Presley & Presley - [2021] FedCFamC1F 82

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Presley & Presley [2021] FedCFamC1F 82

File number(s): DGC 2224 of 2017

Judgment of: WILLIAMS J

Date of judgment: 30 September 2021

Catchwords: FAMILY LAW – PARENTING – Parenting application where both parents seek that the six children of the relationship live with them and allege that the other poses an unacceptable risk – Where the husband asserts that the wife has maliciously conspired to make allegations against him of sexual and physical abuse, coercive and controlling conduct and is unable to facilitate a relationship between him and the children – Where the wife asserts that the husband has sexually and physically abused some of the children and has engaged in coercive and controlling conduct towards her – Held the husband does not pose an unacceptable risk of sexual abuse, but does pose a risk of physical and psychological abuse primarily arising from his draconian discipline of some of the children – Held that the wife does not pose an unacceptable risk of harm – Consideration of factors which would mitigate the risk the husband poses to the children – Orders made for the children to remain living with the wife and for the children (with the exception of one) to spend gradual supervised time with the husband to progress to the supervisor being in substantial attendance and eventually unsupervised time – Orders made requiring the family to participate in family therapy and for each of the parents to engage in individual therapy – Orders made for the wife to have sole parental responsibility for the children, subject to notification of the husband of any such decisions

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA

Division: Division 1 First Instance

Registry: Melbourne

Number of paragraphs: 304

Date of last submission/s: 16 April 2021

Date of hearing: 16 September 2019, 30 September 2019–4 October 2019, 6 November 2019, 20–22 October 2020, 9 November 2020, and 18 January 2021

Place: Melbourne

Counsel for the Applicant: Mr Grant

Solicitor for the Applicant: Umbrella Family Law

Counsel for the Respondent: Ms Jenkins

Solicitor for the Respondent: Caroline Counsel Family Lawyers

Counsel for the Independent Children's Lawyer: Mr O’Connell

Solicitor for the Independent Children's Lawyer: Clark Family Lawyers
ORDERS

DGC 2224 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PRESLEY
Applicant

AND:
MS PRESLEY
Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

30 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The children T born … 2006 (“T”), V born … 2007 (“V”), W born … 2009 (“W”), X born … 2011 (“X”), Y born … 2014 (“Y”) and Z born … 2016 (“Z”) live with the wife.
3.The wife have sole parental responsibility for all the children.
4.In relation to any health education or religious decisions the wife is required to make in relation to the children, the wife is to undertake the following actions before making such decision:
(a)the wife provide the husband with no less than 14 days’ notice in writing of any such proposed decision; and
(b)the wife consult with the husband (by email or text communication unless she elects to communicate by phone or in person) with regard to any such proposed decision and make a genuine effort to give consideration to his expressed view and, should the relationship between the parents permit, make a genuine effort to reach agreement with the husband about any such proposed decision;
(c)if no agreement is reached between the husband and wife, the wife make the final decision and within 14 days of so doing, provide the husband with written confirmation of the decision (by email or text is sufficient).

5.The children (excluding V) spend time with the husband commencing on the first Saturday after these orders as follows:
(a)for a period of six months from the date of these orders from 10.00 am to 4.00 pm, supervised by Ms B Presley, or such other person as may be agreed in writing between the husband and the wife;
(b)at the conclusion of six months referred to in paragraph (a) hereof, for a further period of six months, from 10.00 am to 4.00 pm, with Ms B Presley, or such other person as may be agreed in writing between the husband and the wife, to be in substantial attendance;
(c)at the conclusion of the further six month period referred to in paragraph (b) hereof, (twelve months from the date of these orders) in a two week cycle as follows:
(i)each alternate Saturday from 10.00 am until 10.00 am Sunday, with Ms B Presley, or such other person as may be agreed in writing between the husband and the wife, to supervise the time between 6.00 pm Saturday and the conclusion of time on Sunday;
(ii)every other Saturday from 10.00 am to 6.00 pm;

(d)at the conclusion of the further six month period referred to in paragraph (c) hereof, (eighteen months from the date of these orders) in a two week cycle as follows for a further six months:
(i)each alternate Saturday from 10.00 am until 4.00 pm Sunday, with Ms B Presley, or such other person as may be agreed in writing between the husband and the wife, to be in substantial attendance between 6.00 pm Saturday and 9.00 am Sunday;
(ii)each alternate week from the conclusion of school or 3.30 pm Wednesday, or such other day as may be agreed in writing, until commencement of school or 9.00 am the following day, with Ms B Presley, or such other person as may be agreed in writing between the husband and the wife, to be in substantial attendance between 6.00 pm Wednesday, or such other day as may be agreed in writing, until the departure for school in the following morning;

(e)at the conclusion of the further six month period referred to in paragraph (d) hereof, (24 months from the date of these orders) in a two week cycle for a further six month period as follows:
(i)each alternate Friday from the conclusion of school or 3.30 pm until 4.00 pm Sunday;
(ii)each alternate week from conclusion of school or 3.30 pm Wednesday, or such other day as may be agreed in writing, until commencement of school or 9.00 am the following day;

(f)thereafter, at the conclusion of the period referred to in paragraph (e) hereof, the children spend time with the husband in a two week cycle as follows:
(i)each alternate Friday from the conclusion of school or 3.30 pm until commencement of school or 9.00 am Monday;
(ii)each alternate Wednesday, or such other day as may be agreed in writing, from the conclusion of school or 3.30 pm until the commencement of school or 9.00 am the following day;

6.The time provided in paragraph 5(a)–(d) hereof, continue during all school holidays, save that if the wife wishes to take the children on a holiday during school term or the long summer holidays, she shall advise the husband in writing at least 30 days prior to the intended holiday, and the husband’s face to face time with the children will be suspended during any such period.
7.As from the commencement of time as provided in paragraph 5(e) hereof, the children (excluding V) spend time with the husband during school holidays for a period of 12 months as follows:
(a)during the school term holidays for three consecutive nights and four days at times as agreed and in default of agreement commencing from 10.00 am on the middle Saturday of the holidays and concluding at 4.00pm Tuesday;
(b)during the long summer school holidays for three consecutive nights and four days each fortnight during January of the long summer holidays at times as agreed and in default of agreement commencing at 10.00 am on the first Saturday in January of that year and concluding at 4.00 pm on Tuesday.

8.For the purposes of paragraph 7 hereof, the husband’s term time with the children is suspended during the term holidays and January of the long summer holidays and will recommence at the conclusion of the holidays in the same cycle as prior to the holidays.
9.At the conclusion of the holiday time referred to in paragraph 7 hereof, the children (excluding V) spend holiday time with the husband as follows:
(a)for the school term holidays:
(i)in even numbered years from the conclusion of school until 4.00pm on the middle Saturday;
(ii)in odd numbered years from 4.00 pm on the middle Saturday until 4.00 pm on the last Sunday;

(b)for the long summer holidays on a week about basis, subject to orders pertaining to the time on Christmas Day, with the children’s time with the husband to commence in even numbered years at 10.00 am on the first Saturday of the holidays and in odd numbered years for the children’s time with the husband to commence at 10.00 am on the second Saturday of the holidays.

10.The children (excluding V) spend time with the husband on special occasions, if not otherwise in his care, as follows:
(a)from 9.00 am to 5.00 pm on Father’s Day;
(b)on each of the children’s birthdays (excluding V’s) and the husband’s birthday as follows:
(i)if a school day, from conclusion of school until 7.30 pm;
(ii)if a non-school day, for four hours as agreed and in default of agreement from 9.00 am to 1.00 pm in odd years and from 2.00 pm to 6.00 pm in even years;

(c)on Christmas Day in 2021 from 1.00 pm until 6.00 pm and in 2022 from 9.00 am to 2.00 pm, and thereafter in odd years commencing 2023 from 12.00 noon Christmas Eve to 12.00 noon Christmas Day and in even years commencing 2024 from 12.00 noon Christmas Day until 12.00 noon Boxing Day.
(d)such time to be subject to the same supervision/substantial attendance requirements as referred to in paragraphs 5(a)–(d) hereof.

11.The children spend time with the wife on special occasions, if the children are not in the wife’s care (with the husband’s time suspended) as follows:
(a)on Mother’s Day from the Saturday evening prior at 5.00 pm until the commencement of school on the Monday after Mother’s Day;
(b)on each of the children’s birthdays and the wife’s birthday as follows:
(i)if a school day from the conclusion of school until 7:30 pm;
(ii)if a non-school day, for four hours as agreed and in default of agreement from 9.00 am to 1.00 pm in odd years and from 2.00 pm to 6.00 pm in even years;
(iii)in even years commencing 2024 from 12.00 noon Christmas Eve to 12.00 noon Christmas Day and in odd years commencing 2023 from 12.00 noon Christmas Day until 12.00 noon Boxing Day.

12.The husband and wife forthwith do all acts and things and sign all necessary documents to attend upon Ms C, or such other person as nominated by her (the family therapist), for the purposes of engaging in reportable family therapy to include each of the children and the parties in order to appropriately address allegations made by the parties in these proceedings and determinations thereon made by the court and to address generally the relationships of each of the parents to each other and to each of the children.
13.The family therapy referred to in the preceding paragraph shall continue for a period of at least 12 months or such other time as directed by the family therapist.
14.Both the husband and the wife follow all lawful directions of the family therapist and shall ensure the children attend upon the family therapist.
15.The cost of the family therapy shall be paid by the husband.
16.The husband and the wife forthwith do all acts and things and sign all necessary documents to attend upon an individual therapist, which shall continue for a period of at least 12 months or such other time as directed by the individual therapist, and comply with the lawful directions of the individual therapist and Ms D and/or Ms C be requested to provide the name of a suitable individual therapist for each of the husband and the wife.
17.The husband and the wife shall each be responsible for the costs of their own individual therapist.
18.The family therapist and the individual therapists be provided a copy of the family reports of Ms D, the psychiatric assessments of the parties, the transcript of cross-examination of D and a copy of reasons for judgment.
19.The wife authorised the children’s schools to provide to the husband, at the husband’s expense, information in relation to the children’s education and progress (including but not limited to school reports, school photograph order forms and notices).
20.Both parties be permitted to attend all school and extracurricular activities normally attended by parents.
21.The wife provide to the husband a list and contact details of the children’s current treatment providers, medical and allied health treatment specialists and keep the husband advised of the children’s future medical and like appointments.
22.Both parties are permitted to contact and communicate with any of the children’s treatment providers.
23.The husband and the wife notify each other of any change of address or contact details within 24 hours of such change.
24.Both the husband and the wife, their servants and/or agents, are restrained by injunction from:
(a)denigrating the other party to the children or in the presence or hearing of the children or from permitting any other person to do so;
(b)discussing the proceedings and court documents with the children, except during the course of family therapy.

25.The order appointing the Independent Children's Lawyer be discharged upon the latter of the expiration of the appeal period in respect of these Orders, or the determination of any appeal that may be brought therefrom.

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 the pseudonym Presley & Presley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J

The applicant is the father and the respondent is the mother of the children:
(a)T born in 2006, aged 15 years ;
(b)V born in 2007, aged 14 years;
(c)W born in 2009, aged 12 years;
(d)X born in 2011, aged 9 years;
(e)Y born in 2014, aged 7 years;
(f)Z born in 2016, aged 4 years.
Subsequent to separation on 21 January 2017, the children have lived with their mother and spent limited time with their father. The husband's time with the children has been subject to supervision. The husband has not spent any time with V since May 2018.
The husband seeks parenting orders providing that all of children live with him, an order for sole parental responsibility and that the children spend limited time with the wife.
The wife seeks parenting orders providing that the children with her, she have sole parental responsibility and the children spend no time with the husband, or alternatively supervised time.
The husband asserts that:
(a)subsequent to separation, the wife has orchestrated a campaign of notifications to the DHHS and the police, alleging that the husband poses a risk to the children, including alleging that he has sexually abused V;
(b)undermined the children's relationship with him and caused emotional and psychological damage to the children;
(c)if there is no change of residence, it is unlikely that children will have a meaningful relationship with their father in the foreseeable future or a long-term relationship with him;
(d)the wife poses an unacceptable risk to the children, because of her inability to facilitate and promote a relationship between the children and their father.
The wife asserts that:
(a)because of his conduct towards the children, the husband poses an unacceptable risk to their welfare, and there should be no time between him and the children;
(b)the children have been exposed to physical and psychological harm by the husband, particularly:
(i)V, Y and Z have been sexually abused;
(ii)X has been physically abused including being deliberately dropped;
(iii)Y has suffered psychological harm as a result of being strapped into her high chair in a dark room;
(iv)T, W and X have suffered psychological harm as a result of being made to sleep on the floor of the bathroom or laundry;
(v)W has suffered psychological harm as a result of being made to lie on the back deck at night, for punishment.
(c)because of his conduct towards the children, the husband poses an unacceptable risk to their welfare, and there should be no time between him and the children.
Issues in Dispute
The following issues were in dispute in the proceedings:
(a)whether either parent is an unacceptable risk to the children;
(b)whether the parties should have equal shared parental responsibility for the children, or whether the parent with whom the children live, should have sole parental responsibility;
(c)whether the children should live with their mother or their father;
(d)the time the children should spend with the parent with whom they do not live, if any.
Synopsis
I have determined that it is in the children's best interests that:
(a)the children should live with their mother;
(b)the children spend time with their father progressing from supervised daytime time to unsupervised overnight time, holiday time and special occasions;
(c)the wife should have sole parental responsibility for the children, subject to her advising the husband of any such decisions and considering his response.
The reasons for my determination follow.
Background
Both parents are aged 39. They married in 2005 and separated in January 2017. Their six children were born between 2006 and 2016. Both parents are from deeply conservative religious backgrounds and are devout members of their congregation.
The wife asserts and the husband admitted that he dropped X on the floor in 2016. The mother asserts that the other boys were locked in the laundry as punishment for many years and that Y was strapped into her high chair in the dark as a disciplinary method from when she was approximately 18 months old until separation. These events are comprehensively referred to later in these reasons.
On 21 January 2017, the mother stayed overnight with her mother with V, Y and Z, whilst T, W and X remained in the father’s care. The mother did not return to the family home subsequent to that date nor has she permitted the children to do so. The following day the parties met at the church with their bishop and the day after the husband met with a psychologist, who had previously provided marriage counselling for the parties.
On 31 January 2017, the children attended their first day of school at a new school. The wife advised the husband via text message that the children had been enrolled in a new school, which she had not discussed with him prior to that time.

The parents attended a couple of counselling sessions on 1 February 2017 and 3 February 2017, with their former marriage counsellor. During the second session, the wife agreed that the children could spend time with their father after school on Wednesdays, two hours each Saturday and the time during the regular church meetings on Sunday with such time to be supervised by her or one of her family members.
On 4 February 2017, the children spend time with their father at the maternal grandmother’s house, which was the first occasion that they had done so since separation.
On 11 February 2017, after the children had spent time with their father, the wife accused the husband of having sexually abused the children and told him that he needed help. Thereafter the husband attended Mr E, psychologist, for counselling.
The father spent time with the children, both the supervised by the maternal family and at school church and other activities.
On 22 April 2017, there was an incident of sexual impropriety between T and Y and on 24 April 2017 the mother made a report to DHHS about the incident. She did not advise the husband.
On 27 April 2017 the DHHS visited the wife’s home and interviewed the children. According to the wife, on that day V disclosed to her mother that her father had been touching her in a way that made her feel uncomfortable. T was taken to the police station to provide a statement, accompanied by a DHHS worker.
On 28 April 2017, the wife forwarded a text message to the husband advising him of T’s sexualised behaviour and that the DHHS were investigating. On 2 May 2017, the husband met with the DHHS at his home, with the paternal grandfather present. On 4 May 2017, the mother applied for an interim intervention order which was made in the absence of the father and without notification to him.
On 29 April 2017 V underwent her first VARE interview.
On 16 June 2017, Y disclosed to her mother that her father had sexually abused her. The wife took Y to the police station to be interviewed on 4 July 2019.
On 7 July 2017, the husband was contacted by Suburb F police SOCIT in relation to the allegations and on the following day was interviewed for three hours by the police. Subsequent to the husband’s interview, the wife was advised that the investigation would not continue.
On 11 July 2017, V made a further disclosure of sexual abuse by her father, which was reported to the police. The following day V was again interviewed at the police station and on 13 July 2017 V had a second VARE interview.
On 20 July 2017, V made further disclosures of sexual abuse by her father which were reported to the police, however no further action or investigation was undertaken.
On 28 July 2017, the DHHS visited the wife’s home and informed her that they were ceasing their involvement with the family.
In September 2017, the wife reported that Y initiated a conversation with the maternal aunt about her father putting her in the highchair and touching her inappropriately.
On 19 July 2017, the husband filed an Initiating Application in the court and thereafter the wife filed a Response. On 1 March 2018, orders were made by Senior Registrar Field, subsequent to a defended interim hearing, that the children spend time with the father at a contact centre. Subsequent to May 2018, V has not attended for supervised time with her father.
On 10 July 2018, orders were made providing for the children to spend time with the husband, for V to attend reportable family therapy to address her relationship with her father.
On 21 July 2018, the first supervised session with the TT Contact Service commenced.
On 24 January 2019, the husband filed an application seeking to increase his time to overnight time and to move away from supervised time. On 18 February 2019, the wife filed a response resisting the husband’s application and seeking to reduce time to each alternate weekend. On 21 February 2019, Senior Registrar Field, at the conclusion of a defended interim hearing dismissed both applications.
On 28 February 2019, the matter was listed for a mention and set down for a five day trial on 26 August 2019.
The trial commenced on 30 September over a five day period however at the conclusion of cross-examination of the wife by counsel for the husband she was unable to continue with the trial.
The trial was adjourned to 6 November 2019 and on 13 December 2019 orders were made providing for the wife to be psychiatrically assessed by Dr G to ascertain her capacity to continue with the trial.
The trial then resumed electronically on 20 October 2020 for a further three days, prior to concluding on 18 January 2021. The trial was conducted electronically because of the Covid-19 pandemic.
The proposals of the parties
The husband's proposal
The orders which the husband sought from the court are set out in his Outline of Case document filed on 13 September 2019 and his Amended Initiating Application filed 18 April 2019.
The proposed orders are as follows:
1.That the Father have sole parental responsibility for the children T born … 2006. V born … 2007, W born … 2009, X born … 2011. Y born … 2014 and Z born … 2016.
2.That the children live with the Father.
3.The children spend time and communicate with the Mother as follows:
(a)For a period of no less three months from the date of these orders the Mother spend time with the children supervised by a professional supervisor at the Mother's expense as follows:
(i)From 10am until 2pm each Saturday or at such other four hour period as shall be agreed between the parties and the supervisor with the venue to be agreed between the Parties and the supervisor;
(ii)For two hours each Wednesday from 4pm until 6pm or at such other two hour period as shall be agreed between the parties and with the supervisor after school.
(b)Thereafter provided the Mother has completed a post separation Parenting course and subject to confirmation from the Therapist that the Mother's time can be unsupervised and can progress at each stage then:
(i)For a period of a further two months from after school Friday to 3.00pm Saturday; and
(ii)Further a period of a further two months from after school Friday to 3.00pm Sunday in alternate weekends.
4. Thereafter subject to confirmation from the Therapist:
(a)In each alternate weekend from after school Friday until commencement of school on Monday for the school-aged children and until 3.00pm Monday for the non-school aged children;
(b)In the off week from after school on Monday to commencement of school on Tuesday for the school-aged children and until 3.00pm for the non-school aged children;
(c)On each of the children's, and the Mother's birthdays for not less than 3 hours if the child is not otherwise spending time with Mother;
(d)On Mother’s Day from 8.30am until 5.00pm if the children are not otherwise spending more time with the Mother; and
(e)At such further or other times as agreed between the Parties.
5.For the purpose of changeover on school days other than pursuant to order 3(a):
(a)the children attending school to be picked up by the mother from school or at 3.00pm;
(b)the children not attending school to be picked up by the mother from the father's home 30 minutes before the end of school or at 3.00pm;
(c)for children not attending school to be dropped off by the father 30 minutes after the beginning of school; and
(d)at the conclusion of the mother's time the father shall collect the non-school aged children from the mother's home.
6.The Father be at liberty to take the children on holiday for a period of two consecutive weeks once in each year, and one consecutive week once in each year and during that time the Mother's time be suspended.
7.For the purpose of changeover on non-school days the Mother shall collect the children from the Father's home at the commencement of her time and the Father shall collect the children from the Mother's home at the conclusion of her time:
8.Forthwith upon the making of these orders that the mother enrol in and subsequently complete a multi-week post-separation parenting course.
9.That both Parents and V attend Family Therapy with Ms C or other agreed therapist until such a time as the therapist deems fit but for not less than 6 months, and that such therapy be directed according to the needs identified by the Family Therapist, but that this include the aim to help the family adjust to the new living arrangements.
10.All time between the Mother and the children pursuant to these orders shall be supervised pending advice from the therapist that time may be unsupervised.
11.The maternal grandmother not be at liberty to attend the Mother's time with the children during the period such time is supervised.
12.That for the purpose of time spent pursuant to paragraph 3a) i) herein, a maternal family member other than the maternal grandmother may be present.
13.The children spend time with their Father from 10am on Good Friday to 3pm Easter Monday in 2020 and each alternate year thereafter to enable them to participate in the Paternal family annual Easter Camp.
14.That for Christmas:
(a)In 2019 and each alternate year thereafter the children spend time with their Father from 5pm Christmas Eve until 5pm Christmas Day and with the Mother from 5pm Christmas Day until 5pm Boxing Day; and
(b)In 2020 and each alternate year thereafter the children spend time with the Mother from 5pm Christmas Eve until 5pm Christmas Day and with the Father from 5pm Christmas Day to 5pm Boxing Day.
15.That the children spend time with the Father on Father's Day each year from 8.30am to 5.00pm if it does not fall on a day the children would ordinarily be spending time with their Father.
16.That the children have telephone or electronic communication with the Mother in accordance with their reasonable wishes
17.That the Father and Mother keep each other informed of any sickness or illness of the children.
18.Both Parents to be notified of and be at liberty to attend all special events the children participate in, such as but not limited to religious, sporting and cultural events, competitions and performances save that the mother not be permitted to attend at the same weekly church service as the children on the father's weekend.
19.The Mother be restrained from taking the children to any medical, dental, psychological or allied health Practitioner save other than attending upon a doctor in the case of medical emergency.
20.That each party provide to the other details of any medication and details of any medical treatment plan and any directions from the medical Practitioner for the children and each party shall follow any directions from the medical practitioner for the children.
21.That neither parent, their servants or agents shall denigrate the other parent to the child in front of the child or within the child's hearing.
22.That neither Parent their agents and servants shall discuss with, or within the hearing of the children, disclose to, or involve the children in any way in the party’s family law proceedings save for advising them of any new live with or spend time arrangements.
23.That the Father and the Mother be at liberty to communicate with each other via email and/or text message regarding parenting matters.
24.That the Mother be and is hereby restrained from discussing parenting matters or any aspect of them with, or in the presence of any of the children at any time or allowing any other person to do so.
The wife's proposal
The orders which the wife sought from the court are set out in her Outline of Case document dated 12 September 2019 and her Amended Response to Initiating Application filed 30 September 2019.
The proposed orders are as follows:
1.        The Mother have sole parental responsibility for the children:
(a)       T born … 2006 (T);
(b)       V born … 2007 (V);
(c)       W born … 2009 (W);
(d)       X born … 2011 (X);
(e)       Y born … 2014 (Y);
(f)       Z born … 2016 (Z);
(collectively, the children).
2.        The children live with the Mother.
3.        The children spend no time and have no communication with the Father.
Or in the alternative:
The following children spend time with the father for two hours each fortnight under the supervision of a professional contact supervisor agreed between the parents and failing agreement as nominated by the Independent Children’s Lawyer (ICL) at such times nominated by the supervisor:
(a)       T,
(b)       W,
(c)       X,
(d)       Y
(e)       Z.
4.The Mother and the Father pay and be equally responsible for the supervisor’s fees.
5.The child V spend time with the Father in accordance with her wishes.
6.The Mother and Father be and are hereby restrained from:-
(a)discussing parenting matters, or these proceedings or any aspect of them with or in the presence of any of the children or knowingly allowing any other pension to do so.
(b)disclosing the content or existence of any affidavit material, or any allegations therein, or any report filed in these proceedings to the children or allowing any other person to do so and shall ensure that no Court documents or reports are left anywhere the children or any other person may obtain access to them.
(c)denigrating each other or the other parent’s family in the presence or hearing of the children nor allow another person to do so.
(d)using physical discipline on the children, or speaking derogatively to the children, or allowing anyone else to do so.
7.The parents advise each other within 24 hours of any change of particulars of their residential address, landline, telephone number and mobile telephone number.
8.The parents advise each other as soon as possible by the best available means in the event of the following occurring: -
(a)any of the children being injured or falling seriously ill;
(b)any child or children requiring urgent medical treatment by a doctor or ambulance member; or
(c)any child or children being admitted to any hospital or health treatment facility.
9.If any child is, or the children are, taking prescribed medication, the parents keep each other informed regarding the administration of the medication.
10.The Father be authorised by these Orders to receive copies of all school reports, notices, newsletters and the like.
11.The Mother and Father equally share all costs incurred by the following jointly appointed experts including but not limited to the costs associated with their attendance at the Final Hearing:
(a)       Dr H;
(b)       Dr J;
(c)       Ms D; and
(d)       Ms C.
The proposal of the Independent Children's Lawyer
At the commencement of the trial the proposal of the Independent Children's Lawyer, which was the preliminary view of the Independent Children's Lawyer was set out in the Case Outline filed 26 September 2019. The final orders sought are set out in the written Final Submissions.
The proposed orders are as follows:
1.That all previous parenting orders be discharged.
2.That the Mother and Father have equal shared parental responsibility for the care welfare and development of the children of the marriage T born … 2006 (“T”), V born … 2007 (“V”), W born … 2009 (“W”), X born … 2011 (“X”), Y born … 2014 (“Y”) and Z born … 2016 (“Z”) collectively called (“the Children”).
3.The children T, W, X, Z and Y spend time with the Father supervised by MS B PRESLEY as follows:
3.1      Commencing on the first Saturday from the date of the Orders,
(a)       Each Saturday from 10am to 4pm for 4 weeks;
(b)       Then each Saturday from 10am to 6pm for 4 weeks; and
(c)       Then each Saturday from 10am to Sunday 10am for 4 weeks.
4.At the conclusion of the 12 weeks, pursuant to Order 3 herein, the children T, W, X, Z and Y spend time with the Father with MS B PRESLEY being in substantial attendance as follows;
4.1Each alternate weekend from 10am Saturday until 5pm Sunday for 4 weeks; and
4.2Then from the conclusion of school on Friday or 3.30pm until before school or 9.00am on Monday for a period of 8 weeks.
5.After the Father has spent time with T, W, X, Z and Y pursuant to Order 3 and 4 herein the children live with the Father as follows;
5.1Each alternate week from the conclusion of school on Thursday or 3.30pm until before school or 9.00am on Monday or if Monday is a non-school day until the commencement of school on the Tuesday or 9.00am;
5.2For the short Term school holidays, in even numbered years, being from the last day of school for the term from the conclusion of school until the middle Saturday at 4pm;
5.3For the short Term school holidays, in odd numbered years, being from the last day of school for the term from the conclusion of school until the middle Saturday at 4pm;
5.4In the long term school holidays, in the first instance, on a week about basis with the Father commencing his time on the last day the children attend school until 4pm on the mid Saturday, thereafter;
5.5For half the long term school holidays from 4pm the middle Saturday until the commencement of school in even numbered years; and
5.6For half the long term school holidays from the last day of school from the conclusion of school until the middle Saturday at 4pm in odd numbered years.
6.        The children otherwise live with the Mother.
7.On special occasions the children spend time with the Father as follows (with the Mother’s time otherwise suspended):
a)On Father’s Day from the Saturday evening before at 5pm until the commencement of school on the Monday after Father’s Day commencing 2022;
c)On the each of the children’s birthday as follows;
i)On a non-school day from 5pm on the preceding day until 3 pm on the child’s birthday in even years commencing 2022 and from 3pm on the child’s birthday to 11am on the day following the child’s birthday in odd years commencing 2023; and
ii)On a school day from the conclusion of school until 7:30pm;
d)For Christmas in odd years commencing 2021 from 12 noon on Christmas Eve, 24 December until 3pm Christmas day 25 December and in even years commencing 2022 from 3pm on Christmas Day to 5pm on Boxing Day 26 December.
8.On special occasions the children spend time with the Mother as follows (with the Father’s time otherwise suspended):
a)On Mother’s Day from the Saturday evening before at 5pm until the commencement of school on the Monday after Mother’s Day in commencing 2021;
c)On each of the children’s birthday should they be in the care of the father as follows;
i)On a non-school day from 5pm on the preceding day until 3pm on the child’s birthday in odd years commencing 2023 and from 3pm on the child’s birthday to 11am on the day following the child’s birthday in even years commencing 2022; and
ii)On a school day from the conclusion of school until 7:30pm;
d)For Christmas in even years commencing 2022 from 12 noon on Christmas Eve 24 December until 3pm Christmas day 25 December and in odd years commencing 2021 from 3pm on Christmas Day to 5pm on Boxing Day 26 December.
9.Forthwith, the Mother and the Father do all acts and things and sign all documents necessary to attend upon Ms. C, or such other person as nominated by Ms. C (“the Family Therapist”), for the purpose of engaging in reportable Family Therapy to include each of the children and the parties in to order to appropriately address allegations made by the parties in these proceedings and the determinations thereon made by the court and to address generally the relationships of each of the parents to each other and to each of the children.
10.The Family Therapy referred to in paragraph 9 herein shall be for a period of at least 12 months or such further time as directed by the Family Therapist.
11.The Mother and Father shall follow all lawful directions of the Family Therapist and shall ensure each of the children attend such counselling as directed by the Family Therapist.
12.The cost of the Family Therapy to be borne the father.
13.The Family Therapist be provided a copy of the following;
(a)       The Family Reports prepared by Ms D;
(b)       The Psychiatric Assessments of the parties;
(c)       The transcript of the cross examination of Ms D; and
(d)       Her Honours Judgement.
14.That the Mother shall authorise the children's schools to provide to the Father, at the Father's expense, information in relation to the children's education and progress (including but not limited to school reports, school photograph order forms and notices).
15.That the parties be permitted to attend all school and extracurricular activities normally attended by parents;
16.The Mother will within 7 days of these orders provide to the Father a list and contact details of all the children’s current treatment providers, medical and allied health treatment specialist and provide to the Father reasonable notice of the dates and times of the children’s appointments.
17.That the parties be and are authorised to contact and communicate with any of the children’s treatment providers, including all medical and allied health specialists, and at the direction of such treating providers attend all of the children’s appointments with their treatment providers.
18.That the parties will follow all reasonable directions of the children’s medical, educational and allied health professionals.
19.That the parties notify each other of any change of address, telephone number or email address within twenty four hours of such change.
20.That each of the parties, and through their servants and/or agents are restrained by injunction from:
a.Denigrating the other party to the child/children and or in the presence of the child/children and/or within earshot of the child/children or from permitting any other person to do so;
b.From discussing these proceedings/court documents with the child/children except by direction of the Family Therapist;
21.The appointment of the Independent Children’s Lawyer be discharged.
22.That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist 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.
Preliminary matters

At the commencement of the trial both Counsel advised me that they had agreed on objections to evidence and handed up copies of their respective clients affidavits with objections redacted.
Evidence
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject- matter of the proceeding; and
(c)       the gravity of the matters alleged.
The husband and wife relied upon their respective affidavits. The affidavits exhaustively recounted the history of the parties' relationship. I have examined that evidence and do not propose to repeat it in these reasons.
It is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial nor make findings of fact on every factual dispute between the parties. That principle is well established in a number of authorities.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
Documents relied upon by the husband and his witnesses
The husband relied upon the following documents:
(a)Amended Initiating Application filed 18 April 2019;
(b)trial affidavit filed 18 April 2019;
(c)reply affidavit filed 4 June 2019;
(d)affidavit of Mr K Presley filed 18 April 2019 (paternal grandfather);
(e)affidavit of Ms L Presley filed 18 April 2019 (paternal grandmother);
(f)affidavit of Ms B Presley filed 18 April 2019 (husband's sister);
(g)affidavit of Mr M filed 18 April 2019 (friend);
(h)affidavit of Mr N filed 18 April 2019 (friend);
(i)affidavits of various professional witnesses;
(j)extracts of subpoenaed material tendered by counsel.
The husband was cross-examined by counsel for the wife and counsel for the Independent Children's Lawyer. None of the other witnesses were required for cross examination.
The husband was vigorously cross-examined over a number of days during which, I had the immeasurable benefit of observing him in the witness box.
My general impression of the husband as a witness was that he had very recently decided to accept responsibility for his totally unacceptable conduct towards the children and professed to be remorseful and contrite, because it would assist his case for the children to live with him. Although he tried to be truthful, he was unable to see events other than in the prism of his own rigid thought processes. He was not open to any alternative view of events, other than his own.
His evidence was given in a matter of fact fashion and had a sense of contrived and controlled responses, which he perceived would be advantageous to his case. For example, he still persisted in referring to his treatment of the children being taken to the laundry and Y being strapped in a high chair in the dark, as "assisting" the children.
I was not left with the impression that he had any degree of insight about:
(a)his treatment of the children during the relationship;
(b)the wife's abhorrence about his discipline of the children;
(c)the wife's view of and distress about his sexualised behaviour towards her, particularly when she was breastfeeding the children, or immediately following the births;
(d)the children's relationship with their mother and the impact on them of being separated from her care;
(e)the parental capacity required to care for and manage six children of various ages and developmental needs;
(f)the practical difficulties of being a primary carer of six children, whilst working full-time.
Much of his evidence sought to minimalize and normalise stressful and difficult events during the relationship and was given in a very detached manner. At all times he went to great lengths to appear, cool, calm collected, congenial and in control. He did not seem particularly compassionate or have much empathy. Examples of this behaviour were:
(a)the justification of strapping Y into a high chair in the dark, supposedly to enable the family to get a good night's sleep;
(b)his description of walking from a room with floorboards to a room with carpet, prior to dropping X onto the floor.
With the exception of the allegations of sexual abuse, which I will refer to in greater detail in later in these reasons, I prefer the evidence of the wife to that of the husband.
Documents relied upon by the wife and her witnesses
The wife relied upon the following documents:
(a)Amended Response to Initiating Application filed 30 September 2019;
(b)Trial affidavit filed 17 May 2019;
(c)affidavit of Ms O filed 17 May 2019 (maternal grandmother);
(d)affidavit of Ms P filed 17 May 2019;
(e)affidavits of various professional witnesses;
(f)extracts from subpoenaed material tendered by counsel.
The wife was cross-examined by counsel for the husband and the Independent Children's Lawyer. Neither the maternal grandmother nor Ms P were required for cross-examination.
The wife was vigorously and robustly cross-examined by counsel for the husband and Counsel for the Independent Children's Lawyer, over a number of days.
She obviously found the experience challenging and confronting and as a result, there were significant breaks during cross-examination to enable her to compose herself.
The wife impressed me as having been deeply affected by:
(a)her perception of the husband's discipline and treatment of the children during the marriage;
(b)her inability to protect the children from the husband's punitive discipline;
(c)from her perspective, the unwanted and unwelcome sexual advances of the husband, while she was attempting to feed and care for children.
Her evidence about the husband's conduct during the marriage had a distinct ring of truth and was at times deeply disturbing to hear.
I accept her evidence about the husband's conduct during the marriage as truthful and sincere, particularly in circumstances where the husband admitted to treating the children in the manner alleged by the wife, and to his sexual advances, albeit he had a different view of and explanation for this conduct.
I have no doubt that the wife implicitly believes that the husband has sexually abused the children, as alleged by her, and that she has a sense of frustration that the investigations by external agencies have not corroborated her belief, and indeed in the case of SOCIT, have cast her as manipulative and vindictive and effectively presenting the children to manufacture evidence against their father.
I did not get the sense that the wife was vindictive and manipulative, rather she was prepared to believe the disclosures of the children. I do not accept that her leading questions were to elicit answers to questions, which would be favourable to her case. Rather, her presentation was more of naïveté in her questioning of the children when, according to her, the children made fairly compelling disclosures.
I accept the wife as a witness of truth, and prefer her evidence about events during the marriage, to the evidence of the husband.
I also accept her evidence about the manner in which the children made disclosures to her, however for the reasons referred to later, I do not accept that the disclosures render the husband an unacceptable risk to the children, in regard to the allegations of sexual abuse.
Documents relied upon by the Independent Children's Lawyer
The Independent Children's Lawyer relied upon the following documents:
(a)affidavit of Dr H filed 20 March 2018 (psychiatrist);
(b)affidavit of Dr J filed 29 May 2018 (psychologist);
(c)affidavits of Ms D filed 1 June 2008 and 12 September 2019 (family report writer);
(d)affidavit of Ms C filed 10 September 2019 (psychologist);
(e)affidavit of Mr Q filed 25 July 2019 (contact supervisor);
(f)affidavit of Ms R filed 14 February 2019 (contact supervisor);
(g)affidavit of Ms S filed 7 February is 2019 (contact supervisor);
(h)extracts from subpoenaed material tendered by counsel.
Ms D, family report writer, Dr J, psychologist and Dr G, psychiatrist were cross-examined by all three counsel. The other professional witnesses were not required for cross-examination.
All three witnesses are known to the court in their respective professional capacities and are credible and experienced witnesses. I refer to their respective evidence throughout these reasons.
The following documents were tendered by the parties and received into evidence:

H-1 Annexures to Husband’s trial affidavit filed 18 April 2019 & 1 June 2019.

H-2 Applicant’s proposed roster for child care assistance

H-3 VARE recordings – Suburb F SOCAU interview of V (29 April 2017 & 13 July 2017)

H-4 School notes from AA Primary School pursuant to subpoena

H-5 SOCIT Victoria Police Subpoena dated 10 September 2019

H-6 Email from Ms BB to Ms CC (husband’s solicitors) dated 11 September 2019

H-7 ‘Transcript’ of VARE tapes of V dated 29 April 2017 & 13 July 2017

H-8 Client Contact Record of Ms DD dated 25 July 2017 (1 page)

H-9 Home visit – 27 April 17 – page 7 to 14, Case note 9 May 2017 – Ms EE re: T Presley, Case note 25 May 2017 – Ms EE, Case note 16 June 17 – Ms EE, Case note 17 August 17

H-10 NN Contact Service – Presley Home Visit in September (from H-8)

H-11 School Reports of V Presley

H-12 Suburb F SOCIT subpoenaed documents, Investigation – full response report pages 1 to 9 and Brief of evidence 6 January 2018 prepared by Detective FF.

W-1 Medical Report from OO Health Service of Mother - 19 October 2019

W-2 Observation Report - Part 3 - TT Contact Service

W-3 Map prepared by mother’s counsel to demonstrate location of children’s schools and parent’s homes

ICL-1 TT Contact Service - observation report dated between 22 June 2019 and 7 September 2019

ICL-2 Handwritten notes – police notes of 28 April 2017

ICL-3 DHHS First Contact Report Visit dated 27 April 2017

ICL-4 DHHS Note of Home Visit on 16 June 2017 (document 5 in Court Book)

ICL 5 GG Service Notes 6 September 2017 (document 10 in Court Book)

ICL-6 GG Service Notes 1 December 2018 (document 14 in the Court Book)

ICL-7 GG Service Notes 2 May 2018 (document 13 in the Court Book)

ICL-8 GGS - Client Record 29 August 2017

ICL-9 GGS - Client Contact Record – Ms DD - 26 July 2017

ICL-10 Therapeutic Report – Ms DD – pages 1 and 2, 27 April 18
The Applicable Law

Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the act sets out how court is to determine what is in a child's best interests by reference to primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying the primary considerations the court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence (s 60CC(2A)).
Abuse is defined in s 4 of the Act and family violence is defined in s 4AB of the Act.
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.
I have considered all relevant sections of s 60CC(3) in reaching my decision, although I have not specifically referred to each consideration: Banks & Banks [2015] FamCAFC 36.
The High Court in M v M (1988) 166 CLR 69 (“M v M”) at [76] stated that the Family Court is not required to "resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would if it were trying a party for a criminal offence".
The High Court, also stated, that in appropriate cases the court can and should make such findings.
At [23]–[25] the High Court said:
23.No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless [...]
24.In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. […]
25.[…] In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. The concept of "unacceptable risk" referred to in M v M was in the context of resolving "the wider issue" of what is in the best interests of the child.
In Stott & Holgar and Anor [2017] FamCAFC 152, the Full Court of the Family Court has recently succinctly considered the law with respect to unacceptable risk.
At [35]–[38] the Full Court stated:
35.The "unacceptable risk" test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 at [89].
36.In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to "achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access". In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs possible benefits to them from that access.
37. As an eminent former judge of this Court has said (emphasis added):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
38.We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).
I will now address the relevant issues.
DOES THE HUSBAND POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN
The wife asserts that the husband poses a physical, psychological and sexually unacceptable risk of harm to the children.
I will firstly address the sexual abuse allegations and thereafter the physical and psychological abuse allegations.
Sexual abuse allegations
In order to do so, it is necessary to refer to the events in the mother’s household in April 2017, prior to the disclosures. On 22 April 2017, T disclosed to his mother that he had been touching Y inappropriately. T’s disclosure was in the context of the children watching a movie together when Y was sitting on his lap. The maternal grandmother noticed that T had an erection. T was subsequently spoken to by his mother. He told her that he had allowed Y’s hand to touch his penis. Over the course of the next few days T disclosed to his mother that he had been touching Y’s vagina on numerous occasions during 2016 and subsequent to separation. He also disclosed that he would push Y to the floor so that he could touch her vagina and that he had taken her nappy off. T also reported to his mother that he allowed Y to touch his penis over and under his clothing. The wife contacted DHHS to make a report on 24 April 2017. T subsequently made a statement at a police station with a DHHS worker present, however he was not charged by the police due to his age. The wife arranged for T to receive counselling from the GG Service (“GGS”).
It was the wife’s evidence that the revelations by T was an absolute shock which were shared by all adults in the household at the time. Thereafter the wife reorganised the sleeping and bathroom arrangements and monitored the children’s behaviour.
The allegations of sexual abuse against the husband involve V and Y. According to the wife, the first disclosure was made by V on 17 May 2017 a couple of months after the parties separated on 21 January 2017. V disclosed to her mother, that when she was pregnant with Z, V would try to hide behind the kitchen table when she went past the husband’s office to avoid him seeing her because she was afraid her father would call her into the office and rub her between her legs. V also disclosed that she had “lots of bad things in the back of her mind” and when asked by her mother what, she told her, that her father went into her bedroom at night and showed her pictures of women in the underwear on his phone. V claimed that he was going to show her a video of a violinist, but instead showed her pictures of women in their underwear.

Subsequent to that allegation, the wife contacted GGS and placed V on a waiting list for counselling. V was seen by a counsellor at GGS about a week after she made the disclosure to her mother.
On 27 April 2017, the DHHS attended the mother’s house to interview the children, and the mother asserts that on that day V disclosed to her that her father had been touching her in a way that made her feel uncomfortable. During cross-examination it became apparent that the wife had a conversation with V at approximately 10.30 am on the morning of 27 April 2017. Exhibit ICL-2 is a SOCIT note dated 28 April 2017 which appears to be a record of a telephone conversation between the mother and a SOCIT member at 4.45 pm on 28 April 2017, which states that the mother advised SOCIT that on the morning before that she had asked V have you felt uncomfortable around daddy in the same way as T? During cross-examination by counsel for the Independent Children’s Lawyer the mother corrected that wording and said that she had asked V have you felt uncomfortable around daddy? To which V replied in the same way as T?
During the home visit on 27 April 2017, after V’s alleged disclosure to her mother the DHHS interviewed V. Exhibit ICL-3 is the DHHS Home Visit Report dated 27 April 2017. That document indicates that there were no disclosures made by V. To the contrary, V stated that when her father would touch and pat her bottom, it was not a rude touch and was similar to the way other adults in the maternal grandmother’s home touched it. She referred to other experiences with her father in his office.
The report states that V liked going on walks with Mr Presley, sitting on his lap and going to ‘faith in God’ and that she sometimes sat on Mr Presleys’s lap in his office when they watched movies or when she said her prayers and that she liked it when Mr Presley gave her piggyback rides and she would also sit on his back when he was crouched over in prayer.
The report also refers to V’s explanations of her feelings of discomfort with her father and his touching her in the same way as T as follows:
(a)Child Protection asked V if anyone had touched her vagina. V stated T had touched her vagina when he would pick her up and Mr Presley did the same thing which made her feel uncomfortable;
(b)Child Protection asked V to clarify how Mr Presley would touch her vagina when picking her up. V clarified that Mr Presley would pick her up by placing one hand beneath her legs and another hand on her back. V stated Mr Presley picked up X, Y and W in a similar way.
In his final submissions, Counsel for the Independent Children’s Lawyer referred to the following statements referred to in the DHHS home visit report of 27 April 2017, as being of special significance in light of the later allegations made by V about the father touching her inappropriately on numerous occasions, particularly in his office.
V explained that when she was sitting on Mr Presley’s lap in his office or when she was outside, Mr Presley would put his hand on her vagina over her clothes which happened a couple of times; and
V explained there were two occasions whereby she was sitting on Mr Presley’s lap and had accidentally touched his penis so she moved her hand away but Mr Presley didn’t initially. V stated that this happened at the HH Town house when she was seven or eight years of age.
During cross-examination of the family report writer, Counsel for the Independent Children’s Lawyer asked her to comment about these statements and Ms D’s response was:
You know, I think in that context that a reasonable explanation might be that a parent is not wanting to draw attention to that act and it is possible that Mr Presley might be, you know, hoping or might rearrange himself in such a way that her hand would move from his penis. It’s also possible that she wasn’t touching his penis…and that’s why he didn’t initially respond.
Counsel for the Independent Children’s Lawyer submitted that as of the date of the first DHHS home visit, there were really no concerning allegations made by V about any sexually inappropriate abuse or behaviour by the husband. It was also submitted, despite a lack of evidence in this regard that the wife had a firm view to the contrary. The husband’s counsel concurs with those submissions. The wife’s counsel did not directly address the DHHS report, however in the context of this disclosure it was submitted on her behalf that the wife viewed the evidence through her experience of the husband as a coercive and controlling man, who has abused the children emotionally and physically and abused her sexually. She also views the evidence through her experience of V finding it difficult to talk about personal and private matters, which is evidenced by V’s delay in making her disclosure until three months or so after separation. It was also most appropriately acknowledged that the wife must have been influenced by her own father’s convictions for paedophilia despite the evidence not supporting that the mother was overly concerned about the father or men in general being sex offenders.
I accept the submissions of the counsel for the Independent Children’s Lawyer, particularly in the context of the comments of Ms D, that there was not any real evidence substantiating V’s disclosures at that time.
As a result of the disclosure on 28 April 2017, the wife contacted the police to report her disclosure and she took V to the SOCIT unit at the Suburb F police station, where V made a statement and the first VARE interview was conducted.
The VARE tape was viewed by both parties, all counsel and the Court. It is apparent upon viewing of that tape that V did not take the allegations against her father any further, which was admitted by the mother during cross-examination. It was also conceded by counsel for the mother in her final submissions that to an objective person it is not immediately evident from the tape that any offences have necessarily been committed.
According to the mother’s evidence after the first VARE interview, V made a number of further and more detailed disclosures. Further disclosures were made on 27 June 2017. The father believes that these disclosures were made because the mother was encouraging of V to do so, even if she was not directly coaching her what to say. The wife’s position was that it would not be uncommon for disclosures to unfold over a period of time. The family consultant agreed that it was entirely possible…the story thickens over time with some disclosures and there’s no rules as to how a child discloses and that children may also mix their memories and it was plausible that V remembered more details at a later stage. Both Ms D and the family report writer, Dr J conceded that children disclosing after separation may also be due to being away from the offender and in a safe place. I accept their evidence and the fact that disclosures may occur over a period of time.
However, prior to V’s further disclosures, the mother’s evidence was that Y, then aged three, disclosed to her on 16 June 2017 that I don’t like going into daddy’s office and daddy stuck his finger up here. The disclosures were made on the evening after a worker from DHHS, attended the mother’s home to check on the family following T’s disclosures. Exhibit ICL-4 is a further home visit report of the DHHS which demonstrates that Y responses were brought about by leading and suggestive questioning by the wife. During cross-examination by the Independent Children’s Lawyer the wife agreed that the words as reflected in the report were those she used to Y.
The relevant questions and answers in that report are as follows:
The last time I spoke to Y during bedtime story, she said I want to go back to see Daddy
I told her Sorry, remember why you are here. You have a safe room.
I then asked Do you remember when T touched you. Y said Yes. He shouldn’t do that.
I asked Has daddy touched you? Y said Yes
I said Where? and she pointed down here, and said He put his finger up there
I said Did that hurt? Y said Yes
I said Did you say Bock (meaning stop?) she said Yes but daddy didn’t.
This would have occurred when Y was in his office and he told me to keep the door shut. Y said There was a hole in the nappy.
The Independent Children’s Lawyer agreed that the family consultant considered the exchange referred to in the previous paragraph an example of a very leading and suggestive questions and comments to a young and impressionable child. As the events must have occurred prior to separation, Y at separation was two years and nine months and at the time of recalling the incidents was three years and three months. It was submitted that the family consultant’s evidence referred to the concept of paediatric amnesia, where a child of that age would not have the capacity to recall the events described in the level of detail supposedly recalled and it was not something that the consultant had heard of or seen from a child of this age.
It was submitted by counsel for the Independent Children’s Lawyer’s that the disclosures made by Y on 16 June 2017 are not credible. I agree with that submission.
In his final submissions, the Independent Children’s Lawyer insinuates that prior to the second VARE interview V may have been influenced by her mother. The evidence of the maternal grandmother was that after the mother had the above exchange with Y she ran down the stairs and vomited and was incredibly upset and took a long time for her to calm down. The evidence of the family consultant was that if the children saw or heard that reaction from their usually strong confident and capable mother they may have been worried about her and alert to her wellbeing. Additionally, Counsel for the Independent Children’s Lawyer had no confidence that the mother had shielded V from her fears and distress about the father which in turn may have influenced V, particularly so because of V’s statement in the second VARE tape of should be 13 July, when V refers to her mother telling her about Y’s experiences, namely Y told mummy and mummy told me.
In her trial affidavit the wife deposes that V disclosed further details to her about her father’s sexual abuse and thereafter the wife informed DHHS and the police. On 27 June 2017 V disclosed to the mother that her father would touch her between the legs every couple of weeks and that she could remember him touching her when she was three or four and could remember him taking her nappy off and pulling her apart and touching between her legs. She said it tickles but also hurts and that he put his finger up inside her and stretched her which also hurt. She said she felt bad when he took Y into the office because he was probably touching her the same way. She said she had seen him touch Y’s vagina three times when he was changing her nappy, rubbing his hand up and down her vagina.
On 11 July 2017, V told her mother that she could remember her father coming into her room after school while she was getting changed. This occurred when she was in prep and she said that he put his fingers up her bottom and it was a really high which hurt because he has really big fingers.
There was no evidence about the circumstances leading to V raising the allegations with her mother. During cross-examination the wife’s response was that it was her understanding that the abuse described by V continued right up to the time of separation, which had occurred five months prior to the disclosure.
The wife was cross-examined about why such serious and disturbing allegations were not mentioned by V in the two earlier home interviews by the DHHS, one of which included a comprehensive individual interview with V, and in the first VARE tape. The wife responded that the first VARE was a very scary experience for V.
Counsel for the Independent Children’s Lawyer asked the family consultant about V’s demeanour during the VARE interview and her response was that V tolerated the session reasonably well. There has not been any adequate explanation why V did not mention a regular pattern of serious and painful abuse to investigating authorities when the abuse was alleged to have continued up until separation. There is also no explanation why V spoke to Child Protection about her father in reasonably affectionate terms and about her physical contact with her father, which is referred to earlier in these reasons, if at that time she had been subjected to frequent and painful abuse at the hands of her father.
V’s second VARE tape occurred on 13 July 2017. Counsel for the mother submitted that in the second VARE tape V appears to have sexual knowledge beyond her age. For example she describes how her father grabbed the middle bit and squishing it and rolling it around on his fingers – the bit we wee out, whilst making disturbing gestures with her hands. It was submitted that during that tape, even to an objective person, it appears that V has been subjected either directly or indirectly to information or an experience of a sexual nature.
It was conceded on behalf of the mother that some of the details in the disclosures seem to be somewhat unlikely and that V was young and her timeline may have been skewed. The mother did not see the disclosure about the father’s finger in V’s anus as necessarily a literal disclosure and she did not agree during cross-examination that V would necessarily come to her or even be that upset - if it was quick – she trusted him – she may have just thought – it was an accident, what was that all about.
The evidence of the family consultant was that she was concerned that the mother may have shared Y’s alleged disclosures with V, particularly after receiving counselling from GGS. During the second VARE tape V recounted that the father had digitally penetrated her anus. That disclosure gave rise to significant cross-examination of the mother by counsel for the Independent Children’s Lawyer and caused considerable concern because of its graphic and detailed nature and that a child who had been brought up in a conservative, protected and religious environment, should not have knowledge of such matters . It was also of considerable concern that V’s demeanour whilst recounting these allegations was devoid of distress, discomfort or embarrassment and what she was describing was not congruent with her emotions.
The wife was also robustly cross-examined by counsel for the Independent Children’s Lawyer about V’s disclosures that the husband had digitally penetrated her anus, particularly in the context that there was no evidence that after such an invasive and painful experience, that V screamed or ran to her mother who was in the kitchen at the time.
Ms D was also cross-examined about whether there could be various other explanations for these allegations. The first such explanation was that it happened as described, albeit the estimation of the time of 30 seconds that the husband’s finger remained in her anus could have been an overestimation. Counsel for the Independent Children’s Lawyer submitted that the problem with that analysis was that there was no evidence of rewards or threats to V not to disclose the events to her mother. Secondly, the allegation that the father had run out of the room is likely to be inconsistent with the conduct of an adult and is more likely to be the action of the child, bearing in mind that V was allegedly the victim of T’s sexualised behaviour.
Counsel for the Independent Children’s Lawyer also submitted that despite V’s sheltered upbringing she would not necessarily have been protected from allegations of this nature. It may have been that she may have heard it from other children with whom she has associated or it may have arisen from her imagination in the context of her father being openly portrayed in the maternal home as a dangerous sexual predator.
During the second VARE tape V disclosed that she had witnessed the father abusing Y whilst he was changing her nappy on the bottom bunk in the girl’s bedroom, when V was lying on the top bunk. According to V, her father was changing Y’s nappy and he grabbed the middle bit of Y’s vagina and squished it around.
V continued with her disclosure and stated that her father did the same thing when he was changing her nappy and that her father was squishing the whole vagina and that it had happened three times. V thought this happen to her when she was two, but according to the mother’s evidence she was wearing nappies until she was 3 ½. During the course of the second VARE interview V said that she told her mother about her father’s abuse of Y a few nights prior to the interview because mum said to tell her everything that happened because she thought that there was more that happened.
After the second VARE tape V made further disclosures to her mother on 19 July 2017 and 20 July 2017. On 19 July 2017, V disclosed to her mother that while the father was touching her when she was sitting on his knee he would run her between the legs until she had a feeling that felt really nice and he would ask her are you okay with this? She also said that at times she would rub his penis over his clothes for a while and he would smile at her, but after a while he would get cross with her and say V don’t do that, which left her feeling confused and bad about herself. The wife reported these disclosures to the police the following day.
On 20 July 2017, the wife deposes that V told her mother that she could remember two or three occasions when the father would lay down with her and would push up against the wall and push his penis between her legs. She said it felt hard and she knew it was his penis and that on each occasion he did it for longer and it was harder each time. V told the mother that she cried when he left the room, how bad she feels about herself because she tries to give herself the same feelings up to 30 times a day and sometimes more. The wife deposes that since V had spoken to her in late July she says she has been getting the feeling down to just once in the day and has told her mother that she feels much better being able to talk about it. The disclosures were reported to the police the following day.
The wife also deposes that V had caused herself physical damage trying to give herself the same feelings including causing the lining of her rectum to prolapse. The wife took V to the GP and the damage to her rectum repaired itself naturally without any further intervention being required.
The final suite of allegations of sexual abuse are those involving Z. Those allegations are deposed to by the wife at paragraphs 148 and 149 of her affidavit sworn 17 May 2019. According to the wife, when Z was about 2 ½ years of age on 4 March 2019 she was changing his nappy when he made certain statements indicating that when his father changed his nappy, his father did something that hurt his anus and was Bad bad bad. The mother assumed that Z had been sexually abused by the husband. Thereafter she contacted Eastern Domestic Violence Outreach Service who advised her to contact Child Protection, which she did. Child Protection contacted the police and the wife subsequently took Z to the police station for questioning on 6 March 2019. There was no further evidence about the state of that investigation.
The family consultant was cross-examined about the mother’s leading and suggestive questioning and her response was that Z might feel compelled to respond to that in a way that he believes might be providing a response to his mum that he believes is going to be an appropriate one. Furthermore, the evidence of the family consultant was that it would have been unlikely to have occurred in a supervised setting subsequent to separation or that it had occurred prior to separation when Z was three months old, the child would not have had the cognitive ability to store such information and then accurately recall it.
Counsel for the Independent Children’s Lawyer submitted that the family consultant was of the view that the wife was so certain that sexual abuse had occurred and so needed to protect her children from the predatory father and that she had a compulsion to keep questioning V until V gave her the answers she was seeking. It was also submitted that the allegations of sexual abuse levelled against the father are fatally compromised by the suggestive questioning of the mother and could not form the basis of a finding by the court of unacceptable risk.

It was not really a disputed fact that the children have a close and meaningful relationship with their mother. I refer to the comments of Ms D in the previous paragraphs hereof as to the deep emotional and psychological connection the children have with their mother.
So far as their relationship with their father is concerned, the wife concedes that the children have a warm and loving relationship with him except for V. All children other than V seemed to enjoy their time with their father in a supervised setting. V has expressed a strong view that she does not want to spend any time with the father in light of his failure to acknowledge and apologise for the abuse she believes he has inflicted on her.
The objective evidence about the children’s relationship with their father is to be found in the family reports of Ms D and the supervisor reports. Ms D last saw the children in July 2019 for her second assessment, however prior to commencement of her evidence, counsel for the Independent Children’s Lawyer gave her an update of the children’s progress which was entirely unremarkable.
V had not spent time with her father since May 2018, however prior to cessation of time there was some progress in terms of their relationship, as the supervision reports indicate that there was some eye contact made by V and she was more socially engaging with her father. Ms D was of the view that V’s non-inclusion in time with her father is now potentially very problematic, and it would be better if V is hived off and we consider her arrangements differently, I think it’s fair to assume that she will be curious about what’s happening to her siblings when they go to their father…so the overall goal is to try and re-establish her relationship with her father, whatever that looks like. We don’t know what that’s going to look like yet.
Ms D was further of the view that V was resistant and that she had seen multiple professionals and the ideal path forward would be to try and engage V with Ms C and if that was not possible, some form of intervention would be required to re-establish the relationship between V and her father. She did not suggest that orders should mandate V to spend time with her father but queried why V’s time had been suspended in the past when the reports made by V were already known when orders for supervised time were crafted. The decision to suspend time may have been designed to protect and support V or alternatively it might have led to V holding the view that she can determine whether or not she sees her father. Given the time that has now elapsed since the suspension of time between V and her father and Ms D’s comments about V’s determination and as at July 2019, that her resistance to her father is well established, and that she has just turned 14, I do not propose, to make orders requiring her to spend time with her father. As Ms D commented, it may be that V’s curiosity is raised by her siblings continuing a relationship with their father, and with the assistance of further therapy, she may decide to spend time with her father in the future.
In July 2019, Ms D observed the children with each of their parents and conducted individual sessions with all children except Z. In the intervening two-year period, the children, other than V have continued to spend supervised time with their father.
During the assessment with Ms D, she observed the interaction between the children and their father and observed that T appeared to strike a balance between politeness and enthusiasm, X was observed to chat which was followed by high-fiving and then Z muscled in on the play talking about a puppet which the husband had taken along. Y expressed excitement with a puppet.
During the individual interviews, in response to being asked his views about supervised time arrangements, T (then aged six 13 years and 6 months) said its okay I guess… I don’t really mind either way although he maintained a view that his father engaged in impression management. He did comment that time every Saturday interfered with his other weekend activities.
W (then aged 11 years) was described as easily engaging and being the least restrained and most animated of all of the siblings. He commented that returning for a further assessment was good, it’s fun today…I am happy. He also advised Ms D that he likes seeing his father and it was lots of fun. In regards to future arrangements he said that he would perhaps like to see his father at home where he could do more things and that it was their old home.
X (then aged 7 years and 8 months), whose particular needs were observed, commented that we see dad and we have fun.
Y (then aged 5 years and 5 months) did not particularly engage in a one-on-one interview. Both parents reported that did not have any concerns about her development and Ms D commented that at assessment she presented as a happy, healthy child.
The children have obviously matured in the intervening two years since the assessments were undertaken, however from the update provided by the Independent Children’s Lawyer as to the children’s progress and current activities and interests, apart from X’ developmental delays and V’s resistance, there did not seem to be any particular problems with the children.
Counsel for the Independent Children’s Lawyer submitted that he was confident that during the father’s supervised time which had continued for over three years, the father had attended to all of the children’s needs in an appropriate manner and that his conduct was subject to reporting, which would be stressful for the husband. Despite the stress, it was submitted that the husband had not lost his demeanour and his interactions were proper measured and child focused. Ms D commented in her second report that both the parents were high functioning individuals with a very strong child focus who were open to professional advice and place a high importance on family. The wife’s counsel did not accept implicitly that the husband’s conduct during supervised time had always been exemplary and she’s submitted that there were various occasions where he had challenged the supervisor particularly around Christmas 2020, which are referred to elsewhere in these reasons and there were occasions when the father had effectively misplaced or lost sight the children. These occasions occurred in December 2018, January 2019, July 2019, August 2019 and December 2020.
I am satisfied that for the most part the children’s supervised time with their father has progressed well and that the children, apart from V, should continue to spend time with their father but in a much more measured and slower progression, than s proposed by counsel for the Independent Children’s Lawyer.
I find that it is in the children’s best interests to have a meaningful relationship with their father, notwithstanding my finding that he poses a risk of physical and emotional harm to the children. I therefore need to balance the benefit of the children continuing a relationship with their father, with the risk that the father may revert to his controlling attitude towards the children and may also engage in highly inappropriate, if not outrageous, physical disciplinary methods towards one or more of the children. It is a given that at some time in the future the children will engage in challenging and provocative behaviour whilst in their father’s care and that will need to be managed appropriately by him.
Managing five or six children at the one time, when the father has had little experience of caring for the children in the last couple of years, and indeed during the relationship without the assistance of the children’s mother, would be challenging for the most skilled of parents, let alone the husband in this case. Although he concedes he will require assistance from his family members to care for the children, the reality is that his sister and parents will not always be available to help him manage and he will have to learn how to do so on his own.
The most obvious safeguard to ameliorate the risk to the children is to make orders providing for the children’s time with the husband to be supervised. Supervised time has been occurring for a number of years, predominantly without major incident and that time has not taken place at the father’s home. The children are now older than when the disciplinary techniques were used by the father, although the ages of these children also present with equally difficult unique challenges.
As proposed by counsel for the Independent Children’s Lawyer the supervision should move from professional to the husband’s sister, Ms B Presley, on the assumption that she is willingly to do so and move to the husband’s home. Daytime periods should progressively increase and after a number of months, a move to a requirement that Ms B Presley or such other person, agreed to in writing by the wife, be in substantial attendance whilst the children spend time with the husband, with a progression thereafter.
Ms D’s evidence addressed further safeguards for the children to spend time with their father. Her evidence was that supervision would need to continue until such time as there was some evidence of change of his attitudes and beliefs, particularly around authority and control and appropriate discipline. In relation to courses, Ms D said:
Courses are good. They’re okay. But courses are just – are kind of – courses are kind of scattergun. So – so anybody can – can actually do a course, and they tend to be most effective for people who might be experiencing some temporary issues around discipline, but that is not one of these cases. So then you would expect for there to be some learnings which you could get from courses, but the – the main treatment would, really, be individual therapy where progress is monitored, there are reports and feedback to the people impacted by the abuse, the safety of the children and their perspectives on reconnecting with that parent would have to be taken into consideration, and so there would need to be kind of a gradual move, if at all, towards it being unstructured and unsupervised, with the goal of trying to – I guess the overall goal is trying to normalise the parenting experience.
In response to a question from the court about the husband’s statements and lack of insight about his discipline of Y, Ms D said about courses:
I think that broadly there is an issue with people doing courses, particularly when we are at the pointy end, because it’s a passive process. You sit there. You have information given to you. At the end of it, you get a certificate of completion. So there’s – there’s no – there’s no challenge there. Effective treatment is about challenging these perspectives and these behaviours.
Ms D agreed with the proposition put to her by counsel for the husband that Ms C’s affidavit and her own experience with the husband would suggest that he is addressing the disciplinary sorts of issues and would be unlikely to parent and discipline in that way again. I do not share the optimism of Ms C and Ms D and consider that safeguards need to be implemented for the children to enable the supervised time to progress to unsupervised at some stage in the future.
Ms D initially suggested that a suitable person to monitor the husband’s attitude would be the family therapist, Ms C, although in response to questioning from the court she agreed that if Ms C were to conduct one-on-one therapy with the husband, if such an order were made, then it would be unlikely that the wife would have confidence in family therapy continuing if there were a distinct therapist relationship between the husband and Ms C.
In response to my question about what time in the future would look like between the children and their father as time progresses, Ms D’s evidence was that there was no set time, and what would be looked for would-be markers for and evidence of change, although for some reason the literature pointed to a six-month time period. Her evidence was that in the 0 to 12 week mark there should be some evidence of change and that a further three months would enable those changes to operationalise and that change needs to be seen in the behaviour and that takes a while. She also referred to Ms B Presley, the paternal aunt as working in the field of mental health, who had presented to her as child focused, so she was of the opinion that there was a network around the children that could also contribute to the overall safety and protection.
Ms D agreed that if there was a finding of unacceptable risk then there were fundamental issues with the behaviour and beliefs of the husband, which needed to be changed in a setting where the is a high level of oversight and interim intervention and so it’s less about the assertions that people make in respect of their parenting and it’s more about the demonstration of the behaviour.
In relation to whether the husband would benefit from therapy, because of his belief that he does not pose an unacceptable risk, Ms D stated that it was very difficult for people to fake their way through treatment and she thought that like the children’s mother, the husband was law-abiding and she had confidence that if there were a finding of unacceptable risk of harm, then he would respond constructively to that finding, because he wants to have a relationship with the children.
Counsel for The Independent Children’s Lawyer proposed that the children, except V, spend time with the father for a period of eight weeks from the date of these orders during the day on Saturday supervised by his sister Ms B Presley, and thereafter for a further period of eight weeks the children spend overnight time with their father on Saturday night and thereafter for a period of eight weeks overnight time with their father from Friday until Monday morning, with Ms B Presley being in substantial attendance. After the conclusion of that time the proposal is for the children to progress to unsupervised time where they would spend each alternate week from the conclusion of school Thursday until Monday morning unsupervised, together with one half of the school term holidays and on a week about basis during the long summer holidays. The proposed orders also included special occasions for the children. There were no proposals for V to spend time with her father. Those proposals were predicated on a finding that the father did not pose an unacceptable risk of sexual, physical or emotional harm to the children, however the mother did pose an unacceptable risk to the emotional well-being of the children, although there was no support for a change of residence. I have not made findings as proposed by the Independent Children’s Lawyer.
There were no proposals by the wife for the husband to spend time with the children, in the event I did not make findings of unacceptable risk of both or either sexual, and physical and emotional harm. There were no proposals by the husband for the children to spend time with him, in the event I did not find the wife to pose an unacceptable risk of harm or if I found the husband to pose an unacceptable risk of harm, either sexual or otherwise. There were no alternate proposals submitted by the Independent Children’s Lawyer, in the event I did not find that the mother posed an unacceptable risk to the children or if there was an adverse finding against the husband, as was the case. None of the three parties provided any explanation why they did not address alternative proposals. In any event, as stated by the High Court in U v U (2002) 211 CLR 238, the court is not bound by the proposals of the parties, rather it is required to make orders in the children’s best interests.
Counsel for the Independent Children’s Lawyer also proposed orders for the family to attend upon Ms C, or such other person as nominated by Ms C the purposes of engaging in reportable family therapy, including all of the children and the parents for a period of at least 12 months or further time as directed by the family therapist. There was no proposal that each of the parents should engage with an individual therapist as referred to by Ms D.
I do not propose to make orders for time to progress as rapidly as suggested by the Independent Children’s Lawyer and consider that a longer period of supervision is warranted, as is a longer period of Ms B Presley being in substantial attendance. All of that should occur with each of the parents attending a therapist to address their individual conduct as well as the family, including V, if possible attending Ms C for a family therapy. I do not intend to make an order for V to attend time with the husband, but she may choose to do so if she desires, as I do not consider that forcing V to attend would be in her best interests. Ms D’s evidence was that she was forceful and it may be that the other children spending time with their father might arouse her curiosity and interest to attend some time with her father, whilst concurrently undergoing therapy with Ms C. That is in accordance with the submission of Counsel for the Independent Children’s Lawyer. It seems to me that the damage in the relationship between V and her father has been exacerbated by the parties agreeing some time ago that V was not required to spend time with her father. She is now 14 years old, and no doubt will have a strong view about the future course of her relationship with her father. Hopefully she will gain assistance from counselling and have a curiosity about the experiences of her siblings and may choose to spend time with the husband.
I consider that a longer period of time is required to enable husband to properly engage with an individual therapist to actively challenge his views and conduct rather than passively undertaking courses and professing to have modified his views about the parenting techniques. It will also be of benefit to give the husband some more hands on experience with caring for children in a daytime setting, rather than progressing to more time with the children including overnight, particularly in the context of his limited experience of caring for the children single-handedly, both during the marriage and subsequent to separation.
The other benefit of extending the supervision and substantial attendance regimes and to provide for a less rapid increase in time is to enable the wife to obtain therapy to address her views that the husband poses an unacceptable risk of sexual abuse of the children.
The ultimate time that the children will spend with their father will not be for four consecutive nights as proposed by the Independent Children’s Lawyer, but rather I intend to break up time into a fortnightly cycle with changeover ultimately being able to take place at the children’s schools, albeit after-school care may be required to enable the husband to travel to each of the children’s respective schools. That, however, will be some time in the future and the logistics will need to be managed at that time. The proposal of the Independent Children’s Lawyer that the children spend half holiday time and week about in the summer vacation effectively commencing after six months of time with the husband, including supervised and with the paternal aunt in substantial attendance is too rapid of a progression of time for a parent who has little experience juggling the demands of five children. To make orders providing for time as proposed would be inviting situations of stress when the one or more of the children would inevitably be challenging and defiant, which in turn would lead to a greater risk of the husband being stressed, and as Ms D appropriately observed, stress in the household was supposedly a precursor to the husband’s past Dickensian parenting techniques. That stress needs to be avoided at all costs.
I propose to make orders providing for supervision from 10.00 am to 4.00 pm each Saturday for a period of six months with time to be able take place at the husband’s home and elsewhere, should he so desire. Thereafter, for a further period of six months Ms B Presley, or such other person as agreed between the parents will be required to be in substantial attendance for daytime time between the children and the husband with a progression to overnight time for one night per fortnight at the expiration of twelve months from the date of these orders.

The overnight time will progress with Ms B Presley or another mutually agreed supervisor to be in attendance overnight until the time progresses to after school Friday until 4.00 pm Sunday with overnight time each Wednesday in the alternate week, at the expiration of 24 months from the date of these orders. Thereafter, time will increase to each alternate Friday from the conclusion of school to the commencement of school on Monday as well as overnight on the alternate Wednesday. Extended periods of time in the holidays will start at the expiration of 24 months, which will not require supervision. The holiday time will also progress relatively slowly for a year, prior to extending to more time. This progression will also allow the children to adjust to the time they will spend with their father and for the husband to improve his parenting skills to manage five children, which will be challenging for any single parent. The orders will also provide for the children to spend special occasions with each parent, which with the husband, will be either supervised by or in the presence of Ms B Presley or such other agreed adult.
The proposed progression of time will enable the husband to obtain the intense therapy he requires and for the children to gradually spend more time with their father, with the assurance of the presence of their aunt, with whom they have an excellent relationship. The time will also occur at their former home which will enable them to feel a sense of further connection and normalise their experience of their father. It will also enable the wife to obtain intensive therapy to enable her to accept the court’s decision and challenge her beliefs, so that she may have confidence the children are no longer at risk in the care of the husband. The ultimate time the children will spend with their father will be regular and frequent and will accord with the statutory prescription of substantial and significant time. I consider a gradual progression to a regime of unsupervised time with the father for four nights a fortnight to be in the best interests of the children and will strike a balance between the need to protect the children and enable them to have a relationship with both parents.
It is appropriate that the husband pay the costs of the family therapy because of my finding that he poses a risk to the children by reason of his conduct, which may be mitigated by therapy and because of his superior financial position and minimal child support which he pays for the children. Counsel for the Independent Children’s Lawyer cross-examined the husband extensively about his superior financial position and the modest amounts he paid in child support and it is obvious that the wife meets the majority of the children’s financial needs.
EQUAL SHARED PARENTAL RESPONSIBILITY
Section 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility.
In this case both parents seek an order for sole parental responsibility whereas the Independent Children’s Lawyer seeks an order for equal shared parental responsibility.
The husband seeks an order for sole parental responsibility for essentially the same reasons that he says the children should be placed in his primary care. If the wife were empowered with an order for sole parental responsibility, given her unwavering belief in the malevolence of the husband this would enable her to further sideline the husband from the children’s lives and would further jeopardise the children having a chance at a normal relationship with their father.
The wife seeks an order for sole parental responsibility because the presumption of equal shared parental responsibility is rebutted because there are reasonable grounds to believe that the husband has engaged in abuse of the children and has committed family violence against the wife.
The Independent Children’s Lawyer seeks an order for equal shared parental responsibility because it is submitted the parents can communicate by email or a communications App and it is not in the children’s interests for their father to be further sidelined.
I am cognisant that it is a very serious matter to exclude the rights and responsibilities of parental responsibility from a parent.
I accept the submissions of counsel for the wife that the presumption of equal shared parental responsibility has been rebutted by both my findings as to the husband’s physical punishment of the children and his coercive and controlling conduct towards the wife, particularly that of a sexual nature. In that context, it is unrealistic to expect the wife to consult and communicate with the husband about major long-term decisions pertaining to the children. I do know however that there does not seem to be any disagreement about religious matters nor that the children will need to attend a government school, which generally is in a catchment area according to the geography of the primary carer’s residence. I do however consider that the wife should be required to advise the husband in advance of any major decisions she makes and consider his response prior to making any such decision, except in the case of an emergency. I intend to make an order that the wife have sole parental responsibility for the children.
I have endeavoured to make orders which will be least likely to lead to further proceedings between the parties, which is obviously in the interests of the children and both parents as the current litigation has regrettably dragged on for many years and there needs to be finalisation of the benefit of all involved.

I certify that the preceding three hundred and four (304) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams J.
Associate:
Dated: 30 September 2021

File number(s):	DGC 2224 of 2017
Judgment of:	WILLIAMS J
Date of judgment:	30 September 2021
Catchwords:	FAMILY LAW – PARENTING – Parenting application where both parents seek that the six children of the relationship live with them and allege that the other poses an unacceptable risk – Where the husband asserts that the wife has maliciously conspired to make allegations against him of sexual and physical abuse, coercive and controlling conduct and is unable to facilitate a relationship between him and the children – Where the wife asserts that the husband has sexually and physically abused some of the children and has engaged in coercive and controlling conduct towards her – Held the husband does not pose an unacceptable risk of sexual abuse, but does pose a risk of physical and psychological abuse primarily arising from his draconian discipline of some of the children – Held that the wife does not pose an unacceptable risk of harm – Consideration of factors which would mitigate the risk the husband poses to the children – Orders made for the children to remain living with the wife and for the children (with the exception of one) to spend gradual supervised time with the husband to progress to the supervisor being in substantial attendance and eventually unsupervised time – Orders made requiring the family to participate in family therapy and for each of the parents to engage in individual therapy – Orders made for the wife to have sole parental responsibility for the children, subject to notification of the husband of any such decisions
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA
Division:	Division 1 First Instance
Registry:	Melbourne
Number of paragraphs:	304
Date of last submission/s:	16 April 2021
Date of hearing:	16 September 2019, 30 September 2019–4 October 2019, 6 November 2019, 20–22 October 2020, 9 November 2020, and 18 January 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Grant
Solicitor for the Applicant:	Umbrella Family Law
Counsel for the Respondent:	Ms Jenkins
Solicitor for the Respondent:	Caroline Counsel Family Lawyers
Counsel for the Independent Children's Lawyer:	Mr O’Connell
Solicitor for the Independent Children's Lawyer:	Clark Family Lawyers

DGC 2224 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR PRESLEY Applicant
AND:	MS PRESLEY Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	30 SEPTEMBER 2021

H-1	Annexures to Husband’s trial affidavit filed 18 April 2019 & 1 June 2019.
H-2	Applicant’s proposed roster for child care assistance
H-3	VARE recordings – Suburb F SOCAU interview of V (29 April 2017 & 13 July 2017)
H-4	School notes from AA Primary School pursuant to subpoena
H-5	SOCIT Victoria Police Subpoena dated 10 September 2019
H-6	Email from Ms BB to Ms CC (husband’s solicitors) dated 11 September 2019
H-7	‘Transcript’ of VARE tapes of V dated 29 April 2017 & 13 July 2017
H-8	Client Contact Record of Ms DD dated 25 July 2017 (1 page)
H-9	Home visit – 27 April 17 – page 7 to 14, Case note 9 May 2017 – Ms EE re: T Presley, Case note 25 May 2017 – Ms EE, Case note 16 June 17 – Ms EE, Case note 17 August 17
H-10	NN Contact Service – Presley Home Visit in September (from H-8)
H-11	School Reports of V Presley
H-12	Suburb F SOCIT subpoenaed documents, Investigation – full response report pages 1 to 9 and Brief of evidence 6 January 2018 prepared by Detective FF.
W-1	Medical Report from OO Health Service of Mother - 19 October 2019
W-2	Observation Report - Part 3 - TT Contact Service
W-3	Map prepared by mother’s counsel to demonstrate location of children’s schools and parent’s homes
ICL-1	TT Contact Service - observation report dated between 22 June 2019 and 7 September 2019
ICL-2	Handwritten notes – police notes of 28 April 2017
ICL-3	DHHS First Contact Report Visit dated 27 April 2017
ICL-4	DHHS Note of Home Visit on 16 June 2017 (document 5 in Court Book)
ICL 5	GG Service Notes 6 September 2017 (document 10 in Court Book)
ICL-6	GG Service Notes 1 December 2018 (document 14 in the Court Book)
ICL-7	GG Service Notes 2 May 2018 (document 13 in the Court Book)
ICL-8	GGS - Client Record 29 August 2017
ICL-9	GGS - Client Contact Record – Ms DD - 26 July 2017
ICL-10	Therapeutic Report – Ms DD – pages 1 and 2, 27 April 18