Moss & Moss (No 2)
[2025] FedCFamC1F 510
•31 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Moss & Moss (No 2) [2025] FedCFamC1F 510
File number(s): BRC 5460 of 2020 Judgment of: BRASCH J Date of judgment: 31 July 2025 Catchwords: FAMILY LAW – CHILDREN – Where the mother alleges the father and paternal grandmother have physically and sexually abused both children – Where the father denies all allegations – Where the evidence does not allow for a positive finding that any abuse occurred – Where the father does not pose an unacceptable risk of harm to the children – Where the children will grow up believing that they have been abused by the father if only exposed to the mother’s narrative – Where such an inaccurate belief is harmful to the children’s sense of self – Where the mother poses an unacceptable risk of harm to the children via her implacable beliefs and associated evidence collecting conduct – Where the father seeks a change of residence but does not have a clear plan for how the children will be supported through such a monumental change – Where the father made a late proposal for a period of supervised time in concert with therapeutic scaffolding to support the children seeing him – Orders made consistent with father’s late proposal
FAMILY LAW – STATUTORY INTERPRETATION – Whether Article 39 of the United Nations Convention on the Rights of the Child has any role to play in considering orders that promote a child’s safety, or deal with their welfare or development
FAMILY LAW – EVIDENCE – Where the paternal grandmother did not file an affidavit – Where she is accused of sexually abusing the children – Whether the ‘rule’ in Jones v Dunkel applies
FAMILY LAW – EVIDENCE – Where many particulars of allegations that fell from the mother in cross-examination were not put to the father – Whether the ‘rule’ in Browne & Dunn applies
Legislation: Evidence Act 1995 (Cth) s 128 and 140
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 64B, 65D(1), 65DAB, 65DAAA, 65LA(5A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)
Bar Association of Queensland, Barristers’ Conduct Rules r 41
Explanatory Memorandum, Family Law Amendment Bill 2023
United Nations Convention on the Rights of the Child Article 39
Cases cited: A v A (1998) FLC 92-800
Alam & Sayid [2021] FamCA 564
Bant & Clayton [2019] FamCAFC 198
Bielen & Kozma (2022) 66 Fam LR 59; [2022] FedCFamC1A 221
Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969
Blinko & Blinko [2015] FamCAFC 146
Browne & Dunn (1893) 6 R 67
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Guerra & Guerra [2021] FedCFamC1F 73
Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52
Hollister & Gosselin [2016] FamCA 759
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378; (1983) 53 LGRA 325
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1
Klein & Klein [2010] FamCAFC 150
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 36; [2011] HCA 11
L v T (1999) FLC 92-875; [1999] FamCA 1699
LC and TC (1998) FLC 92-803; [1998] FamCA 47
M & M (1988) 166 CLR 69; [1988] HCA 68
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Maluka & Maluka (2012) 47 Fam LR 272; [2012] FamCA 373
Merritt & Merritt [2018] FamCA 1107
Murdock & Madden [2011] FamCAFC 219
Quincey & Quincey [2024] FedCFamC1A 30
R & C [1993] FamCA 62
R v JAE (2021) 294 A Crim R 146; [2021] QCA 287
Re Andrew (1996) FLC 92-692
Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192; [2004] FamCA 768
Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275; [1989] FCA 439
TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361; [2014] FCAFC 83
Transport Industries Insurance Co. Ltd v Longmuir [1997] 1 VR 125
Wei & Xia (2024) 69 Fam LR 37; [2024] FedCFamC1A 65
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 442 Date of last submission/s: 11 April 2025 Date of hearing: 24-27 March, and 11 April 2025 Place: Brisbane Counsel for the Applicant: Mr C. O’Meara Solicitor for the Applicant: Family Law Solicitors Qld Counsel for the Respondent: Dr M. Sayers Solicitor for the Respondent: Best Wilson Buckley Family Law Counsel for the Independent Children's Lawyer: Mr E. Coker Solicitor for the Independent Children's Lawyer: Forest Glen Lawyers ORDERS
BRC 5460 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MOSS
Applicant
AND: MR MOSS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
31 JULY 2025
THE COURT ORDERS THAT:
1.All previous orders are discharged.
2.These orders apply to the mother and father, unless they agree otherwise in writing.
3.All communications between the mother and father, including any agreements to vary the orders in writing (but save for emergencies involving the children), is to occur by the communication order set out in Order 18.
Parental responsibility
4.Except as otherwise provided by these orders, the mother be allocated sole decision making responsibility for all major long-term issues for X born 2017 and Y born 2020 ("the children").
5.In the event the mother makes a decision in the exercise of her sole decision making responsibility, she will communicate that decision to the father as soon as practicable thereafter.
6.The children shall attend B School for their primary education.
Live with and therapeutic supports
7.The children live with the mother.
8.The children's time with the father in Order 15(a) depends on the engagement and retention aspect of Order 9 being complied with by him, or any new therapist provided for by Order 13.
9.The father will engage and retain Ms D, Y's psychologist, to provide therapeutic support for the children at the parents' equal expense if the children's funding packages cannot cover this.
10.The parents are to facilitate the children's attendance and their own attendance (if either parent is requested to attend) on Ms D at all times as recommended by Ms D, for a period of not more than 12 months.
11.The Independent Children's Lawyer ("ICL") is to provide a copy of the Reasons and these orders and the Family Reports filed in these proceedings to Ms D (Y's psychologist) and Dr E (X's psychologist).
12.The parents by this Order authorise Ms D and Dr E to engage with each other about the children and these orders and Reasons, and to engage with each parent.
13.In the event Ms D is no longer offering services to the children but therapeutic support for the children is still required under Order 10:
(a)The father will nominate three (3) alternate psychologists within seven (7) days of Ms D advising her services will cease and the mother will select one of those psychologists within seven (7) days thereafter, and if she does not, the father will nominate the psychologist;
(b)The father is to provide that new psychologist with the documents set out in Order 11;
(c)Should that new psychologist withdraw their services but therapy for the children is still required under Order 10, then order 13(a) and (b) apply to the selection of a further new psychologist; and
(d)Orders 9-10 and 12 will continue to apply to the parties and with respect to any new psychologist/s.
14.Nothing in this order prohibits the mother from continuing to take X to the psychologist Dr E.
Time arrangements
15.The children spend time with the father as follows:
(a)Time supervised at the F Contact Centre for a minimum of two (2) hours each week, or such other consecutive hours that can be provided for 12 calendar months at the father's expense;
(b)At the conclusion of the time in Order 15(a), and for a further period of 12 months, for one block of six (6) hours, unsupervised, on alternative weekends with all changeovers to occur at the F Contact Centre at the father's expense and with the mother to communicate to the father on the Monday at the start of each time-with week whether the time will be on a Saturday or Sunday; and
(c)Upon the completion of time in Order 15(b), on alternate weekends from 9.00am Saturday until 5.00pm Sunday (during school terms and school holidays) with all changeovers to occur at the F Contact Centre at the father's expense.
16.The parents will take all steps necessary and sign all documents to engage with the F Contact Centre.
17.In the event the F Contact Centre withdraws its services:
(a)The father will nominate three (3) alternate supervised contact providers within seven (7) days of the F Contact Centre notifying the parents of its withdrawal;
(b)The mother will select one of those providers within seven (7) days thereafter;
(c)If she does not, the father will nominate the supervised contact provider; and
(d)Orders 15(a) and (b) and 16 apply to the parents with respect to that new service provider.
Communication between the parents
18.Save for an emergency involving either child, the parents shall communicate with each other about the children via a parenting application chosen by the mother and communicated to the father (via their legal representatives) within seven (7) days of this Order.
19.The parents shall keep one another advised of their current residential addresses and contact telephone and email details.
20.Using the parenting application, the parents shall keep each other advised of any medical or health care matters affecting the children in a timely manner and provide any reports to the other parent, save the mother is at liberty to redact identifying features of the practitioners.
Authorities and information sharing
21.The parties are at liberty to provide a copy of these orders to any school or day care provider used by the children, and the mother is at liberty to do same with respect to any medical practitioner or allied health care professional relevant to the children.
22.The parents by this Order authorise any school or day care provider attended by the children to provide all documents and information concerning the children which a parent would ordinarily receive to each parent, at the requesting party's expense, if any.
23.Within 14 days of the date of these orders, the ICL is to provide the Queensland Police Service and the Department of Families, Seniors, Disability Services and Child Safety (Queensland) with a copy of these orders and Reasons and the Family Reports prepared by Ms G on 8 December 2023 and 17 March 2025.
24.Within 14 days of the date of these orders, the ICL is to provide the children's General Practitioner with a copy of these orders and Reasons and the Family Reports prepared by Ms G on 8 December 2023 and 17 March 2025, but is not required to copy the parties into that correspondence, but is to confirm she has done so.
25.The mother is at liberty to provide a copy of these orders and Reasons to her counsellor.
Discharge of the ICL
26.Upon Orders 11, 23 and 24 being satisfied, the ICL is discharged.
AND THE COURT NOTES THAT:
A.Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in "Parenting Orders - obligations, consequences and who can help" and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Moss & Moss has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J
The children in this matter are X aged 7 years old, born 2017 and Y aged 5 years old, born 2020 (“the children”). X is in Grade 2 and Y is in Prep at AA School.
It is the implacable belief of the mother and her parents that the father and his mother have committed horrendous acts of abuse upon the children, including digital and penile, vaginal and anal rape. The father denies all such allegations.
There is no good outcome for the children arising out of this parental dispute. Indeed, depending on the findings made, these are the possible outcomes for the children:
·the father and his mother have committed horrific acts of sexual abuse on both children; or
·even if the court cannot make positive findings of abuse, if the children live with the mother and have exposure to no other alternative narrative, they will continue to believe, and will grow up believing, they have been sexually abused; or
·the children be separated from their primary caregiver, the mother, and live with the father, who is an untested residential parent with little by way of a concrete plan for immediate therapeutic support and scaffolding for the children on a change of residence - a father whom they have not seen for more than two and a half years and prior to that, had no overnight time with him post separation; or
·the children spend some form of time with the father but remain living with the mother, and with the maternal grandparents very close by, all of whom harbour steadfast views about the alleged abuse.
For completely different reasons, which will be explored later, the applicant mother and Independent Children’s Lawyer (“ICL”) sought orders that the children live with the mother and spend no time with the father.
Whilst the mother's Counsel appropriately set out his client's position that “the disclosures are worthy of acceptance; that they are not the product of imagination or induced or inculpated memories”, he acknowledged the many deficiencies in the mother’s allegations and those of her parents, submitting:
It's clear there have been inconsistencies.
…
Some allegations would cause people to look at them with circumspection.
…
The allegation in relation to the grandma and the suckling [i.e. [Y] drinking ‘grannie’s milk’]. It's capable of some benign construction rather than sexual.
…
The tickling of the bottom or the nail on the bottom, it could be worms, it could be any sort of inspection.
…
[[Y’s] drawing said to depict the father’s erect penis is a] cylinder, which appears to have a variety of lines drawn across it. Which do not, at first blush, necessarily represent a penis. ... There are two round balls. By saying that, I'm not suggesting they are testicles.
[That drawing depicts] a nose that is commonly associated, more often than not, with a cat. … honestly, these things are open to interpretation. … the acceptance of the allegations doesn't depend on the diagram [i.e. the picture].
…
Tummy finger [a phrase used by [Y] taken by the mother to mean the father’s erect penis] well, yes. It may be a penis. People have taken it that way. It's open to interpretation. It's not necessarily a strained interpretation, but it is not - but there is no evidence to put before your Honour that when the child said ‘tummy finger’, the child herself meant a penis.
The court acknowledges the mother’s Counsel’s appropriate submissions about the state of the evidence supporting the mother’s various allegations. They were submissions made in the finest traditions of the Bar, where counsel “must not act as the mere mouthpiece of the client or of the instructing solicitor and must exercise the forensic judgments called for during the case independently…”.[1]
[1] Rule 41, Bar Association of Queensland, Barristers’ Conduct Rules (as at 14 May 2025).
The mother’s submissions thus concentrated on her firm belief that the father has sexually abused the children and her belief that he will continue to do so if the children spend any time with him, even supervised. Her father, the maternal grandfather, expressed the view at trial that both girls had been digitally raped in either their anus and/or vagina at a contact centre whilst supervised.
The ICL submitted the mother’s allegations got “larger”, “more fantastical in terms of some of the elements” and “inconsistent” adding, “that inconsistency does not impact in any way on her belief”, which he described as her believing “absolutely and unequivocally that her children have been sexually abused by the father”. The ICL submitted the court could not make positive findings of abuse and would not conclude that the father posed an unacceptable risk of harm to the children. As will emerge in these reasons, there is much force in the ICL’s assessment of the allegations and the future looking risk assessment.
Nevertheless, the ICL submitted it was a lesser harm to the children to grow up believing they had been sexually abused by their father, than a change in residence or any time with the father. The ICL added any time with the father would likely be accompanied by further allegations being made by the mother (and her parents) due to their steadfast belief the children had been abused and would continue to be so.
The ICL’s submission that it was better for the children to grow up believing they had been sexually abused was said to be “an abhorrent conclusion, but yes” that was the least-worst outcome. The reasoning behind the ICL’s proposed outcome highlights the awful situation in which the children find themselves.
Unsurprisingly, the father adopted the ICL’s assessment of the allegations adding they were, “unrealistic”. Suffice to say, the father denies all allegations of abuse.
The father sought a change of residence, or the final orders dated 22 February 2022 remain in force,[2] or, in a fall back late in the trial, the children remain living with the mother and her beliefs, but be therapeutically supported to see that their father is not the monster the mother believes he is, along with some supervised time, then some day-time time and eventually alternate weekends from Saturday morning to Sunday afternoon.
[2] These orders provided for inter alia, that: the parties have equal shared parental responsibility; the children live with the mother; spend supervised time with the father eventually moving to unsupervised time; and, ultimately culminating in alternate weekends and half holidays with the father.
Background
The applicant mother was born in 1979. She described herself in her affidavit as creative person. She resides in the former matrimonial home at the maternal grandparents’ J Property and lives there in exchange for working and providing maintenance twenty hours a week. The maternal grandparents reside on the same property in a separate dwelling nearby the mother’s residence. Throughout the proceedings, the maternal grandparents were included in references to the “mother’s household”. This was not challenged. The mother and her parents are a united force and they regularly help with the day-to-day needs of the children.
The respondent father was born in 1983. The father lives with his parents in the same suburb as the mother but plans to move to a unit he owns when final orders are made. He works fulltime as a tradesman and said he could take three weeks off work if the children came to live with him, or maybe a bit longer. He deposed he was “seeing someone” but declined to give any information about her other than she is a health professional - he said he feared allegations from the mother against her because of her profession. Obviously, the children have no familiarity with his unit or his partner.
The parties commenced cohabitation on or about mid-2011 and married in late 2012.
X was born in 2017 and the father started to have unwanted penile erections in her presence shortly thereafter. The mother and father worked together to try and determine the cause and to trial measures to stop them happening. This included speaking to his General Practitioner (“GP”) and attending couples counselling.
The Department of Families, Seniors, Disability Services and Child Safety (“the department”) became involved and asked the father to leave the home in November 2019. He did so under a Voluntary Safety Plan[3] and Intervention with Parental Agreement. No one suggested his voluntary actions were an acceptance by him of the allegations. The department was apparently concerned about the unwanted erections and allegations of family violence. The father engaged in counselling to deal with the unwanted erections and denied the family violence. He hoped the family would be able to reunify. That did not eventuate.
[3] Exhibit 2, e p.34-37.
Y was born in 2020, being after the father voluntarily left the home.
The children have not spent any unsupervised time with the father since he left the home in November 2019.
It is unclear when the parties finally separated. The father said 12 December 2019. The mother provided no date of separation in her trial affidavit but did refer to April 2020 in cross-examination.
The mother commenced what became the first round of litigation on 13 May 2020.
On 22 June 2020, interim court orders were made for the children’s time with the father to be supervised at a contact centre.
In mid-2020, X undertook a s 93A interview with the Queensland Police Service (“the police”). That will be discussed later in these Reasons, but in short, nothing came of it.
In August 2020, the department closed their file on the basis that inter alia, the father not have unsupervised time with the children and the matter is before the “Family Law Court”.[4]
[4] Exhibit 2, e p.66.
In October 2020, the mother’s application for a Family Violence Order was dismissed.
The father’s parents sought leave to intervene in the first round of proceedings but eventually discontinued their application. They filed affidavits in support of their son for trial.
In the first round of litigation, the mother ultimately sought no time, or, long term supervision orders. That first round of litigation culminated in final consent orders dated 22 February 2022, being day 2 of trial. Those consent orders provided for the parties to have equal shared parental responsibility (as it was then) and for the children to live with the mother. The children were to spend time with the father supervised by nominated friends for a period of three months, before supervision moved to the paternal grandparents. Supervised time with the father was to continue until Term 1, 2024 when unsupervised time would begin. The orders ultimately landed on the children spending alternate weekends with the father and half holidays.
During cross-examination, the mother said that she signed the 2022 consent orders under duress, with the threat that if she did not sign the consent orders, she would never see her children again. She also said her Silk swore at her. They are serious allegations, but much water has since passed under the bridge and findings about this are not necessary.
It appears that the consent orders were complied with between the time of their making on 22 February 2022 to 21 January 2023, save for a period between perhaps March to 20 May 2022[5] when the nominated friends who were supervising withdrew their services due to their own daughter’s medical needs and that X “refuses to listen to us”.[6]
[5] Mother’s affidavit filed 10 February 2025 at paragraphs 23-32.
[6] Exhibit 2, e p.39.
The children last saw the father on 21 January 2023.
This was after an alleged incident on 21 January 2023, which is central to the mother’s case. In short, the mother was of the view the father had anally raped Y via digital penetration when he had supervised time with the children on that day. However, later in 2023, she came to the view Y was anally raped via penile penetration by the father. Y had just turned three.
According to the father (and with no demur from the mother), the 2022 final consent orders provided for the children’s time with the father to progress to supervised overnight time just two days later on 23 January 2023.
The mother filed these proceedings on 9 February 2023.
In early 2023, the police applied to the City H Magistrates Court to augment a Police Protection Notice and sought to name the children. That application was heard a short time later and was summarily dismissed.
The parties divorced in early 2023.
Material Relied Upon
The applicant mother relied upon the following material:
·Amended Application for Final Orders filed 21 February 2023;
·Mother’s affidavit filed 10 February 2025;
·Affidavit of Ms K, the maternal grandmother, filed 10 February 2025;
·Affidavit of Mr BB, the maternal grandfather, filed 10 February 2025;
·Affidavit of Dr L, a communications professional, filed 10 February 2025; and
·Affidavit of Dr L filed by leave on 24 March 2025.
All witnesses were required for cross-examination except for Dr L, a communications professional advocating for the mother that the children had been abused. Her affidavits were commentary about conversations she had had with the mother and other individuals. Dr L also included complaints she had made in relation to four treating medical professionals about whom the mother had raised concerns. Exhibit 3 is the annexures to her first affidavit and includes an email (with no date on the actual email) to the investigating police officer where she asked about the progress of the investigation into “the alleged sexual assault” of Y, and let the officer know she has been in contact with the Police Commissioner about the matter. She also asked for police documents “in order to prepare the Family Court documents ...”. She ended the email that if the mother did not get the documents she will “escalate” her request.
The annexures also contain an incomplete transcript of a phone call with a Child Safety Officer, an online article about Ego-dystonic sexual orientation, and a letter regarding the outcome of one of her complaints. Dr L was not required for cross-examination upon the mother making the following appropriate concessions: [7]
B. The applicant mother concedes that with respect to the two affidavits of [Dr L], that there have been no communications between [Dr L] and the respondent father.
C. The applicant mother also concedes that there have been no direct disclosures by the children to [Dr L] in respect of anything relevant to the sexual abuse allegations in this matter.
[7] Notations contained in orders of 24 March 2025.
The communications professional’s running commentary, advocacy and views about the allegations do not advance the court’s fact finding process. It is of no surprise she was not cross-examined - opinion and commentary rubbed together do not make a fact.
The respondent father relied upon the following material:
·Response to Final Orders filed 10 February 2025; and
·Father’s affidavit filed 10 February 2025.
The father was cross-examined. Despite egregious allegations being made by the mother and her parents against the paternal grandmother, neither she nor the paternal grandfather filed affidavits, although they participated in the first Family Report and the paternal grandmother had previously spoken with the police. On the evidence before me, she has not been formally interviewed by police and no charges have been preferred.
The “rule” in Jones v Dunkel[8]
[8] (1959) 101 CLR 298 (“Jones v Dunkel”).
The mother submitted that the paternal grandparents’ failure to respond gave rise to an inference that they were not called because it would not have assisted the father’s case. In other words, she relied upon the “rule” in Jones v Dunkel, which may be formulated in the following terms set out in Kuhl v Zurich Financial Services Australia Ltd:[9]
The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn…
…
The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.
[9] (2011) 243 CLR 361 at [63]–[64], footnotes omitted.
The father submitted an adverse inference under Jones v Dunkel did not automatically arise because of a dearth of evidence. The ICL sought no adverse inference be drawn from the father’s failure to call his parents, “but it’s the vacuum that is significant. It’s the lack of evidence, not any adverse inference to be drawn from it”.
In Alam & Sayid,[10] Harper J provided a most useful summary of the jurisprudence relating to the “the rule” in Jones v Dunkel, commencing with Blatch v Archer in 1774.[11] Quite rightly, Harper J observed at [181] that many of the steps along the evolutionary jurisprudence on “the rule” were civil and often commercial proceedings, adding, "[t]hese authorities are not obviously applicable in parenting litigation to which the provisions of Division 12A apply”.
[10] [2021] FamCA 564 (“Alam”).
[11] (1774) 1 Cowp 63 at 65.
Relevantly, Harper J recited that in TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd,[12] the Full Court of the Federal Court referred to the statement of principle by Pincus J in Schindler Lifts Australia Pty Ltd v Debelak[13] saying:
As Pincus J said in Schindler at ALR 319; IPR 173, the evidence brought by someone with an onus may be so inadequate in its totality, when the whole context is examined, that there can be said to be no rational foundation for any proper estimate. In other cases, the court is required to make its best estimate on the materials provided. The proper approach will, in any given case, be an evaluative one influenced by such considerations as the nature of the question, including its amenability to precise proof or assessment, the availability and control of evidence, and the onus of proof. Considerations such as the assessment of evidence according to the power of the party to adduce it will be important to such an evaluation: compare Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970; Cullen v Welsbach Light Company of Australasia Ltd (1907) 4 CLR 990 at 1013-1014; Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371-2… Parker v Paton (1941) 41 SR (NSW) 237 at 243; Ex parte Ferguson; Re Alexander (1944) 45 SR (NSW) 64 at 67; Vetter v Lake Macquarie City Council (2001) 202 CLR 439… at [36].
[12] (2014) 232 FCR 361.
[13] (1989) 89 ALR 275.
Harper J also reminded that Keane J said in Henderson v Queensland at [91]:[14]
Another such principle, "reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct", is that "a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct". The reluctance of a court to infer fraudulent or criminal conduct is ordinarily somewhat stronger in respect of a person who is not a party to litigation and who is for that reason denied an opportunity to explain and justify his or her conduct as consistent with the conventional perception.
(Footnotes omitted)
[14] (2014) 255 CLR 1.
Appositely, Harper J also said this at [180], which I respectfully endorse:
However, it is important to remember these are parenting proceedings. While not denying the possibility of its application, the Full Court has said there are reasons to be circumspect about the application of the rule in Jones v Dunkel in parenting matters. Murdock & Madden [2011] FamCAFC 219 ("Murdock & Madden") was a case in which a mother sought adverse inferences to be drawn from the father's failure to call the paternal grandfather. At [68] - [71], the Full Court said the following:
[68]… it is, we think, necessary to point out that, even in circumstances where the pre-conditions to the application of the rule [in Jones v Dunkel] are made out, a court is not compelled to draw an adverse inference. Nor can it be presumed “that the uncalled evidence would have been damaging” (LexisNexis Butterworths, Cross on Evidence, vol 1 (at Service 129) [1215], citing HML v R (2008) 235 CLR 334; Brandi v Mingot (1976) 12 ALR 551 at 559-560).
[69] But, there are pre-conditions to the application of the rule. No inference should be drawn unless and until “enough has been proved to warrant a reasonable and just conclusion” against the person not giving evidence. Moreover, it is only where “the nature of the case is such as to admit of explanation or contradiction” that the inference can sought to be drawn. (Jones v Dunkel per Windeyer J at 321 citing R v Burdett [1814-23] All ER 80).
[70] The satisfaction of each of those preconditions might be seen to be more difficult in a court without pleadings and in parenting cases where the issues are more forensically diffuse. Moreover, Division 12A of the Act and, in particular for example, the duties contained in s 69ZX might (and arguably should) more readily admit of more circumspection on the part of practitioners and parties as to the evidence that should properly be called in a parenting case.… The desirability of there being evidence before the Court does not found an inference arising from the application of the rule; it is the forensic need to answer, explain or contradict that founds its potential application.
[71] As we have explained, the scope for the operation of the rule in Jones v Dunkel in parenting proceedings appears limited, and recourse to it potentially unhelpful...
Thus, I will consider what the mother alleges about the paternal grandmother later in these reasons. Afterall, the mother holds the onus of proof, and I reiterate what was said in Murdock & Madden:[15] “No inference should be drawn unless and until ‘enough has been proved to warrant a reasonable and just conclusion’ against the person not giving evidence.”
[15] [2011] FamCAFC 219.
Still with “rules” of evidence – the “rule” in Browne & Dunn[16]
[16] (1893) 6 R 67 (“Browne & Dunn”).
I pause to observe Counsel for the father raised the “Potential applicability of the Rule in Browne v Dunn” in his written schema handed up in support of his oral submissions. That rule was comprehensively examined by McMurdo JA in R v JAE:[17]
The rule in Browne v Dunn is a general rule of practice by which a cross-examiner should put to an opponent’s witness matters that are inconsistent with what that witness says and which are intended to be asserted in due course.
[17] (2021) 294 A Crim R 146.
The genesis of the father’s submission was that the mother was asked many questions to the effect of, “that's not in your affidavit, is it”. Here I am referring to allegations that post-date the 2022 final consent orders which were not in the mother's affidavit and fell from her when being challenged in cross-examination. It was then said that many of the mother's allegations were not put in detail to the father and thus the rule may have application.
It is true that many of the mother’s allegations (especially ones coming out in cross-examination) were not put to the father. However, the father was clear in his affidavit that the mother's allegations had grown in potency from separation to the time of his 2025 trial affidavit. They grew and grew in the witness box too – that could not have taken him by surprise. I do not consider the failure to “put” to the father the mother's many allegations that fell from her in the witness box, means this court is unable to reject the evidence of the father.[18] For a start, from the father’s perspective the mother’s growing allegations in cross-examination was entirely consistent with the case he ran about her - she would say anything to stop the children having time with him. It is also the case that in his affidavit, the father denied any and all allegations of abuse by him and his mother.[19]
[18] Quincey & Quincey [2024] FedCFamC1A 30.
[19] Father’s affidavit filed 10 February 2025 at paragraphs 95 and 107-108.
To that end, in LC and TC,[20] the Full Court said at [38]:
In any event, it must be said that the rule in Browne v Dunn does not apply where the witness is on notice that the witness's version of events is in contest. That notice may come from the pleadings or the other side's evidence or the other side's opening; it may even come from the general manner in which the case is conducted. In general, however, this exception to the rule should only operate where the issue is a fairly clear and obvious one (see Seymour v Australian Broadcasting Commission 19 NSW LR 219 at 224-5 per Glass JA, Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 238; (1984) 3 FCR 168 at 181, Jagelman v FCT (1994) 31 ATR 467 at 472-3, and Raben Footwear Pty Ltd v Polygram Records Inc [1997] FCA 370; 145 ALR 1 at 15).
[20] (1998) FLC 92-803.
The failure to put the mother’s allegations to the father has little, if any, bearing in this matter, where he was well alert to the mother’s growing allegations – indeed, that is part of his case for a change of residence.
Back to the material
The ICL relied upon the following Family Reports:
·Affidavit of Ms G filed 13 December 2023; and
·Affidavit of Ms G filed 18 March 2025.
Each party filed a Case Outline, and the father handed up what was called an “Addendum” in submissions setting out a fallback proposal for the children to have supervised time with him along with therapeutic scaffolding.
As required by r 8.15(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), annexures to the affidavits became exhibits. In all, the parties tendered 23 exhibits. In various footnote references, the citation uses ‘e pg.’ for the electronic page number, which is easier to locate electronically, than some of the oddly paginated or unpaginated exhibits in hard copy.
One of the mother’s annexures was sealed by the court for reasons agreed to by all parties. That annexure and some of the mother’s evidence led to her being granted a s 128 Evidence Act 1995 (Cth) (“Evidence Act”) certificate.
Exhibit 22 is a bundle of documents the mother insisted on tendering. Many of the documents, especially with respect to the January 2023 allegation and investigations were already in evidence. The provenance of other documents is unknown, e.g. page 14 is a narrative of unknown source/s, and unknown date and authorship - it could be the department or it could be the police. It is also not clear what I am meant to make of the mother’s incomplete statement for a Police Protection Notice dated February 2023, when she said it was dismissed. Then, the department’s response to the court’s short form request for information is no more than an unsworn summary of the department’s involvement with the family; pages 24-64 are so heavily redacted as to be useless.
LEGAL PRINCIPLES
Given the gravity of the matters alleged by the mother, it is useful to set out s 140 of the Evidence Act:
140 Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon,[21] Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
[21] (2003) 200 ALR 447 at [62] (“Whisprun”).
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd,[22] Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
[22] [1983] 3 NSWLR 378 at 385–386.
BEST INTERESTS
Section 60CG of the Family Law Act 1975 (Cth) (“the Act”) 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.
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper (subject to s 65DAB of the Act, which is irrelevant in this matter). A “parenting order” is defined in s 64B of the Act.
Section 60B of the Act sets out the objects of Part VII of the Act, and that is:
The objects of this Part are:
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA of the Act provides that the child's best interests are a paramount consideration in making a parenting order. Section 60CC of the Act addresses those best interests and provides:
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
The provisions in s 60CC(4) do not apply here. As for s 60CC(1)(b) and (3), the children are not Aboriginal or Torres Strait Islander children. I now turn to the s 60CC(2) considerations.
Best interests in this matter
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child).
Abuse is defined in s 4 of the Act and family violence in s 4AB of the Act.
Section s 60CC(2)(a) is informed by subsection (2A) which provides:
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
The father’s Counsel usefully set out the following in his “written schema” being akin to a road map for his oral submissions. No one cavilled with the contention that these were the matters that needed to be addressed:
(1) Evidentiary threshold per s140 Evidence Act 1995 and-
(a)Positive finding that the father has sexually abused either child
(b)Positive finding that the father has not sexually abused either child
(c)Findings re Father as unacceptable risk/no finding of unacceptable risk
(d)Positive finding that emotional abuse of children has (unintentionally?) occurred in Mother’s household
(e)Findings re Mother (and/or Mother’s household) as unacceptable risk of emotional abuse of children
(case citations omitted and emphasis in the original)
I have already referred to s 140 of the Evidence Act, and further observe that that section guides my findings of fact with respect to past events. However, the future looking exercise of assessing risk is not governed by s 140 of the Evidence Act. I will now address the balance of issues in turn.
The allegations of abuse
This sub-heading canvasses Items 1(a) and (b) of the father’s written schema.
It is well settled that a positive finding of abuse or family violence should not be made unless the court is satisfied on the balance of probabilities, as set out in s 140(2) of the Evidence Act. Further, proof to the satisfaction of the court “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[23]
[23] M & M (1988) 166 CLR 69 at [77] (“M & M”).
As a preliminary issue, I respectfully endorse what Carew J said in Merritt & Merritt at [42]:[24]
Like all cases involving allegations of sexual abuse it must be acknowledged at the outset that sexual abuse of a child is a heinous crime. The breach of trust between a parent and a child in such circumstances is particularly abhorrent. The fact that a child and a parent seem to have a loving relationship does not necessarily rule out that abuse has occurred. The fact that an allegation is made by a parent in circumstances of conflict does not necessarily mean it should be dismissed. The fact that there is no medical evidence to substantiate the abuse does not necessarily mean it did not occur. Cases involving very young children are even more difficult because invariably adults hear something which they interpret to mean something and then they seek to clarify their interpretation which may or may not represent actual events. The consequences of making the wrong decision are particularly grave i.e. a child could be placed in the hands of a sexual abuser or alternatively a child could grow up wrongly believing a parent whom they loved and trusted has sexually abused them and lose that parent forever.
[24] 2018 FamCA 1107.
I will now deal with the mother’s allegations and those of her family.
Some context to the mother’s allegations
Whilst the mother and her parents deposed to many instances of what the children told them, rarely do they say what they did or said in reply. For example, did they divert the conversation, or did they confirm, validate, console and reinforce what the children said? How they responded is unhelpfully unknown on many occasions. The mother said she never talked about what the children said to them, but she did not often depose to how she responded to their statements or questions.
The father’s Counsel described the mother’s belief trajectory with respect to her sexual abuse allegations:
That the mother’s concerns about the potential risk the father posed to the children prior to separation in 2019 is rational. Not only is it rational but because it’s a matter of agreed fact in large measure – not entirely but in large measure – it has got an objective foundation …
…
But it has to be conceded on my client’s case that the pre-separation history of the unwanted erections, and what the girls may or might not have seen, gives a rational and objective foundation for the mother to have fears as at December 2019. The challenge for the mother is now, some six years later almost – five and a half to six years later – is to make sense of not just whether pursuant to the onus of proof under s 140, the particular actions that she has now identified in cross-examination occurred, but also the continuing rational and genuine nature of her beliefs, because, in my submission, as the time has passed and as the allegations have, first of all, become more unrealistic, such as the two particular examples – the sucking on the breasts of the paternal grandmother, and, as I understand it, the cunnilingus performed by the paternal grandmother on one of the girls.
I accept the father’s unwanted erections prior to separation would have been confronting for the mother (and father), and I accept the father’s submission that those unwanted erections gave the mother a basis for fear about sexual impropriety pre-separation. The mother agreed the only time she was aware the children might have seen their father’s erect penis was when his erection was “flapping out the side” of his boxers, to use the mother’s phrase, and X was learning to walk, “[a]nd she was crawling all over him and grabbing his penis like a handle accidently.” The mother agreed that at the time, the children would not know what an erect penis was, and were likely too young to recall it. I accept that as a matter of commonsense.
I also conclude that those unwanted erections have become the prism through which the mother views the father – a sexual predator who has raped both children.
Approach to allegations
I have grouped the mother’s allegations in a thematic and largely chronological way. However, it has long been settled that a judge’s reasons are not required to mention every allegation relied upon by parties.[25]
[25] Whisprun at [62].
It is also not necessary to “atomise”[26] or analyse every fact or circumstance and determine if it supports a conclusion of, relevantly, sexual abuse and/or an unacceptable risk of harm. As was said in Guerra & Guerra[27] at [94]:
It is critical in cases such as the present to have regard to the combined weight of all the relevant facts and circumstances. As Winneke P observed in Transport Industries Insurance Co. Ltd v Longmuir [1997] 1 VR 125 (“Longmuir”) at 128:
In cases of circumstantial evidence each proven fact may gain support from the others and, although each, considered in isolation, might not provide a sound basis for inferring the ultimate fact to be proved, a combination of all facts might provide a compelling basis from which to draw that inference.
The evidence must be evaluated as a united whole in order to evaluate whether the party bearing the onus of proof (here, the father) has established what is ultimately sought to be proved (that the mother presents an unacceptable risks of harm to the child). As Tadgell JA emphasised in Longmuir (at 141):
A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details: cf. Hall (Inspector of Taxes) v. Lorrimer [1992] 1 W.L.R 939 at 944; Shepherd v. R. (1990) 170 C.L.R 573 at 579-80.
[26] Bant & Clayton [2019] FamCAFC 198 at [51] (“Bant”).
[27] [2021] FedCFamC1F 73 (“Guerra”).
I now turn to the allegations. Even though Counsel for the father submitted without demur from the other two Counsel that “it seems to be ad idem across the three counsel – no capacity for positive finding of sexual abuse” it is still necessary to go through the mother’s allegations because:
(a)It will become clear when the allegations are considered as a whole that Counsels’ shared position that no positive findings of abuse can be made is well founded;
(b)The analysis assists in assessing the likelihood or chance that the father nevertheless poses an unacceptable risk of harm to the children;
(c)It gives a perspective on the mother’s beliefs and whether genuine;
(d)It assists in the assessment of whether the mother has visited emotional harm upon the children via her beliefs; and
(e)It assists in assessing whether she poses an unacceptable risk of harm to the children looking forward.
General and vague allegations
The mother deposed in a general way that prior to the father leaving the home, X complained of “painful genitals”, and her vagina “was observed at times, by me and by my mother, to be stretched and red and swollen”. It is not clear what the mother is alleging (if she is) the father had done to cause this. It is also not clear why the child would use the phrase “painful genitals” in 2019 when the mother’s evidence was X used the words, “wee wee” and “bum bum” up to 2021. Perhaps the mother was paraphrasing what the child actually said, but that does not help understand what is being alleged.
She said similarly about Y after time at the contact centre:[28]
… [Y] has sometimes returned from contact time with her father complaining of painful genitals and her genitals have been observed to be red and swollen. [Y] previously loved baths but has after visits had refused to get in the bath.
[28] Mother’s affidavit filed 10 February 2025 at paragraph 33.
Again, it is not clear what she is alleging the father did to cause the same genital appearances in Y post-separation, as X pre-separation.
Many things alleged by the mother are vague without much context or temporality, and permit of non-sinister reasons why the children’s genitals were as the mother alleged she had observed.
“Hurt”
The mother and her parents depose that the children have long and frequently said words to the effect that “Daddy hurts us” and “why does daddy hurt us?”
It seems that when either of the children say “daddy hurt us” or the like, the word “hurt” is taken by adults involved in the matter, to mean hurt by sexual abuse. “Hurt” however can be caused in many ways - intentionally inflicted physical pain, hurt feelings, accidental injury, emotional pain, or illness.
Here, the few times where some specificity is given by the children to the concept of hurt, there is a physical aspect to the word. For example, on 26 July 2023 Y told her psychologist:[29]
When [Y] joined parent and clinician, she selected the book she wanted to read. -When I feel sad” During the story [Y] continued to elaborate on how “daddy hurt me”. [Y] expressed that “Daddy rolls her around on the floor and will sit on her back”.
[29] Exhibit 21, p.2.
Similarly, in a session on 2 August 2023, Y told her psychologist:[30]
…[Y] consistently reporting that her Daddy hurst [sic] her. When questioned further, [Y] report[s] that he” rolls me around on the floor” he “sits on my back”, “He makes me angry and he makes me sad”. There was no further disclosures.
[30] Exhibit 21, p.3.
Respectfully, it is not clear how Y’s description just given amounts to a “disclosure”.
With similar physical attributes, a sports coach had emailed Y’s psychologist and said:[31]
I asked [Y] what was wrong & did someone hurt you? Her response was Daddy hurt me but Grandma helped me to feel better. On different occasions [Y] has mentioned Dad left a mark on my left & it hurts.
[31] Exhibit 21, p.4.
Each of these three examples have a physical, not sexual, quality to them. It is hard to see how hurt by rough play as these examples tend to, can support an inference of hurt by sexual or physical abuse.
Many other apparent allegations of “hurt” in the maternal grandparents’ and mother’s affidavits are vague and general and it is again hard to see how “Daddy hurt me” amounts to the consequences of sexual and/or physical abuse.
The mother herself accepted as much – at one point in cross-examination she said Y was making daily disclosures that “Daddy hurt me” from December 2023 to January 2025. When asked why that was not in her affidavit, she hit the nail on the head with her reply, “it’s not specific enough”.
Similarly, whilst the mother (and others) construed “daddy hurt us” as sinister, she would no doubt deny she did anything sinister to X who said this in her s 93A interview in mid-2020 in response to leading questions:[32]
PO [X] do you know why mummy’s brought you to talk to me today to me, why you’ve come to talk to me
[X] Why I come to talk to you (indistinguishable) (lights)
PO Munny told me that Daddy hurt you, has daddy ever hurt you?
[X] No mummy hurts me
(Emphasis in original)
[32] Exhibit 18, p.2.
This example adds to the inability to infer very much at all in an adverse sense from the children’s use of the word hurt, but will be considered later when assessing the totality of the evidence about alleged abuse.
X’s s 93A interview
In mid-2020, X undertook a s 93A interview,[33] the context for which seems to be the father’s unwanted erections and X’s apparent “painful genitals”. The child was interviewed by a male police officer and in the mother’s absence. She was asked many leading questions.
[33] Exhibits 7 and 18.
It is clear the mother puts great store on the children’s literal words when it comes to the father; take for example the word “hurt” examined just above. She does not do the same when, for example, the very first thing of any vague substance said by X in the s 93A interview was in a response to a leading question invoking the authority of the mother that “mummy told me that daddy hurt you, has daddy every hurt you?” X shook her head in the negative and responded, “no mummy hurts me”.
The child then went on to respond that “mummy hurts me with daddy” and “daddy hurts me”. She juxtaposed daddy hurting with something to do with a bobcat. When prompted again about how daddy hurt her, she replied “um something made me sad, mummy make me sad or daddy make me sad”; this was said with a smile on her face.
The child was also asked the following specific questions and replied:[34]
[34] Exhibit 18, p.3.
PO Ok tell me has daddy ever hurt you with his mouth
[X] No he (indistinguishable) sing me a song
PO Oh Ok
PO You know daddy’s mouth has he ever hurt you with his mouth
[X] No he has teeth
PO So has he ever bitten you some anywhere on your body with his mouth
[X] No he sing me a song with my mouth
PO Oh OK
[X] and my (indistinguishable) out
PO Do you feel safe when you see daddy
[X] I feel safe when I go on the road
PO On the road OK
[X] When people go on the road
PO Yeah
X was also specifically asked if “daddy ever hurt you on your private part”, to which she replied, being hurt on her tummy and zipper. She was again asked, “has daddy ever hurt you on your private part where you do a wee”, to which she replied, “No”.
The police took no action arising out of this. There is nothing in the child’s presentation or words that supports any notion that X was uncomfortable with the police officer or loath to talk.
A report about X of August 2021[35]
[35] Exhibit 2, e p.103-117.
X’s psychologist, Dr E, provided a report for the mother’s “legal team” dated 19 August 2021. She was not a witness in the mother’s case. The GP’s referral diagnosis to her was stated as “Anxiety Disorder and Post Traumatic Stress Disorder”, the basis for this is however unknown.[36] The psychologist noted X scored within the clinical range of the autism scale but thought the GP’s diagnosis was a better interpretation “due to her trauma and anxiety background”. The “trauma” is not particularised.[37]
[36] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (“Makita”).
[37] Again, see Makita.
The report observed the child brought in pictures she had made at home of herself and daddy, and herself and Granny, with that picture having a breast for Granny. For one picture, she said “this is me before I touched daddy’s penis” but also said the drawing identified that she was “touching dads penis”.[38] There is no context for this to assess whether this is a picture of things actually done or imagined, nor whether any touching (if actual) was sinister or, say, accidental (as the mother herself identified accidental touching with respect to the unwanted erections). Noting the father has not had any unsupervised time since he left the home in November 2019, it is also difficult to locate this in any kind of time frame or location.
[38] Exhibit 2, e p.110.
The report went on to record that a picture of X’s showed “‘This is her nipples and her vagina, and I have seen them when daddy was hurting me’. When asked when she was being hurt [X] was unable to respond”.[39] The child also spoke about “Daddy” not being a safe person and “he is hurt me”. I have already referred to the evidential difficulty of taking the word hurt and inferring that means sexual or other abuse.
[39] Exhibit 2, e p.110-111.
In another session X was asked how she felt when with daddy. She replied, “scared and safe”. Dr E asked her to explain that, and X said the same again. It is hard to reconcile those two. It is also hard to make sense of what is attributed to X, with the phrase “I am going to live with daddy as I didn’t do a good job”.[40] This was not explored with either parent, but predates the February 2022 final consent orders.
[40] Exhibit 2, e p.111.
Quite appropriately, Dr E acknowledged X did not specifically set out how she had been hurt or when this occurred. In another session, X said to Dr E, “Daddy will hurt you and I don’t want to hurt you”.[41] When asked to explain no further details were provided.
[41] Exhibit 2, e p.111.
Mother’s November and December 2021 concerns about Y being sexually abused
On 29 November 2021,[42] the mother took Y to the GP and told the GP (seemingly in Y’s presence), that she thought the father was sexually assaulting Y and she noticed a bruise on the child’s external genitalia on 12 November 2021. The mother told the GP that Y said showers caused pain. The mother told the GP that the father should not change Y’s nappies, but X said he did when they spent time at a community centre.
[42] Exhibit 22, p.66-67.
The mother said she reported this to the department who told her to document it.
Without much by way of explanation, the mother said she could not get to the doctor earlier when she said she first saw the bruise - despite her concerns of sexual abuse. The doctor examined the child and recorded, “normal external generalia [sic], nil bruise or rash noted.”
The next day, on 30 November 2021,[43] the mother and Y again attended upon the GP with the mother saying the child’s external genitalia appeared “erythematous” i.e. red, after they returned home from a community centre and the child had spent supervised time with the father. The mother said she thought Y was “unsafe/assaulted” notwithstanding supervised time. There could be many reasons for a small, nappy-wearing child having red external genitalia.
[43] Exhibit 12 and Exhibit 22, p.66-67.
The mother had taken a picture of the child’s external genitalia showing “mild erythema around the genitals”. On review the doctor recorded “nil sig erythema noted. Nil tears or obvious injuries. Pt not distressed”. The doctor told the mother to take it up with her lawyers and would raise a child safety report “given her concerns”.
The doctor mentioned discussing the case with the GP practice supervisor, but the mother said no because the supervisor “[Dr M] is her ex-husband’s GP and may warn her ex-husband”.[44]
[44] Exhibit 12 and Exhibit 22, p.67.
Quite apart from impugning the supervisor’s professionalism, the mother is, at least from this time in November 2021, aware Dr M is a supervisor in the practice.
At a consultation on 20 December 2021,[45] the mother told the GP, “nil other concerning episodes” for Y. She did not depose to this, but this predates the 22 February 2022 final consent orders.
[45] Exhibit 12 and 22 p.67.
Physical abuse allegation
On 12 June 2022, the mother deposed X said:[46]
Daddy squeezed my arm really hard and I tried to call granny and pa and daddy put his hand over my mouth and squeezed me really hard between his legs and it did hurt my tummy and my chest and I couldn't breathe and I was crying too much to talk.
[46] Mother’s affidavit filed 10 February 2025 at paragraph 53.
Assuming the child said this, it is hard to tell if this is a reference to physical abuse or rough play, and when (even approximately) and where is unknown.
A week later the mother deposed Y returned from supervised time with the father and said, “daddy did bit her on the chin and daddy did bite her on the foot”.[47] The mother annexed photos of Y,[48] but put on no medical evidence to opine about how the photos might be interpreted.
[47] Mother’s affidavit filed 10 February 2025 at paragraph 54.
[48] Exhibit 2, e p.43.
Then, on 30 October 2022, the mother deposed X said, “I was naughty for not picking up my toys and daddy squeezed me really hard between his legs ... it hurt my tummy and chest and I couldn't breathe.”[49] The mother said she asked her where Granny was, and X replied “Granny and [Y] went outside, and they couldn't hear me crying”. [50]
[49] Mother’s affidavit filed 10 February 2025 at paragraph 59.
[50] Mother’s affidavit filed 10 February 2025 at paragraph 59.
It is not clear if this is the same or different allegation as that of 12 June 2022 referred to above. It is also not clear if this is a reference to physical abuse or physical discipline, nor when this might have approximately occurred.
Then the mother told the Report Writer in her second Report that when X last saw her father:[51]
he ‘squeezed her really hard between her legs and she couldn’t breathe and she tried to yell out for granny but granny was inside and she couldn’t hear her and she couldn’t breathe and words wouldn’t come out of her mouth’. She notes this incident occurred in January 2023.
[51] Exhibit 6, e p.28 at paragraph 4.24.
This is not referred to in the first Family Report[52] nor in the mother’s trial affidavit. Again, it is not clear if this is a reference to physical abuse or rough play.
[52] Exhibit 5.
When asked about these squeezing allegations, it was suggested to the mother in cross-examination that (if they occurred) the father did not know he was hurting X. She replied, “He would’ve known he was hurting her. He was doing it on purpose”. How she could possibly know that is not clear. But it is one of many examples where the mother immediately jumped to sinister explanations without much, if any, reflection.
Ultimately, very little (if anything) was said about making findings of physical abuse in submissions.
Y’s fused labia
On 17 July 2022,[53] the mother deposed that when she was changing Y’s nappy, her labia skin was stuck together and had a sticky substance on it. She said she tried to wipe it, but it was sore and uncomfortable for the child. She decided to bath the child and leave it for the morning. The mother said that in the morning the labia was “completely fused shut, except for a small opening for her ‘wee’.” There is no evidence before the court that the mother took the child to the doctor about this in July 2022 and she does not say so in her affidavit.
[53] Mother’s affidavit filed 10 February 2025 at paragraph 55.
The mother went to the doctor with Y on 19 August 2022 and the topic was not raised.[54]
[54] Exhibit 22, p.68.
On 7 November 2022, the mother took Y to Dr N: “wants to do 2½- 3½ check-up as per red book”.[55] The mother was recorded as noticing Y’s “labial folds are fused since July and looks very sticky”. The record continued, “child does not c/o urinary symptoms or pain around perineum”; “c/o” is likely ‘complain of’. The perineum was examined and the doctor’s record said, “appears normal to me”. The plan was to re-check in 2 weeks and Dr N would discuss it with another female doctor.
[55] Exhibit 22, p.68-69.
On 21 November 2022, the mother took Y back to the doctor and deposed, “[Y] goes to doctor for schedule 2.5-3 years health check-up, genitals – Labia were still fused”.[56]
[56] Mother’s affidavit filed 10 February 2025 at paragraph 40.
The 21 November 2022 medical record refers to the doctor observing (with another doctor present) a “slight fusion of the labia”,[57] whereas the mother’s report to the doctor, and evidence in her affidavit spoke to something that was fused far more than the doctor’s assessment. This is recorded: “mum happy to observe for now”. That sits at odds with the mother’s evidence in cross-examination that she thought the fusion was a result of sexual abuse and highlighted (again in cross-examination) the child’s apparent pain in the months from July 2022 (when she deposed she first observed the fusion).
[57] Exhibit 22, p.69.
The mother took Y to the doctor the next day, 22 November 2022,[58] and the fused labia was not mentioned, nor was it mentioned in consultations on 7 and 12 December 2022 or 3 January 2023.[59] If the mother’s case was her concerns came in hindsight, then she did not depose to that, or make that clear in cross-examination. I also do not accept that could be so because from at least 29 November 2021, a year earlier, the mother was squarely raising sexual abuse with doctors.[60]
[58] Exhibit 22, p.69.
[59] Exhibit 22, p.70-72.
[60] Exhibit 22, p.66.
Subsequently, when Y was taken to an Emergency Department in early 2023 after allegedly telling the mother that “Daddy poked his finger in my bottom”, the maternal grandmother deposed in her affidavit that the examining doctor “noted the fused labia, another nurse was present and asked me about the fused labia. I said it was safer to leave it at this point.”[61] The hospital record said they “attempted to educate grandmother and mother of the perineum fusion and following up with GP, both grandmother and mother stated, ‘it might be safer to leave it’”.[62]
[61] Maternal grandmother’s affidavit filed 10 February 2025 at paragraph 35.
[62] Exhibit 2, e p.51-56.
Notwithstanding this benign history and the mother’s lack of action, the mother asks the court to infer Y’s fused labia is a product of the father’s sexual abuse (not that such a submission was made):
And, in the same context, the labial fusion of [Y] in 2022, for those months after July of 2022, you see that as sinister also?‑‑‑I do, because she was in physical pain, yes, I do.
Somehow – the penetration of the vagina, whether by a finger or a penis, somehow causes labial fusion?‑‑‑It can, yes.
Okay. How do you know that?‑‑‑The doctor told me
Right. Don’t find that in the subpoenaed notes anywhere. So which doctor told you this?‑‑‑[Dr N] said that it can be from a number of causes, yes.
Okay. Identify the number of causes?‑‑‑She said from an injury.
Yes?‑‑‑From sexual abuse.
Okay. She actually said that?‑‑‑And I’m sorry – I don’t recall what the third one was, but there was three ‑ ‑ ‑
There is no medical evidence offered by the mother to permit such a conclusion or inference that the child’s fused labia was more likely than not caused by sexual abuse. The highest the evidence reached is the above from the mother in cross-examination, which is unsupported by any records in the evidence before the court. Further, none of the medical exhibits about the fused labia refer to the child suffering “physical pain” which, is contrary to what the mother said in cross-examination as extracted above.
Of note, despite the mother observing the fused labia in July 2022, neither the fused labia nor physical pain are mentioned in an August 2022 GP consultation.[63] In the two medical records from November 2022, nothing is recorded about physical pain. Indeed, the 7 November 2022 record said, “child does not c/o urinary symptoms or pain around perineum”; “c/o” would likely be complain of.
[63] Exhibit 22, p.68.
It is also observed that the mother is quick to attend the doctor with her many abuse concerns, but just sat on her July 2022 labial fusion observation but said in cross-examination that the child was in pain, does not mention it in an August 2022 GP consultation, and then mentions it in two November health check-ups without concern and no mention of pain.
The maternal grandmother told the doctor they were still “leaving it” as at 21 January 2023 when asked about it at the hospital.
In cross-examination, it emerged Y still has a fused labia which the mother has had investigated further by doctors, saying “both doctors have said that it will rectify itself when she turns – puberty.”
The paternal grandmother
On 18 September 2022,[64] X told the mother the paternal grandmother asked her to take her clothes off to try on some togs. She said that made her sad because the father was watching her with no clothes on. As a general proposition, it would be unusual if a father did not see their young child naked at some point.
Drinking paternal grandmother’s lactational milk and other allegations November 2022 to January 2023
[64] Mother’s affidavit filed 10 February 2025 at paragraph 57.
On a visit to Dr N on 7 November 2022 (also discussed under the fused labia heading),[65] the mother told the GP that Y had been saying “weird things like - she drank [paternal] granny’s milk”. In cross-examination, the mother confirmed she understood this to mean actual lactational breastfeeding. The maternal grandmother confirmed this too – “You didn’t take it as literally true when she said, “I had granny’s milk”?‑‑‑Yes. I did.”
[65] Exhibit 10 and Exhibit 22, p.68.
The mother accepted the paternal grandmother was over 60. When asked if she thought it incredulous that a woman over 60 would be lactating, the mother changed her response to “When I said ‘breastfeed’, I meant sucking on her nipples”. I do not accept the mother misspoke when she clearly answered an earlier question, “I would understand her to be breastfeeding her”.[66] It was only when the incredulity of that was pointed out to her that she changed emphasis, as did the maternal grandmother.
[66] See also: “And, when you heard [Y] say this to you, drinking grandma’s milk, you took that to be something that had happened in the last few days or few weeks; is that correct?‑‑‑Yes”.
But rather than leave Y’s comment in the “weird” box (as she told the doctor), it developed into something that definitely happened and, with the maternal grandparents adding it was for sexual purposes.[67]
[67] Exhibit 5, e p.31 at paragraph 5.13.
As discussed, the mother and Y were at the doctor’s again on 21 November 2022 for the scheduled check-up and again on 22 November 2022,[68] with the mother reporting the child had a “runny stool last night”. The record said the child appeared well.
[68] Exhibit 22, p.69.
Between 4 December 2022 and 27 January 2023,[69] the mother deposed Y screamed in her sleep, screamed during an extracurricular activity and wet the bed. She said Y started having night terrors from 21 January 2023 onwards.
[69] Mother’s affidavit filed 10 February 2025 at paragraphs 42-47.
On 6 December 2022, the maternal grandmother deposed Y was crying and said, "Nanny ... Granny hurt my bum bum ... ”.[70] It is common ground the paternal grandmother would change the child’s nappies.
[70] Maternal grandmother’s affidavit filed 10 February 2025 at paragraph 24.
On the same date, 6 December 2022, the mother deposed:[71]
…I was changing [Y's] nappy and she says, “Don't do silly things to me!” I said I'm just wiping poo off your bum. She says “Granny does silly things"” I say what silly things? [Y] says, “she does poke her finger in my bum bum”.
(Emphasis added)
[71] Mother’s affidavit filed 10 February 2025 at paragraphs 62 and 63.
The mother took Y to Dr N the next day, 7 December 2022, and deposed that the doctor told her (the mother) to call child safety, disregard the child’s words and wait for physical signs of abuse. In cross-examination, the mother confirmed the children were in the consultation room with her when she told the doctor what she said Y said to her, but added she whispered to the doctor.
The medical record for 7 December 2023 states:[72]
[72] Exhibit 9 and Exhibit 22, p.70.
Seen with mum [Ms Moss]and sister [X]
Reason for visit:
Advice and listening
- [Y] told mum that grandma does “silly things” when changing diaper – when clarify, [Y] said she put her finger in bum
-also father and parents not sticking to her schedule – so [Y] still has not been sleeping well
talked with [Y] separately -
-said both grandma and daddy did “silly things” – tickle and poke her bottom – (pointing to perineum area)
Advised mum to contact CPS for further assessment
(Emphasis added)
It is noted that on 6 December 2023 the mother deposed Y spoke only of her grandmother poking her finger “in my bum bum” in the context of changing her nappy. The next day, at the doctor, Y referenced both her grandma and daddy. I accept both could have allegedly occurred.
It is also observed that on the mother’s recount to the doctor, the child’s words are in the context of the grandma changing her nappy, where carers require a bodily mechanism of action to wipe the children’s vaginal and anal region. It is also not unusual for an adult to use a finger to put nappy rash cream on those areas of the child.
On 10 December 2022, the mother deposed Y said:[73]
“Granny and daddy were doing silly things to me". I say what silly things, she says “they were hurting my bum with their nails” [Y] had a small visible fingernail scratch between her anus and vagina and that's all.
[73] Mother’s affidavit filed 10 February 2025 at paragraph 64.
Like so many other instances, the mother deposed to what the child told her, but not what she said in reply. This quote from the mother’s affidavit also means it is hard to accept her other evidence that she does not talk to the children about their allegations – clearly she does.
On 12 December 2022 the mother took Y to the GP and told the GP that the child said, “don’t poke me in the bottom” whilst changing her nappy and that her grandmother “has done this”. [74]
[74] Exhibit 9 and Exhibit 22, p.70.
On the same date, 12 December 2022, the maternal grandmother deposed Y said, “Nanny ... Granny and Daddy were rolling around on the bed squealing, I had grannies milk and she poked her finger in my bum”.[75] The maternal grandmother could give no context to this, such as what was happening immediately before the child said those words to her.
[75] Maternal grandmother’s affidavit filed 10 February 2025 at paragraph 25.
Six days later, on 18 December 2022, the mother deposed that when she was changing Y’s nappy she observed “a small purple bruise on her anus” and that the child said, “Granny gave me milk and granny and daddy tickled my bum bum”.[76] The mother said the child was “implying she was sucking on granny’s nipples”. It does not seem the mother gave any thought to the possibility Granny could have given her a cup of milk from the fridge. The mother also did not seem to give thought to whether the tickle may have been an act of play on the child’s buttocks. The mother could not give any context to where they were and what they were doing when this was apparently said.
[76] Mother’s affidavit filed 10 February 2025 at paragraph 49.
The mother said many times at trial that she believes the children. But she does not believe Y saying “tickling” means tickling, because, according to the mother, it had to be “more sinister than just tickling” to cause a bruise and pain. The mother elaborated in cross-examination that “tickling” was a code word the father taught the child for sexual abuse. The idea of being taught a code word is not in her affidavit. She said she did not know what “tickling” was code for, other than “a large range in sexual abuse”.
In any event, whatever the diagnostic label applied to the children, it is clear the children have had challenging behaviours at times including medical/health needs being met by the National Disability Insurance Scheme (“NDIS”) funding packages. Y accesses the services of a psychologist and allied health professionals. X has a psychologist, a continence nurse and an allied health professional.
Albeit coming from a belief of abuse, the mother facilitates the children’s attendance on their various supports.
I have already concluded the mother is visiting emotional harm on the children through her belief system and associated conduct, and looking forward, that she poses an unacceptable risk of harm to the children in allowing them to go through life believing they have been sexually abused. This does not speak well for her capacity to parent when it comes to the allegations.
I have also referred to the mother’s lack of evidence with respect to her capacity to parent in the R & C sense. I have already set out the paragraph of the mother’s affidavit where she speaks positively about her capacity to parent. Apart from the emotional harm she has caused the children and unacceptable risk of harm going forward, I have no reason to otherwise doubt the mother’s capacity to parent the children in a day-in-day-out sense of feeding them, getting them to school and appointments and the like.
The father is untested both in terms of his own parenting capacity and capacity to meet the children’s needs. As such, I do not share the father’s assessment expressed to the Report Writer that he had “more faith in my own parenting than to have such a huge portfolio”, meaning that he could manage the children’s needs without the many professionals they see.
By the time of submissions, his Counsel handed up a parenting proposal with considerable emphasis on therapeutic supports for the children, which I will discuss further under the Disposition section of these reasons.
(e) 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;
On the mother’s and ICL’s approaches (for different reasons), the children’s relationship with their father, and by implication his family, will be severed. That is often called an option of last resort.[168]
[168] Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192, at 79,217-8.
The father’s three proposals would see both parents in the children’s lives.
Whilst there is often benefit to children having a relationship with their parents where it is safe to do so, this is one of a number of matters that need to be thought through and balanced.
(f) anything else that is relevant to the particular circumstances of the child.
Nothing else arises.
DISPOSITION
The court:
(a)Has not made positive findings of any abuse by the father or paternal grandmother;
(b)Has not assessed the father poses an unacceptable risk of harm to the children;
(c)Has found the mother genuinely believes what she says about abuse, even where she cannot explain, for example, how a tummy finger equates to an erect penis or how a pink bone might be a sex toy. However, I do not find the mother is lying or acting maliciously when she alleges what she does, and refer to (d) next;
(d)Has found she sees the father (and his mother) through, and only through, a prism of abuse, reinforced by the echo chamber whereby she and her parents all re-enforce each other;
(e)Has accepted that pre-separation the father’s unwanted erections gave the mother a basis for concern, but her allegations have morphed into what the ICL called “fantastical”, e.g. the child saying something “weird” (her words to a doctor) about drinking granny’s milk, that has become an allegation of sexual abuse, or that a pink bone is a sex toy, or a needle is a syringe and tool of abuse;
(f)Cannot find, on the mother’s own lack of evidence, that her capacity to parent will be compromised if the children spend time with the father;
(g)Has found the mother’s belief system has caused the children emotional harm; and
(h)Has assessed, looking forward, that she poses an unacceptable risk of harm to the children by them going through life believing they have been horrendously abused by their father.
However, that finding of emotional abuse by the mother and assessment of unacceptable risk she poses do not control the outcome of this best interests process.[169]
[169] M & M.
The father proposed a change of residence, with a moratorium of time between the children and the mother. However, that is, respectfully, a naive proposal working on the basis that if the children just live with him, they will see he is not a sexual predator. But they think he is, and he offered no concrete plan on how he would manage a change of residence. In cross‑examination he said he would engage with the children’s psychologists, but he has taken no advice and offers no considered strategy or clear and articulated plan to support and scaffold the children on what would be a momentous change for them.
I accept the Report Writer’s opinion and ICL’s submission that a change of residence would likely be catastrophic for the children – to go from their sole attachment figure (despite her failings) to a father they have not seen for 2.5 years, whom they think is an abuser, and who has no clear plan for support.
Further, any familiarity the children have with the paternal grandparents’ home is dependent upon any memories they have. They have no knowledge of his property or his unnamed partner unknown to them and the court. The children have never spent overnight time with him post‑separation and Y has known nothing but supervised time and then no time with him. Given the father said he struggled to recognise the children at school events due to the passage of time, the same must be true for the children if not more so. He also has no experiential awareness of the children’s various medical complexities and is a NDIS novice.
Hence, I conclude the father’s primary proposal is too big a leap for the children and his evidence that he would “look into” supports once the children were in his care was deficient and lacking child focus and insight for the magnitude of the emotional calibration they would have to undergo. To that end I accept the opinion of the Report Writer that a change of residence could see a regression in the children’s gains with their therapists.
In the alternate, the father proposed a reversion to the current 2022 final consent orders. In summary, that provided that the parents have equal shared parental responsibility (as it was known in 2022), the children shall live with the mother, and that the children spend gradually increasing periods of time with the father.
For the same reasons that I have concluded the father’s change of residence proposal is not in the children’s best interests, I conclude a reversion to the 2022 orders is also a leap too far. There is no definite therapeutic scaffolding for the children on that plan either.
But I cannot conclude no time with the father is in the children’s best interests either. To allow the children to go through life believing they have been horrendously abused is not something that can attract the court’s imprimatur. It is an invidious position for the children and the antithesis of facilitating orders in the children’s best interests and allowing them to develop into the best people they can be.
Equally, spending no time with the father does nothing to ameliorate the unacceptable risk of harm the mother (and her household) poses to them. Rather, I accept the father’s submission that doing nothing because it all seems too hard is “not a good enough solution for a judge charged with exercising discretionary judgements about what’s in the best interests of children”. I do not see how the children’s safety is promoted by just giving up and ordering no time and all that goes with that.
Allowing these children to go through life believing they have been horrendously sexually abused, does not protect them from that ongoing harm of inaccurate belief. Nor does it promote their safety in the sense of giving them an opportunity, or a window, through which they may be freed from the harm of believing they have been abused, under which they labour and will colour their whole lives if the children’s safety, including safety from that harm, is not promoted.[170]
[170] Family Law Act 1975 (Cth) s60CC(2)(a).
It is also hard to see how parenting orders that had that nett effect would be orders dealing with the children’s welfare or development.[171]
[171] Family Law Act 1975 (Cth) s 64B(2)(i).
In the first Family Report, these were the recommendations:[172]
That [X] and [Y] live with their mother.
If the Court finds there is an unacceptable risk of sexual/emotional/physical harm to[Y] and [X] from the father:
[Y] and [X] spend no time with the father
If the Court finds there is not an unacceptable risk of sexual/emotional/physical harm to [Y] and [X] from the father:
[Y] and [X] spend supervised time with their father and this progresses to further time, based on the opinion of their respective psychologists.
[172] Exhibit 5, e p.39-40.
I cannot divest judicial decision making to the psychologists to determine further time arrangements. Nevertheless, supervised time was proposed and with therapeutic supports if the court found the father was not an unacceptable risk to the children. That is what I have concluded.
Unfortunately, by the time of the second Report, the Report Writer only made one recommendation:[173]
That [X] and [Y] live with their mother.
[Y] and [X] spend no time with the father.
[173] Exhibit 6, e p.40.
This singular recommendation is in circumstances where the Report Writer made unhelpful comments, suggesting pre-judgment, such as:[174]
[Mr Moss] presented in a similar fashion to my previous assessment of him and demonstrated no insight into his alleged past behaviour and his children’s needs. His focus was again squarely on attempting to prove his innocence, despite the external evidence to the contrary.
…
… [Mr Moss] demonstrated no insight into his past alleged behaviour and appears to believe this could be remedied by him simply being ‘a good parent’.
(Emphasis added)
[174] Exhibit 6, e p.39 at paragraphs 9.1 and 9.3.
She denied she had pre-judged the matter in cross-examination, but that does not sit well with what she wrote just above. Indeed, it is hard to see how the father could have demonstrated insight into “alleged past behaviour” which he denied. His attempts to prove his innocence are hardly surprising. The statement of “external evidence to the contrary” suggests the Report Writer accepts that to be so. Having listened to the Report Writer she seemed surprised that challenge was being made to the veracity of the allegations of abuse.
However, I do accept the father’s approach that the children simply seeing him being a “good parent” would make everything OK, was naïve and lacked insight.
The Report Writer also made it clear, particularly at paragraph 9.3[175] and confirmed in cross-examination, that she put considerable weight on what the treating psychologists reported about the “disclosures”, as being the bulk of the “external evidence to the contrary”. But the psychologists work with what they are told, and their support and engagement process is not a forensic one. It is not their job to determine fact or otherwise.
[175] Exhibit 6, e p.39.
Unlike Report Writers, the court has had the benefit of the evidence being tested, with all Counsel ultimately submitting positive findings of abuse could not be made. The court’s long analysis of the mother’s many allegations see that submission made good.
I have formed the view that the children’s best interests are served by being therapeutically supported to be re-introduced to the father along with a considerable period of supervised time. I have formed this view because:
(a)The children can hopefully experience a new narrative about their father and therefore themselves;
(b)They may be released from the burden of believing they have been abused;
(c)A therapeutic approach is precisely that – emotional scaffolding for the children as they deal with the cognitive dissonance between what they believe about the father and what they see in spending time with him;
(d)Therapeutic scaffolding and a period of supervised time is about the only proportional option available to the court to try to ameliorate the unacceptable risk of harm posed by the mother to the children going forward in believing they have been abused;
(e)The therapeutic approach ought buffer the kind of catastrophe that would likely occur if residence changed or the 2022 orders continued;
(f)There could be a regression in the children’s progress with their therapists (or more generally) as the Report Writer opined, but that short term risk is balanced against the possibility of the long term gain of having the opportunity to experience a new truth about themselves, their bodies, their psyches and their father;
(g)Supervision and scaffolding provide the opportunity for the children to have a relationship with both parents that is safe;
(h)There is little the court can do to prevent the mother from making future allegations to child safety and the police. However, a supportive approach with a therapist the mother trusts and supervised time ought give those authorities a moment of pause should she do so. Those entities ought be given a copy of the Family Reports, these reasons and orders, and I will ask the ICL to do so;
(i)Supervision is a support for the children and a protective factor mainly for the father from further allegations. Suffice to say, I reject the evidence that the children were raped at the contact centre.
I am under no doubt the path forward will have challenges, and there could be some setbacks. But as identified, giving the children an opportunity to experience a new truth about themselves and their father brings the possibility of long term gain.
It is not suggested Ms D must tell the children they are wrong, or anything like that – instead she is there to assist the children with the cognitive dissonance when the children’s beliefs about the father do not match their experiences of him.
Late in the trial, the father proposed a regime which, in summary, saw various of the 2022 final orders (orders 1, 2, 5 and 13-17) remaining in force and that being augmented by the father engaging Ms D to work with both children (and the parents if requested) for a period of time whilst the children have a stretch of supervised time with him. His proposal moved to unsupervised day-time time and then alternate weekends. This was referred to as the father’s “addendum” in submissions.
Whilst I will not make all orders he seeks under the addendum, the broad thrust of the proposed orders for a therapeutic approach and a period of supervised time is in keeping with my determination that that approach is in these children’s best interest for the reasons enumerated just above.
That proposal came in submissions and did not have the benefit of the Report Writer’s views. No one asked for her to be re-called. Yet, a Report Writer is not the arbiter of facts and does not see the whole of the evidence. As was said in Klein[176] at [241]:
...we simply observe that the family consultant is ordinarily an expert witness whose task is to assist and advise the court. The function of the family consultant is not that of an adjudicator. The family consultant brings to bear an entirely different expertise and experience from that of a lawyer or perhaps investigator. The family consultant may, as an expert, express an opinion on the ultimate issue; see s80 of the Evidence Act 1995 (Cth). However, as the Full Court made clear in Hall and Hall (1979) FLC 90-713 at p 78,819:
“there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities”.
[176] [2010] FamCAFC 150.
Discussion of Orders
After the father’s Counsel handed up the addendum and made submissions, I stood the matter down so the ICL’s and mother’s Counsel could take instructions. Each then made submissions on the addendum. I will call this input – they were not concessions or proposals but input on the addendum if I was against the mother and ICL on their no time proposals.
Parental responsibility
The mother proposed she be solely allocated parental responsibility and the father sought a joint allocation.
Given what each has alleged against the other and given the abject lack of trust between them, it is impossible to see how the parties could, or could even be expected to, jointly make any major long-term decisions for the children. As the children will primarily live with the mother, she will have parental responsibility solely conferred upon her for all major long term decisions, save as otherwise provided in the orders including for their continued attendance on B School, which is agreed.
I will however require the mother to inform the father of all major long-term decisions she has made as soon as practicable after she makes the decision using the parenting app provided for in the orders. Given the father is their father and will be seeing the children, it is important he knows what is happening to and for them.
Who will provide therapeutic scaffolding for the children?
The father proposed Ms D be the therapist for both children under this therapeutic approach. The mother said if there were to be a re-introduction of time accompanied by therapy then it occur for each child by their respective psychologists. The ICL saw ups and downs in both proposals – continuity of approach on one hand, but a lack of therapeutic relationship between Y and Ms D on the other. The ICL ultimately settled on X seeing Dr E and Y seeing Ms D.
Whilst I have no reason to doubt the professionalism of Dr E, I am concerned that two different people conducting the therapeutic support for the children seeing the father may see two different paths being taken. As said, I was most impressed with Ms D’s professionalism and her focus on Y and not, as the father’s Counsel put it, the parents’ agendas.
Ms D also gave evidence that she was content to work with the father too. I do not know if Dr E is so inclined.
True, Ms D is Y’s psychologist, but she is not a stranger to X. The mother spoke of at least one occasion where X attended on Ms D with Y - this was when the mother and Ms D were “quietly” discussing the legal proceedings with both children “nearby”.
As the father accepted, there is no reason why X cannot keep engaging with her psychologist Dr E, but I see virtue in the one psychologist conducting the therapeutic scaffolding around the children being re-introduced to the father. No doubt Dr E will have an important role supporting X, but I only have evidence from Ms D that she is prepared to engage with the father too.
Who will engage Ms D in this process?
I will make the order sought by the father that he engage Ms D for both children in this therapeutic scaffolding around the children’s time being re-commenced with the father. The mother said she would do so, if the court went down this path.
I will make the father the engager in this process for both girls, as he has motivation to comply and the mother does not. If the engagement was left to the mother, it would be unlikely to occur. I have concerns about the mother's compliance with these orders in any event and she is referred to the final paragraph in these reasons. And so is the father.
I will also make an order that provides a mechanism for replacing Ms D if she withdraws her services to the children, or if say, if the mother actively or constructively terminates her engagement. That order will apply to any subsequent therapist/s too.
The mother said they should use NDIS funding for this process, but I do not know if the funding package would apply. Everyone agreed it be used if available and if not, the costs be at the parent’s joint equal expense unless otherwise agreed. I will make orders to that effect.
It is imperative the children’s psychologists and GP have a copy of these reasons, the Family Reports and orders. I will ask the ICL to do so. I will also authorise each therapist to speak with each other and to engage with both parents. No one cavilled with the authorisation concept and the authority to speak with each parent gives clarity to each therapist.
12 or 24 months of therapeutic scaffolding?
The father proposed this support take place for a period of no more than 12 months; the mother said 24 months. The ICL supported the 12 months therapy if this path was chosen.
I will adopt the 12 month proposal for therapy and do so because the children are not novices to psychological support and as a matter of commonsense, progress will be made in this time period, or it will not. Without divesting judicial power to the psychologist, if Ms D forms the professional view that the 12 months should be extended, she will no doubt advise the parents. It will be a matter for them to agree, or not.
Indeed, parents are always able to agree to vary orders. To make that clear, the orders will be prefaced with a standard provision that the orders apply unless the parties otherwise agree in writing, and using the parenting app set out in the orders.
Time
I will make orders that the children’s supervised time with the father commence once he has engaged and retained Ms D. Ideally, Ms D will have had some sessions with the children and the father (if he is requested to attend) before supervised time begins, but given I have no evidence about when that might occur and cannot make Ms D the arbiter of the commencement time, the best I can do is to make best interest orders working with what I have. That said, the father ought listen to Ms D about the timing of his re-introduction to the children and be ‘all ears’ to her suggestions about how he engage with the children - but ultimately, I cannot make orders by crystal ball and cannot divest the commencement of time to the psychologist. Instead, it is always open to the parents to listen to professionals and agree on something else, but failing that, these orders apply.
I have purposefully made the father’s compliance with engaging and retaining Ms D as a condition of supervised time commencing as:
(a)it is his time which is conditional upon or tethered to that process starting;[177]
(b)the mother is not to have the power of veto by not complying with the therapy orders and thereby engineer the children’s time with the father not commence by her non-compliance; and
(c)even though the father proposed the therapeutic support, he cannot ignore this important scaffolding for the children in perhaps eagerness to see them at the contact centre.
[177] L v T (1999) FLC 92-875 at [60].
To be clear, the supervised time does not commence once the 12 months of therapy has concluded. The condition on supervised time commencing is that the father engage and retain the psychologist.
As for spans of time, the father proposed six months of supervised time, six months of unsupervised day-time time, and then alternate weekends Saturday morning to Sunday afternoon.
If I was against her on no-time, the mother’s input (not a concession) was 12 months of supervised time, 12 months of unsupervised daytime time then the alternate weekends. I will adopt the mother’s time frame and do so because the father must, figuratively, crawl before he walks. So too do the children. I consider the father's six months and six months to be too quick. Further, the first 12 months of supervised time will marry well with the not more than 12 months of therapy with Ms D. I consider that supportive and scaffolding for the children who have not seen their father for 2.5 years. The father needs to hasten slowly.
Even though the mother put on no evidence that her capacity to parent will be compromised by children-father time, I accept that the mother will have to drive the children to the therapy and the contact centre. But that is a consequence of the best interest orders being made. It will also give the children a chance to see the mother is physically facilitating the process.
The mother proposed the father pay for supervision. I will make that order simply so the mother cannot stifle time occurring by saying she cannot afford to contribute her portion.
Once the children’s time with the father reaches six (6) hours unsupervised time on alternate weekends, I have included orders that the mother communicate to the father (using the parenting App) whether it is the Saturday or Sunday. I have added that because the children will primarily be with the mother and may have other commitments. At the start of the week, the mother will therefore nominate whichever of the Saturday or Sunday is more practical for her and the children.
Which contact centre?
The father proposed F Contact Centre be used and the mother, if I rejected her no time position, said W Family Services.
I will order supervised time occur at the F Contact Centre. I reject the maternal grandfather’s and mother’s claim that they allowed rape on their premises.
Further, all I know about W Family Services is that it is expensive. I have no evidence about the parties’ financial circumstances and whether they or he (the father) could afford it. Given the mother’s propensity to complain about or reject professionals who do not see things her way, there is also no guarantee she will not take a set against W Family Services if they do not concur with her beliefs.
Whilst no one addressed this, I will make orders that the parties take all steps necessary and sign all documents to engage with the F Contact Centre. I will also make an order that if the F Contact Centre withdraws it services, then the father will provide the mother with three alternates, and she will pick one. I do so for the same reasons that I have provided a mechanism to replace Ms D if she withdraws her services.
Parental communications
I have provided a mechanism for the mother to choose the parenting app to be used and do so simply because she is more likely to buy in to that if she has chosen the platform. The mother was agreeable to a parenting app order if I was against her on her no-time proposal.
Information
The father sought orders that each parent provide the names of medical and health professionals engaged with the children and the parents be able to get information from them. The mother opposed this. The father also sought information orders from the school which the mother did not oppose.
As much as the father might like to know and get medical information (and I specifically here exclude the therapeutic process which will be ordered), I can see no good coming of it. The mother has a demonstrated propensity to change doctors if she is unhappy or decides there is a conflict with the father. I do not put any credence on the mother's submission in opposition that he had threatened some service providers.
Rather, I do not want the children's needs being compromised or being treated inconsistently if she changes doctors because the father, say, left a message to speak to a child’s GP. The father's understandable desire for information must come second to maximising the prospects of continuity of medical and health care for the children. For the same reasons, I will not make the order sought by the father that both parents (or in this case, the father) can require medical and health professionals to produce documents to him about the children. Similarly, when I request the ICL to provide a copy of these reasons and other documents to the children's GP she need not carbon copy the parties in that correspondence but can simply confirm to them when she has done it.
Travel orders
I will not make the father's passport and overseas travel orders. The father and children have much work to do to renew their relationship before international travel might even be a possibility. Further, no one deposed to any plans for any such travel. Should either party have an actual proposal down the track, then the parents can either agree, or a discrete application can be filed with the court.
A final observation
The father has options should the mother thwart the orders and/or make unfounded allegations – and that may include a fresh application for a change of residence, subject to s 65DAAA of the Act, and if he does, he might come armed with a concrete plan of therapeutic support for how that would work.
I certify that the preceding four hundred and forty-two (442) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 31 July 2025
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