Oiaryp & Wild [2025] FedCFamC1F 237 | Case summary

Oiaryp & Wild [2025] FedCFamC1F 237 | Case summary | Zoe

[3]

The parties met in South Australia in 2011 and commenced cohabitation approximately one month later. They relocated to Victoria shortly after the commencement of cohabitation and have lived in Victoria since that time.
Between 2019 and 2021, the parties lived with the children in the family home in Town F, which they built during the relationship. Y and X both commenced their primary school education at the local primary school, G School, whilst the parties were living in Town F.
In early 2022, the parties sold the home at Town F and the mother moved with the children, to live with her friend, Ms H, in Town J. The father moved to the paternal grandfather's house in Suburb K. This initial separation was for a period of approximately 3 months.
Shortly prior to the parties' separation, in late 2021, the father overdosed on the mother's medication. The father attributed his actions to the financial pressure he was enduring at that time.[1]
Whilst the mother and children were living in Town J, X and Y attended a primary school in Town J. During the period in which the mother lived at Ms H's home, the father continued to visit, and on occasion stayed overnight with the mother and the children.
The mother's evidence is that during one such visit, the father "hassled" X, who was then aged seven, to take her top off when the parties and the children were sleeping in a bed together. That event was, in large part, the catalyst for the subsequent sexual abuse allegations advanced by the mother.
In or around mid-2022, the mother and the children returned to live with the father in the paternal grandfather's residence in Suburb K. Both Y and X were subsequently enrolled in, and began attending, CC School.
The following month in mid-2022, an incident of alleged family violence led to a Family Violence Intervention Order being obtained by Victoria Police against the father for the protection of the mother and the children. Notwithstanding the terms of that order, at the invitation of the mother communicated by text message, the father continued to attend upon the parties' home to assist the mother in the care of the parties' children, who were then aged eight, six and two (Exhibit F-2).
In late 2022, the mother and the children accompanied the father, the paternal grandfather and uncle on a cruise.
Following the cruise, the mother and the father attended marriage counselling. The parties separated on a final basis in December 2022.
In mid-January 2023, the father again attempted suicide. The mother deposes that this incident caused her to fear for the safety and wellbeing of both the father and the children. Two days later the mother made a statement to police reporting her concerns.[2] Following the father's suicide attempt, at the mother's instigation, the father's time with the children was supervised.
In late January 2023, the mother contacted a family violence support service, L Service, and she and the children were provided with emergency accommodation for 3 days, following which she and the children returned to the paternal grandfather's home in Suburb K.
The father moved in with a family friend, before later moving to his current home in Suburb M, where he continues to reside with members of his church community, Mr N and Ms O.
In February 2023, the mother unilaterally suspended the father's face-to-face time with the children. The father continued to call the children via FaceTime on a weekly basis until April 2023, when such communication was terminated by the mother.
In March 2023, the maternal grandmother migrated from Country E to reside with the mother and the children.
In mid-April 2023, the mother made a report to Victoria Police alleging that X had made disclosures to her of sexual abuse by Mr N, the man with whom the father currently resides and who is a member of the church congregation the parties attended prior to separation. She reported that Mr N picked up X, felt her bottom and put his fingers between her bottom cheeks (Exhibit ICL-10).
The following day, X was interviewed by Victoria Police in relation to the allegations with respect to Mr N. During this interview, X made no disclosures of sexual touching by Mr N. She stated that Mr N picks her up with his arm under her buttocks, and that it occurs in front of the church congregation. The investigation was closed. It was apparent from the evidence given by Mr N during the proceedings that he was unaware of the investigation.
The mother alleges that in early August 2023 she had a conversation with her friend, Ms H, during which Ms H informed the mother that "she always felt like [the father] did something" to X and Y. This, the mother asserts, prompted her recall of how the father had "hassled" X to remove her top one night when the family was staying at Ms H's home.[3] Later that day the mother initiated a conversation with X, in which X allegedly made disclosures of sexual abuse by the father.
A few days later, in August 2023 the mother made an audio recording of her discussion with X regarding the alleged disclosures of sexual abuse by the father (Exhibits ICL-5, ICL-6, ICL- 7).
The mother subsequently made a report to Victoria Police and X was subjected to recorded police interviews (VARE) in August 2023, September 2023, and November 2023 regarding the alleged disclosures. In addition, Y undertook a VARE interview with police in August 2023.
The evidence obtained as a result of those VARE interviews was assessed by police at Suburb P SOCIT, and ultimately it was determined that there was insufficient evidence to proceed with charges against the father (Exhibit ICL-1). The police assessment of the VARE interviews raised a number of concerns with respect to the allegations of sexual abuse, including that:-
- Whilst some of the allegations were possible, the likelihood of events occurring as disclosed by X was improbable;
- X had been "schooled" by the mother rather than actually recalling events with her own memory;
- X's diary notes were written on the weekend preceding the VARE interview and as such were not contemporaneous;
- There were inconsistencies in X's accounts of the alleged abuse.
In October 2023, with assistance from L Service, the mother and the children relocated from the Suburb K property to a rental property in Suburb Q, provided by the Department of Family, Fairness and Housing ("DFFH"). Again, X and Y changed schools, and began attending DD School in Suburb Q.
In May 2024, the mother and the children moved from the Suburb Q home to a property in Town R, near Town S, also provided by DFFH. The mother's evidence was that she effected this change of residence upon advice received from L Service that the family could reside at the Town R property indefinitely. At the time of that move, the family was settled in Suburb Q and the lease on that property was not due to expire for a period of approximately 16 months.
Following that move, X, who was then in Year 5, ceased attending school and commenced being home-schooled by the mother. Y was enrolled in and commenced attending U School, Town S.
The mother and the children also commenced attending a church and thereafter, the mother ceased observation of festivals such as Christmas and Easter and commenced observing Hannukah and Passover.
The mother and the children have lived in Town R with the maternal grandmother, Ms V since that time.

[14]

The parties seek parenting orders, as defined by s 64B of the Act. That is, they seek orders relating to with whom and where the children are to live and the time the children are to spend with the other parent. The parents have standing to apply for parenting orders in accordance with the provisions of s 65C of the Act.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA of the Act).
Section 60CC of the Act sets out how the court determines what is in a child's best interests by reference to general considerations (Section 60CC(2)). The list of general considerations of which I must consider in determining a child's best interests include:-
- What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child;
- Any views expressed by the child;
- The developmental, psychological, emotional and cultural needs of the child;
- 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;
- 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;
- Anything else that is relevant to the particular circumstances of the child.
In addition to those general considerations, s 60CC(3) mandates that the Court must consider additional considerations related to the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary to connect with and maintain the connection with members of their family and with their community, culture, country and language and to explore the full extent of that culture consistent with the child's age and developmental level and the child's views and to develop a positive appreciation of that culture. Those considerations are not relevant in this matter.
Section 60CC(2A) provides that in considering arrangements that would promote the safety of the child the Court must include consideration of any history of family violence, abuse or neglect involving the child or a person caring for the child and any family violence order that applies or has applied to the child or a member of the child's family.
Otherwise, there is no requirement for the general or additional considerations to be examined in any particular order, or for any single consideration to be afforded greater weight than others. Ultimately, the weight to be afforded to each of the considerations is a matter dependent upon the unique circumstances of each case.
Abuse in relation to a child is defined in s 4 of the Act and means:-

[22]

[50] In Fitzwater, Austin J rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof, saying:

Having eschewed the need for any positive factual finding that the father had sexually abused the eldest child, the mother's case was instead that the evidence was still sufficiently persuasive to establish the risk of sexual abuse posed by the father to the children, and furthermore, that the magnitude of the risk was unacceptably high, such that it could only be attenuated by the imposition of the children's permanent supervision when spending time with the father. The trial judge properly understood that to be the nature of the mother's case, as is evident from the reasons for judgment (at [1], [31], [60], [497], [501]). Consequently, the mother and the trial judge were entirely focussed on what the evidence implied was the risk of harm to the children in the future; not what probably did or did not happen in the past.

In civil proceedings, s 140(1) of the Evidence Act provides the "case of a party" must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the "case of a party" is defined (in the Dictionary to the Evidence Act) to mean "the facts in issue in respect of which the party bears the legal burden of proof". The substantive law determines where the legal burden of proof falls in respect of facts in issue.

It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76 ; ZP v PS [1994] HCA 29; (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child's best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child's best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court's discretionary judgment about how the child's interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).

The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 ("Malec")).

In Malec, Brennan and Dawson JJ said (at 639-640):

[23]

...facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities...the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history...the court must form an estimate of the likelihood that the possibility will occur...

...

...To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation...

and Deane, Gaudron and McHugh JJ said (at 643):

...The future may be predicted and the hypothetical may be conjectured... Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring...

The High Court was there referring to the prediction of a plaintiff's income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton [2015] FamCAFC 222; (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.

The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350; (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.

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.

It cannot be correct that the unacceptable risk of a child's sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) [2009] FamCAFC 230; (2009) FLC 93-422 at [56]- [61]; Johnson and Page at [68], [71], [76], [77]).

Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the "access" order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father's appeal was dismissed because the possibility of the child's past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child's future sexual abuse.

As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.

[36]

The father commenced giving evidence on the afternoon of the third day of the trial. He was cross-examined by Counsel for the mother and the Independent Children's Lawyer and gave evidence over the course of the following two days, concluding his evidence on the morning of the fifth day of the hearing.
The father impressed as a truthful witness. He presented as a considered, gentle and simple man. He readily made concessions against his own interests where necessary. For example, he conceded that notwithstanding his evidence as contained in his trial affidavit that he had ceased consuming alcohol, he continued to drink on occasions. Similarly, the father conceded that there had been instances where he had been verbally abusive towards the mother and acknowledged that there had been an occasion where he threw a phone at the mother during an altercation and that it hit her foot.
The father was steadfast in his denial that he was a perpetrator of sexual abuse against X or Y and was tearful when giving evidence in relation to those allegations, and his concern as to the impact of these matters upon the children.
The father was cross-examined as to his future proposals for the children's care. He provided thoughtful responses when questioned as to the potential challenges for the children and him in the event of a change of residence. The father demonstrated insight as to the difficulties he and the children will face if they are to live with him; he recognised that the children would be distressed, upset and angry and that their behaviour in the aftermath of such a change would be challenging. The father indicated a willingness to seek help from appropriate professionals to support him in the care of the children. I accept the father's evidence as to his awareness of the challenges facing the children and also as to his preparedness to seek professional help to support he and the children in the transition to his care.
Throughout his evidence, the father impressed as a loving and devoted father who genuinely wants what is best for the children.

[39]

The mother commenced giving evidence on the afternoon of the fifth day of the trial and her evidence concluded on the morning of the tenth day. The mother was cross-examined by Counsel for the father and the Independent Children's Lawyer.
The mother was an unimpressive witness. At times she was evasive, refusing to directly answer questions. On other occasions she displayed remarkably poor recall of significant events, despite such events happening relatively recently. At times, the mother's failure to recall significant matters in relation to the welfare of the children tested the limits of credibility.
My impression of the mother's evidence, particularly with respect to the allegations of sexual abuse, was largely that it was given through the prism of what would most likely assist her case. This was particularly so in relation to the revised minutes of proposed orders tendered on her behalf through the course of the hearing; her position shifting and changing as her role in the disclosures of alleged sexual abuse became more apparent. The mother sought to minimise her role in the disclosures by the children and sought to attribute responsibility for those disclosures to advice she received from others. I formed the view that the mother considered herself almost blameless in relation to the chain of events which gave rise to the disclosures of alleged abuse, stating words to the effect that she was simply a mother "trying to help" or that it was "not her intention" to influence the children's disclosures.
At times, I was left with the impression that the mother had attempted to manipulate the evidence available to the Court. For example, the mother conceded that she had deleted and destroyed the audio recordings made by her of her interview with X in August 2023. The mother conceded that those recordings were destroyed by her in May 2024, following her receipt of the Department of Families, Fairness and Housing Magellan Report which assessed the home recordings as containing "a multitude of leading questions (by [the mother] to [X]) and what can be concluded as a bribery for being 'brave' at the end of the recordings.[5]
Further during the hearing Counsel for the ICL called for the mother to produce her 2022 diary to the Court. The mother produced the document which was tendered (Exhibit ICL-16). That document was missing pages covering the period April to May 2022. During cross‑examination the mother stated that the child Z had removed those pages. There is no evidence of tearing of the pages; rather they have been neatly removed, which given Z's age, enlivens suspicion as to the veracity of the mother's explanation. Those concerns are heightened given that the period of time recorded in those pages coincides with a period in which the father alleges the mother exhibited a range of concerning behaviours, including her claims that she was touched by God, that she had ceased taking prescribed medication for PTSD and depression, and had started smoking marijuana on a daily basis. The father also alleged that the mother had excessively punished the children during that period.[6]
In relation to other matters, the mother was plainly untruthful.
For example, the mother's evidence as to the demeanour of the maternal grandmother, her relationship with the children and her attitude towards them was in stark contrast to information she had provided to D Centre and the child Y's school. Initially, the mother stated during cross-examination that the maternal grandmother, who lives with the mother and the children, was calm around the children and was a loving grandmother. That description contradicted the mother's own reports to D Centre in November 2024 of the maternal grandmother's behaviour; she reported to the D Centre worker that the maternal grandmother was not open to discussion around the child Y's concerning behaviours, and that the maternal grandmother was "very strict" and struggling with Y's defiance (Exhibit F-12 page 26/70).
The reported disclosures made by the maternal grandmother to D Centre as to her relationship with and concerns for the child Y included that the maternal grandmother had called the police to attend the home as a result of Y's behaviours towards her, that Y is going to become a "criminal" and that Y requires a "brain scan" to determine the damage caused to her as a result of being provided drugs by the father (Exhibit F-12, page 27/70).
When those reports of the maternal grandmother's comments were put to the mother, she sought to distance herself from them, and to justify and minimise the maternal grandmother's behaviour, noting that whilst the maternal grandmother might say things in the spur of the moment, she does not mean them.
During her evidence the mother confirmed that the maternal grandmother had shared with her her concerns that Y had been given drugs by the father. However, the mother was resolute in her assertion that she did not share the beliefs of the maternal grandmother with respect to this allegation. When questioned as to how she responded, the mother maintained that she informed the maternal grandmother that such a belief was not rational, and that there was no evidence to support it. She also denied that the maternal grandmother had ever suggested to her that Y might require a brain scan.
However, the mother's oral evidence contradicted the records of her meeting with Ms EE, the welfare worker at U School, which occurred in December 2024. The notes of that meeting record the mother's report of Y's behaviour as follows:-

[41]

When that report was put to the mother, the mother asserted that the record was inaccurate, that she had merely shared the maternal grandmother's concerns with the school, and that she "[did] not know" how it had been recorded in that way, postulating that perhaps her comments had been taken out of context. I am satisfied that the mother's contentions with respect to the school records are implausible; the notes provide a detailed and specific account of the mother's reports and the statements attributed to her are clear, and include quotations. The mother's comments are also strikingly similar to those made by the maternal grandmother to the D Centre worker some weeks earlier. Having regard to those matters I am satisfied on the balance of probabilities that the mother did make the comments attributed to her in the school notes.
The notes for that day also record the mother's account of an altercation that occurred between the maternal grandmother and Y that morning, including that Y's day had begun negatively as the maternal grandmother called her a "piece of shit". The notes also record the mother's admission that she did not intervene during that incident and that Y believes that "everyone in her life hates her" (Exhibit ICL-26). When cross-examined in relation to that incident the mother did not deny that the maternal grandmother had verbally abused Y but asserted that she had told the maternal grandmother to "get out". When challenged as to the inconsistencies between that account and the school records, again the mother sought to distance herself from the report and shift blame to the notetaker.
Given the mother's earlier oral evidence as to the maternal grandmother's demeanour and relationship with the children, I found the mother's evidence troubling. But for the D Centre notes and the school records, I am satisfied the mother would have maintained the image of the maternal grandmother as calm and loving. The notes of conversations between the mother and the D Centre worker and the school, and the maternal grandmother and the D Centre worker, are the only window into the maternal grandmother's views and behaviours and their potential impact upon the children. In circumstances where the mother has elected not to call the maternal grandmother, who lives with the mother and the children and is a significant presence in their lives, as a witness in the proceeding, I am satisfied that the mother has endeavoured to conceal from the Court the true nature of the maternal grandmother's attitudes and conduct.
The mother at times displayed a rigid and fixed view with respect to the behaviours of the children and others. For example, the mother expressed the view that Y had engaged in inappropriate behaviour when she sought to sit on the paternal uncle's lap. During her oral evidence the mother confirmed her view that female children aged seven and over should not sit on the lap of an adult man.
Throughout her evidence, the mother demonstrated little capacity to reflect on her own role in the parental dispute or in relation to the disclosures of the alleged sexual abuse. She routinely sought to explain her behaviour as being actions taken upon the advice of others. Further, the mother demonstrated little insight as to the impact of her behaviour on the children, particularly with respect to the children's exposure to her attitude towards and view of the father.
As a result of the above matters, I have significant reservations as to the weight to be attached to the mother's evidence and where it conflicts with the evidence of the father, I prefer his account of those events.

[48]

Mr BB at first could not recall whether he had been told about the contents of the Magellan Family Report by the mother or her lawyers. Later in his oral evidence, Mr BB revealed that he attended a meeting with the mother, the maternal grandmother and Ms H during which the contents of the Family Report were discussed. Mr BB's apparent initial poor recollection of that recent meeting was of concern, particularly given his apparent ability to recall in detail what he said about the pocketknife at the conclusion of the Family Report interview which had occurred approximately one month earlier.
During his oral evidence, Mr BB confirmed that he said, "Where's my knife - I'm going home." Mr BB further confirmed that he refers to his pocketknife as a pocketknife, and not "pocket-scissors" as deposed to in his affidavit. The contradiction between Mr BB's oral evidence and his affidavit was also troubling, giving the impression that his affidavit had been drawn so as to mislead the Court as to what had occurred between the children and the mother and her supporters following the observation sessions.
Ms B, the Court Child Expert who prepared the Magellan Family Report, was firm in her recollection of what occurred at the conclusion of the observation interviews. She confirmed during her oral evidence that she recorded the statements contained at [68] and [69] of the Magellan Family Report within approximately 30 seconds of those statements being made. Ms B also confirmed that the statements contained in quotations were indeed direct quotations. Having regard to the contradictions in Mr BB's own accounts of that event and the unshaken evidence of Ms B, I prefer her account of those events.
Mr BB also gave evidence as to his involvement with the mother and the children. He confirmed that he attends the mother's home on a weekly basis to supply vegetables and packaged food to her and the children.
Mr BB was also cross-examined as to his involvement with the mother's religion and as to whether he was a religious leader of that church. Mr BB responded that he was a "watchman" and, unprompted, then stated that the world would end in less than eight years; that there is a war coming because the Middle East is about to "explode". Mr BB was an uncontained witness who freely expressed his views about the world, religion and the Bible.
Mr BB also confirmed that he regularly attends the mother's home for Bible study with the maternal grandmother; the children are present at the home during these sessions. As to the hierarchy within the mother's home and the role of the maternal grandmother, Mr BB noted that the maternal grandmother is a mother and that the mother is learning from her. Mr BB clearly perceived the maternal grandmother to be the head of the household.
During closing submissions, Counsel for the mother placed little reliance upon the evidence of Mr BB and sought to distance that evidence from his client's case. In light of the strident manner in which Mr BB gave his evidence coupled with the, at times, unusual views expressed by him, that position was unsurprising.

[49]

Ms H is a friend of the mother. Ms H swore two affidavits, both filed 5 March, 2025, albeit that the mother sought to rely on only the first filed of those affidavits. Ms H was cross‑examined by Counsel for the father and the Independent Children's Lawyer on the tenth day of hearing.
Ms H confirmed during cross-examination that she had given evidence to the Court to assist the mother and the children. Ms H confirmed that she was aware that the recommendations contained in the Magellan Family Report were not favourable to the mother's case. She also confirmed that she had given evidence to challenge the matters contained in that, particularly the account of the behaviour of Mr BB and the maternal grandmother set out in the Magellan Family Report at [68] and [69].
Ms H was cross-examined in relation to the evidence given by her in her second affidavit filed 5 March 2025 at 6.49pm. In particular, she was questioned as to her evidence of a telephone conversation between she and the mother that occurred in mid-2023. Ms H there deposed that she and the mother discussed an incident involving a member of the mother's church and how the member of that church made the mother feel uneasy. Ms H had disclosed to the mother during that conversation that she had a similar "uneasy feeling" about the father and noted that his behaviour seemed to change around the girls, making Ms H feel uncomfortable.
Ms H was challenged in relation to that evidence and questioned as to what made her feel uncomfortable about the father's behaviour. Ms H's response was that she had observed the father's behaviour to be different behind closed doors. When invited to provide examples of that behaviour, Ms H stated that she had witnessed yelling, swearing and name-calling. During cross-examination, Ms H conceded that that behaviour occurred during arguments between the mother and the father and that the mother also on occasion verbally retaliated. She also agreed that the mother sometimes swore at the father. Ms H's affidavit was silent as to the mother's conduct on those occasions.
Ms H was also questioned in relation to the alleged conversation she had with the mother regarding the mother's disclosure that the father had asked X to take her top off when the family was staying with her in Town J. Ms H confirmed that that incident occurred between February and May 2022 when the family was living with her and that on that occasion X had complained that she was hot. Ms H agreed that it was normal to suggest to a child to take an article of clothing off if she felt hot.
Ms H was also challenged in relation to her evidence regarding altercations between the mother and the father. For example, Ms H deposed that on an occasion in March 2021, she and her husband together with the mother and the father attended a hotel in Town J, that the father's behaviour "escalated" and that he was removed from their home. During cross-examination Ms H conceded that all present on that occasion, including the mother, were drinking that evening and that she and her husband as well as the mother and the father were intoxicated. Ms H's affidavit was silent in relation to those matters.
Ms H's affidavit was also silent in relation to the mother's use of marijuana which the mother acknowledged occurred during the period she was residing in Ms H's home. Ms H agreed during cross-examination that the mother was a frequent user of marijuana during the period in which she stayed at Ms H's home.
During cross-examination by Counsel for the ICL Ms H conceded that she observed no sexually inappropriate behaviour by the father around the children and that the only information she has in relation to the alleged sexual abuse is what has been told to her by the mother.
Ms H also conceded that the mother had told her she made the audio-recorded interview with X so as to have evidence of those matters.
My overall impression of Ms H was that she had a fixed and negative view of the father; she appeared genuinely shocked when told that the mother was not pressing her claim that he had sexually abused the children. It was clear from the commencement of her oral evidence that Ms H was closely aligned with and supportive of the mother. Much of her evidence was hearsay, she recounting information provided to her by the mother as to the father's alleged aberrant behaviour. Having regard to that circumstance, I am satisfied that little weight can attach to her evidence.

[51]

Ms B is a Court Child Expert. She holds relevant tertiary qualifications. She was previously employed in a variety of community support roles in Suburb Q. She has been employed in the Melbourne Registry of the Family Law Courts since 2019, and since 2021 has been a Court Child Expert in this Court. There was no challenge to Ms B's professional qualifications or expertise.
Ms B prepared a Magellan Family Report dated 5 December 2024. At pages 3 to 4 of the Magellan Family Report Ms B identified the documents reviewed for preparation of the report, which included filed material, and the documents produced under subpoena by Victoria Police. Further, Ms B conducted interviews with the mother and the father via Microsoft Teams on 15 November 2024 and in-person interviews with the children and observations of both the mother and the father with the children on 20 November 2024.
Ms B's observations of the children at interview are set out at pages 14 to 16 of the Magellan Family Report. With respect to X, Ms B observed her to describe the father as a "big fat pig". Ms B reports that X stated that the father was not nice to her and would yell at her, Y and the mother. X cited one incident when she was a toddler where she contends the father came home drunk and fell on the ground and hit her. Ms B challenged X's recollection of that event, questioning how she could recall an incident from such a young age. Ms B noted X's response as "I just can". X was asked whether there were other incidents with respect to the father's behaviour. Ms B records that X was unable to state any other incidents but noted that X reported that she found him "scary. I just don't like him". At no stage did X disclose to Ms B any instances of sexual or physical abuse by the father.[8]
In relation to the mother, X described her as "kind, loving and loveable".[9]
Ms B reports that she asked X whether there was anything the father could do to repair their relationship. Ms B noted X's steadfast response that she was not seeing the father, with X reported as stating:-

[53]

Ms B reports that she questioned X as to what "enough" was. X did not respond.[10]
As with X, Ms B asked Y how she would describe the mother. Y chose the words "happy, loving and friendly".[11]
In relation to the father, Y described him as "mean, angry, yelling and fighting". Ms B reports that she asked Y about some incidents that made her feel like that, and Y stated that the father had "traumatised us". However, Ms B reports that Y was unable to explain what "traumatised" meant.[12]
Ms B reports that she enquired as to any specific incident Y could recall regarding the father's behaviour towards her. Y is reported to have said that the father had pushed and shoved her and she recalled one time when she was a toddler that he cut her. Y could not recall where the father had cut her because she was very young. Like her sister, Y did not disclose any sexual abuse during interview with Ms B.[13]
During observation between the father and the children Ms B reported as follows:-
1. When [Mr Oiaryp] entered the childcare room, [X] and [Y] were sitting on the couches at the far end of the room. [Z] was playing with the childcare worker close to his sisters. [Mr Oiaryp] walked up and said hello to the children. [X] and [Y] both looked at [Mr Oiaryp] and then looked away, remaining seated. [Z] looked at [Mr Oiaryp] and started looking out the window.
2. [Mr Oiaryp] kept a distance and attempted to engage the children in conversation asking about school and how they were. He took a seat on the far side of the space. [X] moved to be closer to [Y] who was hugging a toy dog. [Mr Oiaryp] referred to [X] and [Y] by their names, at one point [X] shouted not to call them those names because they have changed their names but refused to tell [Mr Oiaryp] their new names. When [Mr Oiaryp] asked about school [Y] indicated through a thumbs down that she was not enjoying school. When she did so [X] looked at her and whispered, "Don't talk to him." After this [Y] and [X] did not engage with [Mr Oiaryp] and focussed their eyes to the ground. [Z] remained at the window and interacted with [Mr Oiaryp], answering some questions. The writer was unable to decipher what [Z] was stating. [Mr Oiaryp] called [Z] handsome and cheeky, [Z] smiled at this but then turned to look out the window.
3. [X] looked to the writer and asked if she could leave. The writer confirmed with [Y] and [X] they wanted the observations to end. [Mr Oiaryp] stood up and stated he loved the children. [Y] and [X] continued to look down at the floor. [Mr Oiaryp] left the observation room without issue.
As to her assessment of the observations and interviews with the children, Ms B noted that it was evident that both X and Y feel distrustful and upset when talking about or engaging with the father. As to Z, she noted that given his young age he appears to be considerably less impacted and that whilst hesitant, potentially because of his sisters' influence, he was open to engaging with the father during the observations.[14]
In relation to her observations of the children with the mother, Ms B reported that the children have a close and trusting relationship with her and that each child views her as a safe person to speak and connect with.[15]
As to her assessment of the children, Ms B noted that both X and Y presented with:-

[55]

Ms B observed that both girls were concrete in their thinking and did not demonstrate any capacity to consider alternatives to the narrative that they had been abused by the father. She also observed that changing that narrative or considering alternatives would likely cause a high level of distress and dichotomy for the children and she questioned the mother's willingness and/or ability to support the children in considering alternative scenarios.[17]
Further, Ms B observed a level of emotional enmeshment between the children and the mother. She noted that the mother was keen to support the children in their distress after observations with the father but did not appear able to de-escalate the children's upset and further appeared to impose her own feelings on the situation.[18] In addition, Ms B observed what she described as "a level of catastrophising" by the mother and the support people attending, namely the maternal grandmother, Mr BB and Ms H.[19]
In relation to the position if the Court were to find no truth in the sexual abuse allegations, Ms B stated as follows:
1. ... it is highly concerning [the mother] has likely influenced and encouraged the children to create a false narrative, which in turn has caused them considerable emotional trauma and significantly damaged any relationship the children had with [the father].
2. In either circumstance there has been significant and substantial emotional harm done, and the children have been exposed to a high level of anguish and torment. The matter has impacted their emotional development and relationships. It has affected their short term emotional and mental wellbeing and will likely have long term consequences in many facets of their life.
Ms B's view as to the mother's capacity to consider an alternative viewpoint and support a reinstatement of time between the children and the father was pessimistic, noting that the mother would have "substantial difficulty shifting her opinion and given the children's close relationship with her, it is likely the children will continue to refuse to spend time or engage with [the father]".[20]
At [85] Ms B made recommendations as to what should occur in the event that the Court were to find that the allegations of sexual abuse are not factual and there are no risks for the children in the father's care. She contemplated that the following options were available to the Court:-
1. The children engage in family reunification therapy with [Mr Oiaryp] and [Ms Wild] in an attempt to reinstall a relationship between [Mr Oiaryp] and the children, with the children remaining in the primary care of [Ms Wild]. This approach would work to hopefully gradually build upon time between [Mr Oiaryp] and the children at a pace consistent with the children's emotional stability/safety.
2. The children are placed in the primary care of [Mr Oiaryp], with limited time between the children and [Ms Wild] for a period of time. If the children were placed in [Mr Oiaryp's] primary care, it is recommended [Mr Oiaryp] hold sole decision-making authority for the children and inform [Ms Wild] via a dedicated email.
Ms B gave evidence across two days of the trial. She was cross-examined by Counsel for the mother, the father, and the Independent Children's Lawyer.
Prior to commencing her oral evidence, Ms B was provided with and viewed the police VARE interviews with X and Y (Exhibits ICL-2 to ICL-4) and also listened to the audio recordings made by the mother with X (Exhibit ICL-5). In addition, Ms B was provided with an agreed bundle of documents tendered during the hearing, including the police SOCIT assessment of the alleged sexual abuse of X (Exhibit ICL-1).
At the commencement of the cross-examination by Counsel for the ICL, Ms B was informed of the shift in the mother's views as to the sexual abuse allegations, of her recently formed view that those allegations are not founded in reality, and of her denial of being the author of those allegations which she now accepts not to be true.
Ms B was cross-examined as to her views with respect to the children being given permission by their mother to change their names. Ms B noted that the selection of names is an adult concept and that she was "struck" by the almost identical responses of both X and Y as to their reasons for changing their names, being that as their mother performs all the work, she should get to choose the names. In addition, both girls indicated that they changed their names as the first letter of their names is the first letter in the father's name. Ms B confirmed that she challenged Y about her choice of name, which contains the first letter of the father's name. She noted Y's justification for that choice on the basis that the name she had chosen contains only one instance of this letter in it.
Ms B confirmed that changing a name is a "big thing" for a child. She expressed concern that the mother permitted the children to change their names, stating that such an approach appeared unsupportive of the children having any contact with the father.
Ms B was also cross-examined with respect to the children's disclosures of alleged sexual abuse and the mother's role with respect to those disclosures.
Ms B expressed concern that there appeared to be no reality testing undertaken by the mother with the children in relation to their disclosures of alleged abuse. For example, X asserted that she had been cut or stabbed by the father on multiple occasions. There was no scarring or other evidence to support those assertions. Ms B expressed concern that the mother had not undertaken any reality testing of those assertions.
Ms B noted that the process of X undertaking multiple VARE interviews in addition to the audio recording conducted by the mother would have had a significant impact on X emotionally and would have been "really traumatising".
Ms B also confirmed that the disclosures made by X during the mother's audio recordings were largely made at the suggestion of the mother. Ms B confirmed that the process undertaken by the mother during the audio recording was effectively coaching or manipulating X to make disclosures. Ms B also observed that X was distracted during the audio recordings, that she did not want to be there and that the mother kept pulling her back and feeding words to her. Furthermore, she remarked that the mother provided a lot of praise for X when her responses aligned with the questions asked by the mother. Ms B noted that when the mother asked X whether anything had come out of the father's penis, she was pressing for a certain answer which was not provided by X. Nonetheless, the mother continued to pursue her line of questioning in relation to that topic.
Counsel for the father put to Ms B that the mother's approach had the effect of "airbrushing" the father from the children's lives. Ms B did not agree with that assessment, positing her view that the father is still very much a presence in the children's lives, but is conveyed as a negative presence in their lives whom they wish was not there.
Ms B was questioned in relation to the detail of the mother's report to her of the alleged sexual abuse. At [31] of the Magellan Family Report Ms B noted:-

[59]

Ms B expressed concern at the content of that conversation, particularly that X expressed fear of disappointing her mother. She noted that X was close to the mother, wanting physical proximity with her and to stay with her, and observed that she was almost supporting the mother. Ms B agreed that X may be parentified, assuming a parental role within her relationship with the mother.
Ms B acknowledged that, were there to be a change of residence, such a change would be hard for X as she is so connected to the mother.
As to the risks to the children of remaining in the mother's care, Ms B identified that such an outcome would not provide a great trajectory for the children in terms of their emotional development and mental health. She noted that there are clear risk factors associated with such an outcome, and observed that X is already presenting as an anxious child.
Ms B conceded that if there were a change of residence X would be traumatised initially. However, when considering the long-term impacts of either approach, Ms B viewed the father as better equipped to meet the children's psychological and emotional needs. Ms B cautioned that the father would require scaffolding around him to support the challenges associated with a change of residence. To this end, she noted that there would need to be a team of professionals to support the children's transition, including a psychologist for each child; she also noted that Z would benefit from play-based therapy.
Ms B stated that both X and Y had the capacity to shift their views of the father, but that if this were to occur, measures in support of this would need to be implemented sooner rather than later. Ms B observed that if X were to enter into her adolescent years without efforts to shift her concrete thinking, then her views would likely become further embedded. Ms B also confirmed that X would benefit if she were to be connected back into the community and were to resume attending school.
As to Y, Ms B considered that whilst she expressed negative views of the father, she did not mean what she said about him. Ms B noted that much of what Y said was "like a script" and that whilst she said many negative things about the father, during observation she did try and engage with him. Ms B confirmed that X sought to disrupt Y's attempts to engage with the father, telling her, "Don't talk to him".
Ms B also agreed that X attempted to "gate-keep" Z during the observation.
As to the interactions that occurred between the children, the mother, and the maternal grandmother following that observation session with the father, Ms B confirmed that contrary to the children's alleged report to their mother, the father did not need to be physically removed from the interview room. Rather, Ms B confirmed that the father followed her instructions and left without issue. Ms B also confirmed that she observed those interactions and wrote notes about them immediately upon leaving the room.
Ms B confirmed that the maternal grandmother was "howling" upon the children's return from the observation with the father. In contrast, Ms B noted the children appeared to be "okay", and that they were not particularly emotional. Ms B noted that the maternal grandmother became very distressed upon hearing that the children had seen the father.
Ms B also confirmed that upon the children's return from the observation room, the mother's friend, Ms H, gave X a very long hug. Ms B observed that, "no one was holding back" and that "they were all feeding into each other". Ms B noted that X became very emotional, but that she was supporting the adults. Further, Ms B reported that the maternal grandmother did not contain her emotions at all in the presence of the children. In relation to Y, Ms B noted that she appeared quite disassociated and that she was looking at Ms B. As to Z, Ms B confirmed that he was not visibly impacted by the behaviour of the adults either.
Ms B confirmed that the maternal grandmother continued to make howling noises for "a good two or three minutes". Ms B stated that X was comforting the maternal grandmother during this time.
Ms B agreed that the maternal grandmother's behaviour at the conclusion of the observation session was dysregulated, uncontained and unfiltered. Ms B agreed that that behaviour was concerning. She noted that the maternal grandmother's inability to regulate her emotions, and her reliance on the children for support, places a significant emotional burden on the children which has the potential to impact their relationships and their day-to-day functioning. Ms B confirmed that children learn how to regulate their emotions from the significant adults in their lives, describing children as "sponges". Ms B considered that, with the maternal grandmother being a significant presence in their household, it is likely that the children will adopt her behaviours and will consequently fail to learn how to manage their emotions in positive ways.
Further, Ms B observed that the maternal grandmother has limited insight as to the causes of Y's dysregulated behaviours, as evidenced by her comments to the D Centre worker that Y was exhibiting challenging behaviours and may need a brain scan to determine whether her brain had been damaged by the alleged administration of drugs to her by the father.
Ms B expressed concern at the reports by the mother and the maternal grandmother to the school and D Centre workers as to the potential for the father to have administered drugs to Y. That such reports were made less than one month after Ms B conducted interviews with the family, during which no such allegations had been made by the mother, was also concerning to Ms B. She noted that such allegations were reflective of a kind of embellishment and the continual creation of a new narrative by the mother. I accept that evidence.
Counsel for the mother cross-examined Ms B as to the potential impact upon the children if removed from the mother's care to live with the father. Ms B agreed that the children would suffer emotional trauma as stated in the Magellan Family Report and noted that the decision would require an assessment of the short-term emotional trauma that may be occasioned by their removal from the mother, as compared with the long-term emotional trauma that would likely be sustained if they were to remain in her care. Ms B agreed that the children would likely be angry and blame the father for their circumstance in the event of their removal from the mother. She noted that children think in black-and-white terms and that a whole gamut of emotions would likely be felt by them. Ms B noted that X would be the child most likely to exhibit challenging behaviours in the event of a change of residence and further that she would likely influence her younger siblings.
Nonetheless, Ms B expressed optimism that the father would manage the care of the children. That view was bolstered given his current living arrangements. Ms B noted that it is positive that the father is living in a household with people whom the children are familiar with and have a relationship with, and that he has the support of both Mr N and Ms O.
Counsel for the mother questioned the capacity of Mr N and Ms O to support the children, particularly in circumstances where Ms O's evidence was that she would adopt a strategy of calmness and a routine to support the children. Ms B observed that such a strategy provided a good grounding for supporting the children. Ms B also observed that the father has shown resilience and determination in his pursuit of a relationship with the children and observed that the Court process has not been an easy one for him to go through.
Counsel for the mother also cross-examined Ms B in relation to the mother's proposals. As to the mother's proposition that the parties and the children engage in family therapy to assist in the reintroduction of the children to the father, Ms B observed that the situation "could be too far gone". Ms B observed as follows:-

[61]

Ms B stated that she would be "highly doubtful" as to the maternal grandmother's capacity to support the children having a relationship with the father. Ms B also noted that family therapy was another potential source of emotional turmoil and distress for the children.
Ms B agreed that ideally the children would have both parents significantly involved in their lives if it were safe for them to do so. However, in assessing the parties Ms B observed that she did not consider the mother's household to provide emotional safety for the children. Further, Ms B observed that the evidence as to the maternal grandmother's verbal abuse of Y, it being reported by the mother to Y's school that the maternal grandmother had called Y a "piece of shit", was "really concerning".
Whilst Ms B agreed that the children would likely experience a range of emotions if there were a change of residence, including distress, grief, anger and a blaming of the father, she noted that children are resilient and adaptable and held hope that with appropriate supports in place and with people that they feel safe talking to and expressing themselves to, the children will adapt. Ms B considered that that process would take months.
Counsel for the mother also questioned Ms B as to the recommendations contained at paragraph 85 of the Magellan Family Report. In particular, she was questioned as to her recommendations that the parties and the children undertake family reunification therapy. Ms B stated that notwithstanding the recommendation contained in her report, having been provided with the additional materials tendered prior to giving evidence, it is now her view that the matter had moved beyond the parties engaging in family reunification therapy. She stated that she was not persuaded that such therapy would be a feasible solution, noting that she had significant doubts as to the mother's capacity to be supportive and consistent with respect to reunification with the father.
The matters of concern to Ms B that suggested that the matter had moved beyond the possibility of such therapy included the escalation of the mother's narrative, and what Ms B described as "prompting" in the audio recordings of the mother's interview with X. Ms B noted that, at the time she wrote the Magellan Family Report, she had not had the benefit of hearing the mother's recordings with X.
At [74] of the Magellan Family Report, Ms B identified and discussed the children's behavioural issues. Ms B was asked whether her views as to the source of those behavioural issues had shifted since that report was prepared. Ms B indicated that she believed that the emotional trauma of the potential coaching of the children by the mother regarding the sexual abuse allegations, coupled with the exposure of the children to the maternal grandmother's narrative, was a likely source of those issues.
As to whether the mother's time with the children ought be supervised, Ms B confirmed that she would recommend supervised time as she holds concerns that, without being monitored, the mother may say things to the children that could undermine and disrupt their relationship with the father. Ms B noted that the children have vulnerabilities and stated that she could not envisage how the mother's time could be unsupervised at this stage.
Counsel for the mother also cross-examined Ms B in relation to the potential risks of the children having only limited supervised time with the mother. Ms B conceded that whilst such limited time could be difficult for the children, any negative impact would likely reduce with the passage of time. Ms B emphasised the importance of the children being prepared for such visits.
Ms B agreed that the mother needs to undertake intensive work to re-set her views of the father.
As to the question of whether a moratorium on the mother's time should be imposed, Ms B confirmed that there likely does need to be a period of time where the mother is not around, as considerable focus will need to be placed on the children establishing a relationship with the father; Ms B considered that if the mother were present that process could be undermined. Ms B also observed that the children, and particularly X, have such entrenched views of the father that it will require considerable work and time to re-establish the relationship between them and the father. Ms B considered that a moratorium on the mother's time of six months would be appropriate. Further, Ms B considered that there should be no communication between the children and the mother during this period, as receiving communications from the mother was likely to re-trigger the stress in the children. Ms B confirmed her view that the moratorium was necessary to ensure the long-term emotional wellbeing and safety of the children.
Ms B was questioned as to the appropriate frequency of the mother's supervised time with the children. She observed that a month is a long time in the life of a young child, and that it would be appropriate for the mother to have phone calls and be able to provide cards to the children to provide a bridge for them between visits.
As to the question of the appropriateness of long-term supervision for the children's time with the mother, Ms B confirmed her view that such long-term supervision was necessary because of the potential for the mother to engage in coaching and manipulation of the children. She had concerns as to the children's capacity to self-protect from such behaviours.
The Magellan Family Report prepared by Ms B was detailed and thorough. I found Ms B to be a thoughtful witness who provided considered and frank responses to the matters put to her in cross-examination. Ms B had the advantage of observing the family initially through Microsoft Teams interviews with the mother and the father, and then during observation between the parties and the children. In addition, since preparing the Magellan Family Report, Ms B has viewed the VARE recorded interviews and listened to the audio recordings made by the mother. She has also read material tendered by the parties during the trial, including the notes from D Centre and SOCIT. That additional material was considered by Ms B and informed the recommendations made by her.
Ms B provided considered insights as to the potential impact upon the children of the proposals made by both the mother and the father. I found the evidence of Ms B to be thoughtful, helpful, concise and cogent. Accordingly, I accept Ms B's evidence, which was of great assistance to the Court.

[67]

At the time that application was made, the investigation by Victoria Police in relation to the alleged disclosures of sexual abuse had concluded and it was confirmed to both the mother and the father that no action would be taken by Victoria Police. That this is so was conceded by the mother during cross-examination. Having regard to those matters, I am satisfied that there was no basis for the mother to seek a further extension of the Family Violence Intervention Order relying on those grounds; indeed, the grounds contained in that application as to the police investigation were plainly misleading.
The mother conceded during cross-examination that she would seek to withdraw that application from the Magistrates' Court and to that end forwarded an email to the Magistrates' Court in early 2025 (Exhibit M-11). Hence it is anticipated that upon withdrawal of that application, there will be no current Family Violence Intervention Orders as between the parties.
Following the parties' separation, the father attended upon a Men's Behaviour Change Program; he attended a number of sessions between February 2023 and May 2023 and produced confirmation of his attendance (Exhibit F-6).
During the father's oral evidence, he was able to detail his understanding of what constitutes family violence and the impact of his behaviours, and readily made concessions as to his inappropriate behaviour at times during the relationship. I accept the father's evidence as to his attendance at that programme and the insights gained by him from its teachings. Having regard to those matters, I am satisfied that whilst there have been historical instances prior to separation where the father has verbally abused the mother and on two occasions, been physically violent, I am not persuaded that he poses a current or on-going risk of family violence to the mother or the children.
As noted previously, the child Y has been verbally abused by the maternal grandmother. The records of U School record the mother's report to the school that the maternal grandmother called Y a "piece of shit" and that Y was adversely affected by the maternal grandmother's behaviour. The mother conceded during her oral evidence that Y had been subjected to that abuse. As a result, I have significant concerns as to the children's exposure to abuse in the mother's home and as to the mother's capacity to protect the children from such behaviour.

[81]

Ms B assessed the mother's questioning of X as inappropriate. It was her view that the audio recording contained prompts and leading questions, the effect of which was to taint any disclosures made by X. This was a view shared by Victoria Police and DFFH in their assessment of the recording. Having regard to the evidence of Ms B and my own observations in relation to the recording, I am satisfied that the disclosures made by X during that audio recording emerge as a result of the mother's prompts and encouragement.
That view is bolstered having regard to the praise delivered by the mother to X towards the end of the recording, with the mother stating, "I am extremely proud of your courage and bravery" and describing her as "my little superhero".[28] Further, it was evident that X held an expectation that she may receive a toy later that day. Having regard to the manner in which the mother conducted the audio interview, I am satisfied on the balance of probabilities that she engaged in coaching and manipulation of X in order to elicit the disclosures of sexual abuse.
The issues of the audio recording are further compounded as a result of other actions taken by the mother. For example, she purchased a journal for X to record her thoughts and feelings. However, it is evident that X did not commence journaling her experiences with the father until the Saturday or Sunday prior to the VARE recorded interview. This was confirmed by X during that interview. X also disclosed during that interview that her mother was present when she wrote in the journal and was quick to inform the police that the mother was not helping her write in the journal. Again, the inference to be drawn from the manner in which the mother has encouraged X's journal writing is that she was endeavouring to obtain further evidence to support the allegations that the father is a perpetrator of sexual abuse.
The submission made on behalf of the father and the ICL is that the mother has nurtured and fed the belief in both X and Y that their father is a bad man and a perpetrator of sexual abuse. There is much force in that submission in light of my findings as to the mother's conduct as described above.
The mother's encouragement of those beliefs has been supported by the actions of the maternal grandmother which were reported by Ms B in the Magellan Family Report and also recorded in the D Centre notes.[29]
It was also submitted on behalf of the father that the mother engaged in evidence gathering to support the exclusion of the father from the children's lives. In support of that submission, the father relied upon the actions of the mother in undertaking an on-line course which resulted in her attaining a "Certificate in Criminal Psychology" (Exhibit F-9). The academic transcript for that course indicates that the mother undertook subjects such as Evidence Collection, Analysis of Evidence and Presenting Evidence in Court. The mother confirmed during her oral evidence that she did complete those subjects. That course was completed by the mother in early 2023, shortly prior to the emergence of the allegations of sexual abuse.
The mother's explanation for undertaking that course was that she wished to enhance her future employment opportunities. However, later in her oral evidence, the mother stated that it was her desire to work as a religious leader in her church. Subsequent courses undertaken by her are clearly related to those ambitions.
It was submitted on behalf of the father that the inference to be drawn from the mother's undertaking the course in criminal psychology, which coincided with the parties' separation, was that it was directed towards her achieving a goal of eliminating the father from the children's lives. The mother denied that contention.
It was put to the mother during cross-examination that the purpose of the audio recordings with X was to gather evidence against the father. The mother rejected that proposition. However, Ms H, during cross-examination, confirmed that the mother's stated purpose in conducting that interview was to gather evidence.
Having regard to the manner in which the mother questioned X during those recordings, the fact that she had seemingly prepared X for that audio recording, and had stated to X during the recording her desire for X to speak to the "special people" regarding those matters, I am satisfied on the balance of probabilities that the mother undertook that task with the intention of gathering evidence to support her allegation that the father had sexually abused the children. I am also satisfied that the mother has engaged in coaching and manipulation of X in order to obtain disclosures from her.
I am satisfied on the balance of probabilities that the mother's conduct in so doing has placed the children at an unacceptable risk of emotional and psychological harm. The evidence of Ms B, which I accept, is that the experience of being interviewed by the mother and police in relation to these matters was likely to have been highly traumatising to the children.
I do not accept the mother's denials that she coached or encouraged the disclosures of sexual abuse by the children. The mother presented X to police for interview on no less than four occasions in relation to sexual abuse, first by Mr N and then for three subsequent police interviews for X (and one for Y) in relation to alleged sexual abuse by the father. Further, she conducted her own audio recording, encouraged journal writing, engaged the children in counselling for sexual assault at C Centre and subsequently D Centre, and facilitated their attendance on those counsellors on a weekly basis.
Those actions continued in the face of the determinations, firstly by DFFH in its Magellan Report dated 1 May 2024 that the allegations of sexual abuse were not substantiated, and subsequently by Victoria Police that there was insufficient evidence to support a criminal prosecution against the father. In addition, the DFFH Magellan Report clearly articulated concerns that the mother's at home recordings included leading questions, "bribery" to reward X for being brave and did not contain disclosures by X; rather she was asked by the mother whether "this" had ever happened.[30]
The mother's explanation for her conduct was that she was being a protective mother and further that she was heeding the advice of those around her in relation to these matters. I do not accept those explanations, particularly in circumstances where the mother was highly attuned to evidence gathering processes, having completed her Certificate in Criminal Psychology prior to the emergence of the disclosures of sexual abuse.
I am satisfied that the mother's manipulation and influence of X and Y has caused them to make disclosures. I am also satisfied, having regard to the evidence of Ms B, that that conduct by the mother has caused the children significant psychological and emotional harm.

[82]

The father readily conceded that he has had a history of excessive alcohol consumption, and that in the past he has relied upon alcohol as a coping mechanism. The father's hair follicle drug and alcohol test results, based on a sample collected on 19 August 2024, reflect a positive result for excessive alcohol consumption (Exhibit F-3).
However, the father maintains that since that time he has significantly reduced his alcohol consumption and does not drink at all in the home of Ms O and Mr N, where he currently lives. In her oral evidence, Ms O confirmed that she did not tolerate the excessive consumption of alcohol in her household. I accept that evidence.
The father's assertion in relation to his reduced alcohol consumption accords with the results of more recent alcohol screenings undertaken by him. Random breath alcohol analysis undertaken during the course of the father's employment in February 2025 returned a result of nil blood alcohol content (Exhibit F-5). Further, the father's most recent hair follicle drug and alcohol test results reflect a result of "low to moderate" consumption of alcohol. (Exhibit F-7). This is the same result as that reflected in the mother's most recent HFT results released in July 2024 (Exhibit M-7).
The father's proposed orders (Exhibit ICL-29) include an order restraining the parties from consuming alcohol to excess or using illicit substances whilst the children are in their care.
The father readily conceded that his evidence in his trial affidavit that he had ceased consuming alcohol was untrue. He agreed that he had consumed alcohol since the time of swearing his affidavit and that most recently, on his overseas holiday, he had consumed alcohol. Nonetheless, he maintained that he has reduced his consumption of alcohol since the period immediately following the parties' separation. The husband was frank and sincere in his admissions as to his alcohol consumption and I accept his evidence.
Further, the father was forthright in his admission that he consumes alcohol in the company of his friend whom he usually visits on a fortnightly basis. The father acknowledged that such behaviour could not continue if the children are placed in his full-time care.
The father has the support of Mr N and Ms O and his church community. Further, the father is supported by his psychologist, Dr FF. Having regard to that support and the father's frank admissions as to his earlier failings, I am satisfied that his historic heavy use of alcohol does not reflect his current circumstances and further is not a factor that will pose a risk to the children's safety if they are placed in his full-time care.

[83]

The mother raised concerns as to the risks the father poses to the children as a result of his historic attempts at suicide. The father has previously attempted suicide in 2021 and more recently in the period immediately following the parties' separation in January 2023. The mother contends that the children were aware of the father's actions on those occasions.
When the father attempted to take his life in early 2023, he attended the mother's home to see her and the children shortly prior to that event. On that occasion he provided the mother with cash and presented as tearful and distressed. The mother contends that the children were also distressed as a result of that attendance.
Following the father's attempt on that occasion, the mother limited his time with the children to supervised time only and subsequently ceased all time between the father and the children.
The father denies the allegation that his historic attempts at suicide pose a risk of harm to the children. Since the time of those attempts, at the recommendation of Dr W, who prepared the psychological assessment of the parties, the father has been regularly attending upon Dr FF, psychologist. The father commenced attending upon Dr FF in mid-2024, upon receipt of Dr W's recommendation. Initially the father was attending Dr FF on a fortnightly basis and more recently has continued to attend upon her on a monthly basis. The father's evidence, which I accept, is that he intends to continue attending upon Dr FF.
In addition, the father's oral evidence confirmed that he regularly attends upon his general medical practitioner from whom he is prescribed anti-depressant medication. Whilst he is currently taking that medication, the father indicated during his oral evidence that his mental health is much improved and noted that he has managed the trial and the viewing of the VARE recorded interviews, which were both distressing and disturbing, without issue. The father noted that he was not suffering from sleep disturbance or the anxiety previously experienced by him. The father's intention is to attend upon his General Practitioner at the conclusion of the hearing to begin the process of withdrawing from his anti-depressant medication with the support of his doctor. The father confirmed that he would also continue to have the on-going support of his psychologist.
The father's most recent suicide attempt occurred more than two years ago in the immediate aftermath of the parties' separation. Since that time, he has sought assistance from his doctor and has actively engaged with a psychologist upon whom he will continue to attend at the conclusion of the proceedings. Having regard to the father's evidence in relation to those matters, which I accept, I am not persuaded that there is any basis for the mother's concerns arising from the father's historic attempts at suicide.

[85]

As noted earlier, the mother unilaterally determined to end the children's on-going relationship with the father in the aftermath of his suicide attempt in January 2023. Initially, the mother limited the father's time to supervised time only, and following telephone communication between he and the children in early 2023, ceased facilitating face-to-face time or telephone communication between the father and the children altogether. The mother removed the children to an unknown address and when these proceedings commenced, the father was unaware of where the mother and children were living. As a result, it was necessary for him to bring an application for a Location Order to enable his initiating application to be served upon the mother.
In the period following separation, the mother relocated the children from the family home in Suburb K, initially to a motel in Suburb GG, and then to emergency accommodation in Suburb Q arranged by L Service, and finally to housing provided by DFFH in Town R, Victoria. The effect of those moves was to dislocate the children from their church and school communities and to disrupt their relationship with the father and other members of the paternal family. Having regard to my earlier findings as to the limited history of family violence there seemingly was little basis or necessity for the mother's relocation of the children to "safe houses".
It was submitted on behalf of the ICL and the father that the mother had a propensity for "catastrophising" matters and indeed I am satisfied that the mother's response to the father's suicide attempt, the separation of the parties and the relocation of the children to "safe houses" is suggestive of that. I am satisfied that the father did not pose a threat to the mother and the children following the parties' separation; this is evidenced by the fact that the mother continued to invite the father to her home to provide parenting assistance in mid-2022 following the making of the first Family Violence Intervention Order. I am satisfied that the effect of the mother's actions was to disrupt the children's relationship with their father as well as their education and engagement with their school community.
The evidence adduced as to the children's circumstances in Suburb Q supports a finding that the children were settled and happy there. The mother had signed a two-year lease for their home in Suburb Q and she conceded that it was appropriate to the family's needs. Further, the school attended by X and Y, DD School, was supportive of the family and had implemented learning strategies to support and assist the children. Indeed, the teachers at DD School had developed an individual education plan for X to support her learning needs. That report dated mid-2024 was signed by the mother (Exhibit ICL-20). Notwithstanding those arrangements, within days of signing that plan, the mother elected to relocate the family from Suburb Q to Town R, just outside of Town S, Victoria. Further, the mother withdrew X from formal education and thereafter commenced home-schooling her. When cross-examined in relation to the learning plan, the mother initially denied any knowledge of it; only when shown that she had signed the document did the mother concede that such arrangements had been made. I found the mother's evidence in relation to this matter to be disingenuous.
It is evident from the school reports of U School that Y found the transition to Town R difficult, that she had difficulty forming new friendships at that school and that her behaviour became more dysregulated (Exhibit ICL-26).
Having regard to the reports from the children's schools, I am satisfied that the mother's actions in removing them from their home and school community in Suburb Q has been disruptive and unsettling and compromised the children's learning, emotional health and well-being.

[89]

The children are aged 11, nine and four respectively and are still dependent on their parents for their day-to-day needs.
Ms B described both X and Y as being bright and friendly young girls.
X is currently being home-schooled by the mother. Ostensibly, she commenced home-schooling due to difficulties at school and what the mother described to DFFH as issues arising from post-traumatic stress disorder. There is no independent evidence to confirm that X has that condition.
Prior to commencing home-schooling, X attended DD School where a detailed learning plan had been prepared in order to provide her with greater support for her on-going education (Exhibit ICL-30). That plan identified X's functional needs as including emotional regulation, support through trauma, and emotional and social well-being support. As to X's educational needs, the plan identified that X requires help transitioning to school in the mornings and struggles with separation from the mother, requires emotional help to regulate her feelings after recess and lunchtime, requires emotional support when feeling "triggered" through the extensive trauma she has endured and requires literacy and numeracy support in the classroom. That plan, signed by the mother, was dated 1 May 2024.
Following the mother's relocation with the children to Town R, Y commenced attending U School in Town S. That school has identified that Y has had difficulty adjusting to the new school environment and had challenges in forming friendships. Those difficulties have been recorded in the notes of teachers and the welfare Suburb Q at that school (Exhibit ICL-26).
Z underwent a community health assessment conducted by HH Health Service in November 2024. He was referred for that assessment by his kindergarten teacher in September 2024. The basis for the referral was that there were concerns regarding Z's separation anxiety and speech development. At the time of that assessment, Z was aged four years. According to the report from that assessment, notwithstanding his speech difficulties the mother reported that Z's hearing had not been tested and further that Z was not yet toilet trained. In her oral evidence, the mother asserted, contrary to that assessment report, that Z was toilet trained at the time of the assessment but simply preferred to wear nappies over his underwear.
During the assessment, Z was observed to be very shy and reluctant to leave the mother's lap, to speak very quietly and to have limited language for his age. Z's language was assessed at below the average range as compared to his same-age peers, indicating a high likelihood of a language disorder. Further, he presented with delayed speech development. The assessment recommended that Z would benefit from speech therapy. It was also recommended that Z undertake an audiology test to rule out any hearing issues that may be impacting his speech and language development (Exhibit M-3). Notwithstanding those recommendations, the mother has yet to organise a hearing test for Z or engage him with a speech therapist.
Having regard to the assessment of the children by their schools, and in the case of Z, by the HH Health Service, I am satisfied that the children's developmental and psychological needs are not currently being supported in the mother's care. The evidence from both DD School and U School indicates that both X and Y have significant emotional and social needs that require additional support. Further, DD School identified that X had deficits in her literacy and numeracy that required additional support. There is no independent evidence as to X's educational progress since mid-2024 when she began home-schooling with the mother, who has no formal educational qualifications beyond secondary school.
I am also satisfied that Z's physical needs have not been appropriately managed and attended to by the mother. Z is currently attending kindergarten. He has identified deficits in his speech and language development, yet the mother has failed to ensure that his hearing is tested. Further, at four years of age, Z was still wearing nappies. The mother has seemingly prioritised the needs of X and Y, ensuring that both attend weekly appointments for counselling in relation to sexual abuse which the mother now concedes did not occur, yet gave evidence that she has had no time to attend to Z's hearing test and speech therapy.
The father confirmed during his oral evidence his commitment to ensuring that all of the children's physical and emotional needs are appropriately attended to. He confirmed his commitment to engaging with psychologists for the children, and to ensure that Z has appropriate support from speech therapists as well as the opportunity to engage in play therapy. I accept the father's evidence in this regard.

[91]

The mother has been the primary caregiver for the children since the parties' separation in December 2022. Initially the parties separated in July 2022 following the making of an Interim Intervention Order against the father. Notwithstanding that order, the mother sought the father's assistance and invited him into the family home to care for the children as is evidenced by the SMS text messages from her to the father throughout August 2022 (Exhibit F-2).
Throughout her oral evidence, the mother maintained that at all times she has been motivated to act protectively on behalf of the children. She asserted that she did not coach, influence or manipulate the children to make disclosures of sexual abuse. Whilst the mother may have perceived herself to be acting protectively, I do not accept her contention that she did not coach or influence the children to make disclosures of sexual abuse. Ms B observed that the children, and particularly X, have very close relationships with the mother. Ms B considered, and I accept, that the children and particularly X and Y had an enmeshed relationship with the mother and that X had been parentified.
As to Z, I am satisfied that his care has been neglected by the mother. She has failed to engage with appropriate services to assess his hearing and to support his speech and language development. Further, as at November 2024 when he was aged four years, Z was still wearing nappies; this apparently was not a matter of concern to the mother.
As a result of those findings, I am satisfied that the mother has not appropriately attended to the children's developmental, psychological and emotional needs.
The father has had little if any opportunity to attend to the children's needs since the time of the parties' final separation in December 2022. However, the father has actively pursued a relationship with the children in these proceedings in the face of staunch opposition and scandalous allegations pursued by the mother. Ms B observed that the father had demonstrated great resilience and determination in his pursuit of his application in this Court. I agree with that assessment.
There is no question that the father has faced personal challenges, that he has been treated for depression and that he had enormous difficulty, particularly in the aftermath of the breakdown of the relationship which resulted in his attempt at suicide. Since that time, the father has actively worked to improve his mental health to ensure that he is available to the children. He has followed all recommendations of Dr W and continues to attend upon a psychologist. Further he has undertaken and completed a men's behavioural change program.
Having regard to those matters, I am satisfied that the father has shown child focus and commitment and demonstrated insight as to his responsibilities as a parent and as to the needs of the children. As such, I am satisfied that the father is the parent with superior parental capacity who is best placed to ensure that the children's physical and emotional needs are met. I am also satisfied that he is the parent best placed to ensure that the children have the opportunity of an ongoing relationship with the mother.
The mother sought to challenge the father's capacity to financially support the children. However, in circumstances where the father has consistently met his child support obligations since separation and at the time of trial was committed to a child support payment plan, has privately funded these proceedings, and gave evidence that he will be drawing on his savings and may seek Centrelink benefits during his initial period of care of the children when he does not intend to work, I am satisfied that the father's capacity to financially support the children is not in issue.
Having regard to my earlier findings as to the mother's conduct, I am satisfied that the mother's parenting capacity is severely compromised by her rigid and fixed views as to the sexual abuse allegations, which were only abandoned by her in the face of overwhelming evidence that they could not be maintained. Further, I have little confidence in the mother's capacity to support the children's relationship with the father, having regard to my findings as to her role in the propagation of the sexual abuse allegations and her unilateral suspension of the children's time and communication with the father.

[95]

At the commencement of the trial, the mother proposed that the father spend no time with the children. By its conclusion the mother's position had shifted to one whereby after family therapy, the father would spend time with the children each Wednesday evening and on an alternate week basis from after school on Friday to the commencement of school on Monday. Hence, there was a dramatic shift in the mother's proposal over the course of the 13 days of hearing.
Notwithstanding the mother's assertions during her oral evidence that she had resiled from the belief that the father had sexually abused the children, I hold significant doubts as to the mother's commitment to that position. The reality is that the mother was well aware that the sexual abuse allegations had not been substantiated as early as May 2024 upon the release of the DFFH Magellan Family Report. That report plainly identified the inconsistencies in X's disclosures, the improbability of many of her allegations, and further, the concerns as to the impact of the mother's audio recordings. Notwithstanding receipt of that information the mother persisted with her claims. That position continued even after Victoria Police had indicated that it would not be pursuing criminal matters against the father.
Not only did the mother persist in the allegations, but by the time of the interview for the Magellan Family Report, the mother informed Ms B that the matters alleged really happened and further, expanded the suite of allegations to include an allegation that X did not like having sticky fingers due to her previous experience of having semen on her hands. That was the first and only time such an allegation had been raised. It was an allegation that did not emerge until November 2024, some six months after the release of the DFFH Magellan Report.
Having regard to those matters, I have little confidence in the mother's capacity to support the children having a meaningful relationship with the father. That view is bolstered in light of the conduct of the maternal grandmother, who was observed to howl for some minutes in this Registry upon the conclusion of the children's observation session with the father. Having regard to the evidence of Mr BB, coupled with the statements made by the maternal grandmother to the D Centre worker (Exhibit F-12), on any view the maternal grandmother is a forceful and influential presence in the children's home. Given the maternal grandmother's dysregulated behaviour in the Court environment, where she would have anticipated that her conduct was to be observed and reported on, I have grave concerns as to her behaviour towards and influence over the children behind closed doors in the mother's home.
Those concerns are amplified in circumstances where the mother did not call the maternal grandmother as a witness in the proceedings, notwithstanding the adverse observations made of the maternal grandmother's conduct by Ms B. In light of that fact, I am satisfied that it can be inferred that any evidence given by the maternal grandmother would not have assisted the mother's case (per Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).
In contrast, the father during his oral evidence confirmed his commitment to supporting the children's relationship with the mother provided that it is safe to do so. I accept that evidence. Whilst I have little confidence as to the mother's capacity to support the children's time with the father, I do not hold the same concerns for them if they are in the father's care; I am satisfied that the children will have the opportunity of a relationship with both parents if they live with the father.
The father seeks orders for the children to resume supervised time with the mother at the expiration of six months. As a result of the concerns identified by Ms B, which I accept, as to the potential for the mother to undermine the father's relationship with the children, as well as the mother's inability to contain her own emotions and beliefs, it will be necessary for the mother's time with the children to be supervised. I recognise that this will result in a significant diminution of the mother's role in the children's lives. Nonetheless, it will still afford the children the opportunity of a relationship with the mother. They will know their mother, they will know that she loves and cares for them and she will continue to be an important figure in their lives. I am satisfied that orders for supervised time as proposed by the father are in the children's best interests, ensuring their safety whilst affording them the opportunity of benefitting from an ongoing relationship with the mother.

[98]

The ICL and the father were united in the orders they urged the Court to make as contained in Exhibit ICL-29.
Both the ICL and the father sought orders that the father have sole decision-making responsibility in relation to matters concerning the children's long-term care, welfare and development. The mother seeks orders that that responsibility be shared.
Section 61C(1) of the Act provides that each parent has parental responsibility, regardless of whether they lived together or are separated (s 61(C)(2)), subject to any contrary order of the court (s 61C(3) and s 61D).
Orders made allocating parental responsibility for a child in relation to "major long-term issues" may provide for joint or sole decision-making in relation to all or specified major long‑term issues (s 61D(3)). The Act defines major long-term issues as issues about the care, welfare and development of the child of a long-term nature, including the child's education, religion, culture, health, name, and changes to the child's living arrangements (s 4(1)). Section 61DAA defines the requirements, unless specified otherwise in the relevant orders, of joint decision-making for major long-term issues. Pursuant to s 61DAA(1), persons with joint decision-making responsibility must consult each other in relation to each such decision and make a genuine effort to come to a joint decision. A person who has parental responsibility for a child is not required to be consulted by another person in respect of minor decisions for the child which are outside "major long-term issues" (s 61 DAB).
Given the serious allegations raised by the mother against the father, and my concern that she continues to harbour such beliefs, notwithstanding her stated position before the Court that she has abandoned that position, I have little confidence in the capacity of the parents to join in making decisions together regarding the children's long-term care, welfare or development. In circumstances where I am satisfied that the children should live with the father and that there be a moratorium on the mother's time with the children, followed by limited supervised time with the mother, I am satisfied that the children's best interests require that responsibility for making major long-term decisions regarding their long-term care, welfare and development should rest with the father.
There are sound practical reasons for the father to have such responsibility; upon the making of these Orders he will be required to enrol the children at schools, ensure that their medical needs are attended to and re-engage them in his church community. Such matters will need to be addressed promptly to ensure the children's needs are met. In my view, a requirement that the father consult with the mother regarding such decisions, particularly having regard to the conflict and disagreement which has endured since the parties' separation, would be unworkable.
The father and the ICL also seek orders that the children live with the father and that there be a six-month moratorium on the mother's time with the children. It was submitted on behalf of the father and the ICL that such orders were necessary to ensure that the children are not further exposed to the unacceptable risk of emotional and psychological harm posed by the mother. Both relied upon the mother's actions in coaching and manipulating the children to make disclosures of sexual abuse against the father.
I am satisfied that the mother has actively obstructed the children from spending time with and communicating with the father. The mother has embarked on a course of conduct which has had the effect of erasing the father's presence from the children's lives. That process began with her permission granted to both X and Y to change their names, the effect of which was to distance them from their connection with the father.
Further, I am satisfied that the mother has fostered the children's belief that their father is a man to be feared. She has ensured the children's continued engagement with counselling services to support the children's belief that they have been sexually abused by the father. Further, the mother has done so in circumstances where she was aware that those allegations could not be substantiated.
Having regard to those matters, I am satisfied that the mother has visited emotional and psychological harm on the children. I am also satisfied, having regard to the evidence of Ms B regarding her concerns as to the mother's capacity to alter her views of the father and to undermine and disrupt his relationship with the children, that there is an unacceptable risk that the mother will continue to cause the children emotional and psychological harm.
The mother urged the Court to make orders for family therapy to enable the children to re‑establish a relationship with the father. The evidence of Ms B, which I accept, is that in her view, the matter is "too far gone" to contemplate such an approach. Ms B expressed significant reservations as to the mother's capacity to shift her views of the father. Further, Ms B also expressed the view that even if the mother's views were to change, that does not resolve the risks associated with the uncontained views of the maternal grandmother, and in particular, the risks posed to the children by their exposure to such views. In addition, Ms B expressed significant concerns that family therapy may re-trigger the children's concerns regarding the father causing them further turmoil and distress and thereby compromising their psychological well-being.
The mother also submitted that to change the children's residence to the father's household would visit significant trauma upon them. Ms B acknowledged during her oral evidence that were the children to live with the father they would be traumatised and that it would take some months for the children to adjust. Nonetheless, Ms B was firm in her view as to the ongoing psychological trauma that the children are experiencing in the mother's care and the significant impact of it upon the children's emotional development and mental well-being. She was also firm in her belief that the father has the capacity to provide a healthier and safer environment than the mother's household, in which the children could be free from the psychological and emotional risks to which they are exposed in the mother's household. I accept that evidence.
Having regard to Ms B's evidence and to my earlier findings as to the mother's conduct and parenting capacity, I am satisfied that it is in the children's best interests that they live with the father. I am also satisfied that it is in the children's best interests that there be a moratorium on the mother's time with the children for a period of six months as recommended by Ms B, so as to ensure that the father's relationship with the children is not undermined or disrupted by the mother.
Further, I am satisfied that upon a resumption of the mother's time with the children, such time should be supervised to ensure that the father's relationship with them is not undermined.
Ordinarily, the Court is reluctant to make orders for long-term supervision, although it can and should do so if it is determined that such orders are in the child's best interests. The Full Court has cautioned against the making of such orders in the absence of a review mechanism (see Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407; Slater and Light [2013] FamCAFC 4; (2013) 48 Fam LR 573). Those decisions express concern as to making of such orders without at least providing an opportunity for the party the subject of supervision some mechanism for seeking to remove the supervision requirement.
The difficulty with providing such a mechanism in this matter is the fact that there is no evidence before the Court that the mother is meaningfully engaged with counselling or therapy to assist her to shift her entrenched views of the father. Whilst the mother's oral evidence indicated changed views, the reality is that her pursuit of the allegations against the father has escalated over time and were firmly held by her up to the commencement of the trial. Accordingly, having regard to those factors and the evidence of Ms B regarding her doubts as to the mother's capacity to shift her views coupled with the inability of the children to self-protect, I am satisfied that an order for long-term supervision is in the children's best interests.
I am also satisfied, having regard to the evidence of Ms B, that it is appropriate that orders be made for the father to make all necessary arrangements for Z to engage in play therapy and for the children to have the support of individual child psychologists to support and assist their transition into the father's care.
Both the ICL and the father also seek orders restraining the mother from spending time with and communicating with the children by any means including mail, telephone, email, text message or social media and from approaching within 100 meters of the father's residence or the children's school. In light of my concerns as to the mother's behaviour and having regard to the challenges that she will face upon the implementation of these Orders, I am satisfied that such orders are in the children's best interests and I will therefore make orders as sought.
I am also satisfied that it is in the children's best interests that the Final Parenting Orders and a copy of these Reasons be provided to the supervision service engaged by the parties as well as the principal of any schools or kindergartens attended by the children as well as any other health professional engaged with the children or the parties.
Both parties seek orders that there be information sharing in relation to the children's progress at school and as to school events as well as in relation to any significant illness or medical condition suffered by the children. Accordingly, I will make orders to that effect. I will also make orders to ensure that the parties keep each other informed as to their contact telephone numbers and notify each other of any changes to their contact details within 24 hours of such change.
In light of the issues raised in the proceedings with respect to consumption of alcohol and illicit substances, I am also satisfied that it is in the children's best interests that orders be made that the parties be restrained from consuming alcohol to excess or using illicit substances when the children or any of them are in their care. I will also make orders restraining both parents from denigrating, belittling, rebuking or otherwise insulting the other party or discussing these proceedings in the presence or hearing of the children.
The mother sought orders that the father continue to attend upon his treating psychologist, Dr FF. The father's evidence, which I accept, is that he commenced attending upon Dr FF upon recommendation by Dr W, that he has been attending upon her regularly since mid-2024 and that it is his intention to continue to do so. I am satisfied that the father clearly recognises the importance of maintaining his health and is committed to continuing to do so. He has engaged with Dr FF without the requirement of Court order. Having regard to that history I am not persuaded that there is a need for an order as sought by the mother.
The mother also sought orders restraining the parties from home-schooling the children, permitting them to use names other than their given birth names or exposing the children to any age-inappropriate medium. No submission was made to the effect that the father has engaged in such conduct. Indeed, I am satisfied that it is only the mother who has permitted the children to change their names and commenced home-schooling X. Accordingly, I am not satisfied that the injunctions sought by the mother are warranted in circumstances where the children will be living with the father.
The mother also seeks orders permitting both parents to attend the children's sporting, school and extra-curricular activities that permit parental attendance. In circumstances where I have found that the children should live with the father and the mother spend only supervised time with them after the six-month moratorium, I am not satisfied that the orders sought by the mother are in the children's best interests. Indeed, in light of my findings as to the mother's conduct, I am satisfied that there is a risk that the children's emotional health and well-being may be compromised by the mother's attendance in such settings.
The ICL has helpfully indicated a preparedness to remain involved in the matter to support the children's transition to the father's care and as such proposes that there be a discharge of her appointment 12 months from the date of these orders. In light of the orders I will be making, I consider such an arrangement to be appropriate in advancing the children's best interests. Accordingly, I will make an order to that effect.
I will also make orders requiring the ICL to meet with the children following the delivery of this judgment, to ensure that she is available to inform the children of these orders and explain their meaning and effect.

Oiaryp & Wild [2025] FedCFamC1F 237 (10 April 2025)

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Judgment (107 paragraphs)

Legislation Cited (2)

Cases Cited (13)