Moss & Moss (No 2) [2025] FedCFamC1F 510 (31 July 2025)

1. The applicant mother relied upon the following material:
   • Amended Application for Final Orders filed 21 February 2023;
   • Mother's affidavit filed 10 February 2025;
   • Affidavit of Ms K, the maternal grandmother, filed 10 February 2025;
   • Affidavit of Mr BB, the maternal grandfather, filed 10 February 2025;
   • Affidavit of Dr L, a communications professional, filed 10 February 2025; and
   • Affidavit of Dr L filed by leave on 24 March 2025.
2. All witnesses were required for cross-examination except for Dr L, a communications professional advocating for the mother that the children had been abused. Her affidavits were commentary about conversations she had had with the mother and other individuals. Dr L also included complaints she had made in relation to four treating medical professionals about whom the mother had raised concerns. Exhibit 3 is the annexures to her first affidavit and includes an email (with no date on the actual email) to the investigating police officer where she asked about the progress of the investigation into "the alleged sexual assault" of Y, and let the officer know she has been in contact with the Police Commissioner about the matter. She also asked for police documents "in order to prepare the Family Court documents ...". She ended the email that if the mother did not get the documents she will "escalate" her request.
3. The annexures also contain an incomplete transcript of a phone call with a Child Safety Officer, an online article about Ego-dystonic sexual orientation, and a letter regarding the outcome of one of her complaints. Dr L was not required for cross-examination upon the mother making the following appropriate concessions: [7]

1. The applicant mother concedes that with respect to the two affidavits of [Dr L], that there have been no communications between [Dr L] and the respondent father.

1. The applicant mother also concedes that there have been no direct disclosures by the children to [Dr L] in respect of anything relevant to the sexual abuse allegations in this matter.
2. The communications professional's running commentary, advocacy and views about the allegations do not advance the court's fact finding process. It is of no surprise she was not cross-examined - opinion and commentary rubbed together do not make a fact.
3. The respondent father relied upon the following material:
   • Response to Final Orders filed 10 February 2025; and
   • Father's affidavit filed 10 February 2025.
4. The father was cross-examined. Despite egregious allegations being made by the mother and her parents against the paternal grandmother, neither she nor the paternal grandfather filed affidavits, although they participated in the first Family Report and the paternal grandmother had previously spoken with the police. On the evidence before me, she has not been formally interviewed by police and no charges have been preferred.

1. The mother submitted that the paternal grandparents' failure to respond gave rise to an inference that they were not called because it would not have assisted the father's case. In other words, she relied upon the "rule" in Jones v Dunkel, which may be formulated in the following terms set out in Kuhl v Zurich Financial Services Australia Ltd:[9]

The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn...

...

The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.

1. The father submitted an adverse inference under Jones v Dunkel did not automatically arise because of a dearth of evidence. The ICL sought no adverse inference be drawn from the father's failure to call his parents, "but it's the vacuum that is significant. It's the lack of evidence, not any adverse inference to be drawn from it".
2. In Alam & Sayid,[10] Harper J provided a most useful summary of the jurisprudence relating to the "the rule" in Jones v Dunkel, commencing with Blatch v Archer in 1774.[11] Quite rightly, Harper J observed at [181] that many of the steps along the evolutionary jurisprudence on "the rule" were civil and often commercial proceedings, adding, "[t]hese authorities are not obviously applicable in parenting litigation to which the provisions of Division 12A apply".
3. Relevantly, Harper J recited that in TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd,[12] the Full Court of the Federal Court referred to the statement of principle by Pincus J in Schindler Lifts Australia Pty Ltd v Debelak[13] saying:

As Pincus J said in Schindler at ALR 319; IPR 173, the evidence brought by someone with an onus may be so inadequate in its totality, when the whole context is examined, that there can be said to be no rational foundation for any proper estimate. In other cases, the court is required to make its best estimate on the materials provided. The proper approach will, in any given case, be an evaluative one influenced by such considerations as the nature of the question, including its amenability to precise proof or assessment, the availability and control of evidence, and the onus of proof. Considerations such as the assessment of evidence according to the power of the party to adduce it will be important to such an evaluation: compare Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65; [1774] EngR 2; 98 ER 969 at 970; Cullen v Welsbach Light Company of Australasia Ltd [1907] HCA 3; (1907) 4 CLR 990 at 1013-1014; Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 371-2... Parker v Paton [1941] NSWStRp 26; (1941) 41 SR (NSW) 237 at 243; Ex parte Ferguson; Re Alexander [1944] NSWStRp 44; (1944) 45 SR (NSW) 64 at 67; Vetter v Lake Macquarie City Council (2001) 202 CLR 439... at [36].

1. Harper J also reminded that Keane J said in Henderson v Queensland at [91]:[14]

Another such principle, "reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct", is that "a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct". The reluctance of a court to infer fraudulent or criminal conduct is ordinarily somewhat stronger in respect of a person who is not a party to litigation and who is for that reason denied an opportunity to explain and justify his or her conduct as consistent with the conventional perception.

(Footnotes omitted)

1. Appositely, Harper J also said this at [180], which I respectfully endorse:

However, it is important to remember these are parenting proceedings. While not denying the possibility of its application, the Full Court has said there are reasons to be circumspect about the application of the rule in Jones v Dunkel in parenting matters. Murdock & Madden [2011] FamCAFC 219 ("Murdock & Madden") was a case in which a mother sought adverse inferences to be drawn from the father's failure to call the paternal grandfather. At [68] - [71], the Full Court said the following:

[68]... it is, we think, necessary to point out that, even in circumstances where the pre-conditions to the application of the rule [in Jones v Dunkel] are made out, a court is not compelled to draw an adverse inference. Nor can it be presumed "that the uncalled evidence would have been damaging" (LexisNexis Butterworths, Cross on Evidence, vol 1 (at Service 129) [1215], citing HML v R [2008] HCA 16; (2008) 235 CLR 334; Brandi v Mingot (1976) 12 ALR 551 at 559-560).

[69] But, there are pre-conditions to the application of the rule. No inference should be drawn unless and until "enough has been proved to warrant a reasonable and just conclusion" against the person not giving evidence. Moreover, it is only where "the nature of the case is such as to admit of explanation or contradiction" that the inference can sought to be drawn. (Jones v Dunkel per Windeyer J at 321 citing R v Burdett [1814-23] All ER 80).

[70] The satisfaction of each of those preconditions might be seen to be more difficult in a court without pleadings and in parenting cases where the issues are more forensically diffuse. Moreover, Division 12A of the Act and, in particular for example, the duties contained in s 69ZX might (and arguably should) more readily admit of more circumspection on the part of practitioners and parties as to the evidence that should properly be called in a parenting case.... The desirability of there being evidence before the Court does not found an inference arising from the application of the rule; it is the forensic need to answer, explain or contradict that founds its potential application.

[71] As we have explained, the scope for the operation of the rule in Jones v Dunkel in parenting proceedings appears limited, and recourse to it potentially unhelpful...

1. Thus, I will consider what the mother alleges about the paternal grandmother later in these reasons. Afterall, the mother holds the onus of proof, and I reiterate what was said in Murdock & Madden:[15] "No inference should be drawn unless and until 'enough has been proved to warrant a reasonable and just conclusion' against the person not giving evidence."

Still with "rules" of evidence - the "rule" in Browne & Dunn[16]

1. I pause to observe Counsel for the father raised the "Potential applicability of the Rule in Browne v Dunn" in his written schema handed up in support of his oral submissions. That rule was comprehensively examined by McMurdo JA in R v JAE:[17]

The rule in Browne v Dunn is a general rule of practice by which a cross-examiner should put to an opponent's witness matters that are inconsistent with what that witness says and which are intended to be asserted in due course.

1. The genesis of the father's submission was that the mother was asked many questions to the effect of, "that's not in your affidavit, is it". Here I am referring to allegations that post-date the 2022 final consent orders which were not in the mother's affidavit and fell from her when being challenged in cross-examination. It was then said that many of the mother's allegations were not put in detail to the father and thus the rule may have application.
2. It is true that many of the mother's allegations (especially ones coming out in cross-examination) were not put to the father. However, the father was clear in his affidavit that the mother's allegations had grown in potency from separation to the time of his 2025 trial affidavit. They grew and grew in the witness box too - that could not have taken him by surprise. I do not consider the failure to "put" to the father the mother's many allegations that fell from her in the witness box, means this court is unable to reject the evidence of the father.[18] For a start, from the father's perspective the mother's growing allegations in cross-examination was entirely consistent with the case he ran about her - she would say anything to stop the children having time with him. It is also the case that in his affidavit, the father denied any and all allegations of abuse by him and his mother.[19]
3. To that end, in LC and TC,[20] the Full Court said at [38]:

In any event, it must be said that the rule in Browne v Dunn does not apply where the witness is on notice that the witness's version of events is in contest. That notice may come from the pleadings or the other side's evidence or the other side's opening; it may even come from the general manner in which the case is conducted. In general, however, this exception to the rule should only operate where the issue is a fairly clear and obvious one (see Seymour v Australian Broadcasting Commission 19 NSW LR 219 at 224-5 per Glass JA, Trade Practices Commission v Mobil Oil Australia Ltd [1984] FCA 238; (1984) 3 FCR 168 at 181, Jagelman v FCT (1994) 31 ATR 467 at 472-3, and Raben Footwear Pty Ltd v Polygram Records Inc [1997] FCA 370; 145 ALR 1 at 15).

1. The failure to put the mother's allegations to the father has little, if any, bearing in this matter, where he was well alert to the mother's growing allegations - indeed, that is part of his case for a change of residence.

1. The ICL relied upon the following Family Reports:
   • Affidavit of Ms G filed 13 December 2023; and
   • Affidavit of Ms G filed 18 March 2025.
2. Each party filed a Case Outline, and the father handed up what was called an "Addendum" in submissions setting out a fallback proposal for the children to have supervised time with him along with therapeutic scaffolding.
3. As required by r 8.15(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"), annexures to the affidavits became exhibits. In all, the parties tendered 23 exhibits. In various footnote references, the citation uses 'e pg.' for the electronic page number, which is easier to locate electronically, than some of the oddly paginated or unpaginated exhibits in hard copy.
4. One of the mother's annexures was sealed by the court for reasons agreed to by all parties. That annexure and some of the mother's evidence led to her being granted a s 128 Evidence Act 1995 (Cth) ("Evidence Act") certificate.
5. Exhibit 22 is a bundle of documents the mother insisted on tendering. Many of the documents, especially with respect to the January 2023 allegation and investigations were already in evidence. The provenance of other documents is unknown, e.g. page 14 is a narrative of unknown source/s, and unknown date and authorship - it could be the department or it could be the police. It is also not clear what I am meant to make of the mother's incomplete statement for a Police Protection Notice dated February 2023, when she said it was dismissed. Then, the department's response to the court's short form request for information is no more than an unsworn summary of the department's involvement with the family; pages 24-64 are so heavily redacted as to be useless.

1. Given the gravity of the matters alleged by the mother, it is useful to set out s 140 of the Evidence Act:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

1. It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon,[21] Gleeson CJ, McHugh and Gummow JJ said this:

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

1. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd,[22] Mahoney JA said this:

It is not the duty of the judge to decide every matter which is raised in argument.

...

Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear...

1. Section 60CG of the Family Law Act 1975 (Cth) ("the Act") imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
2. Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper (subject to s 65DAB of the Act, which is irrelevant in this matter). A "parenting order" is defined in s 64B of the Act.
3. Section 60B of the Act sets out the objects of Part VII of the Act, and that is:

The objects of this Part are:

(a) to ensure that the best interests of children are met, including by ensuring their safety; and

(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

1. Section 60CA of the Act provides that the child's best interests are a paramount consideration in making a parenting order. Section 60CC of the Act addresses those best interests and provides:

(1) Subject to subsection (4), in determining what is in the child's best interests, the court must:

(a) consider the matters set out in subsection (2); and

(b) if the child is an Aboriginal or Torres Strait Islander child - also consider the matters set out in subsection (3).

1. The provisions in s 60CC(4) do not apply here. As for s 60CC(1)(b) and (3), the children are not Aboriginal or Torres Strait Islander children. I now turn to the s 60CC(2) considerations.

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child).

1. Abuse is defined in s 4 of the Act and family violence in s 4AB of the Act.
2. Section s 60CC(2)(a) is informed by subsection (2A) which provides:

(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b) any family violence order that applies or has applied to the child or a member of the child's family.

1. The father's Counsel usefully set out the following in his "written schema" being akin to a road map for his oral submissions. No one cavilled with the contention that these were the matters that needed to be addressed:

(1) Evidentiary threshold per s140 Evidence Act 1995 and-

(a) Positive finding that the father has sexually abused either child

(b) Positive finding that the father has not sexually abused either child

(c) Findings re Father as unacceptable risk/no finding of unacceptable risk

(d) Positive finding that emotional abuse of children has (unintentionally?) occurred in Mother's household

(e) Findings re Mother (and/or Mother's household) as unacceptable risk of emotional abuse of children

(case citations omitted and emphasis in the original)

1. I have already referred to s 140 of the Evidence Act, and further observe that that section guides my findings of fact with respect to past events. However, the future looking exercise of assessing risk is not governed by s 140 of the Evidence Act. I will now address the balance of issues in turn.

1. This sub-heading canvasses Items 1(a) and (b) of the father's written schema.
2. It is well settled that a positive finding of abuse or family violence should not be made unless the court is satisfied on the balance of probabilities, as set out in s 140(2) of the Evidence Act. Further, proof to the satisfaction of the court "should not be produced by inexact proofs, indefinite testimony, or indirect inferences".[23]
3. As a preliminary issue, I respectfully endorse what Carew J said in Merritt & Merritt at [42]:[24]

Like all cases involving allegations of sexual abuse it must be acknowledged at the outset that sexual abuse of a child is a heinous crime. The breach of trust between a parent and a child in such circumstances is particularly abhorrent. The fact that a child and a parent seem to have a loving relationship does not necessarily rule out that abuse has occurred. The fact that an allegation is made by a parent in circumstances of conflict does not necessarily mean it should be dismissed. The fact that there is no medical evidence to substantiate the abuse does not necessarily mean it did not occur. Cases involving very young children are even more difficult because invariably adults hear something which they interpret to mean something and then they seek to clarify their interpretation which may or may not represent actual events. The consequences of making the wrong decision are particularly grave i.e. a child could be placed in the hands of a sexual abuser or alternatively a child could grow up wrongly believing a parent whom they loved and trusted has sexually abused them and lose that parent forever.

1. I will now deal with the mother's allegations and those of her family.

1. Whilst the mother and her parents deposed to many instances of what the children told them, rarely do they say what they did or said in reply. For example, did they divert the conversation, or did they confirm, validate, console and reinforce what the children said? How they responded is unhelpfully unknown on many occasions. The mother said she never talked about what the children said to them, but she did not often depose to how she responded to their statements or questions.
2. The father's Counsel described the mother's belief trajectory with respect to her sexual abuse allegations:

That the mother's concerns about the potential risk the father posed to the children prior to separation in 2019 is rational. Not only is it rational but because it's a matter of agreed fact in large measure - not entirely but in large measure - it has got an objective foundation ...

...

But it has to be conceded on my client's case that the pre-separation history of the unwanted erections, and what the girls may or might not have seen, gives a rational and objective foundation for the mother to have fears as at December 2019. The challenge for the mother is now, some six years later almost - five and a half to six years later - is to make sense of not just whether pursuant to the onus of proof under s 140, the particular actions that she has now identified in cross-examination occurred, but also the continuing rational and genuine nature of her beliefs, because, in my submission, as the time has passed and as the allegations have, first of all, become more unrealistic, such as the two particular examples - the sucking on the breasts of the paternal grandmother, and, as I understand it, the cunnilingus performed by the paternal grandmother on one of the girls.

1. I accept the father's unwanted erections prior to separation would have been confronting for the mother (and father), and I accept the father's submission that those unwanted erections gave the mother a basis for fear about sexual impropriety pre-separation. The mother agreed the only time she was aware the children might have seen their father's erect penis was when his erection was "flapping out the side" of his boxers, to use the mother's phrase, and X was learning to walk, "[a]nd she was crawling all over him and grabbing his penis like a handle accidently." The mother agreed that at the time, the children would not know what an erect penis was, and were likely too young to recall it. I accept that as a matter of commonsense.
2. I also conclude that those unwanted erections have become the prism through which the mother views the father - a sexual predator who has raped both children.

1. I have grouped the mother's allegations in a thematic and largely chronological way. However, it has long been settled that a judge's reasons are not required to mention every allegation relied upon by parties.[25]
2. It is also not necessary to "atomise"[26] or analyse every fact or circumstance and determine if it supports a conclusion of, relevantly, sexual abuse and/or an unacceptable risk of harm. As was said in Guerra & Guerra[27] at [94]:

It is critical in cases such as the present to have regard to the combined weight of all the relevant facts and circumstances. As Winneke P observed in Transport Industries Insurance Co. Ltd v Longmuir [1997] 1 VR 125 ("Longmuir") at 128:

In cases of circumstantial evidence each proven fact may gain support from the others and, although each, considered in isolation, might not provide a sound basis for inferring the ultimate fact to be proved, a combination of all facts might provide a compelling basis from which to draw that inference.

The evidence must be evaluated as a united whole in order to evaluate whether the party bearing the onus of proof (here, the father) has established what is ultimately sought to be proved (that the mother presents an unacceptable risks of harm to the child). As Tadgell JA emphasised in Longmuir (at 141):

A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details: cf. Hall (Inspector of Taxes) v. Lorrimer [1992] 1 W.L.R 939 at 944; Shepherd v. R. [1990] HCA 56; (1990) 170 C.L.R 573 at 579-80.

1. I now turn to the allegations. Even though Counsel for the father submitted without demur from the other two Counsel that "it seems to be ad idem across the three counsel - no capacity for positive finding of sexual abuse" it is still necessary to go through the mother's allegations because:

(a) It will become clear when the allegations are considered as a whole that Counsels' shared position that no positive findings of abuse can be made is well founded;

(b) The analysis assists in assessing the likelihood or chance that the father nevertheless poses an unacceptable risk of harm to the children;

(c) It gives a perspective on the mother's beliefs and whether genuine;

(d) It assists in the assessment of whether the mother has visited emotional harm upon the children via her beliefs; and

(e) It assists in assessing whether she poses an unacceptable risk of harm to the children looking forward.

1. The mother deposed in a general way that prior to the father leaving the home, X complained of "painful genitals", and her vagina "was observed at times, by me and by my mother, to be stretched and red and swollen". It is not clear what the mother is alleging (if she is) the father had done to cause this. It is also not clear why the child would use the phrase "painful genitals" in 2019 when the mother's evidence was X used the words, "wee wee" and "bum bum" up to 2021. Perhaps the mother was paraphrasing what the child actually said, but that does not help understand what is being alleged.
2. She said similarly about Y after time at the contact centre:[28]

... [Y] has sometimes returned from contact time with her father complaining of painful genitals and her genitals have been observed to be red and swollen. [Y] previously loved baths but has after visits had refused to get in the bath.

1. Again, it is not clear what she is alleging the father did to cause the same genital appearances in Y post-separation, as X pre-separation.
2. Many things alleged by the mother are vague without much context or temporality, and permit of non-sinister reasons why the children's genitals were as the mother alleged she had observed.

1. The mother and her parents depose that the children have long and frequently said words to the effect that "Daddy hurts us" and "why does daddy hurt us?"
2. It seems that when either of the children say "daddy hurt us" or the like, the word "hurt" is taken by adults involved in the matter, to mean hurt by sexual abuse. "Hurt" however can be caused in many ways - intentionally inflicted physical pain, hurt feelings, accidental injury, emotional pain, or illness.
3. Here, the few times where some specificity is given by the children to the concept of hurt, there is a physical aspect to the word. For example, on 26 July 2023 Y told her psychologist:[29]

When [Y] joined parent and clinician, she selected the book she wanted to read. -When I feel sad" During the story [Y] continued to elaborate on how "daddy hurt me". [Y] expressed that "Daddy rolls her around on the floor and will sit on her back".

1. Similarly, in a session on 2 August 2023, Y told her psychologist:[30]

...[Y] consistently reporting that her Daddy hurst [sic] her. When questioned further, [Y] report[s] that he" rolls me around on the floor" he "sits on my back", "He makes me angry and he makes me sad". There was no further disclosures.

1. Respectfully, it is not clear how Y's description just given amounts to a "disclosure".
2. With similar physical attributes, a sports coach had emailed Y's psychologist and said:[31]

I asked [Y] what was wrong & did someone hurt you? Her response was Daddy hurt me but Grandma helped me to feel better. On different occasions [Y] has mentioned Dad left a mark on my left & it hurts.

1. Each of these three examples have a physical, not sexual, quality to them. It is hard to see how hurt by rough play as these examples tend to, can support an inference of hurt by sexual or physical abuse.
2. Many other apparent allegations of "hurt" in the maternal grandparents' and mother's affidavits are vague and general and it is again hard to see how "Daddy hurt me" amounts to the consequences of sexual and/or physical abuse.
3. The mother herself accepted as much - at one point in cross-examination she said Y was making daily disclosures that "Daddy hurt me" from December 2023 to January 2025. When asked why that was not in her affidavit, she hit the nail on the head with her reply, "it's not specific enough".
4. Similarly, whilst the mother (and others) construed "daddy hurt us" as sinister, she would no doubt deny she did anything sinister to X who said this in her s 93A interview in mid-2020 in response to leading questions:[32]
   1. [X] do you know why mummy's brought you to talk to me today to me, why you've come to talk to me

[X] Why I come to talk to you (indistinguishable) (lights)

PO Munny told me that Daddy hurt you, has daddy ever hurt you?

[X] No mummy hurts me

(Emphasis in original)

1. This example adds to the inability to infer very much at all in an adverse sense from the children's use of the word hurt, but will be considered later when assessing the totality of the evidence about alleged abuse.

1. In mid-2020, X undertook a s 93A interview,[33] the context for which seems to be the father's unwanted erections and X's apparent "painful genitals". The child was interviewed by a male police officer and in the mother's absence. She was asked many leading questions.
2. It is clear the mother puts great store on the children's literal words when it comes to the father; take for example the word "hurt" examined just above. She does not do the same when, for example, the very first thing of any vague substance said by X in the s 93A interview was in a response to a leading question invoking the authority of the mother that "mummy told me that daddy hurt you, has daddy every hurt you?" X shook her head in the negative and responded, "no mummy hurts me".
3. The child then went on to respond that "mummy hurts me with daddy" and "daddy hurts me". She juxtaposed daddy hurting with something to do with a bobcat. When prompted again about how daddy hurt her, she replied "um something made me sad, mummy make me sad or daddy make me sad"; this was said with a smile on her face.
4. The child was also asked the following specific questions and replied:[34]

PO Ok tell me has daddy ever hurt you with his mouth

[X] No he (indistinguishable) sing me a song

PO Oh Ok

PO You know daddy's mouth has he ever hurt you with his mouth

[X] No he has teeth

PO So has he ever bitten you some anywhere on your body with his mouth

[X] No he sing me a song with my mouth

PO Oh OK

[X] and my (indistinguishable) out

PO Do you feel safe when you see daddy

[X] I feel safe when I go on the road

PO On the road OK

[X] When people go on the road

PO Yeah

1. X was also specifically asked if "daddy ever hurt you on your private part", to which she replied, being hurt on her tummy and zipper. She was again asked, "has daddy ever hurt you on your private part where you do a wee", to which she replied, "No".
2. The police took no action arising out of this. There is nothing in the child's presentation or words that supports any notion that X was uncomfortable with the police officer or loath to talk.

1. X's psychologist, Dr E, provided a report for the mother's "legal team" dated 19 August 2021. She was not a witness in the mother's case. The GP's referral diagnosis to her was stated as "Anxiety Disorder and Post Traumatic Stress Disorder", the basis for this is however unknown.[36] The psychologist noted X scored within the clinical range of the autism scale but thought the GP's diagnosis was a better interpretation "due to her trauma and anxiety background". The "trauma" is not particularised.[37]
2. The report observed the child brought in pictures she had made at home of herself and daddy, and herself and Granny, with that picture having a breast for Granny. For one picture, she said "this is me before I touched daddy's penis" but also said the drawing identified that she was "touching dads penis".[38] There is no context for this to assess whether this is a picture of things actually done or imagined, nor whether any touching (if actual) was sinister or, say, accidental (as the mother herself identified accidental touching with respect to the unwanted erections). Noting the father has not had any unsupervised time since he left the home in November 2019, it is also difficult to locate this in any kind of time frame or location.
3. The report went on to record that a picture of X's showed "'This is her nipples and her vagina, and I have seen them when daddy was hurting me'. When asked when she was being hurt [X] was unable to respond".[39] The child also spoke about "Daddy" not being a safe person and "he is hurt me". I have already referred to the evidential difficulty of taking the word hurt and inferring that means sexual or other abuse.
4. In another session X was asked how she felt when with daddy. She replied, "scared and safe". Dr E asked her to explain that, and X said the same again. It is hard to reconcile those two. It is also hard to make sense of what is attributed to X, with the phrase "I am going to live with daddy as I didn't do a good job".[40] This was not explored with either parent, but predates the February 2022 final consent orders.
5. Quite appropriately, Dr E acknowledged X did not specifically set out how she had been hurt or when this occurred. In another session, X said to Dr E, "Daddy will hurt you and I don't want to hurt you".[41] When asked to explain no further details were provided.

Mother's November and December 2021 concerns about Y being sexually abused

1. On 29 November 2021,[42] the mother took Y to the GP and told the GP (seemingly in Y's presence), that she thought the father was sexually assaulting Y and she noticed a bruise on the child's external genitalia on 12 November 2021. The mother told the GP that Y said showers caused pain. The mother told the GP that the father should not change Y's nappies, but X said he did when they spent time at a community centre.
2. The mother said she reported this to the department who told her to document it.
3. Without much by way of explanation, the mother said she could not get to the doctor earlier when she said she first saw the bruise - despite her concerns of sexual abuse. The doctor examined the child and recorded, "normal external generalia [sic], nil bruise or rash noted."
4. The next day, on 30 November 2021,[43] the mother and Y again attended upon the GP with the mother saying the child's external genitalia appeared "erythematous" i.e. red, after they returned home from a community centre and the child had spent supervised time with the father. The mother said she thought Y was "unsafe/assaulted" notwithstanding supervised time. There could be many reasons for a small, nappy-wearing child having red external genitalia.
5. The mother had taken a picture of the child's external genitalia showing "mild erythema around the genitals". On review the doctor recorded "nil sig erythema noted. Nil tears or obvious injuries. Pt not distressed". The doctor told the mother to take it up with her lawyers and would raise a child safety report "given her concerns".
6. The doctor mentioned discussing the case with the GP practice supervisor, but the mother said no because the supervisor "[Dr M] is her ex-husband's GP and may warn her ex-husband".[44]
7. Quite apart from impugning the supervisor's professionalism, the mother is, at least from this time in November 2021, aware Dr M is a supervisor in the practice.
8. At a consultation on 20 December 2021,[45] the mother told the GP, "nil other concerning episodes" for Y. She did not depose to this, but this predates the 22 February 2022 final consent orders.

1. On 12 June 2022, the mother deposed X said:[46]

Daddy squeezed my arm really hard and I tried to call granny and pa and daddy put his hand over my mouth and squeezed me really hard between his legs and it did hurt my tummy and my chest and I couldn't breathe and I was crying too much to talk.

1. Assuming the child said this, it is hard to tell if this is a reference to physical abuse or rough play, and when (even approximately) and where is unknown.
2. A week later the mother deposed Y returned from supervised time with the father and said, "daddy did bit her on the chin and daddy did bite her on the foot".[47] The mother annexed photos of Y,[48] but put on no medical evidence to opine about how the photos might be interpreted.
3. Then, on 30 October 2022, the mother deposed X said, "I was naughty for not picking up my toys and daddy squeezed me really hard between his legs ... it hurt my tummy and chest and I couldn't breathe."[49] The mother said she asked her where Granny was, and X replied "Granny and [Y] went outside, and they couldn't hear me crying". [50]
4. It is not clear if this is the same or different allegation as that of 12 June 2022 referred to above. It is also not clear if this is a reference to physical abuse or physical discipline, nor when this might have approximately occurred.
5. Then the mother told the Report Writer in her second Report that when X last saw her father:[51]

he 'squeezed her really hard between her legs and she couldn't breathe and she tried to yell out for granny but granny was inside and she couldn't hear her and she couldn't breathe and words wouldn't come out of her mouth'. She notes this incident occurred in January 2023.

1. This is not referred to in the first Family Report[52] nor in the mother's trial affidavit. Again, it is not clear if this is a reference to physical abuse or rough play.
2. When asked about these squeezing allegations, it was suggested to the mother in cross-examination that (if they occurred) the father did not know he was hurting X. She replied, "He would've known he was hurting her. He was doing it on purpose". How she could possibly know that is not clear. But it is one of many examples where the mother immediately jumped to sinister explanations without much, if any, reflection.
3. Ultimately, very little (if anything) was said about making findings of physical abuse in submissions.

1. On 17 July 2022,[53] the mother deposed that when she was changing Y's nappy, her labia skin was stuck together and had a sticky substance on it. She said she tried to wipe it, but it was sore and uncomfortable for the child. She decided to bath the child and leave it for the morning. The mother said that in the morning the labia was "completely fused shut, except for a small opening for her 'wee'." There is no evidence before the court that the mother took the child to the doctor about this in July 2022 and she does not say so in her affidavit.
2. The mother went to the doctor with Y on 19 August 2022 and the topic was not raised.[54]
3. On 7 November 2022, the mother took Y to Dr N: "wants to do 2½- 3½ check-up as per red book".[55] The mother was recorded as noticing Y's "labial folds are fused since July and looks very sticky". The record continued, "child does not c/o urinary symptoms or pain around perineum"; "c/o" is likely 'complain of'. The perineum was examined and the doctor's record said, "appears normal to me". The plan was to re-check in 2 weeks and Dr N would discuss it with another female doctor.
4. On 21 November 2022, the mother took Y back to the doctor and deposed, "[Y] goes to doctor for schedule 2.5-3 years health check-up, genitals - Labia were still fused".[56]
5. The 21 November 2022 medical record refers to the doctor observing (with another doctor present) a "slight fusion of the labia",[57] whereas the mother's report to the doctor, and evidence in her affidavit spoke to something that was fused far more than the doctor's assessment. This is recorded: "mum happy to observe for now". That sits at odds with the mother's evidence in cross-examination that she thought the fusion was a result of sexual abuse and highlighted (again in cross-examination) the child's apparent pain in the months from July 2022 (when she deposed she first observed the fusion).
6. The mother took Y to the doctor the next day, 22 November 2022,[58] and the fused labia was not mentioned, nor was it mentioned in consultations on 7 and 12 December 2022 or 3 January 2023.[59] If the mother's case was her concerns came in hindsight, then she did not depose to that, or make that clear in cross-examination. I also do not accept that could be so because from at least 29 November 2021, a year earlier, the mother was squarely raising sexual abuse with doctors.[60]
7. Subsequently, when Y was taken to an Emergency Department in early 2023 after allegedly telling the mother that "Daddy poked his finger in my bottom", the maternal grandmother deposed in her affidavit that the examining doctor "noted the fused labia, another nurse was present and asked me about the fused labia. I said it was safer to leave it at this point."[61] The hospital record said they "attempted to educate grandmother and mother of the perineum fusion and following up with GP, both grandmother and mother stated, 'it might be safer to leave it'".[62]
8. Notwithstanding this benign history and the mother's lack of action, the mother asks the court to infer Y's fused labia is a product of the father's sexual abuse (not that such a submission was made):

And, in the same context, the labial fusion of [Y] in 2022, for those months after July of 2022, you see that as sinister also?‑‑‑I do, because she was in physical pain, yes, I do.

Somehow - the penetration of the vagina, whether by a finger or a penis, somehow causes labial fusion?‑‑‑It can, yes.

Okay. How do you know that?‑‑‑The doctor told me

Right. Don't find that in the subpoenaed notes anywhere. So which doctor told you this?‑‑‑[Dr N] said that it can be from a number of causes, yes.

Okay. Identify the number of causes?‑‑‑She said from an injury.

Yes?‑‑‑From sexual abuse.

Okay. She actually said that?‑‑‑And I'm sorry - I don't recall what the third one was, but there was three ‑ ‑ ‑

1. There is no medical evidence offered by the mother to permit such a conclusion or inference that the child's fused labia was more likely than not caused by sexual abuse. The highest the evidence reached is the above from the mother in cross-examination, which is unsupported by any records in the evidence before the court. Further, none of the medical exhibits about the fused labia refer to the child suffering "physical pain" which, is contrary to what the mother said in cross-examination as extracted above.
2. Of note, despite the mother observing the fused labia in July 2022, neither the fused labia nor physical pain are mentioned in an August 2022 GP consultation.[63] In the two medical records from November 2022, nothing is recorded about physical pain. Indeed, the 7 November 2022 record said, "child does not c/o urinary symptoms or pain around perineum"; "c/o" would likely be complain of.
3. It is also observed that the mother is quick to attend the doctor with her many abuse concerns, but just sat on her July 2022 labial fusion observation but said in cross-examination that the child was in pain, does not mention it in an August 2022 GP consultation, and then mentions it in two November health check-ups without concern and no mention of pain.
4. The maternal grandmother told the doctor they were still "leaving it" as at 21 January 2023 when asked about it at the hospital.
5. In cross-examination, it emerged Y still has a fused labia which the mother has had investigated further by doctors, saying "both doctors have said that it will rectify itself when she turns - puberty."

1. On 18 September 2022,[64] X told the mother the paternal grandmother asked her to take her clothes off to try on some togs. She said that made her sad because the father was watching her with no clothes on. As a general proposition, it would be unusual if a father did not see their young child naked at some point.

Drinking paternal grandmother's lactational milk and other allegations November 2022 to January 2023

1. On a visit to Dr N on 7 November 2022 (also discussed under the fused labia heading),[65] the mother told the GP that Y had been saying "weird things like - she drank [paternal] granny's milk". In cross-examination, the mother confirmed she understood this to mean actual lactational breastfeeding. The maternal grandmother confirmed this too - "You didn't take it as literally true when she said, "I had granny's milk"?‑‑‑Yes. I did."
2. The mother accepted the paternal grandmother was over 60. When asked if she thought it incredulous that a woman over 60 would be lactating, the mother changed her response to "When I said 'breastfeed', I meant sucking on her nipples". I do not accept the mother misspoke when she clearly answered an earlier question, "I would understand her to be breastfeeding her".[66] It was only when the incredulity of that was pointed out to her that she changed emphasis, as did the maternal grandmother.
3. But rather than leave Y's comment in the "weird" box (as she told the doctor), it developed into something that definitely happened and, with the maternal grandparents adding it was for sexual purposes.[67]
4. As discussed, the mother and Y were at the doctor's again on 21 November 2022 for the scheduled check-up and again on 22 November 2022,[68] with the mother reporting the child had a "runny stool last night". The record said the child appeared well.
5. Between 4 December 2022 and 27 January 2023,[69] the mother deposed Y screamed in her sleep, screamed during an extracurricular activity and wet the bed. She said Y started having night terrors from 21 January 2023 onwards.
6. On 6 December 2022, the maternal grandmother deposed Y was crying and said, "Nanny ... Granny hurt my bum bum ... ".[70] It is common ground the paternal grandmother would change the child's nappies.
7. On the same date, 6 December 2022, the mother deposed:[71]

...I was changing [Y's] nappy and she says, "Don't do silly things to me!" I said I'm just wiping poo off your bum. She says "Granny does silly things"" I say what silly things? [Y] says, "she does poke her finger in my bum bum".

(Emphasis added)

1. The mother took Y to Dr N the next day, 7 December 2022, and deposed that the doctor told her (the mother) to call child safety, disregard the child's words and wait for physical signs of abuse. In cross-examination, the mother confirmed the children were in the consultation room with her when she told the doctor what she said Y said to her, but added she whispered to the doctor.
2. The medical record for 7 December 2023 states:[72]

Seen with mum [Ms Moss]and sister [X]

Reason for visit:

Advice and listening

- [Y] told mum that grandma does "silly things" when changing diaper - when clarify, [Y] said she put her finger in bum

-also father and parents not sticking to her schedule - so [Y] still has not been sleeping well

talked with [Y] separately -

-said both grandma and daddy did "silly things" - tickle and poke her bottom - (pointing to perineum area)

Advised mum to contact CPS for further assessment

(Emphasis added)

1. It is noted that on 6 December 2023 the mother deposed Y spoke only of her grandmother poking her finger "in my bum bum" in the context of changing her nappy. The next day, at the doctor, Y referenced both her grandma and daddy. I accept both could have allegedly occurred.
2. It is also observed that on the mother's recount to the doctor, the child's words are in the context of the grandma changing her nappy, where carers require a bodily mechanism of action to wipe the children's vaginal and anal region. It is also not unusual for an adult to use a finger to put nappy rash cream on those areas of the child.
3. On 10 December 2022, the mother deposed Y said:[73]

"Granny and daddy were doing silly things to me". I say what silly things, she says "they were hurting my bum with their nails" [Y] had a small visible fingernail scratch between her anus and vagina and that's all.

1. Like so many other instances, the mother deposed to what the child told her, but not what she said in reply. This quote from the mother's affidavit also means it is hard to accept her other evidence that she does not talk to the children about their allegations - clearly she does.
2. On 12 December 2022 the mother took Y to the GP and told the GP that the child said, "don't poke me in the bottom" whilst changing her nappy and that her grandmother "has done this". [74]
3. On the same date, 12 December 2022, the maternal grandmother deposed Y said, "Nanny ... Granny and Daddy were rolling around on the bed squealing, I had grannies milk and she poked her finger in my bum".[75] The maternal grandmother could give no context to this, such as what was happening immediately before the child said those words to her.
4. Six days later, on 18 December 2022, the mother deposed that when she was changing Y's nappy she observed "a small purple bruise on her anus" and that the child said, "Granny gave me milk and granny and daddy tickled my bum bum".[76] The mother said the child was "implying she was sucking on granny's nipples". It does not seem the mother gave any thought to the possibility Granny could have given her a cup of milk from the fridge. The mother also did not seem to give thought to whether the tickle may have been an act of play on the child's buttocks. The mother could not give any context to where they were and what they were doing when this was apparently said.
5. The mother said many times at trial that she believes the children. But she does not believe Y saying "tickling" means tickling, because, according to the mother, it had to be "more sinister than just tickling" to cause a bruise and pain. The mother elaborated in cross-examination that "tickling" was a code word the father taught the child for sexual abuse. The idea of being taught a code word is not in her affidavit. She said she did not know what "tickling" was code for, other than "a large range in sexual abuse".
6. On 25 December 2022, a Sunday, the mother deposed Y did a very sticky poo and that her "anus is purple again". I do not know if the children saw the father between 18 and 25 December 2022. According to the mother, Y added:[77]

... unprompted "Granny gave me milk and tickled my bum" Then she yells "we are not going to talk about it anymore!!!" By the time I took her to the doctor on the Monday the mark was gone.

1. On 31 December 2022, a Saturday, the mother deposed that Y was upset when collected from the F Children's Contact Centre for changeover.[78] The mother said when home and readying them for a bath, she observed Y had a purple anus with a small bump on it. Y said, "my bum is sore". The mother asked what happened and the mother said Y said, "'they put they finger in my bum again but they were gentle'". By Monday morning the mark was gone."[79] The mother confirmed in cross-examination that the "they", were the father and paternal grandmother. This is another example of the mother engaging the child on the topic of alleged abuse despite her protestations in cross-examination that she did not.
2. On the same date, 31 December 2022, the mother reported Y said her father and Granny fell over on the bed and "were rolling and crying, going 'oo'ooo'oo'".[80] Whilst the mother's evidence and things said by the maternal grandparents in the Family Report contain inuendo of a sexual relationship between the father and paternal grandmother, no findings of this kind were sought.
3. On 3 January 2023, a Tuesday, the mother and Y attended on Dr N,[81] wherein the mother said she was concerned about the bruises on the child's anus that had started in December. The mother said Y told her, "they (grandma and dad) put finger in her bum". It is not clear whether the mother alleges this is one, or two or more multiple counts. The mother also told the doctor that "last Sunday" when the children returned from seeing the father, she noticed some "sticky stuff" around Y's anus and her anal margin appeared protruded plus one scratch and some slight anal dilation. It is not clear whether the children saw the father on the Sunday, as well as Saturday 31 December 2022 (as set out above).
4. The doctor observed "slight prominent veins around the anus" and mild perianal redness. The mother reported she had contacted child protection, who told her they could not do anything unless there was a danger to Y.
5. Dr N said she would discuss all of this with her supervisor, but the mother declined because he was the father's doctor. This is noteworthy as the mother deposed she did not learn this until late February 2023.
6. On 8 January 2023 the mother deposed Y said, "Daddy was licking me".[82] There is no context for this, much less where (as in part of body) and when. The mother herself said she did not know what the phrase meant. It is however noted that Y said daddy licked her in the s 93A interview a few weeks later, saying, the father licked her finger and put her ring back on and that was "gentle".

1. This is a critical event in the mother's case[83] and starts with the mother collecting the children from the contact centre. The mother said Y was crying, which the supervisors said was because the father could not get her shoes on.
2. The mother and children then went to a fast food drive through. After getting the children some food, the mother asked Y (who was still crying) what was wrong, to which the mother said Y replied, "I don't like Daddy anymore". The mother asked why, and the mother deposed Y said, "words to the effect of 'Daddy poked his finger in my bottom.'"
3. The mother said Y repeated this several times.
4. In her affidavit, the mother deposed:[84]

I asked [Y] if she wanted me to look. I got her out of the car. I opened both doors of the car to provide [Y] privacy. I asked her to bend over and had a look.

1. Again, the mother engaged the child in the topic of abuse despite her claims to the contrary in cross-examination.
2. There was no suggestion X was shielded from Y bending over and the mother "having a look".
3. However, the mother told the hospital an hour or so later that she told Y she was going to change her nappy and thereby observed her anus and noticed it was dilated.[85]
4. The mother continued to depose, "I observed that the area around her anus appeared red and dilated at the opening with an area of bruising." However, the mother told the Family Report Writer in interviews dated 6 June 2023,[86] that she observed the child's bottom was "pink, red, swollen and dilated and there was a purple bruise on the bottom of her anus.[87]
5. The mother gave evidence that she thought the father had digitally penetrated the child as per Y's words, but months later decided it was penile penetration of Y's anus after the child used the phrase "tummy finger".
6. The mother took both children to a hospital Emergency Department, and she spoke to a triage nurse telling her what the child said. The triage nurse asked the child what was "the trouble" to which the child replied, "I've got a sore toe." Y subsequently told the police this too in her s 93A interview, which is consistent with the father not being able to get her shoe on.
7. The mother deposed that the triage nurse asked, "What else happened today?" to which "[Y] said words to the effect of 'Dad poked his finger in my bum.'"
8. The mother said the nurse told her to call the police before they would look at Y. The mother and children left the hospital. The mother put the children in the car and she "stepped out" of the car and called the police. The mother said the police told her to ask the hospital to look at Y first, before ringing them.
9. At the mother's request, the maternal grandparents came to look after X. They all returned to the hospital.
10. Y was examined by an emergency doctor, perhaps a paediatric registrar. The maternal grandmother deposed this occurred at 7pm.[88] The maternal grandfather deposed to 8pm.[89]
11. On examination, the mother deposed, "I observed the area around [Y's] anus to now be a deep purple colour".[90] The maternal grandmother also watched and deposed "there were no other bruises other than on her bottom".[91] The maternal grandfather said he observed "severe bruising" "spread all over her buttock" after they left the hospital that night.
12. However, the hospital notes recorded:[92]

nappy viewed nil faecal soiling or blood visible.

...

Genital exam performed:

Nil Lacerations or bruising around labia

External anal exam only performed

- there was a linear purple discoloration from 3-9 o'clock

- associated tenderness

...

Primary Diagnosis

INJURY, UNSPECIFIED

1. The emergency doctor spoke with police and confirmed there was "linear purple discolouration"[93] and "no injuries aside from purple discolouration at ... the anus, which could be bruising".[94] What the doctor reported was far less definite than the mother reporting the doctor told police it was a bruise, and far less severe than that deposed to by the mother and her parents. The police attended the hospital and asked the mother to bring Y to their station the next day and advised her to cancel "tomorrow's drop-off with Dad".
2. The maternal grandmother was and is critical that the hospital "did not do a rape kit, making a comment about [Y] being so young. They inspected her whole body, there were no other bruises other than on her bottom."[95] Of the lack of a Sexual Assault Investigation Kit, i.e. a rape kit, a police record says this: [96]

A SAIK was not conducted as the doctor had already completed a thorough examination. Furthermore, investigators believe that it would be unnecessarily traumatic for [Y], considering that no further evidence would be obtained. When [Y] is still having her nappies changed, one would expect that her father's DNA would be in that area. SOC not required.

1. There is no reason to doubt the diagnostic decision taken by the emergency doctor and investigators.

Police involvement, Y's s 93A interview[97] and medical involvement

1. The children have not seen the father since 21 January 2023.
2. A female police officer conducted a s 93A interview with Y in January 2023. Y said nothing which could support findings of abuse in that interview, but will be considered as part of the totality of the evidence. For example, when asked what she does with daddy, she spoke about playing with teddies and nail polish. She said a bad thing about dad was lip balm. She said she does not like tickles and shoes, but she likes tickling her father.
3. Y was specifically asked by the officer what she did with her father, and she said she played with lip balm and make up. She mentioned her sore toe, which is consistent with what she told the triage nurse the night before.
4. In part of the transcript, the mother said the child said "serious" things, and the father and ICL said "silliest" - the brackets in the transcript was the mother's take on the transcript:[98]

Po Yeah what did daddy do

[Y] he just daddy do silliest (serious) things to my bottom

PO he does silliest (serious) things to your bottom

[Y] yeah

(Emphasis in original)

1. On the serious/silly dispute, a further note from the police said this:[99]

[In] January 2023 ICARE is conducted with the victim child by [Police Officer Ms P]. Only disclosure is that 'Daddy does silly/serious things with my bum'. It is unclear if the word is silly or serious. [Police Officer Ms P] believed the child to be saying serious however on review it sounds like silly. The victim child when asked to expand goes on to talk about dinosaurs, her dad blowing raspberries on her stomach and tickling her etc.

1. Having listened to Exhibit 8, I conclude the child initially used the words "silly or silliest" and the police officer did the same. The police officer then used "serious" perhaps three times, with the child then using silliest and serious interchangeably. It must also be observed that the mother herself says Y uses the word silly in other allegations, e.g., on 6 December 2023, the mother said the child said, "Don't do silly things to me!", and "Granny does silly things", which lends support to 'silly' being part of the child's lexicon.
2. The police officer and child talked about flowers and when the officer returned to "what serious things" Y said "Um about dinosaurs. ... Scary dinosaurs do eat me". The officer returned her to "what serious things" and Y spoke of the father blowing raspberries on her tummy.
3. One part of the interview is not picked up in the agreed transcript. At about 15.20 the child spoke of the father blowing raspberries on her tummy, and that is set out in the transcript. However, what is not in the transcript is the police officer asking Y how that made her feel, to which Y said "happy".
4. The child was further prompted about the father's actions, and she spoke of him, inter alia, pointing his foot at her, touching her leg, and "he puts his foot on her nipples". Little context can be gleaned from this. Y also mentioned the father licked her finger and put her ring back on and that was "gentle". She spoke of them playing on the couch and the father licking his own arm, fingers and hair and touching her eyes, ears, mouth and nose. She said she bit him because she was scared, but of what, is not clear. She said she tickled the father on his belly and said he likes tickles.
5. Finally, she was asked this:[100]

PO hey just a quick question Do you feel safe when you are with daddy

[Y] Yes I feel safe with daddy

PO you feel safe with daddy

[Y] Yeah I am safe in here

PO You are safe here you are very safe that's our job to keep you safe

PO anything we can do to help you be safe with daddy

[Y] help me be safe with the dinosaurs and we (indistinguishable)

PO Ok we can do that

1. The following observations are made about this interview:

(a) The child did not say anything to suggest abuse;

(b) A lot of what she said lacked context;

(c) Some things she reported were wrong, e.g.:

• - When asked who she lives with, she replied "mummy and me" - X did not get a mention;
• - She was asked if she lived with Daddy and replied yeah;

(d) She was unable to answer on her own volition when she last saw daddy and had to be prompted and finally led to agree to 'yesterday';

(e) She was also asked if the plain clothed policewoman dressed in an everyday blouse and slacks looked like a police officer and she said yes;

(f) Despite the mother and her parents speaking of the children's horrendous bruising, and the mother telling the Report Writer, "over the next couple of days the bruising extended over her bottom cheeks and changed colours and [Y] was uncomfortable",[101] Y sat down the very next day for a long s 93A interview and once the police officer moved out of the video's line of sight, Y happily sat on a couch and the floor without a skerrick of visible discomfort or soreness; and

(g) Irrespective of the officer's position in terms of visibility of Y, there is nothing on the transcript or video whereby Y verbally indicated she was sore or it was uncomfortable to sit.

1. On 23 January 2023, the mother took Y to the GP, Dr N. On examination, the doctor noted:[102]

On Examination:

child appears happy, interactive

Abdo - SNT

Perineum examined with mum's consent

Prominent veins in circular shape perianal

Anal margin at 6 o'clock position is slightly discoloured - pinkish purple colour

No bleeding / discharge

(Emphasis in original)

1. The note refers to slight discolouration not the kind of bruising to which the mother and her parents spoke.
2. The doctor ordered an Xray querying constipation. Yet, the mother told the Xray technician that "It was sexual assault".[103] The Queensland Xray opinion is dated 24 January 2023:[104]

Findings: Mild faecal loading of the colon is demonstrated including the rectum with a rectal diameter measuring up to 39 mm in diameter which is moderately dilated and in keeping with the provided clinical history of constipation. No pneumatosis or pneumoperitoneum. No bony abnormality.

(Emphasis in original)

1. On the same date, 24 January 2023, the police emailed the mother a consent form referring to "investigation of rape offence". This would no doubt have heightened the mother's anxieties and confirmed her belief that the child had been raped - at that point digitally, but she decided later in 2023 that it was penile rape.
2. On 30 January 2023, the mother and Y again attended Dr N.[105] The mother did not depose to this. The medical notes record the mother said she took photos of Y's anus, had them printed and wanted the doctor to upload them on their system. The mother also asked the doctor to examine Y's perineum which revealed:

• anus appears normal

• no more prominent vein / rim around the anus

• discoloration at anal margin also resolved

1. This 30 January 2023 observation is important, first because the mother said in cross- examination that "the days that followed, the bruising came out almost like it was deep tissue bruising" and covered the anus and the buttocks "going right across both buttocks" (contrast this to her father who said the bruising was spread across the child's buttocks on the night of 21 January 2023). The mother also told the Report Writer that it took a couple of months to heal "due to being so serious".[106] However, by 30 January 2023, Dr N observed the discoloration (not bruising) had "resolved".
2. Second, whilst the discolouration was resolved on 30 January 2023, the mother presented the child to the doctor again on 6 February 2023 for a further examination where some slight swelling and discoloration was observed by the doctor.[107] There is no suggestion the father or his parents had any time with Y between 30 January 2023 when her anal discolouration had resolved and 6 February 2023 when it reappeared. This is noted in the police investigation report of February 2023:[108]
   1. This return of discolouration and swelling occurred after it had resolved and without any visitation with [Mr Moss].
3. As just foreshadowed, on 6 February 2023, the mother again presented Y to the GP asking for the child to be checked for "perianal bruise again" and some hip pain. The doctor described her gait as normal, no limping, good weight bearing and with no bruises/redness/swelling to the left hip.
4. Of the perineum exam requested by the mother, the doctor noted:[109]

nil obvious bruise

prominent vein? Greenish / bluish discolouration perineal from 3-9 o'clock position

slightly swollen anal margin at 6 o'clock

1. In February 2023, the police recorded a phone call with the mother,[110] who told them the bruising was "much worse" after 21 January 2023 and had spread across her buttock. The police however recorded that, "the photos taken by [MOSS] do not appear to show the worsening discolouration across the buttock like [MOSS] claims" (referred to in the 30 January entry above) and the "discolouration was not noted to have worsened by [Dr N]".[111]
2. The mother also told the police an Xray showed dilation of the colon - but the colon dilation was in the context of a constipation query, which the mother did not mention on this record. The mother also told the police the doctor took photos, which the doctor specifically denied when asked by the police. The GP's record also said the mother "took pictures of anus and had them printed" and asked they be uploaded to Y's records.
3. The police then called Dr N and this is recorded:[112]

Phone conversation with [Dr N] who stated there was an x-ray which showed the colon dilated to 3cm, not by 3cm. Further that this dilation could have been cause by stool that was present in the colon. She said the discolouration (not referred to as bruising) was localised to the area of the perineum. [Dr N] stated she never took any photos but was provided printed photos by [Ms MOSS] which [MOSS] asked be added to the medical records. [Dr N] said it was her opinion that the discolouration could have been cause by a number of different things including impact trauma in normal childhood activities and constipation.

(Emphasis added)

1. Dr N made an important point to the police that the colon was dilated to 3 cm not by 3 cm. The mother took issue with the reference to 3 cm, saying it was 3.9 cm which is in fact recorded in the Xray report about constipation. The mother was and is of the view that a 3.9 cm dilation was not a healthy range of dilation but, put on no expert evidence to link dilation to 3cm or 3.9cm with anal rape, digital rape or sexual assault. She said, "I believe I asked one of the doctors. I'm not sure which one."
2. Dr N provided her medical records to the police which they reviewed.[113] The police then called the mother:[114]

Recorded phone call with [Ms MOSS] to advise that there was insufficient evidence at this stage to commence proceedings. [MOSS] advised of the concern that the discoloration and swelling resolved while the victim child was in her care only to return on the 6th of February 2023. [**MOSS] refuted this before stating that she believed the day care workers may have been too rough while wiping the victim child causing the 'bruising'. [**MOSS] informed that [Dr N] indicated the colon dilation could be simply due to stool being in the colon however [MOSS] stated that she believed the colon was outside the healthy range for a child of this age. Informed [Moss] that investigators would await Drs formal statements and send them and medical notes for review by clinical forensic medicine unit before a final decision is made. [MOSS] advised that at this stage there is insufficient information to commence proceedings. [MOSS] advised that investigators are not in a position to provide advice in child custody issues. That as a parent she should act protectively and that she would be best served by arming herself with accurate information from a qualified, practicing solicitor.

(Emphasis added)

1. The mother maintained that police told her not to send the children to time with the father on an ongoing basis. That is not supported by the last four lines in the extract just above. I do not accept the mother's explanation that they were really saying they would not get involved in advising her on her court application - the record speaks for itself.
2. Various issues arise out of this 21 January 2023 event:

(a) Dr N referred to discolouration not bruising;

(b) The discolouration had resolved by 30 January 2023 but then returned on 6 February 2023 when the child had been nowhere near the father or his parents;

(c) The mother said nothing in her material about day care workers being rough when wiping the child and causing the bruises (bruises is her word) in between 30 January and 6 February 2023 - in cross-examination the mother clarified, "I told them I was concerned that the daycare workers, because [Y] had moved up to another class, she had - they were using toilet paper. And I said that I was concerned that they were being rough on her. But I did not at any time say that they were causing the bruising." But she did not depose to that either;

(d) If rough day care workers or using toilet paper caused the bruising (per the mother) or discoloration (per the GP) seen on 6 February 2023, that then begs the question why is that not the cause of other bruises or discolouration;

(e) There is no evidence before the court from a person with expertise that the colon dilation was outside the healthy range for a child Y's age as the mother contended to police and this court;

(f) There is medical opinion for the discolouration being caused by constipation or natural childhood activities; and

(g) The police refer to sending the medical material to the clinical forensic medicine unit. A Dr O reviewed it. The mother was and is critical that Dr O was a paediatrician and not a forensic child sexual assault expert. She said she saw the doctor's qualifications on the police officer's computer. There is no evidence before the court that the police sent the medical material to an expert lacking qualifications, other than the mother's assumption (tested in cross-examination), that child sexual assault specialisation is, "I believe it's a separate qualification". The mother's belief does not impugn the choices made by the police - paediatricians specialise in children's anatomy, presentations, health and medical queries.

1. On 23 February 2023, the mother said the police told her Dr N did not give them the Xrays. The mother deposed at her paragraph 116:[115]

After this I find out that [Dr N] is being supervised by [Mr Moss's] doctor, [Dr M] and we immediately change doctors to [ Dr Q] at the [R Medical Centre].

(Emphasis added)

1. The "after this" is just wrong.
2. The mother has known since at least 30 November 2021,[116] that the father's doctor (Dr M) was a supervisor of doctors at the practice, when she objected to that GP discussing the mother's concerns with his supervisor (Dr M), but the mother declined because he was that father's doctor. Again, on 3 January 2023, Dr N said she would discuss the matter with her "senior" (Dr M) but the mother declined for the same reason.[117]
3. In cross-examination, the mother alleged Dr N conspired not to release the Xrays to the police because she was supervised by the father's doctor and was, essentially, protecting the father.
4. On 4 March 2023, the mother gave police photos of Y's nappy to prove she was not constipated. The mother deposed the police officer said, "this is less than helpful".[118] I agree. There is also ample evidence before the court (mainly from the mother) that both children have suffered constipation from time to time.
5. In cross-examination, the mother was asked whether she had brought further allegations raised by Y in 2023 to the attention of the police. She said yes. She was then asked:

That doesn't appear at all in your affidavit, does it?‑‑‑I don't think so, no.

All right. Why not?‑‑‑I don't know, I'm sorry.

1. The last time the police initiated contact with the mother was in December 2023. She called them in 2024 but, received no response. In her affidavit she used the phrase, "an active and open police investigation".[119]
2. It may be formally open but does not seem terribly active.

1. In the second Family Report, this is attributed to the maternal grandmother with respect to the 21 January 2023 event: [120]

I would say he raped her because of her bruising and she has since described what his parts looked like and everything, they didn't even do a swab or anything, if they had they might have found something if they did a swab.

(Emphasis added)

1. I have already set out the police record and why they did not ask that a rape kit be completed.
2. The maternal grandmother said nothing about Y describing "what his parts looked like and everything" in her affidavit. The closest there was, is the child saying daddy has a tummy finger, whatever that might mean, or as the mother's Counsel properly submitted, "there is no evidence to put before your Honour that when the child said "tummy finger", the child herself meant a penis".
3. In cross-examination, the mother agreed with her mother's assessment that the father had raped Y:

Do you believe that [Mr Moss] has raped [Y]?‑‑‑Yes, I do.

Do you believe that he has digitally penetrated her vagina, by which I mean that he has used his fingers on her vagina and inserted his fingers; is that what you believe?‑‑‑In July of 2022, yes, I do.

I will start again. I'm just talking about [Y] at the moment?‑‑‑Yes.

Okay. You believe that [Mr Moss] has digitally penetrated [Y's] vagina, so in other words he has inserted one or more of his fingers in her vagina?‑‑‑Yes.

1. The mother did not squarely depose to this most serious of allegations, and said she did not know why.
2. The mother also confirmed in cross-examination:

Do you believe that [Mr Moss] has digitally penetrated [Y's] anus, in other words, inserted a finger or fingers in her anus?‑‑‑Yes ‑ ‑ ‑

At any time?‑‑‑Yes. I do, sir.

All right. Do you believe that he has penetrated her vagina - [Y's] vagina with his penis?‑‑‑No.

Do you believe that he has penetrated her anus with this penis?‑‑‑Yes.

you believe that [Mr Moss] has used his fingers to digitally penetrate [X's]vagina?‑‑‑Yes.

And that would have been before 2022?‑‑‑Yes.

...

You believe that [Mr Moss] has penetrated - or maybe you don't - that [Mr Moss] has penetrated [X's] vagina with his penis?‑‑‑No. I don't know - I'm sorry.

Do you believe that [Mr Moss] has used his fingers to penetrate [X's] anus?‑‑‑Yes.

Okay. But - correct me if I'm wrong - [...] will - I don't understand there to be any allegation of [X] saying anything other than a sore vagina, so why do you say now you believe that he has penetrated her anus?‑‑‑On experience from seeing the X-ray results.

...

Okay. Thank you. Right. And do you believe that [Mr Moss] has used his penis to penetrate [X's] anus at any time?‑‑‑I don't think so, no.

1. With respect to the mother's answer about seeing the Xray results, I have already referred to the medical evidence with respect to Y under the previous heading, with the Xray clinician opining the results were in keeping with the provided clinical history of constipation. And overall, the medical evidence before me for Y is that, in short:[121]

... the discolouration could have been caused by a number of different things including impact trauma in normal childhood activities and constipation.

1. As for X, the mother annexed a report from a continence nurse[122] which included the following under the heading of "Presenting Problem":[123]

From booking form:

"History of constipation and then diarrhoea which led to a referral to a continence nurse who diagnosed [X] with Chronic Constipation on 10/05/2021. Xray showed a 3.5cm rectum."

1. There is no expert evidence before me that supports the mother's belief that the Xrays support findings of rape.
2. The maternal grandfather joined with his wife and daughter, the mother, in believing the father has raped both children, and he added at the contact centre:

What abuse by the father do you believe occurred at the contact centre?‑‑‑Well, it would have been digital abuse.

Okay. Let's be clear: digital penetration?‑‑‑I believe so.

Of the vagina or the anus or both?‑‑‑Or both, yes.

Of both girls or one or the other?‑‑‑Well, I think it was both girls, yes.

And this is at the contact centre?‑‑‑Yes.

You understand that contact with [sic] supervised?‑‑‑That supervision is a joke.

1. I reject the maternal grandfather's view that both children were raped at the contact centre. It is fanciful.

1. On 3 March 2023, the maternal grandmother deposed at paragraph 27 of her affidavit, "I was helping [Y] on the potty and she says 'Nanny. ... Granny did lick my vagina'". There is no context for this or possible time span of occurrence. Y said nothing of the variety to police although, was not specifically asked about the paternal grandmother. The maternal grandmother did not set out what she said or did in response.
2. The maternal grandparents also told the Report Writer in the first Report of 2023 they heard Y say that "Granny was licking my vagina".[124] The maternal grandfather did not depose to this. The mother was asked about this and said her parents told her that, and that she believed it likely occurred. However, the mother did not depose to this in her affidavit even though she confirmed in cross-examination that it is a belief she has.
3. In cross-examination, the mother gave this non sequitur of an answer, but one revealing how the mother's mind jumps from an odd comment about breastfeeding to cunnilingus:

Okay. Can you help me understand why you would believe that a paternal grandmother would want to lick the vagina of a then two - three-year-old child?‑‑‑Yes. When [X] was eight weeks old, I took her over to the paternal grandmother's place, and I gave her to her to hold, and she said to me, "I was just wondering - I just feel like every time I pick her up I just want to breastfeed her, and would that be okay?" And I said, "No."

1. The mother's explanation about believing the licking because of a comment about breastfeeding, respectfully, makes no sense.
2. Bizarrely, the mother said she could not recall if either child had said anything to her to the effect their paternal grandmother licked the vagina of either of them. Commonsense would suggest that it would be neigh impossible to forget if such an horrific thing had been said by a child of a grandmother.
3. The maternal grandmother then deposed that on 21 May 2023, "[Y] said 'Nanny ... Daddy has a pink bone and he puts it in my mouth, Granny holds me down...'".[125] Again, how the maternal grandmother responded is unknown. There is no context for any of this. The father denied anything of the kind on his part and his mother's.
4. The following month, the mother attended interviews with the Family Report Writer on 6 June 2023 and said:[126]

In relation to [X], she noted she has recently disclosed that 'daddy has a pink bone that he puts in my mouth and nanny has a grey bone that she puts in my mouth which I like better'.

...

She noted, 'both children have made disclosures in relation to granny (paternal grandmother) and [Y] said granny holds her down with a shovel and daddy puts a pink bone in her mouth which I have told Child Safety however they won't listen because she is so little'.

1. Again, there is no context or timing for when any of this might have occurred. Further, the mother does not mention a shovel, a pink bone, or grey bone in her affidavit. The maternal grandfather could not recall telling the Report Writer that when Y spoke about a pink plastic bone, he believed it was a sex toy.[127] I have no reason to doubt the veracity of the Family Report and she was not challenged on this. More so, the mother did not disassociate herself from that wild speculation without any foundation, and confirmed she believed the pink bone was "sinister" and added "it could be a sex toy". She also said she believed "Granny would hold her down".
2. In cross-examination the maternal grandfather added different terminology:

Do you remember talking about this idea of a plastic bone that [Y] talks about as something that her daddy puts in her mouth?‑‑‑Well, to me she didn't - hasn't referred to it as a plastic bone. It's either a tummy finger or a pink finger.

(Emphasis added)

1. He was then taken to this quote in the Family Report and asked:

They have also heard [Y] disclose that 'Granny was licking my vagina', and the latest thing is that daddy had a pink, plastic bone, and he put it in her mouth.

Do you recall either yourself or your wife saying that to [Ms G] back in 2023?‑‑‑Yes. Except I didn't hear the word plastic, it was just a pink or a tummy bone.

(Emphasis added)

1. In submissions, no one asked for a finding that the pink and/or grey bone was a sex toy or anything sinister - indeed, so vague are the bone allegations that they could be a toothbrush.
2. The maternal grandfather confirmed he told the Report Writer in interviews on 6 June 2023 that:[128]
   • X told him the father asked "if she wanted a 'finger fuck'"; and
   • X told him the father was sexually abusing her at the contact centre.
3. Incredulously, he did not depose to these serious allegations in his affidavit. When asked about the "finger fuck" he said:

So if I'm correct about that can you help us understand why it's not in your affidavit?‑‑‑Probably because of embarrassment, and, you know, I put what I thought was relevant in.

Yes. And I appreciate that it's embarrassing, but it looks as if you were prepared to say it to [Ms G] at the interview. So, other than embarrassment, is there any other reason why it's not in your affidavit of February of this year?‑‑‑No, there's no other reason.

1. I do not accept his excuse about embarrassment and it not being relevant to his daughter's case. Embarrassment did not stop the maternal grandfather making very serious sexual abuse allegations including of a "finger fuck" to the Report Writer, who would produce a report for court. It is also hard to understand how this would not be relevant given the mother's case is that the father was and is a depraved sexual abuser of the children.

1. In mid-July 2023, the mother deposed[129] she and Y attended on the police for another I-Care interview but the mother said the child told her afterwards that, "'I don't want to tell [Police Officer Mr T] about Dad because he is a man, and he won't like that sort of talk". Y had been interviewed by a female police officer in January 2023 and said nothing of any great moment.
2. There is no evidence before me about the content of that apparent interview or anything that was said by the child.
3. It is also hard to marry up the date of the I-Care, July 2023, with something the mother said in cross-examination when talking about her interpretation of a tummy finger as an erect penis - and her consequent view Y had not been digitally raped on 21 January 2023, but raped by penile penetration:

So when did you tell the police that they were investigating the wrong crime?‑‑‑I sent [Police Officer Mr T] an email about the tummy finger disclosure, and then he called [Y] in for another icare, but we didn't see that on the video that was played the other day.

HER HONOUR: What is the date?

MR COKER: 17 July 2023.

1. The first time the mother deposed to Y using the phrase tummy finger is on 9 October 2023, but the I-Care interview is before that in July 2023.

The drawing for the bank teller and a tummy finger

1. On 9 October 2023, the mother took Y to the bank with her and the child drew on a piece of paper and handed it to the teller.[130] He asked what it was, and the mother said the child said, "it's Daddy's tummy finger."
2. The mother did not ask the teller for the drawing but took a photo of the drawing with the child beside her. Oddly, she did not describe the drawing in her affidavit, annex the photo to her affidavit, show the Report Writer or disclose it in the proceedings. It only came into evidence when she was asked for it in cross-examination.[131]
3. It seems everyone in the mother's orbit has concluded that a "tummy finger" is the father's erect penis. The phrase though sits at odds with the mother's evidence that from 2021 the children used the words "penis" and "testicles". When pressed on this, the mother then said they used those words for "non-erect male private parts" when further pressed, she said:

so what I'm trying to understand is how do you know that she's talking about an erect penis when she uses the phrase "tummy finger"?‑‑‑I don't know. I can only ‑ ‑ ‑

Well ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ observe.

‑ ‑ ‑ you're the one asserting it, ma'am. You're the one who's asserting that, when she's talking about an erect penis, it's "tummy finger". So how do you know that?‑‑‑I don't know.

You're relying just on this drawing of what you say was an erect penis?‑‑‑Yes.

(Emphasis added)

1. To add extra uncertainty to this topic, the maternal grandmother's evidence was that "the pink bone and the tummy finger are, in your mind, the same thing?‑‑‑Yes."
2. The mother's Counsel's submission was a most appropriate, evidence-based acknowledgement that:

Tummy finger, well, yes. It may be a penis. People have taken it that way. It's open to interpretation. It's not necessarily a strained interpretation, but it is not - but there is no evidence to put before your Honour that when the child said "tummy finger", the child herself meant a penis.

1. In cross-examination, the mother accepted that if the children (or really X given the father left the home in November 2019 prior to Y's birth) had seen the father's unwanted erections prior to separation, they would (a) likely be too young to recall that, and, (b) they would not understand what an erect penis was. The mother's view was that the children must have seen the father's erect penis when being supervised by either nominated friends, or his parents or at the contact centre.
2. Y's psychologist told the Report Writer this with respect to her session with Y on 25 October 2023:[132]

she drew two (2) pictures in relation to herself and her father. In describing the drawing, [Y] described 'daddy's tummy finger and that Granny knew about daddy's tummy finger'. Due to the babyish talk, it was difficult to establish what 'granny knew' and they went on to other play.

1. The psychologist notified Child Safety.
2. However, during cross-examination, it became apparent that the psychologist had a drawing on file which was blown up to focus only on a cylinder and two circles. When taken to the whole picture, she agreed that she could not see an erect phallic symbol in it. I agree - it is all sorts of age-appropriate scribbles which could mean anything.
3. Again, the mother's Counsel's made an appropriate, evidence-based submission about the drawing containing a:

cylinder which appears to have a variety of lines drawn across it. Which do not, at first blush. necessarily represent a penis. ... .There are two round balls. By saying that, I'm not suggesting they are testicles.

(That drawing depicts) a nose that is commonly associated, more often than not, with a cat. ... honestly, these things are open to interpretation. ... the acceptance of the allegations doesn't depend on the diagram (i.e. picture).

1. The maternal grandmother deposed at paragraph 30 of her affidavit that on 26 October 2023:

... [Y] said to my sister-in-law [Ms S] "My Daddy hurts me when I was at his house, Daddy puts a needle in my tummy and my bottom and then he hurts me in my bottom, it was an accident, he has a tummy finger. He hurts me and he didn't say sorry".

1. Ms S was not a witness in the mother's case.
2. The mother believed this happened and said she thought the needle reference was "entirely possible that she's speaking of a syringe". She also linked it to sexual abuse - "I believe that little children don't lie about things, like, of that nature, of sexual abuse, and they should be listened to...". She called this a new "disclosure".
3. Whilst some of the rules of evidence like the rule against hearsay do not apply in parenting proceedings, the Act allows the court to give "such weight (if any)" to such evidence.

1. The mother deposed that on 28 October 2023,[133] "[X] wrote a note to her psychologist that read 'Daddy hirt [sic] my vginau [sic]'." It is not clear if the note was given to the psychologist. The note is not in evidence. I have already referred to the generality of the word hurt.
2. On 20 December 2023, the mother deposed,[134] "[Y] made a disclosure to her psychologist [Ms D] saying, 'Daddy did stick his tummy finger in my bottom'". The psychologist's notes are clear that the mother was there, and she and the mother were "quietly" talking about the legal proceedings with both children "nearby" when Y said what is set out.[135]
3. The mother told the psychologist there had been "an escalation" in her disclosures. In cross-examination the mother added that Y kept saying "daddy hurt me" on a "daily basis" and said this "usually when she was going to sleep". As for duration, she said the allegations were made for a "very long time" from 2023 to January 2025. As set out, the mother said this information was not in her affidavit because it was "not specific enough". What the mother said in response is not known, but she is spot on about the lack of specificity.

1. The mother baldly deposed at paragraph 124 of her trial affidavit that on 10 April 2023 (her date), "[Y's] psychologist read her the book 'everyone's got a bottom' to [Y]". The mother then deposed, "[Y] subsequently made three disclosures that evening which I informed [Police Officer Mr T]." The mother's email to Mr T does not support that - in the email the mother said she (the mother) read the book to the child (not the psychologist) and there were three allegations, but made on three separate dates.[136]
2. No particulars of the "three disclosures" were given in her affidavit. That beggars belief.
3. As to the mother's date of April 2023, Ms D said in her report that she first saw Y on 4 May 2023,[137] thus could not have seen Y on 10 April 2023.
4. The mother must have meant a session for Y with her psychologist on 10 April 2024, not April 2023, because Exhibit 17 is an email from the mother to the police dated 17 April 2024. It states:

Hi [Mr T],

Hope this email finds you well. I'm just writing to let you know that on the 10th of April [Y] attended upon her psychologist [Ms D] and [Ms D] suggested I read the book "Everyone's got a bottom" to her.

Then earlier this week she started made more disclosures, I am sending them to you, I reported them to my counsellor [...] and she mentioned that I need to send them to you and that she may also call you to make sure I had done so. Thank you.

1. 13/04/2024 [Y] Watching Sesame Street on TV eating snacks, [Y] says "Daddy says it's time for Daddy to put his penis on my vagina now".

1. 14/04/2024 [Y] Watching ABC kids on TV, [Y] says "I hate Daddy's penis but I'm not afraid of Daddy's penis anymore because I'm a big girl now".

1. 15/04/2024 [Y] Getting ready for Bed [Y] says "I hate Daddy's penis... if he puts it on me again I'm going to kill him!"

(Emphasis added)

1. Putting aside her affidavit likely includes the wrong date, it is hard to understand how the mother did not depose to these specific matters. In cross-examination, she could not explain why not. The mother also said in cross-examination that the "three disclosures" included "she hates daddy because he hurts her" and a "repeat of the tummy finger". The three "disclosures" in her email to the police above do not say either of those things.
2. The topic was explored in cross-examination:

Now it wasn't that evening that there were three disclosures. Do you recall that it was actually three disclosures over three consecutive evenings?‑‑‑Yes. I do recall that now. I'm sorry.

...

Okay. That is not in your affidavit of evidence in chief of this trial, is it?‑‑‑No.

You would agree that that is a reasonably - that is a new and escalated disclosure by [Y], isn't it?‑‑‑Yes.

So why isn't it in your evidence in chief?‑‑‑I had actually forgotten about that.

No, you didn't, ma'am. Because you talk in your affidavit, at paragraph 124, with perhaps a typographical error about the year, about the "Everyone's Got a Bottom" book being read and three disclosures that evening?‑‑‑Yes, I do.

So you can't say, can you, that you forgot?‑‑‑I had just forgotten the content of that disclosure.

(Emphasis added)

1. Given the mother's vigilance about anything possibly sexually abusive this forgetfulness is hard to accept. The cross-examination continued:

Well how could you forget the disclosure if you're saying here in your affidavit there were three disclosures that evening?‑‑‑I'm sorry, sir. I meant when I was putting my affidavit together.

...

Okay. I will put it this way then. Do you believe that [Y's] afraid of her father?‑‑‑Yes.

How do you make sense of that belief with these words, "I'm not afraid of daddy's penis any more because I'm a big girl now"?‑‑‑I don't know, I'm sorry.

Again, it's a very different kind of disclosure from what - anything you've put in your affidavit, isn't it?‑‑‑It is, yes.

Can you help us understand why that is not in your affidavit?‑‑‑I was hoping that it would be in the police evidence.

1. But only a few questions before she said she had "forgotten about that". The cross-examination continued:

And "I'm going to kill him"?‑‑‑Yes.

Now I'm not suggesting that a four year old girl is seriously capable of that, okay?‑‑‑Yes.

But what I'm coming to is, how does that fit with your idea that she is afraid of him?‑‑‑I don't know.

1. It is observed that these alleged statements have come to light by an exhibit not particularized by the mother in sworn material when the onus is on her to make out her case at the requisite standard.
2. A few days after that April 2024 session, the mother said that on 19 April 2024, "[Y] pushes [X] down in the bath and sits on her face forcing her vagina on [X's] mouth and almost drowns her."[138] No one made any submissions about what I should make of that, if anything. I agree; it would be impossible to find anything about this as part of or in support of the wider context of sexual abuse allegations.
3. Of a session with Y on 6 November 2024, the psychologist told the Report Writer:[139]

[Y] asked her, 'why does my daddy hurt me, she expressed that daddy had hurt her by placing his tummy finger on her belly, pointing to the abdominal section of her body, when asked where daddy had hurt her, she expressed it had been on a bunk bed and he pulled her pants down and she then said granny let me drink from her boobie and that's not right ... she then spoke about lots of other people on the bunk beds and it all got a bit lost after that'.

(Emphasis added)

1. It is noted the reference is to Y's belly, not in her vagina or wee or bum bum or the like.
2. The psychologst told the Report Writer that "she made the disclsoures on 6 November last year but it was a little bit more abstract".[140] The psychologist's notes are at Exhibit 21 pages 10‑11 and add to the above:

[Y] then asked if we could draw. She opened a page, began drawing and described the above. As she proceeded her thoughts wandered and the picture became something other than what was first described, including a ix [sic] of family members and memories that were not necessarily linked to the traumatic memory.

At the end of the picture she expressed that she is safe now because Mummy saved me.

1. The mother told the Family Report Writer in her 22 January 2025 interview that:[141]

She recalled last Sunday, [Y] replied to a friend when she made a simply [sic] request and stated, 'how about I shove a knife down your throat!' and contends her father said this to her.

1. This is not in the mother's affidavit. I was not asked to make any findings about this.
2. The mother did not allow the ICL or the Report Writer to meet with the children alone.[142] In their interviews, the children told the Report Writer that their father "hurts us".[143] The Family Report continued:

... They don't speak with [Dr U] and [Dr E] about this noting, 'mummy does all the talking and we just play games and blocks and towers and we do activities and learn new sports and things like that'.

I asked the children what 'daddy hurts us means' and [X] struggled to reply and [Y] announced, '[X] has lost her words!'. [Y] then stated, 'one time we went to daddy's house and this was when I was six and we were playing and daddy picked me up and squeezed me between the legs'. I asked how she felt about this and she told me it was hard to breathe.

(Emphasis added)

1. Report interviews were held on 22 January 2025. Y was born in 2020. She could not have gone to her father's when she was six. She has not seen her father since 21 January 2023 when she was just three. The Report continued:

I asked if they spoke with their counsellors about this and they denied this stating, 'no, mum does all of the chit chatting'. [Y] then dropped down to the floor and crawled under the table and I asked if she could come up so I could speak with her a little longer and she agreed.

I asked if they would like anything to change about seeing their dad and they said no. I asked if anything would have to happen for them to want to see him and [Y] stated, 'no we don't want to see him'. I asked if there were any further reasons, other than the squeezing incident and [Y] said 'I can't remember'. She then turned to her mother and asked her however [Ms Moss] remained silent. I asked why her mother would know and she replied, 'because when I was little, I told her and she remembers but now I am older and all of these other things have happened'.

(Emphasis added)

1. More will be said about the children saying, "mummy does all the talking" and "all the chit chatting" when I consider whether the mother has quarantined the children from her beliefs.
2. Curiously, the children deny talking to their counsellors about being hurt and Y could not recall anything done to her other than the squeezing, but looked to her mother when questioned.

Standing back and looking at the abuse allegations in totality

1. Whilst I have taken a thematic and chronological approach to the mother's allegations to ensure her case was considered (along with the matters set out in [81] above), it is important to stand back and look at the evidence put forward supporting allegations of sexual abuse as a unified whole. That is because facts considered in isolation might not provide a basis to reach a finding or draw an inference, whereas a combination of some or all might provide a basis to do so.[144]
2. I am prepared to accept the children have said things as alleged. But that only establishes the fact of the utterances. I again adopt Harper J's careful analysis of this concept in Alam at [185]:

The truth of the facts asserted in the disclosures is a separate and further question. Severe parental conflict can cause some parents to mishear what children say to them, or even motivate them to exaggerate or contrive allegations against the other parent. Questions of plausibility of disclosures can become all the more difficult to assess for these reasons.

1. Looking at the totality of the evidence, positive findings of abuse cannot be made that the father has committed acts of abuse against the children for the following reasons taken as a whole:

(a) Many of the allegations are vague, general and lack content and context;

(b) "Hurt" could have many causes, and what does have some context, speaks to physical discipline or rough play;

(c) The court cannot leap from a word such as hurt or from other vague things said to a finding of sexual or physical abuse: proof to the satisfaction of the court "should not be produced by inexact proofs, indefinite testimony, or indirect inferences";[145]

(d) There are innocent explanations for many things that are said or said to be said by the children, for example:

(i) references to fingers "in" Y's bottom in the context of nappy changes could be wiping poo off the child's bottom as the mother identified in relation to herself, [146] or putting nappy rash cream or the like on the child's anus and vaginal area as is not uncommon for a nappy-wearing child;

(ii) it is not uncommon for nappy-wearing children to have red vaginal/perianal areas;

(iii) a pink or grey bone (perhaps plastic) put in the child's mouth could be a toothbrush, with the holding down of the child being because the child does not want to brush their teeth. Or it could be a plastic kitchen utensil such as spoon or fork, which the father and/or paternal grandmother were using to feed the child;

(iv) whilst Y said her father was licking her, as identified in the s 93A interview with Y, she said the father licked her finger to put her ring on and it was "gentle" - a far more innocent and harmless action then that alleged by the mother;

(e) There is medical opinion which supports constipation or natural childhood activities as the more likely cause for Y's anal discolouration on and from 21 January 2023;

(f) Nothing arises from the children's s 93A interviews even when assessed as part of the totality of the evidence;

(g) No Counsel sought a positive finding that the father had committed acts of physical or sexual abuse on either child;

(h) The mother is a poor historian for example:

(i) more specific allegations about serious sexual abuse fell from her in cross-examination than contained in her affidavit (and here I concentrate on the post February 2022 final consent order period of time);

(ii) she maintained professionals, especially doctors, said things to her which are not born out on medical records such as doctors telling her to take photos, or Dr N apparently laughing at constipation as a cause for Y's presentation, but querying constipation in a referral to radiology;

(iii) deposing she only discovered Dr N's senior at the practice was the father's doctor in late February 2023 when the records show she objected to Dr M being consulted in at least November 2021 and January 2023;

(iv) the mother maintained police told her not to send the children to time whilst their investigation was open. That is not supported on the evidence before the court and I do not accept her explanation the police were talking about her application to this court;[147]

(v) the mother said Y made three disclosures the night Y's psychologist Ms D read the child the book "everyone's got a bottom" on 10 April 2023; it is accepted that date was wrong. More importantly, in her email to police of 17 April 2024, the mother said she read the book to the child and the child thereafter made three specific disclosures over three separate days. Why she did not depose to the alleged specifics is a mystery;

(vi) she said the 17 July 2023 I-Care interview was because Y had used the phrase tummy finger, but deposed that was not said until 9 October 2023.

(i) Whilst the mother had a rational basis to have concerns about the father when he had unwanted erections prior to separation, now, almost six years on, sexual predation is the prism through which she sees things and interprets what the children said; thus

(i) a pink bone could be a sex toy;

(ii) Y's fused labia is now proof of vaginal penetration although she did little about it and the alleged pain at the time;

(iii) both children were raped at a contact centre;

(iv) a mention of a needle could be a syringe and tool of abuse;

(v) the father licking Y is sinister;

(vi) tickling is a code word for sexual abuse;

(vii) "granny gave me milk" means lactational milk from the over 60 year old paternal grandmother and for sexual purposes;

(viii) Y using the word "tummy finger" and it being put in her bottom meant the father has anally raped the child with his penis;

(j) The mother herself "did not know" for example:

(i) how a tummy finger meant an erect penis;

(ii) how the child's mention of a needle (which, in cross-examination, she said could be a syringe) was a tool of abuse;

(iii) what a "tickle" was code for other than a broad range of sexual abuse;

(iv) why so many allegations she made in the cross-examination were not in her affidavit;

(v) what Y meant when she said "silly things";

(vi) why she continued to carry around printed photos of Y's anus and vagina in her handbag "all the time";

(k) Y's scribbles on a piece of paper at the bank is conceded to be open to interpretation;

(l) There is no evidence to infer that Y connected the phrase tummy finger with an erect penis;

(m) There were, as all Counsel accepted, inconsistencies in the mother's narrative, for example:

(i) the mother maintained her views of sexual abuse even when Y's anal discolouration had resolved by 30 January 2023 but re-emerged again on 6 February 2023 when there was no suggestion the father or his parents had seen the child;

(ii) her descriptions of Y's "bruising" when she checked her anus in the car park on the afternoon of 21 January 2023 changed across what she deposed to, told the hospital and told the Report Writer;

(iii) she deposed she asked Y to bend over so she could have a look, but told the hospital she told Y she would change her nappy;

(iv) her descriptions of Y's horrific "bruising" after the 21 January 2023 attendance at hospital and thereafter spreading across her buttocks is not born out in the doctor's observations;

(v) Y's labial fusion apparently caused her awful pain in and from July 2022 and is proof of sexual abuse according to the mother but on the evidence, the mother left it unchecked from July 2022 when she first noticed it, did not raise it in an August GP consultation, but mentioned the fusion in a routine check-up in November 2022 and there is no mention of pain in any medical notes;

(vi) further, when the mother was alleging sexual abuse to the hospital in January 2023 and the child was examined, there was no suggestion from hospital staff of anything untoward and nor do they raise the fused labia as a suspicion or concern with the police;

(vii) she told the police that she was worried that day care workers were being too rough whilst wiping Y, and that might have caused the bruising, but in cross-examination she denied ever saying this, and did not depose to it in her trial affidavit;

(n) I cannot accept the over 60 year old paternal grandmother was lactating and breastfeeding the child; that defies human experience;

(o) I give no weight to what the child is said to have said to Ms S and then Ms S to the maternal grandmother. Such serious allegations ought have been produced in a more direct manner.[148] In any event, even if I gave the allegations some weight, they have no context and the link from a needle to a possible syringe in the tummy and bottom and sexual abuse are left for speculation;

(p) It is hard to understand how allegations of vaginal and anal, penile and digital rape only squarely came out in cross-examination;

(q) There is no medical evidence before the court which supports the mother's view that the Xrays support rape;

(r) There is no medical evidence which assists in linking colon dilation to rape, as the mother contends;

(s) Her parents' evidence was less that satisfactory, being vague and jumping to conclusions;

(t) It is also not clear why they said things in the Family Report to which they did not depose.

1. I return then to what comes of the paternal grandmother not giving evidence and the Jones v Dunkle inference sought by the mother albeit in a brief submission and not by way of setting out how the "pre-conditions" were satisfied and that this is a court of affidavits. As was said in Murdock & Madden (extracted above in the Alam references) it is the forensic need to answer, explain or contradict that founds its potential application of the rule.
2. The allegations made by the mother, who has the onus, against the paternal grandmother have been considered as they are, without need for the paternal grandmother to explain, answer or contradict.
3. The father's Counsel did not seek a positive finding that his client had not abused the children submitting, "it would be a very robust confidence in your Honour's forensic abilities to do that, given this evidence". I agree - the children's repeated allegations, albeit many lacking content or context or adults drawing conclusions, do not allow for that.

Does the father nevertheless pose an unacceptable risk of harm to the children

1. This sub-heading canvasses Item 1(c) of the father's written schema.
2. Section 140 of the Evidence Act guides my findings of past facts and is relevant to the allegations of sexual and physical abuse made by the mother against the father, which I have assessed above. Then, a separate, future looking and predictive consideration - not governed by findings on the balance of probabilities - is whether the father poses an unacceptable risk of harm to the children. Of course though, the assessment of risk is informed by the factual findings as to the past. Or as neatly said in Isles & Nelissen[149] at [47]:

...The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm.

1. At [51] the Isles Full Court adopted what Austin J said in Fitzwater & Fitzwater[150] at [139] including this useful elucidation of the concept of unacceptable risk:

Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children's sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.

1. Then, a conclusion of unacceptable risk necessarily requires a consideration of the means which might be adequate to sufficiently mitigate the risk to an acceptable level.[151] Or, as was said by the Full Court in Blinko & Blinko:[152]

A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because "[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of 'benefit to the child'".

1. The mother's case is that the father has and will continue to sexually abuse the children and thus, the father is an unacceptable risk of harm to the children.
2. The Full Court in Bant[153] highlighted risk must be assessed from looking at the whole of the evidence:

The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to "atomise" that evidence (see Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.

1. Looking at all of the evidence, which has been painstakingly set out and considered earlier, I do not share the mother's views that the father poses an unacceptable risk of harm to the children going forward. I do not because the risk of sexual or physical abuse by the father to the children going forward is one that has little foundation and the assessment of the magnitude of any such risk is not unacceptable.

1. Having assessed the father does not pose an unacceptable risk of harm to the children, what was said by the Full Court in A v A[154] at [3.27]-[3.29] becomes apposite:

It is only in cases where the trial judge reaches a conclusion that objectively there was no unacceptable risk that that Judge would need turn to the separate question of the wife's belief in the occurrence of the events in question as a separate matter, as the judgment of the Full Court in Russell and Close (25 June, 1993, unreported but frequently referred to in this area) demonstrated: see also, for example, Re Andrew [1996] FamCA 43; (1996) FLC 92-692, which has some similarities with this case.

If the wife had such a belief, it is not a necessary component that the belief should be reasonably and objectively based. What is required at this level of the inquiry is that it was genuinely held. The reason for that, as explained in Russell and Close and in cases which have followed that since, is that if the wife genuinely holds that belief that may so impinge upon her capacity as the primary carer of the children to look after them that the question arises whether in the interests of the children contact should continue and/or whether it should be supervised to allay those apprehensions.

It appears to us that his Honour's approaches confused these two aspects. The first inquiry is whether there is objectively an unacceptable risk. If there is the court must take steps proportionate to the degree of risk. If there is not, the court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party's capacity as the resident parent and so impinge on the best interests of the children. The court then needs to take steps proportionate to that circumstance. ...

1. As properly accepted by the father in submissions, his unwanted erections in the presence of X pre-separation, became the start of the mother's trajectory towards her now belief that the father has sexually abused both children on multiple occasions and will continue to do so if given time.
2. I accept the ICL's submission that the mother is not going to change her view that the father has offended, and will, if given the opportunity again - "She's not going to change that view regardless of who informs her it's not the case".
3. There is no doubt the mother genuinely believes what she alleges, even when she cannot explain how a tummy finger means an erect penis, or a needle is likely a syringe and is a tool of abuse, or a pink bone might be a sex toy, and Y was drinking milk from an apparently lactating woman over 60. She maintained various versions of Y's alleged bruising on and after 21 January 2023 despite what was said about discolouration in the preponderance of medical notes. She eschewed constipation as a possible cause of Y's anal appearances. She saw sexual evil in the grandmother and father apparently placing a grey bone or pink bone in the child/ren's mouths.
4. Irrespective, there is no doubt that the mother genuinely believes the father has sexually abused both children.
5. No one submitted to the contrary, and I find accordingly.

1. It is often the case that where a party alleges sexual abuse and genuinely believes that to be so, they also say that their capacity to parent would be compromised if the children were to spend time with the other parent; see R & C[155] and Re Andrew.[156]
2. But that is not the case here. The mother puts on no evidence (even of any self-reflection) that her capacity to parent would be compromised if the children spent time with the father.
3. Of the need for evidence, in Hollister & Gosselin[157] at [193], Tree J said in that matter there was little evidence, "beyond the mother's inevitable devastation and horror, to suggest that she could not continue to successfully parent the children". He noted there "was no evidence from her psychologist or counsellor, much less a psychiatrist, as to her likely being unable to continue to function effectively so as to adequately care for the children".
4. Similarly, in Keane & Keane,[158] the mother appealed against orders allowing the child to spend unsupervised time with the father. The second ground of appeal was to the effect that the primary judge should have inferred that her capacity to parent would be adversely impacted if the child spent unsupervised time with the father. However, the Full Court observed at [109] and [111]:

The simple reality is that the mother, through her legal advisers, failed to adduce sufficient evidence to establish that fact. It is trite to say that, in order to make a positive finding of fact, the Court needs to be satisfied on the balance of probabilities as to the existence of those facts. The "degree of satisfaction required cannot be based on inexact proofs, indirect testimony and indirect inferences": see Murphy & Murphy [2007] FamCA 795 at [480]. For such an inference to be drawn, from either direct evidence or from circumstances appearing in evidence, that evidence "must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture": see Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358.

...

However, the evidence presented by the mother rose no higher than establishing a speculative possibility that her parenting capacity may have been adversely affected by orders providing for the child to spend unsupervised time with the father. In that respect, the mother specifically denied that she suffered from poor mental health and the single expert opined that the mother did not suffer from poor mental health. The mother failed to call evidence from a treating psychologist, psychiatrist or treating therapist attesting to the impact upon her of orders providing for the child to spend unsupervised time with the father. Aside from stating that she would be very distressed by such orders, no evidence was placed before the primary judge to assist his Honour in making an assessment of the level of that distress. Finally, insofar as the primary judge found that the mother would be distressed by such orders, his Honour found that the mother would seek appropriate therapy if necessary. All of those findings were reasonably open to the primary judge on the basis of evidence presented to him.

1. The mother in the present proceeding said nothing about how or if her parenting would be compromised if time were allowed. It cannot be that capacity to parent escaped her mind, because it is a heading in the mother's affidavit, where she says this of herself:[159]

Parental Capacity - Section 60CC(2)(d)

1. The evidence demonstrates a stark contrast in parental capacity to meet the children's needs. I maintain stable employment while coordinating comprehensive medical care, psychological support, and educational participation. I have successfully obtained and managed NDIS support for both children, ensuring they receive necessary therapeutic interventions.

1. She then went on to criticise the father's capacity to parent including when he did things he was perfectly entitled to do as the parties still have equal shared parental responsibility, as it was then called.
2. No submissions were made of a R & C variety with respect to the mother's capacity to parent, but that is not surprising given the lack of evidence to support same.
3. Instead, the mother's (and her parents') evidence about her (and their) reactions if orders for time were made, were of defiance (particularly from the maternal grandparents in support of the mother), but reactions of defiance are not necessarily the same as compromised capacity to parent. The mother said:

Do you think it's possible that if her Honour had said, "look, I do see it differently from yourself"?‑‑‑Yes.

Would that be a piece of information you would take into your calculations, your thinking about whether or not you were correct in your assessment of [Mr Moss]?‑‑‑No.

Have you discussed it with [Ms Moss], this possibility, that that's something that might happen at the end of the trial?‑‑‑Well, if it did happen it would be wrong, is all I can say.

...

...there's a possibility that might happen, what do you recall [Ms Moss] saying?‑‑‑She mentioned she would have to talk to Child Safety.

...

Did you understand her - [Ms Moss] to say this - and feel free to tell me I'm wrong. Okay. Did you understand [Ms Moss] to be saying this to you, that if the judge orders unsupervised time [Ms Moss] would talk first to Child Safety before she let that happen?‑‑‑That's what we talked about. Yes.

In that context do you recall what [Ms Moss] said, if anything - she mightn't have said anything - do you recall what [Ms Moss] said about what she might do in response if her Honour was to make an order at the end of this trial that [Mr Moss] had unsupervised time with his children?‑‑‑Yes. I believe she has stated to us that she will go straight to DOCS.

...

Do you have an understanding, if there's an order for the children to spend unsupervised time - a court order to spend unsupervised time with their father, why she would go to DOCS? And if you don't know that's perfectly fine, but I'm just asking you if you have a sense of it? -- She would try to prevent that [time] from happening.

...

If at the end of this trial her Honour ordered something like unsupervised time between [Mr Moss] and the girls, you would support [Ms Moss] in not complying with that order?‑‑‑Correct.

1. The foreshadowed non-compliance with court orders has more to do with the unyielding maternal family's belief system, than evidence of likely compromised parenting. I have no doubt the mother will reject these findings and will remain of the view the children have been and will continue to be abused.
2. However, as was said in Keane at [80]:

... authorities, however, confirm that it is an error to assume that, in each and every case where a parent is concerned about the safety of a child in the other parent's care, the court will infer that there is an unacceptable risk that the concerned parent's parenting capacity will be adversely impacted. To do so risks elevating those fears to an extent that it overshadows the totality of considerations set out in s 60CC of the Act. In particular, as noted by the primary judge, it does not give the concerned parent a right of "veto" over whether the child should have time with the other parent, citing Marra and Marra (unreported, FamCAFC, Fogarty, Baker and Butler JJ, 8 September 1993) (Marra). As explained in Marra at [6].

(Emphasis added)

1. I cannot make a leap from likely anger, defiance and disbelief about the outcome if time is ordered, to compromised parenting. The currency of the court is evidence - and the evidence is just not there to support the drawing of such an inference about comprised parenting.
2. The mother told the Report Writer in the second Report (2025) that she had completed counselling with a specific person at V Family Services, and that she could reapply for support on 1 February 2025 if she needed it. The mother will be at liberty to take up these Reasons with that person and will also be at liberty to give a copy of these reasons to her counsellor if she wishes.

Has the mother caused the children emotional harm

1. This sub-heading includes Item 1(d) of the father's written schema.
2. Whilst the mother steadfastly believes the children have been physically and sexually abused by the father, I have not made positive findings that this is so.
3. I do not accept the mother and her parents have successfully quarantined the children from their views. First, the mother said she and the maternal grandparents spoke of the allegations when the children were at school. The maternal grandparents did not support that, saying the children would be elsewhere like school or in another room. Second, the mother also spoke to the children's psychologists and GPs in the presence of the children but said she spoke quietly, but that is unlikely to prevent little ears listening or hearing things said here and there. Third, the children themselves report "mum does all the talking" at their psychologists. It is clear the children do talk to their psychologist but so does their mother. Fourth, the mother makes numerous attendances upon doctors for perineal and anal examinations of the children, in particular Y, which messages to the child something is wrong and/or needs checking. She deposed to asking Y to bend over in a car park, so she could have a look at her anus and said nothing about shielding X from this. Fifth, she has taken many photos of the children's private areas again messaging to the children something is not right. Sixth and relatedly, she has exposed the children to the idea it is acceptable for an adult to photograph what should be private areas.
4. On those bases, I readily accept on the balance of probabilities, and find that the children know their mother and maternal grandparents believe they have been sexually abused by the father. I do not suggest she is coaching them or actively talking to them. Rather, I accept the father's description of an inadvertent transfer or creation of the children's beliefs.
5. The Report Writer was asked and answered the following by Counsel for the ICL:

So what are the impacts on the children to be in an environment where the parents believe - the parent believes that, but it's not actually true? --- Well, there would obviously be elements of emotional harm and psychological harm, because the children are being too exposed to information, one would assume, from that parent, that is not their lived reality. So that would have a negative impact on their perception of that parent and their experience of that parent, their desire to be with that parent and around that parent. So it would be highly detrimental to that child, and it would significantly impact their relationship with that parent.

Okay. In a scenario, as Mr Coker put to you to consider early on when he was questioning you, of considering harm in a circumstance where the children are in the primary care of a parent who believes that the other parent has abused the children, and that belief proves to be mistaken, okay, for whatever reason, just proves to be inaccurate, would that be an example of dysfunctional co-parenting, if you've got a situation where the children are with one parent who thinks that, and they're not spending any time or communication at all with the other parent?---I think that would be detrimental to the children. Yes. It's not functional parenting, because it's telling the children some false information.

Yes. Yes. And I'm not talking about knowingly false, I'm just talking about inaccurate?---Yes.

1. I accept the Report Writer's evidence as a matter of commonsense.
2. Put simply, to allow the children to believe they have been sexually harmed when that is not made out on the evidence, is emotionally harmful to the children. It calls into question the children's views of the safety of their own bodies, their psyche, there sense of self, their sexual and physical integrity, their relationship with their father and how they calibrate themselves in and to the world.
3. However, there is more than just inaccurate beliefs being inadvertently instilled in the children. The mother's beliefs have extended to her conduct as well:

(a) The mother took at least one photo of Y's private areas in 2021, perhaps November 2021 but said the doctor had asked her to take the photo because he did not want to examine the child. When taken to the medical record of 30 November 2021,[160] the mother agreed the doctor did examine the child and there was no mention of the doctor requesting the photo. No medical records supporting the mother's claim that she was asked to take the photos were adduced in re-examination. The mother said she told Y the doctor wanted the photos - Y was an infant and it is questionable if she could comprehend that, but if she did, the message is something is wrong. In any event, the child had a photo taken of her private areas which is likely messaging something is wrong;

(b) In June 2022 the mother took photos of alleged bite marks on Y. These were annexed to her affidavit but no one in the court has skills to read anything into it in a causation sense;

(c) In November 2022 she took photos of X's sunburned shoulders and annexed them to her affidavit - the same problems of causation arise;

(d) On 21 January 2023, she asked Y to bend over in a fast food car park, so she could "have a look" at her anus. The mother's evidence does not suggest X was shielded from that either;

(e) After the 21 January 2023 visit to the hospital, the mother then took a photo of Y's anus and vaginal area every day for seven days. Again, she said the doctor told her to do this but there is no mention of that in the records. To the contrary, the records said the mother had taken photos, had them printed and wanted the doctor to upload them to Y's file. When challenged about this, the mother questioned the doctor's English - a doctor whom she had been taking the children to for some time. She told Y the doctor needed them - again messaging to the child something is wrong. She annexed these photos to her affidavit for a court room of people to see. I sealed that annexure;

(f) On 9 October 2023, she took a photo of Y's drawing at the bank, with the child beside her;

(g) She told the Report Writer she had had an arrangement with the children's school that they only attend school four days a week "until the trial in March so there is no risk he will be present at the school". [161] Respectfully, it makes no sense that the father would only turn up, on the mother's case, one of the five days a week and only until trial. She said she uses this day for the children's medical appointments, which are important, but her raison d'etre was not because of the medical appointments but for the risk of the father turning up. This means the children are missing a day of school a week due to the mother's actions;

(h) The mother has changed the location of the children's extracurricular activity and not allowed a child to attend an end of school event because the father might attend. Certainly, the father has attended school based activities, but there is nothing in the 2022 final consent orders restraining him from doing so. It is also not clear what the mother thought he might do. There is no evidence from the mother that when the father did attend school that either child saw him. In the meantime, the children have had disruptions and missed an important school event because the mother acted on her beliefs.

1. And all of this messages to the children that something is not right.
2. The Family Report Writer was asked about photographing a child's private areas when it was not required. She responded:

Okay. Yes. I think that, again, if we - we're taking it from the premise that it's not required, exposing a child to that - taking a photo for - it's - again, it's more invasive, the - and it being repeated is - is abusive if it's not required. It's not - you know, it's not really reinforcing that these are private areas, these are - you know, it's about, you know, protective behaviour. So these are private areas. Exposing a child to that and actually taking a photo is - is very invasive, so I would say that is harmful again, yes.

1. The mother said doctors asked her to take photos. I reject that, as it is not born out in medical notes and Dr N specifically denied doing so when asked by the police. I accept the Family Report Writer's opinion that unnecessarily photographing a child's private areas is invasive and hardly supports the child understanding private areas are just that - private.
2. I sealed the mother's photos of the child's intimate areas attached to her affidavit. No one in the court or the Family Report Writer had any expertise whatsoever to interpret the colouration or their probable cause. No one in these proceedings needed to be shown the child's private areas. Indeed, Y had no agency over the mother's decision to do that and might be quite upset that a court room full of strangers have seen the photos if she discovers that when she is older. I thus accept the Report Writer's opinion that it was "harmful on a systemic level."
3. I also found the mother's evidence that she had carried the photos in her handbag "all the time" as bordering on bizarrely obsessional. The mother could not readily explain why she did this. Eventually she suggested it was so the children could not see them, but it would hardly be a remote possibility for a child to go exploring through their mother's handbag. Then she said, "if anything happens to me, there's no evidence of what has happened to [Y], it's gone". It is hard to make much sense of this other than it again highlighting the mother's belief system.
4. The ICL was also critical of the mother's attendance on the GP on 30 January 2023 and 6 February 2023, saying they were unnecessary exposures of the child to further examinations which the mother "insisted" upon. There is much force in what the ICL's Counsel said about those two attendances as being invasive and unnecessary from the child's point of view.
5. However, and ironically, those two visits have important evidential value (sadly at the expense of the child being further examined), because the anal discolouration had resolved on 30 January 2023 and was back again on 6 February 2023 when the child had not had any contact whatsoever with the father or his parents.
6. The mother would say she took the photos, asked Y (with X there) to bend over in the car in the fast food car park for "a look", and took her to various doctors because she was acting protectively. But there is a difference between acting protectively by, say, stopping time on one hand, and on the other, invading a child's privacy by taking photos and showing them to people with no qualifications to interpret them. There is also a difference between appropriately and protectively taking a child to a doctor (say on 21 and 23 January 2023) and then insisting on further anal/perineum examinations thereafter.
7. In short, allowing the children to believe they have been sexually abused, taking and disseminating intimate photos of a child to strangers with no skills to assess them, and getting a child to "bend over" for a look at her anus in a car park (with car doors opened somehow for privacy) and with the other child present, are all actions of emotional abuse[162] and I find accordingly.

Does the mother pose an unacceptable risk of harm to the children by her beliefs

1. This sub-heading includes Item 1(e) of the father's written schema and is the forward assessment of possibilities (not probabilities) to which I have already referred. I will not repeat the authorities on unacceptable risk here either.
2. I accept the ICL's submissions that there is "no moderating influence in the children's household" and by that he included the maternal grandparents who live nearby. I accept it because it is well born out on the evidence.
3. Indeed, the mother has no one in her corner identifying the inconsistencies in what was said, or reality testing it. Her parents are just as caught up in the allegations, including the improbability of the paternal grandmother actually lactating so Y could drink her milk. The maternal grandfather was reported in the Family Report as saying he thought the pink bone was a sex toy. In cross-examination he could not recall that. Nevertheless, when the mother was asked about this, she thought the "bones" might be sex toys. When Y mentioned her father put a needle in her tummy, that became a likely syringe and tool of abuse. Many people in the children's orbit assume the children saying "Daddy hurt me" is a reference to sexual harm.
4. Certainly, the mother would point to the psychologists' adoption of PTSD as "proof" of abuse, but without understanding clinical psychologists are not arbiters of facts, but work with what they are told.
5. The problem with all of this is the mother lives in an echo-chamber where she, her mother and her father all re-enforce and re-affirm their beliefs amongst themselves that the father is a sexual abuser, with no one standing back with objective assessment, an alternate explanation or a reality check.
6. This is the world in which the children exist.
7. It is a world in which the children believe and will continue to believe they have been abused by the father and paternal grandmother if only exposed to their narrative. I have no confidence whatsoever that anything said in these reasons will dissuade the mother from any other view. Even when she was unable to explain the link between how something said or drawn by the child actually equated to sexual abuse, she maintained her position.
8. Looking forward, I have no reason to think or even hope that the mother and her parents will give the children any narrative other than being victims of abuse at the hands of their father, despite my findings. Letting these children go through life with the erroneous but firm and convinced belief that their father has sexually abused them and their father is unsafe with them, will likely have a deleterious impact on their emotional life and their development. They will define themselves as victims or victim survivors for no good reason.
9. And that is an unacceptable risk of harm to the children.
10. The next question is what can be done to ameliorate the unacceptable risk of the children growing up believing they have been abused by the father. A change in the mother's beliefs is not on the cards in the foreseeable future, if at all.
11. The ICL submitted, essentially, "do nothing" about the unacceptable risk of the children growing up believing they were victims of abuse as nothing can be done to ameliorate the unacceptable risk to the children posed by the mother. The ICL said the least-worst option is to allow the children to believe they have been sexually abused by the father. The mother submitted that if the court concluded she posed an unacceptable risk of emotional harm to the children by her beliefs, "then the mother would adopt the position of the ICL that it (no time) is the least-worst option".
12. Late in the trial, the father's Counsel handed up orders which saw Ms D (Y's therapist but known to X and trusted by the mother) assisting the children with the cognitive dissonance between what they say of their father and then seeing him and seeing he is not.
13. To that end, Dr Sayers for the father, took the court to s 60B(2) of the Act which provides:

The objects of this Part are:

(a) to ensure that the best interests of children are met, including by ensuring their safety; and

(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

(Emphasis added)

1. Dr Sayers submitted that children are rights bears. That is unarguable. He also submitted many of the Articles in the Convention find resonance in the Act. That too is uncontroversial. But he submitted that Article 39 does not find articulation in the Act; it provides:

States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.

1. Article 39 is an important international standard to the effect that state parties assist children who have suffered abuse, neglect and other harms in their physical and psychological recovery and social reintegration. It is about the rights of a victim child to be supported through and provided with a journey of healing. At its heart, it says children have a right to develop into the best persons they can be.
2. Dr Sayers submitted:

It is an object of the domestic legislation not otherwise dealt with in the domestic legislation. It's an object of the Act and, in my submission, that makes it a phenomenally powerful consideration in your Honour's exercise of discretion to find a way for the physical and psychological recovery of the children from this emotional abuse and/or the mitigation of its unacceptable risk going forward.

1. The question then is what can the court make of Article 39?
2. The Explanatory Memorandum says this at [18]:[163]

New paragraph 60B(b) confirms, in cases of ambiguity, the obligation on decision makers to interpret Part VII of the Family Law Act, to the extent its language permits, and where relevant, consistently with Australia's obligations under the CRC. The CRC may be considered as an interpretive aid to Part VII of the Family Law Act. To the extent that the Family Law Act departs from the CRC, the Family Law Act prevails. This provision is not equivalent to incorporating the CRC into domestic law.

1. Hence, it is an interpretative aid where there is ambiguity. There is nothing controversial in that. So, is there ambiguity in any relevant legislative provisions?

1. I am of the view there is no ambiguity in the concept of promoting "the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of a child" in s 60CC(2)(a) as encompassing the matters to which Article 39 speaks. To "promote" the child's safety including "safety from" are action concepts. It must therefore include consideration of orders (where the facts of a case and a child's best interests require) that will promote the child's safety, which must mean a consideration of orders to assist a child to recover from identified harm - and in this case, an unacceptable risk of harm going forward posed by the mother. To not consider orders doing that, may not be promoting a child's safety including safety from identified harm.
2. Similarly, s 64B defines what constitutes a parenting order and includes at s 64B(2)(i):

any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

1. For analogous reasoning, this subsection must invite consideration of orders that will promote, advance or benefit the children's welfare or development.

1. If I am wrong and promoting a child's safety, including safety from harm, and/or considering orders for their welfare or development, are ambiguous as to whether they encompass a consideration of orders to assist a child to recover from the harm of erroneously believing they had been abused, then I am entitled to look at the Convention, and here Article 39, as a guide to my considerations of a child's best interests. And that squarely then allows for a consideration of measures to recover from harm as part of promoting a child's safety, including safety from harm.
2. It is stressed that in both Approach A and B I have purposefully used the clause "consideration of orders" to highlight neither of the approaches are dispositive of the many considerations at hand and the balancing acts that must be undertaken to arrive at what orders constitute a child's best interests.
3. What steps, if any, I can take to try to ameliorate the unacceptable risk which the mother poses to the children must be informed by the other relevant s 60CC considerations in determining orders that are in the children's best interests.

1. Unfortunately, the ICL was not permitted to engage alone with the children by the mother/her solicitor contrary to s 68LA(5A). At the start of trial, I excused her from those obligations.
2. Any views of the children are infected by the mother's (and her parents') belief system.
3. Most recently, the children told the Report Writer that "we don't have a daddy. He hurt us". I have already assessed that the word "hurt" does not evidence sexual or other abuse and have referred to instances where hurt is linked to rough play or physical discipline.
4. Y told the Report Writer that she wished to have "a happy life and live with mummy". They said they did not want to see the father.
5. At the end of the day, the children's views are coloured by the mother's beliefs, and they are too young for much weight to be given to their views.
6. It is relevant though to note that orders handed up by the father in submissions propose a therapeutic approach to assisting the children with the cognitive dissonance between their views of the father as a sexual predator and then spending time with him and seeing he is not.

**_(c) the developmental, psychological, emotional and cultural needs of the child

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs_**

1. These matters go hand in hand.
2. Post-separation, X was referred to a clinical psychologist, Dr Z, with a diagnosis of PTSD; the factual substratum for this is unknown.[164] In 2021, the child's current psychologist, Dr Z confirmed a diagnosis of Separation Anxiety, General Anxiety Disorder and Post Traumatic Stress Disorder. In a letter for NDIS funding in December 2024, Dr E again referred to a diagnosis of PTSD.[165]
3. Y has been diagnosed with Post-traumatic Stress Disorder with Dissociative Symptoms of Depersonalisation and Derealisation.[166] The Report Writer explained "dissociative symptoms" to mean a child may blank out, freeze, be unable to concentrate and not being aware of what is happening around them.
4. It is not clear but seems that the diagnoses of PTSD arose from the GP's and clinicians' acceptance of what the children, mother and others told them about sexual abuse and being hurt. For example, X's psychologist noted X scored within the clinical range of the autism scale but thought the GP's diagnosis of PTSD was a better interpretation "due to her trauma and anxiety background". The foundations for the diagnoses are not clear.[167]
5. That said, the two psychologists are required, in a therapeutic model, to accept what each child has to say. They were engaged to provide support to the children in the context of sexual abuse allegations, that being the lens they applied when working with each child. It is not their task to forensically examine what is said and make "findings".
6. In turn, it is not my task to re-diagnose the children or tell the therapists how to do their job. They work in a therapeutic alliance model, not a forensic model and what is said to them is not tested. Conversely, the court works with tested evidence and a forensic analysis of same.
7. X's psychologist, Dr E did not give evidence, but I have no reason to doubt her professionalism. Ms D, Y's therapist, gave evidence and impressed me with her skill and expertise. She confirmed she was happy to keep working with Y and involve the father if requested, whatever the outcome of the trial. I have no doubt Ms D will take whatever clinical steps she considers appropriate given these Reasons and orders. I have no reason to doubt Dr E will do what she thinks clinically best too.
8. In any event, whatever the diagnostic label applied to the children, it is clear the children have had challenging behaviours at times including medical/health needs being met by the National Disability Insurance Scheme ("NDIS") funding packages. Y accesses the services of a psychologist and allied health professionals. X has a psychologist, a continence nurse and an allied health professional.
9. Albeit coming from a belief of abuse, the mother facilitates the children's attendance on their various supports.
10. I have already concluded the mother is visiting emotional harm on the children through her belief system and associated conduct, and looking forward, that she poses an unacceptable risk of harm to the children in allowing them to go through life believing they have been sexually abused. This does not speak well for her capacity to parent when it comes to the allegations.
11. I have also referred to the mother's lack of evidence with respect to her capacity to parent in the R & C sense. I have already set out the paragraph of the mother's affidavit where she speaks positively about her capacity to parent. Apart from the emotional harm she has caused the children and unacceptable risk of harm going forward, I have no reason to otherwise doubt the mother's capacity to parent the children in a day-in-day-out sense of feeding them, getting them to school and appointments and the like.
12. The father is untested both in terms of his own parenting capacity and capacity to meet the children's needs. As such, I do not share the father's assessment expressed to the Report Writer that he had "more faith in my own parenting than to have such a huge portfolio", meaning that he could manage the children's needs without the many professionals they see.
13. By the time of submissions, his Counsel handed up a parenting proposal with considerable emphasis on therapeutic supports for the children, which I will discuss further under the Disposition section of these reasons.

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

1. On the mother's and ICL's approaches (for different reasons), the children's relationship with their father, and by implication his family, will be severed. That is often called an option of last resort.[168]
2. The father's three proposals would see both parents in the children's lives.
3. Whilst there is often benefit to children having a relationship with their parents where it is safe to do so, this is one of a number of matters that need to be thought through and balanced.

(f) anything else that is relevant to the particular circumstances of the child.

(a) Has not made positive findings of any abuse by the father or paternal grandmother;

(b) Has not assessed the father poses an unacceptable risk of harm to the children;

(c) Has found the mother genuinely believes what she says about abuse, even where she cannot explain, for example, how a tummy finger equates to an erect penis or how a pink bone might be a sex toy. However, I do not find the mother is lying or acting maliciously when she alleges what she does, and refer to (d) next;

(d) Has found she sees the father (and his mother) through, and only through, a prism of abuse, reinforced by the echo chamber whereby she and her parents all re-enforce each other;

(e) Has accepted that pre-separation the father's unwanted erections gave the mother a basis for concern, but her allegations have morphed into what the ICL called "fantastical", e.g. the child saying something "weird" (her words to a doctor) about drinking granny's milk, that has become an allegation of sexual abuse, or that a pink bone is a sex toy, or a needle is a syringe and tool of abuse;

(f) Cannot find, on the mother's own lack of evidence, that her capacity to parent will be compromised if the children spend time with the father;

(g) Has found the mother's belief system has caused the children emotional harm; and

(h) Has assessed, looking forward, that she poses an unacceptable risk of harm to the children by them going through life believing they have been horrendously abused by their father.

1. However, that finding of emotional abuse by the mother and assessment of unacceptable risk she poses do not control the outcome of this best interests process.[169]
2. The father proposed a change of residence, with a moratorium of time between the children and the mother. However, that is, respectfully, a naive proposal working on the basis that if the children just live with him, they will see he is not a sexual predator. But they think he is, and he offered no concrete plan on how he would manage a change of residence. In cross‑examination he said he would engage with the children's psychologists, but he has taken no advice and offers no considered strategy or clear and articulated plan to support and scaffold the children on what would be a momentous change for them.
3. I accept the Report Writer's opinion and ICL's submission that a change of residence would likely be catastrophic for the children - to go from their sole attachment figure (despite her failings) to a father they have not seen for 2.5 years, whom they think is an abuser, and who has no clear plan for support.
4. Further, any familiarity the children have with the paternal grandparents' home is dependent upon any memories they have. They have no knowledge of his property or his unnamed partner unknown to them and the court. The children have never spent overnight time with him post‑separation and Y has known nothing but supervised time and then no time with him. Given the father said he struggled to recognise the children at school events due to the passage of time, the same must be true for the children if not more so. He also has no experiential awareness of the children's various medical complexities and is a NDIS novice.
5. Hence, I conclude the father's primary proposal is too big a leap for the children and his evidence that he would "look into" supports once the children were in his care was deficient and lacking child focus and insight for the magnitude of the emotional calibration they would have to undergo. To that end I accept the opinion of the Report Writer that a change of residence could see a regression in the children's gains with their therapists.
6. In the alternate, the father proposed a reversion to the current 2022 final consent orders. In summary, that provided that the parents have equal shared parental responsibility (as it was known in 2022), the children shall live with the mother, and that the children spend gradually increasing periods of time with the father.
7. For the same reasons that I have concluded the father's change of residence proposal is not in the children's best interests, I conclude a reversion to the 2022 orders is also a leap too far. There is no definite therapeutic scaffolding for the children on that plan either.
8. But I cannot conclude no time with the father is in the children's best interests either. To allow the children to go through life believing they have been horrendously abused is not something that can attract the court's imprimatur. It is an invidious position for the children and the antithesis of facilitating orders in the children's best interests and allowing them to develop into the best people they can be.
9. Equally, spending no time with the father does nothing to ameliorate the unacceptable risk of harm the mother (and her household) poses to them. Rather, I accept the father's submission that doing nothing because it all seems too hard is "not a good enough solution for a judge charged with exercising discretionary judgements about what's in the best interests of children". I do not see how the children's safety is promoted by just giving up and ordering no time and all that goes with that.
10. Allowing these children to go through life believing they have been horrendously sexually abused, does not protect them from that ongoing harm of inaccurate belief. Nor does it promote their safety in the sense of giving them an opportunity, or a window, through which they may be freed from the harm of believing they have been abused, under which they labour and will colour their whole lives if the children's safety, including safety from that harm, is not promoted.[170]
11. It is also hard to see how parenting orders that had that nett effect would be orders dealing with the children's welfare or development.[171]
12. In the first Family Report, these were the recommendations:[172]

That [X] and [Y] live with their mother.

If the Court finds there is an unacceptable risk of sexual/emotional/physical harm to[Y] and [X] from the father:

[Y] and [X] spend no time with the father

If the Court finds there is not an unacceptable risk of sexual/emotional/physical harm to [Y] and [X] from the father:

[Y] and [X] spend supervised time with their father and this progresses to further time, based on the opinion of their respective psychologists.

1. I cannot divest judicial decision making to the psychologists to determine further time arrangements. Nevertheless, supervised time was proposed and with therapeutic supports if the court found the father was not an unacceptable risk to the children. That is what I have concluded.
2. Unfortunately, by the time of the second Report, the Report Writer only made one recommendation:[173]

That [X] and [Y] live with their mother.

[Y] and [X] spend no time with the father.

1. This singular recommendation is in circumstances where the Report Writer made unhelpful comments, suggesting pre-judgment, such as:[174]

[Mr Moss] presented in a similar fashion to my previous assessment of him and demonstrated no insight into his alleged past behaviour and his children's needs. His focus was again squarely on attempting to prove his innocence, despite the external evidence to the contrary.

...

... [Mr Moss] demonstrated no insight into his past alleged behaviour and appears to believe this could be remedied by him simply being 'a good parent'.

(Emphasis added)

1. She denied she had pre-judged the matter in cross-examination, but that does not sit well with what she wrote just above. Indeed, it is hard to see how the father could have demonstrated insight into "alleged past behaviour" which he denied. His attempts to prove his innocence are hardly surprising. The statement of "external evidence to the contrary" suggests the Report Writer accepts that to be so. Having listened to the Report Writer she seemed surprised that challenge was being made to the veracity of the allegations of abuse.
2. However, I do accept the father's approach that the children simply seeing him being a "good parent" would make everything OK, was naïve and lacked insight.
3. The Report Writer also made it clear, particularly at paragraph 9.3[175] and confirmed in cross-examination, that she put considerable weight on what the treating psychologists reported about the "disclosures", as being the bulk of the "external evidence to the contrary". But the psychologists work with what they are told, and their support and engagement process is not a forensic one. It is not their job to determine fact or otherwise.
4. Unlike Report Writers, the court has had the benefit of the evidence being tested, with all Counsel ultimately submitting positive findings of abuse could not be made. The court's long analysis of the mother's many allegations see that submission made good.
5. I have formed the view that the children's best interests are served by being therapeutically supported to be re-introduced to the father along with a considerable period of supervised time. I have formed this view because:

(a) The children can hopefully experience a new narrative about their father and therefore themselves;

(b) They may be released from the burden of believing they have been abused;

(c) A therapeutic approach is precisely that - emotional scaffolding for the children as they deal with the cognitive dissonance between what they believe about the father and what they see in spending time with him;

(d) Therapeutic scaffolding and a period of supervised time is about the only proportional option available to the court to try to ameliorate the unacceptable risk of harm posed by the mother to the children going forward in believing they have been abused;

(e) The therapeutic approach ought buffer the kind of catastrophe that would likely occur if residence changed or the 2022 orders continued;

(f) There could be a regression in the children's progress with their therapists (or more generally) as the Report Writer opined, but that short term risk is balanced against the possibility of the long term gain of having the opportunity to experience a new truth about themselves, their bodies, their psyches and their father;

(g) Supervision and scaffolding provide the opportunity for the children to have a relationship with both parents that is safe;

(h) There is little the court can do to prevent the mother from making future allegations to child safety and the police. However, a supportive approach with a therapist the mother trusts and supervised time ought give those authorities a moment of pause should she do so. Those entities ought be given a copy of the Family Reports, these reasons and orders, and I will ask the ICL to do so;

(i) Supervision is a support for the children and a protective factor mainly for the father from further allegations. Suffice to say, I reject the evidence that the children were raped at the contact centre.

1. I am under no doubt the path forward will have challenges, and there could be some setbacks. But as identified, giving the children an opportunity to experience a new truth about themselves and their father brings the possibility of long term gain.
2. It is not suggested Ms D must tell the children they are wrong, or anything like that - instead she is there to assist the children with the cognitive dissonance when the children's beliefs about the father do not match their experiences of him.
3. Late in the trial, the father proposed a regime which, in summary, saw various of the 2022 final orders (orders 1, 2, 5 and 13-17) remaining in force and that being augmented by the father engaging Ms D to work with both children (and the parents if requested) for a period of time whilst the children have a stretch of supervised time with him. His proposal moved to unsupervised day-time time and then alternate weekends. This was referred to as the father's "addendum" in submissions.
4. Whilst I will not make all orders he seeks under the addendum, the broad thrust of the proposed orders for a therapeutic approach and a period of supervised time is in keeping with my determination that that approach is in these children's best interest for the reasons enumerated just above.
5. That proposal came in submissions and did not have the benefit of the Report Writer's views. No one asked for her to be re-called. Yet, a Report Writer is not the arbiter of facts and does not see the whole of the evidence. As was said in Klein[176] at [241]:

...we simply observe that the family consultant is ordinarily an expert witness whose task is to assist and advise the court. The function of the family consultant is not that of an adjudicator. The family consultant brings to bear an entirely different expertise and experience from that of a lawyer or perhaps investigator. The family consultant may, as an expert, express an opinion on the ultimate issue; see s80 of the Evidence Act 1995 (Cth). However, as the Full Court made clear in Hall and Hall [1979] FamCA 73; (1979) FLC 90-713 at p 78,819:

"there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities".

1. After the father's Counsel handed up the addendum and made submissions, I stood the matter down so the ICL's and mother's Counsel could take instructions. Each then made submissions on the addendum. I will call this input - they were not concessions or proposals but input on the addendum if I was against the mother and ICL on their no time proposals.

1. The mother proposed she be solely allocated parental responsibility and the father sought a joint allocation.
2. Given what each has alleged against the other and given the abject lack of trust between them, it is impossible to see how the parties could, or could even be expected to, jointly make any major long-term decisions for the children. As the children will primarily live with the mother, she will have parental responsibility solely conferred upon her for all major long term decisions, save as otherwise provided in the orders including for their continued attendance on B School, which is agreed.
3. I will however require the mother to inform the father of all major long-term decisions she has made as soon as practicable after she makes the decision using the parenting app provided for in the orders. Given the father is their father and will be seeing the children, it is important he knows what is happening to and for them.

Who will provide therapeutic scaffolding for the children?

1. The father proposed Ms D be the therapist for both children under this therapeutic approach. The mother said if there were to be a re-introduction of time accompanied by therapy then it occur for each child by their respective psychologists. The ICL saw ups and downs in both proposals - continuity of approach on one hand, but a lack of therapeutic relationship between Y and Ms D on the other. The ICL ultimately settled on X seeing Dr E and Y seeing Ms D.
2. Whilst I have no reason to doubt the professionalism of Dr E, I am concerned that two different people conducting the therapeutic support for the children seeing the father may see two different paths being taken. As said, I was most impressed with Ms D's professionalism and her focus on Y and not, as the father's Counsel put it, the parents' agendas.
3. Ms D also gave evidence that she was content to work with the father too. I do not know if Dr E is so inclined.
4. True, Ms D is Y's psychologist, but she is not a stranger to X. The mother spoke of at least one occasion where X attended on Ms D with Y - this was when the mother and Ms D were "quietly" discussing the legal proceedings with both children "nearby".
5. As the father accepted, there is no reason why X cannot keep engaging with her psychologist Dr E, but I see virtue in the one psychologist conducting the therapeutic scaffolding around the children being re-introduced to the father. No doubt Dr E will have an important role supporting X, but I only have evidence from Ms D that she is prepared to engage with the father too.

1. I will make the order sought by the father that he engage Ms D for both children in this therapeutic scaffolding around the children's time being re-commenced with the father. The mother said she would do so, if the court went down this path.
2. I will make the father the engager in this process for both girls, as he has motivation to comply and the mother does not. If the engagement was left to the mother, it would be unlikely to occur. I have concerns about the mother's compliance with these orders in any event and she is referred to the final paragraph in these reasons. And so is the father.
3. I will also make an order that provides a mechanism for replacing Ms D if she withdraws her services to the children, or if say, if the mother actively or constructively terminates her engagement. That order will apply to any subsequent therapist/s too.
4. The mother said they should use NDIS funding for this process, but I do not know if the funding package would apply. Everyone agreed it be used if available and if not, the costs be at the parent's joint equal expense unless otherwise agreed. I will make orders to that effect.
5. It is imperative the children's psychologists and GP have a copy of these reasons, the Family Reports and orders. I will ask the ICL to do so. I will also authorise each therapist to speak with each other and to engage with both parents. No one cavilled with the authorisation concept and the authority to speak with each parent gives clarity to each therapist.

1. The father proposed this support take place for a period of no more than 12 months; the mother said 24 months. The ICL supported the 12 months therapy if this path was chosen.
2. I will adopt the 12 month proposal for therapy and do so because the children are not novices to psychological support and as a matter of commonsense, progress will be made in this time period, or it will not. Without divesting judicial power to the psychologist, if Ms D forms the professional view that the 12 months should be extended, she will no doubt advise the parents. It will be a matter for them to agree, or not.
3. Indeed, parents are always able to agree to vary orders. To make that clear, the orders will be prefaced with a standard provision that the orders apply unless the parties otherwise agree in writing, and using the parenting app set out in the orders.

1. I will make orders that the children's supervised time with the father commence once he has engaged and retained Ms D. Ideally, Ms D will have had some sessions with the children and the father (if he is requested to attend) before supervised time begins, but given I have no evidence about when that might occur and cannot make Ms D the arbiter of the commencement time, the best I can do is to make best interest orders working with what I have. That said, the father ought listen to Ms D about the timing of his re-introduction to the children and be 'all ears' to her suggestions about how he engage with the children - but ultimately, I cannot make orders by crystal ball and cannot divest the commencement of time to the psychologist. Instead, it is always open to the parents to listen to professionals and agree on something else, but failing that, these orders apply.
2. I have purposefully made the father's compliance with engaging and retaining Ms D as a condition of supervised time commencing as:

(a) it is his time which is conditional upon or tethered to that process starting;[177]

(b) the mother is not to have the power of veto by not complying with the therapy orders and thereby engineer the children's time with the father not commence by her non-compliance; and

(c) even though the father proposed the therapeutic support, he cannot ignore this important scaffolding for the children in perhaps eagerness to see them at the contact centre.

1. To be clear, the supervised time does not commence once the 12 months of therapy has concluded. The condition on supervised time commencing is that the father engage and retain the psychologist.
2. As for spans of time, the father proposed six months of supervised time, six months of unsupervised day-time time, and then alternate weekends Saturday morning to Sunday afternoon.
3. If I was against her on no-time, the mother's input (not a concession) was 12 months of supervised time, 12 months of unsupervised daytime time then the alternate weekends. I will adopt the mother's time frame and do so because the father must, figuratively, crawl before he walks. So too do the children. I consider the father's six months and six months to be too quick. Further, the first 12 months of supervised time will marry well with the not more than 12 months of therapy with Ms D. I consider that supportive and scaffolding for the children who have not seen their father for 2.5 years. The father needs to hasten slowly.
4. Even though the mother put on no evidence that her capacity to parent will be compromised by children-father time, I accept that the mother will have to drive the children to the therapy and the contact centre. But that is a consequence of the best interest orders being made. It will also give the children a chance to see the mother is physically facilitating the process.
5. The mother proposed the father pay for supervision. I will make that order simply so the mother cannot stifle time occurring by saying she cannot afford to contribute her portion.
6. Once the children's time with the father reaches six (6) hours unsupervised time on alternate weekends, I have included orders that the mother communicate to the father (using the parenting App) whether it is the Saturday or Sunday. I have added that because the children will primarily be with the mother and may have other commitments. At the start of the week, the mother will therefore nominate whichever of the Saturday or Sunday is more practical for her and the children.

1. The father proposed F Contact Centre be used and the mother, if I rejected her no time position, said W Family Services.
2. I will order supervised time occur at the F Contact Centre. I reject the maternal grandfather's and mother's claim that they allowed rape on their premises.
3. Further, all I know about W Family Services is that it is expensive. I have no evidence about the parties' financial circumstances and whether they or he (the father) could afford it. Given the mother's propensity to complain about or reject professionals who do not see things her way, there is also no guarantee she will not take a set against W Family Services if they do not concur with her beliefs.
4. Whilst no one addressed this, I will make orders that the parties take all steps necessary and sign all documents to engage with the F Contact Centre. I will also make an order that if the F Contact Centre withdraws it services, then the father will provide the mother with three alternates, and she will pick one. I do so for the same reasons that I have provided a mechanism to replace Ms D if she withdraws her services.

1. I have provided a mechanism for the mother to choose the parenting app to be used and do so simply because she is more likely to buy in to that if she has chosen the platform. The mother was agreeable to a parenting app order if I was against her on her no-time proposal.

1. The father sought orders that each parent provide the names of medical and health professionals engaged with the children and the parents be able to get information from them. The mother opposed this. The father also sought information orders from the school which the mother did not oppose.
2. As much as the father might like to know and get medical information (and I specifically here exclude the therapeutic process which will be ordered), I can see no good coming of it. The mother has a demonstrated propensity to change doctors if she is unhappy or decides there is a conflict with the father. I do not put any credence on the mother's submission in opposition that he had threatened some service providers.
3. Rather, I do not want the children's needs being compromised or being treated inconsistently if she changes doctors because the father, say, left a message to speak to a child's GP. The father's understandable desire for information must come second to maximising the prospects of continuity of medical and health care for the children. For the same reasons, I will not make the order sought by the father that both parents (or in this case, the father) can require medical and health professionals to produce documents to him about the children. Similarly, when I request the ICL to provide a copy of these reasons and other documents to the children's GP she need not carbon copy the parties in that correspondence but can simply confirm to them when she has done it.

1. I will not make the father's passport and overseas travel orders. The father and children have much work to do to renew their relationship before international travel might even be a possibility. Further, no one deposed to any plans for any such travel. Should either party have an actual proposal down the track, then the parents can either agree, or a discrete application can be filed with the court.

1. The father has options should the mother thwart the orders and/or make unfounded allegations - and that may include a fresh application for a change of residence, subject to s 65DAAA of the Act, and if he does, he might come armed with a concrete plan of therapeutic support for how that would work.

I certify that the preceding four hundred and forty-two (442) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch.

[1] Rule 41, Bar Association of Queensland, Barristers' Conduct Rules (as at 14 May 2025).

[2] These orders provided for inter alia, that: the parties have equal shared parental responsibility; the children live with the mother; spend supervised time with the father eventually moving to unsupervised time; and, ultimately culminating in alternate weekends and half holidays with the father.

[5] Mother's affidavit filed 10 February 2025 at paragraphs 23-32.

[7] Notations contained in orders of 24 March 2025.

[8] [1959] HCA 8; (1959) 101 CLR 298 ("Jones v Dunkel").

[9] [2011] HCA 11; (2011) 243 CLR 361 at [63]-[64], footnotes omitted.

[10] [2021] FamCA 564 ("Alam").

[11] [1774] EngR 2; (1774) 1 Cowp 63 at 65.

[12] [2014] FCAFC 83; (2014) 232 FCR 361.

[13] [1989] FCA 311; (1989) 89 ALR 275.

[14] [2014] HCA 52; (2014) 255 CLR 1.

[15] [2011] FamCAFC 219.

[16] (1893) 6 R 67 ("Browne & Dunn").

[17] [2021] QCA 287; (2021) 294 A Crim R 146.

[18] Quincey & Quincey [2024] FedCFamC1A 30.

[19] Father's affidavit filed 10 February 2025 at paragraphs 95 and 107-108.

[20] [1998] FamCA 47; (1998) FLC 92-803.

[21] [2003] HCA 48; (2003) 200 ALR 447 at [62] ("Whisprun").

[22] [1983] 3 NSWLR 378 at 385-386.

[23] M & M (1988) 166 CLR 69 at [77] ("M & M").

[24] 2018 FamCA 1107.

[26] Bant & Clayton [2019] FamCAFC 198 at [51] ("Bant").

[27] [2021] FedCFamC1F 73 ("Guerra").

[28] Mother's affidavit filed 10 February 2025 at paragraph 33.

[36] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 ("Makita").

[43] Exhibit 12 and Exhibit 22, p.66-67.

[46] Mother's affidavit filed 10 February 2025 at paragraph 53.

[47] Mother's affidavit filed 10 February 2025 at paragraph 54.

[49] Mother's affidavit filed 10 February 2025 at paragraph 59.

[50] Mother's affidavit filed 10 February 2025 at paragraph 59.

[51] Exhibit 6, e p.28 at paragraph 4.24.

[53] Mother's affidavit filed 10 February 2025 at paragraph 55.

[56] Mother's affidavit filed 10 February 2025 at paragraph 40.

[61] Maternal grandmother's affidavit filed 10 February 2025 at paragraph 35.

[64] Mother's affidavit filed 10 February 2025 at paragraph 57.

[66] See also: "And, when you heard [Y] say this to you, drinking grandma's milk, you took that to be something that had happened in the last few days or few weeks; is that correct?‑‑‑Yes".

[67] Exhibit 5, e p.31 at paragraph 5.13.

[69] Mother's affidavit filed 10 February 2025 at paragraphs 42-47.

[70] Maternal grandmother's affidavit filed 10 February 2025 at paragraph 24.

[71] Mother's affidavit filed 10 February 2025 at paragraphs 62 and 63.

[73] Mother's affidavit filed 10 February 2025 at paragraph 64.

[75] Maternal grandmother's affidavit filed 10 February 2025 at paragraph 25.

[76] Mother's affidavit filed 10 February 2025 at paragraph 49.

[77] Mother's affidavit filed 10 February 2025 at paragraph 50.

[78] Mother's affidavit filed 10 February 2025 at paragraph 51.

[79] Mother's affidavit filed 10 February 2025 at paragraph 51.

[80] Mother's affidavit filed 10 February 2025 at paragraph 65.

[82] Mother's affidavit filed 10 February 2025 at paragraph 66.

[83] Mother's affidavit filed 10 February 2025 at paragraphs 73 to 109.

[84] Mother's affidavit filed 10 February 2025 at paragraph 84.

[87] Exhibit 5, e p.27 at paragraph 4.34.

[88] Maternal grandmother's affidavit filed 10 February 2025 at paragraph 34.

[89] Maternal grandfather's affidavit filed 10 February 2025 at paragraphs 25 to 30.

[90] Mother's affidavit filed 10 February 2025 at paragraph 101.

[91]Maternal grandmother's affidavit filed 10 February 2025 at paragraph 36.

[95] Maternal grandmother's affidavit filed 10 February 2025 at paragraph 36.

[101] Exhibit 5, e p.27 at paragraph 4.35.

[102] Exhibit 11 and Exhibit 22, p.72.

[103] Mother's affidavit filed 10 February 2025 at paragraph 111.

[105] Exhibit 16, p.1 and Exhibit 22, p.73.

[106] Exhibit 6, e p.29 at paragraph 4.25.

[107] Exhibit 16, p.1-2 and Exhibit 22, p.73-74.

[109] Exhibit 16, p.1-2 and Exhibit 22, p,73-74.

[115] Mother's affidavit filed 10 February 2025.

[116] Exhibit 12 and Exhibit 22, p.67.

[118] Mother's affidavit filed 10 February 2025 at paragraph 123.

[119] Mother's affidavit filed 10 February 2025 at paragraph 6a.

[120] Exhibit 6, e p.32 at paragraph 6.4.

[124] Exhibit 5, e p.30 at paragraph 5.6.

[125] Maternal grandmother's affidavit filed 10 February 2025 at paragraph 28.

[126] Exhibit 5, e p.27 at paragraph 4.37 and e p.29 at paragraph 4.8.

[127] Exhibit 5, e p.30 at paragraphs 5.6 and 5.8.

[128] Exhibit 5, e p.30 at paragraph 5.8.

[129] Mother's affidavit filed 10 February 2025 at paragraph 125 and 156.

[130] Mother's affidavit filed 10 February 2025 at paragraph 68.

[132] Exhibit 6, e p.36 at paragraph 8.3.

[133] Mother's affidavit filed 10 February 2025 at paragraphs 69 and 155.

[134] Mother's affidavit filed 10 February 2025 at paragraph 70, 138 and 155.

[138] Mother's affidavit filed 10 February 2025 at paragraphs 58 and 167.

[139] Exhibit 6, e p.36 at paragraph 8.6.

[140] Exhibit 6, e p.36 at paragraph 8.7.

[141] Exhibit 6, e p.27 at paragraph 4.14.

[142] Exhibit 6, e p.30 at paragraph 5.7 and e p.31 at paragraph 5.10.

[143] Exhibit 6, e p.31at paragraph 5.14.

[144] Wei & Xia [2024] FedCFamC1A 65; (2024) 69 Fam LR 37 at [97]- [98] citing with approval the primary judge's statement of principle on the point of totality and the reference therein to Transport Industries Insurance Co. Ltd v Longmuir [1997] 1 VR 125 ("Longmuir") per Winneke P at [128]. See also the references to Longmuir in Guerra at [94], [95] and [403].

[146] Mother's affidavit filed 10 February 2025 at paragraphs 62 and 63.

[147] Exhibit 14, p.2: MOSS advised that investigators are not in a position to provide advice in child custody issues. That as a parent she should act protectively and that she would be best served by arming herself with accurate information from a qualified practicing solicitor.

[148] See for example Maluka & Maluka [2012] FamCA 373, where Coleman J said at [28]:

As is not surprising, the High Court has made clear that serious findings such as sexual abuse and, by extension, domestic or family violence are not matters which can or should be lightly made. To proceed in reliance upon evidence which would not be admissible but for section 69ZT(1) is, in the Court's view, likely to be mischievous, and not just for one party.

[149] [2022] FedCFamC1A 97; (2022) FLC 94-092 ("Isles").

[150] [2019] FamCAFC 251; (2019) 60 Fam LR 212 ("Fitzwater").

[151] Bielen & Kozma [2022] FedCFamC1A 221; (2022) 66 Fam LR 59 at [51]-[55].

[152] [2015] FamCAFC 146 at [27].

[153] [2019] FamCAFC 198 at [51].

[154] [1998] FamCA 25; (1998) FLC 92-800.

[155] [1993] FamCA 62.

[156] [1996] FamCA 43; (1996) FLC 92-692.

[157] [2016] FamCA 759.

[158] Keane & Keane [2021] FamCAFC 1; (2021) 62 Fam LR 190 ("Keane").

[159] Mother's affidavit filed 10 February 2025 at paragraph 159.

[160] Exhibit 12 and Exhibit 22, p.67.

[161] Exhibit 6, e p.29 at paragraph 4.29.

[162] See the Act's s 4 definition of "abuse" at (c).

[163] Explanatory Memorandum, Family Law Amendment Bill 2023 18, 18.

[168] Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768; (2004) FLC 93-192, at 79,217-8.

[170] Family Law Act 1975 (Cth) s60CC(2)(a).

[171] Family Law Act 1975 (Cth) s 64B(2)(i).

[174] Exhibit 6, e p.39 at paragraphs 9.1 and 9.3.

[176] [2010] FamCAFC 150.

[177] L v T [1999] FamCA 1699; (1999) FLC 92-875 at [60].