2021, prepared for the prior proceedings; and
(4)Updated Report of Ms HH, forensic psychologist, dated 28 June 2022, prepared for the prior proceedings.
The ICL also provided and relied on:
(1)Case Outline filed 7 February 2025;
(2)ICL’s new minute of order provided 5 March 2025; and
(3)ICL’s costs notice.
The mother, maternal grandmother Ms BB, maternal grandfather Mr R, maternal aunt Ms T, the mother's new partner Ms CC, the father, the father's new wife Ms V and the Court Child Expert Dr EE were all required for cross-examination and gave oral evidence.
The experts in the prior case, Ms GG and Ms HH, were not required.
I note, in respect to Ms GG and Ms HH, that these opinions, whilst useful background material in understanding the history of the matter and the prior judgment, play no substantial or real part in my assessment of the unacceptable risk issue, which I have decided based upon the recent disclosures from 2023.
I note that numerous documents were tendered into evidence, some of which fall away in terms of relevance, and they will be referred to as required.
CURRENT DISCLOSURES
29 July 2022 – Prior Judgment and CCTV
The prior judgment was delivered on 29 July 2022. The children then started to spend time with the father, and usually Ms V, for four hours each Sunday, pursuant to the orders. The father gave evidence in his affidavit from paragraph 59 to 63, that due to the mother making complaints about inadequate supervision by April 2021, in the prior proceedings, while in that trial, he had:[9]
… caused an internal camera system to be installed in my home at [Suburb JJ] in order to record visits with the children.
[9] Father’s affidavit filed 11 November 2024, paragraph 59.
The father changed the settings after the prior judgment in 2022, so the unsupervised video visits were recorded. The cameras did not cover the whole of the house, excluding, for example, the bathroom, and due to a guest having stayed in the children's bedroom, that camera was also turned off. The father had available video footage of many visits and was asked to and did provide video from the 15 January 2023, which he said he understood was the day complained of. There was no footage from 7 January 2023, as it was a Saturday, rather than a Sunday, and the auto-record settings were not set for a Saturday.
Underpants Rule and the No-No Square Rule
The mother's evidence was that X had learned the "underpants rule" and the "no-no square rule", which were both protective rules around not allowing people to touch her in the area covered by her underpants. That did not seem to be in contest.
7 January 2023
The children spent time with the father and Ms V, on Saturday, 7 January 2023. There was no CCTV footage. X had what was referred to as a wee incident as set out in the father's affidavit:[10]
67.6. I do remember one incident on 7 January 2023 where [X] had had a wee accident in the kid's bedroom. I carried [X] out into the lounge room to get her off the carpet. I remember that I was holding her initially under her armpits with both hands while I carried her out of the room, and it is possible that when I carried her out of the room I inadvertently came into contact with her nipples (over her shirt). It was certainly not intentional.
67.7. I then put her to the side on a towel and supported her with one arm around her tummy while helping her take off her soaked clothing. [Ms V] and [Y] were there. I remember that I pulled [X's] undies down from the side of her hips, and not from near her vagina. [X] was giggling a little with embarrassment and saying "whoopsie!'' and otherwise seemed open to the help. She also said words to the effect of "I guess I had too much apple juice too fast", "It came so fast I didn't even feel it coming" and "I was like 'oh no, I need to go', then not even two seconds later it was coming". [Ms V] then took her to have a shower while I cleaned up the puddle and put her clothes in the wash.
67.8.I mentioned the incident to [Ms Kaluza] in a message on 7 January 2023 at around the time of handover. Annexed to this affidavit and marked as Annexure "B" is a copy of the message.
(Emphasis in original)
[10] Father’s affidavit filed 11 November 2024, paragraph 67.6–67.8.
Said text message reads as follows:[11]
…
Also, [X] had a wee incident today – she had gone to the toilet about 40 minutes earlier, but it seems that apple juice went through her quicker than she realised and she didn’t make it to the toilet in time. I’ll wash her clothes and have for you next week.
…
[11] Father’s affidavit filed 11 November 2024, Annexure B.
Ms V also gave evidence of this in her affidavit:[12]
32. A few moments later, I was at the dining table in the living room which directly attaches to the bedroom. l heard [X] say "Oh I need to pee" and "Oh no, it's coming now". [Mr Jefford] carried her out and she was peeing through a few layers of her clothes. I walked over t [sic] see if I could assist. [X] seemed a little embarrassed at first, but then mostly appeared to find it funny. I left briefly at a jog to grab a couple of towels from the laundry and brought them back within 10 seconds. [Mr Jefford] was still holding [X] a little above the ground, and there was a puddle of wee underneath her feet. I placed a towel under her feet and [Mr Jefford] used one of his feet to wipe most of it away with the towel and then placed her slightly on the edge of the towel. I then stood there within a metre of them both, facing them, while [Mr Jefford] wiped her down and helped her out of her soaked clothes. He then stayed to clean up the rest of the pee and to play with [Y], while I took [X] to have a shower.
(Emphasis in original)
[12] Affidavit of Ms V filed 3 December 2024, paragraph 32.
Both the father and Ms V gave oral evidence that the father did not touch X's genital region in this event, so this event does not explain, on the face of it, as we will come to, X's disclosures. The father submitted that even though both he and Ms V gave evidence that X's genital region was not touched, it may be that X may have experienced in the incident the feeling of the wet underwear moving across her genitals in this context as being someone touching. I accept this as relevant and weigh it in the assessment of X's disclosures.
Thursday, 12 January 2023 – X's First Disclosure
The maternal grandmother is in her seventies and is retired. She currently lives in City AA, England with her husband. She came to Australia in February 2022 and lived with the mother to assist in the care of the children. She returned to the United Kingdom in February 2024. In her trial affidavit at paragraph six, she said that:[13]
6. The day following the visit with the father, [X] seemed aggressive and angry with multiple outbursts and difficulty regulating her emotions.
[13] Affidavit of Ms BB filed 14 September 2023, paragraph 6.
I note that there is significant evidence that X's anger and aggression and difficulty regulating her motions was not new, and I do note, but do not need to specifically refer to, the various clinical notes of Ms DD in the period prior to the father's unsupervised time commencing in July 2022 as tendered by the father. Accordingly, no additional weight is given to the disclosures by reason of X acting in that way.
The maternal grandmother further said:[14]
7. On Thursday 12 January 2023, [Y] was at daycare and I was caring for [X]. We had been to the library and then were enjoying some lunch in the park whilst reading one of the books we had borrowed. In the middle of the book, [X] stopped me and said she wanted to go home. I said, "It's a lovely day to enjoy the sunshine and some books in the park." I noticed that [X] appeared to be bothered by something and so I asked her, "What 's the matter [X]?" [X,] after some hesitation replied, "I can't tell you, Nani." I put my arm around her and stated, "It's ok if you don't want to talk about it. Just know that you can talk to me any time you want to.'' [X] then said, "I can't tell you, it's a secret." I went on listening. [X] continued, "I will tell you but I will be breaking my promise. My Daddy said not to tell anyone. Don 't tell my Mummy." I reassured [X] and said, "It's ok, [X], you can tell me." [X] then said whilst looking down and avoiding eye contact, "My Daddy has been touching me and I don't like it." At first, I was puzzled and wasn't sure I had heard her correctly but I asked, "Where, [X]?" She pointed to her nipples and vaginal region. I was shocked to hear what she said and wasn't quite sure how to respond so I gave her a hug. We sat in silence for a short while and then I said to [X], "You should tell your Mummy about this when she gets home. I think she will want to know and talk to you about it."
8. When [Ms Kaluza] returned home that afternoon, [X] ran towards her and put her arms around her Mum in a tight hug and she just blurted out, "Daddy, has been touching me and I don 't like it!" [Ms Kaluza] gave me a questioning look whilst still embracing [X]. [Ms Kaluza] then asked [X], "Where has Daddy been touching you?" [X] again pointed to her nipples and genital region. [Ms Kaluza] asked [X], "What sort of touching? Where was [Ms V]? "[X] repeatedly poked her finger into [Ms Kaluza's] leg and said, "Like that. [Ms V] and [Y] were laughing." [Ms Kaluza] said to [X], "Tell daddy you don 't like it and to stop doing it."
(Emphasis in original)
[14] Affidavit of Ms BB filed 14 September 2023, paragraph 7–8.

The mother said about this statement:[15]
15. When I returned home that day, [X] ran towards me and put her arms out for a hug and said, "Daddy has been touching me and I don't like it!" I said to her, "Where is he touching you?" [X] pointed to her nipples and genital area. I said to [X], "What sort of touching? Where was [Ms V]?" [X] poked her finger into my leg and said, "Like that. [Ms V] and [Y] were laughing." I assessed that [Mr Jefford] was poking [X] with his finger in a joking playful manner, with everyone present and that this was not a serious matter. I said to [X], "Tell daddy you don 't like it and to stop doing it."
(Emphasis in original)
[15] Mother’s affidavit filed 11 November 2024, paragraph 15.
I note the fact that X demonstrated the nature of the poke to the mother by poking the mother's leg, which was not necessarily inconsistent with her statement that the touching had been to the nipples and genital area, even though the mother initially dismissed it in the entire circumstances in which it was said.
The mother and the maternal grandmother were not substantially challenged as to the accuracy of their recollections of the events of this day, and I accept their evidence as to disclosures made, noting it is consistent with other later disclosures to independent people, in particular, Ms DD.
15 January 2023
On 15 January 2023, the children again spent time with the father and Ms V.
The father had CCTV installed in the home.
The mother's fourth affidavit of 14 February 2025 deals with her interpretation of certain events on the CCTV. The mother focused on an incident in which the father grabbed X and in which his hand, or arm came across the front of her groin and up her skirt, which she thought, and I agree, made X visibly uncomfortable, and where Ms V intervened.
Much time was spent on the CCTV footage in the trial. My viewing of the footage is to the effect, consistent with the father's submission, that it does not show the father touching X in a way which would explain X's disclosures. Nor, however, since it is clear that the video does not capture all that occurred within the house on the visit, would the video necessarily exclude the possibility of the touching having occurred on that date. I note in that regard that Ms V gave evidence that she did not believe “that it would have been physically possible for [Mr Jefford] to have sexually abused [X] in the way described without my notice.”[16] I do not accept that proposition. The available video shows that to be incorrect. Experience and other cases show the speed with which opportunistic sexual touching may occur. That means that the father, who knew that the cameras did not cover the entire area, and who was not in Ms V’s presence the entire time, had opportunities. This merely establishes that neither the available CCTV video, nor Ms V's evidence, can exclude the possibility of touching on this occasion.
[16] Affidavit of Ms V filed 3 December 2024, paragraph 46.
Also, of course, as the father pointed out, it is not entirely clear when the alleged touching occurred. It may have occurred on the 7^th, but not the 15^th. It may have occurred earlier. That is one of the issues that means it is difficult, and, indeed, I find not possible, to make a positive finding, but it also means this CCTV evidence does this evidence exclude the possibility that touching occurred real.
I will not go through the evidence about this video in great detail. I will note, however, that my view is that whilst the CCTV footage shown, particularly of 15 January 2023, does not include evidence which would add to the issue of sexual risk, it was clearly relevant to the father's lack of perceptiveness as to children's signals and needs, and evidence that his parenting capacity remains at no better level than at that assessed in the prior judgment and would not justify an increase in the time spent with the children absent unacceptable risk.
18 January 2023
The mother's affidavit filed on 11 November 2024, said:[17]
16. The children had another visit with [Mr Jefford] again on Sunday 15 January 2023. Following that visit, [X's] behaviour was very unsettled. She was uncharacteristically angry and aggressive. On Wednesday 18 January 2023 [X] had behaved in an extremely demanding and difficult manner and displayed an irritable and oppositional temperament all day, including refusing to get out of her room and throwing herself on the floor. She climbed into the wardrobe and wouldn't get out. It was late in the evening when she was asking for some more food and it was already past her bedtime. I attempted to redirect her to bed when she launched herself at me, was pinching, scratching, pushing and biting me. She continued like this for some time and I said to her, "What's going on [X]? Why are you like this? I can't help you unless you tell me what's wrong." [X] literally climbed up onto me and screamed "I don't know how to tell you, Mum!" [X] then climbed down off me, ran around the comer and crouched down next to the wall hiding herself from my gaze. I said "It's ok darling, you can tell me if you want to," [X] said to me "Daddy's touching me and I don 't like it. I want him to stop." [X] was crying and appeared very distressed. She appeared embarrassed and felt she had to hide, when telling me, what had happened.
17. I went to her and took her in my arms and said to [X], "I am so sorry that this happened to you. Do you want to tell me any more about it?" [X] nodded and I walked with her still in my arms to my bedroom. I asked her, "Where is Daddy touching you?" and she again pointed to her genitalia. I asked, "Where was [Ms V]?" [X] said, "[Ms V] was not there. She was busy studying. [Y] was there and he thinks it's funny but I think it is embarrassing. I don't like it and I want him to stop." I said to [X], "Was it a long touch or a short touch?" She said, "A long touch." I asked [X] "Does it hurt?" and she replied "Yes. Daddy made that red dot on my gina"
18. On Sunday 15 January 2023, following the visit with her father, [X] said, "My gina is sore" and she was irritable and appeared distressed and started to cry about this. It was bedtime and I asked, "Can I take a look and apply some cream to help with the discomfort?" She let me inspect the area and there was a red dot at the top of her vulva on the right side. She was distressed and crying and shouted, "No! It's taking a long time to fix my gina. Why can 't you just fix it!"
19. [X] has suffered with vulvovaginitis from time to time and I have been applying barrier creams to help with her discomfort. However, for about 2 months prior to this she had been refusing to let me apply any creams despite the fact that she appeared to be in obvious discomfort. She had also been complaining of abdominal pain intermittently which seemed quite non-specific with no clear cause and would come on sporadically. This seems to have stopped since she has made her disclosure and her visits have been supervised.
20. I took [X’s] disclosure very seriously and I reported the matter to the Department of Communities & Justice (DCJ).
(Emphasis in original)
[17] Mother’s affidavit filed 11 November 2024, paragraphs 16–20.
The maternal grandmother, at paragraphs 10 to 12 of her affidavit, confirmed the first part of these events up to where X made the disclosure that the father was touching her, and she wanted him to stop. The maternal grandmother was not present for the remainder of the conversation, where the mother and X went to the bedroom.
The mother also said:[18]
64.Following [X's] first disclosure on 12 January 2023, I was at first confused about what had occurred based on her description. However, following her further disclosure and description made on 18 January 2023, I am concerned that something sexually inappropriate had occurred.
[18] Mother’s affidavit filed 11 November 2024, paragraph 64.
The mother and maternal grandmother were, again, not substantially challenged as to the accuracy of their recollections of the events to this day, and I accept their evidence as to disclosures made. I will come later to the fact the mother was challenged on whether she really believed them, given that she did not act on the disclosure after the first disclosure.
There was much speculation about whether X could see the red dot, which is referred to, and what part the red dot may have played in her disclosure. I note the mother observed the red dot. The red dot appears consistent with X's history of vulvovaginitis, and that X could have seen the red dot in the mirror, noting its position as identified by the mother.
The fact that the father touching or poking X there could not have caused such a red dot is not inconsistent with the father having touched X there, and X, having a child's temporal understanding of causation, deciding that as the father had touched her in the genital area, and there was a red dot in the area, the red dot was caused by touching. This is not evidence that weighs against the accuracy of the disclosure, nor do I find, of course, that the red dot weighs in favour of there having been sexual abuse, since it clearly is unrelated to mere touching.
22 January 2023
The children's next scheduled visit was Sunday, 22 January. On that date, the mother sent the father a text message at 10.07 am, which the father says, and I accept, said:[19]
65. …
"Unfortunately going to have to cancel this today as [Y] is not very well. He has had some vomiting and diarrhoea overnight and this morning and just needs to rest".
(Emphasis in original)
[19] Father’s affidavit filed 11 November 2024, paragraph 65.
I accept it is likely the mother was lying about Y being unwell while she thought about she should do, given the disclosures, in the context of the prior proceedings.
23 January 2023
The mother contacted DCJ on 23 January 2023. The report said in part:[20]
[20] Exhibit 9.
Brief Concern:
[X’s] parents are divorced and [X] is in the primary care of her Mother [Ms Kaluza] and goes to see her Father 4 hours a week unsupervised.
[X] has made a recent disclosure saying “daddy keeps touching me and I don’t like it”.
[X] [redacted] will be returning back to her Mother’s household but is scheduled to see her father this coming Sunday.
Priority Queue Rationale –
Additional information to above: On 12/01/2023 [X] [redacted] [X] looked a bit sad and was asking “what’s wrong” [X] said I can’t tell you it’s a secret [redacted] what’s bothering you it’s ok. [X] said “daddy keeps touching me and I don’t like it”. When asked where [X] pointed to her nipples and her genitalia.
[redacted]
[redacted] [X] ran and said “daddy keeps touching me and I don’t like it”.
[redacted] here [X] pointed to her front (vagina) and also pointed to her bottom. [Y] thinks its funny but I think it’s embarrassing. [redacted] how did he touch you and [X] made a pointing gesture with her finder and pointed and pushed her finger into [redacted] leg. [X] did not want to talk about it any more.
…
[redacted] thought as this was out in the open and seemed like a game.
On Wednesday 18/01/2023 [redacted] [X] was clingy and did not want to leave the room and [redacted]. She was throwing tantrums that day … will try to bit [sic] and punch [redacted] why are you behaving like this what is going on. [X] climbed up for a hug and said “I don’t know how to tell you and got down and ran away and said daddy keeps touching me and I don’t like it and I just want him to stop”. [redacted] asked [redacted] who was there and [X] said [Y]. [Ms V] is studying. [redacted] are you wearing clothes, sometimes me and him take out clothes off to cool off if we’re too hot. When asked [redacted] where was she touched [X] pointed to nipples front (vaginal area) and to her bottom.
[redacted] did it hurt and [X] said yeah. Daddy made that red dot on gina (vagina). [X] get [sic] vulvovaginitis (hormonal changes in the genitalia estrogen in the tissues and can become irritated discoloured and red)
[X] also has a dry patch on the outer skin and is often itchy.
[redacted] [X] scratches a lot in this area. [redacted] t [sic] is odd that [X] contributed the tiny dot she had there to her father. The dot was there on 18/01/2023 - not known if still there.
Over the last few months there has been a change in her behaviour ie a lot of tantrums and complaints of tummy pain and more recently in the last couple of weeks her appetite has changed. [X] has been calling out and crying in her sleep [redacted] over the last week or so.
Arrangements between parents – FLC – sole custody to the mother with the father having 4hours of unsupervised visit once a week on Sundays.
…
SCRPT Rationale
Screened in under suspicious indicators consistent with sexual abuse for [X] (5yrs) other child in the household Is [Y] (3yrs).
It is reported that [X] disclosed that "daddy is touching me and I don’t like it”. When asked where [X] pointed to her nipples and her genitalia. When initially asked [redacted] what was bothering her on 12/01/2023 [X] said "I can't tell you its a secret”
When [redacted] followed up [X] said the same thing and pointed to her front (vagina) and also pointed to her bottom. [X] also said [Y] thinks it funny but I think it’s embarrassing [redacted] how did he touch you and [X] made a pointing gesture with her finger and pointed and pushed her finger into [redacted] leg. when asked who is there when daddy is touching you and [X] said [Y] and [Ms V] (father’s new wide) everybody thinks its funny but I don’t like it.
[redacted] thought as this was out in the open and seemed like a game.
On 18/01/2023 [X] was clingy and did not want to leave the room and hid [redacted] She was throwing tantrums that day .. [X] said again “I don’t know how to tell you and got down and ran away and said daddy keeps touching me and I don’t like it and I just want him to stop”. [redacted] asked [redacted] who was there and [X] said [Y] [Ms V] is studying [redacted] are you wearing clothes, sometimes me and him take out clothes off to cool off if we’re too hot. When asked [redacted] where was she touched [X] pointed to nipples front (vaginal area) and to her bottom.
[redacted] did it hurt and [X] said yeah. Daddy made that red dot on gina (vagina). [X] get vulvovaginitis (hormonal changes in the genitalia estrogen in the tissues and can become irritated discoloured and red)
[X] also has a dry patch on the outer skin and is often itchy.
[redacted] [X] scratches a lot in this area. [redacted] thinks it is odd that [X] contributed the tiny dot she had there to her father. The dot was there on 18/01/2023 - not known if still there.
Over the last few months there has been a change in her behaviour ie a lot of tantrums and complaints of tummy pain and more recently in the last couple of weeks her appetite has changed. [X] has been calling out and crying in her sleep [redacted] over the last week or so.
(As per the original)
25 January 2023 – Ms DD
X had been seeing Ms DD since about 2020. Following X's disclosures to the mother and maternal grandmother, the mother took X to see her on 25 January, 21 February, and although it did not assume particular relevance on 9 May 2023.
It appears that the mother telephoned Ms DD on 25 June 2023. Ms DD's notes record:[21]
[21] Exhibit 11.
25/1/2023 [X] p/c w mum
[X] has come out w another disclosure told [Ms Kaluza’s] mother.
12/1/23 “can’t tell you it’s a secret”
18/1/23 “daddy’s been touching me and I don’t like it”
Behaviour *upward pointing arrow*
Nightmares, appetite *triangle drawn - medical indication for changes*, outbursts
distress – climbed onto mum for hug, then hid in corner: “I don’t know how to tell you”
“daddy’s been touching me; I don’t like it: I just want it to stop”
“long touch”, “daddy made my [va]gina bleed”
[Suburb KK] DOJ
Mandatory report made.
(As per the original)
The mother then took X to see Ms DD later that day. Ms DD's notes record that:[22]
[22] Exhibit 11.
25/1/2023 [X]. F2F w mum.
touching me in my privates.
[Y’s] birthday
Xmas
Birthday
“I say stop it I don’t like it, but daddy won’t stop it”
‘I walk away but daddy follows me’
‘I dont like to talk about it’
‘why’
‘coz I don’t feel comfortable’
Brave – chickens
Solicitor – writing letter requesting no more unsupervised visits
(As per the original)
The mother gave evidence about this at paragraph 67 of her affidavit:[23]
67.During the session with [X's] Psychologist on 25 January 2023, I expressed concern around the routine being disrupted and that [X] may struggle with not seeing [Mr Jefford] until a resolution is reached. During the session, I stated "Daddy might need some time to think about what has happened and learn how to look after you safely. " Some days later, [X] asked "When can I see Daddy again?" I stated "Daddy is working on how to look after you safely, darling. " [X] asked, "Is it because I said that he is touching me? Well he isn't doing that any more, Mum." However, [X] had not seen [Mr Jefford] since her disclosure to me on 18 January, 2023.
(Emphasis in original)
[23] Mother’s affidavit filed 11 November 2024, paragraph 67.
It appears from the Magellan report that there was also a third-party disclosure made to DCJ on this day, which, presumably, was Ms DD as a mandatory reporter, consistent with her notes.
I note that one of the primary inconsistencies pointed to in the father's case was the record taken by Ms DD in the telephone conversation that:[24]
“daddy made my [va]gina bleed”
(As per original)
[24] Exhibit 11.
The note of the phone call was raised with the mother by the expert.[25] There has never been any suggestion that there was a physical injury which caused bleeding. This is one of the many inconsistencies pointed to by the father's submissions relevant to the assessment of weight to be given to the disclosures, and which, I accept, means the evidence has not reached the civil standard of proof for positive finding of past abuse. However, I give weight to the disclosures to the mother and the grandmother, and, in particular, I give weight to Ms DD's notes recorded in the face-to-face where X was there with her mother.
[25] See, Family Report dated 9 October 2023, paragraph 76.
In respect of when X was with her, Ms DD has used quotation marks, and I find the proper inference is that the quotation marks record when X was present and record words used by X. The disclosures recorded by Ms DD are clear and frank, and Ms DD appears to have made a mandatory report to DCJ.
Ms DD was not called by either party, nor by the ICL, and no application was made to have her called as a court witness and/or treated as an unfavourable witness, to test the accuracy of her recording of X's disclosures. In these circumstances, noting that she is a professional, I am satisfied that it is likely that Ms DD has accurately recorded X's disclosures to her that were made when X was present with her.
25 January 2023
On the same day, the mother's solicitor sent a letter to the father's solicitor advising of the disclosure:[26]
[26] Mother’s affidavit filed 11 November 2024, Annexure C.
…
I am instructed that following the children's visit with the father on Sunday 8 January
2023, the child [X], was behaving in a manner uncharacteristic of her and on
Thursday 12 January 2023, [X] made disclosure to the maternal grandmother and to
the mother, to the effect that "Daddy's touching me and I don't like it. " [X] pointed
to her nipples and genital area whilst stating the above.
Following further description of what occurred and the child stating that both [Ms V]
and [Y] were there at the time and were laughing, the mother understood that the
father had been poking [X] with his finger in the presence of the child [Y] and in
the presence of the father's wife, [Ms V], who were laughing. Accordingly, the
mother considered that this was not a serious matter and the children were made
available again on Sunday 15 January 2023.
I am further instructed that following that visit, [X']s behaviour was very unsettled.
She was uncharacteristically angry and aggressive. On Wednesday 18 January 2023,
[X] complained that her "gina is sore. Dad is touching me". [X] attributed a red
spot on her genital area to "Daddy did that." The child told the mother words to the
effect, "[Ms V], was not there. She was busy studying. [Y] was there and he
thinks it's funny but I think it is embarrassing. I don't like it and I want him to stop. "
…
(As per the original)

The letter also advised that the mother would not provide the children for unsupervised time and proposed supervised time.
18 February 2023 – C Contact Service Notes
I note the record of that visit and the mother's evidence at paragraph 69 of her affidavit, which points to a report from C Contact Service at Annexure E to her affidavit, particularly in respect of the father lifting X:[27]
… he lifted her over the back of the lounge, he held her in his arms, [X] appeared uncomfortable and was pulling her skirt …
[27] Mother’s affidavit filed 11 November 2024, Annexure E.
I note all the evidence in respect to that incident, and, again, what was seen there was not evidence supporting sexual abuse. There was no touching of the genital area. To the extent to which it was relevant, it only goes to the father's parenting capacity and, perhaps, lack of understanding of the children's signals.
21 February 2023 Ms DD
The mother took X to see Ms DD again on 21 February 2023, and I will read onto the record her notes, starting with:[28]
[28] Exhibit ICL6.
21/2/2023 [X] w/mum
… maybe I’m the probm [sic]
“problem”
I’m the problem
Bigger than [X]
black/grey
“he’s not hurting [Y], he’s only hurting me”
tell mummy
don’t want to tell mummy
b/c telling mummy would make s’one sad.
Spoke to [X] on her own and she said same as last session – ‘the problem is daddy; he touches me on my no-no square”.
will talk to mummy tonight
(As per the original)
Consistent with those notes, the mother gave evidence at paragraph 22 of her affidavit that she was present during X's second consultation, but that X also spent some time outside with her psychologist, for which she was not present. She confirmed that in her oral evidence.
I note that X's disclosure of the main complaint, which was that the father was touching her on her "no-no-no square", was consistent with the reports of the mother and maternal grandmother, and the prior report of Ms DD. I note that I infer that when alone with X, Ms DD reported the direct quote from X that:[29]
The problem is Daddy. I mean, he touches me on my no-no square.
[29] Exhibit ICL6.
I also note, that in respect of the later evidence, which is of X saying that the father touching her was an accident, which she said to the mother on 17 December 2024, that at this time, even while X was saying to Ms DD in February of 2023 that “the problem is Daddy … [h]e touches me on my no-no-no square”, and that "he's only hurting me", nevertheless, X was already saying that maybe “I’m the problem”. It seems clear to me that from that early stage, even whilst making the disclosures, X was, to some extent, questioning or blaming herself for what was occurring.
On 25 February 2023, the children spent supervised time with the father.
March 2023
The Department of Communities and Justice advised the mother that the case was “closed due to competing priorities.”[30]
[30] Mother’s affidavit filed 11 November 2024, Annexure D.
Unfortunately, despite what appear to be frank and clear disclosures, including to an independent psychologist, no forensic interview was undertaken. The mother said she understood this was due to resourcing and X being safe in her care at the time, and I note that is consistent with the statement “closed due to competing priorities.”
This judgment does not seek to criticise DCJ, who have an overwhelming workload which they can never fully manage, however, the absence of a forensic interview to obtain a clearly recorded and tested understanding of precisely what X meant by what she was saying, when and where X said this occurred, who was there, whether it was over or under her clothes, when it first occurred, how many times it occurred, and so on, and whether perhaps the wee incident was a partial or full explanation for what she was complaining of, means that, as I have said, and as the father's counsel properly submitted, there can be no positive finding of sexual abuse to the civil standard.
However, on the other side, that means that the disclosures must be assessed on their face and must be given such weight as I assess can be attributed to them, given what was said, and given X's age and stage of development and understanding.
On the last issue of X's age and stage of development and understanding, I note, and I will come to it in a moment, but I give significant weight to the opinion of the expert, who is an expert in child development, who interviewed X, who heard the disclosure directly from X, and who gave her opinion as to thee clarity of the disclosures which encompassed the quality of the disclosures and X's understanding and reasoning capacity.
1 March to 11 November 2023 – No Time
The father spent no time with the children during this period.
18 September 2023 - Expert Interviews for Family Report
X was interviewed by the expert in person on 18 September 2023, as were the parents and Ms V. At this time, X was six years old. The Family Report reads as follows:[31]
[31] Family Report dated 9 October 2023, paragraphs 108–117.
108. [X] was asked about the last time she saw the father and she said it was on a Monday and [Y] and [Ms V] was there. [X] was asked why she was not spending more time with the father, and she said, “I don’t know” and then said, “I think they [her parents] couldn’t work out a time”.
109. The CCE then stated, “I heard something happened when you spent time with Daddy?”, acknowledging this is a leading question, but noting that the question does not contain the answer to the question. [X] responded with “Daddy was touching me here” and pointed to her vagina (noting she was wearing pants).
110. Given the information provided by [X], the CCE asked some specific questions, “Is this something that happened once or more than once?”, with [X] replying this happened “once”. A further specific question was asked, “Who was there” and [X] replied, “no-one”.
111. [X] then volunteered she told the mother what had happened, and stated, “Daddy is taking lessons about me”, and “I am not worried about Daddy touching me again” and “he won’t do it again”. This information appeared spontaneous and was not the result of questioning from the CCE.
112. [X] was asked if she had talked to anyone about what had happened with Dad and [X’s] initial response was “No”. When asked specifically if she had talked about it with [Ms DD] (her psychologist), X agreed she had done so. [X] spoke about [Ms DD] helping her with “big feelings”, with [X] able to articulate her feelings of anger, frustration and sadness and gave specific examples of each of these feelings. With respect to feelings of anger, [X] spoke about when [Y] gets what he wants, with respect to feelings of frustration [X] spoke about when someone at school doesn’t play with her and when she spoke about feelings of sadness, she spoke about when [Y] gets to do new things before her.
113. [X] was asked how she felt about spending time with the father for the purposes of an observation. [X] stated, without prompting, she would like to see the father, reported being with the father makes her feel happy and she would like to go back to seeing the father each week. [X] expressed a preference to see the father on a Monday so she could go to a café with the mother in the afternoon.
114. [X] then described what occurred when she was spending time with the father at his home, with [X] reporting [Y] gets half the visit with “Daddy” and “I get half a visit with [Ms V] and then I have half a visit with Daddy and [Y] gets half a visit with [Ms V]”. [X] raised no concerns as to this pattern of time spent. The father and [Ms V] stated they had followed this process when [Y] was little at the direction of [Ms DD], and was not able to participate in much joint activities, but have not followed this process for some time, as [Y’s] development has caught up to [X’s] developmental level.
115. At the end of the interview, [X] was asked if there was anyone else present when they last spent time with the father, with [X] confirming that someone else was present. [X] volunteered she did not need anyone to watch over the time with the father and then she seemed to think and then stated “Yes, I would need someone to watch if he still touched me, but he [the father] went to lessons and he won’t do it again”. This thought process exhibited by [X] was not enhanced by questions or prompting from the CCE, seemed genuine in its nature, and appeared free flowing from her thoughts.
116. After [X’s] interview, the mother was asked if she had said anything to [X] about the father having lessons, which the mother denied. However, after some thought the mother stated she had told [X] that “Daddy needs to learn how to look after you and [Y] safely”. The mother stated she did not say anything about what the learning may entail.
117. It does appear that [X] believes the father has had “lessons”, thus the father is now safe, and this is why she is now spending time with the father.
The expert identified the limitation:[32]
133. The most obvious limitation of this report is [X] has not been interviewed by specialist forensic child protection investigators with the purpose of obtaining more information with respect to her allegations. It is not the job of [X’s] treating psychologist or the Court Child Expert to conduct such an interview, and it would be inappropriate for such an interview to occur. Thus, the main limitation is that the Court must assess the veracity of [X’s] disclosure, without the likelihood of a forensic specialist interview, given the lack of recent involvement with DCJ, despite the disclosures being reported to DCJ. The Court may wish to provide DCJ with a copy of this report to assist DCJ to determine whether a specialist forensic interview is indicated in the current matter.
[32] Family Report dated 9 October 2023, paragraph 133.
The expert's conclusion was that:[33]
140. Despite the lack of indicators of alienation, [X’s] presentation in interview was of concern to the CCE. [X] disclosed to the CCE that the father had touched her vagina on a single occasion, although it is acknowledged this disclosure came after a prompting question. Children do not usually disclose to a Court Child Expert, who is usually someone the child does not know and has little rapport with. [X] has disclosed to her psychologist, her mother, the maternal grandmother, all people with whom she has an ongoing relationship with.
141. It was clear however, that [X] viewed the father has having completed “lessons” which meant she was safe in his care. Questioning from the mother revealed the mother had made a statement about the father needing to learn to be safe with the children, which [X], in an age-appropriate way, consistent with commencement of big school, has interpreted as “lessons”. [X] appears to have complete faith that she will be safe in the care of the father as she believes he has had “lessons”. Her disclosure about the father having “lessons” and supervised time not being required appeared genuine and heartfelt, as well as being spontaneous in nature. In the view of the CCE, these features of [X’s] belief system lend weight to the veracity of [X’s] disclosures.
142. The father denied he has inadvertently or accidentally touched [X] near or around her vagina and [X’s] disclosures appear to be clear, repeated, decisive and consistent in nature, which may lessen the possibility of the third hypothesis.
143. Based upon the repeated disclosures, [X’s] observed behaviour (which is inconsistent with a hypothesis of alienation), the mother’s concerns, and the father’s demonstrated impaired parenting capacity (see the Expert reports), the Court may need to consider the possibility there has been a single incident of the father touching [X’s] vagina, without her consent.
[33] Family Report dated 9 October 2023, paragraphs 140–143.
I note in particular at paragraph 142 the expert’s opinion that “[X's] disclosures appear to be clear, repeated, decisive and consistent in nature, which may lessen the possibility of a third hypothesis”, that third hypothesis being that there has been inadvertent leading or a misinterpretation of events.
The expert was skilfully cross-examined at length on the reliability of X's disclosures to her, including on the basis that the expert may have unintentionally led X to make the disclosure as made to her. However, as the expert said, the expert did not suggest the answer in the question asked.
If this was a case where there was no prior disclosure, and such a question led to a disclosure, then real questions might arise as to whether or not the child had been led to believe they should say that something had happened by the expert’s questioning. However, in this case, X had made the disclosures to the mother and maternal grandmother and, significantly, to her counsellor, and it is clear from the totality of the evidence that X gave to the expert, that X was acutely aware of the fact that her time with the father was being supervised due to her disclosures, and that her time with the father and the disclosures was a topic being discussed. In this regard, I consider that the expert was doing no more than directing X to the issue, and that X's confirmation of her disclosure was X confirming the disclosures previously given without retraction.
This disclosure was also particularly relevant, given Ms DD was not called, as it was a disclosure to an independent person, highly trained in child interviewing, who was able to confirm that there was no doubt that when asked where she was touched, X pointed to her vagina or genital region, as the mother and maternal grandmother, and Ms DD's notes, had all said.
I note that is important given the ICL raised in submissions the fact that there was no body chart used to identify the location of the touching. I do not consider it is possible, given we had the expert in the witness box, that there can be any doubt that X was referring to being touched on her vagina or in her genital regions. X told the expert that it happened only once and there was no one there, which was inconsistent with other histories, however, X also initially denied telling anyone other than the mother, which was not correct, but when prompted agreed she had spoken with Ms DD, which was accurate.
I consider that while X said she was not worried about the father "touching me again", and I emphasise the "again", X also said that because the father was "taking lessons" he "won't do it again". The fact that X said "won't do it again" makes clear the fact that X was saying that she had been touched in that area, that she was worried it would happen again, and that this was confirmed by her statement that she would “need someone to watch if he still touched me”. The expert said the last statement “was not enhanced by questions or prompting from’ the expert, and “seemed genuine in its nature, and appeared free-flowing from [X’s] thoughts.”
All of this, it seems to me, suggests that X, in her discussion with the expert, was taken to the topic, understood she was being asked about the disclosures, and confirmed the making and truth of the disclosures. She also confirmed, inconsistent with a hypothesis that she had been coached or taught to say bad things about the father, that she wanted to spend time with the father and was thinking through, in an age-appropriate fashion, the fact that this touching had happened, that she did not like it that , she wanted to be able to spend time with the father, was hopefully that it would not happen again, but was concerned it might happen again.
All those things, to me, speak to the genuineness of the disclosure as a disclosure of a lived experience of having been sexually touched by a parent X loves and wants a relationship with.
X’s statements were, as the expert said and as I find, inconsistent with the hypothesis that the disclosures were the result of a campaign of alienation by the mother intent on making X not want to spend time with the father.
I note the expert was also cross-examined on her characterisation of repeated disclosures as, in effect, reliable, and she made appropriate concessions on the various issues raised, which go to the fact that I cannot make, and do not make, a finding that the abuse actually occurred, given the issues that arise and the proper application of the civil standard requiring a comfortable satisfaction, which in the absence of detail, I cannot have.
However, to the extent to which the fundamental core of the disclosure was put in issue, the expert's oral evidence was that while she accepted that the details differed from telling to telling, and I note that can occur with adults who are telling the truth, the expert considered that the disclosures were consistent on the key issue, noting that children do not use precise language, and that the information provided to different people appeared consistent, even if the exact words were different, and it was consistent on the critical issue.
Also, as the expert pointed out, the absence, for example, of a reference to nipples in the disclosure was not necessarily an inconsistency, merely perhaps a focus on the most relevant issue, which was the touching of the genital area.
17 December 2024 - X says it was an accident
The mother filed a supplementary affidavit, her third affidavit, on 30 January 2025. One aspect of the affidavit dealt with X raising the supervision:[34]
13. [X] and [Y] were both sitting in the hallway. [X] was crying and appeared distressed. I said to her, "How about a hug." [X] accepted a hug from me. When she had managed to calm down a little, [X] asked me, "Why do we have to see daddy in that centre? I don't like having the two people there all the time. Why do they have to be there? I want the boy that used to supervise us and we can go back to daddy's house." The boy [X] was referring to is [Mr PP], who worked with [Ms B] at [C Contact Service]. I said to [X] "Daddy organised for time with you at the centre. Maybe you can ask him about it next time you see him."
14. [X] also said "Why don't you go back to the people who help you to decide and have the boy supervisor at daddy's house?" [X] also said "Why can't daddy come here? Why hasn't he been able to come to any of our houses?" [X] then said "What happened with daddy was an accident. It's my fault we 're having visits at the centre. If I hadn't said that, we'd still be able to visit daddy at his house. " I said to [X] "Mummy is doing her best to keep you safe. "[X] asked, "But why do you need to keep me safe if it was just an accident?" At this point in the conversation, I was conscious of [Y's] presence, so I suggested to [X], "How about we continue this conversation in my room?" I asked my sister, "Could you please start [Y's] bedtime routine, whilst I talk with [X].
15. When we were in my bedroom I said to [X], "Mummy is doing her best to keep you and [Y] safe." [X] replied, "But why do you need to keep me safe if it was just an accident?" I explained, "[X] when you first told Nani and I what happened you were very upset and angry and I was very worries about you. I am not sure why you would have behaved that way if it was an accident?"
(Emphasis in original)
[34] Mother’s affidavit filed 30 January 2025, paragraphs 13–15.
The mother said that she did not want to close X down, but she thought that X “was clearly blaming herself for being able to see [Mr Jefford] only under supervision, at the centre.”[35]
[35] Mother’s affidavit filed 30 January 2025, paragraph 19.
The mother was cross-examined about her "gatekeeping" of this information, however, the only reason anyone knows that X said this was because the mother filed a supplementary affidavit out of time to disclose it.
It is not clear to me how the mother's actions in this regard can be seen as anything other than transparent, and her actions in bringing this statement by X to the Court's attention, which must be weighed in the assessment of risk in the father's favour, are, in my view, entirely inconsistent with any proposition that the mother was promoting to the child a narrative of sexual abuse in any form of malicious way to exclude the father from the children's lives for her own reasons unrelated to concerns for their safety.

In respect to X saying it was an accident, the expert also said that she could not say, of course, if X was telling the truth or lying about that, and, again, we do not know what X meant by "accident", but the expert did say that it is common that after a child makes a disclosure, they can blame themselves for the fact that time with a parent has stopped, and they may take responsibility and blame themselves. In that context, a child may say they lied to get back to the prior situation, noting that many children still deeply love the parent who has abused them for complex reasons, which are not necessary to consider now. I note that that possibility, which would be consistent with X saying to Ms DD on 21 February 2023 that, as I mentioned earlier, "maybe I'm the probm [sic]", but at the same appointment, maintaining that “the problem is daddy; he touches me on my no-no square.”[36]
[36] Exhibit ICL6.
In these circumstances, it may be that X, who I find is clearly aware of the fact that it is her disclosures that have caused supervised time, and clearly wanting to spend time with the father, may have said it was an accident for the reasons articulated by the expert. I cannot know.
This is another area of uncertainty, however, I must and do take this statement into account in the context of the uncertainty about precisely what occurred. It adds to the inability to make a positive finding this occurred.
I did carefully consider, particularly noting the ICLs position, having heard the evidence that I heard, that that evidence did not establish unacceptable risk, whether this statement by X means I could not or should not make a finding of unacceptable risk. It is a significant factor I have given weight.
Nevertheless, I have still come to the conclusion that there is a real possibility that sexual abuse occurred, and the evidence persuades me the risk of future sexual abuse is there, and is an unacceptable risk.
21 December 2024 - Maternal Grandfather
The maternal grandfather said that on 21 January 2024, when the children were visiting - which was the day after the mother and children arrived in the UK for a holiday, X came to his room and the following occurred:[37]
7. [X] paused for second and seemed to be in thought. [X] then asked me, "Nana, we only see my Dad at the centre for 2 hours every 2 weeks. We can 't even go to his house anymore. Something happened two years ago and other people made this decision. " I replied, "I am sure there is a good reason for this [X]. " [X] replied, "Yes, there is a reason."
8. At this stage my daughter, [Ms T] came into my office. I said to [X], "If anyone hurts you then you need to tell your mum straight away." [X] replied, "I can talk to [Ms DD] about my feelings. Do you know who [Ms DD] is?" I replied, "No. Who is she?" [X] replied, "She helps people with their feelings. [Ms V] also helps people with their feelings so I could talk to her too." [X] then paused again, as though she were thinking about something. [X] then went on to say, "Maybe I shouldn't talk to [Ms V] because she might tell Daddy what I said."
(Emphasis in original)
[37] Affidavit of Mr R dated 30 January 2025, paragraphs 7–8.
The maternal aunt was present for part of this, and recounts the events as follows:
8. On the morning of 21 December 2024, [X] was with my father in his office. I heard them having a conversation and I went into my father's office. I heard my father say to [X], "If anyone hurts you then you need to tell your mum straight away." [X] replied, "I can talk to [Ms DD] about my feelings. Do you know who [Ms DD] is?" My father replied, "No. Who is she?" [X] replied, "She helps people with their feelings. [Ms V] also helps people with their feelings so I could talk to her too." [X] then paused, as if she were thinking about something. She then went on to say, "Maybe I shouldn't talk to [Ms V] because she might tell Daddy what I said."
(Emphasis in original)
Neither the maternal grandfather nor the maternal aunt were substantially challenged on the substance of what they said occurred, and I accept them as witnesses of truth.
Other Evidence of Sexual Risk
The father denies any allegation that he ever sexually abused X, or any child. There were a large range of other matters raised in the mother's case.
Having considered them, I place no weight on any of them and consider only the current disclosures. However, having considered them I will go through them quickly.
Whilst there is no estoppel in parenting proceedings as raised in oral argument at the start,[38] given the content of this trial, I place no weight on the prior disclosures made by X in 2019 and 2020 in these proceedings.
[38] See, In the Marriage of Schorel (1990) 99 FLR 375.
The father was sexually abused as a child by his maternal aunt and makes the following statements:[39]
[39] Father’s affidavit filed 11 November 2024, paragraphs 35–36.
35. [Ms Kaluza] has made several allegations about me in various contexts since March 2020. For example, several months after our separation, [Ms Kaluza] alleged that I had told her the following prior to our marriage:
35.1.I was scared of having kids because I was convinced that I would abuse them; and
35.2I had also watched child pornography prior to our marriage.
36. In relation to the first allegation, this was covered in the previous proceedings. [Ms Kaluza's] account is not accurate. What I said was words to the effect of ''I'm scared about having kids, because years ago I heard a family radio program that said that children who had been abused became child abusers. 1 seriously don't see how that could ever be me, but apparently that's what the research says".
(Emphasis in original)
The father says as a result of his abuse, he would never put his own children through that experience:[40]
49. I have never, and will never, sexually abuse any child in any way, least of all [X] or [Y]. Nor have I felt any compulsion or inclination to do so. I was, myself, sexually abused as a child by my maternal aunt. I view it as one of, if not the, most horrific and disgusting things a person can do to a child. As a chi Id, after suffering the abuse, I had an intense sense of shame about what had happened. I felt humiliated, embarrassed, confused and guilty. I felt like the burden of it was so big that it would crush me. I struggled to understand why it happened, and at times thought that maybe I deserved it, or maybe that I had even asked for it to happen. I was angry at the whole world, and angry at myself. I started to view innocent interactions with people differently, always wondering whether there was an ulterior motive behind any touch, and then felt further shame that l thought of people that way. As an example, one of my most cherished memories with my father growing up had been that when just he and I were driving, he would place his hand on my right knee and give me three little taps and a squeeze. My father did not generally believe in showing physical affection, and that was the only physical touch I would get from him. After the abuse I suffered, the feeling I got from that connection became tainted. It felt like one of the few ways I had of connecting with my father had been taken from me.
50. I remember my aunt saying to me words to the effect of "I'll kill your family if you tell anyone". I believed her. I did not tell anyone what had happened for two years. When I spoke up about it, it helped initially. Some people listened. But there were some who did not believe me, and many people gave me their opinions. For example, I was told by different people words to the effect of "Men can't be sexually abused, because any sexual interaction is always wanted", "Since your body responded, you probably wanted it" and "You would have fought to stop it if you hadn't wanted it".
(Emphasis in original)
[40] Father’s affidavit filed 11 November 2024, paragraphs 49–50.
The father repeated this in oral evidence.
Whilst abused children may become abusers, they may not, and they may equally become child protection workers. I give no weight to the father's history of childhood abuse in my assessment of the risk of sexual harm he poses to X.
I also note what the mother said about the father's childhood issues in terms of stealing women's underwear and other matters,[41] and I give no weight to the father's childhood history in assessing future risk.
[41] See mother’s affidavit filed 11 November 2024, paragraphs 31–33.
The mother alleges the father told her he had watched child pornography prior to the marriage. The father denies this. I cannot make such a finding. I give no weight to this allegation.
The father's pornography use was a significant issue in the prior trial. The father says he has not used pornography since the end of 2020 or beginning of 2021. The expert gave no weight to this issue and neither do I.
There is evidence that active Tinder and Grindr and Instagram profiles use the father's image and were on the internet, as set out in the mother's fifth affidavit and Ms CC's affidavit and Exhibits.[42] The father denies these were created by him. I note the father's statement about this in Exhibit 18. It is not established that they are the father's. I do not see that they are particularly relevant to the question of sexual risk to the child in any event, and to the extent it goes to the likelihood that the father and Ms V’s relationship may not last I give it no weight.
[42] See, for example, Exhibits 18, S and T.
I reject the suggestion that the mother fabricated these profiles as there is no evidence of that. I note that Ms CC's contribution to the evidence in the proceedings, other than to confirm her new relationship with the mother, was in relation to assistance in helping the mother obtain these screenshots. Ultimately, I do not see the relevance of this and give no weight to these profiles, which I cannot find are the father's in any event.
The father gave evidence about his issues with receiving and expressing communication in different contexts in his affidavit from paragraph 128, and see Exhibit G, the report of Ms LL and Mr MM, NN Psychology, dated 29 June 2021, which said in part:[43]
[Mr Jefford] meets the diagnostic criteria for a Specific Learning Disorder and in Reading Fluency (developmental dyslexia).
[43] Exhibit G, page 8.
I considered the material findings under the conclusions, “Summary and Recommendation” was relevant to an assessment of the father's general parenting capacity and, indeed, to an interpretation that he is missing X's cues, as demonstrated on the CCTV footage of 15 June 2023, but I do not consider the father's evidence or the psychological report, or the other speech pathology assessment report relied upon by the father, being that of Ms OO dated 1 November 2023, explains X's frank disclosures of inappropriate touching of her genital area.
Similarly, the father's evidence from paragraph 142 of his affidavit under the heading “What My Diagnosis of Developmental Learning Disorder Means to Me” does not explain X's disclosures of physical touching, although it may explain his lack of ability to detect and respond appropriately to social cues which has not improved since the 2022 trial.[44]
[44] See father’s affidavit filed 11 November 2024, paragraphs 142–151.
I note that the mother relied upon a series of supervision notes showing that the father was still paying more attention to X than Y. I consider this relevant to the father's limited parenting skills as identified in the prior judgment in part in paragraph 78, however, I do not consider it relevant to the assessment of sexual risk.
I note what was said in Exhibit L, Exhibit M, Exhibit N, Exhibit O and Exhibit Q about more attention to X than Y. I note in Exhibits L and N, a lack of awareness around Y's needs, and Exhibit O and similarly in Exhibit Q.
I note what the father told a support worker, Exhibit J. I find he did tell her, under heading 10, that the mother:[45]
Fabricated the allegations of sexual abuse, and the judge suggested the same during court proceedings.
[45] Exhibit J.
I do not consider that relevant to sexual risk.
Again, all this material is relevant to the father's parenting capacity, but not the assessment of risk of sexual harm.
Ms V was put forward as a protective factor. The expert raised concerns about the nature of the father's relationship with Ms V, noting that:[46]
144. Of great concern to the CCE, was the father’s ongoing relationship with his wife, [Ms V] and the supportive and potentially obfuscating role she has played for him over a number of years, including becoming a supervisor of his pornography use whilst they were “dating”, which seems like an avoidance and abdication of responsibility from the father. There are concerns the father is repeating a pattern of behaviour in intimate relationships by absolving himself from responsibility and placing responsibility upon his partner to manage or teach him new patterns of behaviour.
145. . [Ms V]’s views of the children and the risk issues, mirrored that of the father’s in interview and if there are ongoing risk of harm issues to the children in the care of the father, [Ms V] is not able to actively protect the children from the father, due to her strong ideological belief that the father poses no risk of harm to the children.
146. There is also a concern that [Ms V] is utilising her therapeutic techniques to manage and assist the father, with the father benefiting from [Ms V’s] professional skills, which were possibly deliberately utilised by the father very early in the relationship. There is also a concern with the father’s wife being present in all supervised sessions with the children, it is difficult to ascertain the father’s pattern of engaging with his children, as [Ms V’s] high levels of child-focused skills, protects the father from a high-level analysis of his parenting behaviour. It is suggested the Court consider the time with the children remain supervised and occur with the father at least half of the time on his own. It is acknowledged that if the time with [Ms V] ceased altogether in the short-term, this would be a loss of a relationship for the subject children.
[46] Family Report dated 9 October 2023, paragraphs 144–146.
The expert was asked about paragraph 145 in oral evidence and, effectively, confirmed her opinion.
Ms V seems to be a very good person. I do not consider her to be a risk to the children. However, for reasons I have already articulated, noting what she said in her affidavit and her oral evidence, I am satisfied she is unwilling to accept any possibility at all that the father may pose any sexual risk at all to X.
I note that the alleged touching may have occurred at times Ms V was present elsewhere in the house and find that Ms V does not provide a protective factor sufficient to ameliorate the risk of sexual harm I find exists where she does not believe that there is in fact a need for supervision of the father..
HALF-SIBLINGS
The children will have a half-sibling soon.
One consequence of the finding I make is that the children will lose their significant potential relationship with the half-sibling, as well as with the father and Ms V. I have taken that unfortunate circumstance into account.
MS CC
During the course of proceedings, it emerged that the mother has a new romantic relationship with Ms CC. It is most unfortunate the mother did not disclose this relationship prior to trial, although I note it was only a month old at the time of the trial affidavit.
The mother's evidence was this is a new relationship, however, when Ms CC is in a relationship with the mother and in contact with the children, it was incumbent upon the mother, in my view, to disclose this before the trial commenced, and not merely in the context of the issue about Tinder. Nevertheless, that does not affect my assessment of the reliability of the mother's evidence about the disclosures or the assessment of unacceptable risk.
THE THREE HYPOTHESES
The expert's observations and opinion in the Family Report have been referred to. The expert raised in the Family Report the three usual hypotheses which are considered in such cases:[47]
138. In matters of sexual abuse or sexual risk of harm issues in the context of the Family Court system, there are usually three hypotheses. The first hypothesis is that the sexual abuse did occur. The second hypothesis is that the sexual abuse did not occur and was created deliberately and purposefully by a parent in order to justify no relationship or time between a child and a parent. The third hypothesis is that the sexual abuse did not occur and was created inadvertently by a series of events, including such things as information provided at disclosure, the age and development of the child, specific, leading and/or direct questions asked of a child by professionals and parents and misinterpretation of normal sexual development. This evaluation will address each of these three potential outcomes as hypotheses based upon the information available to the Family Consultant.
[47] Family Report dated 9 October 2023, paragraph 138.
The expert did not express a concluded opinion on the ultimate issue of sexual abuse or unacceptable risk in her report or oral evidence, deferring to the court.
LEGISLATIVE FRAMEWORK
The objects of Pt VII of the Act are to (a) to ensure that the best interests of children are met, including by ensuring their safety; and (b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60B - The paramount consideration of the best interests of the children per section 60CA and 65AA
I note the parties seek parenting orders (s 64B). The Court has power to make those orders (s 65D), within the context of the objects and the requirement that the children's best interests be paramount consideration when having regard to the mandatory criteria (s 60CC).
Parents have parental responsibility (s 61C and 61B) unless or until an order is made changing that. I note the provisions of section 61D(3), 61DAA, 61DAB, and the definition in section 4(1) of parental decision-making and major long-term issues.
In this case, it was agreed by both parents and the ICL that the mother should have sole parental responsibility.
Given that the parties also agree the children should live with the mother, even if the 2022 orders were in place, that would be necessary given the animosity and inability to co-parent, but it is more so given the findings of unacceptable risk I make, and that must be the order in the children's best interests, which is that that the mother have sole parental responsibility and decision-making authority.
Children's Best Interests - Section 60CC
Section 60CC specifies how a court determines a child's best interests. The list is non-hierarchical.
I note the general considerations, starting with (a) safety. I am required to look at what arrangements would promote the safety, including safety from being subjected to or exposed to family violence, abuse, neglect or other harm of the children and each person who has the care of the children, whether or not they have parental responsibility.
The maternal grandmother, maternal grandfather, maternal aunt and mother all maintained their evidence regarding X's disclosures. They all presented as credible witnesses and there was no serious attack on their credit in respect to the disclosures. I accept they were all witnesses of credit, doing their best to assist the Court by recounting their observations in relation to disclosures made to them.
The evidence of disclosures was consistent with the contemporaneous letter from the mother's solicitor, and significantly I consider, it was consistent with X’s disclosure to her counsellor Ms DD and to the expert.
Ms DD was not called by any party. No application was made for her to be called by the Court. No application was made for her to be cross-examined as an unfavourable witness. Her records are clear and recount in direct quote what appear, and I find to be, disclosures made by X.

The expert also received a similar clear disclosure, and, as I have said, I find that the disclosure made to the expert was not inadvertently led by the expert, but was a disclosure made when the expert directed the child to the topic which the child knew was significant.
The real issue raised by the father was the reliability of disclosures, and to the extent to which no finding is made that sexual abuse happened under the civil standard, his submissions are successful in that regard.
However, considering all of the evidence of the disclosures, including the statements recorded that X said “my daddy said not to tell anyone” and “my daddy has been touching me and I don't like it”, and the fact that she pointed to her nipples and genital area when speaking with her mother and maternal grandmother, and the fact that X said in an embarrassed fashion that “daddy's touching me and I don't like it … I want him to stop” and, again, pointed to her genital area, and the fact that X made consistent disclosures in respect of the major issues to an independent professional Ms DD, and to the independent court appointed expert, and that the expert was clear that X was pointing to her genitals, and the fact that X maintained that the touching occurred even while wanting to spend time with her father and defending the father by saying, "he won't do it again", but maintained that she was concerned and that she “would need someone to watch if he still touched me”, I find the evidence is sufficiently cogent, consistent, clear and reliable to give rise to a real possibility that the father has sexually abused X by unwanted touching of her genital region.
Now, the mother was cross-examined as to why she did not immediately act to cease time after the first disclosure on 12 January 2023, and her evidence as to that was difficult to follow and not particularly persuasive. She said that, even after 18 January, she was concerned about what to do, having been through two years of litigation previously.
It is easy to argue that the mother's response on 12 January was not perfect, but that is not the test. I think it is likely that she was affected by the fact she had been through two years of prior litigation after a disclosure, which had resulted in a high degree of conflict and animosity but no finding.
In any event, in my view, the fact that the mother did not immediately respond to X's disclosure on 12 January does not affect the quality and reliability of X's repeated disclosures.
As I have said, there is no video evidence of the visit on 7 January. The video evidence of 15 January does not disclose anything specific but as there was not universal camera coverage it does not exclude the alleged touching.
It may be, of course, that as the father has said, that whatever X was referring to happened before those two dates, which, of course, cuts both ways.
As I have said, I accept that the lack of particularity and the possibility of misunderstanding creates sufficient uncertainty that, in the absence of a detailed interview, the civil standard for finding of sexual abuse cannot be reached.
Principles of unacceptable risk
That brings us to the principles in M & M, and see Isles & Nelissen, and the weighing of the three hypotheses raised by the expert, noting that no other hypotheses were put to the expert or to the Court and that, in my view, it is not possible to make a positive finding that either the sexual touching did or did not occur.
The first hypothesis is that the father touched X, as X has repeatedly disclosed; the second, that there was a deliberate fabrication by the mother as a forensic tactic; and the third, that, as often happens through a series of events, including information provided, that a disclosure was led or the child has said certain things which have been misinterpreted. This is a weighing exercise in that context.
I consider the evidence that X and Y, but X in particular, still want to spend time with the father and have a positive view of him, and the mother disclosing X's statement that it was an accident, and the clarity of the quick disclosure to Ms DD, and not likely to be inconsistent with the second hypothesis, and having considered the evidence I am satisfied and find that there has been no malicious conduct by the mother, nor any of her lay witnesses
I note that this finding is consistent with the father's position in closing submissions, which is that the children live with the mother and that she has sole parental responsibility.
In respect of the proposed hypothesis three, an innocent mistake, the ICL proposed that but did not articulate how such a mistake had arisen. The father submitted that the combination of factors whereby the mother had maintained her belief that the father was a risk of sexual harm throughout, and was therefore anxious on each occasion the children went to visit the father, which is something they would have picked up on, and that X was told the underpants and no-no zone rules, but noting that the father was included in X's agreed safe list, but where the mother had told X at some stage that the father needed to have lessons to keep her safe, might all have led X to be anxious and overly risk aware and to have misinterpreted some innocent bumping or touching, or perhaps the changing of the underpants after she wet herself, in a way which made her express it as a disclosure when, in fact, there was no sexual touching.
On balance, the evidence does not persuade me that there is a real chance that there has been an inadvertent leading of X, or misinterpretation of what she has said, noting her age and the clarity of her disclosures, including to her counsellor and to the expert, both of whom had no doubt that she was making a disclosure of sexual touching and identifying her vagina or genital area as the area touched.
The matters identified by the father about the underpants rule and no-no zone do mean that X was equipped with knowledge to complain, but do not explain why she has made the repeated quite specific and clear disclosures in the context where she clearly wants to spend unsupervised time with the father if the touching did not occur.
X was and is young, but articulate, and I find that her recounting to the expert in a clear manner of what occurred was suggestive of a statement of lived experience in the context of her desire to spend time with the father, and the hope that he would not touch her genitals again, but a recognition that if he did, there would need to be a supervisor.
In that context, I accept and find that X's disclosures have been, in respect of the critical issues of the unwanted touching of her genital region, as the Expert said at paragraph 142 of the Family Report:[48]
Clear, repeated, decisive and consistent in nature.
[48] Family Report dated 9 October 2023, paragraph 142.
Noting that even adult victims of sexual assault will often give differing accounts in detail, but nevertheless recount the same fundamental story, I think that is what is more likely to have occurred here.
So, I think that the hypothesis that there has been some leading or misunderstanding is not one that I would accept as being likely, although it cannot be entirely excluded.
Now, that then leaves me with a degree of uncertainty in the evidence, an inability to make positive findings that sexual abuse occurred or did not occur, and a requirement to weigh the evidence of the disclosures from January 2023 and to assess the possibility that it occurred and the risk of future occurrence.
Whilst I cannot find that there was sexual abuse, I nevertheless find that the evidence establishes that there is a real and substantial possibility, though it does not reach a finding of probability to the civil standard, but a real and substantial possibility, that the father sexually abused X by touching her genitals.
I do so having in mind that the gravity of that finding is not much less than the gravity of a positive finding of sexual abuse, given the consequences of the finding in relation to the orders that result. They are, in effect, going to be the same orders that would have resulted from a finding of actual sexual abuse having occurred.
Accordingly, in applying the principles in M & M and Isles & Nelissen, weighing the evidence which establishes a real possibility of past sexual abuse, I find that there is a real and substantial risk of the father sexually abusing X in the future if he spends unsupervised time with her.
I find that Ms V does not provide a protective factor as she denies the possibility.
I find that the consequences of sexual abuse would be dire, as outlined by the expert, and I find that balancing this risk of future harm against the psychological harm that I find will definitely be suffered by X and Y through the loss of their relationships with the father, Ms V and the new half-sibling, the overall risk of harm from the assessed risk of future sexual abuse is so great as to be an unacceptable risk.
Where long-term supervision is not sought and not appropriate, and where I find identity visits will not be in the children's best interests, the only way to meet the obligation to promote the children's safety is a no time and no communication order enforced through a simple section 68B injunction.
I have considered the views of the children, and I note it is clear that X wants to spend unsupervised time with the father, as advised to the expert, subject to the caveat she put with the expert about safety and supervision, and Y appears to want to too.
The ICL met with the children on 7 February 2024 and 5 February 2025, and said their views were consistent with the statements to the expert. I proceed on the basis that both children want to spend time with the father.
Y's views could be given no weight given his age. X's views must be considered. At her age and stage of development, she is not in a position to fully appreciate and weigh the risks, and X's and Y's safety must be given greater weight than their views.
The children have standard developmental, psychological, emotional and cultural needs. The evidence suggests that they are reaching their developmental milestones. Obviously, there were some emotional anxieties noted by the expert in relation to X when the Family Report was prepared, consistent with the stress of these proceedings.
In terms of the capacity of each person who has or is proposed to have parental responsibility for the children, the mother has clear capacity. The expert did not identify any issues with the mother's capacity, and I reject the notion that the mother has promoted a false narrative of sexual abuse.
The father's parenting skills are clearly inadequate. Given my findings about the unacceptable risk of sexual harm, it may not strictly be necessary to consider this, but I will go through it in case the matter ends up elsewhere and the issue arises as to what the orders would be if there was no unacceptable risk of harm.
The father led evidence that he had undertaken a series of parenting courses to improve his parenting capacity, set out at paragraph 93 and Annexures D, E, F and G of his affidavit, and considered further from paragraph 95 to 127. A review of these courses shows they were completed between about 24 October and 6 November 2024 in the context of a trial affidavit sworn and filed 11 November 2024.
I cannot know how much the father engaged with these courses or learned from them, although he did include a great deal of information in his affidavit. However, the fact that he only chose to do these courses in the short period before his affidavit was filed, when he says it is something he realised needed to be attended to after the decision in July 2022, makes me doubt whether he has actually learned anything.
The fact that the father put in issue the events of 7 February 2020 in this trial, referred to in paragraph 52 of the prior judgment, also suggests that the father's parenting capacity has not improved. I note what the father said at paragraphs 25 to 27, and from paragraph 130 to 134, in particular, of his affidavit. Apart from the inherent improbability the mother would have agreed to an eight month and two-year-old being left alone, the father was cross-examined before me on the same evidence which resulted in him not being believed in the prior judgment, and I came to the same view. I do not accept that there was any misunderstanding or miscommunication, taking all the unchallenged evidence about his diagnosed issues at its highest. I think that he is merely being dishonest about that.
In respect of the CCTV and various supervision notes, there is a great deal of evidence about it. As I have said, I do not think it relevant to the assessment of risk of sexual harm, but I do consider that what was seen on the video, and what has been reported, strongly supports the finding of the prior judgment that the father's parenting capacity is very limited, and if there were to be unsupervised time, I will also find that four hours a week is as much as would be appropriate. I say that even taking into account Ms V's presence.
I note the expert's opinion in the Family Report which was substantially maintained at trial that:
157. It is recommended that if there is no risk of sexual harm to the children in the care of the father, the time with the father revert back to 4 hours once per week.
Accordingly, for these reasons, if I had found there was no unacceptable risk of harm, I would have, effectively, made orders to reinstate the effect of the 2022 orders as proposed by the ICL.
I think there would have been a benefit to the children having a relationship with the father, Ms V and their new sibling, if it was safe to do so, but, unfortunately, the safety issue outweighs the benefit of that relationship.
I have dealt with the family violence issues as addressed in the prior judgment. They are taken into account, but they are not a significant factor.
The children are not Aboriginal or Torres Strait Islander children.
I will make the orders as I have previously said them.
The ICL filed a costs notice as required. If the parties cannot agree on this issue, or any other party wishes to make a costs application, they may approach chambers within 28 days to list the matter for a hearing on the issue of costs.
Those are my reasons.

I certify that the preceding two hundred and forty-two (242) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Smith.
Associate:
Dated: 1 May 2025

File number(s):	NCC 1398 of 2020
Judgment of:	SMITH J
Date of judgment:	20 March 2025
Catchwords:	FAMILY LAW – PARENTING – previous final hearing and orders made for children to live with the mother and spend unsupervised time with the father – child made fresh disclosures of sexual touching by father – where child repeated disclosures to her therapist and to the court child expert – court child expert considered “disclosures appear to be clear, repeated, decisive and consistent in nature” – no finding of sexual abuse to civil standard - finding of unacceptable risk – father’s new wife not an appropriate supervisor where she denies possibility of risk – ongoing supervision not in children’s best interests - orders for no time and no communication with the father
Legislation:	Evidence Act 1995 (Cth), s 140(2) Family Law Act 1975 (Cth), Pts I, VII, ss 4, 60B, 60CC, 61B, 61C, 61D, 61DAA, 61DAB, 64B, 65D, 65DAAA, 68B, 69ZX
Cases cited:	Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 In the Marriage of B & B (1993) 16 Fam LR 353; [1993] FLC 92-357 In the Marriage of Schorel (1990) 99 FLR 375 Jefford & Jefford [2022] FedCFamC1F 539 Isles and Nelissen (2022) 65 Fam LR 288; [2022] FedCFamClA 97
Division:	Division 1 First Instance
Number of paragraphs:	242
Date of hearing:	17-21 February 2025 4-5 March 2025
Place:	Newcastle
Counsel for the Applicant:	Mr Weightman
Solicitor for the Applicant:	Kekeff & Associates Solicitors
Counsel for the Respondent:	Mr Bithrey
Solicitor for the Respondent:	Todd Street Lawyer
Counsel for the Independent Children's Lawyer:	Ms O’Rourke
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

NCC 1398 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS KALUZA Applicant
AND:	MR JEFFORD Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SMITH J
DATE OF ORDER:	20 MARCH 2025