Konigsmann & Quintana (No 2) - [2024] FedCFamC1F 567

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Konigsmann & Quintana (No 2) [2024] FedCFamC1F 567

File number: BRC 14498 of 2020

Judgment of: CAREW J

Date of judgment: 30 August 2024

Catchwords: FAMILY LAW – CHILDREN – Whether either parent poses an unacceptable risk of harm to the children – Where there are allegations that the father has sexually abused one of the children – Where the child purportedly made three “disclosures” – Where the father poses an unacceptable risk of emotional harm to the children, and sexual harm to the youngest child – Where, on that basis, the mother does not pose an unacceptable risk of emotional harm arising from fabricating allegations of sexual abuse – Where the risk of harm posed by the father is ameliorated by supervision – Where the mother will have sole parental decision making for major long-term issues – Where the children will live with the mother and spend six hours of supervised time with the father per month.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 62B, 64B, 65D, 65DA

United Nations Convention on the Rights of the Child

Cases cited:
Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637

Eastley & Eastley (2022) FLC 94-094

Isles and Nelissen (2022) FLC 94-092

Johnson & Page (2007) FLC 93-344

M v M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92-655

Number of paragraphs: 142

Date of hearing: 31 July – 2 August 2024

Place: Brisbane

Counsel for the Applicant: Mr Schonell

Solicitor for the Applicant: Parry Coates Family Law

Counsel for the Respondent: Mr Bunning

Solicitor for the Respondent: Wallace Perkins Family Law

Counsel for the Independent Children’s Lawyer: Ms Murphy

Solicitor for the Independent Children’s Lawyer: Aylward Game Solicitors
ORDER

BRC 14498 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS KONIGSMANN

Applicant

AND:
MR QUINTANA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAREW J

DATE OF ORDER:

30 AUGUST 2024

THE COURT ORDERS THAT:
1.All previous Orders are discharged, save for the final property Order dated 12 August 2021.

Parental Responsibility
2.The mother shall have sole decision making responsibility for the children, X born 2013 and Y born 2017 (“the children”), in relation to all major long-term issues (as defined in s 4 of the Family Law Act 1975 (Cth) (“the Act”)).
3.Prior to making a decision about a major long-term issue (other than in the case of emergency), the mother shall inform the father of the decision she proposes to make and consider any input from the father received within seven days thereafter and, upon making the decision, the mother shall inform the father of her decision and the reasons for it.

Living Arrangements
4.The children shall live with the mother.
5.The children shall spend time with the father at all such times as may be agreed between the parents in writing and failing agreement as follows:
(a)Supervised at C Family Services (or another contact service or supervisor as agreed between the parents) for up to six hours each month or a lesser time should the contact supervisor not be able to facilitate six hours;
(b)The supervised time is to occur on the last Saturday of each calendar month, unless the children have a special occasion or extra-curricular activity and then the supervised time shall occur on the following Saturday;
(c)The mother shall ensure the children’s attendance upon the contact service or supervisor at all times and dates arranged;
(d)The supervised time shall occur off site on all occasions that the contact service or supervisor can facilitate it;
(e)The mother and father shall respond to C Family Services’ (or another contact service or supervisor as has been agreed between the parents) proposed schedule of supervised time, within 72 hours of receiving the email with the proposed times;
(f)Should either parent not respond within 72 hours of the supervisor’s email, the other parent’s selected times shall be booked;
(g)The mother and the father shall each meet one half of the costs of the supervised time;
(h)Any cancellations or changes to the supervised time shall be advised to the contact service or supervisor not less than seven days prior to the arranged supervision unless the cancellation is due to illness in which case, the parent cancelling the time will provide a medical certificate to the contact service or supervisor, and in the event the mother cancels the supervised time then make up time shall occur at such other time as agreed and failing agreement on the next Saturday;
(i)In addition to the time already provided for herein, the father shall spend time with the children on Father’s Day supervised by C Family Services (or another contact service or supervisor as agreed between the parents) for a period of six hours if C Family Services (or another contact service or supervisor as agreed between the parents) are able to facilitate the supervision on this day.

Telephone/video calls
6.The mother shall facilitate any request by the children to telephone or video call the father at all reasonable times that they choose, and the mother shall do all things required to facilitate such calls as and when requested by the children including but not limited to ensuring that they have access to a functioning and charged mobile phone/computer/iPad and the mother shall afford the children privacy during the calls.
7.The father shall be at liberty to telephone or video call the children each alternate Wednesday at 7.00 pm and the mother shall do all things required to facilitate such calls including but not limited to ensuring that the children have access to a functioning and charged mobile phone/computer/iPad and the mother shall afford the children privacy during the calls.
8.The father shall be at liberty to send cards and gifts to the children on the following occasions:
(a)Their respective birthdays;
(b)Easter; and
(c)Christmas.

9.For the purpose of paragraph 8 of this Order, the mother shall provide the father with an address for him to send the cards and gifts within 14 days of the date of this Order.

Injunctions
10.The mother is restrained by injunction from questioning the children about the issues raised in these proceedings or recording any statements made by the children about the issues raised in these proceedings.

Therapy
11.The mother shall ensure that the children attend upon the family report writer, Ms D (or such other person as recommended by the Independent Children’s Lawyer), as soon as possible after the making of this Order, so that the Order can be explained to the children and for this purpose the mother is to ensure that Ms D or such other person retained, is provided with a copy of the Reasons for Judgment dated 30 August 2024.
12.The mother and the father shall each pay one half of the costs associated with the Order being explained to the children.
13.The children shall attend upon a psychologist/counsellor selected by the mother and the following shall apply:
(a)The children’s first appointment shall occur within 60 days of the date of this Order (subject to the availability of the psychologist/counsellor);
(b)The mother shall follow all reasonable recommendations by the psychologist/counsellor as to the frequency of the appointments for the children;
(c)The therapy appointments shall continue until the psychologist/counsellor recommends otherwise;
(d)On the first day of every second month, commencing on the first day of the month following the date of this Order, the mother shall provide the father with a written update including the appointment dates the children have attended, and any issues raised by the psychologist/counsellor; and
(e)The mother and the father shall each pay one half of the cost of the children’s therapy appointments.

14.Either parent is at liberty to provide any psychologist/counsellor for the children with a copy of this Order, the Reasons for Judgment and the Family Report of Ms D dated 18 February 2024.

Medical Issues
15.The mother shall keep the father informed of the names and addresses of all regular treating medical or other allied health practitioners who treat the children and notify him within 72 hours of any change to the practitioner that they have been attending upon.
16.The mother shall, as soon as reasonably practicable or within 48 hours of any significant medical condition or hospitalisation suffered by the children, advise the father by text message or WhatsApp message of the incident, save in the event of an emergency, when notice will be given by the mother to the father as soon as possible or within two hours by text message.

Miscellaneous Issues
17.Each parent shall keep the other parent informed at all times of their mobile telephone number and email address and advise the other parent in writing within 48 hours of any change.
18.The parents shall:
(a)Not criticise or denigrate the other parent or the other parent’s family, friends, or partner in the presence of or within the hearing of the children, and shall use their best endeavours to ensure that the children are not exposed to a third party doing so;
(b)Encourage and not undermine the children’s relationship with the other parent, their family, friends, or partner;
(c)Not question the children about the other parent, their family, friends, or partner or their private affairs; and
(d)Not expose the children directly or indirectly to parental conflict.

19.The parents shall communicate about non-emergency matters concerning the children in WhatsApp and in the event of an emergency, by text message.

Authorities
20.This Order authorises the mother and the father to obtain from the children’s schools: copies of school reports; school photographs; and any other documents regarding the academic progress or achievements of the children, at the cost of the requesting parent.
21.This Order authorises each parent to obtain from the children’s medical practitioner, health carer, allied health professional, or hospital any information or report regarding the children’s health, that is lawfully able to be provided, at the cost of the requesting parent.

Overseas Travel
22.The mother is at liberty to travel overseas with the children for a maximum period of six weeks per year and during this time, the children’s supervised time with the father is suspended.
23.During the period of any overseas travel, the mother shall ensure that the children telephone/facetime/videocall their father no less than once per week. Should the father miss the call, he is at liberty to return the call to the children.

Miscellaneous
24.Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:

X is 10 years old and his little sister, Y, is six years old. The children are the focus of a parenting dispute between Ms Konigsmann (“the mother”) and Mr Quintana (“the father”). After the parents separated in 2020, the children continued to live with the mother and a ‘final’ parenting order was consented to in 2021 which provided for the children to live with the mother and spend alternate weekends and half school holidays with the father.
In January 2023, the mother stopped the children spending time with the father because of her concern that he had sexually abused Y. The children did not see the father again until 23 September 2023. Since then, the children have spent supervised time with the father for four hours each week.
It is common ground that the evidence does not support a positive finding that the father has sexually abused the child but nor does the evidence enable the Court to dismiss the allegations as groundless. In those circumstances, the task for the Court is to consider whether the evidence supports a finding that the father poses an unacceptable risk of future harm to the children.
For the reasons which follow, I find that the father does pose an unacceptable risk of emotional harm to the children and an unacceptable risk of sexual abuse to the child, Y. I am nevertheless satisfied that the risk of future harm can be ameliorated by supervision. There was no suggestion that the children should be treated differently in terms of spending time with the father. Given the history of the children being exposed to their parents’ conflict and their continuing resistance to spending time with the father, and notwithstanding that when the children do spend time with the father it seems to progress positively, I find that it is in the children’s best interests to limit the father’s supervised time with them to six hours on the last Saturday of each calendar month. Additionally, the father will be able to communicate with the children each fortnight by telephone/video call and to send gifts and cards on special occasions. In my view, such an order ameliorates the unacceptable risks of emotional harm to the children and sexual abuse to Y while also enabling them to maintain their right to have a relationship with the father.
ISSUES
The parties identified the following issues for my determination:
(1)Does the father pose an unacceptable risk of harm to the children arising from allegations of sexual abuse of Y?
(2)Can the parents make parenting decisions about major long-term issues jointly?
(3)Does the mother pose an unacceptable risk of emotional and psychological harm to the children arising from allegations she:
(a)Fabricated allegations of Y having been sexually abused and encouraged or influenced Y to make untrue statements;
(b)Influences the children’s negative views about the father;
(c)Continues to expose the children to conflict between the parents;
(d)Does not have capacity to protect the children from her own negative views of the father; and
(e)Cannot support the relationship between the children and the father.
(4)If either parent poses an unacceptable risk of harm to the children, can that risk be ameliorated by the imposition of restrictions or limitations such as supervision?
(5)Relatedly, if such risk can only be ameliorated by the imposition of supervised time, what are the benefits and/or potential harms to the children of having their relationship with that parent limited to supervised time, and what are the potential benefits and/or harms to the children of having their relationship with that parent severed?
Additional issues raised by the parents, namely, whether there was a risk of physical harm to X from the father, and whether the mother’s current partner should be restricted from spending time alone with the children, were abandoned, it being conceded that the evidence would not support a finding of risk in relation to either issue.
PROPOSALS OF EACH PARTY
It is common ground that the children should continue to live with the mother although the father is seeking an order that the children live with him for 12 weeks to repair his relationship with them and then return to live with the mother.
The mother’s primary position is that she should have sole decision making responsibility for all major long-term issues and that the children should not spend any time with the father. The particulars of the order sought by the mother, including in the alternative, are set out in her Amended Initiating Application filed 28 June 2024.
The father proposes that the children live with him for 12 weeks and then return to live with the mother. During the 12 weeks living with him, the father proposes that the children spend time with the mother and after they return to live with the mother, the father proposes that the children spend five nights per fortnight with him being from Friday to the following Wednesday. The particulars of the order sought by the father are set out in exhibit 15.
The Independent Children’s Lawyer (“ICL”) recommends that the children live with the mother and spend unsupervised alternate weekends and half school holidays with the father after a prolonged reintroduction period. The order proposed by the ICL is set out in exhibit 13. Notwithstanding the recommendations made by the ICL, it was conceded that it would be open on the evidence to find that the father poses an unacceptable risk of sexual harm to the child, Y.
BACKGROUND
Before turning to consider the issues, it will be helpful to set out some background to the matter.
The mother and father commenced a relationship in or about 2012 and separated in May 2020. They were not married. There are two children of the relationship, namely X born 2013 and Y born 2017. Both children attend a private school where they are progressing very well.
The mother was born in 1976 and is 48 years of age. She is employed as a manager with E Company working full-time hours over four days. She was born in Country F and became an Australian citizen in 2017. The mother lives in a three-bedroom townhouse in Suburb G.
The mother has re-partnered with Mr H. Mr H was born in 1971 and is employed as a finance professional. The mother and Mr H commenced a relationship in early 2022. While they do not cohabit on a full-time basis, Mr H spends between two to four nights per week at the mother’s residence. Mr H has three children from a previous relationship, namely adult twins aged 23 years and a child aged 17 years.
The father was born in 1977 and is aged 47 years. He is employed in the trade sector. He was born in Country J before later becoming an Australian citizen. The father lives in a three‑bedroom apartment in Brisbane.
The father has re-partnered with Ms K. Ms K was born in 1971 and is employed as a ‘co‑ordinator’ (whatever they may be) with a history of employment in two sectors. The father and Ms K commenced a relationship in or about early 2024. They do not cohabit. Ms K was employed by the father in early 2023.
Following the parent’s separation, the father commenced property proceedings by an Initiating Application in the Federal Circuit Court (as it was then called) on 19 October 2020.
Parenting proceedings were commenced on 10 August 2021 by way of a Further Amended Initiating Application of the father.

Final orders were made by consent finalising both proceedings on 12 August 2021. The final parenting order provided for the parents to have equal shared parental responsibility and for the children to live with the mother and spend each alternate weekend and holiday time with the father.
This arrangement continued until January 2023 when the mother withheld the children following a third alleged ‘disclosure’ by Y of sexual abuse by the father.
The mother recommenced parenting proceedings on 9 February 2023 in the Federal Circuit and Family Court of Australia (Division 2). On 2 March 2023, the matter was referred to the National Assessment Team for transfer to this Court. Unfortunately, the transfer did not occur until an order was made on 15 May 2024 amending the order made on 2 March 2023 to include a transfer order. All orders made between 2 March 2023 and 15 May 2024 purportedly by this Court were made without jurisdiction. Unfortunately, this is a not an infrequent consequence of 2021 amendments to the Family Law Act 1975 (Cth) (“the Act”) which makes the original jurisdiction of this Court dependent upon transfer from a lower court. Trial directions were made on 24 May 2024 when the matter was listed for trial commencing on 31 July 2024.
In mid-2023, the Queensland Police Service finalised their investigation into the allegations raised by the mother and concluded that there was insufficient evidence to proceed with a criminal prosecution. It will be appreciated that this decision does not address the issue of risk which is the matter for determination by this Court.
On 13 July 2023, an order was made by consent to suspend the children’s time with the father.
In mid-2023, the Department of Child Safety, Seniors, and Disability Services (“Child Safety”) finalised their investigation and concluded that Y had suffered emotional harm from sexual abuse perpetrated by the father.
On 19 September 2023, an order was made for the children to live with the mother and spend time with the father supervised at a contact centre for up to four hours each week. Supervised time commenced on 23 September 2023. An additional order was made for the mother to personally supervise the children while they were in the care of Mr H.
In November 2023, the parties agreed to change contact centres and an order was made on 27 November 2023 by consent for supervised time to occur for four hours per week and that has continued at a cost of $700 per week which the parties share equally.
The estimated legal costs for the mother to the end of the trial are approximately $180,000.
The estimated legal costs for the father to the end of the trial are approximately $200,000.
APPLICABLE LEGAL PRINCIPLES
Parenting proceedings are regulated by the Act, and s 43 of the Act requires the Court to have regard to several matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects of Part VII of the Act are set out in s 60B and are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the United Nations Convention on the Rights of the Child.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to the matters set out in s 60CC and generally include: arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child; any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child; the capacity of each person who has or will have parental responsibility to provide for the child’s needs; the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and in considering those matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage, or destruction of property etc.
Abuse in relation to a child is defined in s 4 of the Act and includes involving a child in a sexual activity in which the child is used directly or indirectly as a sexual object.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
[2] Evidence Act 1995 (Cth) s 140.
[3] M v M (1988) 166 CLR 69 (“M v M”).
[4] Ibid.
[5] Ibid; N and S and the Separate Representative (1996) FLC 92-655.
When assessing the nature and magnitude of a risk posed by a parent or other person, all relevant evidence must be considered as part of the “matrix of evidence”[6] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities in relation to all relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
[6] Eastley & Eastley (2022) FLC 94-094 at [31] (“Eastley”).
[7] Johnson & Page (2007) FLC 93-344 at 81,890–81,891, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen (2022) FLC 94-092 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[8] Isles (fn 7) at [7].
[9] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.
[10] Baghti & Baghti and Ors [2015] FamCAFC 71.
[11] M v M (fn 3) at 76.
Each parent has parental responsibility (i.e., all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C).
Section 61D provides that a parenting order can deal with the allocation of responsibility for decision making about major long-term issues, being joint or sole decision making in relation to all or specified major long-term issues. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Where an order is made for joint decision making about major long-term issues, parents are required to consult each other in relation to each such decision and make a genuine effort to come to a joint decision (s 61DAA). Where a decision is not a major long-term one, there is no such requirement to consult with the other parent (s 61DAB).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[12]
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN ARISING FROM ALLEGATIONS OF SEXUAL ABUSE OF Y?
[12] Banks & Banks (2015) FLC 93-637.
It is often difficult, in the context of children having been exposed to conflict between a separated couple, to assess an allegation of sexual abuse made by one parent against the other and this difficulty is compounded when statements are attributed to a young child which may or may not be conveying sexual abuse and then interpreted by a parent who has little or no regard for the other parent. It is also of relevance, in this case, that the mother’s first language is Country F Language and her conversations with the children are often in Country F Language and the children respond to her in a mixture of Country F Language and English. The wife’s command of English is nevertheless excellent. The mother and the father each speak with an accent. As earlier noted, the mother is from Country F, and the father is from Country J.
It is perhaps important to observe that in assessing allegations of sexual abuse by a parent of their own child, it is difficult not to approach the allegations with a certain level of incredulity. Such behaviour is heinous. However, it is a sad fact of life that such behaviour does occur.
It is also important to emphasise that the task for the Court is to assess the magnitude of risk posed by the father, which is a consideration of possibilities not probabilities.[13] The consequences of making the wrong assessment are potentially dire. Either a child will be exposed to someone who may abuse them, or a child may be deprived of a meaningful relationship with a loving parent.
[13] Isles (fn 7) at [7].
The father submits that the mother has fabricated the allegations of sexual abuse or at least encouraged or influenced Y to make untrue statements.
History of “disclosures”
The mother refers to three “disclosures” having been made by the child, Y. I will continue to use inverted commas for this term given that the statements attributed to the child may or may not be a disclosure of sexual abuse.
The first one is said to have occurred in or around early May 2021. The circumstances of this first “disclosure” from the mother’s trial affidavit is set out below:
41. [In] or around [early] May 2021, the children returned to me after spending time with [the father]. When I was putting the children to bed and about to start reading them a book, I asked them "how did you go with Daddy? Did you have a good time?". [Y] said to me "Daddy touched my private parts ". [X] was present when [Y] told me this and I looked at him after [Y] made the disclosure. [X] said to me "I don't know. Daddy keeps sleeping with [Y] and asks me to go to another room". I asked [X] "what do you do?" and he replied "stay until late watching TV".
42. After this conversation on 3 May 2021, I sent a text message to [the father] which said "[Quintana], [Y] came home telling me you have touched her private parts, and [X] told me you keep sleeping with [Y] asking him to go to another room. could you please explain yourself?". [The father] replied to my text message saying "Total lies".
43. [Two days later] my former solicitor received a letter from [the father’s] solicitor in relation to the text message I sent to him. [The father] requested that I "desist immediately with further derogatory and suggestive statements of this nature. Our client denies outright any and/or all accusations that he may have inappropriately touched either child, noting in particular [Y] 's young age and his need to assist her with her day-to-day care from time to time."
44. [In] June 2021, I took [Y] to [Dr M]. I told her that I had noticed that [Y] had blood in her underwear and that [Y] had told me that her "vagina is hurting". [Dr M] sighted no issues and indicated that it might be constipation, not eating properly or drinking enough water at [the father’s] place. She advised that [Y] have [medication] to assist with bowel movements.
45. When [Y] and [X] made these comments to me, I was shocked that [the father] would do anything untoward towards our children. I assumed that [Y], who was [three] years at the time, was referring to when [the father] was helping her shower or get dressed and assumed this was innocent remarks in that context. At the time this disclosure was made to me, [Y] was not displaying any sexualised behaviour and I had not noticed any changes in either children's behaviour. No further comments of this kind were made to me again until 2023.
(Emphasis in original)
I observe that the statement attributed to the child, “Daddy touched my private parts”, was not made in response to a suggestive or leading question. It is also noteworthy that X said that the father keeps sleeping with Y and asks him to go to another room. It is a detail that may legitimately heighten concerns. The mother sought an explanation from the father immediately. The mother’s text message was somewhat accusatory in tone (although the reference to the father by his surname was clarified and historically that was just the usual way the mother referred to the father), and predictably the father replied without addressing why the children might say such things in an innocent context. The response from the father may be explicable in the context of an unhappy separation between parents who have a poor relationship but was unhelpful. The subsequent letter from the father’s solicitor provides some possible context, namely, assisting Y in her day-to-day care.
Having raised the issue and received a denial from the father, and a possible context for touching of the child’s private parts in providing routine day-to-day care, the mother accepted that was likely to be the case. I note that, contrary to the father’s solicitor’s letter at that time, during cross-examination the father rejected the notion that there would have been any context to explain why the child said he touched her private parts whether in the provision of day‑to‑day care or otherwise. The father said he did not believe the child said it.
Then in June 2021, the mother contends that she was confronted with Y saying her vagina was hurting and the mother contends there was blood in the child’s underwear. Appropriately, the mother took the child to the doctor, Dr M, the mother’s (and children’s) long-term general medical practitioner. The doctor’s notes are set out below.
Recorded on: [June] 2021
says daughter was with ex friday to sunday last weekend
she noticed blood in her underwear after this on mondyay- which was yesterday
[Y] said it hurt to move bowels
she also says her groin is hurting
o/e no anal tear seen
normal groin region too
no trauma seen
pdx ? constipation and slight anal tear
p/ for diet and [medication] and review if not settling
possibly not eating properly and drinking enough water at her father's house
(As per the original)
Dr M’s notes refer to the child’s “groin” hurting rather than her “vagina” hurting. The doctor provided an explanation for the blood that the mother seems to have accepted because, as earlier noted, the parents entered into a final parenting order on 12 August 2021.
The children thereafter spent time with the father in accordance with the order, although there were frequent occasions when the father changed or cancelled his time with the children, and these changes were accommodated by the mother, although it caused inconvenience and disappointment for the children as referred to in Dr M’s notes in November 2022. On this date, Dr M refers to a telephone consultation with the mother during which the mother told her that the father had been cancelling his time with the children and had not seen them for the previous two months. She reported that the children were missing the father. Such statements do not sit logically with a mother determined to undermine the children’s relationship with their father.
The second “disclosure” is said to have occurred in January 2023, two days after the children returned to the mother’s care after spending a week’s holiday with the father and is described by the mother as follows:
47.[In] January 2023, when [Y] was dressing herself for the day, which she has done since she was two and a half years old, she disclosed to me "Daddy touched my private parts". I asked [Y] "what are you talking about [Y], what are you saying?". [Y] replied "daddy touched my private parts". I asked [Y] "how? And why would he touch your private parts? Was he putting cream on you?". [Y] said "no he touched my private parts" then she started to rub her vagina over the top of her underwear in an up and down motion using her fingers. I said to [Y] "what, is this serious? What happened? Please tell me the truth, I am here and you tell me anything you want". [Y] replied "I trick you mummy". I observed her to not make eye contact with me and continue to get dressed. I said to [Y] "It is not funny, you can't joke with this". [Y] did not reply and acted like she did not hear me.
(Emphasis in original)
The mother spoke to Dr M in a telehealth appointment in January 2023 and told the doctor what the child had said and asked if there was anything that was able to be done to medically check if what the child had said was happening. The doctor recommended the mother consult a paediatric psychologist to find out what was happening. Dr M’s notes reveal the following:
…
daughter [Y] [sic] came home and said that daddy touched her private parts
then she says that she tricked the mum and he did not do this
[The mother] has been asking this question regularly so that is how [Y] [sic] is aware
confident and happy girl normally
says not observed any behaviour change
[Y] [sic] is close to her father and comfortable with him
explained it is best to get [Y] [sic] seeing a psychologist
Dr M said in her oral evidence that she asked the mother how the child would even know about ‘private parts’ and it was in that context that the mother said she had been asking the child regularly if the father was touching her private parts. The mother denied doing so during cross‑examination. I do not accept her denial.
The mother contends that she facilitated the children spending time with the father again from Friday, 20 January 2023 to Monday, 23 January 2023 because the child had said she had “tricked” the mother, and the mother did not want to believe that the father was capable of doing what the child was suggesting. The words used by the child do not, of course, necessarily indicate that something inappropriate has occurred. There may be some innocent explanation for the statement made by the child.

The third “disclosure” is said to have occurred on Monday, 23 January 2023 after the mother collected the children from vacation care where they had been delivered earlier that day by the father. The mother deposed to the following in her trial affidavit:
51. On Monday 23 January 2023, I collected [X] from vacation care and [Y] from childcare. We returned home at approximately 3.50pm. When we arrived home, [Y] went straight to the toilet. While she was in the toilet, she called out to me and said "Mummy mummy my […] [[Country F Language] for vagina] is sore". [Y] and I had the following exchange:
(a)       Me to [Y]- "did you have enough water today?"
(b)       [Y] to me - "yes "
(c)       Me to [Y] - "did you sit in the sandpit at childcare today?"
(d)       [Y] to me - "yes"
(e)       Me to [Y] - "that's probably why"
(f) [Y] to me - "no Daddy touched me again". [Y] had both of her hands on her vagina while she was sitting on the toilet and was pulling her vagina open. I could see that near the top of her vagina near the clitoris was red.
(g) Me to [Y] - "are you serious? Are you telling the truth? Please it is very serious, don't play with it"
(h) [Y] to me - "I am telling the truth mommy. Daddy touched my private parts just that [X] doesn't see it"
(i)        Me to [Y] - "what do you mean [X] doesn't see it?"
(j)         [Y] to me - "Daddy tell him to go away"
(Emphasis in original)
The mother contends that she then started recording the conversation because she was so shocked and worried by what the child was saying. The recording was provided to police. The recording was played in Court and is exhibit 4. In the video, the child is seated on the toilet and not wearing any top. Only her top half is visible. The recording is short, about 2 minutes. The child’s affect is matter of fact. She has several red dots on her face and scratches her arms on several occasions. The child states that the father touched her vagina, and her “[…]” (it is common ground that this is a Country F Language word for vagina), that she told him to stop, that he does it when she is putting on her undies and pyjamas, that X does not see it because he is not allowed in the room, and she insists that she is telling the truth. The mother implores the child on several occasions to tell the truth and not to “trick” her and the child repeats she is telling the truth. At one point the mother responds to the child’s statement that the father does not let X into the room by saying “So daddy kicks [X] out of the room…” and the child corrects the mother by saying, “No, he doesn’t let him go in the room”.
At 4.28 pm, i.e., about 40 minutes after arriving home with the children, the mother sent the father a screen shot of a text message sent by the father to the mother on 6 November 2021, “dinner time nanny” and a text that said, “when karma hits you back” accompanied by three laughing emojis. As best I can understand the father’s case, he contends firstly that the mother could not have been concerned about Y making a “disclosure” only 40 minutes before sending him such a text and secondly, that the reference to “karma” was an indication that the mother thought she had evidence against him that she could use to stop him seeing the children. The mother could not recall sending the text message and did not know what she meant by the screen shot and text. By way of possible explanation, the mother offered that as the father used to call her “nanny” as an insult because she is one year older, it might have been a reference to his new relationship. The mother rejected the contention that the reference to “karma” was in any way related to the child’s “disclosure”. I accept the mother’s evidence that the reference to “karma” was not related to the child’s “disclosure”.
In January 2023, the mother booked an appointment for Y with Dr M for the following day at 3.00 pm, because of what the mother describes as “a rash around [the child’s] mouth which appeared to be red sores forming”. It is unclear whether the appointment was made before or after the “disclosure”.
The following day was Y’s first day at preparatory school. The mother contends that the child appeared excited and was walking in front of her holding her bag. When they were approximately five metres from the child’s classroom, the child turned around and grabbed the mother’s hand. The mother then noticed the father standing near the child’s classroom. The father asked the child to pose for a photo with him, but she did not make eye contact with him and did not reply. The father moved towards the child on several occasions and each time the child moved away from him and avoided eye contact. The child’s teacher then approached and took Y by the hand. The father said to the teacher, “I need a picture with [Y]”. The teacher asked the child, “can Dad get a photo with you?”, and the child responded, “no”, and moved away from the father while holding the teacher’s hand. The child’s reaction to the father elevated the mother’s concerns. I infer that this reaction was out of character for the child. Alternatively, the child’s reaction may have been an understandable response to the anticipation of her parents coming into contact where there was a history of the child’s exposure to conflict.
The mother called N Organisation (a child protection organisation) to obtain a referral to a psychologist for the child. N Organisation informed the mother that they would make a report to police and said she should expect a call from them.
While waiting in Dr M’s reception area later that day, the child jumped onto the mother’s lap and grabbed the mother’s left hand and started sucking her middle finger. This was not a behaviour the mother had previously observed. When asked by the doctor why she was doing it, the child said she did not know, and “I just like it”. The doctor asked the child to get onto the examination bed so that she could examine the mouth sores. The mother said to the child, “Is there anything you want to tell [Dr M]?”. The child pointed to her vagina then started rubbing her “vagina” and said, “Daddy touched my private parts and my [vagina] is sore”. Dr M asked words to the effect, “how did you feel about this?”. The child responded, “I don’t like it. I told Daddy to stop it but Daddy won’t listen”. The doctor took a swab from the child’s mouth. The child also had a rash on the top of her thigh, but she would not let the doctor near that area to take a swab. The results for bacterial and HSV (herpes simplex virus) were normal.
Dr M made a notification to Child Safety and provided the mother with a referral dated January 2023 to the O Hospital. The referral included the following information:
…
[Y] [sic] is a longterm patient of mine and has said to me today that her father touched her vagina and she pointed her clitoris region. I asked how long for and she said until I asked him to stop but he didn't. She has also been sucking on her mother's fingers today in consulting room.
She has never behaved this way in the consulting room before.
On examination she has what looks like school sores around her mouth and a pustule on […] her groin region. I have swabbed the mouth lesions but [Y] [sic] was too upset for me to swab the groin lesion. I have requested herpes and bacterial pcr for this. This is a family that I have known for 10 plus years and they have just come out of coercive control domestic violence situation and is currently having shared custody with the father. [Y] [sic] was with her father this weekend and mother picked her yesterday.
As the mother was leaving the surgery, she received a call from a police officer. The mother was advised that Y needed to be interviewed before she was taken to the hospital but that the interview could not happen until the following day. Why the interview needed to take place before the hospital examination is unclear. The view about the child needing to be interviewed first is corroborated in the O Hospital records dated January 2023, where it is noted, “[Dr P] contacted on an evening of in January 2023 for assessment, however at that point had not done 93a interview”.
A few days later, Mr H contends that as he was sitting in the car with X and Y. There was a conversation about family and his own children. He sets out in his affidavit the following exchange:
…
a.[Y] - "why are your kids living with you and not their mum?"
b.Me - "they chose to because they prefer it" and "Dads are important just like mums. Your dad is great, isn't he".
c.There was no reply from the children. When we stopped at the lights, I turned around and saw [X] with a shocked expression, his arms raised open as if to say "are you kidding".
d.Me - "why?"
e.[X] - "You know"
f.Me - "what?"
g.[Y]- "because Dad touched by [sic] [vagina]"
h.Me - "Oh, I'll need to talk to Mum about that"
(Emphasis in original)
Y’s police interview –January 2023
In January 2023, Y was interviewed by police. Her interview was video recorded, and the recording was played in Court. There is an agreed transcript. The recording and transcript are exhibit 5. The child appeared, initially at least, to have some difficulty recognising the difference between a truth and a lie, although to be fair to her, the example given by the interviewing police officer, Ms Q, about the colour of pens was not a particularly clear example.
When asked why she had come to the police station, the child said, “because I have this thing around my face and it’s really annoying me”. The police officer casually introduced the topic of the father, and the child agreed she had seen him on the weekend and his friend, had been there and they made cupcakes. When asked to tell the officer everything about staying with the father on the weekend, the child said:
My brother umm my brother umm my brother was keep, my brother was showing his private parts and going like this (stands up). And I didn’t like it so I told him to stop… but he didn’t listen. And then, then my, then my dad and then my dad smacked him. But it was …
No follow up questions were asked by the police officers about this alleged incident. The father does not mention such an incident in his trial affidavit and was not asked about such an incident in cross-examination.
Surprisingly, the police officer introduced the topic of the father touching the child’s vagina. It is the preferred approach when interviewing children to simply ask very open ended non‑suggestive questions because of the risk associated with children repeating something said or feeling pressure to say something on the topic introduced that may or may not be accurate. The following exchange then took place between the child and two police officers, Ms Q and Mr B:
[Ms Q]Ok. [Y] [sic], I have heard that you said to your mummy that daddy touches my vagina, tell me more about that.
[Y]                 When he touches it, like it hurts it.
[Ms Q]           Can you say that again.
[Y]                 When he touches it, it really hurts me.
[Ms Q           Tell me more about the hurts.
[Y]                 When it hurts, it feels like a, it feels like a little, it feels like a punch.
[Ms Q]           What is happening when this happens?
[Y]Mmm. When it happens, um, I told my mumma she ummm. She, she normally touches it. When I …normally do it all by myself but he doesn’t like me …
[Ms Q]           Tell me more about doing it all by yourself.
[Y]So when I, when I am naked he goes in the room and then he touches me on my private parts.
…
[Y]He touches like my wee hole. He … he he it really hurts [the wee hole] when he does it
[Ms Q]           Describe to me what daddy is doing when it hurts?
[Y]                 When it hurts it like feels it hurts a lot.
[Ms Q]           What is daddy doing?
[Y]                 He is touching it.
[Ms Q]           Can you describe to me the touching?
[Y]                 (shakes head)
[Ms Q]           Is daddy holding a towel, how does daddy touch it
[Y]                 He is touching it with his hand
[Ms Q]With his hand. Can you tell me more about how daddy is touching it with his hands
[Y]                 (tickles leg)
[Ms Q]           Can you show me that again?
[Y]                 Show what again?
[Ms Q]           How daddy touches it with his hands?
[Y]                 (rubs leg). He does it really hard.
[Ms Q]           Really hard. Then what happens
[Y]                 It really hurts.
[Ms Q]           Then what happens after that.
[Y]                 I go to sleep.
…
[Mr B]           Ok and where in the house are you when he touches?
[Y]                 In his bed and in his bedroom.
[Mr B]In his bedroom ok. and what are you, are you usually standing when he touches?
[Y]                 I am laying down.
[Mr B]           You are laying down, and what are you laying on?
[Y]                 A bed.
[Mr B]           The bed, whose bed is that?
[Y]                 My dad’s
…
[Mr ]Ok and when daddy touches your privates, does he only touch your privates when you are on the bed or does he touch you anywhere else?
[Y]                 When I am on the bed.
[Mr B] a        nd is it before bed? Is it always before you go to sleep?
[Y]                 Mmm mm.
[Mr B]           Yes?
[Y]                 Yes.
[Mr B]           Ok
[Ms Q]           Does it happen after the shower or does it happen any other time?
[Y]                 After the shower
[Mr B]           Ok is he touching you to dry you or are you already dry?
[Y]                 I am already dried.
[Mr B]Ok so when he is touching you with his hand are you wet then? Is your body wet from the shower?
[Y]                 No, I already dried it.
[Mr B]Ok so you have your shower? And in the shower does daddy touch you on the private parts in the shower?
[Y]                 Nope.
[Mr B]           No?
[Y]                 Only after the shower.
[Mr B]           Sorry?
[Y]                Only after the shower
[Mr B]So you have your shower and then you get dry and then do you get dressed? Or does he touch you before you get dressed
[Y]                 He touch me before I get dressed.
…
[Ms Q]           Ok. And where is your brother when this happens?
[Y]                 Outside watching tv.
[Ms Q]           And where is [Ms K]?
[Y]                 Outside. With [X] watching tiktok
[Ms Q]Ok and when you are laying on the bed does daddy dry you after you dry yourself after the shower?
[Y]                 No.
[Ms Q]Can you tell me the position you are in when you are laying on the bed. Can you show me.
[Y]                (gets on the floor and lies on her back)
…
[Ms Q]And when daddy touches your private parts and it hurts and you are on your bed what are you wearing?
[Y]                 Umm. Nothing
[Ms Q]           Nothing. After daddy touches it and it hurts what happens next?
[Y]                 It hurts even more.
[Ms Q]           What happens after that?
[Y]                 It hurts even more.
[Mr B]           How many times? Do you know how many times?
[Y]                 (shakes head no)
[Mr B]           Just once?
[Y]                 (shakes head no). a lot of times.
…
[Mr B] Umm. When daddy touches your private parts is the pain outside or inside?
[Y]                 Inside.
[Mr B]            Inside.
[Ms Q]           Tell me more about the pain being on the inside?
[Y]                 Ummm. it like really hurts.
[Mr B]           Is the pain from the soap from the shower?
[Y]                 No, from daddy.
[Mr B]           So not from the soap.
[Y]                 (shakes head)
[Mr B]You said daddy in the shower uses too much soap. Is it the soap that stings or is it?
[Y]                 The soap that stings.
[Mr B]Its the soap that stings, yeah. And is it stinging outside the shower? On the bed?
[Y]                 Yeah and also stings in the shower.
[Mr B]Yeah, why is that because the soap is hurting your private parts or is it because dad is hurting your private parts?
[Y]                 Dad. And the soap.
[Ms Q]When dad, like, you, you did this motion before is it hard is it soft? Is this what causes the pain?
[Y]                 Even harder.
[Ms Q]           Even harder like…
[Y]                 Harder. ([Ms Q] motioning) harder.
…
[Mr B]           Yes or no, is there a towel on you when daddy rubs you
[Y]                 No, no towel.
[Mr B]           So it is just his hand on your private parts?
[Y]                 Mm hmm.
[Mr B]           Do you ever tell daddy it hurts?
[Y]                 Yes always
[Mr B]You always tell him, and what happens after you tell daddy what does daddy do?
[Y]                 He says it doesn’t hurt
[Mr B]           And then what happens after that.
[Y]                 He puts me in bed.
Later that day the mother had a conversation with Y which is set out in her trial affidavit, as below:
74. When I was putting [Y] to bed on a Wednesday in January 2023, we had the following conversation:
(a)Me to [Y] - "how was your talk with [Ms Q]?"
(b)[Y] to me - "Good, I like her. She is nice".
(c)Me to [Y] - "what did you talk about? "
(d)[Y] to me - "How my Daddy touched my private parts when putting on my pyjamas"
(e)Me to [Y]- "does he put cream on you?
(f)[Y] to me - "No he touches it for no reason. He does it so hard it hurts. I say stop but he doesn't listen. He says it is important for him to do it". I observed [Y] to put her fingers into her vagina and start pulling her fingers in and out of her vagina vigorously.
(Emphasis in original)
The mother also had a conversation with X in January 2023 in which she asked him about the bed routine at the father’s house. X said, among other things, that Y is normally with the father getting ready for bed. When asked how he knew that he said, “I don’t know, he doesn’t like us to see each other’s private parts. … Daddy locks the door”. During cross-examination the father denied locking either the children’s bedroom door (which he said could not be locked as he had removed the lock pin) or the door to his bedroom door although he suggested that maybe it had been blown closed by the breeze from the air conditioner.
X’s police interview –January 2023
X was interviewed by police in January 2023 and the recorded video interview and the agreed transcript is exhibit 3. When asked what he had come to talk about, X replied:
Um, my sister, [Y] [sic], when we’re with our dad, um when she is changing into her pyjama’s [sic] dad locks the door so I can’t get in, even though my sister knows how to change by herself and that’s when um, I think, and also [Y] [sic] said, when dad’s touched her private parts. And um, when she’s in the shower, dads also in there but he also doesn’t me let me see him, see her. And um normally when, when um, she’s going to bedtime and I am watching tv, umm [Y] [sic] also says that he, he is touching her in the private parts.
…
… she told me at mum’s house
…
We were at mum’s house when she says her private parts hurt.
X initially said that the door that is locked is the door to his joint bedroom with Y but later said it was also the father’s bedroom. X was asked why he thought the door was locked and he replied, “Because I can’t get in, and even if I can, umm he just slams the door in my face”. X said he was aware that the mother is worried about Y and “really wants her to be ok”.
O Hospital examination of Y – late January 2023
It was not until late January 2023, that Y was examined at the O Hospital.
The mother contends that during the examination, a Dr L asked the child if her vagina was itchy, and the child replied in the negative. The doctor asked if the child had been scratching herself “down there” and the child again replied in the negative. The mother contends the doctor then took a photograph of “the area” and spoke to the mother in the absence of the child. The mother contends she was told the following by Dr L:
I found a cut inside [the child’s] vagina.
I am sorry I didn’t get to see her last week, I really regret it.

Tests undertaken on the child for sexually transmitted diseases, chlamydia and gonorrhoea, were negative.
The hospital records include the following information:
[The child] also has [another condition] currently
…
Examination, present [Dr L][…]
written consent for colposcopy
anogential examination
genital examination - examined in supine frogleg position
small healing abrasion superiorly to clitoris, on mons pubis
good visualisation of anogenital structures
crescentic pre-pubertal hymen
no evidence of acute or healed injury to hymen
Normal posterior fourchette Labia minor and majora normal
No evidence of discharge
perianal examination normal
no fissures
no evidence trauma
healing small circular lesions around mouth and inner thighs bilaterally – [Y] denies being itchy and scratching her genital area
two small circular lesions on foot
one small abrasion on thumb (reported cut on sticky tape dispenser)
Impression
5 year old girl - disclosure of possible sexual abuse
scratch abrasion on external genitalia, non-specific for sexual abuse
As a general observation, I note that it is not uncommon in public usage for the term “vagina” to be used to describe in a general sense, female genitals. The mother confirmed during her evidence that when she has used the term “vagina” in these proceedings she was not intending to refer to the internal canal i.e., the vagina, but rather the labia i.e., the external genitalia. The mother’s evidence that she was told by a doctor that the child had a cut inside the vagina must been seen in that context. The medical records disclose a “small healing abrasion superiorly to clitoris, on mons pubis” and a “scratch abrasion on external genitalia, non-specific for sexual abuse”.
Father’s police interview –January 2023
In late January 2023, the father voluntarily participated in a police interview. The father denied “rubbing the victim child’s vagina”. The father referred to the mother’s text message to him in 2021 where he was asked to explain himself and his response that it was “total lies”. The father outlined the shower routine for the child stating that the child cleans herself with a sponge and that he assists her “from the waist up however not on her vagina” and that he “assists the victim child drying herself and putting on her PJs”. The father “eluded that the disclosure was influenced from [the mother]” in the context of continued family law proceedings with the suggestion of the mother being vindictive.
After reviewing medical records from the O Hospital, where “no forensic evidence obtained”, and noting that the mother and Dr M had spoken to the child “without regulation of potentially leading or suggestive questions”, and further noting the father’s denial of allegations, the police concluded that no further action would be taken.
In May 2023, police finalised their investigation concluding there was insufficient evidence to warrant prosecution.
In June 2023, a police officer communicated with Child Safety and suggested that the matter was a “family court allegation” and that the mother “appeared to have schooled up the older brother as well”. The basis for this opinion is undisclosed.
Dr M’s continued involvement
Dr M’s notes reveal that in February 2023, she “explained explicitly her and her children are in danger from this man. [T]o protect themselves and support network, police and lawyers”. When challenged about her source of knowledge about the father’s conduct, Dr M conceded that her main source of information was from the mother herself but recalled that many years ago, probably in about 2013, when the mother complained to her about domestic violence from the father, the father rang and abused the reception staff at her practice and told them the mother was not to consult with the doctor again.
Dr M’s notes for February 2023 include that she fears for X’s safety with the father. The receptionist for her practice recorded in a note on the mother’s medical records that the father is a very violent man and that Dr M “has serious concerns about this man, she has fears for the kids and the mother”. The staff at the practice were instructed not to give out any information to the father and to advise him that he would have to make any request through his lawyer.
In February 2023, the mother conveyed to Dr M that she was very upset that she did not act on things in May 2021.
Other conversations with the children
In February 2023, the mother had another conversation with X about bedtime routine, during which X said, “dad is getting [Y] ready for bed he takes her to his bedroom and closes the door and doesn’t let me in”.
A short time later, the mother observed Y hug Mr H prior to going to bed. The child touched his head and said, “Do you know my daddy doesn't have hair either”. Mr H replied, “Oh really. Does he also shave his head?”. Y said, “Yes. Do you know he has more hair in his private parts then his head”. The mother asked Y “how do you know this [Y]?” and she replied, “he showed me a picture”. Curiously, Mr H does not refer to any such conversation with Y in his affidavit.
Two days later, the mother walked into the bedroom and observed Y lying on the bed, touching her labia, “rotating it and then putting her finger in her mouth”. The mother was shocked and said, “What are you doing?”. The child responded, “daddy does it”.
In September 2023, Y told Dr M that she had seen the father on the weekend and that, “dad was nicer than normally is”. This was the first time the children had seen the father since January 2022, and it was under supervision.
From Dr M’s notes dated November 2023 it is apparent that she spoke with X during which he told her several things including the following:
"I don't get why dad would do things like making mum pay $300 so he could see us"
"He would yell at mum a lot and has smacked her many times and then when mum tries to leave he used to block the gate so she could not leave"
"[Y] [sic] told me that dad touched her in her vagina"
"dad has hit me many times with the remote control when I was young and parents were together and also when I went over to dad's after the parents were separated"
"last time he hit was when [X] was at dad's apartment before they found about what happened to [Y] [sic]"" last time he hit was when [X] was at dad's apartment before they found about what happened to [Y] [sic]"
"He kind of buys us with his money like trying to spoil us to kind of like bate us"
"I sometime want to commit suicide"
"felt this way about a month or two but only told mum 2 weeks ago"
"tries not to say personal things to friends but a friend did say sometime people commit suicide in Australia"
"thought about throwing a knife up and going underneath it or jumping off something high"
"want it to be quick and not painful"
"feel happy most of the time and sad sometimes"
"feel sad when he thinks about dad"
"feel sad when mum does not do her part when he and mum make a deal" - "mum says he can have tech time if he does all his homework and when he is done she does not give him tech time"
"if dad leaves us alone then 85% chance I won't feel suicidal"
(As per the original)
Child Safety involvement
Child Safety records include the following child protection history:
The family has been known to [Child Safety] since January 2021 with three Child Concern Reports (CCR) being recorded prior to the current Notified Concerns. [The mother] and [the father] have no child protection history in Queensland as subject children. Of the recorded information in the CCR's the information did not indicate that the children have been placed at significant risk of harm. The information related primarily to historical alcoholism of [the father] and domestic violence within the parental relationship [redacted] which required police involvement and was perpetrated by [the father].
In August 2023, Y was interviewed by two Child Safety officers at the mother’s home and in the presence of the mother. Y said she was scared. When asked if there was anything she had been worried about at the father’s home, Y said she felt worried when the father does not let her tell X something she wants to tell him. The Child Safety records are heavily redacted, and no request was made for unredacted copies to be made available to the Court. The child said that she worried about seeing the father and that if she had to see the father, she would feel sad. The child said she just wanted to stay with the mother. The child asked the Child Safety officers how they were going to look after her. During X’s interview, he said he was worried about his sister.
During the father’s interview with Child Safety in August 2023, the father denied any history of family violence. The father said that Y washes and dries herself and puts on her own clothes. Importantly, the father denied supporting the children in any self-care tasks because they were old enough to do this themselves. He suggested that the mother was “manipulating the children”.
On a basis that is far from clear from the evidence produced by Child Safety, it was concluded by Child Safety that “[Y] has been assessed as suffering emotional harm resulting from sexual abuse…” and that the father “is a parent identified in this investigation and assessment as responsible for sexual abuse of his daughter”. Child Safety refer to this conclusion being arrived at “on the balance of probabilities”. Child Safety did not substantiate physical harm to X.
Child Safety noted that in the event the father was to spend unsupervised time with the children there would need to be a further assessment for risk.
Family Report – 18 February 2024
Ms D prepared a family report and for that purpose conducted interviews on 11 August 2023 with the parents, the children, and Mr H. Further interviews were conducted on 28 October 2023 with the parents and the children and final interviews were conducted with the mother (in person) and the father (by phone) on 2 February 2024.
Ms D opined that “[Y’s] disclosures were accompanied by a range of behaviours which may be causally attributed to a child who have (sic) experienced sexual abuse but not exclusive to children who have experienced sexual abuse. This includes Y’s reluctance to spend time with her father, clinginess to her mother, and changes in her mood and behaviour”.
In relation to the difficulties in assessing the reliability of the statements made by the child, Ms D opined:
316. In view of the research demonstrating the way memories are accessed and accounts are elicited as being crucial determinants of the accuracy of the information children report, the multiple variables that were present at the time Child Safety concluded their assessment, such as the child's age, the delay, the interview environment with the mother present, repeated questioning of the child, the absence of time with the father in 7 months, such factors are likely to have confounded the accuracy and reliability of any disclosures [Y] made to [Child Safety] than the comparison interview with the Police. A reasonable speculation is that for a very young child, [Y's] narrative is likely to have been heavily contaminated at the time [Child Safety] interviewed the children and made their findings.
…
320. The mother appears to have uncritically accepted [Y's] disclosures as truth without considering the myriad of factors that contribute to how a child report events. For instance, there is evidence that [Y] may have a propensity to make false allegations of a sexual nature such as when [Y] told [X's] friends that she sucks his penis. The mother appears to have also had difficulty considering or accepting information that did not confirm her own beliefs that the children were at risk in the care of the father and with accepting outcome of the Police investigation. Underlying the mother's decisions, was the highly acrimonious separation and the hostility between the parties post the Final Orders, as evidenced in their text messages. This may explain her negative construct of the father, and her application of this lens to interpret his behaviour.
321.Despite the outcomes from the Police, the medical reports and the reports from the contact centre that the children are having a positive experience at the visits, the mother continues to believe that the children are at an unacceptable risk of harm from the father. …
322. It is my view that the children have been exposed to the highly acrimonious separation and this is maintaining the children's distress about spending time with their father. …
323. The mother remains hypervigilant when it comes to the children's behaviour before and after visits and she may misinterpret, overanalyse, or pathologize the children's behaviours as being more significant than the reality or attribute any changes to their behaviour as being related to time with the father, even if those behaviours are normative and typical for childhood development. …
…
334.… the explicit talk of a sexual nature when [Y] said to [X's] friends that she had sucked his penis, falls within the 'orange' category of a sexual behaviour which signals the need to monitor her and provide her with additional support. …
335.For this interview, [Y] openly disclosed her sexual abuse without hesitation, and without being directly questioned about the abuse. This demonstrated that she lacks the usual social restraints with discussing a traumatic event, particularly of a sexual nature and she was quite comfortable in discussing the alleged abuse reasonably quickly and with someone who she had not met before. This may be because of the extensive questioning she has been exposed to about the abuse. Whether the allegation is true or not, children who are open discussing sexual abuse so openly with others are more vulnerable to further abuse and it can have negative social implications for them, such as being rejected by their peers….
…
338. There are multiple factors that can influence a child's statements. The research on eyewitness testimony and children's' [sic] suggestibility indicates that is often difficult to evaluate the veracity and credibility of children's statements. Research has shown that children 's statements are highly dependent upon the context (e.g., adult influence, types of questions and language used in communicating with children), the child may be vulnerable to errors due to neurological immaturity, feeling sympathy for one parent, and some children are more likely to be swayed by external influences than others.
339. A large body of research on children's memory and suggestibility provides evidence that under a variety of conditions children may come to believe events to be true that are in reality, not true. Providing misleading post-event information, repeated questioning, using leading questions, repeatedly thinking about a non-event, and asking a child to speculate about what might have happened, are, among others, some of the factors that induce a child to provide inaccurate reports.
Discussion
Y has made repeated statements that the father has touched her private parts and that it hurts. She has made these statements suggestive of sexual abuse to the mother, to Dr M, to X, to Mr H, to police, to Child Safety and to the family report writer, Ms D. It is of significance that X has said that the father would tell him to leave the room or lock him out of the bedroom when he was in there with Y.
Historically, the children have had a close and loving relationship with the father, despite the acrimonious relationship between the parents. In their interviews with Ms D, the children recalled positive things about the father although indicating they did not want to see him or not see him much.
Ms D helpfully identifies in her report the difficulties in assessing the accuracy of statements by young children in a context of family conflict in circumstances where a child may have been subjected to repeated questioning as may have occurred in this case at least after the 2021 statements. Ms D also raised the possibility of Y having a neuro development disorder noting that she presented with some traits consistent with such a disorder e.g., struggling to maintain focus, difficulty sitting still, poorly integrated verbal and nonverbal communication as evidenced by her incongruent affect in the interview.
However, Ms D acknowledged that such traits would also be consistent with other disorders. Ms D opined that if Y does have a neuro development disorder that might explain her matter of fact demeanour when describing possible sexual abuse as she may not understand the gravity of what she is saying or even understand what it really means. In her view, the children have been exposed to considerable parental conflict and are strongly aligned with the mother.
In relation to the opinions contained in her report, I reject Ms D’s opinion that the mother has uncritically accepted Y's disclosures as truth. To the contrary, in my view, the mother has been very open to the statements made by the child being something other than sexual abuse. I further reject Ms D’s opinion that the mother has had difficulty considering or accepting information that did not confirm her own beliefs that the children were at risk in the care of the father and with accepting outcome of the police investigation.
The fact is the mother did accept the father’s denial in 2021 and accepted Dr M’s opinion that the blood in the child’s underwear was likely to be related to the child’s constipation. In 2023, the mother initially permitted the child to return to the father although she said the father had touched her private parts because the child said she was tricking. While the mother’s actions in questioning and then recording the child on the toilet on January 2023 were ill advised, the questions posed by the mother suggested alternatives to the child other than sexual harm. In my view, the mother was very much open to receiving information that challenged her concern about sexual abuse.
In my view, Ms D conflates the role of police in determining whether there is sufficient evidence to commence criminal proceedings with this Court’s role in determining the magnitude of risk that falls short of the criminal threshold. I do not consider it at all unreasonable for the mother to maintain her concerns despite the police conclusion that there was insufficient evidence for criminal prosecution.
I reject Ms D’s opinion that the mother has overanalysed, or pathologised the children's behaviours as being more significant than the reality. Understandably, the mother feels considerable guilt about ignoring, as she sees it, the 2021 statements when they have re‑emerged in 2023. The mother acted entirely appropriately in 2021. She received information that was concerning, and she immediately raised it with the father. She was prepared to accept that what the child said should be considered in the context of the father providing day to day care to the child.
The matter of fact way that Y disclosed the statements suggestive of sexual abuse to Ms D may well be, as opined by Ms D, that the child had by then been interviewed multiple times. It might be an indication that what the child is stating did not happen, but I am not determining fact, I am determining risk. I also take into account the possibility that the child has a neuro development disorder which impacts on her demeanour when disclosing possible sexual abuse.
The mother and Mr H were less than convincing about their ability to recall apparently verbatim conversations they have had with Y. Mr H was not sure whether there were other recordings. The mother denied other recordings but said there may have been other notes contained in emails to her solicitor of what the child said. The notes produced by the mother certainly do not contain verbatim accounts of conversations. The mother contends that her notes triggered memories of particular conversations that she would never forget. It seems likely that the mother and Mr H have had some conversations about their evidence which would hardly seem unusual, although less than ideal. While I remain somewhat doubtful about the accuracy of some of the mother’s and Mr H’s apparent verbatim accounts of conversations, I nevertheless find that overall, the mother and Mr H did their best to recall the conversations. The first “disclosure” made by the child was in May 2021 and did not resurface until January 2023. If the mother were intent on fabricating evidence, it seems illogical to wait nearly two years before making false allegations.

Y’s explicit talk of a sexual nature about sucking X’s penis is said by Ms D to fall within the 'orange' category of a sexual behaviour which signals the need to monitor her. As X told the mother about Y’s statement to this effect to his friends, it seems unlikely that Y was reporting an actual incident. When asked about this statement and Y’s statement to police the X had showed her his private parts, and whether it caused the mother to question the reliability of Y’s statements about the father, the mother candidly responded that it heightened her concerns. While initially I found her response odd, on reflection I consider her concern to be reasonable as it indicates a higher degree of sexualised knowledge. It might indicate that Y has been sexualised by someone other than the father, but the child has implicated the father as the person who has hurt her private parts and she has repeated this on several occasions since 2021.
Historically the child has had a loving relationship with the father, and the supervisor’s observations of the child’s time with the father seem largely positive, but such a relationship is not determinative of the issue of risk. It is entirely possible for Y to still love and want to spend time with the father even if he has abused her.
The father was unable to suggest any circumstance of innocent touching of the child’s private parts that might explain her statements. He denied sleeping with the child. He denied wiping her labia when washing or drying her. The father’s only response is to accuse the mother of fabricating the allegations or influencing Y to make the statements she has. The father denied X’s statement that the father locked him out of the bedroom suggesting that it may have blown closed in the breeze from the air conditioner. I reject the father’s suggestion about the bedroom door blowing closed because Ms K’s evidence about the position of the air conditioner makes it improbable that the father’s evidence is accurate. While Ms K was present at the father’s home on the weekend in January 2023, she was not observing the father and Y at all times.
Conclusion – risk of harm
I find that the father poses an unacceptable risk of emotional harm to the children and of sexual harm to the child, Y, based on the following evidence:
(a)Y has made repeated statements to numerous persons that the father has touched her private parts and it hurt or hurts, with the first statement having been made in 2021;
(b)X’s evidence that the father told him in 2021 to leave the bedroom and that the father was sleeping with the child and in 2023 that the father locked him out of the bedroom while the father and Y are in their alone;
(c)If abuse has occurred, it has occurred while X was in the house;
(d)X has expressed concern and worry about his little sister and in more recent times has expressed suicidal ideation;
(e)Y had blood on her underwear in 2021 which was determined at the time to be related to constipation;
(f)After the child’s “disclosures” in January 2023, the child behaved in an unusual way with the father the next day, refusing to look at him, clinging to the mother, refusing to be photographed with him, and rejecting any contact with him;
(g)The child had a “small healing abrasion superiorly to clitoris” and “scratch abrasion on external genitalia, non-specific for sexual abuse” on examination in January 2023;
(h)The child rejected alternative reasons for her sore genitals and in January 2023 said the father had touched her private parts “again”;
(i)The child has repeatedly stated that she is telling the truth;
(j)The child has presented with sexualised behaviours including masturbation (which by itself may be completely developmentally normal) and a statement about sucking her brother’s penis;
(k)The child’s matter of fact “disclosures” which may seem incongruent with disclosing sexual abuse may be explained by the child having been repeatedly questioned (at least leading up to and from the time of the 2023 “disclosures”), or having a neuro developmental disorder;
(l)If the child’s statements are in fact disclosures of sexual abuse, it will be damaging for the child to not be believed;
(m)Child Safety concluded that Y had been sexually abused and that the father posed a risk of harm such that if he were to have unsupervised time with her there would likely be further assessment;
(n)The father was unable to offer any innocent explanation which might explain the child’s repeated “disclosures” and X’s evidence about being locked out of the bedroom; and
(o)The children have been exposed to their parents’ conflict and are aligned with the mother and while they enjoy the time spent with the father they are resistant to spending time with him.
CAN THE PARENTS MAKE PARENTING DECISIONS ABOUT MAJOR LONG‑TERM ISSUES JOINTLY?
As noted earlier in these Reasons, major long-term issues are defined in s 4 of the Act and mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent.
It is common ground that the parents do not trust each other, and it was very apparent during their evidence that they dislike each other intently. The mother seeks an order for sole decision making responsibility for all major long-term issues.
Ms D provided the following observations and opinion regarding parental decision making:
373. With regard to parental responsibility. I do not believe the parties will be able to repair their relationship to a degree where they can come together to make decisions or trust in the other's decision making. The allegations have completely eroded each parent's trust in the other and opened wounds from their failed relationship. The sexual abuse allegations have deepened the parents already fragile co-parenting relationship.
374. The parents have not communicated in a year, and do not display a high level of skill in their communication for an equal shared parental responsibility. The text messages between the parties demonstrate a lack of personal boundaries and there is hostility between the parties. Due to the nature of the allegations and the consequences of those allegations, the parties will struggle over the long term to re-establish trust with each other, and I do not foresee the parties being unable to make decisions jointly and effectively. Their prognosis for sharing parental responsibility in my opinion, is guarded and I recommend the Court considers granting sole parental responsibility to the mother on a final basis.
I accept Ms D’s opinion.
During submissions, there was some discussion about what issues of a major long-term nature were likely to arise given that the children are at a school that will enable them to complete their education without change. There was a suggestion that an order could be made for the children to continue at their current school but that was not agreed to. If the parents have joint decision making power, the decision about their future schooling would have to be made jointly. I see little prospect of the parents being able to do so. There has also been a long running dispute between the parents about whether the children should undertake therapy.
It seems to me that as the children will be living with the mother, she should have sole decision making responsibility about the major long-term issues.
DOES THE MOTHER POSE AN UNACCEPTABLE RISK OF EMOTIONAL AND PSYCHOLOGICAL HARM TO THE CHILDREN ARISING FROM ALLEGATIONS SHE:
Fabricated allegations of Y having been sexually abused and encouraged or influenced Y to make untrue statements;
Influences the children’s negative views about the father;
Continues to expose the children to conflict between the parents;
Does not have capacity to protect the children from her own negative views of the father; and
Cannot support the relationship between the children and the father?
Given my finding that the father poses an unacceptable risk of harm to the children, I reject the contention that the mother has fabricated the allegations or encouraged or influenced Y to make untrue disclosures.
The children’s stated resistance to spending time with the father seems likely to at least in part be influenced by the mother’s negative views about the father although they have their own reasons for negativity towards him. X told Ms D about the father throwing a remote control at him. Mr H’s evidence is that X was very upset with the father in 2022 when the father did not contact him for his birthday. The mother told Dr M in November 2022 that the children had not seen the father for two months as he had repeatedly cancelled his time with them and they were missing him. It nevertheless seems likely that the children have overheard discussions between the mother and Mr H about the father. The children have referred to adult concepts such as “gaslighting”, the father being a “narcissist”, and to the father making the mother pay $300 for him to see them. I do not find that the mother and Mr H have exposed the children to conversations intentionally, but they have been naïve to think that their conversations have gone unheard when the children are in the house. They need to be more vigilant. While there remains a risk that the mother will expose the children to her negative views about the father, and to the contact more generally, I do not find that risk to be unacceptable.
As the mother believes the father has sexually abused Y, and I stress I have not made that finding, she will find it difficult to support the children’s relationship with the father in the future. However, despite her historic concerns about the father and the conflict in their relationship, the mother did support and facilitate the children’s relationship after separation until January 2023. The mother has also facilitated the children’s relationship under supervision since September 2023 and by all accounts the visits are enjoyable for the children.
While there remains a risk that the mother will expose the children to emotional and psychological harm, I do not find the magnitude of that risk to be unacceptable. Ultimately, it was conceded by the father that while he says there is a risk, it was not necessary or appropriate to make a finding of unacceptable risk.
IF EITHER PARENT POSES AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN, CAN THAT RISK BE AMELIORATED BY THE IMPOSITION OF RESTRICTIONS OR LIMITATIONS SUCH AS SUPERVISION?
I have found that the father poses an unacceptable risk of harm to the children. The nature of that harm is emotional and, in relation to Y, sexual. The risk of emotional harm to the children arises not only as a consequence of possible sexual harm to Y, and to X bearing the possible burden of responsibility for not protecting his little sister, but also to the consequences for the children of spending time with the father against their stated wishes and the ongoing risk of their continued exposure to parental conflict.
While both parents are responsible for exposing the children to the conflict, the children are more closely attached to the mother and are aligned to her. Examples of each parent’s exposure of the children to the conflict include the father losing his temper during a facetime call with the children when the mother was speaking to the children in Country F Language, and the mother using terms such as “narcissist” to refer to the father in the hearing of the children.
It seems to me that amelioration of the unacceptable risk posed by the father can be achieved by supervision.
It can only be hoped that the risk posed by the mother exposing the children to the conflict will be ameliorated by accepting the children will be safe with ongoing supervision of the children’s time with the father and a realisation (after reading these Reasons) of the damage caused to children from being exposed to conflict.
RELATEDLY, IF SUCH RISK CAN ONLY BE AMELIORATED BY THE IMPOSITION OF SUPERVISED TIME, WHAT ARE THE BENEFITS AND/OR POTENTIAL HARMS TO THE CHILDREN OF HAVING THEIR RELATIONSHIP WITH THAT PARENT LIMITED TO SUPERVISED TIME, AND WHAT ARE THE POTENTIAL BENEFITS AND/OR HARMS TO THE CHILD OF HAVING THEIR RELATIONSHIP WITH THAT PARENT SEVERED?
Long term supervision is far from ideal, but it may be the only safe way the children can maintain a relationship with the father. Historically, the children did have a close and loving relationship with the father and by all accounts the supervised visits have largely been a positive experience for the children, notwithstanding their continued resistance.
Ms D outlined the benefits and detriments for the children in maintaining a relationship with the father under long term supervision and opined that even though there will be negative implications for the children, long term supervision should continue even if the father is found to pose an unacceptable risk of harm. Ms D suggested the supervised visits could be longer than four hours and occur fortnightly.
As to the detriments of long term supervision, I identify the following:
(a)The father/child relationship will be weakened over time as supervised time is an artificial experience;
(b)The children may become anxious about their relationship with the father;
(c)The children are highly suspicious of the father and think the father poisoned their sushi (the father has been in the habit of bringing sushi to the visits);
(d)The children are anxious about the perceived relationship between the father and the supervisor (this was more so with the previous contact centre and is likely to be related to the mother’s concerns at that time and which led to a change in the contact centre);
(e)Supervision will reinforce to the children that the father is not safe;
(f)The children will be aware that they are different to their friends and may feel stigmatised;
(g)The children are likely to continue to resist the visits; and
(h)The father has already demonstrated a degree of frustration at the supervisors currently undertaking the supervision and this may well be exacerbated by long term supervision.
As to the benefits of long term supervision, they include the following:
(i)It is a means by which the children can maintain a relationship with the father;
(j)If the visits occur outside the contact centre (as they currently do) this will lessen the artificiality of the visits;
(k)By maintaining a relationship with the father, the children will not have to create an imagined view of the father, either negative or positive, as they will have an ongoing experience of him and will be able to enjoy outings with him; and
(l)When the children are much older and can self-protect, they will have an existing relationship with the father which may make a move to unsupervised time easier.
The benefits of severing the relationship between the children and the father are that it may result in the children feeling less anxious and may remove them from the prospect of exposure to ongoing conflict. The children’s stated wishes would also be recognised. The detriments of severing the relationship are that the children may create an imagined father figure, either a monster or an idolised image, that they have no way of reality checking. As the Court is dealing in possibilities and not probabilities, the severing of the relationship is unjustified.
WHAT PARENTING ORDER IS IN THE CHILDREN’S BEST INTEREST?
By the end of the trial, it was common ground that the children should continue to live with the mother. The father sensibly made this concession after hearing the evidence of Ms D whose evidence about the detrimental impact of a change in primary care was persuasive.
Consequent upon her interviews with X, Ms D, opined that he was a delightful child who was bright, reactive, he appeared healthy and well cared for, and displayed good eye contact. He was very well mannered and easy to engage. He presented as relatively calm and relaxed and displayed good expressive language skills and spoke clearly and confidently. He was able to express his views and wishes and impressed as displaying a maturity that was at least equivalent to his chronological age (at the time of interview he was ten). X told Ms D that he worries about his father repeating the same behaviours as he did in the past, such as hitting him hard, or touching his sister again. He reiterated that his father can get angry quickly and it was his father's unpredictability that worried him. X said he wanted to see the father but under supervision.
Ms D also opined that Y is a delightful child who was calm and relaxed and appeared healthy and well cared for. Y presented as sad although she displayed an incongruent affect, for instance she would smile whenever she made negative remarks about her father. She displayed good eye contact. In Ms D’s opinion, Y impressed as a child who was a little immature, with mixed sadness and anxiety. Y repeatedly stated she wanted to live with the mother and spend no time with the father.
I have found that the father poses an unacceptable risk of harm to the children but that the harm can be ameliorated by supervision.
I have given serious consideration to supervised contact occurring fortnightly as suggested by Ms D, but ultimately, I have decided that monthly time will better meet the children’s best interests for the following reasons:
(a)By reducing the frequency of the time the children spend with the father but increasing the duration of the visits to six hours the children will maximise the opportunity to spend meaningful time with the father but reduce the risk of emotional harm associated with more frequent visits;
(b)fortnightly frequency is more likely to exacerbate the children’s anxiety about spending time with the father;
(c)fortnightly frequency is more likely to interfere with the children’s day to day lives;
(d)fortnightly frequency is more likely to expose the children to conflict and to the father’s ongoing frustration about the need for supervision (the father has on occasion taken his frustration out on the contact supervisors and failed to follow clear directions by them. If he continues to do so the service may withdraw their agreement to provide supervision);
(e)monthly time will enable the children to maintain a relationship with the father and extending the time to six hours will provide greater scope for interesting outings.
The parents do not have the capacity to make joint parenting decisions and as the children will be living with the mother, she will have sole responsibility for major long-term parenting decisions.
Each party had the opportunity to make submissions about the terms of the parenting order and the order I propose to make adopts the provisions that I consider to be in the best interests of the children.

I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.
Associate:
Dated: 30 August 2024

File number:	BRC 14498 of 2020
Judgment of:	CAREW J
Date of judgment:	30 August 2024
Catchwords:	FAMILY LAW – CHILDREN – Whether either parent poses an unacceptable risk of harm to the children – Where there are allegations that the father has sexually abused one of the children – Where the child purportedly made three “disclosures” – Where the father poses an unacceptable risk of emotional harm to the children, and sexual harm to the youngest child – Where, on that basis, the mother does not pose an unacceptable risk of emotional harm arising from fabricating allegations of sexual abuse – Where the risk of harm posed by the father is ameliorated by supervision – Where the mother will have sole parental decision making for major long-term issues – Where the children will live with the mother and spend six hours of supervised time with the father per month.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 62B, 64B, 65D, 65DA United Nations Convention on the Rights of the Child
Cases cited:	Baghti & Baghti and Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Eastley & Eastley (2022) FLC 94-094 Isles and Nelissen (2022) FLC 94-092 Johnson & Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92-655
Number of paragraphs:	142
Date of hearing:	31 July – 2 August 2024
Place:	Brisbane
Counsel for the Applicant:	Mr Schonell
Solicitor for the Applicant:	Parry Coates Family Law
Counsel for the Respondent:	Mr Bunning
Solicitor for the Respondent:	Wallace Perkins Family Law
Counsel for the Independent Children’s Lawyer:	Ms Murphy
Solicitor for the Independent Children’s Lawyer:	Aylward Game Solicitors

BRC 14498 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS KONIGSMANN Applicant
AND:	MR QUINTANA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CAREW J
DATE OF ORDER:	30 AUGUST 2024