Tanton & Tanton (No 3) - [2023] FedCFamC1F 1038

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tanton & Tanton (No 3) [2023] FedCFamC1F 1038

File number: SYC 8004 of 2021

Judgment of: CHRISTIE J

Date of judgment: 6 December 2023

Catchwords: FAMILY LAW – FINAL PARENTING ORDERS – Unacceptable risk – Where the applicant father asserts that the children are at risk of serious psychological harm in the care of the mother arising out of her fixed view that the children have been sexually abused by him – Where the respondent mother’s asserts that the children are at risk of serious and psychological harm including sexual harm in the father’s care – Finding that the children have not been sexually abused by the father – Where the children are at a risk of psychological harm in the mother’s care – Order for change of live with parent – Order for the children to spend no time with their primary carer for a period of 12 months.

Legislation: Family Law Act1975 (Cth) ss 60CC, 68B, 69ZW, 91B, 117 121

Cases cited:
Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69; [1988] HCA 68

Division: Division 1 First Instance

Number of paragraphs: 277

Date of last submission: 30 October 2023

Date of hearing: 13, 16-20 October 2023

Place: Sydney

Counsel for the Applicant: Ms Kennedy

Solicitor for the Applicant: Pigdon Norgate Family Lawyers

Counsel for the Respondent: Mr Loukas

Solicitor for the Respondent: City Lawyers and Consultants

Counsel for the Independent Children’s Lawyer: Ms Dalrymple

Solicitor for the Independent Children’s Lawyer: Farah Lawyers
ORDERS

SYC 8004 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR TANTON

Applicant

AND:
MS TANTON

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

6 DECEMBER 2023

THE COURT ORDERS THAT:
1.The father have sole parental responsibility for X born 2009, Y born 2011 and Z born 2015 (collectively “the children”).
2.The children live with the father.
3.To give effect to order 2:
(a)The Independent Children’s Lawyer (“ICL”) should forthwith provide these orders to the school attended by the children;
(b)The father should attend at the children’s schools to collect them.

4.Pursuant to section 68B of the Family Law Act 1975 (Cth), the mother be restrained from contacting the children directly or indirectly by any means except in accordance with these orders or with the consent in writing of the father.
5.The children spend supervised time with the mother fortnightly commencing six (6) months from the date of these orders.
6.The children spend such additional time with the mother as is agreed in writing at the expiration of 12 months from the date of these orders.
7.Pursuant to section 68B of the Family Law Act 1975 (Cth), the mother be restrained from attending:
(a)the father’s homes, including FF Street, Suburb AA and GG Street, Suburb AA;
(b)the father’s parents’ home, including HH Street, Suburb JJ;
(c)any school attended by the children;
(d)the children’s extra-curricular activities;
(e)the father’s work address; and
(f)the father’s partner’s work address.

8.Without admission, each of the parties is restrained from physically disciplining the children.
9.Without admission, each of the parties is restrained from discussing these proceedings in the presence of the children.
10.Without admission, each of the parties is restrained from denigrating the other in the presence or hearing of the children.
11.A copy of these Orders and Reasons for Judgement may be provided by any party to the following:
(a)The Department of Communities and Justice;
(b)NSW Police;
(c)K Psychologists, or any other treating health practitioner that the children attend; and
(d)The Supervision Agency engaged by the father to supervise the children’s time with the mother.

12.A copy of the Orders may be provided by any party to:
(a)the children’s schools; and
(b)any of the children’s extra-curricular activity providers.

13.A copy of Ms H's Single Expert Report dated 17 October 2022 and Dr F's Single Expert Report dated 24 July 2023 be provided to K Psychologists, or any other treating health practitioner that the children attend.
14.In the event that the children (or any of them) are not in the care of the father by 4.00 pm on 6 December 2023 then a recovery order shall issue pursuant to section 67Q of the Family Law Act1975 (Cth) and the state police be authorised and directed with such assistance as they require and if necessary by force:
(a)Attend at the mother’s premises and recover the child or children;
(b)Stop and search any vehicle, vessel or aircraft and search the premises or place for the purposes of finding the child or children;
(c)To recover the child or children;
(d)To arrest without warrant the mother in the event that the mother takes possession of the children or any of them other than in accordance with these Orders.

15.The recovery order shall remain active for a period of 12 months from the date of this order to allow for the recovery of the children or any of them during the period of its currency.
16.The ICL’s application for costs is dismissed.

IT IS NOTED THAT:
A.The father has informed the Court that he loves and misses W very much and is hopeful that they will be able to re-establish their relationship (with therapy or otherwise) having regard to W’s wishes and needs.

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

These are parenting proceedings about four children: W (aged 16), X (aged 14), Y (aged 11) and Z (aged eight). Both parents seek final orders which they say will promote the best interests of the children. There is no way to bridge the issues which divide the parents. The mother says the children are at risk of serious physical and psychological harm including sexual harm in the care of the father. The father says the children are at risk of serious psychological harm in the care of the mother arising out of her fixed view that the children have been sexually abused while in his care.
The father’s application relates only to the three younger children for reasons which will be discussed later at length. Accordingly, I am not being called upon r to make orders about where or with whom W will live and I anticipate, as a consequence, that he will remain living with his mother.
The father’s application seeks orders that he have parental responsibility for the three youngest children and that they live with him and spend no time with the mother before supervised time is reintroduced.
The mother’s application seeks that the children live with her and spend no time with the father. She also seeks an order that she have sole parental responsibility.
At the conclusion of the evidence the Independent Children’s Lawyer (“ICL”) sought orders that also provided that the three youngest children live with the father and spend no time with the mother for a period followed by supervised time leading to unsupervised time. The ICL also sought an order that W communicate and spend time with the father according to his wishes.
On 23 March 2023 I requested that the Department of Communities and Justice (“DCJ”) intervene pursuant to the provisions of s 91B of the Family Law Act1975 (Cth) (“the Act”). They declined the invitation.
A further request for the DCJ to intervene pursuant to s 91B was made on 20 July 2023. After the hearing concluded and judgment was reserved, I received correspondence from the DCJ again declining to intervene. With the consent of the parties, that letter was marked as an exhibit in the proceedings and I reproduce it in part here:
Following consideration of the issues that have been raised about the children in the proceedings, including the Expert Report by [Ms H], Child and Family Consultant dated October 2022, and Expert Report by Consultant Psychiatrist [Dr F] and a review of information held by DCJ, the decision has been made not to intervene in the proceedings at this time. The reasons for the decision are outlined in the letter of Manager Casework [Ms KK] dated 17 May 2023. In addition, the expert reports have not provided further child protection information, unknown to DCJ and the decision not to intervene is maintained. As stated in [Ms KK’s] 17 May 2023 letter to the Court, the children’s needs appear to have been addressed by their engagement in [LL Services], [W] maintaining his therapy and the parties agreeing to engaging a single expert report. As stated in [Dr F’s] assessment, the mother does not suffer from a mental illness. However, the issues including the acrimonious divorce and the substantiated sexual abuse of the children by the maternal grandfather may have contributed to [Ms Tanton’s] predicament. DCJ notes in [Dr F’s] report that [Ms Tanton] has expressed her willingness to engage in therapy.
The Department is prepared to re-consider this decision if new information previously unknown to the Department is made available during the proceedings, or new reports are made to the Department that suggested the children at risk of significant harm.
(Emphasis in original)
As will be discussed below I remained concerned that the DCJ’s response did not engage with the following matters:
(a)What is the nature of the psychological risk to the children in the care of the mother (if they have not been sexually abused by the father)?
(b)What is the nature of the psychological or physical risk to the children if the final orders of this Court place the children in the care of the father – consistent with the single expert recommendations and the ICL’s proposal?
(c)What is the risk to the younger children (physical and psychological) posed by living with W?
(d)What is the likely response of W to an order which separates him from his siblings – what risk issues are raised?
(e)Is the DCJ concerned that the mother may only engage with professionals who do not challenge her viewpoint?
(f)Contrary to the assumption in the letter from the DCJ that the children continue to attend the LL Services, what is the significance of them not attending?
There are some uncontroversial background facts which inform consideration of the more controversial matters.
In these reasons for judgment I will refer to the DCJ for clarity even though, historically, the Department has had other titles.
Beginning in 2015 the DCJ were involved with the family as a consequence of allegations that Mr BB (hereafter the “maternal grandfather”) had sexually abused the three older children. The mother’s case is that the allegation was considered substantiated by the DCJ. The actual situation is somewhat less clear. In early 2019 an employee of the DCJ prepared a referral for the mother to the MM Service. Under the heading “history” that referral reads:
•Sexual abuse has not been substantiated toward the children by either the maternal or paternal grandparents. The children have been interviewed on a number of occasions by Police and there has been no disclosures substantiating the sexual abuse.
•Prior to the last report dated 6/02//2019 – all previous reports have been made by the mother.
•[Ms Tanton’s] belief of the children being sexually harmed, is affecting her interactions with the children and the choices she makes on their behalf.
•[Ms Tanton] at times has driven the boys around to locations where she believed they had been harmed to prompt disclosure …
•Under the heading “JIRT OUTCOME” that referral reads: Risk of psychological harm has been substantiated.
•Sexual abuse has not been substantiated.
(Emphasis in original)
In early 2019 a further interview of X and Y took place at SS School.
The parents separated in October 2016 but remained living in the same house until early 2017. They implemented an informal care arrangement (parenting plan) at that time which saw the children live with the mother and spend time with the father from Thursday after school to Tuesday before school each alternate week.
The arrangement broke down at the end of 2018 and proceedings were initiated by the father in January 2019.
The children were taken on a trip abroad in the school holidays in late 2018. All four children attended with the father and the paternal grandparents. W reported to his counsellor Ms M (“Ms M”) that his brothers did not behave during the trip which made their father angry. He told her in March 2019 his father hit him on the back during that trip.
In April 2019 the mother asked the father whether he would assume full-time care of W. The father said he would have all of the children reside with him but did not think the children should live separately. The mother replied that the children do not wish to reside with the father full-time.
In June 2019 W hit his mother causing, according to her email to the father, a blister on the inside and outside of her mouth, a “fat lip” and a loose tooth.
On 12 June 2019 interim orders were made.
On 15 November 2019 the parties entered into final consent orders. Those orders provided in part as follows:
3.        The parties have joint parental responsibility for the Children.
4.        The Children live with the Mother.
5.        The Children spend time with the Father as follows:
5.1each ultimate Thursday from the conclusion of School or after school care until the commencement of School before school care on the Tuesday morning commencing on the first Thursday following the making of these Orders;
5.2.for one half of each School Holiday Period as agreed, but failing agreement for the first half in years ending in an odd number and the second half in years ending in an even number; and
5.3.     at such other times as agreed between the Parties.
Since separation from the mother, the father has re-partnered with Ms L with whom he lives. Ms L provided an affidavit in the father’s case.
In mid-2020, following an argument – the catalyst for which was the father disposing of an illicit substance belonging to W – the father assaulted W and was charged with common assault. The father was found guilty but without proceeding to conviction. A Final Apprehended Domestic Violence Order was issued in early 2021 for a period of two years with W as the protected person.
CONSIDERATION
The case turns on findings which relate to physical and psychological harm of the children in the past and an assessment of prospective risks of same in the future. This is a case where priority is given, consistent with the provisions of s 60CC(2)(b) of the Act, to the need to protect the children from physical and psychological harm from being subjected to abuse, neglect or family violence.
Each parent seeks an order for sole parental responsibility in his or her own favour. Both parents share the view that an order for equal shared parental responsibility would be untenable and would not function in the best interests of the children. I concur. This is a case where there should be an order for sole parental responsibility in favour of the parent with whom the children live.
I turn then to the more controversial facts which are the subject of some dispute as between the parents and where available (and necessary) make findings in respect of the contested evidence.
The final consent orders were made against the following background:
(a)The parties had participated in a Child Responsive Report conference in October 2019 with a family consultant, Ms OO, who prepared a report;
(b)The children had spent the whole of the October 2019 school holidays with their father at the mother’s election, as she told Ms OO she “needed a break”.
It is worthwhile setting out some of Ms OO’s observations in full:
•[Ms Tanton] said that her only concern about the children in [Mr Tanton’s] care is the possibility that they may be yelled at by him. She said that she has observed a “significant change of attitude” of [Mr Tanton] in his positive engagement towards the children. She commented that “he is parenting a lot better”.
•Overall, [Ms Tanton] considers that the biggest current risk and impact on the children is the inconsistent financial support to her to provide for them. Her secondary concerns appear to be that the children (in their time with their father) split this time between the paternal grandparent’s, household and [Mr Tanton’s] partner’s ([Ms L’s]) household. She said that ideally, the children should spend all of their time in one household for consistency, (preferring this occur at the home of [Ms L]). [Ms Tanton] spoke about [Ms L] being a positive influence on [Mr Tanton] and his parenting of the children.
The mother said at this hearing that she did not have a clear recollection of the interview for Ms OO’s report.
The optimism about improvement in the situation is echoed in the contemporaneous notes of a counsellor, Ms M, who saw the parties’ child, W, over an extended period around this time. In August 2019 the mother told Ms M:
…things had improved between she and [the father], and between she and [W]. She has put more boundaries down and there is no internet on at the house. She said there has been marked improvement in all of the kids.
Said she felt he was going relatively well.
The mother says that she entered into the final consent orders under (unidentified) duress and without the benefit of legal advice. I accept that she may not have been legally represented when she entered into the consent orders but, given her comments to both Ms OO and Ms M, I reject the submission that she was somehow coerced into parenting orders she believed placed the children at significant risk.
The final consent orders operated for a short period of time before they broke down. Initially the younger children stopped attending time with the father. It is necessary to canvas the events which occurred which led to a total cessation of the children’s time with the father.
In early 2020 there was a report to the DCJ:
[Z] (4) has disclosed today that he and his siblings [W] (12), [X] (10) and [Y] (8) are punched by their father [Mr Tanton]. [Z] said [the father] does this “because he’s angry” and pointed to his knuckle, possibly indicating where [the father] makes contact in the punches. There are no observed or known injuries for [Z]. [Z] is reported to experience profound fear-related symptoms which are escalating over the last 4-6 months. [Z] expressed to the reporter through singing, “I wish that there were lots of mummys and no daddy’s named [Mr Tanton]”. [Z] recently wet himself without moving from his chair ([Z’s] toileting is reportedly fine usually) and [Z’s] stuttering is observed to get worse following being in [the father]’s care…
(As per the original)
It is not clear who made the report.

On 7 August 2020 the mother emailed Z’s childcare centre and indicated that she did not consent to the father collecting Z from childcare.
It is necessary to traverse the allegations that the children have been sexually abused by the maternal grandfather, paternal grandfather, father – and perhaps others – as the mother relies upon these facts to ground the relief she seeks.
The mother has spoken to the children about the allegations. As early as August 2018 a caseworker at the DCJ spoke to the mother about limiting the information to which the children were exposed. The mother was told not to take children to venues where she thinks they were abused in an effort to prompt a disclosure.
The mother has taken notes of the children’s disclosures. One set of the notes became an exhibit while other individual notes were also in evidence.
Allegations of abuse by maternal grandfather
The maternal grandfather, who the children referred to as “[Mr BB]” (spelled variously in the evidence), provided childcare for the parties’ children at their request to facilitate the parents’ work commitments when the children were young.
The mother told a counsellor engaged to support W that W had been sexually assaulted by the maternal grandfather between 2010 and 2015 including anal rape. W was three (3) years old in 2010.
The mother says that W first told her in August 2010 “[Mr BB] had hurt me” and then that W had reported the maternal grandfather “put his penis close to [W’s] bottom when [they] were in the bathroom”. The mother did not report this to police or the DCJ at that time.
The mother continued to use the maternal grandfather to collect W (and later the other children who attended care) from childcare after a break of three months. She has said that she understood her father was collecting him at 6.00 pm but later learned he had sometimes collected him at 3.00 pm.
The mother says that in mid-2015, W, X and Y made disclosures to her of alleged sexual abuse by the maternal grandfather towards each of them.
There was a report to the DCJ in mid-2015. From context it appears to be that the mother is the reporter. The records say:
[Y] has been saying things “out of the blue” that caller finds very distressing. Caller stated that on [… Y] Y said “[Mr BB]” (MGF) touched him with green gloves on his bottom and “why does he hurt him” and that Grandpa (PGF) doesn’t hurt him. Caller asked [Y] where this happens and he stated at the metal toilets down the side. Caller believes these are near the golf course as one day driving back from [the Supermarket Y] was upset and didn’t want to go near that area. [Y] has had nightmares all week.
Caller stated the PGF looks after [Y] Tuesday’s and the MGF picks him up from C/C Wed thurs and brings him to his home.
[Y] also drew a big finger on his magi doodle.
[Y] said “[Mr BB]” put a toy gun to his head and said if he says anything he will take him into the forest and mummy and daddy will never see him again.
(As per the original)
The DCJ advised the mother not to question Y but to make a note of anything disturbing he says. The report was given a “low” priority and marked “not substantiated”.
The mother says in her affidavit: “In August 2015, the three older children made disclosures to me of alleged sexual abuse perpetrated by [the] maternal grandfather, towards each of them.” The mother does not set out the content of those disclosures in her affidavit.
The mother asserts that in late 2015 W told her: “[Mr BB] said he was going toshoot me. [W] also talked about [Mr BB] taking him on the “Terror Drive”.
A short time later the Joint Investigative Response Team (“JIRT”) accepted a referral in respect of the disclosures of the children the record of which reads:
[Y] (3) has made clear disclosures about the maternal grandfather “[Mr BB]” inappropriately touching his nuts and putting his penis in [Ys] mouth. [Y] also stated the maternal grandfather has smelt his bottom. [X] [sic] (6) has made a clear disclosure that the maternal grandfather has punched him in the testicles.
Screened in for suspicious indicators of sexual abuse for [W] (8). [W] and [X] have both disclosed “[Mr BB] (maternal grandfather) told them they didn’t have bottom holes. Just cracks and the rhino has to put bigger holes in their bottom so they can poo[“]. “[Mr BB] said he had a rhino that lived in his tummy and he had to make their bottom holes bigger. [W] said he took them to his house to do this.” Both [W] and [X] said “[Mr BB] had a tattoo [...] that said […].”
(As per the original)
In late 2015, Y, aged three (3), was interviewed by members of JIRT. He did not make any disclosure of sexual abuse.
The following day, X, aged six (6), was interviewed by JIRT. He did not make any disclosure of sexual abuse. On the same day JIRT conducted an interview with W aged eight. He did not make any disclosure of sexual abuse. Parts of the interviews were played in court and tendered as an exhibit in the proceedings.
Further interviews of the children took place in mid-2018. A record of a report to the DCJ in mid-2018 reads:
[W] and [Y] said that [Mr BB] touch their penis and testicles which the boys call ‘ball sacs’. [Y] and [X] said that [Mr BB] also touched and put his finger in their anus. Caller said that [W] and [Y] remember that [Mr BB] was on top of them with his fat tummy. [X] remembers that [Mr BB] put his fingers up [X’s] bum very hard and that [Mr BB] was also touching [X’s] penis and [X] said it was very high up his penis and took a long time to come out. [W] said that [Mr BB] also put [W[‘]s] head through one of hispaintings and caller said that she remembers thepainting was damaged. [W] asked caller if she remembers how he used to have little cuts all the time, and he said [Mr BB] used to do that to them.
From context the caller would appear to be the children’s mother – since it makes sense that she would indicate that she has a memory an item owned by her father.
About mid-2019 Ms M reported that the mother said that Y’s disclosure to her about abuse by the maternal grandfather to the effect “[Mr BB] licked my bottom” created tension between the siblings when made (2015) and subsequently. The mother has told Ms M and the Court that she thinks W may have been angry and distressed because Y’s disclosure received more attention and time with the maternal grandfather ceased as a consequence of Y’s disclosure but not his own.
W told Ms M in early 2019 that:
…when he was about one year old he had disclosed to his mother that [Mr BB] had put his penis near his bottom.
He then said that his grandfather “used to rape me” He said it happened when he was picked up from school and his was alone with grandfather no one else was there and that it happened at his home and at the grandfather’s home and “at other places”. He said grandfather used to threaten to kill him if he talked to anyone or kill them.
W has also provided detail (between four to nine years after the alleged events) of some events which seem more inherently improbable: those include having his toes cut with a garden implement being taken to a shed which looked like a movie set with the maternal grandfather’s friend Mr PP, being tied up with rope and tape and being hit with garden implements.
In mid-2018 it was reported to the DCJ by the mother:
…[Y] is out of control and won’t listen to her. [Y] will say ‘[Mr BB] tells me to do this”. [Y] is having visions and auditory issues. [Y] grabbed [Z‘s] penis in the bath. [The mother] has to be strict with [Y] and is trying different strategies… CW [(caseworker)] spoke to [the mother] about how it is not appropriate to drive the boys to locations where she thinks they were abused to prompt a disclosure. [the mother] agreed not to do this again… [The mother] said [Z] made a comment ‘grandad did this to me’ and had a toy plane and indicated putting it up his bottom. CW asked if [Z] has heard things his brothers have said about [Mr BB]- [The mother] insists it couldn’t be him mimicking this because they refer to [Mr BB] or […], not grandad. CW asked [Ms Tanton] if she was the victim of abuse- [The mother] can’t remember, but thinks she may have been.
In early 2019 it was reported to the DCJ:
[W] has disclosed that he was raped by his grandfather, [Mr BB], between the ages of 4–8 y[ea]rs. He also stated that he recalls his grandmother being present and watching the incidents. He has stated that [Mr BB] would take him to places with a camera.
A short time later, X and Y were interview by JIRT at SS School. W was also interviewed on this day. W and X are said to have disclosed sexual abuse by the maternal grandfather. Y did not.
I am not being asked to determine whether the children were sexually abused by the maternal grandfather. I am not required to, nor do I intend to make a finding about this. However, the history of the allegations is important because it informs my analysis of the later allegations which relate to the father (and paternal grandfather).
Allegations of sexual abuse by the paternal grandfather
The paternal grandfather is Mr CC (hereafter the “paternal grandfather”). As set out above the initial allegations which Y made concerning the maternal grandfather were to the effect: why does the maternal grandfather hurt me when the paternal grandfather does not? That is, Y expressly disavowed abuse by the paternal grandfather.
The children saw and spent time with the paternal grandparents before and after separation. Indeed, the father resided in a part of the home owned by his parents in Suburb JJ.
Prior to the trip abroad in late 2018 the mother says that Z told her, in mid-2018, his paternal grandfather licks his tongue and bottom. This was (later) reported to the DCJ. Z was interviewed in mid-2018. X and W were interviewed on two dates in mid-2018. The children did not make any disclosures of abuse by the paternal grandfather. The DCJ marked the allegations as not substantiated.
The ICL submitted that it is difficult to reconcile the mother allowing the children to travel abroad with her contention that the children reported to her (and she accepted) that the paternal grandfather had been sexually abusive to Z prior to the trip.
The overseas trip took place in the mid to late 2018 school holiday period.
In late 2018 there were further disclosures made by the children which related to events said to have occurred during the trip abroad. It is alleged that in late 2018 Z reported to the mother: “grandpa put his big gummy in my bum, it hurt my poopoo.” Z was three when this was said to have occurred during the holiday with the father overseas.
I am aware because of the father’s evidence, which correlates with W’s comments to Ms M, that the trip abroad was difficult and the father encountered behavioural issues and at least W experienced the father to have acted angrily.
In March 2019 the mother says Z told her “granddad stuck his finger up my bottom.”
The children’s time with the paternal grandparents has been limited in recent years because they have not been spending time with the father.
There was no objective evidence capable of supporting the conclusion that any of the children had been the subject of a sexual assault or any inappropriate sexual activity by the paternal grandfather. The DCJ did not substantiate the allegation.
The mother expressed no scepticism when, at the end of 2022, Z’s allegations now involved the maternal and paternal grandfathers abusing him in concert with the father.
The evidence does not permit any finding that the children were abused by their paternal grandfather. I am also satisfied that the evidence does not support a conclusion that the orders which the father seeks for the children’s care would place them at unacceptable risk of harm if the paternal grandfather were to be present.
Allegations of sexual abuse by the father
It is part of the mother’s case that all four children have disclosed to her that they have been sexually abused by their father and that she accepts what they say as truthful. She confirmed this position on a number of occasions in her oral evidence. In her affidavit I had the impression she was telling the Court that all four children had been sexually abused (by someone) but only the three youngest had been sexually abused by their father.
In late 2018, Z, then aged three, was interviewed. The records of NSW Police read: “[t]he child understood questions asked by the police, however failed to disclose any criminal offence to Police.”
In early 2019 Y and X were interviewed at school. The DCJ records say: “[Y] did not make a disclosure of sexual abuse”. X made no disclosure about sexual abuse by the father. During those interviews both X and W told the DCJ that their father used excessive discipline and I will return to discuss this later in these reasons for judgment.
The mother says that in December 2019 Z told her that the father had stuck his finger in the child’s bottom. This is the first time that the mother says one of the children had made a disclosure which involved alleged sexual conduct by the father.
In mid-2020 there was a report to NSW Police which was recorded as:
[Y] also reportedly commented that a heated wheat pack “this looks like my dad’s penis”, when asked by [the mother] “have you seen dads penis”, [Y] replied saying “yes he makes me put my hands down his pants and tickle it. He will smack me if I don’t”
(As per the original)
In mid-2020 the mother told NSW Police that the disclosure was actually made by Z. A later police record dated mid-2020 indicates that the mother made notes of the disclosure as follows:
There were prior notes from […] on the Person Reporting’s phone, stating; “[Z] -3.40pm […] This. He jus said “this looks like my dads penis” “I said what do you mean?” “Do you see your dads penis?” He said “yes when he makes me put my hand down his pants and tickle it” I said “He is not aloud to do that, parents doing do that to kids and dads don’t do that” He said “I have too otherwise he’ll smack me” [Y] -3.35pm
(As per the original)
In July 2020 there was an allegation that Y had reported seeing a “penis going into a vagina” on television.
In mid-2020 Y and Z were interviewed by JIRT at their school. Z’s interview was of 45 minutes duration. During that interview he was smiling and at times laughing. He made no disclosure of sexual abuse. His mother incongruously commented that the video showed that Z looked like he was under duress. Y’s interview was 35 minutes long. He did not say his father had sexually abused him. He told the DCJ his father had had him watch animated pornography on YouTube.
In mid-2020, Y, Z and X were in the care of the father. The mother requested that a welfare check on the children be carried out. The father attended Suburb QQ police station with the children at the request of the police. The police concluded: “[a]ll three children appeared happy and contented [sic] and police could not detect any issues of concerns at this time … Police hold no fears or have no issues with the children’s welfare”.
In mid-2020 the mother alleges, and it is recorded in material produced by the DCJ and NSW Police, Z made a reference to the “penis game” and when she asked what that was he responded “Daddy eats my penis”. On the same date and according to police reports, the mother had provided a note in her phone recorded as: “2.16pm […] – [Z] “Dad put a needle in my but then I pooped on his head”.
The next day the mother made a note in her phone (see Exhibit 8) that Z said to her, “[w]e don’t want to go to school … because dad is going to come early and hump us”. In late 2020 the mother approached the police and asked them to apply for an ADVO on her and the children’s behalf. She told police Z had reported the father attending at his preschool picking him up and saying to him that someone was going to kill the mother. She further reported Z stated “Dad said he’s going to bite my willy off and stick it on my head, and it will be very hard to wee from.” The mother further reported that the children informed her that the father “has flushed their heads down the toilet and continues to assault them”.
A NSW Police report dated early 2021 records that “[w]hilst discussing sexual abuse experiences with his siblings”, X disclosed that the father “touched him on his genital area in [mid-2020] to the Ed at [V Hospital]”.
In early 2021 another report concerning Z was received by the DCJ. A decision was taken by the DCJ not to conduct a further interview. Because of concern that there had been multiple interviews. The content of that report is significant and referred to by the single expert at [52]. Y and Z are said to have:
…made further disclosures to their mother, including inter alia, that their father – tied them to the roof of his car and went roaring down the road; slammed [Z’s] head on the ground; punched [Z] on the back and into a wall; covered [Z’s] face with a pillow (to smother him); “almost chopped ([Z’s]) face off”; “said he is going to kill me and everyone else with a metal pole”; “pooed on my head and made me vomit”; “fudged me”; “raped me”; “bit my penis.” [Y] said that “Dad threatened to chop me up and throw my head into a wall”; “he made my teeth fall out after he hit me with a book and he said he would smash them all out”; “he put his penis in my bottom at his house and he laid on me and I went ow”; “he put a knife up my penis”; “he made me bleed with a [power tool]” and “he choked me and took a dick pic.”
The above is not just an allegation of sexual abuse but it was an allegation of widespread abuse including graphic sexual abuse which the mother repeated presumably because she believed it was true. It involves injuries from items inserted in penises. The mother recorded in her affidavit that the children reported to her that when the father strapped them to the car he said to them “I hate you both and I wanted you to die.” It is in this light that her acceptance of the children’s disclosures needs to be seen.
In a similar vein the material produced by the DCJ and NSW Police recorded the following in late 2020:
[The mother] describes an incident within the past fortnight where the [father] went to the children’s school and left [food] for them. [The mother] says that the children ate the [food] and became very sick. [The mother] believes that the other party has intentionally made their children sick to substantiate his threats to them… [The mother] also reported that the [father] told [Z] that he was going to cut [Z’s] penis off and stick it on [Z’s] head to make it painful for when [Z] needs to urinate.
The latter part of the above excerpt appears to be a repeat of the disclosure above made in late 2020 when the mother sought an ADVO be made by the police.
The mother deposed in her affidavit:
116.[I]n [late] 2020, the father delivered [food] to the children’s schools, to [RR School] and also to [SS School], and subsequently [Z] and [Y] became violently ill from eating the [food], [X] did not eat his [food] but gave his [food] away to […], a boy at [SS School]. [Y] and [Z] vomited I was told by school teachers. They reported chest pains, and tingling in arms, legs, and torso. [Y] did not eat much of [the food] as he said it tasted like poo. [Z] also said that the [food] tasted like poo. […] who ate [X`s food] was very unwell I was told. [Food] was taken only for [X], [Y], and [Z]. [Z] was off sick vomiting at home. I was told by the teacher it could be a stomach bug. [Y] and [Z] said to me after: “Dad said he was going to bring a poison [food] to school if we told bad things about him to anyone”
The above evidence by the mother (and reports to the authorities) must have been included by her because she either genuinely believes the father deliberately set out to harm the children by poisoning or she wants others to form that view.
It is important to set out in detail the many and varied allegations which are contained in the mother’s material to appreciate the narrative and dynamic which is discussed by the single expert. One of the more fantastical allegations is set out in the mother’s trial affidavit and is a record of a conversation between the mother and Z said to have occurred in June 2022. The mother sets out:
96.…[Z] said: “Dad put me under the floorboards, drowned me and put me in the […].” [Z] then said he put me in a room under the […]., there is a secret tile. The colour was blue. It was secret.” “He went to into a room under the […]. Surrounded by […].”

Similarly, the mother alleges that in December 2021:
94.…[Z] suddenly says to me while we are at home: “Dad put me on the conveyor belt that makes people into blocks and said you are going to get burned by the fire”. Dad gave me pills, I fell asleep, then he took me to the torture chamber.”
I accept that during cross-examination the mother, for the first time, appeared to distance herself from at least this particular allegation when challenged about whether she believed the events reported to have occurred. The mother responded to the effect that she still did not know if the children were put on moving equipment “but they can describe accurately what they saw”.
The “fantastical” nature of the allegations was raised with the mother by the single expert, Ms H, who sought the mother’s comment about whether or not the allegations seem improbable or fantastical. The report writer recorded:
168.[The mother] became defensive and agitated at this. She said that the comment made her “feel upset, because why would the boys lie, I believe my children! Why would they tell me things that weren’t true? Children tell things the way they are able to. Sometimes they don’t really understand what is happening to them.”
Ms H also suggested to the mother that “the idea of [the father] actually flushing the boys’ heads down the toilet seemed somewhat fantastical”. The report writer recoded:
270.… [The mother] reacted very badly to this comment – as if the report writer had questioned her core credibility as a parent and as a person. She became almost fixated in her defence of this type of allegation as being entirely believable and raised it again in her second interview. However, in the context of all of the allegations [the mother] has made to FACS and police over the last 12 months in particular, flushing a child’s head down the toilet now seems the least problematic thing to have been alleged.
In late 2021 the mother indicated to the DCJ that all four of the children had been sexually abused – the sexual abuse having started when W was eight years old. W has not indicated to third parties – the DCJ, counsellors, Ms H – that he was sexually abused by his father.
The mother says in her affidavit, that in June 2022 Z told her “Dad touched me with a [toy] on my penis 10 times”.
The children met with Ms H in mid-2022. When she asked Z why he needed to be protected from his father (as Z had indicated was necessary) Z is recorded to have said to Ms H: “[Mr Tanton] hurt us. He punched us and kicked us. Once Mum said that he did something to a person! I do remember (but not now)”. He did not provide detail of sexual abuse.
In late 2022 the mother recorded a conversation said to have occurred between herself and Z to the following effect:
“Dad put a phone in my butt twice then he locked it. Or maybe it was a chocolate bar. Then he locked it. It was black.” I say: “Where were you?” [Z] says: “At [the paternal grandfather]’s house. We were in the bathroom. He did it twice, but [the paternal grandmother] called him.”
The mother was unable to engage with the possibility that the matters which had been recounted to her may have been fictional in nature – even when taken to the unlikelihood of the paternal grandmother or the father’s partner being present.
In late 2022 the mother says Z pointed to his “privates” and said “Dad licked me” and “[h]e licked my ballsack”.
In late 2022 the mother says she saw Z making thrusting movements with his pelvis and Z said: “Dad ate his penis and testicles, he ate his bottom and eats poo.”
The mother was cross-examined about whether she believed the literal truth of the statement made by Z. The mother’s evidence suggested that she may have had some scepticism (not previously voiced) about the father having eaten faeces but otherwise accepted that the father had “touched” Z based on what Z had said to her. She was unable to explain why it was that she accepted some part of the disclosure without question.
The mother sets out similar incidents in October and November 2022.
The ICL, in submissions, indicated that there was a high level of violence attached to some of the allegations which involved hitting, punching, the eating of testicles and threats to stab, yet it is not suggested that the children were injured. The presence or absence of injury is not directly material to my assessment of the truth of the allegations but rather to my assessment of the mother’s reaction to the children’s disclosures. There is no discussion by her of whether she observed injuries or inquired with the children about injuries.
In late 2022 a report to the DCJ records Z as having said “[Mr Tanton] […] rubbed his dick all over my eye and put his dick in my mouth.”
In late 2022 the mother attended Suburb S police station with Y. The mother asserts that Y had said to her on that day “Dad put a [sex toy] in my butt in [an overseas location]]. It had a […], fancy place, […]”. The records of the DCJ read:
[Y] said;
“In either 2018 or 2019 on holiday 2 things happened.”
“I was in the bathtub and he pushed me into the water and I couldn’t breath[e]”
“and he got like a fake private part”, “he got a fake penis and put it in my butt”
“It was [overseas]”.
From context this appears to be a repeat of allegations of conduct said to have occurred overseas.
In late 2022 the mother says that Z told her:
136.“he [the father] put my hand in vomit and diarrhoea bucket and wanted to light me on fire, [Ms L] was there, and I was on the grass, the pool place [...].’ The bucket was black. Big black bucket like a cauldron. [Ms L] was there. My brothers were in the house.” “I vomited, dad stuffed me in the toilet, My face. Then he shoved me in the refrigerator until I opened it.” I asked, “Where was the refrigerator?” [Z] stated, “In [Ms L’s] kitchen.” I asked, “What colour is [Ms L’s] kitchen?” [Z] stated “White and bit blackish. [Z] said” “Then Dad threw me on the hard ground and dragged me under his bed.”
(As per the original)
The evidence of the mother includes various conversations with the children in which she is an active participant in the conversation asking questions to confirm details.
In late 2022 there was a notification to the DCJ in respect of Z. The NSW Police record from that notification (having been referred in late 2022) reads:
[Z] (7) and h[i]s brothers have made multiple disclosures of abuse by their father [Mr Tanton] and by their paternal grandfather [Mr CC] [sic]. These reports detail additional behaviours by [Mr Tanton] but also state that [Z] was ‘abused’ and was ‘ganged up on’ by his father, and experienced ‘every abuse in the book’ by [Mr CC] [sic] and his maternal grandmother.
The content of what Z is said to have disclosed is material. The DCJ records state:
It was reported that on […]2022, [Z], disclosed “[Mr Tanton] (father) rubbed his dick all over my eye and put his dick in my mouth.”
On […]2022, [Z] disclosed “they ganged up on me. Three of them. [Mr BB] (maternal grandfather), [Mr Tanton] and [Mr CC] [sic] (paternal grandfather).
They took turns. At [Mr BB’s] [sic] house in the living room. Not cozy. White walls. Brown couches.
[Redacted] asked “what did they do?”.
[Z] stated “abuse me. Every abuse in the book. Doing ‘[…]’.
[Z] demonstrated by poking his buttocks and genital area
…
It was reported that [Z] made a number of disclosures of physical abuse by [MrTanton] that included;
shoved his head into a bucket of vomit and diarrhoea and threatened to light him on fire.
Stuffed his face into the toilet.
Shoved him into the refrigerator
threw him onto the hard ground and dragged him under the bed.
(As per the original)
While the matter was accepted by the Joint Child Protection Response Program (“JCPRP”) for a “coordinated response for sexual assault by a close family member” a decision was made not to conduct an interview. The inherent unlikelihood of the maternal grandfather, father and paternal grandfather taking turns to sexually abuse the child at the home of the maternal grandparents is a matter which the single expert Ms H was concerned ought to have given the mother pause. However, the mother has presented these events to others as having categorically occurred.
In mid-2023 a Helpline Assessment was made by the DCJ which records:
[The mother] is also worried about some comments that [Y] has made. For example [Y] said to [the mother], “oh mum I think you get diarrhoea when you have anal sex.” [The mother] is particularly worried because [Y] previously experienced abuse from 3 men as opposed to the others.
In August 2023 the mother made a note in her phone of an account by Z:
He had a [weapon] and he told me if you tell any of the stuff, I’ve done to you I will [injure] you in the heart and cut your penis off.
Where was it? At his parents house.
Where? Oh, what is that room? That room down the bottom near the bedroom.
What did the weapon look like? You know, like a [weapon].
What colour was it? Grey.
What size was it?
Indicates my arm length.
As long as my arm. A [weapon].
What happened after that?
Nothing
Do you know when it was. My birthday. 2018
Lots of bad stuff happened then. I was terrified.
(As per the original)
The mother has not taken on board the advice given to her about the inappropriateness of questioning her children. As set out above, her questions elicit details and she continues to probe even as the details she receives seem highly dubious given the age of the child at the time of the events he purports to recount.
It is also important to understand why the mother had been counselled not to discuss the events with the children. Ms H’s oral evidence was:
We caution against anyone who actually isn’t involved in an investigative interview of a child not to talk about the abuse because once those waters are muddied children often have, you know, a much greater difficulty in – in accessing their own memories and will tend to rely on what has been said to them, particularly if it has been repeated over and over again and particularly then if there is – if there is a reward reinforcement attached to repeating things over and over again, though it may be that in those intervening years that that is – that is part of a dynamic that has been happening and it would be hard for a young child to – to extrapolate their memories, their actual memories, their actual lived experiences from what has – from the narrative, if you like, that has grown up around the initial disclosures or what might have initially happened.
(Transcript 19 October 2023, p.38 lines 29–39)
The development of a dynamic in the mother’s household fuelled by shared disclosures is explored by Ms H in her report. Ms H asked X about his mother’s view of his father. X volunteered:
215.… “She really doesn’t like Dad because he beat up my big brother. And he hurt us all too. When the little boys stopped going, I didn’t believe it, but then he pulled my towel down and tried to touch my private parts. I told him to fuck off and then I think I went to bed? The next day, he got me some new shoes. I was a bit embarrassed about it so I didn’t tell Mum until last year. (I told her when) my brothers were saying to me, ‘be quiet, nothing happened to you!’ and Mum was in the room so I said well, stuff did happen to me! My mum’s dad also did stuff to me when I was like 4 or 5 but I don’t remember because it was disgusting.”
…
217.… “I kept going to Dad’s because I felt sorry for him and I wasn’t sure what had happened. And Mum told me about all the stuff he’d done and then it happened to me. I don’t want to see Dad again because of what he did to me.”
At the conclusion of the mother’s evidence it was plain that if any of her children come to her with a report that the father has acted in a sexual manner towards them she accepts the veracity of what they say and has made reports and encouraged the children to make reports.
The mother’s evidence frequently contained references to her understanding of the way in which young children make disclosures of sexual abuse. For example, she referred to children speaking in fragments or children being “triggered” or their recall or narrative being affected by trauma. In cross-examination Ms H confirmed that children’s recall of abuse is often fragmentary. However, she did not accept that this explained the incredible narratives which the mother had recorded.
The children were taken to NN Health Service and saw a counsellor at the Sexual Assault Service (“SAS”). The counsellor contacted the DCJ after the first session and indicated according to their records:
1 session with 11 yr old who didn’t disclose anything- and asked [Ms TT] if she could stop him from seeing dad, He was told that this wasn’t her role, but that it was about talking about feelings. He then said “I don’t want to be here anymore” and went outside to tell his mother. Mum got upset with [Ms TT] – [Ms TT] is concerned that mum is trying to have the children disclose to her. [Ms TT] is concerned about where this issue was coming from with Mum.
…
When asked if [Ms TT] were concerned about mother coaching the children she indicated she was, stating that mum appears to love the child but the behaviour when the children are with mum and when they are not, is very different (clingy to mum) and displays normal behaviour when not.
(As per the original)
Following that session the mother wrote to the counsellor, Ms TT, upset about the process (Exhibit 4). The mother’s concern as outlined in her email focused on a failure on the part of the counsellor to make a mandatory report and the counsellor’s having told the mother that her role was to provide the child with emotional support to talk about feelings.
There is other evidence of professionals raising concerns that the mother may be over involved in the children’s narratives about abuse. Ms M recorded in her counselling notes for W, his association between constipation and sexual assault and wrote that she was “struck that it was the same connection that [the mother] had said to me”.
There is a real difficulty in approaching the things which the children have said which arises from the number of times they have been discussed. In Ms M’s notes of her counselling with W she wrote:
Impression – At times, [W] seems full of what both his parents have told him.
He said his father used to throw him in the air when he was one – I said how do you know? He said mum had told him. He said the throwing wasn’t for fun. It was to stop him crying.
The mother was cross-examined about this and said W would have seen a photograph of his father throwing him in the air. This comment misses the point that W is reporting having been told by her. In all other circumstances the mother accepts that if the children say something it must be accurate but here she offers an alternate explanation.
At [87] of Ms H’s report she records that the mother sent an email on 28 November 2022, in which she said “whenever I get slightly strict or firm (with the boys) both [Y] and [Z] have memory recall and they say, ‘I had a memory’ and so we record it.” Ms H concluded that the mother’s “needs are such that she has created a context where the best way to please [the mother] is for the younger boys to make up more and more patently ridiculous stories about what their father has done and said to them.”
Having heard all the evidence, I have concluded that the mother has not deliberately coached the children to make allegations about her father, the paternal grandfather or the father but four related factors have been in play:
(a)The children’s narratives mirror the narrative of the mother and they have been present during many conversations about abuse;
(b)The children and mother gain closeness by the shared experience of abuse which closeness is desired by both the mother and the children;
(c)The children share a collective idea that, to use the single expert’s words in her oral evidence, “there is this big monstrous rapist paedophile amorphous male”, “incredibly dangerous thing” in which only the mother (and not the DCJ or police or the court) will believe and therefore only she can be the protector of the children; and
(d)The children have responded to their mother’s discipline by furnishing her with memories – which refocus her attention on the actions of others.
None of those factors is dependent upon a finding that the mother has deliberately manipulated the children to obtain an end and I do not find that the mother’s actions have been deliberately manipulative. Although, as set out elsewhere, I do think she has from time to time exaggerated the facts of an actual incident to make it appear more serious or significant.
As previously discussed the Court would have considered participation by the state child welfare authorities to have been invaluable in terms of their perspective on a situation which had begun with the allegations of a three year old (in 2010) against the maternal grandfather and had come, 13 years later, to include allegations against the maternal grandfather, paternal grandfather and father acting in concert with the paternal grandmother and Ms L said also to have been present on occasion. I would have been assisted by a DCJ perspective on whether the mother’s actions were considered protective or not. I could not from reading the material produced on subpoena and pursuant to s 69ZW of the Act discern whether or not the DCJ supported the mother in keeping the children from seeing the father (it appeared from time to time that this was the case). I could not discern whether or not they held concerns about the escalation of the allegations and the increasingly fantastical nature of the allegations.
While the court is not required to make a positive finding that abuse has occurred in order to conclude that there is a prospective risk to the children posed by the making of particular parenting orders (M v M (1988) 166 CLR 69; Isles & Nelissen (2022) 65 Fam LR 288) in this case the father asked that I make a finding that he had not perpetrated sexual abuse against his children or any of them. In order to make orders that the children live with the father I agree that I am able to, and that it is appropriate to, positively exclude the possibility that they have been the targets of sexual violence by their father.
In rejecting the proposition that the father has engaged in sexual abuse of the children I have reviewed the above evidence and formed the following concluded views:
(a)Weight is to be attached to the fact that the children did not disclose to third parties (such as the single or the DCJ or their counsellors) that they were abused by their father while making such disclosures to their mother over a long period. I do however accept Ms H’s opinion in oral evidence that this alone would not be sufficient to discount the children’s accounts;
(b)Weight is to be attached to the manner in which the children are subconsciously rewarded for the making of disclosures by increased feelings of closeness to their mother;
(c)Weight is to be attached to W’s failure to make any disclosure about sexual abuse by his father;
(d)I have taken into account the fact that the mother has encouraged disclosures by taking notes and paying attention to the children’s reports from an incredibly young age;
(e)I have taken into account the content of what the children have reported to the mother and the inherent unlikelihood of some of the events they describe (including that involving the maternal grandmother, paternal grandmother and Ms L) occurring; and
(f)I have given weight to the likely subconscious pressure the children have experienced to have the same shared experience of abuse by the father as the mother has recounted to them.
Having concluded that the children have not been the subject of sexual abuse by their father it follows that I have concluded that one of the most significant risks to the children is the psychological harm which flows from being enmeshed in a context where they are making disclosures of abuse which are recorded by their mother. Ms H concluded, and I accept, “regardless of [the mother]’s intent, this type of behaviour is far from being protective; it is rather, deeply psychologically harmful.”

It is necessary to understand whether that risk can be addressed by the mother to evaluate her proposal. The difficulty is that that the mother’s application for no time is predicated on her firm belief that the children are at risk in the father’s care. Ms H’s view was that the risks created by the mother’s creation of an environment which enabled W’s conduct could only be mitigated if:
… [the mother] accepts that her actions – in demonising [the father] in the manner she has and, as part of this process, blurring the boundaries in the parent/child relationship in a manner that an anxious child would experience as confronting and confusing – may be detrimentally affecting [W], and she is prepared to work with professionals on addressing this.
Ms H also raised concerns about Ms Tanton’s capacity to engage with services. Having read material in the tender bundle I accept the conclusion of Ms H that Ms Tanton only appears to want to work with professionals who affirm her view that all of the alleged abuse happened.
Dr F retained some optimism that the mother’s past engagement with therapists did not allow him to entirely discount the possibility that the mother would engage appropriately in the future but it is apparent that he did not have access to the breadth of material which was evidence before me which raises significant issues about the mother’s capacity to tolerate interventions that do not accord with her narrative.
The ongoing risks which accompany the psychological harm identified by Ms H include “developing [or failing to develop] pro-social relationships and …navigating…reciprocal intimate relationships with other people.” Another risk identified by Ms H was the potential loss of their relationship with their mother.
The children’s views
It is uncontroversial that W does not presently want to see and spend time with his father. Given W’s age and his experience of having been assaulted by his father, his views will be given significant weight by me.
The views of the three younger children are more difficult to ascertain and assess. Ms H’s report says:
203.The boys were asked to describe their mother. [Y] said that “she is kind, loving and perfect in every way”. When the report writer queried how any adult could be perfect, [Y] said that he couldn’t think of any ways that his mother wasn’t perfect. [Z] then said, “And she protects us from [W] who can be a SCREAMING BANSHEE (yelled loudly for effect) and also Mum protects us from [Mr Tanton].”
204.The report writer asked [Z] why they needed to be protected from [Mr Tanton]. He said that, “[Mr Tanton] hurt us. He punched us and kicked us. Once Mum said he did something to a person! I do remember (but not now).”
205.[Y] said that, “I remember how he touched us in places that it’s not nice to.” [Z] said, “Yeah, I remember that too! I can’t talk about it though.” When the report writer probed gently for more details, [Y] said “I don’t really remember the time and day. [Mr BB] also did it too. He’s really mean.” [Z] said, “Yeah, [Mr BB] abuse me too!”
…
207.The report writer asked the boys how they [sic] mother feels about their father. [Z] said (randomly), “We don’t like [Ms L], because she’s married to the bastard!” [Y ]said, “He’s like Voldemort. Mum HATES him. She told us that he abused her too. So that makes us hate him too!” [Z] chimed in, “YES The report writer asked if they would like to spend time with their father again. [Y] said that, “It would be VERY BAD for us to see him again.” [Z] said that, “I would DIE if I had to see him because he’s as bad as the Joker!”
(As per the original)
When the report writer spoke to X she recorded in part:
217.[X] said that, “I kept going to Dad’s because I felt sorry for him and I wasn’t sure what had happened. And Mum told me about all the stuff he’d done and then it happened to me. I don’t want to see Dad again because of what he did to me.”
218.[X] said that, “Mum would be sad if we saw Dad because he’s a monster. I don’t ever miss him. I wish I had a different Dad who didn’t do all that stuff.” At this point, [X] was making no eye contact at all and was talking to the floor. The report writer commented that he seemed very uncomfortable and perhaps anxious. [X] said that, “I don’t like talking about things. It’s weird.”
(Emphasis in original)
It is plain that the children have been exposed to a narrative in the mother’s household where it is accepted that the children have been abused. The mother accepted that she had empathised with the children and explicitly indicated that she could understand their difficulties as she too had been the subject of abuse. X’s comments to the family report writer ground her conclusion that, placed within this narrative and exposed to this dynamic, X’s disclosures must be viewed with caution both because of their fantastical nature but also because they are made in a context where he was the sole voice in that household who was not joining the chorus against their abusers.
It is a serious and significant thing to make orders (as the father and ICL seek) contrary to the express views of older children. I accept that the children will be both sad and potentially angry by orders which separate them from their mother and their brother.
In approaching the children’s views it is important to understand how they have evolved as this is material to the weight which I can properly place on them. It is instructive to consider even the views of W and how they have changed to understand why that which the children express is likely to have been a product of the dynamic in the mother’s household as opposed to a considered reflection on the nature of their relationship with their father.
In the notes of W’s counsellor Ms M in March 2019 W told his Ms M: “he had “an okay” weekend at his father’s and it made him confused. He said when things were good, he felt confused as to whether they would stay that way, or whether they would get bad again.” This is a nuanced reflection by W which recognises that he has experienced both good and bad times in his father’s care.
The notes of Ms M contain a recurring theme around W’s desire for his father’s attention. In March 2019 when W had thoughts of hurting himself, they were accompanied by the thought that his father would have to come and see him in hospital. W was able to reflect on liking it when his father came to watch him play sport. The mother reported at about this time that W had called her “cruel” for preventing his younger brothers from spending time with the father.
Until the middle of 2020 some of the children were seeing the father on a regular basis. A combination of the incident between W and the father in mid-2020, W’s deteriorating mental health, an escalation in allegations (in particular allegations about the father) and covid restrictions saw time between the father and children effectively cease on 2 November 2020.
While I am obliged to consider the children’s views, I am not obliged to make orders in accordance with them particularly where to do so would involve the children on an ongoing basis in a situation which I have found is harmful for them.
Mother’s parenting capacity
In the single expert report of Ms H she said at [291] that if the mother:
…is unwilling or unable to see that the boys are doing what she wants them to do rather than disclosing any actual harm, she is either mentally ill – and this needs to be psychiatrically assessed – or she is self-interested to the point where she is willing to subject her children to ongoing emotional harm in order to be seen to ‘win’ the battle against [the father].
(Italics in original)
After release of that report, the mother was psychiatrically assessed by a single expert psychiatrist, Dr F. Dr F concluded:
4.5 [Ms Tanton’s] adherence to the belief that her children have been abused by their father does not appear to have all the qualities of a delusional belief but is better described as an overvalued idea (Veal, D. 2002).
4.6 Overvalued ideas can be associated with a range of psychiatric conditions (including obsessive compulsive disorder, depression, psychosis), but can also occur in isolation and not as part of a psychiatric illness. In cases where the overvalued idea is associated with a primary psychiatric diagnosis the treatment of the primary condition can sometimes reduce the pervasiveness of the overvalued idea. When the overvalued idea appears to be an isolated phenomenon unconnected with any other primary psychiatric diagnosis, there can still be some benefit from psychotherapy (cognitive behaviour therapy), but only if there is a motivated and somewhat insightful patient, who at least recognises the destructiveness of the overvalued idea on their wellbeing and relationships.
4.7 It is highly unlikely, in my opinion, that [Ms Tanton] would even begin to contemplate the possibility that her views are based on false recovered memories, or that she is subtly encouraging the continuing production of new false memories until after the Family Court matters are resolved, and I am not confident that her views will shift even at that time.
…
4.9.…In my opinion [the mother] is not suffering from a mental illness, but I am also not convinced that she is consciously manipulating her children in order to “win the battle against [the father]”. The development of an encapsulated set of beliefs (that her children were sexually abused by their father and that their memories are to be believed) is not, in my opinion, a consciously dishonest manipulation.
4.10In summary, [the mother] is not suffering from a mental illness as described in the DSM–5, but in the context of an acrimonious divorce and against a background of revelations of sexual abuse of her children by her father, there has evolved a defensive and mutually reinforcing environment between [the mother] and her younger children. In this environment, the continuing disclosures of recovered false memories of sexual abuse by their father secures and strengthens the relationship between [the mother] and her children, allows her to feel empowered in her Family Court battles and is most unlikely to be resolved at any time before the conclusion of the Family Court matters. Furthermore, it would be difficult to address even after court matters are finalised because no treatment could proceed without [the mother] acknowledging the possibility that some, if not all, of the memories were false.
In essence, Dr F’s unchallenged evidence posits that the absence of any mental health diagnosis also precludes mental health treatment as a method of addressing the issues. The report also suggests that it is unlikely that the mother will abandon the concept that the children have been abused and accordingly, the Court could expect that her approach to the children’s relationship with the father and her approach to anything which the children say in the nature of a disclosure will be the same as has occurred to date.
The mother attached to her affidavit a letter from Dr UU dated April 2023. That letter is expressed to be a psychiatric report. Dr UU was not on affidavit and not made available for cross-examination. It would appear from the report that Dr UU is someone who the mother has consulted including in March 2023. His report is in very similar (sometimes identical) terms to an earlier report dated November 2021 which is also in evidence. Dr UU also concludes that the mother is not suffering from a mental illness.
The report of Dr UU assumes the history provided by the mother to be accurate and it does not appear he has had access to any collateral material. I can attach no weight to Dr UU’s observations about the children or the father and little weight to his observations of the mother in circumstances where his evidence cannot be tested.
The mother attached a report of Ms VV, clinical psychologist, to her affidavit. Ms VV was not on affidavit or made available for cross-examination. Ms VV included amongst the strategies she has adopted with Ms Tanton “validation” and “support”. Ms VV does not appear to have had access to any information outside the history provided by the mother.
I do not doubt that the mother is motivated and well-intentioned in her efforts to obtain psychiatric and psychological support for herself in the difficult circumstances in which she finds herself but it does not appear to be support which causes her to question the conclusions she has reached about the harm and potential harm to her children nor to understand and appreciate the dynamic which has been productive of increasingly incredible disclosures by the children.
The mother has rejected support offered to her by outside organisations. NN Health Service employee, Mr WW, wrote to the principal at the children’s school in mid-2021 and said:
[A colleague] and I had a lengthy phone call with [the mother] yesterday where she advised that she was not interested in engaging with our service for a therapeutic intervention at this point in time. [The mother] was very clear that her main priorities are the upcoming court matter and getting respite for self-care.
There is also a pattern which emerges from reading the notes of persons engaged to assist the family. The mother will make a representation about how the children feel which will be at odds with the children’s own report. An example is contained in Ms M’s counselling notes for W in February 2019: “I asked if [W] had spoken with his father this morning he said he had but that it hadn’t upset him. ([The mother] told me it had upset him).”
A further example can be seen in the notes of the SAS counsellor’s, Ms TT’s, interactions with the mother in therapy being that Ms TT stated “that mum appears to love the child but the behaviour when the children are with mum and when they are not, is very different (clingy to mum) and displays normal behaviour when not.”
It is plain that the mother has experienced difficulties shielding the children from her own conflict with the father and from the dispute between them. The mother gave evidence that the children were aware of each of her court attendances which produced anger and emotion in the children. W reported to Ms M that he was worried about his mother’s financial situation, she had lost her job and was suing her employer. He told Ms M his father did not pay enough child support. W was 12 when he was having these discussions with Ms M and ought not have been exposed to the dispute in this way. W told Ms M “he doesn’t worry about Dad and [Ms L] – he worries mostly about mum and whether she will be okay.” Unsurprisingly, Ms M noted that he was “somewhat parentified” (March 2019) and later when discussing his siblings Nintendo and internet use “sounded very parentified” (May 2019).
The mother has had some (understandable) challenges providing for the children’s competing needs after separation.
The mother is estranged from her biological family and since mid-2020 has not facilitated the children’s time with the father. The mother did not rely on affidavits from any person at trial who indicated that they provide either practical or emotional support to the mother in her care of the children.
The DCJ records indicate that the mother has struggled with the parenting role from time to time. In late 2022 there is a record which reads: “[t]here are some concerns around the current emotional state for [the mother], hence why the services are coming together with her to come up with a plan to support [the mother] and her boys.”
In a similar vein, the DCJ records for the Helpline Assessment dated early 2023 contain the following observation:
There are concerns that [W’s] behaviour is escalating and that [the mother] may not be able to provide adequate control and possibly scared of [W] [redacted]. If the circumstances continue without change, this may reasonably have substantial and demonstrably adverse impacts on the children’s psychological wellbeing.
This is a chronic situation since the police records from early 2021 raised similar significant issues relating to repeated domestic violence by W towards the mother and the mother’s desire to protect him (as opposed to acting in a manner designed to protect herself and the younger children).
In more recent times the records which have been provided by the DCJ raise concerns about issues with the mother’s housing stability and escalating concerns about her capacity to manage Y’s behavioural issues.
In mid-2023 the mother and children were staying in accommodation and then later moved into emergency housing. In that context, the mother was said to have been concerned about escalation in Y’s behavioural difficulties described as follows:
[The mother] in particular, was worried about an incident at the park on Monday where [Z] had said to [Y], “I can beat you.”
This triggered [Y] to experience visual images, where he later said that he saw black and white film style memory of [the father] attacking him. [Y] then went to throw a scooter at another child at the park, and he was noted to be violent and angry. [The mother] said she made a lot of attempts to calm [Y] down but was not successful. [Y] later ripped his own shirt in anger and he was escalated for 2 and a half hours before he was able to be calmed down. [Y] later said he can’t control it, stating “I’m sorry, I’m sorry.” [The mother] was concerned about [Y’s] behaviour being unpredictable as to when he will become triggered and [redacted] states [Y’s] behaviour around his siblings could be a bit of a concern.
This is the only third party report which refers to Y experiencing visual images. The mother described these episodes as having been like Y was in a trance. She did not report having consulted medical professionals about these episodes.
The records produced by P School show poor school attendance by both W and X.
I am not concerned that the mother is deliberately neglecting the children but rather that she is unable to effectively control W and hence unable to protect herself and the younger children. She has from time to time acted to protect W at the expense of her own safety and that of the younger children. She has been unable to prevent W from engaging in anti-social conduct, criminal conduct, drug and alcohol use and violence. She has been unable to ensure adequate school attendance.
Father’s parenting capacity and allegations that father has been physically violent to the children
The mother submitted that the father poses both a risk of sexual harm to the children (based on their disclosures to her) and a physical risk of harm to the children based on his approach to the children’s discipline which has included physical discipline and, in the case of the incident in mid-2020, a common assault.
The father’s case is that W’s rejection of the father arose to resolve the conflict between loyalty to both parents. The father says he was the one to try to place boundaries and to reject poor behaviour – including from time to time raising his voice in response to it. W has found it easier to remain with his mother who, the father submits, is less likely to impose discipline.
I accept that as between the parents the father was more likely to call W to account for poor behaviour and this led to conflict. However, it cannot be overlooked that the father did engage in conduct which was criminal.
The agreed amended facts to which the father plead guilty read:
3.After dinner, the Victim’s mother made her way to the downstairs section of the house. A short time later, the Accused approached the Victim’s mother and told her that he had just found some weed in the bedroom of the Victim and he was going to dispose of it…
4.The Accused and the Victim’s mother decided to call the Victim down to speak to them. The Accused show the Victim the bag that the marijuana had been in and asked him to explain the contents. The Victim started crying and screaming ”give me my fucking bag back”… “that was mine, I fucking paid for it”… “you fucking owe me as I bought it” and “give it back you cunt, it doesn’t belong to you, where is it?”
5.The Accused told the Victim he had tipped the marijuana out. The Victim then ran past the Accused and his mother, running outside towards the Accused’s car. He picked up a rock and said “I’m going to kill your fucking car unless you give it back, it’s fucking mine.” The Accused ran outside and told the victim to get away from his car. The Accused ran around the car and the Victim ran back inside the house, throwing the rock into the garden on his way up the stairs to the house.
6.Once inside, the Victim, locked himself inside a downstairs room. The Victim was angry and was yelling out to the Accused “You’re a fucking gay cunt faggot” … “give it back you faggot cunt” … “it’s fucking mine, give it back, it doesn’t belong to you.” The Accused tried to open the locked door to speak to the Victim, however eventually sat down on a day bed a short distance away. The yelling continued for approximately 15 minutes. After approximately 15 minutes the Accused has said through the door to the Victim “Why don’t you come out here and say that.”
7. After receiving no response from the Victim, the Accused went upstairs to check on the other three children. A short time later, he decided to go down and check on the Victim. The Victim came out from the downstairs room and walked past the Accused who was standing in the hallway. The Victim has thrown a hat towards the Accused, bumped him with his elbow as he walked past and said “give it back you fucking cunt”. The Accused has grabbed the Victim’s hoodie in the Victim’s chest area and pushed him backwards up against a large canvas artwork that was hanging on the hallway wall. The Accused yelled “don’t you dare speak to me that way, how dare you speak to me that way.”
8.The Victim was in shock and was finding it hard to breathe because of the grip the Accused had.
9. The Victim started to struggle and the Accused, still holding the Victim’s hoodie, struggled to keep his balance. They stumbled through the doorway to the Victim’s bedroom, landing awkwardly on the bed with the Victim on his side and the Accused on top of the Victim. The Accused yelled “you are a horrible child.” He then pushed himself up, held out his fist and said “why shouldn’t I knock you out?”
…
11.The Victim’s mother has approached the Accused and said “Stop, stop, get out now.” The Accused has let go of the Victim and said “I’m sorry, I lost my cool.” When the accused left the Victim’s bedroom he apologised to the Victim. The Victim closed his bedroom door and began kicking it, causing it to come off its hinges. As this occurred the Victim’s mother has said to the Accused “[Mr Tanton] you need to get out of the house right now.” The Accused then left the house, along with one of his other sons ([X]) who was staying at his house that evening…
(As per the original)

In late 2021 police records suggest W was seen on CCTV accessing a car belonging to an unknown third party. The police attended at the mother’s home a short time later and spoke to the mother.
In late 2021 W was arrested after he attempted to assault X, Y and Z with garden implements and the mother had to intervene. W was taken to AE Centre. A mental health assessment was undertaken at that time. W was not able to be released to the mother because of the Apprehended Violence Order (“AVO”) and juvenile justice were unable to contact the mother.
In early 2022 the police were called following an incident at the mother’s home. I COPS record reads:
…between […]. The [W] had a meltdown for unknown reasons. The accused was sparring with his younger brother [Y], which got out of hand. The [mother] fearing the accused would harm [Y] in the process of sparring, she intervened by placing herself in between [W] and [Y]. The accused in anger threw [toys] at the [mother]. The [toys] did not make contact with her. [W] has attempted to reach his younger brother in anger to possibly assault him. In defence the [mother] attempted to shield [Y] by putting herself in between the two. [W] has jumped onto the back of the [mother] in an attempt to grab [Y]. [W] has been pushed off the back of the [mother]. In defence the [mother] has used her knee to strike the accused in the thigh as advanced on the [mother] and [Y]. The [mother] has been pushed [W] back. She subsequently called police.”
W’s actions were clearly in breach of the existing AVO but the mother told the police that she did not want W to be charged. W was charged. Police undertook regular checks of W’s compliance with bail conditions including curfew in the following months.
Police records record further incidents in the mother’s home in the following days and weeks.
In early 2022 the mother told the police:
[W] has flown into a rage for an unknown reason. Whilst in this rage, [W] has picked up the mother[’]s bag containing a [computer] […] [W] has put the bag on the floor and has stood on it causing significant damage to the screen.
A short time later policed records note that W according to the mother’s report:
[W] has flown into a rage for unknown reason. [W] has picked up a […] [sic] bowl and smashed utilising [sporting equipment].… [W] has also menaced the [mother] utilising [sporting equipment] and a “[home-made weapon]”. [W] had been swinging these around causing the [mother] fear. Whilst [W] had the [home-made weapon] in his hands, the [mother] has grabbed in the middle of [it] and twisted it from [W’s] grasp disarming him. After disarming [W] the [mother] has disposed of the [home-made weapon].
In April 2022 the mother told police that she and W were driving and during an argument W started flicking her in the face with the elastic from a face mask at which time the mother warned him that if he did not stop she would take him to the police station. That prompted W to kick the windscreen of her car causing a crack on the passenger side. The mother told W to get out of the car, which he did, and the mother left.
A short time later the mother reported to police that W had picked up a bowl during an argument and held it above her head as if to hit her. He then “[threw] the bowl with force onto the floor, causing a crack to appear in the bowl, approximately 20 cm in length and a chip to fall from the bowl.”
In early 2022 W was frustrated during a video game. He was playing with his brother and angry because his brother was winning. The mother described to the police W as having been come a little “bashy” as a result. The mother went to take the younger children from the home and W picked up a rock and motioned to throw it at his mother. He did not throw it but as she went to drive away with the younger children in the car W jumped on the car bonnet as the car entered the roadway. Police arrested and charged W later that day.
It is unclear the extent to which the DCJ was aware of what life was like for W’s younger brothers in this household during this period.
In early 2023 the records produced by the DCJ record that an unnamed person heard an incident between W and Z. The record reads:
On […]2023, [W] (14) could be heard [redacted] physically attacking [Z]. [W] could be heard using swearing words. [Redacted] could hear a few large slaps and one huge slap which made [Z] hysterically cry. Following this [Z] was crying for 10–15 minutes. [Redacted] often hear[s] [W] physically abusing [Z].
[Redacted] believes that [W’s] slap would have physically injured [Z].
[Redacted] nearby are petrified from [W]. [W] [has] previously written threats of harm to [redacted]. [Redacted] does not know whether what the letter would say specifically. [Redacted] believes that [W] has been in and out of juvenile in the past.
…
[W] is physically abusive. [Redacted] believes that because everyone is scared of [W], it would be too difficult to control [W] at home. [Redacted] does not believe that [the mother] has control of [W].
[Redacted] is concerned about comments [redacted] heard from [W] on […]/2023. [W] was heard telling [Z] to put his pants down in the presence of [the mother]. [W] made comments that he was sexually abused when he was younger. [W] then told his mother, “I got sexually abused, why can’t I do it to them?” [Redacted] mentions that there is an ADVO protecting the children from their father and there is no contact. [Redacted] believes that the children may have been sexually assaulted by their father. [Redacted] is aware that [the mother] was present in the room at the time but is concerned about the possibility that if [the mother] is not around and what will happen to [Z] and the other children in the house.
(As per the original)
The DCJ, following this report, “screened out” this matter on the basis that “[p]revious reports have indicated that [the mother] was protective in reporting the sexual abuse towards the children.” There is absolutely no indication from the material returned in response to the requests made pursuant to s 69ZW of the Act that the report was ever raised with the mother or with W. When the mother was faced with the report in evidence, she denied having been present during such an incident. Further, she indicated that she did not accept it had occurred, did not accept that a third party would have been able to hear the incident occurring and speculated that perhaps someone who supported the father’s case had made the report. This seems inherently unlikely since the (unnamed) reporter told the DCJ that the children “may have been sexually assaulted by the father”. It is inherently improbable that if the father, or someone who supported his case, were the reporter they would have said this to the DCJ. In addition, it was not put to the father in cross-examination that he had made this report nor asked anyone to do so.
When considering the potential unacceptable risk to the children of remaining in the mother’s household with W this report to the DCJ is highly significant and there does not appear to be any follow up action taken by the DCJ in respect of the report – certainly there could not have been any which involved the mother – unless she has been untruthful about this issue with the Court.
In mid-2023 police approached W who was with other young people who told the police they had been smoking marijuana. The police believed that the young people were selling marijuana and seized $… from one of them (not W).
In mid-2023 police were concerned that a group of people which included W were intoxicated and had set fire to toilet paper from a public toilet and were considering charges of behaving in an offensive manner. At the time of the incident the young people were detained by police on suspension of arson/malicious damage. The young people were taken to Suburb AQ Police Station. Police had earlier that day given W and other young people a direction to move along when they were seen in a different area in the proximity of a bong and were searched. No drugs were found on W.
Some time later in the evening W was involved in an incident with other young people which involved an assault and stealing. The incident involved students from W’s school. Some days after that, W was suspended from school. The mother does not discuss this in her affidavit material. While the mother indicated she was unaware of police involvement it is inherently improbable that the school did not make the mother aware of the police involvement given the school were aware that outside agencies were involved.
In fact the mother’s affidavit filed on 7 October 2023 says:
144. Since late 2021 [W] has been able to manage his mental health challenges by pursuing all opportunities, my ongoing love and care and support given to him. [W] has been involved in:
i. Counselling/mentoring with GP [Dr AF] monthly, [Mr AG] weekly, fortnightly, then monthly
ii.group work, with [AH Organisation], links to learning, pathways to tool, [watersports]
iii.       sporting with school, [club] and the [AH Organisation]
iv.       support services with links to learning, [AJ Organisation]
v.medical appointments with [AK Health Service] practise [sic] and DCJ
vi.       sports and trainings with [club] and [AH Organisation]
vii.      community support, with [AJ Organisation]
viii.several support groups with [AH Organisation], [AJ Organisation], school, [club]
145. I cannot remember the last time [W] was involved with the police. It must have been late 2021, early 2022. [W] has now settled down significantly. I observed that since 2022 [W] is eating better, sleeping better, going to school regularly, he became more mature and confident.
146. [W] had an Apprehended Domestic Violence Order, awarded against him in the [Suburb AL] Court…
The above police material which relates to W is largely uncontroversial and some of the recent police involvement was plainly unknown to the mother, or at least, that was her evidence. It was disingenuous of her to indicate that W’s behaviour had settled when she was at least aware of his suspension from school (and the events which caused it) and conceded in cross-examination that she was not aware of his whereabouts at night and was not able to in effect control him.
One of the factors which raised significant concern for the Court and prompted the renewed requests to the DCJ to intervene related to the safety of the younger children (and the mother) in the household with W. The DCJ has appeared to support the mother’s parenting of all four children while aware that she was seriously struggling to cope and to act protectively of herself and her younger children. The children have been the subject of their brother’s violence and watched their mother being injured. The above history grounds the conclusion of Ms H which I accept that “the biggest single, chronic source of trauma in the boys’ life is their older brother.” (Emphasis in original)
Ms H suggested that W would respond poorly to orders which saw his siblings live with the father. But also gave evidence that the arrangement whereby the siblings were all living together was not functioning in the best interests of W’s siblings. Separation of the siblings in this case is seen as having disadvantages but, having regard to the evidence as a whole, plainly indicated as in the best interests of the three youngest children.
Nature of children’s relationship with mother
It is clear that the children love and are loved by their mother. They described her to the single expert as “perfect”. However, the relationship between the children and their mother is complicated and, the single expert opined, harmful. Ms H concluded:
290.…The children have a relationship with their mother that is based on inventing stories and finding spurious reasons to hate and fear their father as a means of attaining and retaining closeness to their mother. It is a highly dysfunctional parenting system…
The children’s interviews with Ms H raised significant concerns about how the process of making allegations about their father has functioned to strengthen their relationship with the mother.
Nature of children’s relationships with father
At present the relationship between the children and their father is fractured. In W’s case the fracture is so significant that the father recognises it is not possible to seek orders for W’s care. However, it is plain from a reading of Ms M’s notes that W clearly desired a relationship with his father and when he ceased spending time with his father following the assault that he did not settle but rather, as opined by Ms H, “spiralled out of control for the next 18 months”.
The father asked that I note: “[t]he Father loves and misses [W] very much and is hopeful that they will be able to re-establish their relationship (with therapy or otherwise) having regard to [W’s] wishes and needs”. It is my view that it is appropriate to make a notation in similar terms. The function of the notation is for there to be a clear statement of the father’s desires and intentions – not for the father – but in the event that the orders are a document which W encounters then he will be able to read that his father desires restoration of their relationship.
Ms H indicated her view that the children actually do not know how they feel about the father:
They don’t know what dad is like. They have – they’ve not seen him since 2020, three years – coming up to three years now. And – well, more for the younger boys, because that was 2018. So five years. He is – he is virtually a stranger to them. He’s still their dad. He’s a stranger. But he’s a monstrous, fearful stranger.”
(Transcript 19 October 2023, p.56 lines 10–14)
In a similar vein, Ms H refers in her report about first meeting with Y and Z:
200.There was some general rapport building conversation but before this, when the report writer asked them if they knew why they were there, they said, (in unison) “it’s to talk about [Mr Tanton] but he’s not our Dad, because he divorced our Mum!” The report writer had to explain that in fact, [Mr Tanton] is still their father. [Z] seemed amazed by this, saying “really?” repeatedly.
(Emphasis in original)
The nature of the children’s present relationship with the father creates significant challenges for the children but ones which it is necessary for them to face with a view to a safe and improved living situation and better mental health outcomes.
THE ORDERS
As a consequence of the above findings, I cannot be satisfied that the children would be safe in the mother’s household where the risks to them would appear to be:
(a)A real and serious risk of physical violence from their brother;
(b)A real and serious risk of exposure to family violence perpetrated by their brother towards their mother;
(c)A real and serious risk of psychological harm from being exposed to a narrative which includes allegations of sexual abuse by the father and repeated attempts to have them provide disclosures to third parties; and
(d)A real and serious risk of psychological harm from being separated from one parent.
I have given consideration to the mother’s proposal that the children live with her and spend no time with the father because even though I am not, as set out above, satisfied that he poses a risk of physical harm to the children I am concerned about the viability of moving three children who are implacably opposed to spending time with the father into his full-time care. This is likely to be significantly challenging for the children and the father.
Also, Ms H explained in her report that one way to deal with the risk posed by the children’s mother’s conduct is, ironically, to place the children in her sole care in order to “take the oxygen out of the fire” as there “will be no need for the boys to keep on ‘remembering’ things about their father because he would have been safely dealt with”. Ultimately there are three factors which weigh against that proposal. The first is the fact that it would deprive the children of the possibility of developing (at least in the medium term) an improved relationship with the father which will be of value to them in the medium to long term and will leave them with an unchallenged view that their father is, to quote the mother’s comments to Ms H, a “rapist paedophile”. Secondly, it will not address the risk posed by them remaining as full-time members of a household in which their brother is a risk of potential physical harm to them and their mother. Thirdly and finally, Ms H said even if the father were removed from the equation by an order for no time, she:
…would be worried that there would be something else. That there would always be something else, some way that the boys had to demonstrate their ongoing loyalty, love and commitment to their mother and I don’t know what that might look like if it – if it wasn’t making abuse allegations and that that – as I said, that’s something that I personally have not come across professionally, have not come across and I – I would be worried about – about what might happen without being able to articulate what that might look like.
(Transcript 19 October2023, p.41, lines 41–47)
Ms H concluded: “the mother has no capacity whatsoever to support the children having a relationship with the father, but I think the father does, in reverse, have the capacity and – and did say to me that he wants the boys to have a relationship with their mother” (Transcript 19 October 2023, p.62 lines 44–47). The placement of the younger children in the care of the father at least allows for the possibility that the children will have the benefit of a relationship with both parents.
As a consequence of the above matters, it is necessary to make orders which place the three younger children in the full-time care of the father.
I am satisfied that it is not in the best interests of the three younger children that their parents have equal shared parental responsibility.
I have considered the timing of implementation of this order very carefully. The children should move to their father’s care immediately. It is sufficiently close to the end of the school year that he should notify their schools and explain that they will be absent for the remainder of the school year with his permission (and following court proceedings). He will then be at liberty to enrol them in new schools for the 2024 school year. The father gave evidence that he intends to enrol Y and Z at AN School for the remainder of primary school and thereafter AO School for high school or, in the alternative, AP School. The father gave evidence he intends to enrol X in AO School for the remainder of high school. I am highly aware of the evidence of Ms H about the fact that remaining in their existing schools and local area is likely to undermine the success of transition to the father’s household, particularly in circumstances where X currently attends the same school as W and where the mother gave evidence that both X and W are harassed at their current school because, according to the mother, “all of the kids” at that school “know what [W and X’s] father had done”.
I am also conscious that the change in household has an urgency from the children’s perspective: firstly, because of my findings about the physical risk posed by their brother, secondly, because the psychological risk that the dynamic in the mother’s household poses and, finally, because their ages mean that action taken sooner rather than later is more likely to be successful. The holiday period will give an opportunity for uninterrupted time with the father and Ms L and the implementation of the psychological supports they propose for the children.
I need to consider what, if any, time the children should spend with their mother. The father’s evidence was to the effect that he supported the children having a relationship with the mother. He sought an order that there be no time between the children and the mother for a period of 12 months to permit the children to settle in his care. The ICL sought an order that the period of no time be six months.

Ms H was not able to comment on precisely how long would be required to allow the children to settle in the father’s care. Ms H expressed her view as it being necessary that there be no time “until they have firmly established a healthy and functional relationship with their father and stepmother.”
I have to balance the children’s close relationship with their mother against the need to protect them from psychological harm. In circumstances where the single expert was unable to be specific about the time period for the suspension, I have taken the view that a period of six months is appropriate because the children will inevitably miss their mother with whom they have a close relationship and the period of suspension should be no longer than necessary to allow them to settle. If they have not settled within six (6) months that in and of itself would be a concern. For those reasons I will order that there be no time between the three youngest children and the mother for a period of six months. I am not able to predict what the children’s and the mother’s emotional state will be – these both being factors which would ideally feed into the decision about the period for which time is suspended. Accordingly, I must place trust in the parent with whom the children live to assist the children, with expert guidance, to commence supervised time.
The order the father sought about the commencement of time and frequency of time was more open ended than the proposal of the ICL. The father’s proposed order did not specify a frequency. The ICL proposed order was initially once per month. The father did not specify a duration. The ICL said two hours. While the mother, understandably, did not put forward an alternate proposal she sought as much time as possible in the event the children did not live with her. I have determined that the evidence supports an order with more certainty – predominantly to let the older children know when they might expect to see and spend time with their mother. That takes the decision away from the father with a view that he is not then seen by them as the gatekeeper. The close (albeit problematic) nature of the children’s relationship with the mother persuades me the time needs to be more frequent than monthly and I will order that it take place fortnightly.
The supervision will function to protect the children against the mother engaging in inappropriate conversation with the children when they are reunited. It is, to use Ms H’s words, to keep the children “emotionally safe”. The supervisors can monitor to make sure that the conversation does not function to undermine the children’s relationship with the father or his partner. The supervision will also provide some protection against the possibility, identified by Ms H, that W will sabotage this situation.
It will be necessary to have a recovery order lie in the registry to aid in the recovery of the children in the event that there is non-compliance with these orders, including if the children were to leave the father’s care. It is appropriate to avoid the necessity for the parties to relitigate.
At the expiration of the time when the children will have no contact with the mother, time will be reintroduced. The father seeks that the time be supervised. The ICL agrees that the time in the first instance should be supervised but the orders proposed by the ICL see a move from supervised time to unsupervised time.
It is necessary to appreciate the role and function of the supervision in this specific case to evaluate whether the evidence supports a transition to unsupervised time. There are two potential risks to the children which supervision is designed to ameliorate: the first is that if the children were to spend time with the mother without supervision, it is inevitable given the history and their ages that the transition to living with their father would fail. The mother does not support the children spending time with the father.
Ms H asked the children specifically how the children’s mother felt about their father. Ms H recorded: “[Z] said (randomly), “We don’t like [Ms L], because she’s married to the bastard!” [Y] said, “He’s like Voldemort, Mum HATES him. She told us he abused her too. So that makes us hate him too!”
The mother believes the father poses a risk to the children. The dynamic which exists between the children and the mother (as described in detail by the single expert, Ms H) would undermine the children’s living arrangements and their stability. The second reason is that all the evidence suggests that the there is a risk to the younger three children posed by their older brother which the mother is not equal to meeting. Supervision will protect them from this risk as well.
I recognise that one of the significant disadvantages of the proposal of the father and ICL is that the children will be separated from their mother and their brother for a period. Notwithstanding the difficulties discussed the children will find this separation difficult. However, this is a case in which there is no perfect solution and so orders must be made notwithstanding that they carry with them disadvantages.
The ICL says that after a 12 month period the time between the children and the mother could be unsupervised. Again, it is difficult to find specific evidence to support the transition to unsupervised time or its timing. There is no evidence to suggest that the effluxion of time will lessen the mother’s conviction to persuade her to engage differently about these issues with the children. This is also not a case where the children growing older is a factor which tends towards the removal of supervision. On the basis of the evidence in this case I could not comfortably conclude that the children will have reached a position of stability in the care of the father such that their living arrangements are not vulnerable at a specific time. Much will depend on how the transition works, how the therapeutic process works and whether the children can come to understand that their father does not pose a risk to them. It follows that I could not be confident that it is appropriate to make any order which transitions from supervised time to unsupervised time.
That does not inevitably mean that time will be supervised throughout the children’s minority. The father will remove that requirement if he forms the view that to do so would best meet the needs of the children at that time and the orders I propose to make do not prevent that.
On the basis of the evidence, I expect that if the therapeutic process and the children’s lived experience of the father and life in the household with the father and Ms L is successful, the father will change the arrangements and provide additional time with the mother because of his express commitment to the children’s welfare. By the same token, if, contrary to the schema established by the orders I will make, the children experience instability in their placement it may be that supervised time will appropriately continue.
The father sought a series of injunctions pursuant to the provisions of s 68B of the Act. Those injunctions are in aid of the orders for time in so far as they are designed to ensure that the children have the opportunity to settle in the care of the father and, to that end, the mother is restrained from approaching certain locations where the children may be present. I accept it is necessary in the interests of these orders operating as a whole that such injunctions be made. I note that while the interim orders were in place which provided for the children to spend time with the father by collecting them from school, the mother both collected the children from school and kept them home from school. I am satisfied that she should be prevented from approaching places where the children may be from time to time.
No party sought an injunction designed to prevent communication between the younger three children and the mother. However, the making of such an injunction is entirely consistent with the schema of the injunctions sought by the father and the ICL to protect the children’s transition into the father’s care. There would be little point in making an order that provided that there be no time between the children and the mother and thereafter supervised time if the children and the mother were permitted to communicate without restriction.
The father sought a more broad ranging injunction which related to publication of information and/or photographs of the father and his partner including on social media and would, if made prevent the mother from giving interviews or providing material relating to the father or his partner. I was not taken to any specific evidence in the case by which I could conclude that the mother has published information about the father or his partner on social media or provided interviews or photographs. I accept if she had then such action would be unlikely to operate in the best interests of the children given the parties’ dispute. But, absent evidence, I am not prepared to grant an injunction. That must not be read as any indication that the mother is free to provide information or photographs since it is important that all parties remain conscious of the restrictions imposed by s 121 of the Act and conscious of the overriding interest in protecting the children from any adverse attention.
The father and ICL sought that documents, including the orders and reasons for judgment, be provided to various third parties. I accept that it is appropriate that those assisting the children or parents therapeutically have access to the reasons for judgment and orders. Any proposed supervisors are likely to find the reasons for judgment relevant to their role so I am satisfied the orders and reasons should be provided to any supervision agency. I am less convinced that the children's school should have the reasons for judgment. I am not satisfied that the evidence makes provision of the reasons necessary so I will order that the schools may have the final orders.
The ICL Minute of Order contained an application that the father pay the ICL’s costs in a modest sum. Counsel for the ICL did not make any submissions about the application at the conclusion of the matter. The discretion to depart from the usual rule permitted by s 117(2A) of the Act is broad. I am conscious that these proceedings have been costly and that the father will have the financial responsibility for the children, for their therapy and for supervision. The Court is grateful for the substantial assistance of the ICL and counsel but on this occasion it is appropriate that there be no order as to costs.
These are difficult circumstances for all four children and both parents and extended family members. It is not possible to make orders which will satisfy all of the parties but the evidence has persuaded me that it is possible to make orders which are in the best interests of the youngest three children.

I certify that the preceding two hundred and seventy-seven (277) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.
Associate:
Dated: 6 December 2023

File number:	SYC 8004 of 2021
Judgment of:	CHRISTIE J
Date of judgment:	6 December 2023
Catchwords:	FAMILY LAW – FINAL PARENTING ORDERS – Unacceptable risk – Where the applicant father asserts that the children are at risk of serious psychological harm in the care of the mother arising out of her fixed view that the children have been sexually abused by him – Where the respondent mother’s asserts that the children are at risk of serious and psychological harm including sexual harm in the father’s care – Finding that the children have not been sexually abused by the father – Where the children are at a risk of psychological harm in the mother’s care – Order for change of live with parent – Order for the children to spend no time with their primary carer for a period of 12 months.
Legislation:	Family Law Act1975 (Cth) ss 60CC, 68B, 69ZW, 91B, 117 121
Cases cited:	Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97 M v M (1988) 166 CLR 69; [1988] HCA 68
Division:	Division 1 First Instance
Number of paragraphs:	277
Date of last submission:	30 October 2023
Date of hearing:	13, 16-20 October 2023
Place:	Sydney
Counsel for the Applicant:	Ms Kennedy
Solicitor for the Applicant:	Pigdon Norgate Family Lawyers
Counsel for the Respondent:	Mr Loukas
Solicitor for the Respondent:	City Lawyers and Consultants
Counsel for the Independent Children’s Lawyer:	Ms Dalrymple
Solicitor for the Independent Children’s Lawyer:	Farah Lawyers

SYC 8004 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR TANTON Applicant
AND:	MS TANTON Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	6 DECEMBER 2023