Oiaryp & Wild - [2025] FedCFamC1F 237

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Oiaryp & Wild [2025] FedCFamC1F 237

File number(s): DGC 3388 of 2023

Judgment of: JOHNS J

Date of judgment: 10 April 2025

Catchwords: FAMILY LAW – CHILDREN – Magellan – best interests – allegations of sexual abuse and family violence perpetrated by the father – where those allegations were largely unsubstantiated – where the mother concedes during the trial that the evidence does not support findings that the father has sexual abused the children – where the children have not spent time with the father for two years – where the father contends that the mother poses risk of emotional and psychological harm due to her influence upon and coaching of the children to make disclosures of abuse – where the mother seeks joint decision making responsibility and that the parties engage in family therapy to aid the restoration of the children’s relationship with the father – where the father seeks orders that the children live with him and a moratorium on the mother’s time with the children –– orders for the father to have sole decision-making responsibility and the children to live with him – children to engage with a specialised treatment team – moratorium on the mother’s time for six months – supervised time with the mother to resume thereafter

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

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

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

Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637

Champness & Hanson (2009) FLC 93-407

Fitzwater & Fitzwater (2019) 60 Fam LR 212

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

Jones v Dunkel (1959) 101 CLR 298

M & M (1988) 166 CLR 69

McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518

Slater and Light (2013) 48 Fam LR 573

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance

Number of paragraphs: 331

Date of last submission/s: 27 March 2025

Date of hearing: 5-7, 11-14, 17, 19, 20, 24, 26, 27 March 2025

Place: Melbourne

Counsel for the Applicant: Mr Weerappah

Solicitor for the Applicant: Bayside Solicitors

Counsel for the Respondent: Mr Devries

Solicitor for the Respondent: RRR Lawyers

Counsel for the Independent Children's Lawyer: Ms Elleray

Solicitor for the Independent Children's Lawyer: Oldham Family Law
ORDERS

DGC 3388 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR OIARYP
Applicant

AND:
MS WILD
Respondent

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

10 APRIL 2025

THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.That for the purposes of s 61D of the Family Law Act 1975 the Father be allocated sole parental decision making responsibility for the children of the relationship, X born in 2014, Y born in 2016 and Z born in 2020.
3.The children live with the Father AND IT IS DIRECTED that the Father attend upon Court Child Services on the day of Judgment and collect the children from Court Child Services.
4.The Mother, her servants and agents, forthwith leave the Court and environment of the Federal Circuit and Family Court of Australia and vicinity of 305 William Street, Melbourne, and thereafter this day do not remain within 500 metres of 305 William Street, Melbourne.
5.The Father is to forthwith make arrangements for:
(a)The child Z to engage in play therapy to be conducted by a qualified play therapist;
(b)The children to engage with and participate in therapy with a child psychologist (it being noted that it is intended that each child should have their own independent psychologist).

(collectively, "the children's treatment team")
and the Father shall be responsible for the costs associated with the children's attendance upon the children’s treatment team or any of them.

6.For a period of 6 months, the children are not to spend time or communicate with the Mother [''the suspended time period"].
7.Within 14 days the Father do all acts and things required to give notice to the mother in writing of his nominated Supervised Contact Centre, and the parents do all such acts and things necessary to engage with the proposed Supervised Contact Centre for the purposes of the children spending supervised time with the Mother at the expiration of the suspended time period.
8.Following the expiration of the suspended time period, the children shall spend time and communicate with the Mother:
(a)By way of letters, cards and gifts which may be sent via the Father on each of the children’s birthday, Christmas/Hanukkah, Passover and Easter;
(b)By letter or card on one occasion each calendar month;
(c)Upon the children having engaged with the therapeutic professionals provided for in Order 5 herein for a period of no less than three (3) months, the children shall spend supervised time with the Mother on twelve occasions per calendar year on a monthly basis and supervised by the Supervised Contact Centre nominated in accordance with Order 7 herein; and
(d)As otherwise agreed between the parents in writing.

9.Except as otherwise provided within these Orders, the Mother, her servants and agents, be and are hereby restrained from:
(a)Spending time with and communicating with the children, or any of them, by any means, including mail, telephone, email, text message or social media;
(b)Approaching within 100 metres of the Father’s residence; and
(c)Approaching within l00 metres of the children’s school.

10.Within 14 days the Father provide a copy of these final parenting Orders and reasons for judgment of the Honourable Justice Johns dated this day to the following organisations:
(a)The Supervised Contact Centre nominated pursuant to Order 7 hereof;
(b)The Principal of the children's School or Kindergarten and other relevant teachers as determined by the Principal;
(c)Any medical, allied health professional or education expert engaged to assist the children in the next 12 months; and
(d)Medical and allied health practitioners engaged in treating the Father or Mother.

11.The ICL be authorised to communicate with the children's treatment team and any treating medical practitioners and allied health professionals appointed to assist the children.
12.The ICL be at liberty to provide a copy of these Orders, the Final Judgment from these proceedings and a copy of the Family Report of Ms B dated 5 December 2024 to any of the following:
(a)The nominated Supervised Contact Centre;
(b)Any school that the children may attend; and
(c)Any other medical, health or educational professionals that the children are engaged with.

13.The parents authorise the children's school to provide all information ordinarily provided to parents including but not limited to school notices, information, newsletters, school reports, and school photographs directly to each parent at their cost.
14.The Mother be at liberty to liaise with and to obtain information and updates as to the children's treatment (noting that the Father has sole parental decision-making responsibility) with the children's treating medical and allied health practitioners, at her expense, and these Orders serve as the authority for the same.
15.The parents communicate by way of text message in relation to issues relating to the children, with all communication to be in a courteous and child focused manner.
16.The parents are to keep each other updated as to their mobile telephone number and advise the other parent of any changes thereto within 24 hours.
17.The parent with care of the children shall promptly notify the other parent of any significant illness or medical condition suffered by any of the children as soon as practicable in the case of an emergency and further shall provide to the other parent all the relevant particulars of the treatment received by that child with the name and address of the treating provider.
18.The parents each hereby be restrained by injunction from:
(a)Consuming alcohol to excess or using illicit substances whilst the children or any of them are in their respective care;
(b)Denigrating, belittling, rebuking or otherwise insulting the other party or any member of their family or any person they are in a relationship within the presence or hearing of the children; and
(c)Discussing family law matters of any kind in the presence or hearing of the children.

19.The appointment of the ICL be and is hereby discharged 12 months from the date of these Orders.
20.The ICL meet with the children following the making of these Orders to inform and explain to the children these Orders.
21.Pursuant to s.65DA(2) and the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
22.All extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

The applicant father, Mr Oiaryp and the respondent mother, Ms Wild are parents to three children, X, aged 11 years, Y, aged nine years, and Z, born in 2020 and aged four years.
The parties commenced cohabitation in 2011 and final separation occurred in December 2022.
The children have lived with the mother since separation. Since February 2023, the children have spent no time with the father, save for a meeting in November 2024 for the purposes of the preparation of the Magellan Family Report.
That this is so, is due to the raft of allegations raised by the mother against the father that he has perpetrated family violence against her and the children, and further, that he has sexually abused the eldest two children, X and Y. By the time of the children’s interviews for the Magellan Family Report, such was the disdain held for the father by both X and Y, that each were using assumed names. When questioned as to why they had changed their name each responded to the effect that the father’s name begins with the same letter as their names and that they sought to distance themselves from him.
As a result of the allegations of sexual abuse, X has been subjected to three video recorded interviews by Victoria Police, Y has also participated in one such interview, the Department of Families, Fairness and Housing (“DFFH”) has conducted an investigation into the family and both X and Y have had ongoing counselling in relation to the alleged abuse with counsellors from C Centre and D Centre. Further, due to the alleged trauma suffered by X, she has been withdrawn from her primary school and since mid-2024 has been home-schooled by the mother.
Throughout the proceedings, the father has denied all allegations that he has sexually abused the children. As to the family violence allegations, whilst the father admits that the parties have engaged in verbal abuse and arguments, and that on one occasion he threw an object at the mother, he otherwise denies the mother’s allegations.
The mother’s allegations as to the alleged sexual abuse of the children by the father dominated the proceedings. However, the mother’s position in relation to those allegations shifted and changed during the course of the trial. Indeed, by the commencement of the second day of the hearing, the mother conceded through her Counsel that the allegations that the father had sexually abused the children could not be made out.
Whilst the mother’s position at the commencement of the final hearing (as reflected in the final orders sought by her filed 4 March 2025) was that she should have sole decision-making responsibility for the children, that they should live with her and that the father should spend no time with the children, by the fourth day of hearing, after the VARE recorded interviews of the children had been viewed in Court, she proposed that the parties and the children engage in reportable family therapy at the father’s expense, and that the father commence spending time with the children four weeks after the commencement of such therapy. By the conclusion of the final hearing, the mother’s position had shifted to one where she sought orders that the parties have joint decision-making responsibility for the children, that the parties engage a family therapist directed at reintroducing the children to the father, and that the children spend time with the father for increasing periods culminating in alternate weekends from after school Friday to the commencement of school Monday, each Wednesday from after school to the commencement of school Thursday, for half school holidays and for specified periods on special days (Exhibit M-14).
The father’s position is that the mother has actively sought to alienate him and “airbrush him” from the children’s lives. He contends that the allegations levelled against him as to sexual abuse were generated by the mother, who has manipulated the children to make the disclosures of alleged sexual abuse. As a result of that conduct the father maintains that the mother poses an unacceptable risk of emotional and psychological harm to the children. The father seeks orders that he have sole decision-making responsibility for the children, that they live with him and that there be a moratorium on the mother’s time with the children for a period of six months. Thereafter, the father proposes that the mother’s time with the children be supervised and occur on 12 occasions each year, on a monthly basis.
At the commencement of the trial, the ICL reserved her position as to final parenting orders, preferring to await a testing of the evidence before confirming her proposal. At the conclusion of the trial, the ICL supported the father’s position and sought orders in the terms of Exhibit ICL-29.
For the reasons that follow, I am satisfied that the father does not pose an unacceptable risk of harm to the children and that the allegations that he has sexually abused X and Y are without substance and cannot be made out. Further, I am satisfied that the mother does pose an unacceptable risk of harm to the children and that they have been exposed to emotional and psychological harm in her care. I am also satisfied that the father is the parent best equipped to meet the children’s physical and emotional needs and further that he is best placed to ensure that the children have an ongoing relationship with both of their parents. As a result of those findings I am satisfied that the children’s best interests will be served by orders that:-
·The father have sole decision-making responsibility for the children;
·The children live with the father;
·There be a moratorium on the mother’s time with the children for a period of six months, and thereafter she spend supervised time with the children on twelve occasions each year on a monthly basis; and
·At the expiration of the moratorium period the mother be permitted to forward the children letters on a monthly basis and cards and gifts on birthdays, at Easter, Passover and Christmas/Hanukkah.
THE PARTIES
The father was born in 1984 and is aged 40 years. He is employed in transport, albeit that the father’s evidence, which I accept, is that in the event that the children live with him, he will cease employment for a period of six to 12 months to support the children’s transition to his care. The father proposed that upon resuming paid employment he will work for a local business (for which he has worked previously) and that his work will be limited to daytime only, predominantly during school hours.
The mother was born in 1986 and is aged 38 years. She emigrated from Country E to Australia in 2006. The mother is unemployed. She has undertaken a number of online courses since the parties’ separation and anticipates qualifying as a religious leader in early 2025. The mother was uncertain whether she would earn income if engaged as a religious leader by the church that she currently attends.
BACKGROUND
The parties met in South Australia in 2011 and commenced cohabitation approximately one month later. They relocated to Victoria shortly after the commencement of cohabitation and have lived in Victoria since that time.
Between 2019 and 2021, the parties lived with the children in the family home in Town F, which they built during the relationship. Y and X both commenced their primary school education at the local primary school, G School, whilst the parties were living in Town F.
In early 2022, the parties sold the home at Town F and the mother moved with the children, to live with her friend, Ms H, in Town J. The father moved to the paternal grandfather’s house in Suburb K. This initial separation was for a period of approximately 3 months.
Shortly prior to the parties’ separation, in late 2021, the father overdosed on the mother’s medication. The father attributed his actions to the financial pressure he was enduring at that time.[1]
[1] Affidavit of Dr W filed 1 August 2024, p. 12, para 13
Whilst the mother and children were living in Town J, X and Y attended a primary school in Town J. During the period in which the mother lived at Ms H’s home, the father continued to visit, and on occasion stayed overnight with the mother and the children.
The mother’s evidence is that during one such visit, the father “hassled” X, who was then aged seven, to take her top off when the parties and the children were sleeping in a bed together. That event was, in large part, the catalyst for the subsequent sexual abuse allegations advanced by the mother.
In or around mid-2022, the mother and the children returned to live with the father in the paternal grandfather’s residence in Suburb K. Both Y and X were subsequently enrolled in, and began attending, CC School.
The following month in mid-2022, an incident of alleged family violence led to a Family Violence Intervention Order being obtained by Victoria Police against the father for the protection of the mother and the children. Notwithstanding the terms of that order, at the invitation of the mother communicated by text message, the father continued to attend upon the parties’ home to assist the mother in the care of the parties’ children, who were then aged eight, six and two (Exhibit F-2).
In late 2022, the mother and the children accompanied the father, the paternal grandfather and uncle on a cruise.
Following the cruise, the mother and the father attended marriage counselling. The parties separated on a final basis in December 2022.

In mid-January 2023, the father again attempted suicide. The mother deposes that this incident caused her to fear for the safety and wellbeing of both the father and the children. Two days later the mother made a statement to police reporting her concerns.[2] Following the father’s suicide attempt, at the mother’s instigation, the father’s time with the children was supervised.
[2] Mother’s Trial Affidavit filed 13 January 2025, para 11(e)
In late January 2023, the mother contacted a family violence support service, L Service, and she and the children were provided with emergency accommodation for 3 days, following which she and the children returned to the paternal grandfather’s home in Suburb K.
The father moved in with a family friend, before later moving to his current home in Suburb M, where he continues to reside with members of his church community, Mr N and Ms O.
In February 2023, the mother unilaterally suspended the father’s face-to-face time with the children. The father continued to call the children via FaceTime on a weekly basis until April 2023, when such communication was terminated by the mother.
In March 2023, the maternal grandmother migrated from Country E to reside with the mother and the children.
In mid-April 2023, the mother made a report to Victoria Police alleging that X had made disclosures to her of sexual abuse by Mr N, the man with whom the father currently resides and who is a member of the church congregation the parties attended prior to separation. She reported that Mr N picked up X, felt her bottom and put his fingers between her bottom cheeks (Exhibit ICL-10).
The following day, X was interviewed by Victoria Police in relation to the allegations with respect to Mr N. During this interview, X made no disclosures of sexual touching by Mr N. She stated that Mr N picks her up with his arm under her buttocks, and that it occurs in front of the church congregation. The investigation was closed. It was apparent from the evidence given by Mr N during the proceedings that he was unaware of the investigation.
The mother alleges that in early August 2023 she had a conversation with her friend, Ms H, during which Ms H informed the mother that “she always felt like [the father] did something” to X and Y. This, the mother asserts, prompted her recall of how the father had “hassled” X to remove her top one night when the family was staying at Ms H’s home.[3] Later that day the mother initiated a conversation with X, in which X allegedly made disclosures of sexual abuse by the father.
[3] Ibid, p. 28, para 57
A few days later, in August 2023 the mother made an audio recording of her discussion with X regarding the alleged disclosures of sexual abuse by the father (Exhibits ICL-5, ICL-6, ICL- 7).
The mother subsequently made a report to Victoria Police and X was subjected to recorded police interviews (VARE) in August 2023, September 2023, and November 2023 regarding the alleged disclosures. In addition, Y undertook a VARE interview with police in August 2023.
The evidence obtained as a result of those VARE interviews was assessed by police at Suburb P SOCIT, and ultimately it was determined that there was insufficient evidence to proceed with charges against the father (Exhibit ICL-1). The police assessment of the VARE interviews raised a number of concerns with respect to the allegations of sexual abuse, including that:-
·Whilst some of the allegations were possible, the likelihood of events occurring as disclosed by X was improbable;
·X had been “schooled” by the mother rather than actually recalling events with her own memory;
·X’s diary notes were written on the weekend preceding the VARE interview and as such were not contemporaneous;
·There were inconsistencies in X’s accounts of the alleged abuse.
In October 2023, with assistance from L Service, the mother and the children relocated from the Suburb K property to a rental property in Suburb Q, provided by the Department of Family, Fairness and Housing (“DFFH”). Again, X and Y changed schools, and began attending DD School in Suburb Q.
In May 2024, the mother and the children moved from the Suburb Q home to a property in Town R, near Town S, also provided by DFFH. The mother’s evidence was that she effected this change of residence upon advice received from L Service that the family could reside at the Town R property indefinitely. At the time of that move, the family was settled in Suburb Q and the lease on that property was not due to expire for a period of approximately 16 months.
Following that move, X, who was then in Year 5, ceased attending school and commenced being home-schooled by the mother. Y was enrolled in and commenced attending U School, Town S.
The mother and the children also commenced attending a church and thereafter, the mother ceased observation of festivals such as Christmas and Easter and commenced observing Hannukah and Passover.
The mother and the children have lived in Town R with the maternal grandmother, Ms V since that time.
PROCEDURAL HISTORY
On 12 October 2023, the father commenced proceedings in the Federal Circuit and Family Court of Australia (Division 2) seeking final parenting orders that the parties have equal shared parental responsibility, that the children live with the mother and spend time and communicate with the father each alternate weekend, for one week of each school holiday period and on identified special occasions.
As the father was unable to locate the mother for purposes of serving his application, on 9 January 2024 he caused an application to be made for a Commonwealth Information Order. That order was made on 19 January 2024. The mother was subsequently located and served with the proceedings.
On 19 March 2024, orders were made by consent that until further order the children live with the mother, the parties undergo psychiatric or psychological assessment and that they submit to urinalysis for drug screening. The father was also ordered to undertake hair follicle testing for alcohol. The matter was referred to the Magellan Registrar for consideration for allocation in that list.
On 22 March 2024, the case was allocated to the Magellan List, with the Department of Fairness, Families and Housing (“DFFH”) requested to prepare and provide a Magellan Report to the Court (“The DFFH Magellan Report”).
The mother filed a Response to Final Orders on 4 May 2024 in which she sought orders that she have sole parental responsibility and that the children spend no time with the father.
On 19 June 2024, orders were made for the release to the parties of the DFFH Magellan Report dated 1 May 2024. That report detailed the investigation and assessment of the allegations of sexual abuse and family violence raised by the mother and concluded as follows:-
The Department intends to cease involvement with the family, as there is insufficient and inconsistent information to suggest that [X], [Y] and [Z] are at unacceptable risk of harm in parental care unless new allegations are received, and criminal matters are pursued.[4]
[4] Department of Families Fairness and Housing Magellan Report dated 1 May, 2024 (‘DFFH Magellan Report’), p. 14
Trial directions, including orders for the preparation of a Magellan Family Report, were made on 28 August 2024. The Magellan Family Report, dated 5 December 2024, was released to the parties pursuant to orders made 6 December 2024.
Following the release of that report, on 16 December 2024 the father caused a Further Further Amended Initiating Application to be filed in which he sought orders that he have sole parental responsibility for the children, that they live with him and there be a moratorium on the mother’s time with the children.
In her Amended Response filed 13 January 2025, the mother continued to agitate for orders that she have sole parental decision-making authority, that the children live with her, and spend no time with the father.
The final hearing commenced before me on 5 March 2025 and continued over a period of 13 days, concluding on 27 March 2025 when I reserved my judgment. Both parents and the Independent Children’s Lawyer (the ICL) were represented by Counsel throughout the hearing.
MATERIAL RELIED UPON
The father relies upon the following material:-
·Outline of Case document filed 26 February 2025;
·Further Further Amended Initiating Application filed 16 December 2024;
·Affidavit of Mr Oiaryp filed 16 December 2024;
·DFFH Magellan Report dated 1 May 2024;
·Affidavit of Dr W filed 1 August 2024;
·Affidavit of Dr W filed 5 August 2024;
·Affidavit of Ms O filed 12 March 2025;
·Affidavit of Mr N filed 12 March 2025;
·Magellan Report of Court Child Expert Ms B dated 5 December 2024;
·Amended Response to Final Orders filed by the Respondent Mother dated 13 January 2025;
·Affidavit of the Respondent Mother filed 13 January 2025; and
·Documents tendered during the course of the hearing, being Exhibits F1 – F17 and ICL29.
The mother relies upon the following material:-
·Outline of Case Document filed 26 February 2025;
·Minute of Final Orders Sought by the Respondent Mother dated 5 March 2025 and filed 4 March 2025;
·Amended Response to Final Orders filed 13 January 2025;
·Affidavit of Ms Wild filed 13 January 2025;
·Affidavit of Mr BB filed 5 March 2025;
·Affidavit of Ms H filed 5 March 2025 at 3.24p.m.
·Magellan Report of Court Child Expert Ms B dated 5 December 2024;
·Affidavit of Dr W filed 1 August 2024;
·Affidavit of Dr W filed 5 August 2024; and
·Documents tendered during the course of the hearing, being Exhibits M1 – M15.
The Independent Children’s Lawyer relies upon the following material:
·Outline of Case Document filed 27 February 2025;
·Subpoenaed material from Victoria Police, CC School, DD School, U School, C Centre and D Centre filed various dates;
·Magellan Report of Court Child Expert Ms B dated 5 December 2024;
·s67Z Response prepared by DFFH dated 22 November 2023;
·DFFH Magellan Report dated 1 May 2024;
·Affidavit of Dr W filed 1 August 2024;
·Affidavit of Dr W filed 5 August 2024; and
·Documents tendered during the course of the hearing, being Exhibits ICL1 – ICL29.
ORDERS SOUGHT
The father and the ICL seek orders in the terms of the proposed minute tendered on behalf of the ICL on the final day of hearing (Exhibit ICL-29). In summary, their proposal is that :-
(a)The father have sole parental decision-making authority with respect to the children;
(b)The children live with the father;
(c)The father engage a play therapist for Z and child psychologists for each of the children (“the children’s treatment team”);
(d)For a period of 6 months (“the suspended time period”), the children spend no time with the mother;
(e)Following the conclusion of the suspended time period:
(i)the children spend time and communicate with the mother by way of letters, cards and gifts sent via the father on special occasions; and
(ii)upon the children having engaged with the children’s treatment team for no less than 3 months, the children spend supervised time with the mother on twelve occasions per calendar year.
The mother seeks orders in accordance with the Amended Minute of Final Orders tendered on her behalf on 24 March 2025 (Exhibit M-14). In summary, she seeks orders that:-
(a)The parties have joint decision-making authority with respect to the children;
(b)The children live with the mother;
(c)The parents engage a Family Therapist, nominated by the Independent Children’s Lawyer, to undertake intensive reportable family therapy directed to reintroducing time and communication between the children and the father;
(d)The children ultimately spend time with the father:
(i)on alternate weekends from the end of school on Friday to the commencement of school on Monday;
(ii)each Wednesday from end of school to the commencement of school on Thursday;
(iii)for half of all school term holidays;
(iv)during the Long Summer Vacation as agreed in writing, and, in default of agreement, for the first half of that vacation period.
LEGAL PRINCIPLES
Part VII of the Family Law Act 1975 (Cth) (the Act) sets out the provisions relating to children.
Section 60B of the Act identifies the objects of the Act as follows :
(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.
The parties seek parenting orders, as defined by s 64B of the Act. That is, they seek orders relating to with whom and where the children are to live and the time the children are to spend with the other parent. The parents have standing to apply for parenting orders in accordance with the provisions of s 65C of the Act.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA of the Act).
Section 60CC of the Act sets out how the court determines what is in a child’s best interests by reference to general considerations (Section 60CC(2)). The list of general considerations of which I must consider in determining a child’s best interests include:-
·What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child;
·Any views expressed by the child;
·The developmental, psychological, emotional and cultural needs of the child;
·The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
·The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child where it is safe to do so;
·Anything else that is relevant to the particular circumstances of the child.
In addition to those general considerations, s 60CC(3) mandates that the Court must consider additional considerations related to the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary to connect with and maintain the connection with members of their family and with their community, culture, country and language and to explore the full extent of that culture consistent with the child’s age and developmental level and the child’s views and to develop a positive appreciation of that culture. Those considerations are not relevant in this matter.
Section 60CC(2A) provides that in considering arrangements that would promote the safety of the child the Court must include consideration of any history of family violence, abuse or neglect involving the child or a person caring for the child and any family violence order that applies or has applied to the child or a member of the child’s family.
Otherwise, there is no requirement for the general or additional considerations to be examined in any particular order, or for any single consideration to be afforded greater weight than others. Ultimately, the weight to be afforded to each of the considerations is a matter dependent upon the unique circumstances of each case.
Abuse in relation to a child is defined in s 4 of the Act and means:-
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
(Emphasis in original)
“Family violence” is defined by s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
In considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interests as the paramount consideration, ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence. The Court may include in orders any safeguards that it considers necessary for the safety of those affected by the order (s 60CG).
In determining this matter, I have considered all relevant subsections of s 60CC of the Act. It is not necessary that I specifically refer to each consideration as articulated in s 60CC (Banks & Banks [2015] FamCAFC 36; [2015] FLC 93-637).
What is the Court's approach to allegations of sexual abuse and unacceptable risk?
Although the mother abandoned her allegation that the father had sexually abused the children during the running of the trial, those matters were a central issue in the dispute. The husband contends that the disclosures made by the mother were procured as a result of her coaching, manipulation or influence upon the children; it is his submission that the mother poses an unacceptable risk to the children as a result of that conduct.
The fact that a case involves allegations of sexual abuse does not alter the Court's paramount obligation to determine what is in a child's best interests and to make orders that will promote that child's best interests. That this is so was confirmed by the High Court in M & M (1988) 166 CLR 69 ("M & M ") per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ (at page 76) as follows:-
…[T]he resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance of or rejection of the allegation of sexual abuse on the balance or probabilities.
The High Court noted at page 77 that:-
…[T]here will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring…and assess the magnitude of that risk.
The High Court then considered how to define the magnitude of risk and concluded that the test was best expressed by saying that the Court will not grant custody or access (as it then was) if it would expose a child to "an unacceptable risk" of abuse.
In Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 the Full Court reviewed the jurisprudence in relation to the assessment of risk in parenting matters and particularly in relation to the standard of proof required when assessing the future risk of harm. At [50] to [51] the Full Court noted:-
[50]In Fitzwater, Austin J rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof, saying:
132.Having eschewed the need for any positive factual finding that the father had sexually abused the eldest child, the mother's case was instead that the evidence was still sufficiently persuasive to establish the risk of sexual abuse posed by the father to the children, and furthermore, that the magnitude of the risk was unacceptably high, such that it could only be attenuated by the imposition of the children's permanent supervision when spending time with the father. The trial judge properly understood that to be the nature of the mother's case, as is evident from the reasons for judgment (at [1], [31], [60], [497], [501]). Consequently, the mother and the trial judge were entirely focussed on what the evidence implied was the risk of harm to the children in the future; not what probably did or did not happen in the past.
133.In civil proceedings, s 140(1) of the Evidence Act provides the "case of a party" must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the "case of a party" is defined (in the Dictionary to the Evidence Act) to mean "the facts in issue in respect of which the party bears the legal burden of proof". The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134.It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76 ; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child's best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child's best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court's discretionary judgment about how the child's interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).
135.The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 ("Malec")).
136.In Malec, Brennan and Dawson JJ said (at 639-640):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at 643):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137.The High Court was there referring to the prediction of a plaintiff's income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children's sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140.It cannot be correct that the unacceptable risk of a child's sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).
141.Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the "access" order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father's appeal was dismissed because the possibility of the child's past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child's future sexual abuse.
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
[51]We agree with and adopt that commentary as being a correct statement of the law.

The Full Court confirmed that the determination of evidence on the balance of probabilities is a separate and distinct step to a consideration as to whether an unacceptable risk is demonstrated. At [83] and [85] it stated:-
[83]Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.
…
[85]The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children's best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
Hence, having regard to that statement, the task before the Court is two-fold:-
·First, an assessment as to whether the allegations of abuse, in this case psychological and emotional abuse, are established on the balance of probabilities; and
·Second, whether looking to the future, there is an unacceptable risk of harm to the children, regardless of any findings made in relation to the allegations of abuse. That assessment will involve a consideration of where, on the continuum of chance between remote possibility and highly possible, the risk for these children lies and whether "the risk … [is] so potent it cannot be tolerated: it is unacceptable" (per Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212 at [139]).
The second predictive step is an evidence-based conclusion which will inform the assessment of what is in the children's best interests.
In determining the parenting dispute, I am not required to make findings on every factual dispute raised by the parties (Baghti & Baghti & Ors [2015] FamCAFC 71). The paramount issue for the Court is to determine which orders are in the best interests of the children in the circumstances of the case; in the process of that determination, the Court cannot be diverted by the supposed need to arrive at a definitive conclusion as to each and every factual dispute.
THE ISSUES
The following issues were the subject of dispute between the parents and require determination:-
(a)The allocation of decision-making authority with respect to major long-term issues affecting the children and particularly whether that authority should be the sole responsibility of the father or jointly shared between the parties;
(b)With whom the children should live;
(c)If they live with the father, whether there should be a moratorium on the mother’s time with the children;
(d)If they live with the mother, what time the children should spend with each parent;
(e)Whether the mother poses a risk of emotional or psychological harm to the children as a result of:-
(i)The serious allegations and purported disclosures allegedly made by X and Y with respect to sexual abuse;
(ii)The serious allegations made with respect to the children’s sexual abuse by Mr N;
(iii)Whether the mother has coached, influenced or manipulated the children to make disclosures in relation to alleged sexual abuse by the father.
(f)The mother’s capacity to foster and promote a relationship between the father and the children;
(g)Whether the father has committed family violence;
(h)Whether the father’s use of alcohol impacts his capacity to care for the children;
(i)Whether the father’s mental health issues, particularly his historic attempts of suicide, impact his capacity to care for the children;
(j)What, if any, safeguards are required to protect the children.
I will consider these issues within the framework of the required statutory considerations.
THE EVIDENCE
In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must 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.
I have read all documents upon which the parties have relied and the exhibits that were tendered during the hearing. The parties’ affidavits exhaustively set out their accounts of the history of their relationship and their position in relation to matters in dispute. I have read and considered that affidavit evidence and do not propose to repeat it at length in these reasons. It is not necessary for a Trial Judge to refer to every piece of evidence or argument presented during a trial. That this is so, was confirmed by the High Court in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], where Gleeson CJ, McHugh and Gummow JJ said:
… 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.
In what follows, statements of fact constitute findings of fact. In determining the matter, I have had regard to all of the evidence and had the benefit of observing the appearance and the demeanour of the father, the mother, and those witnesses who were required for cross-examination. I have carefully considered the matter and in making findings to the requisite standard, I have had regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.
THE FATHER’S EVIDENCE
The father commenced giving evidence on the afternoon of the third day of the trial. He was cross-examined by Counsel for the mother and the Independent Children’s Lawyer and gave evidence over the course of the following two days, concluding his evidence on the morning of the fifth day of the hearing.
The father impressed as a truthful witness. He presented as a considered, gentle and simple man. He readily made concessions against his own interests where necessary. For example, he conceded that notwithstanding his evidence as contained in his trial affidavit that he had ceased consuming alcohol, he continued to drink on occasions. Similarly, the father conceded that there had been instances where he had been verbally abusive towards the mother and acknowledged that there had been an occasion where he threw a phone at the mother during an altercation and that it hit her foot.
The father was steadfast in his denial that he was a perpetrator of sexual abuse against X or Y and was tearful when giving evidence in relation to those allegations, and his concern as to the impact of these matters upon the children.
The father was cross-examined as to his future proposals for the children’s care. He provided thoughtful responses when questioned as to the potential challenges for the children and him in the event of a change of residence. The father demonstrated insight as to the difficulties he and the children will face if they are to live with him; he recognised that the children would be distressed, upset and angry and that their behaviour in the aftermath of such a change would be challenging. The father indicated a willingness to seek help from appropriate professionals to support him in the care of the children. I accept the father’s evidence as to his awareness of the challenges facing the children and also as to his preparedness to seek professional help to support he and the children in the transition to his care.
Throughout his evidence, the father impressed as a loving and devoted father who genuinely wants what is best for the children.
THE FATHER’S WITNESSES
Mr N
The father lives and boards at the home of Mr N and his wife Ms O, in Suburb M, a suburb of Melbourne. Mr N swore an affidavit filed 12 March 2025 and was cross-examined by Counsel for the mother and the Independent Children’s Lawyer on the fifth day of the hearing.
Mr N is involved at the church attended by the father (and previously the mother and the children prior to the parties’ separation). He is otherwise employed full-time in hospitality.
Mr N confirmed during his oral evidence that he has known the mother and the father since mid-2022 and that he and his wife hosted the mother, the father and the children in his home on a weekly basis for Bible study. Mr N confirmed that he and his wife are willing to support the father and the children, that their home has capacity to accommodate the father and the children and that he is prepared to assist the father for so long as is required.
During cross-examination, Mr N observed the father to be loving and to treat the children with empathy and understanding. He observed that the father does not raise his voice. He also confirmed that the father was affectionate with the children.
Mr N impressed as a forthright and truthful witness. There was no serious challenge to his evidence, which I accept.
Ms O
Ms O is the wife of Mr N. Ms O swore an affidavit filed 12 March 2025 and was also cross-examined by Counsel for the mother and the Independent Children’s Lawyer on the fifth day of trial.
Ms O confirmed during her oral evidence that the father pays board for his accommodation at her home. She confirmed that she and her husband are happy to support and assist the father and the children.
Ms O confirmed that she does not tolerate the consumption of excessive alcohol in her home and was forthright as to her views with respect to such matters. Ms O confirmed that she was aware that the father visits a friend and occasionally spends nights away from the home with him. She observed that when the father brings friends to her home they do not drink.
Ms O further confirmed during her oral evidence that she and her husband are able to accommodate the father and the children and that they have carefully considered the impact of having the three children live with them in their home.
Ms O was confident that she has the capacity to support the father in her household, including managing behaviours from the children which may be oppositional, angry or distressed. She confirmed that she maintains a calm home. She observed that the children will require order and patience and will need time to adjust to that environment.
Ms O stated that prior to the parties’ separation the children were content in the father’s care. She observed the father to enjoy a calm and fun-loving relationship with the children and that the children appeared very happy when visiting her home. Further, Ms O noted that the children, and particularly Y and X, were familiar with her home and her family’s pet. Ms O expressed confidence in her skills to support and assist the father in the care of the children.
Ms O impressed as a truthful witness who was committed to supporting the father and the children. There was no challenge to her evidence, which I accept.
THE MOTHER’S EVIDENCE
The mother commenced giving evidence on the afternoon of the fifth day of the trial and her evidence concluded on the morning of the tenth day. The mother was cross-examined by Counsel for the father and the Independent Children’s Lawyer.
The mother was an unimpressive witness. At times she was evasive, refusing to directly answer questions. On other occasions she displayed remarkably poor recall of significant events, despite such events happening relatively recently. At times, the mother’s failure to recall significant matters in relation to the welfare of the children tested the limits of credibility.
My impression of the mother’s evidence, particularly with respect to the allegations of sexual abuse, was largely that it was given through the prism of what would most likely assist her case. This was particularly so in relation to the revised minutes of proposed orders tendered on her behalf through the course of the hearing; her position shifting and changing as her role in the disclosures of alleged sexual abuse became more apparent. The mother sought to minimise her role in the disclosures by the children and sought to attribute responsibility for those disclosures to advice she received from others. I formed the view that the mother considered herself almost blameless in relation to the chain of events which gave rise to the disclosures of alleged abuse, stating words to the effect that she was simply a mother “trying to help” or that it was “not her intention” to influence the children’s disclosures.
At times, I was left with the impression that the mother had attempted to manipulate the evidence available to the Court. For example, the mother conceded that she had deleted and destroyed the audio recordings made by her of her interview with X in August 2023. The mother conceded that those recordings were destroyed by her in May 2024, following her receipt of the Department of Families, Fairness and Housing Magellan Report which assessed the home recordings as containing “a multitude of leading questions (by [the mother] to [X]) and what can be concluded as a bribery for being ‘brave’ at the end of the recordings.[5]
[5] DFFH Magellan Report, p. 13
Further during the hearing Counsel for the ICL called for the mother to produce her 2022 diary to the Court. The mother produced the document which was tendered (Exhibit ICL-16). That document was missing pages covering the period April to May 2022. During cross‑examination the mother stated that the child Z had removed those pages. There is no evidence of tearing of the pages; rather they have been neatly removed, which given Z’s age, enlivens suspicion as to the veracity of the mother’s explanation. Those concerns are heightened given that the period of time recorded in those pages coincides with a period in which the father alleges the mother exhibited a range of concerning behaviours, including her claims that she was touched by God, that she had ceased taking prescribed medication for PTSD and depression, and had started smoking marijuana on a daily basis. The father also alleged that the mother had excessively punished the children during that period.[6]
[6] Father’s trial affidavit, paras. 14 to 15
In relation to other matters, the mother was plainly untruthful.
For example, the mother’s evidence as to the demeanour of the maternal grandmother, her relationship with the children and her attitude towards them was in stark contrast to information she had provided to D Centre and the child Y’s school. Initially, the mother stated during cross-examination that the maternal grandmother, who lives with the mother and the children, was calm around the children and was a loving grandmother. That description contradicted the mother’s own reports to D Centre in November 2024 of the maternal grandmother’s behaviour; she reported to the D Centre worker that the maternal grandmother was not open to discussion around the child Y’s concerning behaviours, and that the maternal grandmother was “very strict” and struggling with Y’s defiance (Exhibit F-12 page 26/70).
The reported disclosures made by the maternal grandmother to D Centre as to her relationship with and concerns for the child Y included that the maternal grandmother had called the police to attend the home as a result of Y’s behaviours towards her, that Y is going to become a “criminal” and that Y requires a “brain scan” to determine the damage caused to her as a result of being provided drugs by the father (Exhibit F-12, page 27/70).
When those reports of the maternal grandmother’s comments were put to the mother, she sought to distance herself from them, and to justify and minimise the maternal grandmother’s behaviour, noting that whilst the maternal grandmother might say things in the spur of the moment, she does not mean them.
During her evidence the mother confirmed that the maternal grandmother had shared with her her concerns that Y had been given drugs by the father. However, the mother was resolute in her assertion that she did not share the beliefs of the maternal grandmother with respect to this allegation. When questioned as to how she responded, the mother maintained that she informed the maternal grandmother that such a belief was not rational, and that there was no evidence to support it. She also denied that the maternal grandmother had ever suggested to her that Y might require a brain scan.
However, the mother’s oral evidence contradicted the records of her meeting with Ms EE, the welfare worker at U School, which occurred in December 2024. The notes of that meeting record the mother’s report of Y’s behaviour as follows:-
[Ms Wild] advises that there may be a time in the early year that [Y] will need to be tested for residual effects of drugs that potentially were given to the children by their father, [Ms Wild] believes there may be neurological and physical “defectiveness” as a result.
(Exhibit ICL-26)
When that report was put to the mother, the mother asserted that the record was inaccurate, that she had merely shared the maternal grandmother’s concerns with the school, and that she “[did] not know” how it had been recorded in that way, postulating that perhaps her comments had been taken out of context. I am satisfied that the mother’s contentions with respect to the school records are implausible; the notes provide a detailed and specific account of the mother’s reports and the statements attributed to her are clear, and include quotations. The mother’s comments are also strikingly similar to those made by the maternal grandmother to the D Centre worker some weeks earlier. Having regard to those matters I am satisfied on the balance of probabilities that the mother did make the comments attributed to her in the school notes.
The notes for that day also record the mother’s account of an altercation that occurred between the maternal grandmother and Y that morning, including that Y’s day had begun negatively as the maternal grandmother called her a “piece of shit”. The notes also record the mother’s admission that she did not intervene during that incident and that Y believes that “everyone in her life hates her” (Exhibit ICL-26). When cross-examined in relation to that incident the mother did not deny that the maternal grandmother had verbally abused Y but asserted that she had told the maternal grandmother to “get out”. When challenged as to the inconsistencies between that account and the school records, again the mother sought to distance herself from the report and shift blame to the notetaker.
Given the mother’s earlier oral evidence as to the maternal grandmother’s demeanour and relationship with the children, I found the mother’s evidence troubling. But for the D Centre notes and the school records, I am satisfied the mother would have maintained the image of the maternal grandmother as calm and loving. The notes of conversations between the mother and the D Centre worker and the school, and the maternal grandmother and the D Centre worker, are the only window into the maternal grandmother’s views and behaviours and their potential impact upon the children. In circumstances where the mother has elected not to call the maternal grandmother, who lives with the mother and the children and is a significant presence in their lives, as a witness in the proceeding, I am satisfied that the mother has endeavoured to conceal from the Court the true nature of the maternal grandmother’s attitudes and conduct.

The mother at times displayed a rigid and fixed view with respect to the behaviours of the children and others. For example, the mother expressed the view that Y had engaged in inappropriate behaviour when she sought to sit on the paternal uncle’s lap. During her oral evidence the mother confirmed her view that female children aged seven and over should not sit on the lap of an adult man.
Throughout her evidence, the mother demonstrated little capacity to reflect on her own role in the parental dispute or in relation to the disclosures of the alleged sexual abuse. She routinely sought to explain her behaviour as being actions taken upon the advice of others. Further, the mother demonstrated little insight as to the impact of her behaviour on the children, particularly with respect to the children’s exposure to her attitude towards and view of the father.
As a result of the above matters, I have significant reservations as to the weight to be attached to the mother’s evidence and where it conflicts with the evidence of the father, I prefer his account of those events.
THE MOTHER’S WITNESSES
Mr BB
Mr BB is an acquaintance of the mother, having met her at a religious celebration in early 2024. Mr BB swore an affidavit filed 5 March 2025 in support of the mother’s case. Mr BB was cross-examined by Counsel for the father and the Independent Children’s Lawyer on the tenth day of hearing.
Mr BB, together with the maternal grandmother and the mother’s friend, Ms H, accompanied the mother and the children to their appointments for interview for the purposes of the preparation of the Magellan Family Report, those interviews occurring on 20 November 2024.
The Court Child Expert, Ms B, reported as to Mr BB’s behaviour at the Court whilst attending those interviews with the children at [68] to [69] of the Magellan Family Report. At [68] of the Magellan Family Report Ms B reported that Mr BB, whom she mistakenly described as the maternal step-grandfather, stated in the presence of the mother and the children “Where’s my knife? I’m going to go find him”. Ms B reported that the mother stated that they would talk about that later.
In her trial affidavit, the mother denied that Mr BB had made that statement, deposing that he said, “I need to collect my pocketknife at security”.[7]
[7] Mother’s Trial Affidavit filed 13 January 2025, p. 16, para 44
Mr BB’s account of that event is set out at [12] of his Affidavit where he deposes as follows:-
After the interview concluded, I inquired whether the process was over and stated that we needed to return to the reception area to collect our belongings. I specifically mentioned that I had left my pocket-scissors at the security checkpoint and need to collect it.
(As per the original)
Further, at [14] of his affidavit, Mr BB categorically denied making the statement attributed to him by the Court Child Expert.
Mr BB was cross-examined in relation to those matters. His evidence was unimpressive and he was an unruly witness who was non-responsive and at times, difficult to contain. For example, when questioned as to what he had been told about the contents of the Magellan Family Report, Mr BB stated that he could not remember. When it was put to him that he was lying, he responded as follows:-
Then kill me, because that’s what the Bible says, and if I lie under oath so does everybody else in this room, so be very careful who you (unintelligible).
When asked to repeat his response Mr BB stated:-
He will kill them if they lie – Revelations 22:15 if you want a pacific (sic) verse.
Mr BB at first could not recall whether he had been told about the contents of the Magellan Family Report by the mother or her lawyers. Later in his oral evidence, Mr BB revealed that he attended a meeting with the mother, the maternal grandmother and Ms H during which the contents of the Family Report were discussed. Mr BB’s apparent initial poor recollection of that recent meeting was of concern, particularly given his apparent ability to recall in detail what he said about the pocketknife at the conclusion of the Family Report interview which had occurred approximately one month earlier.
During his oral evidence, Mr BB confirmed that he said, “Where’s my knife – I’m going home.” Mr BB further confirmed that he refers to his pocketknife as a pocketknife, and not “pocket-scissors” as deposed to in his affidavit. The contradiction between Mr BB’s oral evidence and his affidavit was also troubling, giving the impression that his affidavit had been drawn so as to mislead the Court as to what had occurred between the children and the mother and her supporters following the observation sessions.
Ms B, the Court Child Expert who prepared the Magellan Family Report, was firm in her recollection of what occurred at the conclusion of the observation interviews. She confirmed during her oral evidence that she recorded the statements contained at [68] and [69] of the Magellan Family Report within approximately 30 seconds of those statements being made. Ms B also confirmed that the statements contained in quotations were indeed direct quotations. Having regard to the contradictions in Mr BB’s own accounts of that event and the unshaken evidence of Ms B, I prefer her account of those events.
Mr BB also gave evidence as to his involvement with the mother and the children. He confirmed that he attends the mother’s home on a weekly basis to supply vegetables and packaged food to her and the children.
Mr BB was also cross-examined as to his involvement with the mother’s religion and as to whether he was a religious leader of that church. Mr BB responded that he was a “watchman” and, unprompted, then stated that the world would end in less than eight years; that there is a war coming because the Middle East is about to “explode”. Mr BB was an uncontained witness who freely expressed his views about the world, religion and the Bible.
Mr BB also confirmed that he regularly attends the mother’s home for Bible study with the maternal grandmother; the children are present at the home during these sessions. As to the hierarchy within the mother’s home and the role of the maternal grandmother, Mr BB noted that the maternal grandmother is a mother and that the mother is learning from her. Mr BB clearly perceived the maternal grandmother to be the head of the household.
During closing submissions, Counsel for the mother placed little reliance upon the evidence of Mr BB and sought to distance that evidence from his client’s case. In light of the strident manner in which Mr BB gave his evidence coupled with the, at times, unusual views expressed by him, that position was unsurprising.
Ms H
Ms H is a friend of the mother. Ms H swore two affidavits, both filed 5 March, 2025, albeit that the mother sought to rely on only the first filed of those affidavits. Ms H was cross‑examined by Counsel for the father and the Independent Children’s Lawyer on the tenth day of hearing.
Ms H confirmed during cross-examination that she had given evidence to the Court to assist the mother and the children. Ms H confirmed that she was aware that the recommendations contained in the Magellan Family Report were not favourable to the mother’s case. She also confirmed that she had given evidence to challenge the matters contained in that, particularly the account of the behaviour of Mr BB and the maternal grandmother set out in the Magellan Family Report at [68] and [69].
Ms H was cross-examined in relation to the evidence given by her in her second affidavit filed 5 March 2025 at 6.49pm. In particular, she was questioned as to her evidence of a telephone conversation between she and the mother that occurred in mid-2023. Ms H there deposed that she and the mother discussed an incident involving a member of the mother’s church and how the member of that church made the mother feel uneasy. Ms H had disclosed to the mother during that conversation that she had a similar “uneasy feeling” about the father and noted that his behaviour seemed to change around the girls, making Ms H feel uncomfortable.
Ms H was challenged in relation to that evidence and questioned as to what made her feel uncomfortable about the father’s behaviour. Ms H’s response was that she had observed the father’s behaviour to be different behind closed doors. When invited to provide examples of that behaviour, Ms H stated that she had witnessed yelling, swearing and name-calling. During cross-examination, Ms H conceded that that behaviour occurred during arguments between the mother and the father and that the mother also on occasion verbally retaliated. She also agreed that the mother sometimes swore at the father. Ms H’s affidavit was silent as to the mother’s conduct on those occasions.
Ms H was also questioned in relation to the alleged conversation she had with the mother regarding the mother’s disclosure that the father had asked X to take her top off when the family was staying with her in Town J. Ms H confirmed that that incident occurred between February and May 2022 when the family was living with her and that on that occasion X had complained that she was hot. Ms H agreed that it was normal to suggest to a child to take an article of clothing off if she felt hot.
Ms H was also challenged in relation to her evidence regarding altercations between the mother and the father. For example, Ms H deposed that on an occasion in March 2021, she and her husband together with the mother and the father attended a hotel in Town J, that the father’s behaviour “escalated” and that he was removed from their home. During cross-examination Ms H conceded that all present on that occasion, including the mother, were drinking that evening and that she and her husband as well as the mother and the father were intoxicated. Ms H’s affidavit was silent in relation to those matters.
Ms H’s affidavit was also silent in relation to the mother’s use of marijuana which the mother acknowledged occurred during the period she was residing in Ms H’s home. Ms H agreed during cross-examination that the mother was a frequent user of marijuana during the period in which she stayed at Ms H’s home.
During cross-examination by Counsel for the ICL Ms H conceded that she observed no sexually inappropriate behaviour by the father around the children and that the only information she has in relation to the alleged sexual abuse is what has been told to her by the mother.
Ms H also conceded that the mother had told her she made the audio-recorded interview with X so as to have evidence of those matters.
My overall impression of Ms H was that she had a fixed and negative view of the father; she appeared genuinely shocked when told that the mother was not pressing her claim that he had sexually abused the children. It was clear from the commencement of her oral evidence that Ms H was closely aligned with and supportive of the mother. Much of her evidence was hearsay, she recounting information provided to her by the mother as to the father’s alleged aberrant behaviour. Having regard to that circumstance, I am satisfied that little weight can attach to her evidence.
EXPERT WITNESSES
Dr W
Dr W is a Clinical Psychologist engaged by the Independent Children’s Lawyer pursuant to the orders made on 19 March 2024 to undertake psychological assessment of both the mother and father. His assessment of the father dated 30 July 2024, is annexed to his affidavit filed 1 August 2024. His assessment of the mother dated 30 July 2024 is annexed to his affidavit filed 5 August 2024.
As to the father and the question of any risk he poses to the children, the father was assessed as presenting a low risk of sexual violence. In relation to the father’s health and treatment, Dr W recorded the father’s report of his attempted suicides in 2019 and 2023. He noted that the father had been diagnosed with Major Depressive Disorder following his first suicide attempt and had been prescribed antidepressant medication in early 2023. Dr W noted the father denied any ongoing suicidal ideation.
Dr W recommended that the father engage with Dr FF to address his identified personality vulnerabilities.
As to the mother, Dr W noted that she had previously experienced periods of suicidal ideation, but that she denied having had any genuine intent to suicide. Dr W further recorded the mother’s report that she was prescribed antidepressant medication between 2014 and 2022. Further, he noted the mother’s report of recovered memories of childhood sexual abuse and that she had previously been diagnosed with Post-traumatic Stress Disorder. Dr W did not observe evidence of disordered thinking or frank psychotic symptoms in the mother.
Dr W was not required for cross-examination and his assessment of the mother and the father is unchallenged. Accordingly, I accept his evidence.
Ms B
Ms B is a Court Child Expert. She holds relevant tertiary qualifications. She was previously employed in a variety of community support roles in Suburb Q. She has been employed in the Melbourne Registry of the Family Law Courts since 2019, and since 2021 has been a Court Child Expert in this Court. There was no challenge to Ms B’s professional qualifications or expertise.
Ms B prepared a Magellan Family Report dated 5 December 2024. At pages 3 to 4 of the Magellan Family Report Ms B identified the documents reviewed for preparation of the report, which included filed material, and the documents produced under subpoena by Victoria Police. Further, Ms B conducted interviews with the mother and the father via Microsoft Teams on 15 November 2024 and in-person interviews with the children and observations of both the mother and the father with the children on 20 November 2024.
Ms B’s observations of the children at interview are set out at pages 14 to 16 of the Magellan Family Report. With respect to X, Ms B observed her to describe the father as a “big fat pig”. Ms B reports that X stated that the father was not nice to her and would yell at her, Y and the mother. X cited one incident when she was a toddler where she contends the father came home drunk and fell on the ground and hit her. Ms B challenged X’s recollection of that event, questioning how she could recall an incident from such a young age. Ms B noted X’s response as “I just can”. X was asked whether there were other incidents with respect to the father’s behaviour. Ms B records that X was unable to state any other incidents but noted that X reported that she found him “scary. I just don’t like him”. At no stage did X disclose to Ms B any instances of sexual or physical abuse by the father.[8]
[8] Magellan Family Report dated 5 December 2024 (‘Magellan Family Report’), para 49
In relation to the mother, X described her as “kind, loving and loveable”.[9]
[9] Magellan Family Report, para 50
Ms B reports that she asked X whether there was anything the father could do to repair their relationship. Ms B noted X’s steadfast response that she was not seeing the father, with X reported as stating:-
I’m not seeing dad, hell no. There’s nothing he could do. He’s done enough.
Ms B reports that she questioned X as to what “enough” was. X did not respond.[10]
[10] Magellan Family Report, para 51
As with X, Ms B asked Y how she would describe the mother. Y chose the words “happy, loving and friendly”.[11]
[11] Magellan Family Report, para 55
In relation to the father, Y described him as “mean, angry, yelling and fighting”. Ms B reports that she asked Y about some incidents that made her feel like that, and Y stated that the father had “traumatised us”. However, Ms B reports that Y was unable to explain what “traumatised” meant.[12]
[12] Magellan Family Report, para 55
Ms B reports that she enquired as to any specific incident Y could recall regarding the father’s behaviour towards her. Y is reported to have said that the father had pushed and shoved her and she recalled one time when she was a toddler that he cut her. Y could not recall where the father had cut her because she was very young. Like her sister, Y did not disclose any sexual abuse during interview with Ms B.[13]
[13] Magellan Family Report, para 57
During observation between the father and the children Ms B reported as follows:-
60.When [Mr Oiaryp] entered the childcare room, [X] and [Y] were sitting on the couches at the far end of the room. [Z] was playing with the childcare worker close to his sisters. [Mr Oiaryp] walked up and said hello to the children. [X] and [Y] both looked at [Mr Oiaryp] and then looked away, remaining seated. [Z] looked at [Mr Oiaryp] and started looking out the window.
61.[Mr Oiaryp] kept a distance and attempted to engage the children in conversation asking about school and how they were. He took a seat on the far side of the space. [X] moved to be closer to [Y] who was hugging a toy dog. [Mr Oiaryp] referred to [X] and [Y] by their names, at one point [X] shouted not to call them those names because they have changed their names but refused to tell [Mr Oiaryp] their new names. When [Mr Oiaryp] asked about school [Y] indicated through a thumbs down that she was not enjoying school. When she did so [X] looked at her and whispered, “Don’t talk to him.” After this [Y] and [X] did not engage with [Mr Oiaryp] and focussed their eyes to the ground. [Z] remained at the window and interacted with [Mr Oiaryp], answering some questions. The writer was unable to decipher what [Z] was stating. [Mr Oiaryp] called [Z] handsome and cheeky, [Z] smiled at this but then turned to look out the window.
62.[X] looked to the writer and asked if she could leave. The writer confirmed with [Y] and [X] they wanted the observations to end. [Mr Oiaryp] stood up and stated he loved the children. [Y] and [X] continued to look down at the floor. [Mr Oiaryp] left the observation room without issue.
As to her assessment of the observations and interviews with the children, Ms B noted that it was evident that both X and Y feel distrustful and upset when talking about or engaging with the father. As to Z, she noted that given his young age he appears to be considerably less impacted and that whilst hesitant, potentially because of his sisters’ influence, he was open to engaging with the father during the observations.[14]
[14] Magellan Family Report, para 72
In relation to her observations of the children with the mother, Ms B reported that the children have a close and trusting relationship with her and that each child views her as a safe person to speak and connect with.[15]
[15] Magellan Family Report, para 72
As to her assessment of the children, Ms B noted that both X and Y presented with:-
…rigid and polarised feelings towards [the father], with limited explanation as to where their hatred for [the father] came from. They were unable to provide …detail, context or specificity when asked about the allegations or concerns regarding [the father]. Instead, [X] and [Y] were vague and generalised in their narratives. Furthermore, [X] and [Y] provided the writer with examples of abuse that would not be possible for them to have recalled; with [X] stating an incident of violence occurring when she was two years old and [Y] recalling an incident where [the father] cut her when she was one year old.[16]
[16] Magellan Family Report, para 75
Ms B observed that both girls were concrete in their thinking and did not demonstrate any capacity to consider alternatives to the narrative that they had been abused by the father. She also observed that changing that narrative or considering alternatives would likely cause a high level of distress and dichotomy for the children and she questioned the mother’s willingness and/or ability to support the children in considering alternative scenarios.[17]
[17] Magellan Family Report, para 75
Further, Ms B observed a level of emotional enmeshment between the children and the mother. She noted that the mother was keen to support the children in their distress after observations with the father but did not appear able to de-escalate the children’s upset and further appeared to impose her own feelings on the situation.[18] In addition, Ms B observed what she described as “a level of catastrophising” by the mother and the support people attending, namely the maternal grandmother, Mr BB and Ms H.[19]
[18] Magellan Family Report, para 76
[19] Magellan Family Report, para 76

The mother has been the primary caregiver for the children since the parties’ separation in December 2022. Initially the parties separated in July 2022 following the making of an Interim Intervention Order against the father. Notwithstanding that order, the mother sought the father’s assistance and invited him into the family home to care for the children as is evidenced by the SMS text messages from her to the father throughout August 2022 (Exhibit F-2).
Throughout her oral evidence, the mother maintained that at all times she has been motivated to act protectively on behalf of the children. She asserted that she did not coach, influence or manipulate the children to make disclosures of sexual abuse. Whilst the mother may have perceived herself to be acting protectively, I do not accept her contention that she did not coach or influence the children to make disclosures of sexual abuse. Ms B observed that the children, and particularly X, have very close relationships with the mother. Ms B considered, and I accept, that the children and particularly X and Y had an enmeshed relationship with the mother and that X had been parentified.
As to Z, I am satisfied that his care has been neglected by the mother. She has failed to engage with appropriate services to assess his hearing and to support his speech and language development. Further, as at November 2024 when he was aged four years, Z was still wearing nappies; this apparently was not a matter of concern to the mother.
As a result of those findings, I am satisfied that the mother has not appropriately attended to the children’s developmental, psychological and emotional needs.
The father has had little if any opportunity to attend to the children’s needs since the time of the parties’ final separation in December 2022. However, the father has actively pursued a relationship with the children in these proceedings in the face of staunch opposition and scandalous allegations pursued by the mother. Ms B observed that the father had demonstrated great resilience and determination in his pursuit of his application in this Court. I agree with that assessment.
There is no question that the father has faced personal challenges, that he has been treated for depression and that he had enormous difficulty, particularly in the aftermath of the breakdown of the relationship which resulted in his attempt at suicide. Since that time, the father has actively worked to improve his mental health to ensure that he is available to the children. He has followed all recommendations of Dr W and continues to attend upon a psychologist. Further he has undertaken and completed a men’s behavioural change program.
Having regard to those matters, I am satisfied that the father has shown child focus and commitment and demonstrated insight as to his responsibilities as a parent and as to the needs of the children. As such, I am satisfied that the father is the parent with superior parental capacity who is best placed to ensure that the children’s physical and emotional needs are met. I am also satisfied that he is the parent best placed to ensure that the children have the opportunity of an ongoing relationship with the mother.
The mother sought to challenge the father’s capacity to financially support the children. However, in circumstances where the father has consistently met his child support obligations since separation and at the time of trial was committed to a child support payment plan, has privately funded these proceedings, and gave evidence that he will be drawing on his savings and may seek Centrelink benefits during his initial period of care of the children when he does not intend to work, I am satisfied that the father’s capacity to financially support the children is not in issue.
Having regard to my earlier findings as to the mother’s conduct, I am satisfied that the mother’s parenting capacity is severely compromised by her rigid and fixed views as to the sexual abuse allegations, which were only abandoned by her in the face of overwhelming evidence that they could not be maintained. Further, I have little confidence in the mother’s capacity to support the children’s relationship with the father, having regard to my findings as to her role in the propagation of the sexual abuse allegations and her unilateral suspension of the children’s time and communication with the father.
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
Ordinarily, it is in a child's best interests to have a meaningful relationship with both parents. The question of what is a "meaningful relationship" was considered by Brown J in Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At [26] of that judgment Her Honour concluded that a meaningful relationship, or a meaningful involvement, is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) of the Act and concluded that:-
[119]… the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...
…
[122]In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
At the commencement of the trial, the mother proposed that the father spend no time with the children. By its conclusion the mother’s position had shifted to one whereby after family therapy, the father would spend time with the children each Wednesday evening and on an alternate week basis from after school on Friday to the commencement of school on Monday. Hence, there was a dramatic shift in the mother’s proposal over the course of the 13 days of hearing.
Notwithstanding the mother’s assertions during her oral evidence that she had resiled from the belief that the father had sexually abused the children, I hold significant doubts as to the mother’s commitment to that position. The reality is that the mother was well aware that the sexual abuse allegations had not been substantiated as early as May 2024 upon the release of the DFFH Magellan Family Report. That report plainly identified the inconsistencies in X’s disclosures, the improbability of many of her allegations, and further, the concerns as to the impact of the mother’s audio recordings. Notwithstanding receipt of that information the mother persisted with her claims. That position continued even after Victoria Police had indicated that it would not be pursuing criminal matters against the father.
Not only did the mother persist in the allegations, but by the time of the interview for the Magellan Family Report, the mother informed Ms B that the matters alleged really happened and further, expanded the suite of allegations to include an allegation that X did not like having sticky fingers due to her previous experience of having semen on her hands. That was the first and only time such an allegation had been raised. It was an allegation that did not emerge until November 2024, some six months after the release of the DFFH Magellan Report.
Having regard to those matters, I have little confidence in the mother’s capacity to support the children having a meaningful relationship with the father. That view is bolstered in light of the conduct of the maternal grandmother, who was observed to howl for some minutes in this Registry upon the conclusion of the children’s observation session with the father. Having regard to the evidence of Mr BB, coupled with the statements made by the maternal grandmother to the D Centre worker (Exhibit F-12), on any view the maternal grandmother is a forceful and influential presence in the children’s home. Given the maternal grandmother’s dysregulated behaviour in the Court environment, where she would have anticipated that her conduct was to be observed and reported on, I have grave concerns as to her behaviour towards and influence over the children behind closed doors in the mother’s home.
Those concerns are amplified in circumstances where the mother did not call the maternal grandmother as a witness in the proceedings, notwithstanding the adverse observations made of the maternal grandmother’s conduct by Ms B. In light of that fact, I am satisfied that it can be inferred that any evidence given by the maternal grandmother would not have assisted the mother’s case (per Jones v Dunkel (1959) 101 CLR 298).
In contrast, the father during his oral evidence confirmed his commitment to supporting the children’s relationship with the mother provided that it is safe to do so. I accept that evidence. Whilst I have little confidence as to the mother’s capacity to support the children’s time with the father, I do not hold the same concerns for them if they are in the father’s care; I am satisfied that the children will have the opportunity of a relationship with both parents if they live with the father.
The father seeks orders for the children to resume supervised time with the mother at the expiration of six months. As a result of the concerns identified by Ms B, which I accept, as to the potential for the mother to undermine the father’s relationship with the children, as well as the mother’s inability to contain her own emotions and beliefs, it will be necessary for the mother’s time with the children to be supervised. I recognise that this will result in a significant diminution of the mother’s role in the children’s lives. Nonetheless, it will still afford the children the opportunity of a relationship with the mother. They will know their mother, they will know that she loves and cares for them and she will continue to be an important figure in their lives. I am satisfied that orders for supervised time as proposed by the father are in the children’s best interests, ensuring their safety whilst affording them the opportunity of benefitting from an ongoing relationship with the mother.
Anything else that is relevant to the particular circumstances of the child.
The children have been the subject of court proceedings since the father commenced these proceedings in September 2023. The children have suffered enormous disruption since the parents’ separation. They have lived in numerous homes with the mother in Suburb K, Town J, Suburb GG, Suburb Q and more recently Town R in Victoria. Further, X and Y have attended schools in Town JJ, Town J, Suburb K, Suburb Q and Town S. There has been enormous dislocation for the children from their father, their school and church communities and from the paternal family.
Having regard to that history, I am satisfied that the children’s best interests will be served by orders that are least likely to lead to the institution of further proceedings. The orders that I propose to make will ensure that the children and the parents have certainty, moving forward.
CONCLUSION
The ICL and the father were united in the orders they urged the Court to make as contained in Exhibit ICL-29.
Both the ICL and the father sought orders that the father have sole decision-making responsibility in relation to matters concerning the children’s long-term care, welfare and development. The mother seeks orders that that responsibility be shared.
Section 61C(1) of the Act provides that each parent has parental responsibility, regardless of whether they lived together or are separated (s 61(C)(2)), subject to any contrary order of the court (s 61C(3) and s 61D).
Orders made allocating parental responsibility for a child in relation to “major long-term issues” may provide for joint or sole decision-making in relation to all or specified major long‑term issues (s 61D(3)). The Act defines major long-term issues as issues about the care, welfare and development of the child of a long-term nature, including the child’s education, religion, culture, health, name, and changes to the child’s living arrangements (s 4(1)). Section 61DAA defines the requirements, unless specified otherwise in the relevant orders, of joint decision-making for major long-term issues. Pursuant to s 61DAA(1), persons with joint decision-making responsibility must consult each other in relation to each such decision and make a genuine effort to come to a joint decision. A person who has parental responsibility for a child is not required to be consulted by another person in respect of minor decisions for the child which are outside “major long-term issues” (s 61 DAB).
Given the serious allegations raised by the mother against the father, and my concern that she continues to harbour such beliefs, notwithstanding her stated position before the Court that she has abandoned that position, I have little confidence in the capacity of the parents to join in making decisions together regarding the children’s long-term care, welfare or development. In circumstances where I am satisfied that the children should live with the father and that there be a moratorium on the mother’s time with the children, followed by limited supervised time with the mother, I am satisfied that the children’s best interests require that responsibility for making major long-term decisions regarding their long-term care, welfare and development should rest with the father.
There are sound practical reasons for the father to have such responsibility; upon the making of these Orders he will be required to enrol the children at schools, ensure that their medical needs are attended to and re-engage them in his church community. Such matters will need to be addressed promptly to ensure the children’s needs are met. In my view, a requirement that the father consult with the mother regarding such decisions, particularly having regard to the conflict and disagreement which has endured since the parties’ separation, would be unworkable.
The father and the ICL also seek orders that the children live with the father and that there be a six-month moratorium on the mother’s time with the children. It was submitted on behalf of the father and the ICL that such orders were necessary to ensure that the children are not further exposed to the unacceptable risk of emotional and psychological harm posed by the mother. Both relied upon the mother’s actions in coaching and manipulating the children to make disclosures of sexual abuse against the father.
I am satisfied that the mother has actively obstructed the children from spending time with and communicating with the father. The mother has embarked on a course of conduct which has had the effect of erasing the father’s presence from the children’s lives. That process began with her permission granted to both X and Y to change their names, the effect of which was to distance them from their connection with the father.
Further, I am satisfied that the mother has fostered the children’s belief that their father is a man to be feared. She has ensured the children’s continued engagement with counselling services to support the children’s belief that they have been sexually abused by the father. Further, the mother has done so in circumstances where she was aware that those allegations could not be substantiated.
Having regard to those matters, I am satisfied that the mother has visited emotional and psychological harm on the children. I am also satisfied, having regard to the evidence of Ms B regarding her concerns as to the mother’s capacity to alter her views of the father and to undermine and disrupt his relationship with the children, that there is an unacceptable risk that the mother will continue to cause the children emotional and psychological harm.
The mother urged the Court to make orders for family therapy to enable the children to reestablish a relationship with the father. The evidence of Ms B, which I accept, is that in her view, the matter is “too far gone” to contemplate such an approach. Ms B expressed significant reservations as to the mother’s capacity to shift her views of the father. Further, Ms B also expressed the view that even if the mother’s views were to change, that does not resolve the risks associated with the uncontained views of the maternal grandmother, and in particular, the risks posed to the children by their exposure to such views. In addition, Ms B expressed significant concerns that family therapy may re-trigger the children’s concerns regarding the father causing them further turmoil and distress and thereby compromising their psychological well-being.
The mother also submitted that to change the children’s residence to the father’s household would visit significant trauma upon them. Ms B acknowledged during her oral evidence that were the children to live with the father they would be traumatised and that it would take some months for the children to adjust. Nonetheless, Ms B was firm in her view as to the ongoing psychological trauma that the children are experiencing in the mother’s care and the significant impact of it upon the children’s emotional development and mental well-being. She was also firm in her belief that the father has the capacity to provide a healthier and safer environment than the mother’s household, in which the children could be free from the psychological and emotional risks to which they are exposed in the mother’s household. I accept that evidence.
Having regard to Ms B’s evidence and to my earlier findings as to the mother’s conduct and parenting capacity, I am satisfied that it is in the children’s best interests that they live with the father. I am also satisfied that it is in the children’s best interests that there be a moratorium on the mother’s time with the children for a period of six months as recommended by Ms B, so as to ensure that the father’s relationship with the children is not undermined or disrupted by the mother.
Further, I am satisfied that upon a resumption of the mother’s time with the children, such time should be supervised to ensure that the father’s relationship with them is not undermined.
Ordinarily, the Court is reluctant to make orders for long-term supervision, although it can and should do so if it is determined that such orders are in the child’s best interests. The Full Court has cautioned against the making of such orders in the absence of a review mechanism (see Champness & Hanson (2009) FLC 93-407; Slater and Light (2013) 48 Fam LR 573). Those decisions express concern as to making of such orders without at least providing an opportunity for the party the subject of supervision some mechanism for seeking to remove the supervision requirement.
The difficulty with providing such a mechanism in this matter is the fact that there is no evidence before the Court that the mother is meaningfully engaged with counselling or therapy to assist her to shift her entrenched views of the father. Whilst the mother’s oral evidence indicated changed views, the reality is that her pursuit of the allegations against the father has escalated over time and were firmly held by her up to the commencement of the trial. Accordingly, having regard to those factors and the evidence of Ms B regarding her doubts as to the mother’s capacity to shift her views coupled with the inability of the children to self-protect, I am satisfied that an order for long-term supervision is in the children’s best interests.

I am also satisfied, having regard to the evidence of Ms B, that it is appropriate that orders be made for the father to make all necessary arrangements for Z to engage in play therapy and for the children to have the support of individual child psychologists to support and assist their transition into the father’s care.
Both the ICL and the father also seek orders restraining the mother from spending time with and communicating with the children by any means including mail, telephone, email, text message or social media and from approaching within 100 meters of the father’s residence or the children’s school. In light of my concerns as to the mother’s behaviour and having regard to the challenges that she will face upon the implementation of these Orders, I am satisfied that such orders are in the children’s best interests and I will therefore make orders as sought.
I am also satisfied that it is in the children’s best interests that the Final Parenting Orders and a copy of these Reasons be provided to the supervision service engaged by the parties as well as the principal of any schools or kindergartens attended by the children as well as any other health professional engaged with the children or the parties.
Both parties seek orders that there be information sharing in relation to the children’s progress at school and as to school events as well as in relation to any significant illness or medical condition suffered by the children. Accordingly, I will make orders to that effect. I will also make orders to ensure that the parties keep each other informed as to their contact telephone numbers and notify each other of any changes to their contact details within 24 hours of such change.
In light of the issues raised in the proceedings with respect to consumption of alcohol and illicit substances, I am also satisfied that it is in the children’s best interests that orders be made that the parties be restrained from consuming alcohol to excess or using illicit substances when the children or any of them are in their care. I will also make orders restraining both parents from denigrating, belittling, rebuking or otherwise insulting the other party or discussing these proceedings in the presence or hearing of the children.
The mother sought orders that the father continue to attend upon his treating psychologist, Dr FF. The father’s evidence, which I accept, is that he commenced attending upon Dr FF upon recommendation by Dr W, that he has been attending upon her regularly since mid-2024 and that it is his intention to continue to do so. I am satisfied that the father clearly recognises the importance of maintaining his health and is committed to continuing to do so. He has engaged with Dr FF without the requirement of Court order. Having regard to that history I am not persuaded that there is a need for an order as sought by the mother.
The mother also sought orders restraining the parties from home-schooling the children, permitting them to use names other than their given birth names or exposing the children to any age-inappropriate medium. No submission was made to the effect that the father has engaged in such conduct. Indeed, I am satisfied that it is only the mother who has permitted the children to change their names and commenced home-schooling X. Accordingly, I am not satisfied that the injunctions sought by the mother are warranted in circumstances where the children will be living with the father.
The mother also seeks orders permitting both parents to attend the children’s sporting, school and extra-curricular activities that permit parental attendance. In circumstances where I have found that the children should live with the father and the mother spend only supervised time with them after the six-month moratorium, I am not satisfied that the orders sought by the mother are in the children’s best interests. Indeed, in light of my findings as to the mother’s conduct, I am satisfied that there is a risk that the children’s emotional health and well-being may be compromised by the mother’s attendance in such settings.
The ICL has helpfully indicated a preparedness to remain involved in the matter to support the children’s transition to the father’s care and as such proposes that there be a discharge of her appointment 12 months from the date of these orders. In light of the orders I will be making, I consider such an arrangement to be appropriate in advancing the children’s best interests. Accordingly, I will make an order to that effect.
I will also make orders requiring the ICL to meet with the children following the delivery of this judgment, to ensure that she is available to inform the children of these orders and explain their meaning and effect.

I certify that the preceding three hundred and thirty (330) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.
Associate:
Dated: 10 April 2025

File number(s):	DGC 3388 of 2023
Judgment of:	JOHNS J
Date of judgment:	10 April 2025
Catchwords:	FAMILY LAW – CHILDREN – Magellan – best interests – allegations of sexual abuse and family violence perpetrated by the father – where those allegations were largely unsubstantiated – where the mother concedes during the trial that the evidence does not support findings that the father has sexual abused the children – where the children have not spent time with the father for two years – where the father contends that the mother poses risk of emotional and psychological harm due to her influence upon and coaching of the children to make disclosures of abuse – where the mother seeks joint decision making responsibility and that the parties engage in family therapy to aid the restoration of the children’s relationship with the father – where the father seeks orders that the children live with him and a moratorium on the mother’s time with the children –– orders for the father to have sole decision-making responsibility and the children to live with him – children to engage with a specialised treatment team – moratorium on the mother’s time for six months – supervised time with the mother to resume thereafter
Legislation:	Evidence Act 1995 (Cth) s 140(2) Family Law Act 1975 (Cth) Part VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 64B, 65C
Cases cited:	Baghti & Baghti & Ors [2015] FamCAFC 71 Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637 Champness & Hanson (2009) FLC 93-407 Fitzwater & Fitzwater (2019) 60 Fam LR 212 Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 Jones v Dunkel (1959) 101 CLR 298 M & M (1988) 166 CLR 69 McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Slater and Light (2013) 48 Fam LR 573 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:	Division 1 First Instance
Number of paragraphs:	331
Date of last submission/s:	27 March 2025
Date of hearing:	5-7, 11-14, 17, 19, 20, 24, 26, 27 March 2025
Place:	Melbourne
Counsel for the Applicant:	Mr Weerappah
Solicitor for the Applicant:	Bayside Solicitors
Counsel for the Respondent:	Mr Devries
Solicitor for the Respondent:	RRR Lawyers
Counsel for the Independent Children's Lawyer:	Ms Elleray
Solicitor for the Independent Children's Lawyer:	Oldham Family Law

DGC 3388 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR OIARYP Applicant
AND:	MS WILD Respondent

ORDER MADE BY:	JOHNS J
DATE OF ORDER:	10 APRIL 2025