Pavlenko & Chiba [2025] FedCFamC1F 552 (18 August 2025)

• . Each Tuesday, from the conclusion of school or 2.00pm on a non-school day until 6.00pm; and

1. Each Saturday, from 10.00am until 2.00pm. 2. Thereafter, for a period of four weeks:

• . Each Tuesday, from the conclusion of school or 10.00am on a non-school day until 6.00pm;

• . Each Tuesday, from the conclusion of school or 10.00am on a non-school day until 6.00pm; and

1. From 10.00am each Saturday until 10.00am on Sunday.

• . Each Tuesday, from the conclusion of school or 10.00am on a non-school day until 6.00pm; and

1. From 10.00am each Saturday until 6.00pm on Sunday. 4. Changeovers will take place at the child's school on school days, and at the residence of the parent where the child is about to spend time on non-school days. 5. The parents shall communicate in relation to the child via an agreed parenting app, and failing agreement by Appclose. 6. Each parent hereby be restrained from: 1. Discussing these proceedings with the child or in the child's hearing, except to explain these Orders; and 2. Denigrating the other parent to or in the hearing of the child, and each party will remove the child from the hearing of anyone else who may be denigrating the other party. 7. The parties will forthwith do all things and sign all documents necessary to engage a child psychologist to treat the child, with psychologist to be agreed between the parties within 7 days of the date of these Orders and failing agreement as nominated by the Father, and with the parents to equally share the cost. 8. The Independent Children's Lawyer is at liberty to provide a copy of the Family Reports of Ms C dated 5 September 2024 and 9 April 2025 and copies of any Reasons for Decision in these proceedings to any treating mental health practitioner for the child, including a counsellor.
2. I list the matter for mention before myself at 12.00 noon (AEST) on Thursday, 27 November 2025 via Webex purely for the purposes of determining the future conduct of the matter.
3. I grant liberty to all parties to restore on three days' written notice to my Associate.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pavlenko & Chiba has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The parties are engaged in proceedings pursuant to Pt VII of the Family Law Act 1975 (Cth) ("the Act") in relation to their one child, X, born 2018. The final hearing commenced on 11 August 2025 and concluded on 13 August 2025 with the making of interim orders. The proceedings have been stood over part heard with a listing date of 27 November 2025 to determine the future progress of the matter. These reasons explain why the Court approved the interim orders as being in the child's best interests.
2. At the commencement of the hearing, it was the mother's case that the child had been sexually touched by her former partner Mr D and by the father. The mother contended that the father posed an unacceptable risk to the child and sought orders for sole parental responsibility, the child live with her, and the child spend no time with the father. In the event that the Court does not make a finding of sexual abuse by the father and that it considers that supervised time is appropriate, she sought the child spend supervised time with the father for six months and then progress to unsupervised time subject to various conditions.
3. The father denied all of the mother's allegations and sought orders that the child live with him and spend supervised periods of time with the mother ultimately progressing to alternate weekends. That said, the father in cross-examination agreed that ideally, he would like to see an equal time arrangement.
4. The Independent Children's Lawyer ("the ICL") indicated at the commencement of the hearing that her preliminary view was that orders should be made for the child to live with the father.
5. The mother was cross-examined extensively over the first two days of the hearing with the father cross-examined in the afternoon of the second day. Each of the parties' witnesses were also briefly cross-examined. A doctor who examined the child was cross-examined on the last day of the hearing, as was the report writer. The report writer adhered to the opinions expressed in her report but agreed that an alternative position was that the Court might make interim orders for the child to progress immediately to unsupervised time in the event that the Court was satisfied the father had not sexually assaulted the child. The rationale behind interim orders was to assess both the child's and the mother's progress and in essence the level and extent of the mother's commitment to such an arrangement.
6. The evidence concluded just before the luncheon adjournment on the third day of the hearing with submissions to commence that afternoon. Following the luncheon adjournment, all parties invited the Court to make orders by consent that provided for an interim arrangement with the father to commence immediately spending unsupervised time with the child progressing in a fairly rapid progression to overnight time.

1. X is the only child of the parties' relationship. The parties were in a relationship between 2016 and 2019.
2. In January 2023, the parties entered into an agreement, albeit not in the form of orders, providing for an equal time shared-care arrangement. Whilst the mother contended in her affidavit that she was anxious about entering into such an arrangement and asserted the father made various threats, she took no steps to change the arrangement until the events of 22 September 2023. The father denied any such threats.
3. Following the breakdown of the parties' relationship, the mother entered into a relationship with Mr D. Mr D and the mother were in a relationship for approximately three years. The mother's affidavit failed to provide a fulsome explanation about the nature of her relationship with Mr D or a fulsome explanation of any concerns she had about him.
4. The extent of the mother's description in her affidavit of her relationship with Mr D was the following:
   1. In [2023] I took [X] to [Country B] with my then partner [Mr D].
   2. We stayed at [Mr D's] mother's home in [City E]. We returned to Australia in [2023], and I became uncomfortable when [Mr D] told me that he was from a paedophile household and I was worried for [X's] safety.

34. Following this disclosure, I ended the relationship with [Mr D].

1. The detail of any concerns she held about him was only exposed in cross-examination. In cross-examination, the mother initially revealed that she began to have some concerns about Mr D and the nature of his interaction with X before they travelled to Country B but says that she did not say anything to Mr D. She expressed it at its highest that she had suspicions.
2. The mother and Mr D travelled to Country B for a holiday. While in Country B, she observed things that made her uncomfortable including how Mr D and his mother interacted with the child. She said that upon their return to Australia she had a conversation with him where he said he was from "a paedophile household". She said in cross-examination she did not know what that meant. She says she then ended her relationship with him but that it took him about six days to move out.
3. She said about a month after he had moved out, she saw a counsellor from F Family Services in September 2023. She says the counsellor advised her to be direct with X and to ask her whether or not she had been touched on her vagina. The mother says that following that meeting she came home and spoke to X.
4. She records in her affidavit that X told her that evening the following:

30. ...

1. "My dad does rude things to me when he drinks beers". And "More beers and more rude things with private parts" And "My dad touches his private parts with his hands on the couch in front of my face." And "He does "these ones"

31. [X] gestured to me hand masturbation in front of her body. And said to me:

(a) "He wears clothes when he does this and is not naked, but sometimes he is naked when he is not on the couch"

(b) "My dad puts his finger in my vagina before school and after school, in the afternoon, at night and any time he feels like it".

(c) "At my dad's house, my dad puts his finger in my vagina in the shower, the kitchen, the lounge room, his bedroom, my bedroom and at the backyard. I think my dad is a liar and he lies every day about everything."

(As per the original)

1. From that point in time, the mother suspended the father's time with X.
2. The mother said she contacted Territory Families, Housing & Communities ("Territory Families") and the Northern Territory Police. The child was interviewed by the Northern Territory Police in late 2023.
3. X was medically examined in late 2023. Sexual assault of X was not established.
4. The mother commenced proceedings on 8 December 2023. The father did not find out until then why his time with X had been suspended.
5. Since 2023, the father has not seen X other than once with the report writer and one attendance of supervised contact. Subsequent attempts to have X attend on supervised visits were unsuccessful.
6. The father has never been interviewed by Northern Territory Police or Territory Families. Each of Northern Territory Police and Territory Families have concluded their investigations.
7. Three Expert Reports have been prepared for the proceedings.

1. Consistent with the provisions of s 69ZL of the Act, I set out in short form my reasons.
2. Parenting proceedings are governed by Pt VII of the Act. In making a parenting order, s 60CA requires the Court to regard the best interests of the child as the paramount consideration. In determining what is in the child's best interests, s 60CC(2) sets out the matters that are required to be considered. No one matter takes priority over the other. The matters to be considered are:

60CC How a court determines what is in a child's best interests

...

General considerations

(2) For the purposes of paragraph (1)(a), the court must consider the following matters:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

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

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

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

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

1. In considering the matters in s 60CC(2)(a), the Court must, pursuant to s 60CC(2A), consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that applies in relation to the child or a member of the child's family.
2. Section 60CG of the Act requires the Court, when making a parenting order, to ensure the order does not expose a person to an unacceptable risk of family violence and is consistent with an existing family violence order.
3. Pursuant to s 60CC(2)(a), the Court must have regard to the arrangements which would promote the safety of a child and the person who has the care of the child. The word safety should, in my view, be given its ordinary meaning; that is, the orders should provide a degree of protection from the matters identified in the subsection to the extent necessary relative to the evidence and the risk of harm.
4. This is a case all about risk. The task of the Court in relation to questions of unacceptable risk as identified in Isles & Nelissen [2022] FedCFamC1A 97; (2022) 65 Fam LR 288 is to undertake a qualitative analysis of the evidence directed not just to the existence of the risk of harm but also to the magnitude of the possible harm. An assessment of the probabilities is not the measure by which a future risk of harm is determined. A possibility may be sufficient basis upon which to find an unacceptable risk.
5. The usual circumspection and caution applicable in a case where the Court is called upon to make interim orders does not apply in this case where there has been a rigorous testing of all the evidence through cross-examination.

1. I have heard all of the evidence in the proceedings and read all of the documents relied upon and tendered by the parties. All that remained to conclude the proceedings were the submissions of the parties. The parties ultimately did not make submissions because they reached an agreement that saw the father immediately commence unsupervised time with the child.
2. I am satisfied that the mother's consent to those orders was an admission by her that the father did not pose an unacceptable risk. To contend otherwise would be absurd.
3. Whilst I have not heard submissions from the mother's counsel, I am satisfied on the evidence the parties have adduced that the father did not sexually assault his daughter or touch her in a sexually inappropriate way. I reach that conclusion for the reasons set out below.
4. I am not satisfied that the mother is reliable in her presentation of what the child told her, when she was told, what she was told or the events that led to her separation from Mr D. The mother's affidavit and her oral evidence is inconsistent with the record of what she told Territory Families in September 2023, a conversation about which she had not previously disclosed.
5. In that respect, the mother's account of the sequence of events in her affidavit and in her oral evidence differs significantly from what was recorded by Territory Families in a document created some five days after the alleged disclosure by X. Exhibit 11 records at page 134 the following:

The [blank] of the child has called CIT very emotional and has disclosed that [blank] has just discovered that 5-year-old daughter [X] has been abused sexually by two people. The [blank] states that has been in a [blank] with [Mr D] for the past three years and after [Mr D] had moved to [blank] house in [...] where [blank] have been staying together with daughter. The [blank] says that [blank] has been noticing unusual activities from [Mr D] since moving which triggered to suspect sexual abuse. [Mr D] always wanted to see the child naked, and he would just go in when the child was in the toilet, bathroom, dressing or undressing. The [blank] states that [blank] "confronted him, and [Mr D] assured that nothing was happening, and he had no intentions of harming the child.

The [blank] and the child have just been in [Country B] visiting [Mr D's] family and [blank] were staying at the parents' house. The [blank] states that [blank] noticed similar behaviour trends from [Mr D's] mother who also would look at the child and would also be around the child when she was naked. On returning back to Darwin the [blank] stated that [blank] confronted [Mr D] again and highlighted concerns about [Mr D] and his mother's actions towards the child as they would constantly get into the room when the child was undressing or in the bathroom when showering. The confrontation was ongoing until last week when [Mr D] disclosed that he grew up in a family were both his parents had been convicted for child sexual offences and he said he was trying to break the cycle. The [blank] states that [blank] was angry at [Mr D] and asked him why then he had to let and the child stay with the parents in [Country B] when he knew their history. He then said that he just like to see the child naked but has never caused any harm nor touched her. The [blank] then asked [Mr D] to leave house and he did. On Friday [blank] then had time to talk to the child and asked her (Did [Mr D] touch your vagina). The child stated that [Mr D] has touched her vagina many times and even described how [Mr D] masturbate as she said, "[Mr D] waves his penis to the front and Dad waves his to the side."

The [blank] then says [blank] has asked the child if there is anyone else who has touched her vagina and the child responded that her dad also touches her. The child said "I know when dad wants to touch me, he bends his finger. [blank] asked her if dad touches her on puts the finger inside, she said, "she puts the finger inside", The child is coming out with a lot more details and it's just so disheartening.

The father and [blank] due to the controlling and abusive nature of the relationship, and they have private parenting agreement with the dad as there are no court orders and they schedule the dates for visit fortnightly. Dad lives alone and is expecting to see her this week and [blank] states that [blank] does not want her to go back ever again.

[blank] had called and told the school about [Mr D] on Friday and nothing had been done as this was the last day of the school term. There have been no concerns from the school on the child's behaviour. [blank] also stated that [blank] intends to report the matter to the police

1. The mother accepted that she was the person who provided the information to Territory Families. It reveals contrary to the mother's oral evidence that her suspicions of Mr D before travelling to Country B was significantly greater than she alleged in her oral evidence and that upon returning from Country B she confronted Mr D, and he remained in her home until "last week". That would put his departure from the home at about a week before the alleged disclosure in September 2023 and not a month earlier.
2. The mother's evidence that she did not understand what he meant when he said he came from a "paedophile household" stands contrary to her knowledge that his parents were convicted of child sexual offences.
3. The mother's affidavit evidence of what the child told her the father did is different in detail to that recorded by Territory Families. The assertion that the child "is coming out with a lot more details" suggests that there was more than one conversation between 22 September 2023 and 27 September 2023, a fact not previously disclosed. What that detail was is not disclosed.
4. The child told her counsellor that after she reported to her mother what Mr D had done to her, he then moved out (Exhibit 11, p. 26). This conflicts with the mother's oral and written evidence.
5. The child's disclosures to the Northern Territory Police in late 2023 are inconsistent with what she is alleged to have told her mother about a week or two earlier. The child is unable to tell the Northern Territory Police what her vagina is or where it is. She says that she wished her mother could say it.
6. The Northern Territory Police concluded their investigations of X without interviewing the father. They were of the view that the child had been coached by the mother (Exhibit 11, p. 140). The record of Territory Families records:

In consultation with police it has been assessed the mother is coaching the child, [X] is unable to recall what has happened and clearly does not know or understand what a vagina does. At one point during the CFI [X] said "I wish mum could say it".

1. X has been the subject of a number of notifications to Territory Families. Those investigations have not substantiated the allegations. Territory Families recorded in late 2023 as follows:

There is insufficient evidence to suggest a [X] has been harmed as defined in Section 15 of the Care and Protection of Children Act 2007. [X] has been unable to particularise what has occurred, during the CFI she repeatedly said she did not know what a vagina was, or what it did. At one point she clearly said "My dad is a liar. My dad was lying, that was the lie. But I did tell my mum, but I don't know what it was. Mum said dad is a liar, he was born to be a liar", also stating "l wish my mum could say it, because it is a tricky word to say. It's hard. Touching me. Can't remember what happened, he did it when I was 5."

Consult with CAT Police identified it was clear [X] had been coached.

...

There is insufficient evidence to suggest a [X] has been harmed as defined in Section 15 of the Care and Protection of Children Act 2007. The care is recommended for case closure with no further action.

1. Further investigations in early 2024 record as follows:

It is also noted the concerns were previously investigated with no abuse or neglect found as stated in the rational above.

Concerns previously investigated in workflow [...] with Investigation being finalised [in late] 2023.

1. The mother's counsel did not cross-examine upon or explore in any way the allegations.
2. There is no physical evidence that the child has ever been sexually assaulted. The mother does not report any instance of concern about the father's behaviour prior to 22 September 2023 in relation to assertions of sexual or inappropriate touching nor did the child ever make any complaint to the mother prior to September 2023 of any sexual or inappropriate touching by the father. Apart from one observation by the mother post September 2023, there is no evidence of the child acting in a sexually inappropriate way with other adults or children before or after.
3. The accounts by X have changed over time including as they developed to include that the father had placed his penis in her eye and that she had been sexually assaulted by the father and Mr D on numerous occasions and in numerous locations.
4. In the final expert report, the report writer proposed an alternative hypothesis to that of the mother in the following terms:
   1. There is also an alternative hypothesis that the abuse did not occur, but because initially [Ms Pavlenko] strongly suspected that [Mr D] (her previous partner referred to in the previous Family Report)) had sexually abused or groomed [X], she was primed to believe that the child had been sexually abused, and could have misinterpreted otherwise innocent comments elicited from [X] about [Mr Chiba] touching her vagina, precipitating the development of a false narrative of abuse by him.
5. I am satisfied that this alternate hypothesis is more probable and consistent with the evidence as a whole than any suggestion that the father has acted inappropriately. I am not satisfied that the mother can be relied upon given her inconsistent evidence as to when she was told and what she was told. The mother is the sole source of the child's initial disclosures.
6. The mother bears the onus of proof of establishing that which she asserts. I am satisfied that she has failed to discharge the onus she carries.
7. I am satisfied having considered all of the evidence that the parties have adduced that the father has not touched his daughter in a sexually inappropriate way and that there is no basis to conclude that he poses any risk of harm to his daughter, let alone an unacceptable risk. The mother's agreement to the orders and her invitation to the Court to make the orders is an acceptance by her that the father does not pose any risk of harm to the child.
8. Addressing such of the s 60CC matters as are relevant I am satisfied that the arrangements proposed in the interim orders promote the safety of the child and the mother (s 60CC(2)(a)). There is ample evidence of the views of the child about the father and spending time with him (s 60CC(2)(b)). I place no weight on those views where I am satisfied, they are created either in an environment as hypothesised by the report writer or the subject of coaching as viewed by the Northern Territory Police. I am satisfied that it is to the benefit of the child to immediately resume her relationship with her father, that which should never have been disrupted (s 60CC(2)(e)).
9. I am entirely satisfied that the interim orders are in the child's best interests.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.