Perry & Holland - [2022] FedCFamC1F 261

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Perry & Holland [2022] FedCFamC1F 261

File number(s): MLC 5473 of 2020

Judgment of: BENNETT J

Date of judgment: 26 April 2022

Catchwords: FAMILY LAW- PARENTING- circumstances justifying second interim assessment of time to be spent- whether family should engage private clinician or independent child and family services provider for therapeutic support- whether father’s time with child can be extended to include unsupervised overnight time – whether mother required to disclose residential address.

Division: Division 1 First Instance

Number of paragraphs: 122

Date of hearing: 28 January and 17 March 2022

Place: Melbourne (heard via MS Teams)

Counsel for the Applicant: Mr Barbayannis

Solicitor for the Applicant: Hargreaves Family Lawyers

Counsel for the Respondent: Mr Ng (28 January 2022) and Mr Strong (17 March 2022)

Solicitor for the Respondent: Pentana Stanton Lawyers (28 January 2022) and Victoria Legal Aid (17 March 2022)

Counsel for the Independent Children’s Lawyer: Ms Treyvaud

Solicitor for the Independent Children’s Lawyer: Macgregor Barristers and Solicitors
ORDERS

MLC 5473 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PERRY

Applicant

AND:
MS HOLLAND

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

26 APRIL 2022

THE COURT ORDERS THAT:
1.Until further order, the father spend time with X as follows:-
(a)On a fortnightly cycle:
(i)In week 1 on Tuesday from 11 am (or after kindergarten) to 5pm, and from 8:30 am Saturday to 12 noon Sunday, with overnight time to take place at the paternal grandmother’s home.
(ii)In week 2, on Tuesday from 11 am (or after kindergarten) to the start of childcare/kindergarten Wednesday, and from 8:30 am to 4 pm Saturday, with overnight time to take place at the paternal grandmother’s home.

(b)X will spend such further or other times with the father as may be agreed between the parents in writing.

2.Until further order, during the child’s spend time with the Father, the Father shall:
(a)have the paternal grandmother Ms C or the paternal aunt Ms B, in substantial attendance;
(b)not co-sleep with the child during overnight time spent; and
(c)avoid engagement in intimate care of the child (bathing and toileting etc), where possible.

3.That pursuant to Sections 65DA(2) and 62B the particulars and 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Perry & Holland has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT

BENNETT J:
INTRODUCTION

This Magellan[1] matter comes before me on the interim application of the father filed 17 November 2021 in which he seeks a raft of parenting orders in relation to X who will turn five years old in mid-2022. In the mother’s response filed on 14 December 2021, the mother seeks other orders. The father has recast the relief now sought by him in the terms of a minute of orders which is in evidence as Exhibit “F1”. The mother has also recast her case and seeks orders in the terms of a minute of order which is Exhibit “M10”. I will refer to the parents’ recast relief “the interim applications.” The independent children’s lawyer is Ms MacGregor, solicitor. She mostly supports the mother’s position in relation to the contentious aspects of the interim applications. The contentious issues are:
·Who should provide treatment for X and the parents in light of the recommendation made by DFFH in the Magellan Report dated 19 May 2021 that “[X] engage in therapeutic support with [D Service] which would provide education on protective behaviours, and make further assessments and educate [Ms Holland] and the mother and the father in their responses to [X] in what is age and stage appropriate”. The mother and the independent children’s lawyer want to engage D Service. They are supported by the child protection workers from the Department of Families, Fairness and Housing (“DFFH”), the psychologist who has assessed the family and the Child Court Expert from this court. The father wants to engage a private psychologist, Dr E.
·an extension of the time that the father can spend with X between now and a final hearing to include overnight time and to dispense with the need for supervision of the father’s time by the father’s mother and/or sister. The mother’s response filed on 14 December 2021 contemplated weekly overnight time insofar as she sought orders that, inter alia, the father spend time with X on Tuesday from 11.00 a.m. until 5.00 p.m. and each weekend from 10.00 a.m. Saturday until 10.00 a.m. on Sunday subject to some conditions which were more relaxed than line of sight supervision. However, the mother recast her response and seeks orders in accordance with Exhibit “M10” which provides for day times only.
·whether the mother is required to advise the father of her residential address and any change thereto within 24 hours of such change for the purpose of changeovers that do not occur at child-care/kindergarten.
[1] The Magellan List is a fast track pathway for the Federal Circuit and Family Court (Division 1), formerly known as the Family Court of Australia, to deal with cases involving recent and serious allegations of child abuse (including physical and sexual abuse). The Magellan list is supported by specially allocated judges, registrars, child court experts (formerly Family Consultants) and the co-operation of State child-protection and welfare agencies.
The interim applications were heard over two days.
(a)On 28 January 2022, Mr Barbayannis, of counsel, appeared on behalf of the father. Mr Ng, solicitor, of Pentana Stanton Lawyers, appeared on behalf of the respondent mother. Ms Treyvaud of counsel appeared for the independent children’s lawyer. I heard evidence from and cross examination of Dr F, psychologist, and Ms G, Child Court Expert in relation to the interim applications. Audio visual recordings taken by the mother of herself and the child were produced to the other parties and some were played in court. After the evidence concluded, I made a request pursuant to s 69ZW that DFFH provide a report of its involvement including an incident in which the father has no direct involvement and which allegedly occurred in December 2021, after the assessments of Dr F and Ms G concluded, involving X’s sexualised behaviour with a playmate in the mother’s home. The further hearing of the interim applications were adjourned to 17 March 2022.
(b)On 17 March 2022, Mr Barbayannis appeared on behalf of the father. Mr Strong, in house counsel from Victoria Legal Aid, appeared on behalf of the mother who had changed solicitors from Pentana Stanton Lawyers to Victoria Legal Aid. Ms Treyvaud of counsel appeared on behalf of the independent children’s lawyer. No etiquette was observed by Mr Ng in relation to his non-appearance. However, Mr Strong indicated that he was fully briefed including having read the transcript of evidence and cross examination of the experts on 28 January 2022. On 15 March 2022, the Court had received a report from DFFH dated 9 March 2022 in response to my s69ZW order (“the s.69ZW Report”). A copy was sent to the parties by my Chambers on 16 March 2022 shortly after it was delivered to my Chambers. The s.69ZW Report is Exhibit “C1”. No party sought to cross examine either parent or the authors of the s69ZW report. The matter proceeded on submissions.
On 17 March 2022, I made orders about non-contentious issues such as supervision of time by the paternal grandmother and aunt being reduced to substantial attendance by them, location of changeovers, the conditions sought by the mother in relation to any overnight time which might be ordered (contrary to her recast position), injunctions prohibiting each parent knowingly attending within 200 meters of the other’s residence, and parental communication through Our Family Wizard. In relation to the contentious issue of counselling and education for X and the parents, I ordered that:
(7)The parents do all acts and things necessary to engage [Dr E] as a therapist for [X] and the family to address the alleged behaviour and the parenting of each of the parents.
(8)The father be responsible for the reasonable costs of the therapy for [X] and the family inclusive of the costs of the mother’s attendances upon [Dr E].
(9) The therapy with [Dr E] be reportable.
(10)The independent children’s lawyer provide [certain specified] documents to [Dr E]
Upon pronouncing the above orders, I stated that I was satisfied that Dr E was the appropriate practitioner for X and the parents and that I would provide my reasons in that regard subsequently. However, in the meantime, I did not want the parents to lose the opportunity to commence with Dr E on 10 May 2022. These reasons explain why I prefer Dr E over D Service. I also reserved my decision in relation to variation of interim orders for time between the father and X because I wanted to review the parties’ evidence. My decision is expressed in the Order set out at the commencement of these reasons and my reasons therefore are set out below.
The final hearing of the parenting proceedings is scheduled to commence before me on 2 August 2022 and estimated to take five days. Generally, the Court does not encourage interim applications pending final hearings because interim applications consume the time and resources of the parties and the court which are usually better directed to a final disposition of the matters upon which the parties cannot agree. Depending on the relief sought, it may not be possible at an interim hearing for the court to be satisfied to the required standard of what outcome is in the best interests of the child. Also, the court would be loath to implement a scheme or arrangement which has little prospect of success or which an assessment of all evidence at the final hearing may lead the court to conclude is not in the child’s best interests and should be reversed. However, there are cases, such as this case, where I am comfortably satisfied that X’s best interests require that the parents take some foundational steps ahead of the final hearing. This is particularly so in relation to the timely engagement of Dr E who will be able to commence work with X and with the parents and be in a position to provide some evidence at the final hearing if called upon to do so.
EVIDENCE
I have had regard to the father’s evidence being his affidavits sworn or affirmed on 17 November 2021, 14 January 2022, 15 March 2022, and to the affidavits of his witnesses Ms H (his partner) affirmed 17 January 2022, Ms C (his mother) sworn or affirmed on 15 January 2022, Ms J (his sister) sworn or affirmed on 15 January 2022. I have had regard to the mother’s evidence being her affidavits sworn or affirmed on 14 December 2021 and 17 January 2022 and to the affidavit of her witness, and Ms K (her sister) sworn 20 May 2021. For future reference, practitioners should ensure that it is clear from the jurat clause of each affidavit whether it was sworn or affirmed by the deponent. It is not a hard task.
I have regard to the expert reports to which I have referred in these reasons. There were also numerous exhibits.
It is necessary to give some historical context to the interim applications and the proceedings generally including information about the parents, their relationship, the post separation history and expert assessments received into evidence. Where I can, I will rely on extracts from the reports with due regard to whether the parties have had some opportunity to test that evidence in cross examination (such as Dr F and the Child Court Expert) or not (such as the various DFFH officers and, of course, the parents and their supporting witnesses). I do so to emphasise that, at this interim stage, I am not making findings in relation to much of the evidence. It is sufficient for me to note what ‘evidence’ is before the court and whether it has or has not been contradicted and the impact of any cross examination. Evidence in proceedings under Part VII Division 12A of the Act is not subject to certain provisions of the Evidence Act 1995 (Cth) in relation to giving evidence, hearsay, opinion, to name a few categories, so the evidence is a larger volume of material than could be adduced if rules of evidence were to apply. In this case the parents’ affidavits are full of comment, argument and hearsay. All of it is admissible providing that it is relevant within the meaning of s.55 of the Evidence Act 1995 (Cth), the issue is what weight I give the evidence as a consequence of certain provisions of the Evidence Act 1995 (Cth) not being applicable to this proceeding (see s.69ZT(2) of the Act). Still, the evidence provides the context in which the interim applications arise. I can look at the evidence, take into account whether it has been tested or not. I can accept or reject the evidence but in the course of my determination of the interim applications I am largely having regard to the evidence as it currently stands for contextual purposes. I can also identify matters in respect of which there is an absence of relevant evidence or an absence of evidence to which I can attribute any or much weight.
FINDINGS OF FACT AND BURDEN OF PROOF
At this interim application stage, I will specify what findings I make and any such findings will be made on the civil standard of a balance of probabilities[2]. A statement of fact should not be inferred to be a finding of fact.
SOME BACKGROUND
[2] S.140 Evidence Act 1995 (Cth)
Family
The father is 36 years old having been born in Australia in 1985. He is employed part-time as a public servant. A psychosexual risk assessment of the father was undertaken by Dr F in mid-2021. Her report is annexed to her affidavit of 18 October 2021 and discussed in detail below at [46] to [50].
The mother is 40 years old having been born in the United Kingdom in 1982. She is employed as a professional. A mental-health assessment of the mother was undertaken by Dr F in mid-2021. Her report is annexed to her affidavit of 18 October 2021 and discussed in detail below at [58] to [64].
X was born in 2017. Neither parent has any other child. Dr F described X as a “happy and inquisitive child you enjoys reading, playing and exploring nature”. More recently, the s69ZW Report dated 9 March 2022 records that X attends kindergarten at L Preschool on Wednesday and Friday and M Preschool for half a day on Thursday. X is considered by her educators to be “meeting all her developmental milestones, to be great socially and was described to be one of the most mature in her group”.
The father has re-partnered with Ms H who is 38 years old. Ms H was born in the United Kingdom and has resided in Australia since she was a child. She is an Australian citizen. Ms H deposes that she is in full time employment as an academic and research professional. Timelines in the affidavit of Ms H indicate that the father and Ms H commenced a relationship in mid-2020. She deposes to moving in with the father to reside full time in December 2021 and then telling X that she was the father’s girlfriend. Ms H deposes to an affectionate relationship with X. Ms H deposes that:
12. I am generally home on evening and weekends. If [X] was to live with [Mr Perry] and myself every second weekend, I would be at home for most of that time and for all overnight periods.
13. If I ever thought [X] was at risk, I would so whatever was necessary to ensure her safety, either by removing her from the situation, calling [Ms C] or [Ms B], or notifying authorities. I have a great relationship with [Mr Perry] and we communicate well. I would have no issue taking protective action for [X] if I felt [Mr Perry] was doing the wrong thing.
14. If [X] stayed overnight at our home I would happily attend to [X] if she needed to be settled in her own bed during the night, with [Mr Perry]’s assistance or on my own. I am prepared to undertake all of [X]’s personal care when [Ms C] or [Ms B] are not present if required. I am prepared to sign an undertaking in relation to any supervision I am required to provide.
15. I have never had any concern for my physical or emotional safety in my relationship with [Mr Perry]. I have never observed anything which has caused me any concern for [X]’s physical or emotional safety in [Mr Perry]’s care.
16. [Mr Perry] and I have gone through several stressful experiences including multiple lockdowns, these allegations, moving house and most recently contracting COVID-19… [Mr Perry] has always been caring, supportive and calm. I have not seen any evidence of [Mr Perry] exhibiting aggression or violent tendencies, even in the face of the most stressful of circumstances.
17. I am aware of the description of [Mr Perry] as “having to masturbate at night to sleep” and/or “compulsively masturbating”. This is certainly not the case in my experience as his partner, sharing a bed with [Mr Perry] 3-5 nights/week over the past 18 months, and every night since moving in together.
18. [Mr Perry] and I have a healthy monogamous sex life that is fully consensual. We have occasionally engaged in soft bondage, but the majority of our sex life would not fall into this category. At no point has [Mr Perry] done or said anything that would make me question his exclusive attraction to adult women.
19. I am also aware that [Mr Perry] has been described as having erectile dysfunction and some recommendations made around counselling for this. I have not seen any evidence of [Mr Perry] suffering erectile dysfunction over the past 18 months, other than on a single occasion which was the very first time we had sex. Since then, this has never been an issue in our relationship.
The mother has not re-partnered.
Relationship
The mother and father met in City N in 2013 (according to the mother) and 2014 (according to the father). The mother had been living in City N for some years, was in secure employment and owned a residential property in City N (she still does) subject to a mortgage. The father had been living in City N for 5 years. He had relocated from City O where he had been living with a partner. The father’s former partner had taken her own life. In submissions on 17 March 2022, Mr Barbayannis referred to the deceased woman leaving a letter. The father was subsequently arrested, charged in relation to his former partner’s death and not permitted to leave City N pending the completion of his criminal trial.
The parents commenced cohabitation in August 2015 in the mother’s City N residence. Dr F’s report in relation to the mother, contains the following description of the parents’ early relationship:
41. [The mother] said that [Mr Perry] was persistent in “getting with me”, resulting in them having “a bit of a fling”. [Ms Holland] believed that, initially, [Mr Perry] was more interested in having casual sex with lots of different women. [Ms Holland] said that she never regarded the relationship as being serious as she knew that he was not going to stay in [City N]. She reported that [Mr Perry] had booked a flight to come back to Melbourne; however, a few days before leaving he was arrested. When he was released from police custody, he could not return to the share house where he had been living and so contacted [Ms Holland] who permitted him to stay with her.
42. [Ms Holland] said, due to the need to stay in [City N] and COVID restrictions, [Mr Perry] got stuck living with her, and their relationship became quite serious quite quickly. She said they bonded based on a foundation of court cases, [Ms Holland] going with him. Once the relationship became more serious, [Ms Holland] stopped attending the court cases saying by then, she had intended to spend her life with him and did not want any more information than she already had. She said the trial started and the charges were thrown out. She said that she has never attempted to use the circumstances of his previous relationship against him.
43. It is noted in Northern Territory medical records that [Ms Holland] had raised with medical professionals about the strong desire to have a baby. It is also reported that she was under stress due to [Mr Perry]’s court cases. There was an understanding, that when over, [Mr Perry] would honour his commitment to have a baby.
44. [Ms Holland] said [Mr Perry] was in [City N] for an additional year and then he ended up staying, with [Ms Holland] supporting him. By this time, [Ms Holland] said she was 32 or 33 years old and wanted to have a child. She reported falling pregnant quite quickly; however, she did not regard [Mr Perry] as very excited. Then she had an early miscarriage and reported [Mr Perry]’s response was “bizarre” with him saying he “was not ready to be a dad”. [Ms Holland] said [Mr Perry] did not support her through the miscarriage. As noted in medical documentation at that time, [Ms Holland] felt devastated as “her time was running out” with [Mr Perry] moving to a hotel and [Ms Holland] feeling she had lost her last chance to get pregnant.
45. [Mr Perry] and [Ms Holland] subsequently reconciled. [Ms Holland] said she was increasingly worried about her “biological clock” and so, if [Mr Perry] was not interested in having a child, she would “have to let him go”.
46. At this time, there was a second trial, and [Ms Holland] said she continued to support and be loyal to [Mr Perry]. After two weeks, he was found not guilty. Soon after, she and [Mr Perry] went on a holiday to [Country P]. [Ms Holland] said they were not using contraception and, while the pregnancy was not planned, they were not disappointed upon falling pregnant. [Mr Perry] was reported to be very happy.

X was born in 2017.
In May 2019 the family relocated from City N to Melbourne. The parents separated on 1 June 2019 when the father vacated the property at Q Street, Suburb R and went to live with his parents around the corner from where the mother and X were living.
Post-separation
By August 2019, some three months after the parties had separated, the father was having overnight time with X on two occasions per week.
The mother initially sought to return to City N with the primary care of X, but is not seeking orders to relocate.
On 6 February 2020 the parents entered into final financial orders which provided a modest superannuation split of $30,000 by the father to the mother, and otherwise they each retained the property of which they stood possessed, that included the mother retaining a real property in the Northern Territory.
In June 2020 the father commenced a relationship with his current partner. The father and Ms H commenced cohabitation in December 2021 having at that time been in a relationship for some 18 months.
In August 2020 the parents reached an agreement which was ultimately embodied in orders sought by consent which provided that the father would have four out of 14 nights with X. On 12 August 2020 orders were made by consent which provided for:
(1)the parents have equal-shared parental responsibility;
(2)for X to live primarily with the mother; and
(3)the father to spend time with X from:
(1)Wednesday to Thursday each week to and from kindergarten;
(2)5 pm on Friday to 2 pm on Saturday;
(3)2 pm to 6 pm on Sunday; and
(4)2.30 to 6 pm on Tuesday –
(5)and time on Father’s Day, Christmas Day and other times by agreement.
The father spent time with X pursuant to the above final order from August 2020 until 7 December 2020. The mother deposes, and it is not denied by the father, that from August 2019 to December 2020 she sent some nine texts to the father indicating that X had a sore or red vagina.
The father deposes, and the mother does not deny, that on 13 October 2020 the mother sent a text message to the father stating[3]:
Commit to your skank and not [X] and then you can’t fuck up our lives. We don’t need you, I would make alternative arrangements if you didn’t force this situation on us. She’s your priority now, start your new life with her and leave us out of it.
[3] Affidavit of Mr Perry filed 17 January 2022, pg 13.
In mid October 2020 the mother alleges that she was playing with X and X randomly said “creep creep creep daddy in my gina [vagina]”. Dr F records that the mother said she did not react and thought it was funny. The mother also reported that X chanted “girls have gina and boys have penis”. The mother said she told a friend and they laughed about it.
The mother alleges that at the end of October 2020 X said to her “daddy reads to me at night, daddy in my gina”. The mother told Dr F that X related this in a strange demeanour.
Further on 29 November 2020 the mother sent the following text message to the father[4]:
How did you go from not wanting a girlfriend a few months ago to being in a serious relationship??
And it will not happen for me. I will not bring another man into our daughter’s life (or mine). She’s supposed to be being raised in a home with the two parents who committed to bringing her into this world, not this.
I can’t wait for Christmas this year, totally alive and isolated, whilst I was on as my ex and his new piece go off on a romantic getaway, on top of knowing the big family celebration you’ll all be having. Your life rocks now, well played, Melbourne, family, friends, new love interest. I don’t know why you say how you’re not coping, everything screams otherwise. You’ve got everything [Mr Perry]. Well played.
[4] Affidavit of Mr Perry filed 22 January 2022, pg 15-16.
The father alleges, and the mother does not deny that on 30 November 2020 the mother invited him to her home and suggested that they reconcile their relationship. The father deposes[5] that he refused and that the two shared the following exchange:
[Ms Holland] asked if we could try talking to someone together about our relationship and when I said I didn’t want to try she told me it was the worst day of her life and she couldn’t cope. She asked if my girlfriend [Ms H] would be meeting [X] and if we were going to have a kid together, when I said we might at some point, she became distressed, crying, saying that I was going to have another family and [X] would just become a part of it. After about half an hour I hugged her and lefty. Later that day [Ms Holland] send (sic) me a password and the following text message:
That’s the password to my phone if you ever need it. I want [X] to have all the photos, and things I’ve written about her in my notes and mostly, our voice memos. I don’t know any other way to ensure that happens if I can’t be the one to give them to her myself when I’m older. This isn’t anything other than ensuring her future. Don’t label me as suicidal simply because I want these things in place.
[5] Affidavit of Mr Perry sworn or affirmed 29 January 2021
On 5 December 2020 the mother took the child to the general practitioner over an issue that X was having with her knees. During the consultation the mother asked whether it was developmentally normal for X to be making statements about the father such as the following phrases which the mother told the doctor X had said about three weeks earlier:
·“Daddy tried to push my vagina off”;
·“Daddy was inside my vagina” as she motioned towards her vagina with her finger;
·“daddy plays with my toys and toys go in and out of my vagina”; and
·“daddy tried to take my pants off, he was looking at me”.
The mother’s evidence is that she believed them to be made up “stories”. The mother alleges the general practitioner became “alarmed” and informed her she would have to report their conversation to the Department of Health and Human Services Child Protection. The mother was concerned for the father’s reaction and professes at that stage to not believing the father would ever harm the child. The mother alleges that upon leaving the general practitioners office the mother and child had the following conversation:[6]
Mother: How does Daddy touch your gina?
[X]: With his hands.
Mother: His hands or your hands?
[X]: His hands?
Mother: How?
[X]: Like this. (X had her right index finger out and thumb pointing up and repeatedly pointed at her vagina).
Mother: Inside or outside?
[X]: Inside.
[6] Affidavit of Ms Holland sealed 31 January 2021.
On 6 December 2020 the mother was contacted by DFFH or SOCIT and informed that SOCIT would not be taking any steps in relation to the notification from X’s general practitioner. On 6 December 2020, which was the day after the mother had been to see the general practitioner, she asked the father to care for X overnight so that the mother could go out for the evening and the father did so.
On 8 December 2020 the mother was informed by DFFH that they would not support any time between the father and X which was not supervised.
In early December 2020 the mother commenced video recording X.
On 9 December 2020 the father was arrested. The father was subsequently not charged with any criminal offences in relation to X. The decision not to prosecute followed the brief of evidence which recommended that no charges be authorised. By way of “Informant Recommendations” dated 10 February 2021 it was noted that[7]:
[7] Affidavit of Mr Perry sworn 17 November 2021, pg 6-7.
(1)The child has only made “unparticularised” disclosures to the mother and not to the police or DHHS, nor is there any witnesses;
(2)There is an ongoing family law matter before the courts. The mother’s desire to return to City N may be viewed as a motive to have the child disclose a sexual offence so that the mother obtains full custody and can relocate with the child.
(3)The father historically made reports to local police fearing the mother may invent allegations against him in order to obtain custody of the child.
(4)In regards to the first disclosure in March 2020 where the child allegedly complained the father “hurt her gina” the mother agreed in messages to the father that the child’s injury was associated with nappy rash.
(5)When the mother and child attended upon the general practitioner, the general practitioner spoke to the child and no disclosures were made.
(6)The mother stated she did not initially believe that the father had offended.
(7)All nine recordings of the child begin with the mother stating what the child had said to her prior and subjects the child to questioning to the point the child begs the mother to stop. The mother has also filmed the child naked and pointing to her vagina. The “constant questioning and interrogation” in regards to the alleged offences may prove detrimental to proceedings before the family court and harmful to the child’s mental health.
(8)The mother brought the child to the police station on three occasions for interviews all of which have been conducted with no disclosures by the child. Exposing the child to interviews could be encouraging disclosures from her.
(9)The mother maintains she has no mental health issues despite text messages to the contrary in which the mother blames the father for her mental health issues.
(10)In an interview with the child’s educator her educator maintains the child has never disclosed anything about the father or shown concerns around being picked up from childcare by the father.
In relation to (7) in the immediately preceding paragraph, at [28(c)(iii)] of the father’s affidavit of 17 November 2021, he extracts the Informant Recommendations as follows:
[HOLLAND] has filmed the complainant whilst naked and pointing in her vagina. [HOLLAND] has subjected the complainant to more than two months of constant questioning and interrogation in relation to the alleged offences committed by the accused, which is not only detrimental to any fair prosecution in relation to this matter now or in the future, but possibly harmful to the mental health of the complainant.
The mother’s response, at [75] of her affidavit sworn 14 December is, essentially, that this part of the Informant’s Recommendation “is taken out of context as my 3-year-old on occasion yells at me. To simply state that I have subjected X to two months of constant questioning, is untrue. […] X is thriving in my care and she continues to be the happy settled self that she has always been whilst living in my primary care.”
An interim intervention order was sought and obtained by the mother on 15 December 2020. As a consequence of the Intervention Order the father had no time with X between 7 December 2020 and 19 March 2021.
On 19 March 2021 the matter was returnable before Judge Carter in the Federal Circuit Court. Judge Carter made orders providing for supervised time between the father and X, such supervision to be provided by the paternal grandmother and the paternal aunt. The regular times were Tuesday from after kindergarten or 11am until 5pm; each Saturday from 8.30am to 4.30pm and for such further and other times as agreed between the parties in writing.
On 19 May 2021 a Magellan report was submitted by DFFH. All parties have a copy of the Magellen Report. The authors are Mr T and Mr U.
It is recorded that on 5 December 2020 the After-Hours Child Protection Emergency Service (AHCPES) had received a report concerning disclosures of sexual abuse by the child against the father. Three weeks prior to the report being made the child allegedly made disclosures to the mother involving the father putting his fingers and toys in her vagina. In particular the child allegedly disclosed to the mother that:
·“Daddy tried to push my vagina off”;
·“Daddy was inside my vagina” as she motioned towards her vagina with her finger;
·“daddy plays with my toys and toys go in and out of my vagina”; and
·“daddy tried to take my pants off, he was looking at me”.
The Magellen Report records that on 11 or 12 January 2021 a referral was initiated by Mr U, Child Protection, DFFH to D Service for X to engage in therapeutic sessions. X did not do so.
The Magellen Report records that on 11 March 2021 DFFH spoke to the director of the Early Learning Centre attended by X in the Northern Territory, S Preschool in Suburb V. X had attended that centre between November 2018 and 2019 two days a week. The director of the Early Learning Centre, Ms W, raised no concerns for X whilst she attended child care and said that she was reaching her ages and stages of development. It is also reported that:
[Ms W] advised she met both parents, however, dealt more with [Ms Holland]. [Ms W] described [Ms Holland] could present as “over the top” when it came to [X], advising that she would be worried about [X] choking on a piece of bread or if she was to fall over. [Ms W] didn’t raise any concerns for either parent.
It is recorded that on 12 March 2021 Child Protection received an email from the mother advising the child had made a disclosure to her general practitioner that “Daddy did wee in my unicorn bed” and “Daddy hurts me”.
The Magellen report records that on 14 May 2021 Child Protection spoke with Ms Y who was a director of Z Centre child care where X attends. The director raised concerns with child care:
…for [X]’s presentation when she was being dropped off at child care by [Ms Holland], advising at drop-off today it took [Ms Holland] approximately two to three hours before she could leave the Centre and approximately another hour to settle (X) after this.
At page 11 of the Magellan report, the author’s record that:
Whilst Child Protection acknowledge that [X] has not made specific disclosures to anyone other than the mother, [Ms Holland], there are concerns around the appropriateness of [Ms Holland] - and there are concerns around the appropriateness of [Ms Holland]’s questions towards [X], given that they are of a leading nature, [X]’s potential exposure to sexually abusive behaviours cannot be dismissed.
At pages 11 and 12 of the Magellen Report DFFH recommend:
(1)X engage in therapeutic support with D Service which would provide education on protective behaviours, and make further assessments and educate Ms Holland and – the mother and the father in their responses to X in what is age and stage appropriate;
(2)the family participate in a comprehensive family assessment with AA Service;
(3)the father’s contact with X should remain fully supervised (Line of Sight) by the paternal grandmother, Ms C, and the paternal aunt, Ms B; and
(4)the father have no overnight contact with X and not provide personal care to her.
(11)The Case Summary from D Service dated 24 May 2021 by Ms BB, Senior Clinical Practitioner records that:-
Assessment and Engagement
It is the writer’s understanding that [X] is not currently allowed by the court to attend counselling at [D Service], with this being the case, therapeutic support was offered to [the mother] so that she is equipped to respond appropriately to [X]’s emotional and psychological needs. [The mother] attended four sessions. During these sessions, the writer’s approach has been to assess [Ms Holland] and [X]’s emotional well being and collaboratively workshop ideas and strategies with [the mother] to address any areas of concern. These strategies include age appropriate concepts of personal boundary, body safety, help seeking strategies and mindfulness practices/activities.
(12)Ms BB recommended that:-
…it will be in [X]’s best interests to receive counselling at [D Service] as this will provide opportunity for both of her parents to undergo a process that will be based on establishing shared understanding around her future wellbeing and personal safety. Such intervention will centre on protective behaviours skills which comprises; emotional regulation, body safety, consent, public and private spaces and body parents, secrets, safety network and family safe rules.
In June/August 2021 the parents and X were assessed by Dr F of AA Service. The purpose of her assessment was to conduct a mental-health assessment of Ms Holland and a psychosexual risk assessment of the father. Dr F’s affidavit sworn 18 October 2021 is on the court file and common to all parties. Dr F recommendations [8] in terms of the family included that:
(1)the parents have joint parental responsibility;
(2)[X] continue to live with the mother; and
(3)[X] spend time with the father pursuant to his application to the Court:
As noted previously, based on risk assessment alone there appears no justification to consider [Mr Perry]’s time with [X] needs to be supervised, although given the context of current allegations it may be prudent for the father to have someone accompany him during time with [X]. This is not to say that [Mr Perry] is considered a risk of offending, but, rather, to protect himself as the risk of further allegations cannot be ignored.
[8] Page 27
It was also recommended that:
Presuming [Ms Holland]’s account of the disclosures were not made vindictively or for the sake of secondary gain, such as relocation [back to [City N]], but due to her belief of harm, it would be of benefit for [Ms Holland] to engage with a counsellor, knowledgeable in child development and parenting, to assist [Ms Holland] to adjust to [X] spending time with [Mr Perry].
Relevantly, the father’s application at this time was:
5. [X] [to] spend time with the father:
(a) During Victorian gazetted school terms, on a fortnightly basis as follows:
(i) From the conclusion of childcare/kindergarten/school (or 5pm) Monday to the end of childcare/kindergarten/school (or 5pm) Tuesday each week.
(ii) From the conclusion of childcare/kindergarten/school (or 5pm) Wednesday to the end of childcare/kindergarten/school (or 5pm) Thursday each week.
(iii) In alternate weeks, from the conclusion of childcare/kindergarten/school (or 5pm) Friday to 6pm Sunday.
(b) During each term school holidays for one half of the holidays, at days and times to be agreed in writing, and failing agreement, from the conclusion of school term until 12 noon on the middle day of each holiday period.
(c) During the long summer holidays for one half of the school holidays at days and times to be agreed in writing, and failing agreement, for alternate weeks of the long summer school holidays, commencing at 9am on the first Saturday of the holidays and with all changeover at 9am Saturday.
(d) For [X]’s birthday from 5 pm to 8 pm if [X] is not already in the father’s care that day.
(e) [X] will spend such further or other times with the father as may be agreed between the parties in writing.
The mother moved residence in mid-2021 to an address not disclosed to the father.
DR F’S FORENSIC PSYCHOSEXUAL RISK ASSESSMENT OF THE FATHER
Dr F prepared a forensic psychosexual risk assessment of the father and that is appendix A to the report attached to the affidavit of Dr F sworn 18 October 2021. Dr F assessed the father as being a low risk of sexual offending against X. She did, however, note that there were:
…significant factors regarding sexual adjustment that are of concern. Specifically, there is a high level of general preoccupation with sex. Furthermore, he has sexual interests that are focused on bondage and discipline, to cause humiliation, pain and distress to others. In addition, it appears at times he has used self-stimulation (masturbation) as a maladaptive coping mechanism. That is not to say that there are any concerns with consensual bondage – is discipline. However, the interests in light of reported erectile difficulties may be suggestive of an inability to obtain and sustain erection in the absence of increasing levels of role-play coercion. I am unable to identify any specific factors which would suggest that [Mr Perry] represents a risk to the family or to the community. There is a relative absence of aggression in his history. It could be speculated that his anger may well have only manifested in the context of intimate relationships and in extreme impulsive/reactive anger or behaviour related to incidents of self-defence. (emphasis added)
DR F’S MENTAL HEALTH ASSESSMENT OF THE MOTHER

Dr F completed the mental-health assessment of the mother, which is appendix B to the report of Dr F. I set out a lengthy extract from Dr F’s report. In her conclusions Dr F wrote:
103. This assessment method uses structured psychological instruments, history review and clinical interview designed to assess empirically derived factors that correlate with a range of personality characteristics, behavioural traits and diagnosable mental health disorders.
104. [Ms Holland]’s developmental history includes her being parentified in the relationship with her mother, exposed to family violence and parental alcoholism, and a childhood characterised by a significant physical illness. The psychological consequences appear to have manifested in a personality profile that includes a somewhat withdrawn and timid disposition and prone to high levels of anxiety and reactivity to environmental stressors.
105. While she asserts a strong need for control and independence, she also seeks nurturance in relationships and is somewhat reliant. It would appear her adulthood has been characterised by an anxious ambivalent attachment style where she needs reassurance, feels insecure in relationships and fears abandonment based on past family issues of rejection.
106. Her communication style is most likely through arguing and conflict and oscillating between craving love and affection and seeking independence.
107. [Ms Holland] has developed evident personality features characterised by a strong desire to maintain independence and be self-reliant. [Ms Holland] appears overly sensitive to situations where she perceives or senses she is in any way controlled by others or has her freedom restricted. Feeling trapped, reliant on or controlled by others seems to act as a precursor to high levels of anxiety and reactive or situational depression.
108. Interpersonally, [Ms Holland] is more likely passive, docile and dependent, and holding significant self-doubts characterised by feelings of inadequacy, insecurity and helplessness. In relationships, she seeks to elicit nurturance from others and is easily hurt by even minor criticism.
109.Interestingly, her obtained profile suggests [Ms Holland] may have a tendency to avoid social involvement; feeling especially uncomfortable around the opposite sex with sexual maladjustment is common in people with the (2-3/3-2) MMPI-2 profile. While, in [Ms Holland]’s case, there is no specific evidence of sexual difficulties, she does appear to have been mismatched with [Mr Perry]’s high level of libido and holds much more conservative views about acceptable sexual behaviours. Furthermore, [Mr Perry]’s sexual profile suggests heightened interest in domination and control in sexual activity therefore he would prefer a submissive partner.
110. [Ms Holland] most certainly has experienced transient periods of depression and had been diagnosed with Adjustment Disorder with depression in the past. It is difficult to provide retrospective diagnosis, but it does not appear that [Ms Holland] has had a previous major depressive episode or post-natal depression.
111. Certainly, [Ms Holland] has a strong attachment and bond with [X] and the focus of her life, particularly in Melbourne, has been based on [X]’s welfare. It does appear that [Ms Holland] was somewhat desperate to have a child and, in part, her pursuit of the relationship with [Mr Perry] was based on an understanding that they would have a child. Indeed, her prior Adjustment Disorder was precipitated by miscarriage but also the perception that [Mr Perry] was reneging on his agreement to have a child, providing some evidence of the strength of [Ms Holland]’s desire to be a mother. Ultimately, one could suggest a relationship pursued based on [Ms Holland]’s support of [Mr Perry] through legal concerns and expecting he will honour a commitment to have a baby, is a somewhat unstable basis upon which to initiate a long-term relationship.
112. It appears [Ms Holland] felt pressured and coerced into relocating from [City N] and this, in the context of already having concerns in the relationship with [Mr Perry] particularly related to the sexual aspects of the relationship, heightened her feelings of being controlled and trapped unwillingly in Melbourne. This situation was not assisted by the COVID-19 restrictions which she had not experienced in [City N]. Ms Holland reacted to feeling socially isolated, which was in fact a reality for her at that time, being unable to socialise and develop a network of new social supports.
113. It is most likely that, upon moving to Melbourne and separating from [Mr Perry], [Ms Holland] would have met the diagnostic criteria for Adjustment Disorder with Mixed Disturbance of Emotions and Conduct (depression and anxiety). Her personality structure and historical information would seem to suggest that she is reliant on care of [X] to provide a sense of purpose and wellbeing. She is clearly a loving and devoted mother however in some respects the relationship between her and [X] could be somewhat symbiotic and interdependent. This goes some way to explain her initial concerns (pre alleged disclosures) of [X]’s overnight time with [Mr Perry].
114. The anxiety may well have been exacerbated by [X]’s disclosures leading to high levels of hypervigilance and anxiety. It may be that the concerns expressed by others with regard to [X]’s disclosures, along with [Ms Holland]’s concerns about [Mr Perry]’s sexual interests, caused her to react more directly to [X]’s alleged disclosures with hypervigilance and vigour.
115.It is also a diagnostic possibility that she has suffered from a dysthymic disorder referred to in the DSM 5 as Persistent Depressive Disorder. This is characterised by a low (sub clinical) level of chronic and persistent depressed mood. It is noted that this is most usually associated with long-term chronic health conditions and associated pain.
116. It is noted [Ms Holland] has stated she maintained ambivalence with regards to [X]’s disclosures and disbelief that [Mr Perry] could hurt [X]. While she has maintained this position, and certainly her early responses to rashes and the like would appear to support her assertion, it is noted that subsequently, her questioning of [X] became increasingly leading and her behaviour with regards to the investigation increasingly vigorous.
117. The allegations or suggestions of mental illness that have been levelled at [Ms Holland] in the context of family law proceedings, are not supported by the outcome of this assessment except for situational anxiety and depression.
118. It is noted [Mr Perry] and his family members make frequent refence to “walking on eggshells”, a descriptor most commonly applied to Borderline Personality Disorder. The frequency with which this term was used by [Mr Perry], [Mr Perry]’s mother and current partner suggest to the writer a somewhat unsophisticated attempt to suggest [Ms Holland] is personality disordered. There is no evidence that [Ms Holland] suffers from any diagnosable personality disorder.
119. Any issues or concerns associated with the Family Law situation could not, in the writer’s opinion, be attributed to a diagnosable mental health concern or personality disorder. Nonetheless, [Ms Holland] does present with a constellation of personality features that are uncharacteristic in sample populations. Typically, [Ms Holland] does not experience disabling anxiety but does feel nervous, tense, worried, sad, and depressed, experiences fatigue, exhaustion and weakness, lacks interest and involvement in life situations, and has decreased physical activity. The latter symptoms are more likely the result of her ongoing physical illness.
PROGRESSION OF PROCEEDINGS TO FINAL HEARING AND THE INTERIM APPLICATIONS
These proceedings were allocated to my docket by Senior Judicial Registrar Hoult on 26 May 2021 and the first day of hearing was appointed for 16 December 2020 to follow preparation of a Family Report due for release on 24 September 2021.
The father’s application for interim orders had been filed on 17 November 2021. He sought, inter alia, a resumption of overnight time and to dispense with supervision of his time with X. He sought specific discovery by the mother of “copies of all video and audio recordings taken by her, being those video and audio recordings provided to police and referred to in the police brief of evidence, and any other recordings of X taken by the mother purposes of obtaining evidence of disclosures.” The father sought orders that the mother engage with the counsellor to assist the mother to adjust to X spending time with father, as recommended by Dr F, and that the parties engage Dr E to provide therapy for X.
The mother’s response had been filed on 14 December 2021. The mother sought orders, inter alia, for X to spend time and communicate with the father Tuesday from 11.00 a.m. to 5.00 p.m. and each weekend from 10.00 a.m. on Saturday until 10.00 a.m. on Sunday. The father’s time was to be subject to the father having “a secondary person in the vicinity, to act as witness should the need arise, when he is spending a child”, that the father not co-sleep with the child and that he “avoid engagement in any form of primary or intimate care of the child (bathing, toileting etc) where possible until the child is developmentally able to manage independently.” At this stage, X was co-sleeping with the mother. The mother sought to be relieved from telling the father of her residential address “due to her safety concerns”. She sought an order that X “attend upon the D Service for the purpose of learning and personal body safety, addressing the problematic actualised behaviour and to support the child in transitioning to sleeping alone”. The mother sought an order that she engage “with a counsellor knowledgeable in child development parenting” but did not adopt the rest of Dr F’s description being “to assist Ms Holland to adjust to X spending time with Mr Perry.” The mother sought an order that the father seek psychiatric advice in relation to depression and anxiety and then gauge a psychologist to address actually compulsive behaviour.”
The mother’s affidavit of 14 December 2021, she deposes as follows:
12. Having been provided with a copy of [Dr F]'s family report, my mental health assessment and the Father's psychosexual assessment I understand that [Dr F] on page 51, in paragraph 79 of her report assessed "Using dynamic risk assessment in combination and consideration of the primary care giver and child factors in the ROSAC, [Mr Perry] is considered a Low Risk of sexual offending against [X]."
13. Considering [Dr F]'s above-mentioned assessment, I therefore agree with majority of [Dr F]'s recommendations as set out in pages 27 and 28 of her report and set out in paragraphs 127 to 136 of her Report. I however query [Dr F]'s recommendation number 131 "it is respectfully recommended that [X] spend time with [Mr Perry] pursuant to his Application to the Court. As noted previously, based on risk assessment alone, there appears no justification to consider [Mr Perry]'s time with [X] to be supervised".
14. I find this recommendation to be unclear, [Dr F] clearly recommends that [X] live with me and spend time with [Mr Perry], however she said in accordance with [Mr Perry]'s application. In her paragraph 21 on page 7 of the Family Report, she referred to an application of [Mr Perry] seeking:
(a) Equal shared parental responsibility
(b) [X] to live with [Ms Holland]
(c) [X] to spend time with [Mr Perry] each week
(i) 4pm to 6pm Tuesday (collection may be earlier or later as nominated by Mr Perry in advance depending on his work commitments)
(ii) From end of Childcare Wednesday to start of childcare Thursday;
(iii) From 5.00pm Friday to 2.00pm Saturday;
(iv) From 2.00pm to 6.30pm Sunday;
(v) Changeover to occur at Childcare or as agreed by the parties.
15. In consideration of [Dr F] recommending that [X] live with me, I would read her recommendations that she recommends [X] spending time with [Mr Perry] on two overnight occasions per week. In paragraph 122 of page 25 of the Family Report, [Dr F] stated "Given [X]'s current age and stage of development, it is well supported in the literature that frequent, shorter stays that maintain a regular routine in both household is paramount. With due consideration of her age and development and temperamental factors, overnight stays should be tolerated; however, these should be short overnight stays not of consecutive nights".
At the end of the mother’s affidavit of 14 December 2021, following a series of quotes Dr F’s report which appear to be intended to support her statement that “I never had the intention to raise any allegation against Mr Perry, nor did I infact.”, the mother concludes at [101] that:
[..] [Dr F] has completed her assessment of the Father and me, she assessed that neither of us are (sic) a risk to [X]. I therefore seek to focus on [X] and her having a meaningful relationship with both of her parents that love her dearly, are involved in her daily life and the hope for [Mr Perry] and me to work towards a co-parenting relationship that supports [X]’s happiness and well-being.
It is abundantly clear that, as at 14 December 2021, the mother was not asserting that the father was a risk to X and the mother clearly countenanced a resumption of overnight time on the basis of someone else being in the vicinity of the father and the child and available to attend to the child’s immediate needs.
On 16 December, 2021 Mr CC, of counsel, appeared for the father. Mr Ng, solicitor, appeared for the mother. Ms Treyvaud, of counsel, appeared for the independent children’s lawyer. As best I recall, the s.62G(2) Family Report had not been completed but was thought likely to be available for release later that day. I fixed the interim applications for hearing before me on 28 January 2022 estimated to take two to three hours. I ordered, inter alia, that “the Family Consultant and Dr F, Report Writer, confer prior to the interim hearing and at the interim give evidence contemporaneously”. Other orders were made fixing the matter for final hearing as well as orders in the terms of minutes sought by consent in relation to agreed matters.
REPORT OF CHILD COURT EXPERT, MS G
On 26 May 2021 Senior Judicial Registrar Hoult ordered that there be a section 62G(2) report prepared and released by 24 September 2021. A report was prepared by Court Child Expert Ms G and is dated 29 November 2021 on the cover sheet and 15 December 2021 as signed by Ms G. It was released by me on 16 December 2021.
Ms G considered there were outstanding risk factors that raised concern about there being a change to X’s care arrangements in the immediate future, those being “X’s age, Mr Perry’s reflective parenting capacity, X’s strong primary relationship with Ms Holland and the very serious nature of the allegations raised”. Ms G made the following observations of the father:
77. [Mr Perry] denied the allegations and appeared to be confident in his risk being low, as assessed by [Dr F]. He conceded that he uses masturbation regularly at the end of the day, however, explained that it does not impact his parenting functioning. Notwithstanding his denial, and assertions he has strategies to manage this if [X] is in his care, this may present as an outstanding risk factor, given [Mr Perry]’s propensity to minimise the behaviour and given [X]’s need for co-sleeping arrangements such as; sleeping on the floor on [Ms Hollands] bedroom for comfort, or wanting to be in the same bed as her parents.
78. [Mr Perry] has a past history of engaging in violence use and to date has not been able to assist the Court with information from his previous trial, due to it being deemed “irrelevant”. Notwithstanding his understanding, it was acknowledged by [Mr Perry] that he responded with violence resulting in harm and has minimised his behaviour consistently throughout the current matter. [Mr Perry] was reluctant to provide information about his previous Court matter and he has a past propensity to engage in violence. In addition at interview, [Mr Perry] minimised these behaviours and displayed poor reflective capacity in taking any responsibility for these behaviours. The writer would hold concern there remains outstanding parenting risk for [X].
79. …Additionally, while Child Protection were unable to substantiate the disclosures made by [X], they maintained a need for there to be a cautious approach to supporting [X]’s ongoing relationship with [Mr Perry], until further investigation or therapeutic intervention was completed; a process [Mr Perry] did not consent to [X] engaging in.
80. At present [X] has reduced capacity to self-protect and would be unable to reduce the risk of sexual harm independently. She is a vulnerable young child dependant on those around her to provide her with safety and sense of emotional security. As such, it would be of benefit for [X] to continue spend time with [Mr Perry], in the presence of the paternal family.
The Child Court Expert concluded:
82. …In consideration of maintaining her meaningful relationships, given the serious nature of the allegations, the Court may be minded to take a cautious approach. If the Court were to find that there is a low level of risk to [X] in [Mr Perry]’s care then an arrangement such as; [X] living with [Ms Holland] and spending time with [Mr Perry] that incrementally builds up in accordance with [X]’s tolerance levels for separation from her primary parent, her age and capacity to self-protect may be appropriate.
As quoted above, Dr F had already expressed her view that “based on risk assessment alone there appears no justification to consider Mr Perry’s time with X needs to be supervised, although given the context of current allegations it may be prudent for the father to have someone accompany him during time with X. This is not to say that Mr Perry is considered a risk of offending, but, rather, to protect himself as the risk of further allegations cannot be ignored.”
Ms G’s recommendations were as follows:
84.In the absence of information to the contrary, it is respectfully recommended that the Court give consideration to the following:
a.      [X] continue to live with [Ms Holland] and any spend time with [Mr Perry] is cautiously approached until she is of an age where she can self-protect.
b.      Time to occur during the day and if any transition to overnight spend time occurs [X] should be sleeping independently in her own bed and another appropriate adult is present.
c.      If [X]’s transition to overnight spend time is to occur, this is after [X] has engaged in therapeutic intervention.
d.      [Ms Holland] would benefit from a referral to a clinical psychologist, to assist with her anxiety and the transitions to supervised overnight spend time.
e.      [Mr Perry] to engage in intensive intervention to assist with strategies to manage his sexual needs in an adaptive way.
f.      The parties to utilise a parent application; such as “talking parents’ to communicate matters of parental responsibility.
g.      A copy of the current Family Report to be made available to service providers working with either of the parties or [X].
Ms G does not explain in her Family Report why her recommended spend time regime was more restrictive than Dr F’s. For instance, Ms G recommends that time between X and the father “is cautiously approached until she is of an age where she can self-protect” whereas Dr F recommended that the father be accompanied by a third person during time with X “to protect himself as the risk of further allegations.”
In December 2021 the father and Ms H commenced co-habitation when Ms H moved into the father’s home at DD Street, Suburb EE.
CONFERENCE BETWEEN DR F AND CHILD COURT EXPERT

Dr F and Ms G conferred on 21 January 2022 and prepared a memorandum of their conference for the Court which was marked Exhibit C1. It records that:-
The experts at conference reached a joint position in relation to the parenting of child in matter: [Ms X] (born … 2017, aged four years)
The experts both agree that due to the outstanding risks associated with the unsupervised parenting of [X] in [Mr Perry]’s care, the recommendations in Magellan Family Report, dated 29/11/2021 are a joint position provided to the Court, notwithstanding any decision made by The Department of Families Fairness and Housing (DFFH) in light of the current investigation.
The Experts agreed that a summary of the outstanding risks include:
• Recent incidents being investigated by DFFH
• [Mr Perry]’s lack of consent for [X] to engage with the recommended therapeutic service, ‘[D Service]’.
• [Mr Perry]’s parenting capacity, given maladaptive coping strategies used to regulate his sexual needs.
• The Court’s limited knowledge of [Mr Perry]’s past violence charges; including historical Psychological Court Assessment Reports and Briefs of Evidence submitted during his Supreme Court matter.
• [X]’s current vulnerability, due to her age and stage of development and reduced ability to self-protect.
In cross examination the Court Child Expert and Dr F abandoned the last three dot points as pre-requisites for a reinstatement of the father’s time.
The recent events being investigated by DFFH included an incident which the wife described in her affidavit of 14 December 2021 as follows:
26.On 15 November 2021, an incident transpired at my house, where [X] was having a playdate with a friend. She was playing in her playroom with her friend. I overheard the children pretending to 'wee' on each other, I then heard [X] ask her friend with words to the effect 'if she wanted to poke her bum or gina first'. After hearing [X]'s words, I quickly interrupted the children's play.
27. I then quickly alerted the other child's Mother of the above incident and the child was collected shortly thereafter.
28. I am told by the child's Mother, that the little girl has disclosed to her mother that [X] had poked a feather in her vagina and bum (anus), and it hurt a little.
29. The Department of Families, Fairness and Housing have been notified of this incident. I have not heard from them since my report on 16 November 2021
I do not have a recollection of any other event. There was the mother’s evidence about the child being upset and roused from sleep described earlier in these reasons but that occurred after Dr F and the Child Court Expert gave evidence on 28 January 2022.
CROSS EXAMINATION OF EXPERTS AT HEARING ON 28 JANUARY 2022
The recordings which had been taken by the mother of her interaction with X about possible sexual abuse were available to be played and some were played in Court on 28 January 2022. All parties consented to the Child Court Expert and Dr F being able to view the tapes when they were played in court. We observed footage of the mother questioning X in an inappropriate and leading manner. I observed X to be at times disinterested in the mother’s topic and frustrated with her mother’s concentration on the father and what he might have done. At other times, the child appeared to be tired and wanted to go sleep.
Whilst Dr F and Ms G had been provided with transcripts of the mother’s recordings, each confirmed that actually viewing the recordings made them more concerned about the mother’s questioning than their reading of the transcript had led them to be. I agree. For my part, any judicial officer required to consider the recordings should view the recordings rather than assume that an adequate appreciation of what X experienced can be obtained from reading transcript.
There is an issue around whether the mother continued to question X and make recordings after Victoria Police told her to desist. The mother denies doing so. This is not a matter on which there is sufficient evidence at this interim stage upon which I could make any finding adverse to the mother and I do not do so.
Under cross-examination on 28 January 2022, Dr F clarified that any treatment to be sought by the father in relation to sexual matters was not a pre-condition to X being able to spend time with the father as sought in his application.
The father had also addressed the psychologists’ concerns about the absence of information about the criminal charges he faced at the commencement of the parents’ relationship by providing documents. Mr Barbayannis asked “Dr F, in circumstances where you now have a greater understanding of what transpired, presumably, that point is no longer an issue.” Dr F agreed that was the case.
The Child Court Expert, Ms G, was also cross-examined on 28 January 2022. Ms G, like Dr F, was hesitant to give an opinion on the utility or otherwise of amending the current spend time arrangement whilst there was an ongoing child protection investigation. Ms G maintained the need for therapeutic intervention for the family going forward but was not in a position to make recommendations as to any appropriate private clinicians to undertake such a task. Ms G confirmed her opinion that overnight time could precede any therapeutic intervention such that a “green light” was not required.
Under cross-examination the Court Child Expert and Dr F both modified their view with regards to the father’s maladaptive strategies and past violence charge being an impediment to increased time. The experts agreed that the last three dot points of the memorandum of their conference of 21 December 2021 were not pre-conditions to the father having overnight or unsupervised time with X. However, both witnesses said that they could not recommend an interim increase of time between the father and X and removal of safeguards for supervision whilst the child protection investigation was still ongoing. They agreed that once DFFH’s involvement ceased, a move to overnight time with the father would be appropriate.
The interim applications were adjourned until 17 March 2022 to await preparation of the s.69ZW Report.
THE S.69ZW REPORT
As indicated, DFFH provided a s69ZW Report dated 9 March 2022 but which was not received by the Court until 15 March 2022 or available for release to the parties before 16 March 2022 in anticipation of the hearing on 17 March 2022. The authors of the s.69ZW Report are Mr T, Senior Child Protection Practitioner (who was also an author the First Report dated 19 May 2021) and Ms FF, Team Manager. No party sought to cross examine the DFFH report writers on the interim applications.
At page 3 of the s69ZW the authors described the then current investigation as:
… concerns pertaining to [X] exhibiting sexualised behaviours towards another female child of the same age. It was reported during a play date, [X] was overheard saying do you want me to poke it in your bum or your vagina. Furthermore, [X] was heard to say something along the lines of it just hurts a little bit when it goes in your bum just for a couple of hours. It was reported both [Ms Holland] and the other child’s parents are aware of this information.
Additionally, it was reported that the female child disclosed to her mother that [X] stuck a feather in her vagina during a play date at [Ms Hollands].
DFFH interviewed the mother on 29 December 2021. The mother said she had attempted to ask X what happened with her playmate but that X “put her hand on her ears when she was asked, and she therefore didn’t probe anymore”. The mother “spoke about the impact this has had on her and X advising that it has further socially isolated her and X advising that she has stopped X from having anymore playdates in fear that it could happen again. Throughout the interview Ms Holland continued to advocate that X needs support and strongly supports X attending D Service, however, is not being provided with this opportunity because of the current Family Law Court Orders.”
DFFH interviewed the mother again on 7 March 2022. The mother spoke about an incident which allegedly occurred after the hearing on 28 January 2022: “X was laying down near her whilst she was playing with her hair and was almost asleep before she then held her body before waking up and bursting into tears telling Ms Holland she was sad because of her “Daddy did” (sic) and thinks this is why she is sad all the time.” DFFH reported that “Ms Holland denies X to have further spoken about what happened with the other female child however has asked Ms Holland if her friend can come over and when Ms Holland says no then X asks why of which Ms Holland will speak about (sic) not being able to do that other people’s bodies.”
DFFH interviewed the father and his partner, Ms H, on 30 December 2021. It is recorded that the father “spoke about finding it hard to believe Ms Holland because she is an “anxious person”. The father “further raised concerns that these issues continue to keep happening in Ms Holland’s care and that when X is in his care, she says Ms Holland says mean things about Ms H”. However, Ms H does not depose to any unpleasant remarks being directed to, or about, her by X in her affidavit which was affirmed on 15 January 2022 (a fortnight after DFFH’s interview of the father and Ms H).
The s69ZW Report records that:
Child protection interviewed [X] on the 9^th of March 2022, at [L Preschool]. [X] was interviewed by Senior Child Protection Practitioner [Ms GG] and Child Protection Practitioner [Ms HH]. It was assessed that it would be appropriate that [X] be interviewed in a neutral setting by workers she has not met or seen before, as it was assessed if the allocated worker from Child Protection’s last investigation. .
[X] made no disclosures to workers advising that she feels safe with both [Ms Holland] and [Mr Perry]. However, it was noted that [X] presented as shy and reserved when workers started talking to her and she needed prompting from her educator.
As I have extracted above [12], X is reported to be doing very well at school.
The s69ZW Report describes the weekly, fortnightly and monthly psychological and counselling support currently received by the mother in the following terms:
(a)The mother has worked with Ms JJ who is a Child and Family worker from D Service “since… 2021”. They meet once a week for an hour via Zoom and have done so consistently since the undisclosed commencement. Ms JJ “is providing parenting support and psychoeducation for Ms Holland to further develop Ms Holland’s parenting capacity in responding to X and her recent experiences.” It is recorded that “concerns have been raised about the impact of X not being linked in with therapeutic reports because of FLC Orders and Mr Perry asserting his control over Ms Holland and X through the realms of the Family Law Court”. Ms JJ referred the mother to a clinical psychologist per the recommendations from the family report.
(b)The mother has been seeing Ms KK, each fortnight for an hour, via Zoom. Ms KK is a specialist family violence practitioner at LL Service. It is recorded that “using the Family Violence Multi Agency Risk Assessment and Management Framework (MARAM) tool, Ms Holland has been accessed to be at elevated risk from Mr Perry meaning there are several risk factors present including some high-risk factors that are impacting Ms Holland’s day to day functioning such as the current Family Law Court process. During a recent care team meeting, Ms KK raised concerns about X’s mental health advising that X had disclosed to Ms Holland that she doesn’t want to be here anymore and when she has a tantrum will often hit or head with her hands”.
(c)Since November 2021 the mother has been seeing Ms MM, psychologist, each month. It is recorded that “Ms MM advised she is currently providing Ms Holland with supportive counselling describing her to present as highly anxious and depressed and assesses this to be situational given the current court proceedings. Ms MM advised that Ms Holland described feeling unsupported by Justice Bennett during the last court hearing advising there was a lot of focus on Ms Holland’s parenting capacity which was something she was “distraught” by. Ms MM advised at Ms Holland’s next session after the last court date she expressed she had suicidal thoughts due to the worry she has for X going into Mr Perry’s care because she feels he is unsafe. Ms Holland described to have felt the lowest she has ever felt in her life. Ms MM advised she assessed Ms Holland’s feelings were understandable given the current situation. Ms MM advised using Cognitive Behaviour Therapy (CBT) and Acceptance and Commitment Therapy (ACT) she has worked with Ms Holland in processing these feelings, the triggers to them and has been working on positive reinforcement of her mothering craft towards X. It is also recommended that Ms Holland draws on her support services during the court proceedings and her friendships with the idea of Ms Holland not being solely focused on the court proceedings. Ms Holland has also been encouraged to practice self-soothing methods such as breathing. Furthermore, Ms MM offered Ms Holland additional sessions and phone support should she need however Ms Holland declined this offer given she is currently working with support services weekly and fortnightly. Ms MM does not assess Ms Holland to be a high suicide risk advising that Ms Holland’s distress is of an appropriate level given the circumstances. Ms MM described Ms Holland to present as “coherent, credible and a devoted mother in her sessions with Ms Holland”.
At [86] of the mother’s affidavit of 14 December 2021, she deposes that “I have been willingly and proactively engaging with a Psychologist and have done so since our move to Melbourne.” At [3] of the mother’s affidavit made on 17 January 2022, she deposes that “I have been engaged in professional therapy for my situational depression and anxiety for the entirety of my diagnosis (upon arrival in Melbourne in 2019) and more intensively since X’s disclosures.” The mother deposes to have completed six month course with D Service “to help me understand and how best to respond to X and supporting her during this time”. The mother deposes to attending on a near weekly basis for sessions with a child and family worker’s first for approximately six months stop she deposes that “the focus is on practical strategies to manage any anxiety and depression that I am suffering from. I find that this helps me to be present with X despite the stress of legal proceedings.” The mother deposes that her sessions with a counsellor from LL Service and her clinical psychologist “far more by way of general support, rather than being focused on the situation with X.” It is not apparent when, where and from whom the mother has sourced the support recommended by Dr F “for Ms Holland to engage with a counsellor, knowledgeable in child development and parenting, to assist Ms Holland to adjust to X spending time with Mr Perry.”
Insofar as the mother’s psychologist reports that the mother ‘feels’ that X is not safe in the father’s care, the mother has not provided evidence of that state of mind or that to substantiate the reasonableness of any such state of mind. As I have discussed above at paragraphs [53] to [55] of these reasons, as recently as December last year, the mother affirmed that she does not perceive the father to constitute a risk to X’s safety.
DFFHs protective assessment is as follows:-
It is Child Protection’s assessment that [X] is not at significant or immediate risk of harm in [Ms Holland’s] care. During the current involvement and previous investigation [Ms Holland] has continued to demonstrate putting [X’s] best interest at the forefront of her decision making and had continued to advocate for [X] to receive therapeutic support. Whilst [Mr Perry] has been assessed as low risk of sexual harm to [X], it is of concern that despite the current reported concerns of [X] exhibiting sexualised behaviour towards another young child and the reported concerns not being directly related to [Mr Perry], [Mr Perry] is still refusing [X] to access the recommended therapeutic support through [D Service]. [Mr Perry’s] rational(sic) behind this appears to be more about upholding his reputation and innocents (sic) rather than what’s in the best interests of [X].
Throughout the current and previous investigation Child Protection have continued to advocate that [X] attend [D Service] to not only support [X], however, to also provide [Mr Perry] and [Ms Holland] psychoeducation and parenting support to manage [X’s] recent problematic behaviours, historical disclosures and to assist with further safety planning and progressing [Mr Perry’s] contact.
There are multiple reasons why [X] may have made these disclosures and exhibited these problematic behaviours such as exposure to family violence, as a self-soothing method or because of the response she has received in relation to these behaviours and disclosures. Despite not being able to explain the origin on these behaviours, Child Protection assess that [D Service] is the most appropriate service to support both [X] and her parents separately to promote protective behaviours and parenting capacity to assist [X] through this challenging time.
Whilst [Mr Perry] has nominated the two psychologists mentioned above, it is Child Protection assessment that [X] requires a more specialised like [D Service] to be more appropriately suited to provide specialised therapeutic counselling to address the problematic or harmful sexualised behaviour which has been reported.
Whilst [Ms Holland] has continued to demonstrate her ability to parent [X], she has continually referenced the impact of her experiences of being a victim survivor of [Mr Perry’s] violent behaviours. [Ms Holland] has advised that [Mr Perry’s] use of systematic violence and gaslighting behaviours has impacted her financially, emotionally and her ability to feel safe. Whilst (sic)[ Mr Perry] has agreed that [X] requires therapeutic support, he continues to assert his control over who he wants [X] to see despite the recommendations from, Child Protection, and the outstanding risks highlighted by both [Dr F] and [Ms G] at the Memorandum of Conference dated 21^st January 2022 of [Mr Perry’s] lack of consent to engage with this service. Raising questions for [Mr Perry’s] motivation for [X] to access support.
With reference to [X’s] contact with [Mr Perry], Child Protection recommend that contact continue to remain supervised and [Mr Perry] to withstand engaging in personal care for [X] until she has accessed therapeutic support to enhance her ability to be able to self-protect and to further enhance [Mr Perry’s] parenting capacity and protect himself should [X] make further disclosures or exhibit further harmful behaviours.
In conclusion, [X] is reliant on both of her parents to meet her basic care needs whilst she continues to develop her independence and identity. Should [X] not commence engagement in a therapeutic program that addresses sexual behaviours there is a likelihood of ongoing risk of her further exhibiting problematic sexualised behaviours and her mental health being impacted. Child Protection assess that [X] has experienced significant harm and the impact of her experiences is likely to have a detrimental impact on her development if it is not addressed.
Should no additional concerns arise throughout the current intervention, Child Protection will be working the case towards closure.
It is not appropriate for me to critique the DFFH evidence in detail before the authors submit to cross examination. At this hearing of interim applications, it is sufficient for me to find, as I do, that the report is expressed in terms which are positive about the mother. The s.69ZW Report cites numerous unfavourable depictions of the father by the mother but no reasoned or substantiated conclusions by the authors which correspond with the mother’s description.

It appears to me that the only substantive criticism of the father by the authors of the s.69ZW report is that the father has not agreed to D Service as the provider of therapeutic support to X and education for all family members. The authors record:
[Mr Perry] is still refusing [X] to access the recommended therapeutic support through [D Service]. [Mr Perry’s] rational(sic) behind this appears to be more about upholding his reputation and innocents (sic) rather than what’s in the best interests of [X].
And later:
Whilst (sic) [Mr Perry] has agreed that [X] requires therapeutic support, he continues to assert his control over who he wants [X] to see despite the recommendations from, Child Protection, and the outstanding risks highlighted by both [Dr F] and [Ms G] at the Memorandum of Conference dated 21^st January 2022 of [Mr Perry’s] lack of consent to engage with this service. Raising questions for [Mr Perry’s] motivation for [X] to access support.
The authors state that X should commence engagement in a therapeutic program that addresses sexual behaviours in order to avoid a likelihood of her exhibiting problematic sexualised behaviours and her mental health being impacted. All parties agree with that sentiment; although they do not agree on which parent represents the risk to X’s mental health and they disagree over who should provide the therapy.
The authors’ penultimate statement is that “Child Protection assess that X has experienced significant harm and the impact of her experiences is likely to have a detrimental impact on her development if it is not addressed.” The first line of the s.69ZW Report makes clear that DFFH asses that X is not at immediate or significant risk of harm with the mother so I can infer that the harm may be referrable to the father. However, the “significant harm” or negative “experiences” are not identified by the authors and their statements, so expressed, do not constitute relevant evidence.
The last statement by the authors that “Should no additional concerns arise throughout the current intervention, Child Protection will be working the case towards closure” leads me to conclude that, absent new evidence since 9 March 2022, the notifications about X are insufficient, either individually or cumulatively, to justify an ongoing investigation by DFFH. Dr F and the Child Court Expert identified the incomplete investigation by DFFH as an impediment to reinstatement of the father’s overnight time and a relaxation of supervision. Whether or not that view has merit, the investigation appears to be closed without any adverse implications being directed at the father.
It is most likely that both authors, Mr T and Ms FF, will be required to give evidence at the final hearing in August 2022. The trial plan should contemplate the authors giving evidence sequentially (not together or necessarily in the presence of the other), after the parents and their supporting witnesses but before the Dr F and the Child Court Expert.
The independent children’s lawyer must ensure that all notes, files and records of DFFH (including those of these authors) are before the court pursuant to subpoena and accessible to counsel for all parties well before the start of the final hearing through inclusion as part of a tender bundle in the electronic trial book. The independent children’s lawyer must also ensure that all relevant DFFH workers, which may exceed these two authors, receive proper notice of the requirement that they attend court. Subpoenas should issue accordingly. Any difficulty in having subpoenas issued should be notified to my Chambers, in particular, to Ms NN, in correspondence copied to all parties.
DISCUSSION
When the court adjourned on 28 January 2022, the two experts who had been cross examined had identified the impediment to overnight time as being the incomplete investigation by DFFH into X’s inappropriate behaviour to her playmate in November 2021. Otherwise, each expert preferred D Service over Dr E as the provider of therapy and education of X and the education and further assessment of the parents. The DFFH officers also support D Service over a private practitioner.
The views of experts inform the court but do not bind the court. It is for the court to assess all of the evidence in the context of relevant considerations and make a determination based on X’s best interest as the paramount consideration within the meaning of s.60CC of the Act.
D SERVICE OR DR E?
The mother and the independent children’s lawyer contend that family therapy should be with D Service, whereas the father seeks a private clinician, Dr E. I determined this issue on 17 March 2022 and ordered that the family engage Dr E as the therapist. It was my understanding that Dr E is available to see the family commencing on 10 May 2022. I did not want the family to lose that opportunity by not being able to confirm the appointment proximate to it being offered. These reasons explain why I prefer Dr E over D Service and the variation of time that the father spends with X between now and a final hearing.
Expertise
No party contends that Dr E is not qualified or lacks the necessary experience to provide therapy and education to X and to educate and further assess the parents. Mr Strong for the mother said that he has not examined Dr E’s curriculum vitae but concluded the proceedings some hours later without making any further reference to Dr E’ qualifications, training and experience. There was the following interchange with Ms Treyvaud, also on 17 March 2022:
HER HONOUR:   And Ms Treyvaud, what’s your – what the Independent Children’s Lawyer’s objection, if any, particularly to [Dr E]?
MS TREYVAUD:   Well, the reason that we’ve asked for [D Service] is because that’s what all the experts have said.
HER HONOUR:   Yes, I understand the reason. Right. I’ve read the reason, heard all about that. I’m asking, because it appears to me that neither of you have made – have raised any objection to [Dr E], you just say you would prefer somebody else instead.
MS TREYVAUD:   Well, from my understanding, and what’s on the [OO Lawyers] website. He has worked in criminal law, he’s a registered psychologist with doctorial training in forensic behavioural science, he’s renowned for his work in cases where there’s a substantial risk footprint, family violence, sexual abuse and personality disturbance. He provides single expert advice for the Family Court and is a prolific public speaker. He’s clearly qualified. I’m not saying he’s not qualified.
In the s.69ZW Report, it is stated (page 3) that “Whilst Mr Perry has nominated the two psychologists mentioned above, it is Child Protection’s assessment that X requires a more specialised service like D Service to be more appropriately suited to provide specialised therapeutic counselling to address the problematic or harmful sexualised behaviour which has been reported.” However, the authors do not specify the difference between D Service and Dr E. If D Service really offers a different service, it would have been easy enough to list them and thereby identify what attributes they say Dr E lacks.
In Dr F’s Report [page 26] Dr F endorses D Service, as follows:-
126. [Mr Perry’s] refusal to permit [X] to attend counselling at [D Service] is both perplexing and concerning. Given the history of the matter, one would assume a child-focused approach would be to facilitate as much support as [X] needs. At the very least, [X] has been saying unusual things and exploration of the origin of those statements would assist both [X] and her parents in ongoing management. The proposition that [D Service] would “assume abuse occurred” is ill-informed and inaccurate. Rather, [D Service] has expert clinicians who are skilled in early childhood development and teaching protective behaviours and building strengths, not investigating facts of abuse. If concerns regarding [D Service] did exist, that does not explain failing to seek alternative intervention providers. Failure to do so, in the writer’s opinion, was a significant error of judgement and failure to remain child focused.
In cross-examination Dr F agreed that a private clinician could perform the role proposed for D Service. There was the following interchange:-
[DR F]: I mean, I think evaluation of that very issue. I think that the notion, as I said in my report, that [D Service] work from an assumption that someone is a perpetrator is actually – it’s actually inaccurate. It’s more around, first of all, obviously, the protective behaviours for the child because that’s the most important next steps, and – and also then, I guess, exploration of what is going on and it doesn’t necessarily assume, as any clinician shouldn’t be assuming, that someone is a perpetrator or, in fact, that any abuse has occurred. But, clearly, when you look at the behaviour of this child, as your Honour said before, something is going on, be it the stress between and conflict between the parents or be it some form of abuse from either parent. Something is going on and that something which she needs assistance with that something and to hold off intervention any further I think is a – a – a fundamental error in – in the management of the case.
HER HONOUR: Could it be done by a private clinician?
[DR F]: I think it can be done by a private clinician. I think that you need to be very careful in terms of the clinician that you choose because it’s a very specialist area and as much as - - -
When asked about Mr QQ, Dr F commented that:-
I couldn’t comment whether he has those skills in terms of sort of longer-term intervention with children. And I think in – in many respects, that’s why many of us rely on agencies such as [D Service] because we know that the practitioners employed by those agencies are – are trained, are supervised and have expertise in working with children who, you know, for want of a better word, have been traumatised in some way.
I accept that D Service is a recognised and well respected organisation. I have familiarity with the work of Dr E. He is a sound practitioner, a former senior Family Consultant with this court and he frequently gives evidence in Court. Certainly, Dr E has a high degree of exposure to high conflict families but apparently D Service also deals with high conflict families including families that are in the midst of litigation. I am satisfied that a practitioner such as Dr E is resourced to manage highly manipulative parents, the manipulative aspect being a frequently encountered feature of high conflict families. He is familiar with setting boundaries around parental behaviour and, to my mind, would adopt a forensic lens within a therapeutic setting. I am satisfied that there would be a range of practitioners at D Service and, naturally, some would be better than others.
I am not swayed in favour of Dr E because the father does not have confidence in D Service. It is preferable that the parents have confidence in treating practitioners for X and for themselves but it is not absolutely essential. However, the father has numerous issues in relation to D Service. One is that he was informed by personnel from D Service that “we always believe the child”. Of course, it may be that the staff member was saying that a child will not necessarily be challenged on the veracity of a disclosure which is indicative of inappropriate sexual conduct. She may not have meant to convey that the child would be treated as a victim of child sexual abuse. This has not been addressed in evidence and it may have been possible to sway the father from his view. However, as matters stand it is a major concern of the father than the child is making statements and disclosures which ought not be believed because they did not occur. I am confident that scepticism about statements by children and parents would sit comfortably with Dr E. I expect that Dr E has capacity to keep dual hypothesis, of whether sexual abuse did or did not occur, while in the air, whilst still concentrating on the child.
It is curious that DFFH could not or would not nominate any service provider other than D Service. It cannot be that they are the only service provider. I am concerned that DFFH and the Child Court Expert may have each adopted the approach that the father’s refusal to engage D Service should disentitle him to further time with X and a relaxation of conditions associated with that time. If that is so it would be an inappropriately punitive response not merely to the father but also to the child.
Father’s objection to D Service
The father’s objection to attending D Service and his lack of confidence in the organisation is outlined with some provision in his affidavit affirmed 15 March 2022:
6. On 21 February 2021 in a conversation with [Mr T] from the Department, [Mr T] told me that [X] would be attending [D Service] and had been placed on the [D Service] waitlist. My consent was not sought, I was told.
7. After my conversation with [Mr T] I sought legal advice and on 22 January 2021 I sent a text to the Department saying:
Hi [Mr T], I have spoken to [Ms PP] (child lawyer) and have an apportionment with her next week. I have been advised not to agree to [X] attending ‘[D Service]’. They seem to be a treatment service for children that have been abused and that hasn’t happened. As a guardian of [X], I oppose her attending [D Service]
8. My opposition to [D Service] was because I did not want [X] to engage with a service where they focus children who have suffered sexual abuse. There is no evidence that [X] has been sexually abused. I deny the allegations that I have sexually abused [X].
9. On 10 February 2021 the Department released a report which said that they were not in the position to make recommendations as the investigations was ongoing. In the report, the Department also incorrectly stated:
On the 22.2.2021 [sic], [Mr Perry] withdraw [sic] his consent for [X] to attend [D Service] advising he had sought legal advice surrounding this and if [X] was to attend it would suggest he was guilty of what has been alleged.
10. On 17 February 2021 I sent an email to [Mr T] at the Department
(a) Referring to the statement in the Department report about me withdrawing my consent (quoted above).
(b) Clarifying that “my objection was because I didn’t agree to [X] receiving child abuse victim treatment when there hasn’t been any abuse”.
(c) Confirming that I didn’t give consent, and then withdraw it. I was never consulted.
(d) Providing a chronology around the events leading to [Ms Holland] reporting the alleged disclosures, due to my concerns that the Department had not considered the context and timing of [Ms Holland’s] allegations.
11. On 19 May 2021 the Department released their Magellan Report. Again, the Department incorrectly stated that I had given my consent on 21 January 2021 to [X] engaging with [D Service], and that I had then withdrawn my consent on 22 January 2021 as “it would suggest (I) was guilty of what has been alleged”. I did not attempt to correct them again.
12. In the Magellen report, the Department comment on their conversation with me on 12 March 2021 when I expressed my concerns about [Ms Holland’s] leading questions to [X], the risk to [X] believing something to have happened which it hasn’t, and that I was still at that time not wanting [X] to attend [D Service] as I thought it “would also be damaging towards [X] in making her believe something has happened when it hasn’t” and that I believe [X] was being systematically abused. I agree that the Department has accurately recorded that I voiced those views on that occasion.
[…]
16. On or about 28 October 2021 on considering [Dr F’s] [D Service] recommendation I spoke to [Ms RR] from the [D Service] intake team… I explained that I was concerned that [X] would be counselled for abuse that did not happen, in response to which [Ms RR] told me “We always believe the child”. “We must assume the child is telling the truth”, and “We assume any allegations are true”.
17. After reviewing and considering [Dr F’s] report and speaking to [D Service] I filed my application in November 2021 seeking Order for [X] to receive therapy from an experienced private practitioner without further delay.
18. To my recollection, from the 19 March 2021 Orders until after I made my Application in a Case in November 2021 I was not approached by [Ms Holland] or the ICL seeking my consent to [X] receiving treatment from anyone other than [D Service].
19. In her Affidavit material, [Ms Holland] confirms that she has been receiving her own counselling herself from [D Service] “in [X’s] place”. Even if [D Service] were an appropriate organisation to assist out family, I do not have confidence in [D Service] providing therapy to [X] and assistance to our family now that [Ms Holland] has spent months dealing directly with them without my input or involvement.
[…]
22. During the interview I asked the Department what alternatives to [D Service] they could suggest for [X]. They did not have any suggestions. I agreed to provide a list of psychologist as an alternative to [D Service]. On 30 December 2021 I provide four suggestions by email, being [Mr QQ] and [Dr E] (both of whom had availability to start with [X] in February 2022), [Ms SS] and [Ms TT]. I received no further contact from the Department about therapy for [X].
[…]
24. The recommendations for [X] to engage with [D Service] were made by the Department, [Dr F] and the Court Child Expert without listening to/viewing the audio and video tapes taken by [Ms Holland] and provided by [Ms Holland] to the police, of [Ms Holland] questioning [X].
[…]
26. My solicitors received an email from the ICL on 8 February 2022 reiterating the ICLS’s first preference being [D Service] for [X’s] therapy. The ICL states in that email “It is understood that the father is not in agreement with this referral. The next logical referral would be to [UU Psychology] but we understand that the father also has on objection to this referral”. I do not agree that it is logical to suggest that [X] attend [UU Psychology] when there is no evidence of any sexual abuse having occurred.
The father concludes that:
27. Considering the circumstances I strongly oppose any counselling for [X] for sexual abuse that has not occurred. I do support her attending counselling with an experienced independent psychologist who can view all of the relevant information from the outset and help minimise any long term impact on [X] caused by [Ms Holland’s] extensive inappropriate and incessant questioning.
The father was not required for cross-examination and I was not referred to evidence which contradicted his version of above events. That said, my reading of paragraph 11 of the father’s affidavit of 15 March 2022 does not accord with the relevant part of the Magellen Report. The Magellen Report recites that “On 22/1/2021, Mr Perry withdrew his consent for X to attend D Service advising he had sought legal advice surrounding this and if X was to attend it would suggest he was guilty of what has been alleged” whereas the father’s affidavit could be read as if the Department had suggested his withdrawal of consent suggested he was guilty.
From the current vantage point, I cannot access X as being at any higher risk of emotional harm if the parents engage with Dr E than they would be if they engaged with D Service. However, given the father’s stated and, to a certain extent, understandable reservations about D Service and the father that the mother has already consulted two practitioners from D Service and been treated by them, I would favour the engagement of Dr E. I accept the argument advanced on behalf of the mother that the engagement is primarily for the benefit of X and, in effect, the parents need to be child focused and put aside their own personal preferences. That submission alone gives me confidence that the mother will manage Dr E. However, I am not so confident the father could manage D Service.
Availability

I am informed that D Service cannot commence working with the family until later this year, as best I recollect, in August. Accordingly, the family could not commence with D Service prior to the final hearing. That necessarily impedes the progress of the matter because X will not have had the benefit of therapeutic counselling, the education about self-protection and the parents will not have been introduced to techniques to work around X’s behaviours or been assessed in relation to their respective capacities and the possibility that X’s behaviours are referrable to and in reaction to parental anxiety or expectation. That would be a pity. I accept the evidence of Dr F that X should be seen as soon as possible.
Being able to access Dr E by 10 May 2022 should ensure that, by the final hearing, in early August 2022, Dr E may be in a position to give evidence, if called upon to do so, about having achieved the following:
·commenced therapeutic work with X, including education about such protective behaviours as he considers appropriate;
·commenced education of the mother and the father about age and stage appropriate responses to X;
·made at least a preliminary assessment of the capacity of each parent to protect X from physical or psychological harm and/or exposure to abuse and/or to provide for X’s emotional and intellectual needs in light of developments in the case since they were assessed by Dr F in July/August 2021 including Dr F’s opinions of each of them. This will necessarily include an assessment of the insight of each parent into how his/her behaviour may have contributed to difficulties experienced by X and/or any sexually inappropriate behaviour in which X engages and/or X’s description of sexually inappropriate or abusive treatment of herself.
For the above reasons, I have ordered that the family engage with Dr E.
EXTENSION OF FATHER’S TIME WITH X BETWEEN NOW AND THE FINAL HEARING
The current parenting arrangement is the interim orders made by Judge Carter (as she then was) on 19 March 2021. They provide for X to live with the mother and spend time with the father each Tuesday from the conclusion of kindergarten or 11 am until 5 pm and each Saturday from 8.30 am until 4.30 pm under the supervision of the father’s mother or his sister (ie. the paternal grandmother or the paternal aunt). This regime replaced an arrangement, implemented by consent orders, whereby X spent four out of fourteen nights with the father. It was adopted as a cautious approach given then recent allegations of possible sexual abuse or misconduct by the father of X, which allegations were denied by the father and about which I will say more when setting out some history. A Magellan Report by Department of Families, Fairness and Housing (“DFFH”) was published on 19 May 2021 and the father has sought since then to reinstate overnight time on an unsupervised basis.
The mother seeks that the time stay as is, which is Tuesday from 11 am to 5 pm and each Saturday from 8.30 am to 4.30 pm. She opposes overnight time but, if it is ordered, seeks that the father no co-sleep with X and avoid “any primary or intimate care of the child (bathing, toileting etc) where possible”. The mother seeks that “the paternal grandmother Ms C will be paternal aunt Ms B [be] insubstantial attendance, include including to act as a witness should the need arise, when [the father] is spending time with the child”.
The mother’s response to the father’s application contemplated the introduction of overnight time. I have provided details of the evidence which forms the context of this application. There is no evidence on which I can be satisfied that overnight time with the father represents a risk to X let alone an unacceptable risk. I do not exclude the possibility that the mother’s anxiety and low mood may impact upon X but I do not understand that to be the mother’s case.
X’s relationship with the father has already been disrupted and, having regard to the lack of evidence against the father’s proposal that disruption has gone on for a regrettably long period. It should be rectified as soon as possible. Notwithstanding that the Child Court Expert and Dr F endorsed the introduction of overnight time regardless of whether X has commenced therapy, it is my view that overnight time should not be introduced until at least the parents have been seen by Dr E.
I will adopt the relaxation of conditions for time proposed by the mother and introduce overnight time once per week. There will be a second period of day time.
DICSLOSURE OF MOTHER’S ADDRESS
The father seeks that spend time arrangements be normalised by changeovers being effected at their respective residences. The mother opposed the father knowing her residential address. With children of X’s age, secrecy of addresses poses problems. The parent who does not want to disclose their address is effectively telling the child they must keep a secret from their other parents and invariably, as here, that secret is based on the obvious perception that the other parent is in some way dangerous. In this case, the father alleges that X told him that she heard a knock on the door whilst at home with the mother and the mother asked X whether it could be the father who was knocking at the door. X told the father he knew it could not be him because he does not know where she and the mother live.
I will not make any orders in relation to disclosure of the mother’s address at this stage. It may be that the parties reach an accommodation prior to the final hearing. In consideration of that I have proceeded to make the order sought by the father which enjoins each parents from knowingly approaching the residence of the other parent save for the purpose of changeovers or by express consent. If the parents are able to agree on an exchange of addresses, they have in place the necessary and appropriate safeguard provided by the injunction.
CONCLUSION
I am satisfied that the orders I make an in X’s best interests. The orders that I make today must be read in conjunction with the Order made on 17 March 2022.

I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.
Associate:
Dated: 26 April 2022

File number(s):	MLC 5473 of 2020
Judgment of:	BENNETT J
Date of judgment:	26 April 2022
Catchwords:	FAMILY LAW- PARENTING- circumstances justifying second interim assessment of time to be spent- whether family should engage private clinician or independent child and family services provider for therapeutic support- whether father’s time with child can be extended to include unsupervised overnight time – whether mother required to disclose residential address.
Division:	Division 1 First Instance
Number of paragraphs:	122
Date of hearing:	28 January and 17 March 2022
Place:	Melbourne (heard via MS Teams)
Counsel for the Applicant:	Mr Barbayannis
Solicitor for the Applicant:	Hargreaves Family Lawyers
Counsel for the Respondent:	Mr Ng (28 January 2022) and Mr Strong (17 March 2022)
Solicitor for the Respondent:	Pentana Stanton Lawyers (28 January 2022) and Victoria Legal Aid (17 March 2022)
Counsel for the Independent Children’s Lawyer:	Ms Treyvaud
Solicitor for the Independent Children’s Lawyer:	Macgregor Barristers and Solicitors

MLC 5473 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR PERRY Applicant
AND:	MS HOLLAND Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	26 APRIL 2022