Hronn & Tracey (No 2) [2026] FedCFamC1A 56 (1 April 2026)

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47

GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32

House v The King (1936) 55 CLR 499; [1936] HCA 40

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Pachris & Tajir (No 3) [2023] FedCFamC1A 230

Pickford & Pickford (2024) FLC 94-230; [2024] FedCFamC1A 249

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Yoxall & Eide [2024] FedCFamC1A 200

1. The appeal is dismissed.
2. Order 3 made by the primary judge on 14 November 2025 is varied to read:

Upon the recommencement of the bus service, Ms Tracey and/or the Independent Children's Lawyer are to notify Ms Hronn of the same in writing, and Ms Hronn is to deliver X (together with any personal items he wishes to bring) to the care of Ms Tracey at Town E Airport (or another location in Town E otherwise agreed) within 14 days after such notice.

1. Any application for costs is to be filed and served together with the evidence relied on within 14 days of the date of these orders.
2. The respondent to any application for costs is to file and serve any response together with the evidence relied on within a further 14 days.

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 the pseudonym Hronn & Tracey has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This appeal is from parenting orders made in relation to X, an Aboriginal boy who was born in 2016, which were made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 14 November 2025.
2. The orders provided for X to live with Ms Tracey ("the first respondent") who was to have sole decision-making responsibility for him. That will involve X living in Town N (also referred to as Town D), a remote community of just over 400 people over 500 kilometres from Town E. It is home to members of the F/J community. Both X and the first respondent are members of that community.
3. The appellant, Ms Hronn, had been caring for X since September 2022. She is not of Aboriginal descent and is not related to X. At the time of the hearing before the primary judge, X was living with her in Town C, some 1,700 kilometres from Town N.
4. The primary judge was faced with a number of difficult considerations which included not only where and with whom X should live, but questions as to the importance of connections to X's Aboriginal heritage, now and in the future, and how that might be best achieved. His Honour's reasons, which were delivered a very short time after the conclusion of the hearing, are detailed and nuanced. They contain a valuable discussion on the approach to Aboriginal witnesses, cultural considerations and a cogent summary of the evidence as to the local customary law. These reasons explain why the appeal will be dismissed.

1. In order to understand the appeal it is necessary to set out the factual matrix in some detail.
2. X was born whilst his biological mother, the second respondent, was in prison. She has not cared for him since shortly after his birth, when he was placed in the care of the Northern Territory Government. His biological mother was named as the first respondent in the primary proceedings, but took no part in them. She has also not participated in the appeal.
3. The identity of X's father is not entirely clear. It seemed accepted by all involved, with the exception of the appellant, that Mr West, who was named as the second respondent in the primary proceedings, was the father. He was present during the first instance hearing by audio visual link but played no active part in it. He has never had X in his care. He appeared at the hearing of the appeal but limited his comments to saying that X should live in Town N. We took it that he opposed the appeal.
4. In April 2018, the Northern Territory Department of Children and Families placed X in the care of his grandmother, Ms V. Although the placement order expired in September 2021, X remained in her care. Ms V lived in Town N.
5. The appellant had lived in Town N since November 2015. She says that Ms V asked her to look after X. The appellant had been given the skin name of O skin. X's skin name is K skin. The local cultural law meant that X was considered to be her son and she had a cultural obligation to care for him, provided she continued to live in Town N.
6. The appellant said that X started to spend time with her, increasing so that by September 2022, he was living with her permanently.
7. In March 2022 the appellant made plans to leave Town N. In late 2022 she purchased a home in Town C. In September 2022 she took X to live with her in Town C. He was enrolled in school there.
8. In early December 2022 the appellant and X returned to Town N for X's grandfather's funeral. Ms V and her husband, Mr G, would not let X leave with the appellant in late December 2022 to return to Town C.
9. Mr G was the original applicant at first instance. He commenced proceedings on 31 May 2024. He is an Aboriginal man with the same skin name as X. He said under the cultural law of the F people, X was his grandson. He discontinued his proceedings on 23 May 2025 (at which point the appellant, who was then the first respondent in the primary proceedings, became the applicant).
10. The first respondent is a F/J woman who lives in Town N. Her skin name is also O skin, meaning under the kinship system X was also considered to be her son. She is a cousin of X's biological mother and is married to Mr G's son. She sought orders that X live with her.
11. Thus, the final hearing largely involved a contest between the appellant and the first respondent, and whether X ought live in Town C or Town N.
12. Returning to the narrative, the appellant returned to Town C without X in December 2022. After discussions between Ms V, Mr G and the appellant, X went back to live with the appellant in Town C. He had not returned to Town N at the time of the hearing before the primary judge. There was a dispute as to whether the return to Town C was contrary to the wishes of Ms V and Mr G.
13. Ms V died in August 2023. Although Mr G asked the appellant to return with X to Town N to attend the funeral, she did not. She said X did not wish to do so. The funeral was held without them in December 2023.
14. On 19 September 2025, interim orders were made for X to live with the appellant with orders made restraining the first respondent, X's biological mother and Mr West from removing X from her care.
15. The primary judge recorded that it became apparent at the hearing that neither the appellant nor the first respondent has the financial means to facilitate a shared care arrangement between Town C and Town N (at [241]). This was because of the distance, the difficulty of travel and the cost. The easiest way to make the trip is by commercial airline from Town C to Town E. The bus runs from there to Town N twice a week, taking several hours.
16. Ultimately, his Honour concluded:
    1. In view of my earlier findings as to risk, I am satisfied that [X] would be safe living in either [Town C] or [Town N]. I am satisfied that if [X] remained living with [the appellant] in [Town C], then he would be living in a household where his carer loves him and will attend to his educational and therapeutic needs. I accept that if he were to leave her primary care and move to live with [the first respondent] it would be distressing for him, and he would find it traumatic. I accept the evidence of [the single expert psychologist] that trauma would have long-term consequences for him as he progressed into adulthood.
    2. Whilst [the appellant] believes that she will be able to provide and meet his cultural needs, I am not satisfied that she can, as those needs can only be met on country. I am satisfied in accordance with s 60CC(3)(b) of the Act that the orders she seeks would impact negatively on [X's] right to enjoy his culture and to connect with his community, culture and country and to explore the full extent of that culture. An order giving sole decision-making responsibility to [the appellant] where she cannot be a [kinship mother] to [X] as she is no longer on country and not a part of the community would be inconsistent with the kinship obligations and child-rearing practices of [X's] culture.
    3. I am not satisfied that the recommendations of [the single expert psychologist] or the orders the ICL proposes ameliorate the impact of the orders [the appellant] proposes. They are also not practicably able to be implemented. [The appellant] makes it clear that she cannot afford to travel to [Town E] and does not embrace the order sought by the ICL or the recommendation of [the single expert psychologist]. She opposes any order that [X] spend time with [Mr G].
    4. Whilst [X] would find the loss of his relationship with [the appellant] traumatic, that trauma must be measured against what I am satisfied would be the long-term effect of his disconnection from his country, community, and kin. His identity as an Aboriginal person is linked to his connection to his country.

...

1. A return to [Town N] for [X] is not a return to some alien location. He is returning to a place where he has lived most of his life. With a return to [Town N], in the primary care of [the first respondent], and through being on country, [X] can learn about his culture through the stories and [rituals] that can only be taught on country. He will be able to take part in Men's Business which the elder men in [Town N], including [Mr G], can teach him. He can become a [traditional healer] like his grandfather. He will be able to assume the cultural responsibilities of his community. This cannot occur in [Town C].
2. I am satisfied that the impact of the orders proposed by [the first respondent] are such as to enable [X] to enjoy the rights identified in s 60CC(3) of the Act and that [the first respondent] and [Mr G] can support and provide [X] with the opportunity and encouragement necessary to connect and maintain his connection with members of his family, community, culture, country and language; explore the full extent of his culture; and develop a positive appreciation of his culture.
3. An order giving sole decision-making responsibility to [the first respondent] as a [kinship mother] to [X] is consistent with the kinship obligations and child-rearing practices of [X's] culture.

1. At the hearing of the appeal the appellant, by way of an oral application, sought to amend the grounds of appeal to those set out in a document headed "Appellant's Amended Appeal Grounds" lodged on 23 February 2026. The amendments involved significantly rewording Ground 2 and removing Grounds 3 and 4 entirely. The proposed amendments were the seventh iteration of the grounds of appeal and were given to the first respondent and the Independent Children's Lawyer only on the morning of the appeal. A copy had not been provided to Mr West.
2. This proposed amendment differed from proposed amendments to the Revised Further Further Amended Notice of Appeal forwarded to the other parties, the Independent Children's Lawyer and the court on 21 February 2026, the Saturday before the appeal. That document had made very substantial amendments to both Grounds 1 and 2 and deleted Grounds 3 and 4.
3. It is trite indeed to say that the respondents to the appeal and the Court need to be aware of the grounds of appeal in time to be able to properly prepare for the hearing. Importantly, procedural fairness demands that the respondents to the appeal understand the case that they are being asked to meet so that they can meaningfully respond to it.
4. Here, the very description of the Revised Further Further Amended Notice of Appeal, which raised four grounds, indicates that the original Notice of Appeal had already been amended, without the need for leave, four times. As stated, the version of the grounds proposed at the hearing was then the seventh version relied upon by the appellant.
5. This is obviously very unsatisfactory. Time, effort and legal costs have been wasted in dealing with these iterations including the first respondent and the Independent Children's Lawyer preparing a Summary of Argument and oral submissions as to two grounds which are now not pressed.
6. We gave the appellant leave to amend the grounds of appeal as sought at the hearing because we considered that it was in the interests of justice to do so. We were influenced by two matters in particular. The first was that the amendments sought to deal with what were described as technical deficiencies in the then existing Ground 2 raised by the first respondent and the Independent Children's Lawyer. The second was that senior counsel for the first respondent and counsel for the Independent Children's Lawyer, most commendably, indicated that they could deal with the amendments and did not see the need to re-draft their Summaries of Argument.
7. The Notice of Appeal sets out the metes and bounds of the appeal (see Pachris & Tajir (No 3) [2023] FedCFamC1A 230 at [19]). In the absence of obvious error, it is not for the Court to look through the material with an eye to finding error (Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415).

Ground 1 - Did the primary judge fail to give adequate reasons for finding that the risk of sexual abuse of X in Town N is low?

1. In order to understand this ground, it is necessary to set out some further matters.
2. The appellant's evidence was that in October 2022, X began disclosing to her that he had been sexually abused in Town N.
3. In April 2023, he told the appellant that he had been raped by Mr M, a cousin. She did not contact the Department of Children and Families or the police despite X continuing to describe multiple occasions of sexual abuse by Mr M.
4. The appellant was, however, contacted by Western Australia Child Protection in December 2023 and the police in January 2024 about the allegations.
5. On 23 January 2024, X described being raped by Mr M. When he found out the police wished to talk to him, X said he was lying and the allegations were not true.
6. In February 2024, X was interviewed by Western Australia Child Protection when he was at school without the knowledge of the appellant. The notes record a complaint of rape. He would not detail what that meant.
7. For extensive reasons his Honour concluded that sexual abuse had not be established (at [127]).
8. The primary judge then considered whether there was an unacceptable risk of sexual abuse of X if he was returned to Town N saying:
   1. Counsel for [the appellant] submits that there is no way that the risk can be ameliorated by orders such that it could be rendered acceptable. He submits the risk is heightened by a denial of any risk of harm by [Mr G] and [the first respondent]. He says [Mr G] was informed of the child sexual abuse but did nothing about it. Of course, the same can be levelled against [the appellant].
   2. I note the affidavit evidence of [the first respondent] as follows:
      1. I know that [the appellant] has said that [Mr M] has abused [X]. I do not know what really happened because I was never told about it. I only know about what [the appellant] has said in her affidavit. To help [X] feel safe and protect him, I will not let [Mr M] be around [X]. I will make sure [X] does not walk to school on his own. I will make sure [X] is never left alone with [Mr M].
   3. I am satisfied that [the first respondent] has an appreciation of the issues and will act protectively in [X's] interest.
9. This led to the conclusion:
   1. I accept that possibilities provide a basis for finding that a risk exists. But there are, as made clear by the evidence, possibilities of risk in any scenario.
   2. The risk events have been identified above. I assess the likelihood of them occurring for the reasons referred to above as low. I accept the magnitude of harm if child sexual abuse were to occur is high. Taking all of the evidence into account and all of the matters referred to above I am not persuaded that the risk of sexual or physical assault or harm to [X] meets the threshold of an unacceptable risk. I am satisfied that such risk as may exist in [Town N] is acceptable.
10. The submission is that the reasons are inadequate because it is impossible to discern from them why the risk is low.
11. The test for adequacy of reasons, as set out below, is well known (Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191 at 78,266). See also Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [57]-[59].

The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will ... be inadequate if:-

(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or

The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.

1. The reasons must be read as a whole.
2. The primary judge considered the risk of sexual abuse and physical harm at [102]-[149]. While length does not equal adequacy by any means, there was no suggestion that his Honour had failed to mention a relevant fact or undertake any necessary consideration. The core of his Honour's reasons are at [127] which state:

127. I reach that conclusion for the following reasons:

(a) The evidence falls into two broad categories that recorded in documents which are prepared by experts and appear to have been made relatively contemporaneous with the statements such as Exhibit 6, 7 and 21 which I find are more reliable as an accurate recounting of what was said than what [the appellant] reports in her affidavit of conversations that occurred some years earlier. [The appellant] does not give evidence that she made contemporaneous notes of what she was told. Thus, her evidence is based solely on her recall. In that respect, I adopt the observations in Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315, by McClelland CJ in Eq where his Honour said at 319:

... Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience

(b) The statements by [X] to [the appellant] as recorded in her affidavit arise in the context of numerous conversations over many hours. [The appellant] refers to some 40 conversations since October 2022.

(c) The conversations do not appear to be presented in the order in which they occurred but rather seem to be a jumbled recitation of many different conversations. The recounting is clearly not a complete record of the conversations; some of the conversations are said to go for an hour but only part of the conversation is included. Many of the conversations include only the words allegedly spoken by [X] and do not include the question and where there is a question asked by [the appellant], many are leading. Context is absent in relation to almost all of the conversations and in many instances, there is no recounting of how [X] responded to the conversation. At the time of many of the conversations [X] was six years old.

(d) The statements lack context and rarely is there any evidence of his demeanour at the time the conversation takes place.

(e) The allegation that [X] said to [the appellant's] mother on 15 March 2024 that "I've been raped ya know" has no context as to the circumstances in which [X] said these words, how he said them, or whether it was in response to something said to him. [The appellant's] mother was not called to give evidence.

(f) [The appellant] agreed in cross-examination that it was she who suggested to [X] the word "rape" and told him that was what had happened to him.

(g) The identity of [Mr M] as a perpetrator of child sexual abuse appears to arise in the context of questioning including leading questions by [the appellant].

(h) [Mr M] has never been interviewed by the police or any Child Protection authority.

(i) Despite her current firmly held belief that [X] has been sexually assaulted, she has at times questioned the truth of what [X] has said. [The appellant] has told her counsellor [in early] 2025 that her current stressors are [X's] lies and sexualised behaviour and further, "she worries she might be reading too much into any of his words or behaviours" (Exhibit 7). [The appellant] told the police that he had lied about it happening and it is reported in the context of the allegations that he is "a bit inconsistent/variable" (Exhibit 21).

(j) When interviewed by Child Protection officers and in saying that he was "raped", [X] did not know what the word "raped" meant and said that "[m]um told me they rape" (Exhibit 21). The use of "they" makes it unclear whether this is a reference to one person or multiple persons.

(k) This interview takes place at a time after [X] has discussed the allegations of child sexual abuse with [the appellant] many times and is compromised by the repeated telling and leading questions and suggestions by [the appellant] of what happened.

(l) There has been no investigation by the police beyond concluding based on what WA Child Protection reported that there was insufficient evidence.

(m) [The single expert psychologist] opined that displays of sexualised behaviour in children are often an indicator of exposure to sexual behaviour from others including their participation in sexual behaviour. [The appellant] reports [X] being sexually assaulted in a swimming pool in [Town C] while in her care. The sexualised behaviours may have an explanation other than [X] being the alleged victim of alleged child sexual abuse by [Mr M] or others in [Town N].

(n) [The appellant] has herself questioned whether she is reading too much into his behaviours (Exhibit 7).

(o) The text messages [the appellant] relies upon are opaque and open to a myriad of interpretations. Absent context, they are not supportive of the conclusions [the appellant] invites.

(p) [X] tells [the appellant] after his return to her care on 21 April 2023 that during the time he was in [Town N] between January and April 2023 he had been "violently raped by [Mr M]" ([the appellant's] affidavit, paragraph 90). Exhibit 5 is the record of a doctor who examined [X's] anus for worms [in May 2023]. The doctor does not record any injury, scarring, wounds or trauma to his anus.

(q) [X] does not say why [Mr M] broke his tooth. I further note that the doctor's record [of May 2023] does not disclose a half broken front tooth but a lost front tooth (Exhibit 5). The allegation that [X] had a half broken front tooth caused by [Mr M] as evidence of retribution for disclosing the child sexual abuse is no more than mere speculation on the part of [the appellant].

1. It is plain his Honour considered that the evidence in support of the allegations was far from persuasive. That, of course, must bear on the nature of any risk of sexual harm.
2. These paragraphs expose the primary judge's reasons and provide a clear explanation as to why his Honour was not satisfied that the abuse had been proven and why any risk was low. It follows, therefore, that the reasons are adequate.

Ground 2 - Did the primary judge err in his assessment of unacceptable risk?

Further and in the alternative, the decision is unreasonable or plainly unjust as the trial judge erred in his application of the test for assessing unacceptable risk in that he did not properly assess the likelihood or potency of the risk of sexual abuse in that he:

(a) Failed to adequately consider that the original child protection officers who interviewed the child found that there is a likelihood that the child has experienced sexual harm perpetrated by [Mr M]; and

(b) Placed too much weight upon the lack of a police investigation.

1. The question arises as to whether an appeal from a finding that there is or there is not an unacceptable risk of harm to a child falls to be determined on the correctness standard, as explained in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, or under the approach to appeals from discretionary judgments, as set out in House v The King (1936) 55 CLR 499.
2. Whilst the outcome as to a finding of unacceptable risk is binary - there either is or is not such a risk - we consider that it is an evaluative decision. The judge must take into account the likelihood of the risk occurring, the nature of the risk itself, which may vary from slight to fatal, and any protective measures against the harm occurring. It is the weighing of these various factors that results in it being an evaluative decision.
3. It must be remembered, as explained in Pickford & Pickford [2024] FedCFamC1A 249; (2024) FLC 94-230, the Court is concerned with the possibility of harm occurring and the possible nature and effects of the harm, having regard to the whole of the evidence in drawing its conclusion.
4. In GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442, the High Court said:
   1. ... The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the "correctness standard" applies) was identified as that between questions lending "themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions" in which event "it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance", and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.
5. It follows that appeals from binary, but evaluative, decisions are determined on the correctness standard. See also Yoxall & Eide [2024] FedCFamC1A 200 at [48]; Abano & Backus (No 2) (2025) FLC 94-252 at [61]; and Adams & Marchenko [2025] FedCFamC1A 197; (2025) FLC 94-278 at [21] and [26].
6. It is, however, still necessary for the appellant to identify a legal or factual error that was material to the outcome. The nature of the decision must still be kept in mind. As Gagelar J explained in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541:
   1. Norbis v Norbis was not departed from in Singer v Berghouse, where the House v The King standard was held to be applicable on appellate review of an opinion formed by a primary judge, as a precondition to the exercise of discretion to make a maintenance order in testator's family maintenance proceedings, as to whether an applicant for the order had been left with "inadequate" provision for his or her "proper maintenance, education and advancement in life". Explaining that holding, the majority expressed agreement with the statement that "[u]nless appellate courts show restraint in disturbing the evaluative determinations of primary decision-makers they will inevitably invite appeals to a different evaluation which, objectively speaking, may be no better than the first". To describe a second evaluative determination as "no better than the first" is necessarily to postulate that both determinations are legally permissible.

1. His Honour went on to refer to the following passage from Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194:
   1. "Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result." Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject-matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.

1. It follows that the weight to be given to the various factors leading to a finding as to unacceptable risk will vary, leading to a difference in outcome where one judge's weighing is not more or less correct than another's.
2. The ground itself focuses on Exhibit 21, which is headed "Child Safety Investigation and Approved Outcome Report" from the Region Y Joint Response Team dated November 2023.
3. The primary judge quoted it at [118] and [119] and expressly took it into account in forming his conclusion at [140].
4. The submission is that the primary judge did not "adequately consider" this evidence and that this led to a finding which was unreasonable or plainly wrong. The ground and the submissions in support of it hinge on the primary judge's failure to adopt the decision of the report writer which was that the sexual abuse was substantiated.
5. This creates an immediate difficulty for the appellant. Why was his Honour obliged to give determinative weight to findings of others when the obligation was upon him, as the trier of fact in the proceedings, to make up his own mind on all of the evidence before him? That evidence was not the same as the material referred to in the report and it was much more extensive. That evidence was tested by cross-examination. None of the authors of the report was called to give evidence.
6. The report records the opinion of the report writer. It was admissible solely because of s 67ZBH and s 102NL of the Family Law Act 1975 (Cth) and s 69 of the Evidence Act 1995 (Cth). Its weight was a matter for the primary judge having regard to all of the evidence.
7. There is force too in the submission of the first respondent that the report is by writers of unknown expertise forming a view under different legislation and possibly involving a different test.
8. Exhibit 21 commences by recording the appellant's comments as to what X had told her. The report writer says:

She did not disclose any of the details, how often it happened or who the alleged perpetrator was. She mentioned that [X's] recollection of the events was a bit inconsistent/ variable.

1. Under the heading "Initial assessment" and "Danger Statement - Sexual Abuse", the following appears:

The Department is concerned that [X] has told his carer that he was sexually abused when living with family in the Northern Territory. It is reported that currently [X] is residing with his carer in [Town C]. CPFS is worried that if [X] returns to the Northern Territory and there has been no department involvement, [X] will be at risk of being sexually abused in the future. This would impact on his ongoing development, safety and emotional wellbeing as he develops from childhood into adulthood.

1. There was then a lengthy discussion of all of the adults concerned with X and their capacity to protect him. Included in that section was:

...When asked about [Town N], [X] said it was bad there, that there was always fighting everywhere and that cars where spinning around fast. When asked if there was anything good about [Town N], [X] confirmed there was "none" and that he didn't want to go back there. [X] said he lived with Mum ([the appellant]) in [Town N] in the orange house. When asked about [Ms FF] and [Mr G], [X] said that [Mr G] told Mum to "Take this boy, it's a bad place". [X] was asked what made it ([Town N]) a bad place, he said there was "rape" there. [X] was asked more about the rape, however, said he did not want to talk about it. [X] said "Mum told me they rape". He said he was "raped" "more than one time" and that he told [Ms FF] and [Mr G], "they keep me safe". He was then asked about [Mr G], who he confirmed kept him safe from "Big man [Mr M]". [X] then confirmed [Mr M] had raped him and that [Mr M] lives with "[Ms T]" in the yellow house with his sisters...

1. X refused to give further details. He was observed to become withdrawn at this stage and not always giving verbal answers.
2. Under the heading "Likelihood [of] significant harm", the writer concluded that X had been sexually harmed because:

(a) He could identify the perpetrator;

(b) He was able to identify "his privates" as his penis;

(c) He said he was pinned down;

(d) He said he was raped in a particular house; and

(e) His presentation changed during and after the disclosure.

1. However, the report writer considered that the evidence did not get to the level of proving "actual significant harm". In short, actual significant harm was not substantiated, but a likelihood of harm was. That was not dissimilar to the primary judge's findings.
2. Under "Final Safety Goal", the report concluded that:

...If [X] were to return to [Town N], the responsible adults in the community would need to provide [X] with adequate supervision and ensure he is never left in the care of [Mr M].

1. His Honour found that the first respondent "will act protectively in [X's] interest" (at [143]). Order 6 restrains her from leaving X in the unsupervised care of Mr M.
2. So understood, Exhibit 21 is in general conformity with the primary judge's reasons.
3. To the extent it is not, as we have said, his Honour had much more evidence than was available to the Joint Response Team in 2023. As explained earlier in these reasons, at [127] the primary judge extensively explained why he was not persuaded that sexual abuse had occurred, giving 16 separate reasons.
4. In discussing the possibility of sexual abuse occurring, the primary judge clearly had regard to those findings. Additionally, he expressly referred to Exhibit 21 in forming his conclusions saying:
   1. In that respect I note Exhibit 21, the police records, the Aboriginal Regional Coordinator record, and the report of [Dr HH] all express concerns for [X's] safety if returned. As does the report of [the single expert psychologist]. However, all their conclusions about substantiation of harm and risk rely upon an acceptance of the allegations that [X] has been sexually assaulted and threats to harm him. In each case the people expressing these views, with the exception of the original Child Protection Officers, have not interviewed [X], [the appellant] or anyone in [Town N]. In the case of [the single expert psychologist], whilst he asked questions of [X] and [the appellant], he agreed that it was not his task to investigate the allegations.
5. This led to the ultimate finding:
   1. I accept that possibilities provide a basis for finding that a risk exists. But there are, as made clear by the evidence, possibilities of risk in any scenario.
   2. The risk events have been identified above. I assess the likelihood of them occurring for the reasons referred to above as low. I accept the magnitude of harm if child sexual abuse were to occur is high. Taking all of the evidence into account and all of the matters referred to above I am not persuaded that the risk of sexual or physical assault or harm to [X] meets the threshold of an unacceptable risk. I am satisfied that such risk as may exist in [Town N] is acceptable.
6. Having regard to the weight of the evidence recorded in the primary judge's reasons, we are quite unable to say that his Honour's weighing of Exhibit 21 and his conclusions as to unacceptable risk were unreasonable or plainly wrong.
7. This ground does not succeed.

1. It follows that the appeal will be dismissed.
2. Directions will be made as to written submissions as to costs to cater for the possibility that the first respondent or the Independent Children's Lawyer seeks such an order, noting that the parties were funded by legal aid.
3. The primary judge stayed the operation of the final orders pending the outcome of the appeal. Since then, heavy rain has meant that the road to Town N is impassible. The orders cannot presently be carried out as the bus service is not running. The first respondent and the Independent Children's Lawyer proposed a variation to the orders so that compliance with the orders take place seven days after the bus from Town E to Town N resumes service.
4. The appellant says that she cannot afford to fly her and X to Town E and would prefer to deliver him to Town N herself. This would be several days drive for her. We do not think it would be in anyone's interest for the changeover to occur in Town N. The changeover will take place in Town E, 14 days after the first respondent or the Independent Children's Lawyer informs the appellant in writing that the bus service has recommenced.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Altobelli & Kari.