Tatari & Tatari (No 3) - [2024] FedCFamC1F 445

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tatari & Tatari (No 3) [2024] FedCFamC1F 445

File number: MLC 12557 of 2021

Judgment of: CARTER J

Date of judgment: 1 July 2024

Catchwords: FAMILY LAW – PARENTING – Where the mother alleges the father has sexually abused the children – Where the father has not spent time with the children since July 2022 – Where the paternal grandmother has been joined to the proceedings – Whether the father presents an unacceptable risk to the children – Where the mother has failed to comply with orders for supervised time and family therapy – Orders made for a gradual change of residence into the father’s care supported by the paternal grandmother and family therapy – Interim orders made for the children’s time with the mother.

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 67ZC

Cases cited:
AMS v AIF (1999) 199 CLR 160

Bielen & Kozma (2022) 66 Fam LR 59

Fitzwater & Fitzwater(2019) 60 Fam LR 212

Isles & Nelissen (2022) 65 Fam LR 288

Johnson & Page (2007) FLC 93-344

Loddington & Derringford (No 2) [2008] FamCA 925

M v M (1988) 166 CLR 69

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) FLC 93-405

N & S & the Separate Representative (1996) FLC 92-655

Oberlin & Infeld (2021) 63 Fam LR 88

Division: Division 1 First Instance

Number of paragraphs: 442

Date of hearing: 6 – 8 February, 14 – 15 March 2024

Place: Melbourne

Counsel for the Applicant: Mr Cash

Solicitor for the Applicant: Mayek Legal

Counsel for the Respondent: Ms Brennan

Solicitor for the Respondent: Resolve Conflict Family Lawyers

Counsel for the Independent Children's Lawyer: Ms Tenace

Solicitor for the Independent Children's Lawyer: Patford-Smith Legal Services
ORDERS

MLC 12557 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS TATARI

Applicant

AND:
MR TATARI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CARTER J

DATE OF ORDER:

1 JULY 2024

THE COURT ORDERS THAT:
1.The paternal grandmother be joined as the second respondent to these parenting proceedings.

Interim Orders
Children’s time with the mother
2.Until further order, after the children have had three sessions with the family therapist in accordance with Order 10 herein, the children spend professionally supervised time with the mother for a period of not less than three hours each week at times agreed between the parties and failing agreement, each Monday from 4.30 pm to 7.30 pm.

3. For the purposes of the children’s professionally supervised time with their mother:
(a)the mother and the Independent Children's Lawyer agree on the professional supervisor;
(b)the mother and father forthwith do all acts and things necessary to engage the family with that professional supervisor;
(c)the paternal grandmother shall provide the children for supervised time when they are in her care, and the father shall provide the children for supervised time when they are in his care; and
(d)all supervised time shall be at the mother’s sole expense.

4. The matter be listed for mention on 7 October 2024.
Final Orders
5.The father have sole parental responsibility to make decision regarding the health and education of the children X born 2015, Y born 2017 and Z born 2020.

6. In the exercise of this parental responsibility:
(a)the father shall inform the mother of any proposal relating to the children or any of them by email to the mother’s nominated email address;
(b)if the mother wishes to comment on the father’s proposal, she shall respond to the father within seven days;
(c)upon receipt of any comment by the mother, the father shall give consideration to her views;
(d)after the father has considered the mother’s comments or seven days have passed without the mother responding to the father’s proposal, as the case may be, the father may make a decision and advise the mother by email to her nominated address as soon as practicable.

7.The father be permitted to provide a copy of the orders to any person necessary to give effect to the decisions made pursuant to Order 5 herein and these orders are to be taken as authorisation for the father to make that decision.

Living Arrangements
8.The children live with the paternal grandmother from the date of these orders until the completion of the spend time arrangements set out in Order 18 herein.
9.Following the completion of the time between the father and the children set out in Order 18 herein, the children live with the father.

Family Therapy
10.The paternal grandmother, father, and children attend upon Mr E or his nominee (“the family therapist”) at times as directed by the family therapist for the purposes of supporting and assisting the paternal grandmother and the children in re-establishing the children’s relationship with the father and transitioning the children into the father’s care.
11.The first appointment for the children with the family therapist is to occur on the earliest available date following the making of these orders.
12.All appointments involving the father, the paternal grandmother or any of the children and not the mother, shall be at the father’s sole expense.
13.In the event the family therapist invites the mother to participate in the family therapy, the mother is at liberty to attend, and shall meet the costs of any appointments in which she is the sole participant.
14.The mother and father shall share equally in the costs of any family therapy sessions in which the mother participates together with:
(a)the father; and/or
(b)the paternal grandmother; and/or
(c)any of the children.

15.The paternal grandmother and the father follow all lawful and reasonable directions of the family therapist regarding the attendance upon them for the appointments including making the children available to attend.

Provision of information to therapists
16. The father is at liberty to provide to the family therapist:
(a)a copy of these orders and Reasons for Judgment dated 1 July 2024;
(b)the Magellan Family Report dated 7 March 2024;
(c)the affidavits of Dr B;
(d)the letter of Police Officer F dated 28 February 2023; and
(e)the clarifying emails with Police Officer F dated 22 January 2024.

17.The mother is at liberty to provide a copy of the documents set out in Order 16 to any treating psychologist with whom she engages.

Children’s time with the father
18.Prior to the children living with the father pursuant to Order 9 herein, the children spend time with the father as follows:
(a)for a period of four weeks:
(i)on Tuesdays and Thursdays from 4.30 pm to 7.30 pm; and
(ii)Sundays from 12.00 pm to 4.00 pm;

(b)thereafter, for a further period of four weeks:
(i)on Tuesdays and Thursdays from 4.30 pm to 7.30 pm; and
(ii)from Saturday 10.00 am until Sunday 7.30 pm;

(c)thereafter, for a further period of four weeks:
(i)from Tuesday 10.00 am or at the conclusion of the school day until Thursday 7.30 pm; and
(ii)from Saturday 10.00 am until Sunday 7.30 pm;

(d)thereafter, for a further period of four weeks:
(i)from Tuesday 10.00 am or at the conclusion of the school day until Thursday 7.30 pm; and
(ii)from Friday 10.00 am or at the conclusion of the school day until Monday 10.00 am or at the commencement of the school day.

19. For the purpose of the children’s time with their father pursuant to Order 18:
(a)time pursuant to Orders 18(a), (b) and (c) shall be supervised by the paternal grandmother;
(b)time pursuant to Order 18(d) shall be unsupervised; and
(c)the children’s first period of supervised time pursuant to Order 18(a) shall commence after the completion of two family therapy sessions.

Restraints
20. The parties, by themselves, their servants and agents be and are hereby restrained from:
(a)denigrating the other party or any member of their family and/or household to the children or any of them or in the presence or the hearing of the children or any of them and shall not allow any other person to do so;
(b)discussing parenting disputes and/or issues, the intervention order proceedings or these proceedings with the children or any of them;
(c)contacting or communicating with the children save for as provided for in these orders;
(d)committing family violence or exposing the children or any of them to family violence;
(e)using physical discipline on the children or any of them; and
(f)consuming alcohol in excess in the presence of the children or any of them.

21. The mother be restrained from:
(a)removing or attempting to remove the children from the person whose care they are in pursuant to these orders; and
(b)from attending the children’s school unless the father has provided his prior written consent for her to do so.

22.The mother forthwith leave the Court building and precincts upon the pronunciation of these orders.

Other matters
23.The father and paternal grandmother complete the Tuning in to Kids Program as soon as practicable following the making of these orders.
24.Save for in the case of an emergency, the parties communicate with each other using the “Our Family Wizard” co-parenting application and to give effect to this Order, the parties each download and register an account with the application within seven days of the Order and thereafter maintain their registration at their own expense.
25.Each of the parties shall, as soon as practicable, advise and keep the other parties informed of:
(a)any serious illness or medical emergency involving the children or any of them whilst in their care including all details regarding the injury, illness, hospital location, medical practitioners and treatment required;
(b)any specialist medical practitioners or allied health professionals for which the children or any of them are attending upon; and
(c)their own contact details (or change of) including email addresses, residential addresses and mobile numbers.

26. Each party:
(a)authorise any school, day care or other educational institution attended by the children or any of them to discuss their progress with the other parties and to obtain copies of all newsletters, notices, reports, school photographs and all other information and documents ordinarily distributed to parents; and
(b)authorise any medical practitioner or allied health professional attended upon by the children or any of them to communicate freely with the other parent and provide all information relating to that child’s care.

27.The parties be at liberty to provide a copy of these orders to the professional supervisor, and any medical practitioner, educational institution or extracurricular activity provider attended upon by the children or any of them.

AND THE COURT NOTES THAT:
A.The matters that remain on foot are:
(i)final determination of the children’s time with their mother; and
(ii)final determination of the parties’ respective s 79 of the Family Law Act 1975 (Cth) property claims.

B.Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

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

The parties in this matter do not agree as to the appropriate parenting arrangements for the parties’ three children, X, who is nine, Y, who is seven, and Z who is three.
The parents separated in May 2021. At that time, they made arrangements between themselves for the children to spend time with the father. That included overnight time and FaceTime communication.
When the mother issued these proceedings – on 12 November 2021 – she proposed the parties have equal shared parental responsibility for the children and that they spend unsupervised overnight time in their father’s care. Interim orders were made, by consent on 20 December 2021 providing for equal shared parental responsibility. Those orders further provided for X and Y to spend overnight time with their father each alternate weekend, with Z spending daytime only with his father as he was very young. In addition, mid-week time was ordered.
On 20 June 2022, further Court orders were made by consent for all three children to spend alternate weekends, and every Wednesday afternoon and evening with their father.
It is the mother’s case that from 11 July 2022 first Y and then X began reporting incidents of sexual abuse perpetrated on all three children by the father. It is asserted by the mother that the children described the abuse as having commenced in around early 2022. The mother terminated the children’s time with their father. They have not had any time or communication with him since July 2022.
The Sexual Offences and Child Abuse Investigation Team (“SOCIT”) investigated the allegations, including interviewing Y and X. X was subjected to a physical examination by Dr G of the H Medical Service in July 2022.
In early 2023 the police determined there was insufficient evidence to charge the father.
On 26 July 2023, orders were made after an interim defended hearing before a Senior Judicial Registrar for the parties to engage in family therapy with Ms J and for the children to spend supervised time with the father.
The mother did not comply with those orders. She did not complete the application form for the supervised service. She did not book an appointment with Ms J, the family therapist.
On 21 August 2023, the father brought contravention proceedings against the mother. The mother did not attend at the contravention hearing on 27 September 2023, which proceeded undefended. On that day the mother was found to have breached the July 2023 orders by not making the children available for supervised time and by failing to engage with the family therapist.
The Contravention Application was adjourned to 28 September. On that day the mother did attend. It was determined she did not have a reasonable excuse to breach either order. The mother provided assurances to the Court that she would schedule an appointment with Ms J and an appointment was then booked to take place in late 2023.
On 4 October 2023, the father’s solicitors were advised that on 2 October 2023 the mother had cancelled the appointment scheduled.
On 31 October 2023, a Senior Judicial Registrar delivered reasons and made further orders in relation to the Contravention Application. Pursuant to those orders the mother was required to enter a bond. The bond conditions required she be of good behaviour and comply with parenting orders. She was further ordered to submit her application to the supervisor by 3 November 2023 and to schedule the next available appointment with Ms J. She was also ordered to pay the father’s costs of $17,390.
The mother has continued to disregard the Court orders. The mother did not book another appointment with Ms J. She never provided any application forms to the contact supervisor. Nor did she attend Court to sign the bond.
The mother then failed to attend at the Family Report interviews scheduled to take place on 3 October 2023.
The orders sought by the mother
The mother holds an unshakeable view that all three children have been abused by their father, and that he poses an unacceptable risk to them. It is her case there should be no time or communication between the children and their father, or any member of the paternal family. It is her strongly held view that any time – even supervised time – would be deeply traumatising for the children. In addition, the mother seeks an order that she have sole parental responsibility for the children. She does not regard the father, or any member of his family, as necessary in the children’s lives. The mother did not at any time formulate a proposal for the children’s time with their father in the event I determined he did not pose an unacceptable risk.
The orders sought by the father
The father strenuously denies having abused any of the children in any way. In light of the mother’s insistence that he has abused the children and in circumstances where the mother has severed all ties between the children and their paternal family and is unable to contemplate the children spending even supervised time with him, he says it is in the children’s best interests for there to be a change of residence.
At the conclusion of the hearing the father sought an order that his mother be joined to the proceedings. He also sought final orders inter alia as follows:
(a)the children be placed in the care of the paternal grandmother, with the changeover to occur at the Melbourne Registry of this Court;
(b)the father, paternal grandmother and children attend for family therapy to re-establish the children’s relationships with their father;
(c)after two sessions with the family therapist, or as is otherwise recommended by the therapist, the children commence spending time with their father, supervised by the paternal grandmother, with the time to gradually increase over a period of around 18 weeks such that the children would then live with the father; and
(d)the mother have supervised time with the children on a weekly basis after the first three family therapy sessions have occurred. Provided the mother has attended upon a psychologist for at least six months, the children’s time with her then progress to unsupervised visits, each week for three hours.
The father also sought sole parental responsibility for the children. He proposed X and Y remain at L School until the end of 2024, which is the school they are currently attending. That is close to the mother’s residence, but some distance from the father’s home in Suburb M.
For the reasons that follow, I am satisfied:
(a)the father does not pose an unacceptable risk to the children;
(b)the children’s best interests will be met by orders that move them into their father’s care via the paternal grandmother, and supported by appropriate family therapy; and
(c)it is premature to consider final orders for the mother’s time with the children. Regrettably, the matter will need to return to Court once the children have transitioned into their father’s care, and family therapy commenced.
THE EVIDENCE
The Mother
The mother was not a compelling witness. Her recall of the children’s allegations, her conversations with them, what she reported to the police and when, was at times confused and at times contradictory. She was highly negative about the father and the paternal family, and unable to consider the children spending any time with their father, or any member of his family. The mother’s evidence at the outset of the hearing was that irrespective of the Court’s findings as to unacceptable risk, she would not make the children available to see their father under any circumstances – although towards the conclusion of her evidence she softened a little on that position. The mother maintained that by preventing time between the children and their father, she was acting protectively.

In her oral evidence the mother confirmed her view that the father has absolutely nothing to offer the children “but lifelong trauma”.[1] She said there were no other possible explanations for the children’s statements to her, other than that they have all been subjected to sexual abuse, including penile-oral, penile-anal, and penile-vaginal penetration on multiple occasions over a number of months.
[1] Transcript 6 February 2024, p.24 line 9.
In his oral evidence Dr B said it was his view that the mother believed what the children said. However, he did not agree the mother could not conceive of a relationship between the father and the children. Having had the opportunity to hear the mother’s evidence at length it is apparent to me that she was unable to contemplate the children spending time with their father. She remained unable to articulate a position in the event the Court found the father did not present an unacceptable risk to the children.
The Father
The father was an impressive witness. He answered questions directly. He made sensible concessions. He did not criticise the mother. He acknowledged he showered with Y and that included lifting him up to clean him properly. He further acknowledged that as Y was four years old the father would have to wash his bottom, to make sure he was properly cleaned. The father denied showering with X and said she was old enough to attend to her own hygiene. He strenuously denied all allegations put to him regarding sexual abuse of the children.
The father appeared to be very keen to re-establish his relationship with the children. He was able to reflect on the situation from the perspective of the children, and impressed as child focussed, and willing to work closely with appropriately qualified experts – at his expense – to support his reintroduction to the children.
The material relied on
The mother relied on:
(a)her Amended Initiating Application filed on 30 December 2023; and
(b)her affidavit filed on 30 December 2023.
An affidavit of the maternal grandmother filed on 5 February 2024 was initially sought to be relied upon by the mother. However, the mother resiled from relying on the maternal grandmother’s affidavit on the fourth day of the hearing. That was in circumstances where the affidavit had not been sworn through an interpreter.
The father relied on:
(a)his Amended Response to an Initiating Application filed on 12 January 2024;
(b)his affidavit filed on 12 January 2024;
(c)the affidavit of Ms C Tatari, the paternal grandmother, filed on 19 January 2024; and
(d)the affidavit of Ms N, the paternal aunt, filed on 19 January 2024.
The paternal grandmother was cross-examined. I generally accepted her evidence. However I have concerns she does not fully understand the likely impact on the children of the proposed change of residence. She struggled to acknowledge it would be traumatic for the children to be removed from their mother’s care. She asserted the mother’s relationship with X prior to separation was not a good relationship, and that the mother was jealous of the father’s positive relationship with X.
The paternal grandmother is no doubt a devoted grandmother. However, she was unable to articulate any practical strategies she might need to employ to manage with the complex behavioural issues the children are likely to demonstrate following a change of residence. The Family Report writer who wrote the Magellan Family Report made similar comments about the paternal grandmother’s “limited understanding of the complexity of the situation”.
Notwithstanding those concerns, I am satisfied she will do all she can to provide support and assistance to the children as they move into her care and then transition into their father’s care.
The paternal aunt was also cross-examined. I accept she is willing and able to provide the father and the paternal grandmother with support and assistance in the care of the children.
I also had regard to the following reports:
(a)the psychological evaluation report of the mother prepared by Dr B, clinical and forensic psychologist, dated 24 April 2023;
(b)the psychosexual report of the father prepared by Dr B, dated 24 April 2023;
(c)the addendum report prepared by Dr B, dated 18 December 2023; and
(d)the Magellan Family Report prepared by Ms O, Family Report writer, dated 7 March 2024.
The father also sought to rely on the Family Report prepared by Ms P dated 5 June 2023 and her addendum report dated 5 February 2024. For reasons to which I will shortly turn, I can put little, if any, weight on Ms P’s reports.
In addition to the expert reports, I also had the benefit of reports provided by the Department of Families, Fairness, and Housing as follows:
(a)the Magellan Report dated 2 February 2023; and
(b)the s 67ZA Response dated 18 December 2023.
The audio recording of the informal interview and the three Video Audio Recorded Evidence tapes (“VAREs”) were admitted into evidence together with an informal transcript prepared by the father’s lawyers. All parties agreed the transcript was substantially accurate.
I have also taken into account additional documents which were tendered in the usual course of the hearing and marked as exhibits.
Expert reports
Family Reports
Ms P’s reports
The parties initially engaged Ms P, on a private basis to prepare a Family Report in May 2022.
On 26 July 2023 an order was made by a Senior Judicial Registrar for the parties and children to participate in a Magellan Family Report. The appointments were booked for 3 October 2023. The mother failed to attend on 3 October and did not make the children available for that report.
The matter then came before me on 29 January 2024 for the first day of the hearing. On that day I was advised that arrangements could be made for Ms P to interview the parties and children on 31 January 2024 at the Registry and release an updated report shortly thereafter.
Orders were then made for the mother to deliver the children to the Melbourne Registry on 31 January, and the trial was adjourned to 5 February 2024.
The mother did bring the children as ordered. However she removed the children from the child minding centre prior to them being interviewed by Ms P and did not return with the children after lunch.
The matter was re-mentioned before me on 1 February 2024. Orders were made that day that the mother deliver the children to Ms P’s rooms at 9.00 am on 5 February and that the mother be restrained from removing the children pending Ms P completing her interviews and observations.
The mother complied with those orders, and the family was interviewed by Ms P on 5 February 2024.
The trial then commenced before me on 6 February 2024, following the parties’ receipt of the updated report prepared by Ms P overnight.
In Ms P’s first Family Report dated 5 June 2022 she referred on several occasions to Z and his interactions with and relationship to his father. At the trial, I was informed the mother said Z was not present at the interviews, and accordingly Ms P’s descriptions of Z’s engagement with the father were fabricated. The mother also took issue with a number of other observations made by Ms P in both reports, including the recounting of her observations of X’s interactions with the paternal grandmother that were apparently observed on 5 February 2024.
Given the mother’s recollection, Ms P had been asked to confirm whether or not Z was present at the observation session conducted in 2022. On 1 February 2024, Ms P sent an email to my chambers and to the parties’ practitioners and the Independent Children's Lawyer that read as follows:
Dear All,
I wish to clarify information in relation to [Z].
During [the mother’s] interview yesterday when discussing [Z], she claimed that I had not met or observed [Z] as she did not bring him to the previous family report observations, contrary to my recall during the interview yesterday.
Upon re-reading my first family report this morning to clarify, my report does indeed describe [Z's] observations with both parents during my prevoius [sic] assessment.
I apologise for the confusion.
That email was brought to my attention on 7 February 2024 and read out in Court. That email did not actually clarify whether or not Z was present at the interview in May 2022. I requested Ms P be contacted again to confirm whether or not Z was present.
At the end of the day on 7 February 2024 I was advised by counsel for the father that Ms P had been contacted. Ms P confirmed that Z was not present at the interviews and observations in May 2022.
On 8 February 2024, after re-reading Ms P’s first Family Report, I advised counsel that Ms P’s multiple references to Z being present in May 2022 seemed to me to be a fundamental error. It called into question the credibility of all Ms P’s observations, across both reports, particularly in circumstances where those observations were challenged by the mother. I had also re-read the earlier orders and came to understand that the Court had previously ordered a Magellan Family Report, and it was that report that the mother had previously failed to attend. I had mistakenly believed it was the appointment for an updated report by Ms P which the mother had failed to attend on 3 October 2023.
In all the circumstances I determined the trial should be halted and a Magellan Family Report ordered. The parties’ evidence had by that time been completed. I further determined to conclude the evidence of the remaining witnesses, save for the experts, and the matter was then adjourned, part heard to 14 March 2024.
I am very much indebted to Court Child Services who were able to arrange for a Magellan Family Report to be prepared at short notice. The Family Report writer interviewed the family on 16 February 2024, and prepared a report dated 7 March 2024.
The significant inaccuracy in Ms P’s earlier Family Report is deeply unsatisfactory. Ms P recorded at the outset of the report that she conducted observations between the mother and all three children and the father and all three children on 27 May 2022. Under the heading ‘Z’, Ms P recorded that Z was not interviewed as he was too young “however, he was observed with each of his parents”. Specifically, Ms P wrote:
93.The children were visibly excited to be reunited with their father with [Z], at […] months of age, running to his father and enjoyed being cuddled and carried by him.
…
94.[X] appeared to be more verbally engaged with her father than her mother, while the two (2) boys, [Y] and [Z], appeared to be more physical in play with their father than they had been with their mother.
No explanation was provided to the Court as to how Ms P came to include those references in her report when Z was not present. She was not cross-examined.
It seems to me that I can put no weight on Ms P’s observations in either report, save in relation to matters observed by her with which the parties agree. I am very much aware that the father has privately funded the costs of both reports. That is a very significant financial burden for him to bear.
The Magellan Family Report
The Family Report writer completed a Magellan Family Report on 7 March 2024. After receiving and considering the report, neither the mother’s nor the father’s counsel required to re-open their case.
The Family Report writer reported the mother impressed as a poor historian. She said of the mother:
17.… her recollection of events was piecemeal, especially regarding details of alleged family violence during the relationship and the alleged child sexual abuse. [The mother] used hyperbolic language when describing the relationship with [the father] however when pressed for details, she provided limited detail or claimed she had forgotten. Her perspective of [the paternal grandmother] … was also negative; however, she was less articulate when explaining her reasoning in this regard …
The mother presented similarly at the hearing before me.
Conversely, the Family Report writer described the father as thoughtful, pragmatic and child focussed. She observed further:
18.… Despite the difficult content, he was able to reflect on the situation and provide responses that were considered, and child focussed. He avoided making disparaging comments when discussing [the mother] and was supportive of her relationship with the children, regardless of the outcome of these proceedings. When recalling events during and after the relationship, he was able to provide details and reference events in a linear manner ... He was open to engaging with supports to ensure the success of any reintroduction.
These observations accord with those I made at trial of the father.
The Family Report writer opined that the children’s reports of abuse were “significant and compelling” – although she noted that the children’s presentation did not appear to align with the gravity of the alleged offences being reported. She opined the possible explanations for those reports included that the children had been exposed to concepts relating to child sexual abuse, or that the children had been subjected to sexual abuse.
The Family Report writer was required to give evidence. I do not accept the submissions made by counsel for the mother in closing that I should give no weight to her report in circumstances where she proposed supervised time should occur even if the father was found to pose an unacceptable risk to the children. I note that recommendation was justified by the Family Report writer on the basis that, provided the risks to the children could be mitigated, there may be some benefit to the children being able to repair the rupture in their relationship with their father, and to make some sense of their experiences.
I found the Family Report writer’s evidence to be articulate, well-reasoned and of significant assistance to the Court.
Dr B
Dr B prepared a psychological evaluation report of the mother dated 24 April 2023, a psychosexual report of the father dated 24 April 2023 and an addendum report dated 18 December 2023 after Dr B had reviewed the VAREs.
Unusually, Dr B was the last witness to give evidence, to accommodate his schedule.
I will refer to Dr B’s report and his evidence later in these reasons.
LEGAL PRINCIPLES: UNACCEPTABLE RISK
There is no separate category of sexual abuse parenting cases – and my central duty remains, as in all parenting cases, to make orders in the children’s best interests.
It is the mother’s case that I can – and should – make a positive finding that the father has subjected the children to sexual abuse.
I am not under the same duty to resolve the disputed allegations of sexual abuse as would be a Court determining the matter in criminal proceedings. The High Court in M v M (1988) 166 CLR 69 made that observation at 76. Their Honours also considered at 75-76, that it would be an error to treat an allegation of sexual abuse as the paramount consideration, as in all proceedings under Part VII of the Family Law Act 1975 (Cth), the Court is required to “…regard the welfare of the child as the paramount consideration”.
In M v M at 76, their Honours noted that a finding on a disputed allegation of sexual abuse “will naturally have an important, perhaps a decisive, impact on the resolution of that issue” but the resolution of an allegation of sexual abuse “is subservient and ancillary to” my determination of what is in the best interests of these children. I must not be “diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse”; M & M at 76. Rather, their Honours said the Court must determine whether the father presents an unacceptable risk to the children.
In the subsequent decision of the Full Court in N & S & the Separate Representative (1996) FLC 92-655 at 82,713-4, Fogarty J said:-
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
The Full Court in the more recent case of Isles & Nelissen (2022) 65 Fam LR 288 clarified that in determining whether there is an unacceptable risk the Court must:
(a)first consider the allegations of abuse and determine on the balance of probabilities whether or not the abuse occurred; and
(b)secondly, the Court must then consider whether, moving forward, there is an unacceptable risk to the children.
That second step involves a consideration of where on the continuum of chance – between remotely possible, and highly possible – the risk for these children lies, and whether “the risk [is] so potent it cannot be tolerated: it is unacceptable”: Austin J in Fitzwater & Fitzwater(2019) 60 Fam LR 212 at [139].
These are two separate enquiries.
ASSESSMENT OF THE EVIDENCE OF ABUSE
To assess the allegations of abuse my enquiry includes consideration of the sorts of matters referred to by the Full Court in Johnson & Page (2007) FLC 93-344. That includes considering:
(a)what are the nature of the events alleged to have taken place?
(b)who has made the allegations and to whom have they been made?
(c)what level of detail do they involve, and over what period of time?
(d)what are the effects on the children?
(e)what is the basis of the allegations?
(f)are there satisfactory explanations for the allegations other than abuse?
There was much confusion in the mother’s evidence as to what the children reported to her, and when, and what she did and did not report to police and to medical professionals. I will now set out the chronology, as best as I understood it.
The allegations made in July 2022
X and Y last spent time with the father on 8 to 11 July 2022. The mother did not make Z available on 10 July 2022 in breach of the orders that where then in place. None of the children have spent time with or communicated with their father or any member of the paternal family since that time, save in the context of the preparation of Family Reports.
In her trial affidavit the mother deposed that the older children returned to her care on 11 July 2022 and Y “started making statements that ‘dad touches my bum’ and ‘does not wash his hands afterwards’”. The way the affidavit is drafted suggests that statement was made by Y after returning to the mother’s care on 11 July 2022. That timeline is inconsistent with the mother’s mid-July police statement.
Mother’s police statement of mid-July 2022
The mother attended the Suburb Q police station in mid-July 2022 and made a statement. In that statement the mother said her concerns began about a month earlier, when Y told her that his father was “touching his bum”. She said he told the maternal grandmother the same thing. She said Y mentioned that the father did not wash his hands – which “caught my attention” and “sent a red flag off”. She said, “[Y] then kind of stopped mentioning it”. This suggests that Y had made the statement about his father touching his bottom on at least two occasions preceding mid-July 2022 – and then no longer talked about it.
In her oral evidence the mother conceded that as at July 2022 Y still required the assistance of an adult when toileting and showering to adequately clean himself. She did not inform the police of that fact. Under cross-examination, the mother did not accept Y could have been referring to his father appropriately assisting him showering or toileting, or that there could have been an innocuous explanation for Y saying that his father touched his bottom. It is unclear why the mother regarded the comments by Y as being a cause for concern in circumstances where the mother herself touched Y’s bottom to clean him after toileting and whilst showering. In her oral evidence she said if the father had been assisting Y in toileting, he would have washed his hands.

In the police statement, the mother said she “began noticing differences in [Y]” and his “demeanour changed” and she began “piecing things together”: that is, the mother connected Y’s comment about his father touching him on the bottom with her assertion that Y’s demeanour changed, that he had had a very red anus for the last two months and that Z also had red irritation at the end of his penis. In her oral evidence the mother advised she saw that Y had a very red anus as she had to wipe his bottom after he had a bowel movement.
In the police statement the mother did not detail what Y’s asserted demeanour changes were, other than to say he started biting his nails.
According to her police statement these matters were sufficient to cause the mother to become “extremely worried” for the children and prompted her decision to not send Z for time with the father on 10 July 2022. It is difficult to understand the basis of the mother’s suspicion and concerns as at 10 July 2022 – and her concern at that time appears to reflect a degree of hypervigilance on her behalf.
The mother did not depose to having witnessed any demeanour changes in Y in her trial affidavit. What she did depose is that she “noticed the two boys pulling each other’s pants down and trying to put their fingers in each other’s bottoms”. The mother deposed she asked them where they learned to do that and they said their father taught them. It is unclear when these behaviours and conversations were said to have occurred, or how often. The way the mother’s trial affidavit is drafted suggests these observations and conversation occurred on 11 July 2022 after Y returned from spending time with his father.
The mother repeated these allegations of the boys putting their fingers in each other’s bottoms to Dr B. However, the mother did not mention this asserted behaviour or the children’s explanation for it in her mid-July 2022 police statement.
In her trial affidavit the mother also said – seemingly as part of the same conversation in which the boys said their father taught them to put their fingers in each other’s bottoms – that Y told her his father lifted him up in the shower and “licks his penis and bum”.
According to the mother’s police statement, it was on 11 July, after collecting Y from kindergarten, that he said “my dad has a shower with me”. The statement recorded that “upon [the mother] questioning him more” Y said his father “lifts him up and licks his bum and […]”, which is a Country DD word for penis.
The mother deposed she then went to Suburb Q SOCIT – in mid-July 2022 – to report the alleged abuse.
On that day Y was informally interviewed by the police and then underwent a VARE.
There are a number of matters that require comment regarding the alleged disclosures of or around 11 July 2022 and the mother’s contemporaneous police statement:
(a)as noted, despite deposing in her trial affidavit that the mother had – at least on 11 July 2022 – seen the boys pulling each other’s pants down and trying to put their fingers in each other’s bottoms, the mother’s police statement does not include any reference to these alleged events. This omission is remarkable, particularly as she deposed that she asked the children where they learned this behaviour and they said their father taught them. In her oral evidence the mother explained that omission by asserting she was “in shock”;[2]
(b)Y also did not make any statement in his informal interview, or the VARE conducted in mid-July 2022 that corroborated the assertion that their father taught the boys to pull each other’s pants down and put their fingers in their sibling’s bottom;
(c)in her trial affidavit the mother does not explicitly refer to Y mentioning his father touching his bottom on any occasion prior to 11 July 2022. That is different to the police statement, which says Y told her that about a month prior to making the police report;
(d)in her trial affidavit the mother did not refer to noticing differences in Y’s demeanour. She did not suggest the children became reticent to visit their father, or that X said she did not want to go to her father’s at any time prior to 11 July 2022;
(e)notwithstanding the mother’s reference to Y having a “very red anus for approximately the last two months”, and asserting his father touched his bottom, the mother did not take Y to a medical practitioner until August 2022;
(f)in her oral evidence – and in her police report – the mother said Y made the statement that his father showers with him when she picked him up from kinder on Monday 11 July 2022. According to her police statement, it was only “upon questioning him more” that Y said his father lifted him up and “licks his bum and [penis]”. That is, the statement was not made spontaneously, but after the mother had ‘questioned him more’. I do not know what additional questions the mother put to Y that prompted him to make the statement that his father licked his bottom and penis. The mother acknowledged she was very concerned at that time – and that Y would have known she was concerned;
(g)in the mid-July 2022 police statement the mother asserted Z had “red irritation at the end of his penis” and that he would cry and try to avoid the mother touching it when she changed his nappy. In her trial affidavit the mother deposed that the father would “rub [Z’s] penis until it was red raw”. The mother agreed that she stopped Z spending time with his father on 10 July as he could not speak and she “didn’t trust him being in his father’s care”.[3] Notwithstanding these alleged concerns, the mother acknowledged that she did not take Z to a doctor regarding her concerns until October 2022. At that time, the doctor advised the mother that Z had a medical condition. In her oral evidence the mother said when she took Z to the doctor in October 2022, she believed his red penis was as a result of sexual abuse (which had occurred – on her chronology – some three months earlier), but she accepted the diagnosis. She said Z may have had the condition in July 2022 as well, but maintained the redness to Z’s penis was caused by “some type of sexual abuse…rubbing hard, pinching – things of that nature”.[4] Later in her evidence she maintained she believed that Z’s red penis was evidence of “physical trauma”;[5] and
(h)the mother did not provide any reasonable explanation for her delay of several months in obtaining medical care for Z’s “red raw” penis.
[2] Transcript 6 February 2024, p.41 line 39.
[3] Transcript 6 February 2024, p.36 line 29.
[4] Transcript 6 February 2024, p.60 lines 26–29.
[5] Transcript 7 February 2024, p.18 line 10.
Y’s informal interview
In mid-July 2022, the police conducted an informal interview with Y. In the course of that interview, and after Police Officer R had established some rapport with the child, Y was asked what he likes about his father. He responded, “[h]e’s touching my bum”, which he said happened once, when he was having a shower. Y said it occurred when he was in the shower with his father, who was also showering, and they were both naked. He was asked if it made him feel bad, and he said yes, but provided no further details that suggested anything untoward had occurred between himself and the father.
The mother then took the children off for lunch. In her oral evidence the mother asserted she did not discuss any of the allegations of abuse with Y.
Y’s VARE mid-July 2022
After lunch, Police Officer R conducted a VARE with Y. Again, time was taken to establish rapport. Y was then reminded that he and the detective spoke that morning and that Y had said that his father touched his bottom. He was then asked if that happened, and Y nodded. It is unclear whether Y was acknowledging that he had said that earlier in the day or whether he was acknowledging that the act occurred.
Y was asked if this happened once or more than once, and Y responded, “more than once”. That was inconsistent with his earlier statement when he said his father touched his bottom once. When asked “when did that happen?”, Y said “now” which was clearly incorrect. Y was then asked to tell about what happened with his father touched his bottom, and Y replied “um….licked it” and “nothing else”.
Y was then engaged with talking about the video games he played with his father before being asked if there was anything he did not like about his father. Y responded, “that he’s touching my bum and licking it”. He stated again that this happened “once” and that it happened “now”. Y did not at that time refer to the father licking his penis.
Y was then asked about how his father touched his bottom, and he poked a person-shaped non-anatomical toy with his finger, in the area that would be its buttocks, quite quickly. He said that happened once. Y was then directed back to what he had told the detective earlier about something happening in the shower. Y said, “touched my bum and licked it”. He was asked if that happened in the shower and he agreed. When asked “tell me about that”, Y responded “nothing else”. When asked when this happened Y said this happened at nighttime and no-one else was in the house. He later said that the father touched and licked his bottom two times. When asked how it made him feel, Y said it made him feel “bad” but could not say why.
Y was asked again about what occurred in the shower. He said his father was holding him, and demonstrated a hug, chest to chest, with the person-shaped toy.
Y was given a squishy ball and asked to show how his father touched his bottom. He pushed his finger into the ball. The police officer says “I can see you are pushing your finger into the ball. Is that what happened” and Y nodded. I am unsure whether the police officer perceived this to suggest that Y was communicating that the father had pushed his finger into Y’s anus. That may – or may not be – what Y was demonstrating. It was entirely unclear to me as he was playing with a squishy ball which did not have any holes in it.
The police officer then asked Y to put a small car inside, then out of and then on top of the toy police car – which he did. When asked to put the car under the police car, Y put the car inside the police car. He was asked to then take a figurine and put it half in and half out of the car, which Y was able to do. When the police officer put the figure on top of the car, Y correctly identified the figure is not ‘in’ the car, and was able to correctly identify the figure is ‘in’ the car, and half-way in the car when those positions were demonstrated.
The police officer then said “you showed me before… you pushed your finger into the ball. Did dad’s finger go inside?” This begs the question – inside what? Y pushed his finger into the squishy ball again. The police officer said “that’s what you showed me before. Did dad’s finger go inside your bum?” I assume by that question that the police officer is trying to find out if Y is referring to digital-anal penetration. Y nodded his head and said “yes”. I do not know what Y understands as being “inside your bum”. Is Y is using the word ‘bum’ to mean his anus or the cheeks of his bottom? There was, in my view, no clarity that Y was demonstrating a finger being inserted inside his anus – and not simply demonstrating being poked on the cheeks of his bottom – when he demonstrated poking the squishy ball.
Y was then asked, “did it go in, all the way in, half-way in?”. Y responded, “all the way in”. Again, it was not established that Y was referring to his anus and not referring to the cheeks of his bottom.
Y was asked, “what does your bum do. What is your bum used for?” and Y said “to do kaka”. I am not satisfied that this clarified whether Y was saying his father had inserted his finger into Y’s anus or poked him on the cheeks of his bottom. It is feasible that a child knows that their ‘bum’ is where they defecate from, but the word ‘bum’ encompasses more than the anus. Y’s comments could not be described as unequivocally referring to digital-anal penetration.
The police officer then stated that “I heard you told mum that dad licked […] your penis, your doodle”. The conversation about this allegation was not initiated by Y – and arose as a result of the police officer asking leading questions. Y was asked if he told his mother this, to which Y nodded. Y was then asked, “did you tell mum that? That dad licked that? Did that happen” and nodded in response to each question. It was unclear whether Y was acknowledging that he told his mother that it happened or whether he was saying the incident occurred. It was also unclear whether Y agreed with the statements put to him as the question was framed as being a matter he had told his mother – making it difficult for Y to disagree had he wanted to. Y then said that happened at night, once. He then contradicted himself, and pointed on the sheet the police officer had provided to it having occurred two times, in the shower.
Y said he was in the shower first and then the father came in and “touched my bum…licked my bum…and licked my [penis]”.
Y said he and his father were both standing up when this occurred. Y was then given two person-shaped toys of equal size and asked to show how ‘dad licked his bum’. Y said his father was standing up when he licked Y’s bottom. Y then put the face area of each toy very briefly into the crotch/buttock area of the other toy. He was asked how his father ‘licked his [penis]’, and very quickly slid one of the toys past the crotch/buttock area of the other toy.
After a short break, the police officer asked, “is there anything dad does that you want him to stop?”. Y shrugged and he was silent. He was asked again, “anything you want me to tell him that you don’t like?”. Y nodded and the police officer asked “what” and Y said, “I don’t know”. Y was then asked if his father has ever asked him to lick his father’s penis. This was another concept introduced by the police officer. Y shook his head. He was then asked again – with the police officer leading Y by saying:
I heard you told mum that he did. Did you tell mum that?
Y then nodded. He was then asked, “has that happened?” Y nodded his head. It was unclear whether he was admitting that he had told his mother that his father had asked him to lick his penis, or whether he was asserting the act had occurred. He was asked again, “you said before that it hadn’t happened. What did dad do?” to which Y shrugged. The police officer asked again “did you tell mum that dad asked you to lick his [penis]”, and Y nodded. When asked where that happened, he said once, in the shower.
The allegation that the father asked Y to lick the father’s penis was not spontaneously made by Y. It was a concept introduced by the interviewer. It is notable that when first asked, Y denied this had occurred. It was only after he was asked a second time – and told that his mother told the police it happened – that Y nodded. By framing the question in this way – as something his mother had informed the police about – and asking the question more than once, it could make it difficult for Y to disagree.
Notably, the mother’s contemporaneous police statement did not make any reference to the father asking Y to lick the father’s penis. If Y did tell the mother that prior to the date of the mid-July VARE, she must have had further discussions with Y that are not reflected in either her affidavit or her police statement. It is difficult to accept that the mother omitted from her statement an assertion that the father had requested Y to lick his penis if that statement had been made by Y.
Curiously, in her oral evidence the mother first said Y had told her the father asked Y to lick his penis on 11 July 2022. However, she subsequently said Y told her that “at a later date when he made further disclosures” and that the police officer must have misunderstood or been confused as that allegation had not yet been made.[6]
[6] Transcript 6 February 2024, p.49 lines 43–44.
Whether the statement that the father asked Y to lick his penis was made by Y on 11 July or at some later date, it is not deposed to anywhere in the mother’s trial material. When she was asked how that important allegation has been omitted from her trial material, the mother said, “I don’t know how to answer that”.[7]
[7] Transcript 6 February 2024, p.50 lines 34–35.
If Y had not made that statement to the mother as at the date of the mid-July VARE, it is very confusing that he nodded in agreement when asked if he had told his mother that.
Many of the statements by Y cannot be correct. The touching did not happen “now”. It does not appear Y had been at home alone with his father. There were a number of inconsistencies – with Y saying the touching occurred once, and at times saying it happened more than once. When asked how it made him feel he said “bad”, but could not expand on that. He never said it caused him any physical pain. He did not become upset at any point when recounting these alleged offences.
It was also a little difficult to understand how Y’s description of the father holding him and licking his bottom and penis in the shower was physically possible. At the time of the asserted abuse, Y was four years old. He said his father was holding him in the shower, and demonstrated on a person-shaped toy by wrapping his arms around the toy in a hugging motion at chest height. It is unclear how the father could be holding Y as described and also be able to lick his bottom or penis. Y did not refer to being held above the father’s head, or upside down, or on the side. He also said they were both standing on the floor of the shower and did not suggest that the father bent down, or knelt or crouched on the shower floor. Again the mechanics of the father being able to lick Y’s bottom or penis do not seem plausible.
Y was asked repeatedly if there were any other things the father did to him that he did not like, or that hurt him. He did not at any point say the father has asked any of the children to pull down their pants and touch their genitals. He did not say the father had taught the boys to put their fingers into each other’s bottoms. He did not say the father had put his penis in Z’s mouth. He did not refer to penile-anal penetration.
At the end of the interview Y was asked if all the things happened on the same day – to which Y nodded – or at different times – to which Y responded, “different times”. When asked if what he had told the police officer had really happened, Y shrugged his shoulders and said he did not know. He was asked again if what he had reported had really happened, and he nodded his head. Y appeared quite equivocal about whether his statements were accurate.
X’s VARE mid-July 2022
According to the mother’s trial affidavit, X did not make any disclosures to the mother that she had been subjected to abuse until a few days after the date of her VARE. Despite the fact that X had made no disclosures, X underwent a VARE in mid-July 2022.
There was nothing said in the course of that VARE in my view that corroborated any sexual touching by the father of Y. At its highest, X confirmed the father showered naked with Y and whilst in the shower he lifted Y up and touched his bottom, scrubbing Y and then they came out of the shower and got dressed. X smiled and jumped up to demonstrate how this occurred – briefly indicating a rubbing motion on her buttocks. X also demonstrated on a teddy bear showing a rubbing motion on what would be the buttocks of the toy. This event was described by X as having occurred on one occasion either on the last weekend the children saw their father or a few weekends prior to the VARE.
X said what the father was doing was “kind of weird”. She was asked why she thought it was weird and she said, “because my dad’s never touched [Y’s] bum”. When asked how did she know that, she answered “’cos I’ve never saw [sic] my dad touching [Y’s] bum and that was the first time I saw it”. This statement is wholly inconsistent with the myriad of allegations that are made over the following weeks.

X’s statements – and physical demonstrations – were consistent with appropriate attention to hygiene for a child of Y’s age. As already noted, the mother acknowledged Y needed help to shower and wash himself properly. In no way did X corroborate that the father put his finger inside Y’s anus. She did not corroborate that the father had licked Y’s penis or bottom. There was no suggestion of digital-anal penetration.
It is clear from the contents of that VARE that the mother had spoken with X about this incident and conveyed some concern to X about the event: X was asked if she had talked to her mother about what happened at her father’s and X responded, “yes and she thinks it’s weird as well”.
X made no complaints about the father touching her in a sexual manner.
In her oral evidence, the mother conceded the statements made by X did not appear to describe sexual abuse, that the younger boys’ bottoms had to be washed, that on occasion the father had bathed the children when the parties were together and as he was having the children overnight in July 2022 he would have to attend to washing and toileting them.
When counsel for the father put to the mother that X’s statements did not corroborate Y’s allegations of sexual abuse, the mother responded:
I thought there was more to that there.[8]
suggesting that the mother had been under the impression that X’s VARE had provided corroboration. The mother’s concern that X may have been reporting sexual abuse again suggests a degree of hypervigilance on her behalf.
[8] Transcript 6 February 2024, p.72 lines 13–14.
The mother’s attendance at Suburb S police station in mid-July 2022
The mother continued to have conversations with X regarding sexual abuse allegations.
According to police records, the mother attended the Suburb S Police station on an evening in mid-July – just the day after that X had participated in a VARE – to report that X was subjected to sexual abuse by the father. Those records say the mother made the following assertions:
(a)X had told her at 7.00 pm that evening that the father showered with X naked and touched her on the vagina, and that this happened a few times at the father’s house; and
(b)X had been too scared to tell the male officers about the abuse when she underwent the VARE on the previous day.
The mother’s recollection of the conversations she had with X on and around that date was confusing. In her oral evidence the mother said that on that date X told her only that the father was touching her vagina, and rubbing it. However, subsequently the mother said X also told her that the father had put his fingers in her vagina and bottom in that conversation. At another point, the mother said that X had told her about the father digitally penetrating her anus and vagina prior to that date.
According to the mother’s trial affidavit, it was “a few days later” after the VARE (that is, not the day immediately following the VARE):
14.… [X] told me that her dad is touching her down there and putting fingers inside her. I asked her when this started, and she stated it occurred every time they went over there…
At another point in her oral evidence the mother said the allegations regarding the father digitally penetrating X and putting his penis in her mouth “would have been disclosed [in late]” July.[9] Later still, the mother said she was aware of the allegation of digital penetration as at mid-July 2022.
[9] Transcript 6 February 2024, p.90 lines 18–19.
There was no reference to any digital penetration in the police report of the day after the VARE. When asked why that would have been omitted, the mother said she was “pretty sure I mentioned that as well, along with the rubbing”.[10]
[10] Transcript 6 February 2024, p.77 line 41.
It is accordingly unclear when X is said to have reported digital penetration and whether that was reported on or before that date, or at some later date.
Additional inconsistencies between this police notification and the mother’s trial affidavit included:
(a)in the mother’s trial affidavit as set out the mother said X told her that this ‘touching’ occurred every time. To the police the mother said it occurred on a few occasions. When asked about that inconsistency the mother said that:
[THE MOTHER]: … [mid-July] is when [X] first disclosed that – disclosed sexual abuse, and then between [mid-July] to [late July] is – were further … further disclosures were made and … timeframes were a bit more clear.
Transcript 6 February 2024, p.87 line 42 to p.88 line 1.
(b)in the mother’s trial affidavit the mother said it was in late July 2022 (and not mid-July 2022) that X said her father would ask her to get naked and then shower with her.
It was put to the mother that there have been multiple conversations with X about the allegations and the mother is unable to recall what was said to her by X or when. She replied, “I can to an extent”.[11]
[11] Transcript 6 February 2024, p.88 line 6.
X was then subjected to a second VARE in late July 2022, some days after the mother’s reports to Suburb S police.
X’s attendance on Dr T
It is the mother’s evidence that X first told her the father had subjected her to penile-vaginal penetration in late July 2022. In her trial affidavit the mother said it was on that day that X said her father offered to wash her and shower with her naked and then “explained that her dad would put his penis inside her and the first time it hurt, and she bled”.
In her police statement of late July 2022 the mother said she arranged an appointment that day with Dr T, a general practitioner. It is correct that the mother took X to Dr T in late July 2022. The mother did not immediately report the allegation to the police – and did not do so for a further three days.
In her oral evidence the mother said she inspected X’s genitals herself before taking X to the doctor. The mother did not refer to having done so in either her police statement or in her affidavit material.
In her police statement of late July 2022, the mother said Dr T “looked internally…and said it looked like it had been penetrated”. That is not repeated by the mother in her trial affidavit. Nowhere in the clinical notes was there any suggestion that the doctor made any such observation. To the contrary, Dr T wrote:
I advised thatl can not make any commcent regarding hymen and internal examination
(As per the original)
Further, Dr T did not observe any evidence of trauma. Her note stated:
general visual exam: no signs of bruise, no laceration, no haematoma
perianal area, mild scaly skin, no redness
(As per the original)
The mother did not call Dr T as a witness.
In her clinical notes dated late July 2022, Dr T recorded that the mother was told “almost a week ago” that the father had digitally penetrated X in her vagina and anus. That evidence contradicted the mother’s oral evidence that X’s report of digital-anal penetration was not made until late July.
The notes continued;
… recently mentiones penile penetrated by her father few times at vagina and anus area, last time was 24 June when she was staying with her father for 5 days …
(As per the original)
Nowhere in the mother’s material is it suggested that the father has put his penis in X’s anus. That is not a complaint that X made when she underwent either VARE.
I do not know whether X was present in the room when the mother provided this information to Dr T.
It was unclear why the mother reported the last time the father put his penis in X’s vagina was 24 June. In her police statement made three days later the mother said X told her the penile-vaginal penetration occurred “every time” X stayed with the father. In her VARE X also said the ‘last occasion’ was the last weekend of time. That would mean the last time it occurred was over the weekend 8 to 11 July 2022, a fortnight later than the 24 June date.
It was put to the mother that she deliberately nominated 24 June as the last date of penile-vaginal penetration to explain the lack of trauma observable to X’s genitals upon physical examination. That was denied by the mother.
It is also notable that Dr T included in her notes that she advised the mother not to ask any questions to get more information form the children, but to leave that to Child Protection and the police.
Mother’s police statement of late July 2022
The mother attended Suburb U SOCIT and made a further statement in late July 2022. The statement is poorly constructed. There are incomplete sentences. The timelines of various asserted disclosures are entirely unclear.
In the statement the mother referred to the previous visits to SOCIT and stated that she previously advised SOCIT that Y had disclosed the father put his fingers inside Y’s bottom “and that [the father] put his penis inside [Y’s] mouth”. Nowhere in the mother’s earlier statement does she say that Y told her the father put his penis in Y’s mouth. Y did not disclose that to the police. At its highest, and as already observed, after being prompted and being told that the mother had informed the police that Y had told her the father had asked Y to lick his penis, Y initially shook his head. When asked again, Y nodded in agreement to the proposition his father had asked him to lick his penis.
In her oral evidence the mother said that disclosure by Y was made to her in mid-July 2022 and that she told the Suburb U police in mid-July 2022. She then said that was why Y underwent a second VARE or was re-interviewed. However, Y did not undergo a second VARE, and there is no evidence that Y was re-interviewed.
No evidence was put before me to corroborate the mother’s assertion that she reported this allegation in mid-July 2022 to the Suburb U police. In her oral evidence the mother said Y was re-interviewed in late July 2022 but she was told that Y “didn’t really have much to say”, and acknowledged he did not confirm the allegations to the police.[12]
[12] Transcript 6 February 2024, p.52 lines 40–41.
In the mother’s police statement of late July 2022 the mother also made, without providing any firm dates or context, the following allegations:
(a)Y said the father ‘touches’ himself and that “piss comes out”. That allegation is not repeated by the mother in her trial affidavit (with the mother deposing only that both X and Y said the father “would rub his penis in the shower in front of them”). Y is not reported to have made that statement to any other person. He did not report that in his VARE. In her oral evidence the mother asserted this was reported in mid-July 2022. It is not included as an alleged disclosure in her report to police in mid-2022;
(b)Y said the father gets Y to put his finger into Z’s bottom and Z to put his finger into Y’s bottom. Y did not refer to the father coaching either boy to put their finger into their brother’s anus when he provided his VARE. In her oral evidence the mother asserted Y told her in mid-July 2022 that the father got Z to put his finger in Y’s anus. However, this is not included as an alleged disclosure in her report to Suburb S police in mid-July 2022;
(c)both Y and X have seen the father put his penis in Z’s mouth. In her trial affidavit the mother said the father did that to both boys. X did not report having ever witnessed that in either VARE. Y did not report that in his VARE. In her oral evidence the mother said this was told to her in mid-July 2022. However, it is not included in the mother’s report to Suburb S police in mid-July 2022;
(d)Y said that the father put his penis in Y’s bottom. The mother did not make this allegation anywhere in her trial affidavit. Y did not make that allegation when he underwent a VARE. X did not corroborate having witnessed this occurring. It is unclear when the mother says Y reported having been subjected to penile-anal penetration. As best I could tell from the police statement that allegation was said to have been made either in or shortly after mid-July 2022. The mother did not apparently immediately report this to the police.
It is very difficult to understand why all these serious allegations were not reported by the mother to the police when she attended at the Suburb S Police Station in mid-July 2022 given that the mother said many of them were reported to her by that time. Nor were any of the allegations raised by X when she underwent a VARE in mid-July 2022.
When pressed under cross-examination as to how she could have omitted telling the police of these allegations in mid-July 2022 the mother said she was “in a whirlwind of shock”.[13] The mother then revised her evidence and said the children’s reports must have been made to her after the date of the mid-July police statement and before the date of the late July police statement.
[13] Transcript 6 February 2024, p.55 line 22.
Whatever date the statements are asserted to have been made, the mother did not seek immediate medical attention for Y, despite him allegedly disclosing he had been subjected to penile-anal penetration. The mother took X to Dr T in late July 2022. She did not take the boys with her.
The mother did not take Y to see a doctor until August 2022 – which was somewhere between one and three weeks after he made the statement that the father had subjected him to this alleged assault. At that time, the doctor recorded that there were no signs of bruising, trauma, or redness to Y’s anus. It is extremely difficult to understand the mother’s failure to seek immediate medical assistance for the boys in light of the gravity of the alleged offending and the possibility that such an assault would have caused the young boys serious physical injuries. They were just two years old and four years old at the time.
In an attempt to explain the lack of medical attention arranged for the boys, the mother said in late July she requested for the boys to be physically examined. She said the police told her that “they don’t look at boys”.[14] She repeated that later in her evidence, asserting that she questioned Police Officer V about why X only was being physically examined and requested the boys also be examined. She said Police Officer V told her “We don’t – we don’t usually do it for boys”.[15] This was not plausible. In closing, counsel for the father submitted that a more plausible explanation for the mother’s failure to act promptly was that the allegations were never made. Alternatively, it was submitted that if the statements were made, the mother must not have believed the statements to be genuine.
[14] Transcript 5 February 2024, p.58 line 38.
[15] Transcript 7 February 2024, p.8 lines 16–17.
According to paragraph 6 of the mother’s police statement of late July 2022 the mother also reported to police:
6.[In mid] July 2022, [X] told me that her dad touches her vagina, rubs her vagina, put his fingers inside her vagina, puts his fingers inside her bum, puts his penis in her mouth, gets her to touch his penis as well. She also mentioned [the father] shows them, [X] and [Y], child porn.
The allegation that the father put his fingers in X’s vagina and anus and his penis in her mouth did not form part of the police notes regarding the mother’s complaints made in mid-July 2022. Nor did the mother make any complaints about child pornography being shown to the children when she attended the police in mid-July 2022.
The allegation that the father showered with X naked and touched her on the vagina was not referred to in the mother’s statement to police in late July 2022.
Again, without date or context the mother asserted that X said:
(a)the father told the children to put their fingers inside each other’s anuses and that the father films the children doing this;
(b)she watched the father put his finger inside Z’s anus, that Y was also present and that Z cried and the father squeezed Z’s penis;
(c)the father told X not to tell anyone because he will get in trouble; and
(d)the father started touching Y’s bottom before he started to touch X.
The mother also said that in late July 2022, X reported that the father had “penetrated her with his penis in her vagina” and that the first time it happened X said she bled, and it was painful. The mother further reported that X said it happened every time she went to stay at the father’s home. In that statement the mother said prior to making the disclosures and prior to time being ceased, X had expressed a wish not to go to her father’s. The mother did not depose to that in her trial affidavit.
The mother’s evidence as to what she reported to the police and when was confused and contradictory. As already observed, the mother initially said in mid-July she only reported that the father showered naked with X and touched her on the vagina, and demonstrated a rubbing motion. She said “the rest was afterwards”,[16] as in, the balance of the allegations made at paragraph 6 in the mother’s statement of late July 2022 were reported to her by X after the date of the police statement in mid-July 2022 and had been incorrectly put together in the paragraph. However, as already set out, later in her evidence the mother said she was “pretty sure” her report to the Suburb S Police Station in mid-July had included that the father had put his fingers inside X’s vagina and anus.[17] The mother later said X told her about “the penetration” in late July and not mid-July,[18] and then a little later said it was in late July that X reported the penile-vaginal penetration and the other allegations:
[THE MOTHER]: … it would have been [in late July] … because I remember the [date] – it was just specifically the penetration.
Transcript 6 February 2024, p.83 lines 23–24.
[16] Transcript 6 February 2024, p.65 line 34.
[17] Transcript 6 February 2024, p.77 line 41.
[18] Transcript 6 February 2024, p.82 line 46.
Subsequently, the mother then said her reports in mid-July included digital penetration of X’s vagina and that “I thought I said finger inside” X’s vagina – but that the digital penetration of X’s anus was made in a subsequent conversation, sometime in late July 2022.[19]
[19] Transcript 6 February 2024, p.86 lines 3–4.
What was clear was that the mother was unable to recall with any clarity the conversations she had with the children regarding these matters. She said that it was “very hard to remember the exact dates and things. There’s a lot”.[20]
[20] Transcript 6 February 2024, p.78 lines 39–40.
X’s second VARE – late July 2022
X was seven years old when she underwent this VARE. It was established that she understood the difference between the truth and a lie. She was then asked to tell Police Officer W what she had come to talk about today. X smiled and said she had come to talk “about what my dad has did to me and my brothers [sic]”. When asked to say what happened she said:
He’s put, wait what was that word again, his penis in my vagina and it really hurted … and it was bleeding a little bit [sic].
It is the father’s case that this suggested X had been coached to make that disclosure and to make it at the outset of the interview. I note the words ‘vagina’ and ‘penis’ are not the words the parents or children used at home. It is notable that X used the English words rather than the Country DD words at this VARE, particularly as the mother’s own report to police in mid-July 2022 asserted X used the Country DD word for vagina. At trial, the mother said X did know the word ‘vagina’ but was unable to explain where X learned the word ‘penis’. X’s use of the anatomically correct words does suggest there were conversations between X and an adult about the alleged abuse between mid-July 2022 and the VARE in late July 2022.
X went on to say that was the “first one” and the “second one was that he showed us a video of kids touching each other’s bums and then he told me and my brother to do it”. She said the father had told Y and her to “touch each other’s butts a lot of times, like about 10 times, and we didn’t like it”.

The mother further acknowledged that on 31 October 2022 when she told the Court at the hearing of the father’s Contravention Application brought as a result of her non-compliance that she would engage with therapy, she had no intention of doing so as she “didn’t want to keep retraumatising [her] children”.[39] As set out, the mother did make an appointment with Ms J that day. However, she promptly cancelled the appointment notwithstanding she had been ordered to enter a bond the terms of which included that she would comply with orders.
[39] Transcript 6 February 2024, p.23 line 2.
In his closing address, counsel for the mother repeated that the mother had an unwavering belief that the father had abused the children, and his client remained adamant that the orders that should be made would provide for no time or communication whatsoever between the children, the father, and any member of his family.
Given the mother’s unshakeable view that the children have been sexually abused, her ambivalence as to whether she would facilitate time if ordered, and her refusal to comply with earlier Court orders, I cannot be satisfied that she will comply with any other orders that I make for the children to spend time with the father if they remain in her care.
Additionally, as a result of the mother’s fixed views it seems highly likely that if the children remained in her care and she was required to facilitate time, this would cause her significant distress and anxiety. She has been unable to date to shield the children from her views and beliefs regarding the father and the paternal family. It seems highly likely to me that the children would be exposed to the mother’s distress and anxiety. That would likely be extremely difficult for the children to manage emotionally. In this regard I share the concerns outlined by the Family Report writer that:
78.… The challenges associated with forcing [the mother] to promote a relationship with their father runs the risk of drawing the children further into their parents’ dispute.
Moreover, as a result of the mother’s fixed views, there are significant risks to the children’s wellbeing and development should they remain in her primary care. Those risks and detriments were outlined by the Family Report writer and include;
(a)the children will likely have no relationship with their father or any member of the paternal family. That will result in the children being unable to have relationships with paternal aunts, uncles and their many cousins on their father’s side, as well as their paternal grandparents. That is a significant loss to the children. I note that in X’s VARE in mid-July 2022 she described the last weekend she spent with her father as including playing with cousins, watching cousins playing sport, having visitors at the house, celebrating a special Country DD festival, enjoying an extended family breakfast and having a sleepover at her grandmother’s house;
(b)if the children are unable to form a relationship with their father and other members of their paternal family, this may have a longer-term detrimental impact on them as they grow and develop, start to explore their identity, and begin to develop intimate connections with peers;
(c)the children’s ability to form deep and connected interpersonal relationships may be compromised, as may be their ability to understand the nuances of relationships, and the ability to manage disputes and repair ruptures in those relationships;
(d)if the children are prevented from connecting with their father and extended paternal family, in circumstances where I am satisfied the father does not pose an unacceptable risk, the children may become resentful that those relationships have been denied to them;
(e)the children will grow up in a household where they are exposed to a narrative that they are victims of violent sexual abuse perpetrated upon them by their father, and that their father and all members of their father’s family are ‘bad people’. These beliefs will likely have a detrimental impact on their psychological development, their sense of trust and their ability to develop relationships into the future; and
(f)X appears to be highly invested in these proceedings, and currently feels some pressure to meet her mother’s expectations. If she remains in the mother’s care, X may become further aligned with the mother, which could result in her continuing to make statements that suggest she has been abused by her father as that provides her with a pathway to connect with the mother.
It is likely that a change in residence will also impact on the mother, her functioning and parenting.
Conversely, if the children remain in the mother’s care, they will not experience any disruption and separation from her. Their lives will remain substantially unchanged in terms of care arrangements, schooling, housing, peer relationships and the like. They would be relieved of any burden of being triangulated in their parents’ dispute.
The proposals advanced by the Independent Children's Lawyer and the father also present significant risks to the children which include:
(a)removing the children from their primary carer and placing them in the care of the paternal grandmother will be highly traumatic for them;
(b)X is likely to be resistant to the change – she may act out and become oppositional and defiant. Neither the father nor the paternal grandmother impressed as being currently well equipped to deal with such behaviour; and
(c)Z has no memory of his father or grandmother. Removing him from his mother and placing him in the care of strangers would be extremely distressing and confusing for him. The Family Report writer also said if the relationship between Z and his mother was severed, that “could create vulnerabilities in his development, including his capacity to develop and maintain healthy interpersonal relationships into adulthood.”
The father’s proposal also requires the children to endure two changes of primary care – being placed initially with their grandmother, and then being transitioned into their father’s care.
Whilst I formed the impression that the father and the paternal grandmother have somewhat limited insight into the impact on the children of the proposed changes of residence, both indicated they were keen to work with a family therapist to provide them with the skills to assist the children to manage these significant changes.
A change of primary care could also raise the risk of X absconding from the care of her paternal grandmother or father. However, I note the Family Report writer expressed a view that as X appeared to be quite a compliant child, the risk of her absconding did not appear to be significant.
The proposal for a change of residence also offers significant benefits to the children. Those benefits include being able to re-form relationships with their father and other members of the paternal family – whom they currently describe as “bad people”. I accept the observations of the Family Report writer that:
69.… When children hold the view of a parent as “bad” or “good”, it can polarise their perspective of the circumstances and limit their ability to understand complex relationship dynamics. It could also suggest their views have been developed from their exposure to adult narratives. Ruptures and repairs in familial relationships offer children the experience to develop a nuanced understanding of the complexity of interpersonal relationships and the development of these skills is nurtured in a child’s relationship with their parents and siblings.
It also appears that a change of residence is the only option that provides the children with the potential to have relationships with both sides of their family, as they grow and develop, and explore their own identities. The Family Report writer also expressed a view that repairing X’s relationships with her father and paternal grandmother may have a positive, long-lasting impact on her social and emotional wellbeing.
Additionally, changing residence for X may relieve her of the burden of reinforcing her mother’s views.
Both sets of proposals clearly have significant downsides for the children. However, in my view, the orders that more clearly promote the children’s best interests are orders that provide for the children to move reasonably promptly into the care of the father, via the paternal grandmother, and for the children to forthwith be engaged in family therapy to support that change of residence.
I anticipate X, in particular, is likely to be resistant to spending time with and then moving to live with her father – and accordingly, it will be necessary that the children move into his care via the home of the paternal grandmother.
The Family Report writer had the opportunity of observing the children with their grandmother. It was her impression that the younger children had a reasonably good bond with their grandmother, they were not fearful of her. The grandmother has provided all three children with significant care in the past. In relation to X, the Family Report writer described she was curious about the grandmother (and father) and this curiosity, if supported with appropriate therapeutic intervention, could be harnessed to override any expressed fears.
As is clear, I am very aware that the proposals advanced by the Independent Children's Lawyer and the father require two changes of residence. To minimise the disruption experienced by the children because of moving homes twice – and to avoid potentially reinforcing in the children’s minds that their father may be unsafe – the transition from the paternal grandmother into the father’s care should be reasonably swift. To that end, I note the observations of the Family Report writer that prolonging the reintroduction may result in X becoming more resistant to spending time with her father. The Family Report writer was also concerned that the paternal grandmother might struggle with the primary care of all three children and suggested the children residing with the paternal grandmother would operate only as a transition to the father’s care. The Family Report writer further opined that a period of between three and six months may be necessary to successfully transition the children from the paternal grandmother’s care to the father’s care.
The father’s proposals see that transition occurring over a period of 18 weeks – with six week blocks of increasing time with their father, supervised by the paternal grandmother, before moving into his full time care. His proposals are not particularly graduated. The orders I am making in my view strike a more appropriate balance – minimising the disruption to the children, and ensuring they are able to move confidently into their father’s primary care. They provide for the children to move into the grandmother’s care, and then over the course of four months of supervised time, and with professional support, the children will transition into the primary care of their father.
The regime for the children to do so is the same for all three children, notwithstanding the anticipated difficulties X in particular may experience. This takes into account the Family Report writer’s evidence that if X was on a different regime to her brothers that may reinforce her perception that the father is ‘bad’ and that the situation between X and her father is different to the boys’ experience of their father. This could add to her confusion and upset and make it more difficult for her perceptions of her father to alter.
The orders for the children to live with the father will be final orders.
Family Therapy
It is the father’s proposal – and supported by the Independent Children's Lawyer – that the children, himself and the paternal grandmother engage with Mr E or his nominee for family therapy, to assist the children’s transition into his care. He has said he is prepared to meet the costs of such therapeutic intervention. The mother would also be invited to participate at the request of the family therapist.
In his closing, counsel for the mother said he was not instructed to pursue any orders for family therapy. He said both that his client had indicated she would comply with any order for family therapy, but also that she no longer embraced such a concept as it was her view that participating in family therapy would be too traumatising for the children.
The Family Report writer supported professional assistance via an appropriately qualified and experienced family therapist. She suggested that the mother, father, and paternal grandmother should all be engaged in this process. She said it was likely all three children will experience significant distress if they change residence. She observed that X had been more embroiled in the paternal dispute than her brothers, and appeared to believe the father presented a real risk to her and her siblings – although the Family Report writer was unable to comment on how deeply X believed that. In the circumstances the Family Report writer felt it could be difficult to unravel some of the perceptions X now has around her father without therapeutic assistance. Accordingly, she suggested that the therapeutic support would be primarily to assist X to re-establish her relationship with her father. She further opined that as X has undergone three physical genital examinations (her mother, Dr T and Dr G) it may be that X will need assistance to reinstate her own physical boundaries.
Similarly, the Family Report writer said the adults would benefit from professional supports to assist them with any issues that may arise for the children and to ensure they are well placed to understand and better respond to the children’s behavioural responses to a change in residence.
It is abundantly clear that professional assistance from an experienced and appropriately qualified family therapist will be necessary to support the children – and adults – through this change of residence.
Arrangements for time spent
It is the father’s proposal that after the children have had three sessions with the family therapist, supervised time would commence with the mother on a weekly basis. It was further proposed that provided the mother attends upon a psychologist for not less than six months, unsupervised time on a weekly basis should commence. He proposed those orders be made on a final basis.
I agree with the submissions made by the Independent Children's Lawyer that to make final orders regarding the mother’s time, including making orders for that time to progress to fairly limited, but unsupervised visits, is premature. Too little is known about how the children will respond to the change of residence and whether spending time with their mother – even in a supervised setting – will derail that process. I do not know what the mother’s response to my determination will be.
Moreover, I cannot be satisfied currently that the proposals made by the father to make final orders that progress the children’s time with their mother to short, daytime unsupervised visits in six months’ time will be in the children’s best interests. I note the order sought by the father – that the mother merely needs to attend upon a psychologist for six months – is the only prerequisite for time progressing to unsupervised visits. I share the concerns expressed by the Family Report writer that it would be difficult to consider unsupervised time without there being evidence of a shift in the mother’s attitudes and beliefs. If the mother’s views have not shifted, or if she is unable to shield the children from her negative views of the father it may not be in the children’s best interests for time with their mother to become unsupervised in six months’ time. Conversely, it may become appropriate for the children’s time with their mother to become unsupervised sooner, or to progress to more extensive time.
I appreciate that Z in particular will find an interruption to his relationship with his mother deeply distressing. No doubt all three children will find the transition extremely challenging. It was the view of the Family Report writer that in this matter there ought be no prolonged moratorium on time in the mother’s care, and they should commence spending professionally supervised time with her within weeks of leaving her care. It seems to me to be appropriate to provide the children with an opportunity to connect with their mother as soon as practicable. Whilst the children may be confused and distressed at seeing their mother, they will also be confused and distressed if they do not see her. Z in particular has always been in the primary care of his mother. It is likely going to be emotionally very difficult for Z at least in the short term to understand his mother’s absence.
Accordingly, the parties must do all they can to arrange the children’s supervised visits to commence promptly after the third session the children have with the family therapist. That delay is necessary to ensure the children are somewhat settled with the grandmother, and to enable some groundwork to be undertaken with the therapist to assist the children to understand their new care arrangements.
I am satisfied that the mother’s time with the children will need to be supervised on an interim basis. Given the mother’s views and beliefs about the father and his family, it is highly likely she would interfere with the children’s transition into his care if time was not supervised. Professional supervision will ensure the children are not exposed to the mother’s negative attitude towards the father, that they are not inappropriately questioned by the mother, and that she does not undermine the children’s transition into their father’s care.
The father is meeting the whole of the costs of family therapy. In the circumstances, the costs of the professionally supervised time will need to be met by the mother.
Completion of Tuning Into Kids program
The father’s proposed orders also sought for the father and the paternal grandmother to attend and complete a Tuning Into Kids program. As already set out, I hold some concerns about the father and the paternal grandmother’s naivety as to the change of residence and the distress that this is likely to cause to the children. I have also addressed that the paternal grandmother was unable to articulate strategies she might employ to assist the children during the changeover period and subsequent transition into the father’s primary care, particularly with respect to X.
Accordingly, it is entirely appropriate that the father and paternal grandmother complete that program.
Psychological treatment order
There was some discussion whether orders ought be made requiring the mother to attend upon a mental health practitioner. Such an order, if it were to be made, would in my view need to be tethered to a parenting order. Otherwise, as observed by the Full Court in Oberlin & Infeld (2021) 63 Fam LR 88 the only source of power for such an order would be s 67ZC of the Family Law Act, being orders relating to the welfare of children.
As observed by Gaudron J in AMS v AIF (1999) 199 CLR 160 at [85]-[87], the power of the Court to exercise its welfare power and place limits on a parent’s conduct is restricted only to what is necessary for the welfare of the child. It is not a supervisory power.
The Full Court in Oberlin made similar observations that the limits of the power pursuant to s 67ZC is not entirely unconfined, and that orders directing a party to accept therapeutic treatment will not usually be able to be made under this section.
The orders I am making for the children’s time with their mother to be on a supervised basis until further order provides sufficient protection for the children, and I am not prepared to make an order requiring the mother to engage with a mental health professional. It will be a matter for the mother whether she does so. It is, however, likely that an appropriately qualified mental health practitioner, with experience in family law disputes could provide significant assistance to the mother in understanding – and potentially accepting – my determination. That practitioner should be provided with a copy of these reasons so that they understand the context of the dispute and my reasons for the orders I am making. Whether the mother gains insight and understanding will likely be of significant relevance to any future determination as to the children’s time with their mother.
School

The Family Report writer was of the view that the boys would likely transition to a school closer to the father’s home with little difficulty. However, given X’s age and peer relationships, she may find a change of schools more difficult. She suggested the father might speak to X’s school and find ways he can support X maintaining connection with her friends after she moves to a school closer to the father’s residence. The Family Report writer was hopeful, however, that X would manage a change in schools reasonably well, referring again to X being reasonably adaptable.
As I am providing the father with sole parental responsibility in relation to the children’s education, it will be a matter for him as to how he manages the children’s school enrolment and attendances. I do note the Family Report writer opined that it would be preferable for the children to remain at their current schools for the next few months – to assist them to stabilise in the new living arrangements. She said the travel to their current schools from the father’s home was not so extensive that the children could not manage the travel for the time being. However, I note that X’s school is close to the mother’s residence. This could create opportunities for there to be interference with the orders that I am making for the children to live with the father.
The children’s schooling will be a matter for the father to determine. Much may depend on how the transition into the paternal grandmother’s care, and then into the father’s care is tolerated by the children.
Joinder
The orders I am making provide for the children to live temporarily with the paternal grandmother. They also require her to participate in family therapy, and to provide the children to the father for supervised time. In the circumstances, it appears she is a necessary party. This means that the orders I am making are binding on her, and can be enforced if need be.
Accordingly, I will join her to these proceedings at this juncture.
Once the children have transitioned into the father's care, I do not anticipate the grandmother will need to remain a party to the proceedings.
For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding four hundred and forty-two (442) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Police Officer V.
Associate:
Dated: 1 July 2024

File number:	MLC 12557 of 2021
Judgment of:	CARTER J
Date of judgment:	1 July 2024
Catchwords:	FAMILY LAW – PARENTING – Where the mother alleges the father has sexually abused the children – Where the father has not spent time with the children since July 2022 – Where the paternal grandmother has been joined to the proceedings – Whether the father presents an unacceptable risk to the children – Where the mother has failed to comply with orders for supervised time and family therapy – Orders made for a gradual change of residence into the father’s care supported by the paternal grandmother and family therapy – Interim orders made for the children’s time with the mother.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 67ZC
Cases cited:	AMS v AIF (1999) 199 CLR 160 Bielen & Kozma (2022) 66 Fam LR 59 Fitzwater & Fitzwater(2019) 60 Fam LR 212 Isles & Nelissen (2022) 65 Fam LR 288 Johnson & Page (2007) FLC 93-344 Loddington & Derringford (No 2) [2008] FamCA 925 M v M (1988) 166 CLR 69 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) FLC 93-405 N & S & the Separate Representative (1996) FLC 92-655 Oberlin & Infeld (2021) 63 Fam LR 88
Division:	Division 1 First Instance
Number of paragraphs:	442
Date of hearing:	6 – 8 February, 14 – 15 March 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Cash
Solicitor for the Applicant:	Mayek Legal
Counsel for the Respondent:	Ms Brennan
Solicitor for the Respondent:	Resolve Conflict Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms Tenace
Solicitor for the Independent Children's Lawyer:	Patford-Smith Legal Services

MLC 12557 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS TATARI Applicant
AND:	MR TATARI Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CARTER J
DATE OF ORDER:	1 JULY 2024