Jefford & Kaluza [2026] FedCFamC1A 6 (16 January 2026)

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

Barnabas & Phineus [2025] FedCFamC1A 215

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

Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; [1938] ALR 334

CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67

Cizek & Mihov (2024) FLC 94-206; [2024] FedCFamC1A 151

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

De Winter v De Winter (1979) 23 ALR 211; [1979] FLC 90-605

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

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

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Grabar v Grabar (1976) 27 FLR 196; [1976] FLC 90-147

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Holbert & Holbert (No 2) [2024] FedCFamC1A 159

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

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Kuang & Kuang (2025) FLC 94-240; [2025] FedCFamC1A 31

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52

Macarthur & Macarthur (2023) FLC 94-163; [2023] FedCFamC1A 166

Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

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

Moore (a pseudonym) v The King (2024) 419 ALR 169; [2024] HCA 30

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96

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

Paciullo & Paciullo [2020] FamCAFC 169

Pavlic & Pavlic (2023) FLC 94-139; [2023] FedCFamC1A 54

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Richards v Richards [1976] FamCA 109; (1976) 26 FLR 59; [1976] FLC 90-037

Robertson v Knott Investments Pty Ltd (No 3) (2010) 63 AILR 101-289; [2010] FCA 1074

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Shinohara & Shinohara (2025) FLC 94-266; [2025] FedCFamC1A 126

Slater v Light (2013) 48 Fam LR 573; [2013] FamCAFC 4

Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

U v U (2002) 211 CLR 238; [2002] HCA 36

Venter & Venter [2022] FedCFamC1A 122

Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73; [1931] HCA 34

Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447; [2003] HCA 48

1. The appeal be allowed.
2. The orders made on 20 March 2025 are set aside.
3. The proceeding be remitted for retrial before a judge of the Federal Circuit and Family Court of Australia (Division 1) other than Smith J.
4. Pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), the appellant be granted a certificate that, in the opinion of the Court, it is appropriate for the Attorney-General to authorise a payment under the Act to the appellant in respect of the costs incurred by him in relation to the appeal.
5. Pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), the appellant be granted a certificate that, in the opinion of the Court, it is appropriate for the Attorney-General to authorise a payment under the Act to the appellant in respect of the costs incurred by him in relation to the new trial ordered by the court.
6. Pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), the respondent be granted a certificate that, in the opinion of the Court, it is appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of the costs incurred by her in relation to the appeal.
7. Pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), the respondent be granted a certificate that, in the opinion of the Court, it is appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of the costs incurred by her in relation to the new trial ordered by the court.

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

1. I have had the opportunity to read the reasons prepared by Altobelli J.
2. Respectfully, I disagree with his Honour's conclusion that the appeal should be dismissed. I do so despite the well recognised presumption in favour of the correctness of a discretionary judgment (Australian Coal & Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621).
3. For the reasons which follow, I consider that the appeal should be allowed and the proceedings should be remitted for rehearing before a judge other than the primary judge. I also consider that the parties should be granted costs certificates.

1. The appellant appeals in respect of final parenting orders made by the primary judge on 20 March 2025 (the March 2025 order), for the reasons expressed that day. Given that the trial was heard on 17 to 21 February 2025 and 4 and 5 March 2025, the heading of "Ex Tempore Reasons for Judgment" seems to me, respectfully, to be inaccurate.
2. The March 2025 order provides that the parties' children - X, who was born in [redacted] 2017, and Y, who was born in [redacted] 2019 - spend no time and have no communication with the appellant. Whilst those aspects of it which provide for the children to live with the respondent and accord her sole decision-making responsibility in relation to major long-term issues relating to them were not, ultimately, in contest by the conclusion of the trial, the appellant's position before the primary judge remained that orders should be made for the children to spend more unsupervised time with him than they had previously spent and that, associated with that, the respondent should no longer be permitted to relocate them to live with her in United Kingdom.
3. In making the March 2025 order in the terms that he did, the primary judge:

(a) recognised that it would "inevitably involve significant psychological and emotional harm" to the children, particularly X, who he also found clearly understood that the change in the children's time from unsupervised time to supervised time was the direct result of her disclosures and would blame herself for the removal of the appellant from her and her brother's lives; but

(b) found that, given what he considered to be "the very real risk" that the appellant may, in the future, sexually abuse X if there was an order for unsupervised time, the "inevitable and long-term psychological harm" that she and possibly Y were likely to suffer from the termination of their relationship with the appellant and his wife (and what he described as "the coming half-sibling" about whose existence at least X was aware) was less than the risk of the possible harm to them from spending unsupervised time with the appellant (at [51]); and

(c) noted that there had been no submission that there be indefinite supervised time between the children and the appellant and said that, in any event, he would not have considered it appropriate (at [52]); and

(d) noted that, whilst he had considered whether there could be supervised "identity time" between the appellant and the children (particularly noting the expected birth of their half-sibling), he did not think, on balance, that such time was in the children's interests, particularly given that he also found that the same was likely to "exacerbate and perpetuate the psychological harm" they were likely to experience from the eventual cessation of their relationships with the appellant (at [53]); and

(e) found that a no-time order was the order that must flow from the finding of unacceptable risk which he found could not be ameliorated by any other measures (at [49]).

1. This Court, exercising appellate jurisdiction, cannot substitute its own decision for that of the primary judge simply because it might have reached a different decision at first instance (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 517-518); it has no power to interfere with the final orders made by a primary judge unless and until appealable error - that is, some legal, factual or discretionary error - is identified to vitiate them: the demonstration of error by the primary judge is an indispensable condition to the success of any appeal conducted by way of re-hearing as, by virtue of s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), this appeal is (Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 per Gageler J at [30], referring to Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; (1931) 46 CLR 73 at 109; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 179-181 and 187; Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 204 and 223-225).
2. Given that the task of a court on an appeal by way of rehearing is the correction of material error:

(a) the fact that an error is not the subject of express complaint by an appellant in either grounds of appeal or a summary of argument, whether through inadvertence or because such error was induced by the way the parties conducted their cases at trial, does not mean that it can be ignored (Paciullo & Paciullo [2020] FamCAFC 169; Pavlic & Pavlic [2023] FedCFamC1A 54; (2023) FLC 94-139; Kuang & Kuang [2025] FedCFamC1A 31; (2025) FLC 94-240 at [80]; Abano & Backus (No 2) (2025) FLC 94-252 at [39]; Shinohara & Shinohara (2025) FLC 94-266 at [82]); and

(b) reasonably discernible material error should not be ignored, even if the parties do not raise it (Macarthur & Macarthur [2023] FedCFamC1A 166; (2023) FLC 94-163 at [40] citing Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [30]-[32] and Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 at [3]); and

(c) an appellate court is bound to conduct a "real review" of the evidence given at first instance and of the primary judge's reasons for judgment to determine if the primary judge has erred in fact or law (see, for example: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25]; Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]) - there must be a genuine evaluation of the first instance decision and not an illusion of the same: Pavlic & Pavlic [2023] FedCFamC1A 54; (2023) FLC 94-139 at [21]; Abano & Backus (No 2) (2025) FLC 94-252 at [39]).

1. In conducting this requisite "real review", it is necessary to observe the limitations which exist when an appellate court proceeds on the record; such limitations include, as the High Court said in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [33]:

...those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole". The appellate court needs to be conscious that "[n]o judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another". The more prominently limitations of that nature feature in a particular appeal, the more difficult it will be for the appellate court to be satisfied that the primary judge was in error.

1. Further, a primary judge's findings of fact, including those based on inferences, are taken as correct until the contrary is demonstrated; an appellate court should not interfere with a primary judge's findings of fact unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences" (Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at [43]). Such restraint applies to "factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence" and includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts (Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]).

1. In Moore (a pseudonym) v The King [2024] HCA 30; (2024) 419 ALR 169 at [14]-[15], the plurality of the High Court said:

[14] Two standards of appellate review of first instance judicial determinations are of present relevance, namely what has come to be referred to as the correctness standard and a "House v The King" standard involving judicial restraint affording latitude to a trial judge. Under the correctness standard, the appellate court determines for itself the correct outcome while making due allowance for such "advantages" as may have been enjoyed by the judge who conducted the trial or hearing. With House v The King, appellate intervention is limited to circumstances where the trial judge: acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision; mistook the facts; failed to take into account some material consideration; or made a decision that was unreasonable or plainly unjust. These grounds for intervention contemplate the appellate court accepting that intervention is not warranted even though the members of the appellate court may have decided the matter differently to the judge at first instance, a circumstance that is reflected in the language adopted by the Court of Appeal in this case when it described the trial judge's conclusion as "open" to his Honour.

[15] The basis for intervention identified in House v The King was expressed to be dependent upon the subject matter of the appeal, being the exercise of a judicial "discretion". House v The King was an appeal against the imposition of a sentence of three months imprisonment for an offence under the Bankruptcy Act 1924 (Cth). While what constitutes a "discretionary decision" in this context can be ambiguous, in essence it refers to the circumstance where the decision maker is allowed "some latitude as to the choice of the decision to be made". A determination of which standard of review is applicable does not depend on whether the reasoning to be applied is evaluative or in respect of which reasonable minds may differ. Instead, the determination turns on whether the legal criterion to be applied "demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies".

1. In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 280 CLR 442, the High Court said, at [16]:

The reasoning in House v R applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a "discretion" is "apt to create a legal category of indeterminate reference", but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for "value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right". The line separating discretionary decisions (in which appellate review is confined to the House v R 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.

1. The assessment of the terms of final parenting orders which are in children's best interests is not one to which there can only ever be one correct answer, but, instead, tolerates a range of legally permissible outcomes - application of the statutory criteria calls for "value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right" (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 517-518); further, no one consideration and no combination of considerations is necessarily determinative of the result; the decision-maker is allowed some latitude as to the choice of decision to be made (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 per Gleeson CJ, Gaudron and Hayne JJ at [19]).
2. As the Full Court of this Court said in Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 at [85]:

...It is only the overall judgment, expressed in the form of orders made in the children's best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.

1. Consequently, the House v The King standard applies to the consideration of the current appeal.
2. In House v The King (1936) 55 CLR 499, the Court said, at 504-505:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

1. It is uncontroversial that, before the trial presided over by the primary judge, these parents had previously participated in a four day trial before Austin J in July 2022. Justice Austin's July 2022 judgment (and part of the transcript of the trial before him) was in evidence before the primary judge and he considered aspects of the same between [15] and [20] of his reasons; the reference in [18] to paragraph [30] of the "prior judgment" is a reference to Austin J's judgment, to which further reference is made in paragraph [20] below.
2. The proceedings before Austin J required his Honour to consider, amongst other things, the respondent's allegation that, in December 2019, X (then two years and nine months of age) had disclosed, "in language commensurate with her age", that the appellant had massaged her vagina with his penis - a disclosure which the respondent said the child had repeated in February 2020, prior to the March 2020 parental separation.
3. It is also uncontroversial that:

(a) whilst the respondent had not sought any positive finding from Austin J that the appellant had sexually abused X, she had sought that his Honour find that he posed an unacceptable risk of harm to the children - the harm was articulated to be the psychological harm which the children could suffer if they were sexually abused by the appellant at some point in the future; and

(b) during the submissions phase of the trial before Austin J, the respondent's counsel conceded that the evidence was insufficiently probative to demonstrate that the appellant posed the alleged risk of harm; and

(c) having said, at [29] of his reasons, that this concession was "responsibly made" by counsel for the respondent, Austin J said that it was "worthwhile reviewing the evidence lest the mother still harbours lingering suspicion".

1. At [30] of his reasons, Austin J expressed his conclusion that the evidence was not strong enough to demonstrate that the children were at any material risk of harm from sexual abuse by the appellant "essentially for these reasons":

(a) the appellant had denied the allegation of sexual abuse when confronted by the respondent and immediately gave her a plausible explanation about why X might have made a disclosure that involved her genitals and his penis (namely, that she had caught him masturbating in a particular way whilst watching pornography); and

(b) the respondent had admitted in cross-examination that she accepted the appellant's denial at the time and had accepted his exculpatory explanation as being truthful and correct; and

(c) the respondent had, on dozens of occasions after X's initial disclosure in December 2019 (and even after her second disclosure in February 2020), left the children in the appellant's unsupervised care knowing that they would be bathed, changed and sleep over with him - which conduct strongly suggested that she did not repose much faith in the disclosures: she also admitted that she was "comfortable nothing bad would happen to them at that time"; and

(d) the respondent's observation of X in sexual play with a doll in December 2019 was just as consistent with the truth of the appellant's explanation for it as it was with the truth of her disclosure of sexual abuse by the appellant; and

(e) the respondent had not reported X's disclosure to police until 24 March 2020 - after the parents ceased living together; and

(f) X did not make any disclosure of sexual abuse by the appellant during her formal police interview on 25 March 2020 and, in fact, appeared to have positively denied that her genitals were touched or massaged; and

(g) the police investigation did not substantiate X's reported disclosures, and the appellant was not charged with any criminal offence; and

(h) the appellant had consistently denied the allegations to the police, the single expert, in his evidence and when cross-examined; and

(i) when she spoke with a family consultant and prepared her affidavit for an interim hearing in September and October 2020, the respondent had not contended that the appellant posed an unacceptable risk of harm to the children; and

(j) the respondent's apprehension about the children's exposure to the risk of sexual abuse really only sprang from the literal terms of the disclosures made by X in December 2019 and again in February 2020 - in the context of the facts and circumstances summarised above, the child's disclosure was unlikely to be reliable.

1. Because I consider it relevant to the assessment of the respondent's credibility (which in turn is, I consider, relevant to the assessment of the reliability of X's reported disclosures given that the evidence about them is, understandably, of a hearsay nature), it is also necessary to record what Austin J said in [33] to [36] of his reasons, which I set out below:

[33] Although the mother was told by the police months beforehand that the criminal investigation had been concluded, she reverted to the police in June 2020 making further allegations about the father's history. She said in cross-examination she only did so because she was advised to by her lawyers - not because she hoped or expected the criminal investigation would be resumed. The making of the further report to the police about six weeks after this litigation was commenced by the mother, by which time she no longer wanted the children to see the father, wears the appearance of being tactical.

[34] Among the fresh allegations made by the mother to the police in June 2020 was that the father admitted to her in 2018 (when the elder child was still a baby) he had thought of sexually abusing the child. She conceded in cross-examination not having made any such allegation in any affidavit filed by her in these proceedings. Even though she admitted such an omission was quite "remarkable" given the asserted importance of the issue of alleged sexual abuse of the elder child within these proceedings, she did not or could not explain how it could feasibly have occurred. The father denied making any such admission to the mother and it is unlikely he ever did so.

[35] Rather, the father only made an admission to the mother of a quite different and more benign complexion, which was also reported to the police in June 2020. Years before, in 2012, the father confided in the mother how he had been the victim of childhood sexual abuse and he had heard a radio program in which it was mentioned that victims can potentially later become abusers, which worried him. He denied any thoughts of sexually abusing children, let alone making an admission of doing so to the mother.

[36] On the available evidence, an inference is reasonably open that the mother perceived some forensic advantage in making more of the elder child's disclosures than she earlier thought was deserved.

1. None of the above was mentioned by the primary judge in his reasons. This appears to have occurred because he made it clear that, despite the same constituting part of the evidence before him, he had proceeded to assess the issue of the possibility of the appellant sexually abusing X and the issue of whether the appellant posed an unacceptable risk to her and possibly Y on the basis of only the January 2023 events and that which followed them - he disavowed placing any reliance at all on that which had occurred before January 2023. Respectfully, I consider that, in approaching the assessment of the disclosures X was reported to have made and in making the findings based upon such assessment, including those about the risk the appellant was found to pose to the children, the primary judge acted on a wrong principle and failed to take into account material considerations - namely, those matters which had been considered by Austin J in July 2022, only six months before the January 2023 events. It was, in essence, as though none of that had happened.

What happened after the first set of final parenting orders were made?

1. After Austin J made final parenting orders on 29 July 2022, the children spent weekly unsupervised time with the appellant, from noon until 4.00 pm each Sunday. This persisted until 16 January 2023, when the respondent stopped the children spending time with the appellant; she did so after, on her evidence before the primary judge, X (then not quite six years of age) had made certain disclosures to her on 7 January 2023 and 15 January 2023. These disclosures were described by the primary judge as being "of sexual touching" by the appellant (at [56]).
2. The children subsequently spent supervised time with the appellant twice in February 2023.
3. After the current proceedings were commenced by the respondent, an order was made on 24 July 2023 for the children to spend two hours of supervised time each fortnight with the appellant. The children started to spend supervised time with the appellant in September 2023.

The competing positions before the primary judge

1. The following positions were advanced by the parents and the Independent Children's Lawyer before the primary judge:

(a) the respondent contended that there should be a no time and no communication order "based on an unacceptable risk of sexual harm" or, alternatively, the resumption of the July 2022 parenting order, which saw the children spend four hours each week with the appellant; and

(b) the appellant contended that the children should spend more time with him than the four hours per week they had been spending in accordance with the July 2022 order (namely that, by way of graduated increasing time, the children ultimately spend time with him from Friday after school until 2.30 pm Sunday and for five days in the shorter school holidays and two weeks in the longer school holidays, as well as for particular time on special occasions) and that the respondent should no longer be permitted to relocate them to live with her in United Kingdom (as the July 2022 order gave her liberty to do at the end of 2023 on the satisfaction of certain conditions) or, alternatively, the July 2022 order should be reinstated; and

(c) the Independent Children's Lawyer contended that the evidence did not reach the threshold for establishing unacceptable risk of sexual harm of the children by the appellant and proposed that the July 2022 order be reinstated.

1. As the primary judge noted, the appellant vehemently denied any sexual abuse of X or that "sexual touching" had occurred. He denied that he is a risk to either X or Y.

Some relevant concessions before the primary judge and the consequences of the same

(a) it was "properly conceded" for the respondent that it was not appropriate on the evidence for him to make a positive finding that the appellant sexually abused X (at [36]); and

(b) the concession in effect accepted the submission made on behalf of the appellant about the uncertainty involved in the allegations - which uncertainty included, for example:

(i) that the following had not been ascertained: the date or dates on which the alleged touching occurred; how many times the touching was said to have occurred; where in the house the touching was said to have occurred (or, if not in the house, then where); and who, if anyone, was present; and

(ii) why there had been a reference to bleeding when none had been identified; and

(iii) "the various potential inconsistencies as to details around what occurred in the different disclosures made by X to different people" (at [39]); and

(c) all parties accepted, and he agreed, that the matters summarised in (b) above meant that the "required level of comfortable satisfaction" could not be achieved to make a positive finding that the appellant had sexually abused X (at [40]); and

(d) he was left in the "difficult position of having to assess the risk of future sexual harm to [X], and possibly [Y]" which the appellant posed "in the context of disclosures which do not reach the civil standard of proof" (at [42]).

Some relevant aspects of the primary judge's reasons which persuade of appellable error

1. Nothing in the primary judge's reasons suggest that he considered the findings made by Austin J about the respondent's prior conduct at all when he assessed her credibility as the recounter of the statements which she reported X had made to her - statements which, together with those reported to have been made to the maternal grandmother, Ms DD (a therapist/counsellor upon whom X had attended but who was not called as a witness in the proceedings) and the Court Child Expert who authored the Family Report, provided the basis for his conclusions that:

(a) X's "repeated disclosures of the key fact that the father touched her vagina or genital area in a way that made her uncomfortable and which she wanted to stop, was sufficiently consistent and sufficiently reliable to give rise to the finding" "that there is a real and substantial possibility that the father sexually touched X's genital region, and sexually abused her, even though the evidence is insufficient to establish that he in fact did so" (at [43]); and, following this,

(b) on the basis of his assessment of the degree of this real and substantial possibility of past sexual abuse, and accepting the expert's unchallenged evidence as to the grave harm which he found would be suffered by X (and possibly Y) if they were sexually abused in the future, the evidence established, to the relevant standard, that the appellant poses a real and unacceptable risk of future sexual harm to X, and possibly Y, if the children were allowed to spend unsupervised time with him (at [44]).

1. That, in arriving at the conclusions that he did, the primary judge relied only on the statements which X was reported to have made in January 2023 and thereafter is clearly established from the following aspects of his reasons in which he specifically made it quite clear that he:

(a) did not place any weight on "the prior disclosures or the events before January 2023" in arriving at the conclusion set out in paragraph 29(a) above; and

(b) had based his assessment of the unacceptable risk issues "based upon the recent disclosures from 2023" (at [77]) and had considered only the current disclosures (at [159]); and

(c) had not placed any weight on "a large range of other matters raised in the mother's case" (at [158] and [159]) which, from the reasons seem to be as follows:

(i) the prior disclosures made by X in 2019 and 2020 (at [160]); and

(ii) the father's history of childhood sexual abuse (at [161]-[164]); and

(iii) the father's childhood history of issues in stealing women's underwear (at [165]); and

(iv) the respondent's allegation, denied by the appellant, that the appellant had told her that he had watched child pornography before their marriage: an allegation about which the primary judge said that he could not make any finding (at [166]); and

(v) the father's use of pornography (at [167]; and

(d) did not think the following were relevant to his assessment of sexual risk:

(i) the content of supervision notes said to show that the appellant was still paying more attention to X than to Y (at [173]); and

(ii) the appellant's recounting to a support worker that the respondent had fabricated the allegations of sexual abuse and "the judge suggested the same during court proceedings" (at [175] and [176]).

1. As is apparent from my earlier comments, I consider the matters which occurred before January 2023 - including things which had been considered by Austin J in the July 2022 proceedings before him - were clearly relevant to the assessment of a number of the issues before the primary judge.
2. In fact, so much was recognised by counsel for the respondent who, during discussion on the first day of the trial about how to approach the hearing, submitted that "what has flowed since Austin J's judgment needs to be considered in its proper historical context" - a proposition which, according to the primary judge's recorded response, found favour (Transcript 17 February 2025, p.20 lines 17-20).
3. Having stood down to consider submissions made by counsel (including those by counsel for the appellant which correctly noted that the findings made by Austin J had to be accepted in the current proceedings), the primary judge said "I can't consider only facts after a certain date" - a comment which elicited a positive response from counsel for the appellant (Transcript 17 February 2025, p.29 lines 19-22).
4. Further, during the course of his submissions at the time, counsel for the respondent noted that, in paragraph 148 of her Report, the Court Child Expert said that "The only reason to consider a change in residency is if the court were to find that the mother is causing severe psychological harm to X by the creation of false allegations with respect to the father". He then commented that, given that the father's case was that there should be a change in the children's primary living arrangements, "...that can't simply be false allegations from early 2023, one would think. One would think it needs to date back to the earlier ones as well" (Transcript 17 February 2025, p.25 lines 35-36).
5. Whilst the primary judge could not permissibly go behind the factual findings made by Austin J about the matters before him in July 2022, that does not mean that he should not have considered those matters in undertaking his assessment of the issues before him - especially where those issues required the assessment of the reliability of the statements X was reported to have made.
6. I am persuaded that, by proceeding to consider only that which happened in January 2023 and thereafter and by positively refusing to consider, in any way, that which had been considered only six months before, when:

(a) assessing the allegations which formed the basis for his conclusions about the possibility of the appellant sexually abusing X; and

(b) making the findings about unacceptable risk which rest upon that conclusion, and which resulted in the conclusion that the children's best interests are met by preventing them from having any future time or communication with the appellant at all,

the primary judge impermissibly failed to take material considerations into account and thus committed appellable error.

1. Ignoring the reality of the circumstances in which the reported allegations were made seems to me, respectfully, to create an artificiality; as occurred here, it results in the absence of demonstrated consideration of material matters which include, but are definitely not limited to:

(a) whether the assessment of the appellant's denials of sexually abusing his daughter in January 2023 was affected (and if so, how) by the fact that the respondent had accepted his previous denial of sexually abusing X and had previously accepted his exculpatory explanation as truthful and correct; and

(b) whether the assessment of the reliability of the statements which X was reported to have made in January 2023 is affected (and if so, how) by the fact that she had previously made and repeated the statements in 2019 and 2020 which were considered by Austin J in the July 2022 trial; and

(c) whether, and if they do, how, Austin J's findings about the respondent's conduct in June 2020 affects the assessment of her credibility, especially given her significance as one of the recounters of X's January 2023 statements; and

(d) whether or not the respondent's conduct, discussed in paragraphs [48] and [49] below, should be regarded in a similar way to that found by Austin J about her June 2020 reports to police.

1. Having said that the "first and main" issue at the trial was whether the appellant sexually abused X or, in the alternative, whether he poses an unacceptable risk of sexual harm to her and possibly to Y (at [30]), and that the appellant "vehemently denied any sexual abuse or sexual touching" of his daughter (at [31]), the primary judge was, I consider, required to determine, first, whether the appellant had in fact touched X in the way that she is reported to have said that he had and, secondly, whether he found touching was "sexual" in nature so as to constitute an abuse.
2. The latter is, I consider, necessary because not every touch of a child's genitals by a parent is axiomatically an act of sexual abuse. Where a proceeding involves allegations of the sexual abuse of a child arising out of alleged contact by a parent (or an adult discharging parenting or care responsibilities toward a child), it seems to me that a number of possibilities exist vis-à-vis any touching which is found by a judge to have occurred. For example, such touching may have been:

(a) inadvertent in the sense that it had not even been appreciated as having happened by the parent or adult, but had been reported by a child; or

(b) accidental and, thus, absent any intention to come into contact with the child; or

(c) deliberate but for a legitimate purpose, such as when a parent applies cream for a medicinal or treating purpose; or

(d) deliberate and done with the intention of obtaining sexual gratification, whether this is in an immediate sense or with the intention of desensitising the child to such touching with an eye to future abuses, or a combination of both.

(a) said that, weighing all of the evidence and "without placing any weight on the prior disclosures or the events before January 2023" and being aware of the gravity of the finding and its consequences, he had concluded and found that X's repeated disclosures of the key fact that the appellant touched her vagina or genital area in a way that made her uncomfortable and which she wanted to stop was sufficiently consistent and reliable to give rise to his finding that there is a "real and substantial possibility" that the appellant sexually touched her genital region and sexually abused her "even though the evidence is insufficient to establish that he in fact did so" (at [43]); and

(b) noted that the appellant had raised a real issue about the reliability of X's disclosures and said that "to the extent to which no finding is made that sexual abuse happened under the civil standard", the appellant's submissions had been successful (at [199]); and

(c) said that, considering:

(i) all of the evidence of the disclosures, including that X said "my daddy said not to tell anyone" and "my daddy has been touching me and I don't like it"; and

(ii) the fact that X pointed to her nipples and genital area when speaking with the respondent and her maternal grandmother; and

(iii) the fact that X said in an embarrassed fashion that "daddy's touching me and I don't like it... I want him to stop" and again pointed to her genital area; and

(iv) the fact that X made consistent disclosures in respect of the major issues to "an independent professional" (Ms DD) and to the Court Child Expert, who was clear that X was pointing to her genitals; and

(v) the fact that X maintained that the touching occurred even while wanting to spend time with the appellant and defended him by saying "he won't do it again" but maintained that she was concerned and that she "would need someone to watch if he still touched me",

the evidence was sufficiently cogent, consistent, clear and reliable to give rise to "a real possibility" that the appellant had sexually abused X by "unwanted touching of her genital region" (at [200]).

1. As already noted, the evidence about whether the appellant had touched X in her genital region was of a hearsay nature. Given this, it was necessary for the primary judge to consider the credit and reliability of those who had said that X had made a disclosure of sexual abuse to them: namely, the mother, the maternal grandmother, Ms DD and the Court Child Expert who authored the Family Report.
2. This task was easily capable of being done insofar as the mother, the maternal grandmother and the Court Child Expert are concerned as they were called as witnesses before the primary judge; the task was, I consider, impossible insofar as Ms DD is concerned, as she was not called by either parent or the Independent Children's Lawyer.

1. The parents may have had their own forensic justifications for not calling Ms DD; however, in the absence of any evidence to suggest that there were acceptable reasons for this course, the failure by the Independent Children's Lawyer to ensure that she was called is inexplicable.
2. It is, in my view, entirely unsatisfactory that the primary judge was asked to assess the content of Ms DD's notes absent her being called to explain the same. Once it became apparent that neither parent intended to call Ms DD as a witness, it was, in my view, incumbent on the Independent Children's Lawyer, in the discharge of the obligation imposed by s 68LA(2) of the Family Law Act 1975 (Cth), to ensure that she was called to give evidence about matters such as (but certainly not limited to): whether the information recorded in her notes was provided to her directly by X or by the respondent; when, in the session, the information she recorded in her notes was provided to her, particularly noting the respondent's evidence that X had not seen Ms DD between August 2022 and the January 2023 appointment; if the information recorded in the notes was provided by X, was this done absent the respondent's presence or in it; what was the context in which the information provided by X was provided; how did Ms DD approach her interactions with X which resulted in the information recorded in her notes - for example, did she initiate a discussion with X about what she had been told the child had said to someone before their meeting or in any way indicate to the child that she knew why she was seeing her, or did she allow X to tell her, completely unguided, what was recorded in her notes (if it was in fact conveyed to her by X)?
3. Evidence about all of these issues, and others like them, seems to me to be fundamentally integral to the assessment of the weight to be afforded to the contents of Ms DD's notes in determining the reliability and consistency of X's reported disclosures, particularly noting that the respondent's evidence before the primary judge included that the child's attendance on Ms DD in January 2023 was the first time she had seen her since August 2022.

1. The primary judge said that the respondent's failure to disclose the existence of a new relationship when doing her trial affidavit did not affect his assessment of the reliability of her evidence about X's disclosures or his assessment of unacceptable risk (at [185]). It was not suggested that such finding was not open to him. He concluded that the respondent maintained her evidence regarding X's disclosures and presented as a credible witness; he accepted that she was a witness of credit who had done her best to assist the court by recounting her observations in relation to the disclosures made to her (at [195]).
2. Consistent with the stated approach to proceed only on the basis of that which had happened in January 2023 and thereafter, nothing in the primary judge's reasons suggests that, in assessing the respondent's credit, he considered the findings made by Austin J, set out at paragraph [21] above.
3. Further, nothing in the primary judge's reasons suggests that, in arriving at his conclusions about the respondent's reliability and credibility and in making his finding that she was a witness of credit who had done her best to assist the court by recounting her observations in relation to the disclosures made to her, he took into account that:

(a) despite X never telling her that the appellant had made her vagina bleed, the respondent had told Ms DD, in a telephone call between them which happened before Ms DD saw X on 25 January 2023, that X had told her that "daddy made my gina bleed"; and

(b) when asked by the Court Child Expert about the entry "daddy made my gina bleed" in Ms DD's notes, the respondent told her that she could not recollect X stating this and said she believed the child must have said this in her interview when alone with Ms DD; and

(c) when cross-examined about these matters, the respondent:

(i) ultimately agreed that what she had told Ms DD was an "overstatement" of what X had told her (after first saying that "it may read that way"); and

(ii) accepted that, when she told Ms DD that X had conveyed to her that "daddy made my gina bleed", this was wrong - although she also denied knowing that it was wrong at the time; and

(d) when cross-examined about the Court Child Expert's accurate record of their conversation about this issue, the respondent accepted that she had not told the Court Child Expert that she had told Ms DD that X had said "daddy made my gina bleed".

1. It follows from the above that the respondent positively advised Ms DD, before she saw X, of a very serious (but false) allegation, positively allowed the Court Child Expert to think that X was the source of the "daddy made my gina bleed" comment recorded in Ms DD's notes and also positively told the Court Child Expert that she believed X must have told Ms DD this when she (the respondent) was not there. The respondent's evidence, when cross-examined, incontrovertibly establishes that she did these things knowing that she - and not X - was the source of such a significant comment and that X had never said such a thing to her.
2. None of these facts, incontrovertibly established via the respondent's cross-examination, were the subject of any mention at all in the primary judge's reasons. Respectfully, his conclusions about the respondent's credit and reliability seem counter to them; the finding that the respondent was a credible witness who had done her best to assist the court by recounting her observations about the disclosures she said X had made to her is, I consider, demonstrated to be wrong by the respondent's own evidence about her conduct toward Ms DD and the Court Child Expert.
3. The primary judge referred to the "daddy made my gina bleed" entry in Ms DD's notes of her 25 January 2023 conversation with the respondent (at [112]); he noted that there had never been any suggestion that there was a physical injury to X which had caused bleeding (at [113]). However, he appears to have limited his consideration of this piece of evidence to the issue of how it, as one of the many "inconsistencies" pointed to in the submissions made on behalf of the appellant, weighed on the assessment of the reported disclosures and meant that the evidence had not reached "the civil standard of proof for positive finding of past abuse" (at [113]). As already noted, he does not, respectfully, appear to have taken it into account at all in arriving at his conclusions about the respondent's credibility and reliability as an accurate and truthful reporter of comments reported to have been made by X.
4. Further, insofar as the primary judge said he thought there had been no serious attack on the respondent's credit in respect of the disclosures (at [195]), it seems to me that, as the appellant was not present at any of the times of X's reported disclosures, the only attack that could sensibly have been made vis-à-vis the respondent was one which went to her overall reliability and credit. I consider that, when he cross-examined the respondent, counsel for the appellant did advance a serious challenge to the respondent's credit and reliability - by, for example, taking up with her the role she played in the creation of the content of Ms DD's notes and the information she provided to the Court Child Expert about the source of the same.
5. Whilst the primary judge noted and found that the appellant had told a support worker that the respondent had fabricated the allegations of sexual abuse and that "the judge" suggested the same during court proceedings (which appears likely to have been a reference to the findings expressed by Austin J), he appears to have regarded this evidence as relevant only to his assessment of the appellant's parenting capacity (at [177]) - it does not seem to have featured anywhere in his assessment of the nature of the respondent's evidence.
6. Further, whilst the primary judge said that he found the respondent's evidence about why she did not immediately stop the children spending time with the appellant after the first disclosure on 12 January 2023 to be "difficult to follow" and "not particularly persuasive" (at [201]), there is nothing to indicate how these findings sit alongside those about the respondent being a credible and reliable recounter of disclosures said to have been made by X.
7. In the circumstances, I consider the finding made about the respondent's credit and reliability to be demonstrated to be wrong and/or contrary to compelling inference by the incontrovertible fact of the evidence she gave, when cross-examined, about the information provided to Ms DD and the Court Child Expert.

1. There are five grounds of appeal set out in the Amended Notice of Appeal sealed 3 July 2025. However, Ground 4 - an assertion that the primary judge erred at law by failing to give adequate reasons in concluding "that there is a real possibility that sexual abuse occurred and the evidence persuades me the risk of future sexual abuse is there and is an unacceptable risk" - was abandoned by counsel for the appellant when the hearing began.
2. Grounds 1 and 2 asserted that the findings that X's disclosures were sufficiently consistent and reliable and that the children, or either of them, were at an unacceptable risk of sexual harm from the appellant were demonstrably wrong, glaringly improbable and/or contrary to compelling inferences. Ground 3 asserted that the primary judge erred in giving "significant weight" to the opinion of the Court Child Expert about the reliability of X's disclosures and failed to give adequate reasons for doing so; Ground 5 asserted the primary judge erred by failing to carefully outline why, when balanced against the benefits of the children maintaining a relationship with the appellant, the risk which had been identified could not be ameliorated.

1. The primary judge's findings in relation to the issue of the disclosures made by X include the following:

(a) in January 2023, she made disclosures to the respondent, her maternal grandmother and her counsellor - a person she had seen from 2020 and someone with whom she had an existing relationship of trust - that the appellant was touching her genital regions in a way that upset her (at [23] and [24]); and

(b) she maintained "the main disclosure of sexual touching" when interviewed by the Court Child Expert on 18 September 2023 (at [25]); and

(c) the Court Child Expert considered X's disclosures from 2023 to be "clear, repeated, decisive, and consistent in nature" and substantially maintained that opinion when cross-examined (at [26] and [27]).

1. The evidence before the primary judge included that X and Y had spent time with the appellant and his wife on 7 January 2023 and that, during this visit, X had what was described by the appellant as a "wee accident" in the children's bedroom. The appellant's evidence about this included that:

(a) he had carried X out into the lounge room by holding her initially under her armpits and that, in doing so, it was possible he had inadvertently and not intentionally come into contact with her nipples on the outside of her shirt (at [82]); and

(b) once in the lounge room (where his wife and Y were), he had put X to the side on a towel and had supported her with one arm around her whilst he helped remove her soaked clothing - he had pulled X's underwear down from the side of her hips and not from near her vagina, the child was giggling with embarrassment and saying "whoopsie" and made comments that she guessed she had had too much apple juice and "it" had come so fast she did not even feel it coming, and that his wife had then taken the child to have a shower whilst he cleaned up (at [82]); and

(c) he had advised the respondent by text that day that X had had a "wee incident" (at [83]); and

(d) he had not touched X's genital region during this incident (at [85]).

1. The evidence given by the appellant's wife corroborated his account of what had happened; she also corroborated that he had not touched X's genital region during what had transpired.
2. The primary judge recorded that he accepted the submissions made on behalf of the appellant that it may have been that X may have experienced, during this incident, the feeling of wet underwear moving across her genitals as being someone touching her. The primary judge also said that he accepted this as relevant and would "weigh it in the assessment of X's disclosures" (at [85]).
3. Whilst the primary judge noted, at [211] that:

...The father submitted that the combination of factors whereby the mother had maintained her belief that the father was a risk of sexual harm throughout, and was therefore anxious on each occasion the children went to visit the father, which is something they would have picked up on, and that [X[ was told the underpants and no-no zone rules, but noting that the father was included in [X]'s agreed safe list, but where the mother had told [X] at some stage that the father needed to have lessons to keep her safe, might all have led [X] to be anxious and overly risk aware and to have misinterpreted some innocent bumping or touching, or perhaps the changing of the underpants after she wet herself, in a way which made her express it as a disclosure when, in fact, there was no sexual touching

it is unclear from the reasons how he ultimately weighed that which he had accepted as relevant in arriving at his conclusions about X's disclosures.

1. The primary judge's reference to the appellant being included in X's "agreed safe list" was contrary to the respondent's evidence that she, the maternal grandmother at some point in time and Ms DD were the only people on X's safe list - albeit that, when asked a list of her safe persons, the child intermittently mentioned the appellant.
2. The evidence about what was described as X's first disclosure came from the maternal grandmother and the respondent. In summary, the maternal grandmother said that, on 12 January 2023, X told her, after saying that she could not tell her and it was a secret and she would tell her but would be breaking her promise and that her daddy had said not to tell anyone, that, "my daddy has been touching me and I don't like it". After being asked "where?", X was said to have pointed to her nipples and "vaginal region". The evidence also included that when the respondent returned home, X ran to her and told her that "daddy has been touching me and I don't like it"; when asked by the respondent "where has daddy been touching you?", X was said to have pointed to her nipples and "genital region"; when the respondent asked her what sort of touching and where the appellant's wife was, X repeatedly poked her finger into her mother's leg and said "like that; [Ms V] and [Y] were laughing". The respondent said she told her daughter to "tell daddy you don't like it and to stop doing it".
3. It is uncontroversial that the respondent sent the children to spend time with the appellant after this event. She said, when cross-examined, that she had assessed that the appellant had been poking X with his finger in a joking, playful manner with everyone present, and that it was not a serious matter.
4. The primary judge's findings about what was said on 12 January 2023 included that:

(a) the fact that X demonstrated the nature of the poke to the mother by poking her leg was not necessarily inconsistent with "her statement that the touching had been to the nipples and genital area" (at [90]) - however, given that neither the respondent nor the maternal grandmother's evidence included that X had made any statement to either of them at that time that the "touching" about which she had complained had been to her nipples and genital area, this seems to me to constitute a mistake by the primary judge about the evidence before him; and

(b) it was consistent with "other later disclosures to independent people, in particular, [Ms DD]" (at [91]); and

(c) the fact that the mother did not immediately respond to the disclosure did not affect the quality and reliability of X's repeated disclosures (at [203]).

1. Nothing in the primary judge's reasons makes it clear how he assessed the apparent inconsistency between the assertion of secrecy and the fact that the appellant's wife and Y were both present during this poking.
2. The primary judge found that a video recording of X's interactions with the appellant during the visit on 15 January 2023 showed him grabbing her in such a manner that his hand/arm comes across the front of her groin and up her skirt, that she was uncomfortable and that his wife intervened (at [94] and [97]). He also found that, whilst relevant to an assessment of the appellant's parenting capacity, this footage did not include evidence which would add to the issue of sexual risk (at [97]).
3. The respondent's evidence included that, on 18 January 2023, X told her that "Daddy's touching me and I don't like it. I want him to stop"; when asked by the respondent, as she carried her toward her bedroom, where he was touching her, X pointed to her genitalia; when asked where Ms V was, X said she was not there and was busy studying; X said that Y was there and he thought it was funny but she thought it was embarrassing; she said "I don't like it and I want him to stop"; when asked by the respondent if it was a long touch or a short touch, the child said "a long touch"; when asked "does it hurt?", X said "yes. Daddy made that red dot on my gina" (at [98]).
4. The respondent's evidence about X saying that the appellant caused the red dot on her "gina" has to be seen in the context that the respondent also said that, on 15 January 2023, following a visit with the appellant, X said "my gina is sore", was irritable, appeared distressed and started to cry; after the respondent asked her to let her look and apply some cream, the child allowed her to inspect the area and she saw a red dot at the top of her vulva on the right side; the respondent said X was distressed and crying and shouted "No! its taking a long time to fix my gina. Why can't you just fix it!". The respondent also said that X had suffered with vulvovaginitis from time to time and she had been applying barrier cream to assist with the discomfort although, for about two months before this, the child had been refusing to allow her to apply creams despite appearing to be in obvious discomfort (at [98]).
5. The primary judge found that:

(a) the red dot appeared consistent with X's history of vulvovaginitis (at [102]); and

(b) the fact that the father touching or poking X there could not have caused such a red dot was not inconsistent with the father having touched X there and X, having "a child's temporal understanding of causation", deciding that, as the father had touched her in the genital area and there was a red dot there, the red dot was caused by touching (at [103]); and

(c) X's comment that "daddy made that red dot on my gina" was not evidence which weighed against the accuracy of the disclosure (at [103]); and

(d) he did not find that the red dot weighed in favour of there having been sexual abuse, "since it clearly is unrelated to mere touching" (at [103]).

1. It is uncontroversial that the children did not spend time with the appellant for the next scheduled visit on 22 January 2023. The primary judge accepted that it was likely that the respondent lied when she told the appellant that she would have to cancel the visit due to Y's asserted ill-health (at [104] and [105]).
2. It is also uncontroversial that the respondent contacted the relevant state child protection authority on 23 January 2023. According to the notes of that interaction, some of which are set out at [106], the information provided to the authority included that:

(a) on 12 January 2023, when asked by the respondent where the appellant kept touching her, "[X] pointed to her front (vagina) and also pointed to her bottom"; and

(b) on 18 January 2023, X told the respondent that "daddy keeps touching me and I don't like it and I just want him to stop"; when asked who was there, she said "[Y]"; Ms V is studying; when asked "are you wearing clothes?" she said "sometimes me and him take [our] clothes off to cool if we're too hot"; when asked where she was touched, X pointed to "nipples front (vaginal area) and to her bottom"; when asked "did it hurt?", X said "yeah. Daddy made that red dot on gina".

1. There is no mention in the relevant aspect of the respondent's affidavit which the primary judge included at [98] of the reasons of the query about wearing clothes or X's response to the same; further, the respondent's evidence when cross-examined about the contents of the authority's notes included that she denied saying anything about X pointing to her bottom.
2. The evidence before the primary judge established that the respondent telephoned Ms DD on 25 January 2023. The primary judge set out the contents of the notes of that interaction at [108] and they include:

(a) 12/1/23 "can't tell you it's a secret"; and

(b) 18/1/23 "daddy's been touching me and I don't like it"; and

(c) nightmares, ...outbursts, distress - climbed onto mum for hug, then hid in corner "I don't know how to tell you"; and

(d) "daddy's been touching me; I don't like it: I just want it to stop"; and

(e) "long touch", "daddy made my [va]gina bleed".

1. Nothing in the notes suggests that the respondent told Ms DD that, when asked on 12 January 2023 about the nature of the touching, the child repeatedly poked her finger into her mother's leg and said "like that; [Ms V] and [Y] were laughing".
2. The evidence before the primary judge also established that the respondent subsequently took X to see Ms DD on 25 January 2023. The primary judge set out the contents of the notes of that interaction at [109] - after the heading "25/1/2023 [X] F2F w mum", they are:

touching me in my privates

[Y]'s birthday

Xmas

Birthday

"I say stop it I don't like it, but daddy won't stop it"

"I walk away but daddy follows me"

"I dont like to talk about it"

"why"

"coz I don't feel comfortable"

Brave - chickens

Solicitor - writing letter requesting no more supervised visits

(a) in particular, he gave weight to Ms DD's notes recorded in the "face-to-face" where X was there with the respondent (at [113]); and

(b) in respect of when X was with her, Ms DD used quotations marks (at [114]); and

(c) he found that the proper inference was that "the quotation marks record when X was present and record words used by X" (at [114]); and

(d) the disclosures recorded by Ms DD are "clear and frank" and she appeared to have made a mandatory report to the state authority (at [114]); and

(e) he was "satisfied that it is likely that Ms DD has accurately recorded X's disclosures to her that were made when X was present with her" (at [115]); and

(f) Ms DD's records are clear and recount in direct quotes what appeared and what he found to be disclosures made by X (at [197]).

1. However, given the use of quotation marks in the notes of Ms DD's telephone call with the respondent to seemingly record what the mother was saying the child had said to her and that the consultation between Ms DD and X was "F2F w mum", it is, I consider, impossible to know without hearing directly from Ms DD whether what was recorded within quotation marks in the notes of the consultation was a note of what X herself said or what the respondent said she had said.
2. Further, on the basis of the primary judge's findings about Ms DD's notes:

(a) given that the phrase "touching me in my privates" is not within quotation marks, it appears that X may not herself have made any actual disclosure of inappropriate touching by the appellant to Ms DD during that consultation; and

(b) if regard is had only to the words noted within the quotation marks, it seems to me that they are as consistent with a complaint that the appellant had poked X in the leg in circumstances where his wife and Y were laughing as they are with any suggestion of sexually abusive touch.

1. Other than repeated reference to asserted consistency, nothing in the primary judge's reasons seems to me to demonstrate why he concluded that the content of the absent Ms DD's notes was more suggestive of an accurate and reliable complaint of sexual abuse than of an accurate and reliable complaint of an unwanted poking in the context of the joking, playful manner - as the respondent initially considered the comments made on 12 January 2023 to be.
2. The primary judge noted that, on 25 January 2023, the respondent's solicitor sent correspondence to the appellant's solicitor. Reference to [116], where relevant aspects of this correspondence is set out, establishes that the correspondence advised that the respondent would not provide the children for unsupervised time with the appellant, proposed supervised time and conveyed that:

(a) on 12 January 2023, X made a disclosure to the maternal grandmother and to the respondent to the effect that "Daddy's touching me and I don't like it" and pointed to her nipples and genital area whilst stating the above - after X said that both Y and Ms V were there at the time and laughing, the respondent understood that the appellant had been poking X with his finger in the presence of Y and Ms V who were laughing and accordingly she considered it was not a serious matter, and the children were made available on 15 January 2023; and

(b) after that visit, X was very unsettled, uncharacteristically angry and aggressive; and

(c) on 18 January 2023, X complained that her "gina is sore. Dad is touching me"; she attributed a red spot on her genital area to "Daddy did that" and told the respondent words to the effect that Ms V was not there and was busy studying; that Y was there "and he thinks it's funny but I think it's embarrassing. I don't like it and I want him to stop".

1. The primary judge found, at [196], that "the evidence of disclosures was consistent with the contemporaneous letter from the mother's solicitor". However, given that the respondent was the source of the information, this is hardly surprising; that the party advancing that a certain disclosure has been made in certain terms causes those terms to be conveyed in correspondence sent to the other party does not, it seems to me, assist in determining whether the disclosures which are said to have been made are, in fact, consistent in their terms.
2. Having noted that the respondent took X to see Ms DD again on 21 February 2023, the primary judge set out aspects of the notes of that interaction at [120]:

21/2/2023 [X] w/mum

... maybe I'm the probm [sic]

"problem"

I'm the problem

Bigger than [X]

black/grey

"he's not hurting [Y], he's only hurting me"

tell mummy

don't want to tell mummy

b/c telling mummy would make s'one sad.

Spoke to [X] on her own and she said same as last session - 'the problem is daddy; he touches me on my no-no square".

will talk to mummy tonight

1. Whilst the primary judge said at [122] that X's disclosure of the main complaint - which was that the appellant was touching her on her "no-no-no square" - was consistent with the reports made by the respondent, the maternal grandmother "and the prior report of Ms [DD]", there is no mention in Ms DD's notes of the 25 January 2023 consultation that X had said that to her. Given this, it is, I consider, potentially unsafe to assume that the phrase in quotation marks which follows the assertion that X "said same as last session" is the same thing that X told Ms DD when she first spoke with her on 25 January 2023.
2. It is uncontroversial that the children did not spend any time with the appellant between 1 May 2023 and 11 November 2023. It is also uncontroversial that the interviews by the Court Child Expert for the Family Report occurred on 18 September 2023 - X was then six and a half years of age and about eight months had passed since she had spent any unsupervised time with the appellant.
3. The Court Child Expert's evidence about her interview of X included, as set out at [131], that, after she told the child "I heard something happened when you spent time with Daddy", X said "Daddy was touching me here" and pointed to her "vagina"; when asked "Is this something that happened once or more than once", she said it happened "once"; when asked "who was there", she said "no-one". The Court Child Expert said X then volunteered, absent questioning by her, that she had told the respondent about what had happened: she also said "Daddy is taking lessons about me"; "I am not worried about Daddy touching me again" and "he won't do it again".
4. The reference to the appellant taking lessons needs to be understood as occurring in circumstances where the respondent's evidence, as noted at [110] and [131], included that:

(a) during X's January 2023 session with Ms DD, she (the respondent) had said "Daddy might need some time to think about what has happened and learn how to look after you safely"; and

(b) when X asked her some days later when she could see the appellant again, she had told her "Daddy is working on how to look after you safely, darling"; and

(c) she had told X that "Daddy needs to learn how to look after you and [Y] safely".

1. The Court Child Expert's evidence also included, as set out at [131], that:

(a) when she asked X if she had talked to anyone about what had happened with the appellant, the child's initial response was "No" - however, when asked if she had spoken with [redacted] (Ms DD) about it, she agreed that she had done so; and

(b) when she asked X how she would feel about spending time with the appellant for the purposes of observation, the child said, without prompting, that she would like to see him - she reported being with him made her feel happy and she would like to go back to seeing him each week; and

(c) when asked if anyone was present when the children last spent time with the appellant, X confirmed someone was present - she then volunteered that she did not need anyone to watch over the time with her father, seemed to think and then said, "yes, I would need someone to watch if he still touched me, but he went to lessons and he won't do it again" - the expert said this thought process had not been enhanced by questions or prompts from her, seemed genuine in its nature and appeared free flowing.

1. At [133], the primary judge set out the Court Child Expert's conclusions, which included that:
   1. The father denied he has inadvertently or accidentally touched [X] near or around her vagina and [X]'s disclosures appear to be clear, repeated, decisive and consistent in nature, which may lessen the possibility of the third hypothesis.
   2. Based on the repeated disclosures, [X]'s observed behaviour (which is inconsistent with a hypothesis of alienation), the mother's concerns, and the father's demonstrated impaired parenting capacity (see the Expert reports), the Court may need to consider the possibility there has been a single incident of the father touching [X]'s vagina, without her consent.
2. The primary judge noted in particular that:

(a) the reference in paragraph 142 of the Court Child Expert's opinion to the "third hypothesis" was a reference to an inadvertent leading or misinterpretation of events (at [134]); and

(b) given that Ms DD had not been called, the disclosure to the Court Child Expert was particularly relevant as it was a disclosure to an independent person who was highly trained in child interviewing and who was able to confirm there was no doubt that when she was asked where she was touched, X pointed to her "vagina or genital region" as the respondent, the maternal grandmother and Ms DD's notes said she had (at [137]); and

(c) X had told the expert that it had happened only once and no-one was there - which was inconsistent with other histories: however, she also initially denied telling anyone other than the mother "which was not correct" but, when prompted, agreed she had spoken with Ms DD - which was accurate (at [138]); and

(d) he considered that the fact that X had used the word "again" when she said she was not worried about the appellant touching her again, "he won't do it again", made it clear that she was saying she had been touched in that area and was worried it would happen again (at [139]); and

(e) all of the above suggested that, in her discussion with the expert:

(i) X had been taken to the topic, understood she was being asked about the disclosures and confirmed the making and truth of the disclosures; and

(ii) X confirmed, inconsistent with a hypothesis that she had been coached or taught to say bad things about the appellant, that she wanted to spend time with him and was thinking through, in an age appropriate fashion, the fact that this touching had happened, that she did not like it, that she wanted to be able to spend time with him, was hopeful it would not happen again but was concerned it might happen again; and

(f) the disclosure made to the Court Child Expert was not inadvertently led by the expert but was a disclosure which had been made when the expert directed X to the topic which the child knew was significant (at [198]).

1. The primary judge then concluded that all of these things spoke to the genuineness of the disclosure as "a disclosure of a lived experience of having been sexually touched by a parent X loves and wants a relationship with" (at [141]).
2. The primary judge noted, at [146], that the respondent's evidence included that, on 17 December 2024, X asked her about why they had to spend time with the appellant at the contact centre; in the course of their conversations, the child told her that what had happened with the appellant was an accident, that it was her fault they were having visits with him at the centre, and that if she had not said that, they would still be able to visit the appellant at his house. The respondent said that, when she told X that she was doing her best to keep her safe, the child asked her why she needed to keep her safe if it was just an accident; after they moved into the respondent's bedroom, the respondent told X again that she was doing her best to keep her safe and the child again asked her why she needed to keep her safe if it was just an accident - to which the respondent replied by telling her that, when she (the child) had first told her grandmother and the respondent about what happened she had been very upset and angry and she was very worried about her: the respondent also told the child "I am not sure why you would have behaved that way if it was an accident?"
3. The primary judge found that the respondent's actions in bringing the child's statements to the court's attention was entirely inconsistent with any proposition that she was promoting to X a narrative of sexual abuse in any form of malicious way to exclude the appellant from the children's lives for her own reasons, unrelated to concerns about the children's safety (at [149]).
4. The primary judge said that he could not know why X made the comments to the respondent she did about the appellant's touching being an accident (at [151]); he said that it was another area of uncertainty and that he took it into account in "the context of the uncertainty about precisely what occurred" and regarded it as adding to the "inability to make a positive finding" that, I infer, sexual abuse of X by the appellant occurred (at [152]). The primary judge also specifically noted that, in considering whether this statement by X meant that he could not or should not make a finding that the appellant posed an unacceptable risk to the children, it was a significant factor to which he had given weight (at [153]). However, the primary judge then said that he had still come to the conclusion that there is "a real possibility that sexual abuse occurred"; and that the evidence persuaded him that the risk of sexual abuse is "there" and is an unacceptable risk (at [154]).
5. The primary judge noted that the maternal grandfather's evidence included that, on 21 January 2024, X told him that they could only see the father at the centre for two hours every two weeks and couldn't even go to his house anymore - that "something happened two years ago and other people made this decision" (at [155]).
6. Given that the overall assessment of the reliability of X's reported disclosures about the appellant's asserted conduct toward her rests significantly on:

(a) the acceptance of the respondent as a credible, accurate and reliable reporter of the same; and

(b) an acceptance that the contents of Ms DD's notes recounted comments made by X to her,

the issues associated with the consideration of both of these, as outlined above, are such as to persuade me that appellable error is established.

1. Given my conclusion that, in determining that X's reported comments about the appellant's conduct toward her were clear, repeated, decisive and consistent in nature, the primary judge erred, it follows that, in my respectful view, his conclusion that the appellant represents an unacceptable risk of future sexual harm to X and possibly Y, which rest upon the same, is also an error.

Ground 3: That in giving "significant weight" to the opinion of the expert on the reliability of the child's disclosures the primary judge gave the expert opinion inordinate weight, and thus erred at law, and failed to give adequate reasons and thus erred at law.

1. The primary judge noted that the Court Child Expert considered X's disclosures from 2023 to be "clear, repeated, decisive and consistent in nature" (at [26]) and had substantially maintained that opinion when cross-examined (at [27]). He said, at [129], that he gave "significant weight" to the opinion of the Court Child Expert, who is an expert in child development, had interviewed X, had heard the disclosure directly from her and whose opinion about the clarity of the disclosures encompassed the quality of the disclosures and X's understanding and reasoning capacity.
2. Absent objection being taken to the admissibility of the opinion proffered by the Court Child Expert about the nature of X's reported comments, it was, I consider, open to the primary judge to attribute such weight to such opinion as he considered appropriate. Having regard to the principles relating to the adequacy of reasons, as propounded in authority such as Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191, I am not persuaded that the appellant has established that, in saying what he did about the Court Child Expert's opinion about the nature of X's reported comments, the primary judge failed to provide adequate reasons to explain why he accorded the weight that he did to such opinion.

Ground 5: the primary judge failed to carefully outline why the risks identified, when balanced against the benefits of the children maintaining a relationship with the appellant, could not be ameliorated, and thus erred at law.

1. Neither party presented the primary judge with a proposal for time between the children and the appellant in the event that the respondent's case about unacceptable risk was made out.
2. It is uncontroversial that there was no evidence before the primary judge to suggest that Y has ever made any comment to anyone that could suggest that he has been sexually abused by the appellant.
3. As noted earlier, the primary judge found that the children will definitely suffer "psychological harm" as a consequence of the loss of their relationships with the appellant, his wife and their impending half-sibling; he found that the removal of the appellant from the children's lives would inevitably involve "significant psychological and emotional" harm to them.
4. At [48] of his reasons, the primary judge recorded that the Court Child Expert recommended in her report that, in the case of a finding of unacceptable risk of sexual harm, there should be a no-time order. This certainly was her primary position prior to being cross-examined by counsel for the Independent Children's Lawyer, who canvassed with her the issue of orders for supervised time between the children and the appellant in the event that the primary judge found that the appellant represented an unacceptable risk of harm to the children. In particular, the expert was asked about contact between the children and the appellant on four occasions per year for the purposes of the children developing their identity with the appellant. The expert said that such time, if ordered, should only be for a couple of years while Y was still young so as to allow him to form that sense of identity. It was implicit in the expert's evidence that X did not need that contact. There was a suggestion from the expert that the "identity contact" could go on for as long seven years to accommodate the children's relationship with their half sibling in the appellant's household.
5. Given the findings referenced at paragraph 103 above and the evidence given by the Court Child Expert, the primary judge had to consider whether the imposition of supervision over the appellant's time with the children on an ongoing basis was something which would sufficiently ameliorate the risk he found the appellant to pose to X - and possibly Y - so as to enable them to continue to spend time with him and thus avoid suffering the psychological harm he had identified they would suffer consequent upon the loss of their relationships with the appellant, his wife and their "impending half-sibling".
6. Reference to the primary judge's reasons establishes that he clearly considered whether the presence of the appellant's wife as a supervisor of the children's time with the appellant would sufficiently ameliorate the risk he had found the appellant to pose to X and possibly Y.
7. Whilst, during the trial, his Honour remarked that "there's certain guideline judgments about long-term supervision as well" (Transcript 18 February 2025, p.152 lines 37-38), he referred to none of them or their effect in his reasons.
8. Further, in Bielen & Kozma [2022] FedCFamC1A 221; (2022) FLC 94-123, the Full Court noted, after referring to the observations of Tree J at [19] in Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96, that the views expressed in cases such as Slater v Light [2013] FamCAFC 4; (2013) 48 Fam LR 573 at [38]-[40] "are not legislative edicts and each case must be decided on its own facts".
9. Respectfully, I am unable to discern from his Honour's reasons any express consideration of the benefits and detriments to the children - and, in particular, to Y - of a long-term supervision order. Beyond expressing the conclusion, at [224], that long-term supervision "is not appropriate", the primary judge did not say why he thought this was the case. Given this, I think the appellant's submission to the effect that the primary judge failed to provide adequate reasons for rejecting a long-term supervision order in the circumstances of this case has merit.
10. The appellant also submitted that there was no consideration given to any orders for communication between the children and him. The only mention of this issue was at [224] where the primary judge said:

Where long-term supervision is not sought and not appropriate, and where I find identity visits will not be in the children's best interests, the only way to meet the obligation to promote the children's safety is a no time and no communication order enforced through a simple section 68B injunction.

1. However, the Court Child Expert's evidence included that, if there was a finding of unacceptable risk, it would be useful and beneficial to the children for the appellant to provide them with a card and a gift on special occasions like their birthdays and Christmas. The primary judge did not provide any reasons for rejecting this evidence and concluding that the children's best interests demanded that there be no communication between the appellant and them.

1. I have had the benefit of considering the separate reasons of Hogan J. I respectfully disagree with the conclusions reached by Hogan and Jarrett JJ that grounds one, two and five of the Amended Notice of Appeal sealed 3 July 2025 have merit.
2. In my opinion, and for the reasons that follow, none of the grounds of appeal enjoy success, and the appeal should be dismissed with costs.

1. After a trial lasting seven days which commenced on 17 February 2025, a judge of the Federal Circuit and Family Court of Australia (Division 1) ordered that the children of the parties live with the respondent, that she have sole parental responsibility and sole decision making authority for them, and the children have no communication or contact with the appellant.
2. The appellant appeals all orders made by the primary judge on 20 March 2025. He advances five grounds. The respondent opposes the appeal.

1. A presumption exists at law that a primary judge's decision is correct, and the onus rests on the appellant to demonstrate otherwise (Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621). Such presumption is arguably strengthened when the questioned decision is discretionary in nature. The principles in an appeal against a discretionary decision are well settled. To succeed in the appeal, the appellant must establish some error in the decision-making process of the type identified in House v The King (1936) 55 CLR 499 at [504]-[505] ("House v The King"). It is not sufficient that the appeal Court would have come to a different decision on the same facts. The appellant must establish at least one of the following points: that the primary judge erred at law, failed to take into account some material consideration, took into account some irrelevant consideration, or that the decision was "plainly wrong" in the sense that it was not a proper exercise of discretion ab initio (CDJ v VAJ (No 1) (1998) 197 CLR 172).
2. The case before the primary judge was about unacceptable risk of abuse to two children. In Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 at [85] the Full Court explained that whilst the assessment of risk is an evidence based conclusion and is not discretionary, it is only the overall judgement, expressed in the form of orders made in the children's best interests, which entails an exercise of discretion. The appeal is against the orders made by the primary judge.
3. In the same decision the Full Court also explained at [83] and [86] that the civil standard of proof applies to the question of whether or not allegations of past abuse are proven on the balance of probabilities, but does not apply to a prospective finding about unacceptable risk, and that even if the prospect of sexual abuse is only possible, but not probable, the risk is still too high to tolerate.
4. I am firmly of the view that observations of the Full Court above continue to apply notwithstanding the recent amendments to Part VII of the Act, with its adoption of concepts of promoting the safety of children (Barnabas & Phineus [2025] FedCFamC1A 215 at [17]).
5. It is important for appellate judges not to be seduced by any skilfully disguised invitation by the appellant for the Court effectively to step into the shoes of the primary judge and determine for itself, based on a fresh and retrospective interpretation of the evidence, that it would come to a different decision on the same facts. This invitation misconceives the nature of the appeal. Moreover, such an invitation invites reconsideration of possibilities, not probabilities, and arguably the primary judge was best placed to consider that.
6. It is well settled that the appeal is by way of re-hearing, and the appellant must establish appealable error. The central principle was described by Flick J in Robertson v Knott Investments Pty Ltd (No 3) [2010] FCA 1074; (2010) 63 AILR 101-289 at [23] in the following terms:

...[E]rror must be demonstrated for the appellate court to be entitled to disturb the decision of the primary decision-maker ... Furthermore, the manner in which the case is conducted by the parties on appeal ought not depart from the manner in which the case was conducted at trial, and generally, the appeal arena is not the appropriate forum to raise new arguments": Tasmanian Sandstone Quarries Pty Ltd v Legalcom Pty Ltd [2010] SASCFC 6 at [34] per Gray J (Nyland and Kourakis JJ agreeing).

1. The law in respect of adequacy of reasons is equally well-settled. Reasons will be inadequate where it is not apparent how the decision was reached, upon what evidence the decision was reached, or the pathway that led to a stated conclusion is manifestly obscured (Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 ("Sun Alliance Insurance Ltd") cited with approval in Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191 ("Bennett")).
2. In Bennett at 266, the Full Court adopted the test for adequacy of reasons set out by Gray J in S_un Alliance Insurance Ltd_, who said at [18]:

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

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

1. The appellant and respondent entered into a relationship in September 2011, married in early 2013, and had separated by March 2020. They have two children, a girl who is eight years old, and the boy five years old. The litigation commenced in 2020. In July 2022, a judge of the Federal Circuit and Family Court of Australia (Division 1) ordered that the children live with the mother, that the children spend time with the father for four hours each week, and that the mother may relocate the children's residence outside of Australia after 16 January 2023. It is clear that these orders contemplated a significant change in the relationship between the father and the children, and the possibility that such relationship could end.
2. In May 2023, the mother commenced further proceedings, prompted by disclosures of her daughter, that led her to believe that both children were at an unacceptable risk of sexual harm from the father. It is from this decision that the father brings the current appeal. It is important to understand that this appeal is the third substantive proceeding between the parents before this court, in relation to the same or broadly similar issues, and the appellant invites this Court to allow the appeal so that a fourth hearing occur.

1. The issues identified by the primary judge were as follows: -

(a) Whether the father sexually abused his daughter, or in the alternative whether he may have, and whether he poses an unacceptable risk of sexual harm to both children;

(b) If there is no unacceptable risk of sexual harm, what order should be made for the children to spend time with him;

(c) The father's parenting capacity; and

(d) Whether the mother's international relocation should be permitted.

1. It was uncontested at the primary hearing that the children would live with the mother and that she would have sole parental responsibility.
2. The primary judge recognised that associated issues might arise, depending on findings made. For example, he was aware that if no finding of unacceptable risk of sexual harm was made, the mother proposed that the father's time revert to the orders made in July 2022, whereas the father proposed that he have increased time.

1. The primary judge found that he could not make a positive finding that the father had sexually abused his daughter. He could not be satisfied to the requisite level of comfortable satisfaction, that the evidence before him led to such a finding (s 140 Evidence Act 1995 (Cth); Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362).
2. The primary judge did find, however, that weighing all the evidence, there was a real and substantial possibility that the father had sexually touched his daughter and had sexually abused her. This led to a consequential finding that the father presented an unacceptable risk of harm to the children. The foundation for these findings was the consistency and reliability of disclosures made by a child about abuse allegedly perpetrated by her father. The appellant challenges whether the findings of the primary judge about the father sexually touching his daughter provides an adequate foundation for a finding of unacceptable risk of future harm.
3. Before the primary judge were four iterations of a disclosure made over a 13-day period in January 2023: 12 January, 18 January, 23 January and 25 January. The disclosures in this period were found by the primary judge to have been made by the child to the mother, and maternal grandmother. The disclosures were also made by the child shortly after this period to her treating psychologist, and then to the Family Report writer. There was no challenge at trial to the fact of the child making the disclosures. The treating psychologist was not required to give evidence by any party at trial. The findings of the primary judge were founded partly on an acceptance of the reliability of the mother as the conduit and reporter of the child's disclosures to her. Nonetheless, as noted, the child also made disclosures to others.

1. The first and second grounds of appeal can be dealt with together, and are as follows: -

1. That the Primary Judge's finding that the child [X]'s disclosures were sufficiently consistent and sufficiently reliable was:

1. Demonstrably wrong; 2. Glaringly improbable; and/or 3. Contrary to compelling inferences.

1. That the Primary Judge's finding that the children, or either of them, were at an unacceptable risk of sexual abuse was:

1. Demonstrably wrong; 2. Glaringly improbable; and/or 3. Contrary to compelling inferences
2. The appeal grounds challenge two separate findings. In ground one the focus is on the child's disclosures, and that they were sufficiently consistent and reliable. In ground two the focus is on the finding of unacceptable risk of sexual abuse derived from the whole of the evidence before the Court. Both findings are closely connected.
3. The primary focus of the appeal was the challenges to the finding relating to the consistency and reliability of the disclosures made by the child, and the contention that these findings were demonstrably wrong, or glaringly improbable, or contrary to compelling inferences. The challenge is based on the following matters.
4. Firstly, that the 25 January 2023 disclosure referred to a physical injury that caused bleeding, which was inconsistent with the three other disclosures. Moreover, it was not a disclosure made by the child. It was something that the respondent told the child's psychologist who recorded it, and such record was then referred to in the Family Report as if it were a disclosure of the child. It was only in cross-examination that the respondent conceded that the information she gave the psychologist was wrong. The primary judge treated this is a disclosure made by the child, rather than the mother, and ultimately found it to be an immaterial inconsistency. The appellant contended that it was a material error of fact.
5. I disagree. The error of fact was immaterial. It is only if a mistake of fact is material to the ultimate decision, that such a mistake will justify appellate intervention (De Winter v De Winter (1979) 23 ALR 211 at 217). The error does not, like the broken leg on a tripod table, cause the remaining findings of the primary judge to collapse. The primary judge relied on three other uncontested disclosures. His finding that the evidence is sufficiently cogent, consistent, clear and reliable to give rise to a real possibility that the father had sexually abused the child remains reasonably open to him and is neither demonstrably wrong nor glaringly improbable (primary judge's reasons at [200]). An appeal Court should not interfere with a finding of fact if there was evidence on which that finding could be made; that is if it was reasonably open on the evidence (Edwards v Noble (1971) 125 CLR 296 ("Edwards v Nobel"); Richards & Richards (1976) FLC 90-037; Grabar & Grabar (1976) FLC 90-147; Gronow & Gronow (1979) 144 CLR 513 ("Gronow")).
6. Moreover, this Court needs to be particularly careful given that the suggestion of error of fact emerged during the exchange between bench and bar table at the appeal hearing. The purpose of a Notice of Appeal is to identify with precision in the grounds of appeal the errors that are asserted to have been made by the primary judge. It sets out the metes and bounds of the appeal (Pachris & Tajir (No 3) [2023] FedCFamC1A 230). The error sought was not a part of the appellant's pleaded case. The appellant's case was that the 'error' was an inconsistency in the evidence (Transcript 1 August 2025, p.6-10).
7. Secondly, the findings of the primary judge were founded on an acceptance in substantial part of the reliability of the mother as the conduit and reporter of the child's disclosures to her. The error of fact identified above undermined the mother's reliability in this regard.
8. Again, I disagree. The respondent conceded that she was wrong about the child telling her about the bleeding. There was no challenge by the appellant to the credibility of the respondent, merely a submission that her mistake made the rest of her evidence about disclosures unreliable. The remaining evidence reasonably allowed for an acceptance of the reliability of the respondent's evidence supported by the evidence of the child psychologist and maternal grandmother (primary judges reasons at [113]). It also must be recognised that appellate judges are in a "permanent position of disadvantage as against the trial judge" in assessing the evidence and the credibility of witnesses (Fox & Percy [2003] HCA 22; (2003) 214 CLR 118 at [77]).
9. Thirdly, it was contended, insofar as the child made a disclosure to the Family Report writer, on which the primary judge placed significant weight, that the primary judge failed to give adequate reasons to explain why this was the case. This criticism seeks to highlight that it was not within the remit of the Family Report writer to elicit disclosures, and to further assess the same disclosures in circumstances where the child would have felt compelled to give an answer.
10. Again, I disagree. The primary judge deals with the expert interviews for the Family Report at [131]-[136] of his reasons. He accepted the evidence of the Family Report writer that she did not suggest the answer to the question the child answered. He concluded that she was doing no more than directing the child to the issue. There is nothing glaringly improbable about this. As for the submission that it was not within the remit of the Report Writer to elicit the child's disclosure, it is clear from paragraph 133 of the Family Report, as referred to by the primary judge at [132] of his reasons, that the Report Writer did not consider herself to be conducting a specialist forensic child interview, but the child nonetheless made the disclosure. Counsel for the appellant acknowledged the Report Writer's expertise (Transcript 1 August 2025, p. 18 line 26).
11. A fourth point emerged, again as a result of the exchange between bench and bar table at the appeal hearing. The issue raised was the failure of the primary judge to take into account any of the evidence about the relevant allegations that were made in an earlier trial before Austin J. This was no part of the appellant's case. Indeed, quite properly, counsel for the appellant explained that neither party had invited the primary judge to do so (Transcript 1 August 2025, p. 14 lines 21-28). The concession being made, this point goes no further.
12. Another issue emerged during the exchange between bench and bar table. This time, the issue was that the Primary Judge seems to have assumed that whilst the uncontroverted disclosures were of the father touching the child, it had been assumed that the touching was of a sexual nature when there could have been an alternative explanation. But this was never a part of the appellant's case, even if embraced by his counsel on appeal. The point can go no further. The appellant is bound by the manner in which he conducted his case at trial (Metwally v University of Wollongong (1985) 60 ALR 68 ("Metwally")).
13. The primary judge carefully considered and weighed all the relevant evidence that led to the impugned findings. I am satisfied that the findings were open to the primary judge on the evidence put before him. At best, the appellant's submissions related to countervailing evidence which, the appellant contends, should have been preferred. This is not enough alone to substantiate error, something more is required (Holbert & Holbert (No 2) [2024] FedCFamC1A 159 at [15]; Venter & Venter [2022] FedCFamC1A 122 at [25]). The appellant's submissions are curious in circumstances where he acknowledges that the primary judge largely based his conclusion as to unacceptable risk of future sexual harm towards the child on the foundational evidence of the disclosures made by the child, none of which were challenged as to accuracy either at the trial, or on appeal.
14. The evidence about the disclosures made by the child as to the abuse allegedly perpetrated by the appellant in this case is, in my experience, similar to many other cases where such allegations are made. When the disclosures are forensically examined, ambiguities and inconsistencies are often found. This is human nature, especially as regarding the recollection of children. The primary judge dealt with the ambiguities and inconsistencies in this case thoroughly and, in my view, accurately. His reasoning was fulsome. His final conclusion about unacceptable risk of abuse was based, not just on one piece of evidence, but the entirety of the evidence.
15. Factual findings are not wrong "merely because an appellant can point to some countervailing evidence" (Cizek & Mihov [2024] FedCFamC1A 151; (2024) FLC 94-206 at [21]; Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 at [54] and [59]; Edwards v Noble at 302-304 and 307). Only "glaringly improbable" factual findings based upon the acceptance of evidence given by an ostensibly credible witness or findings which conflict with other incontrovertible facts are liable to be impugned on appeal (Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55]; Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 at [43]).
16. There is no appellable error. The appellant did not establish how the conclusions of the primary judge were not open on the evidence, why they were glaringly improbable, contrary to compelling inferences, demonstrably wrong by way of incontrovertible facts, or were uncontested testimony.

1. That in giving "significant weight" to the opinion of the expert on the reliability of the child's disclosures:

1. The Primary Judge gave the expert opinion inordinate weight, and thus erred at law; 2. The Primary Judge failed to give adequate reasons and thus erred at law.
2. The difficulty of challenging a trial judge's attribution of weight on appeal is well known. As was stated in Gronow at 520, "an appellate Court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight". In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an intermediate appellate Court should not set aside an order made in the exercise of a judicial discretion, unless the failure to give adequate weight to relevant considerations amounts to a failure to exercise the discretion actually entrusted to the Court (Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605 at 614 citing Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at 519).
3. The evidence sought to be impugned in this appeal is the evidence of the Report Writer. Insofar as the appellant's submissions amount to an indirect challenge to the qualifications of an expert retained to give an expert opinion, I reject the same. Counsel for the appellant did not take the Court to evidence of any challenge at trial of the expertise of the Report Writer. That was the forum in which to agitate any issues surrounding this evidence. The appellant is bound by the manner in which he conducted his case at trial (Metwally).
4. The gravamen of the appellant's complaint seems to focus on two issues: firstly, the absence of a forensic interview of the child who made the disclosure and thus, I infer, the extent to which this would undermine the weight to be given to the Family Report; secondly, what the appellant contended was a "leading question" asked which led to the child's disclosure to the respondent.
5. The complaint has no substance. Whilst the primary judge did, in fact, place "significant weight" on the Family Report, it was not the only evidence that led to the ultimate adverse finding against the appellant. The absence of a forensic interview of the child was well known to all parties. They elected to continue with the trial notwithstanding the openness of the primary judge to consider an adjournment to facilitate such forensic exercise (primary judge's reasons at [41]). Knowing acquiescence by the parties at trial as to an issue ought to not to be permitted to found a basis for appeal. Moreover, there was nothing plainly wrong about the characterisation by the primary judge that the asserted "leading question" was nothing more than merely directing the child's attention to the issue.
6. This ground of appeal fails.

1. The fourth ground of appeal is as follows: -
   1. That the Primary Judge failed to give adequate reasons in concluding "that there is a real possibility that sexual abuse occurred, and the evidence persuades me the risk of future sexual abuse is there and is an unacceptable risk" and thus erred at law.
2. No submission was made about this ground in the appellants Summary of Argument. In any event, the appeal ground fails. The primary judge gave fulsome reasons in support of the findings identified in this ground.

1. The fifth ground of appeal is as follows: -
   1. That the Primary Judge failed to carefully outline why the risks identified, when balanced against the benefits of the child maintaining a relationship with the father, could not be ameliorated, and thus erred at law.
2. The primary judge was fully aware of the consequences of ending the relationship between the children and the appellant, and the gravity of the finding he contemplated and eventually made (primary judge's reasons at [220], [223] and [237]). Indeed at [237] of his reasons, the primary judge considered the benefits to the children in maintaining the relationship with the appellant, but, consistent with the evidence, quite properly found that the safety issue outweighed the benefit of that relationship. For the reasons that he identified, the primary judge found that the appellant's current partner did not provide a protective factor as she denied the possibility that abuse had been perpetrated by the appellant (primary judge's reasons [46]-[47], [178]-[179] and [222]). This conclusion was reasonably open on the evidence. At [224] of the primary judge's reasons, he found that long-term supervision was not sought and was in any event not appropriate.
3. I reject the submission that the primary judge failed to explain why no provision was made for the children not to communicate with the appellant. Counsel for the appellant could not direct the Court to any orders sought, or submission made by the appellant at trial, that in the event of a finding of unacceptable risk of abuse, he should nonetheless be permitted to communicate with the children. Indeed, the appellant's Case Outline Document relied upon at trial, which set out his Minute of Proposed Order, made no reference to any independent order in relation to the other child who had not been abused, and contained no alternative order for either time or communication should an adverse finding be made against the appellant.
4. Whilst I accept that the primary judge is not bound by the parties' proposals, I do not accept that the reasons of the primary judge should go beyond what has been presented to him by the parties for consideration (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59]). Indeed, in circumstances where the parties failed to adequately press any alternative proposal or to admit any convincing evidence in favour of indefinitely supervised time, the adequacy of the reasons provided by the primary judge ought not to be called into question. As stated by Nicholson CJ, Simpson & Finn JJ in the seminal matter of Bennett at 267:

We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial.

1. The reasons of the primary judge reflect the attitude of the parties to the issue during the primary hearing. The primary judge was entitled to curtly and shortly dispose of the issue as he did.
2. The inherent difficulty in this ground of appeal becomes apparent when the question is asked: what order ameliorating any risk could the primary judge have made, without denying the parties procedural fairness. No specific proposal was advanced that addressed the tangible, practical issues surrounding supervised time:
   • What manner of supervision;
   • With which supervising agency;
   • At what frequency;
   • For how long;
   • At whose cost; and
   • Could the party bearing the cost afford to exercise any right to supervised time.
3. A Court is not bound by the proposals advanced by the parties. Indeed, as was echoed by the Full Court in Goode & Goode (2006) FLC 93-286 at [47] "subject to according procedural fairness to the parties, this could include a proposal that neither party had advanced" (emphasis added). The procedural fairness caveat on any such order being made is crucial and pronounced. Justice Hayne recognised this point of principle in U v U [2002] HCA 36; (2002) 211 CLR 238 at [172]:

That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law.

1. As established by the High Court and previous iterations of this very Court, proposals are only to be considered where it would not impinge upon the fundamental right to procedural fairness.
2. I acknowledge the obligation of the primary judge to give adequate reasons where orders made largely, or entirely, deprive a child of time with a parent. But this obligation must be considered in the context of the case before the primary judge. If he was presented with no viable pathway by the parties themselves, minimalistic reasons are not inappropriate. Indeed, as expressed by Gleeson CJ, McHugh and Gummow JJ in Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62]:

A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.

1. In real terms, the Independent Children's Lawyer merely alluded to a pathway, rather than articulated it with enough specificity that made it a viable alternative that the primary judge must have duly considered and provided fulsome reasons for not accepting.

1. Leave is granted to the appellant to rely on the Amended Notice of Appeal filed on 3 July 2025.
2. The Amended Notice of Appeal filed on 3 July 2025 is dismissed.
3. The appellant sought their costs of the appeal, which I view to be wholly unsuccessful. I am satisfied that costs should be fixed in the sum of $15,000 pursuant to r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) against the Appellant.

1. I agree with the reasons and orders proposed by Hogan J.

I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Hogan, Altobelli and Jarrett.