Tai & Bo (No 2) [2025] FedCFamC1F 545 | Case summary

Tai & Bo (No 2) [2025] FedCFamC1F 545 | Case summary | Zoe

[54]

The father and mother separated in March 2019, after a relationship of ten years. They seek final parenting orders in relation to their two children, X born in 2014 (11 years old), and Y born in 2016 (9 years old), (collectively referred to as the "children"). They also seek a final alteration of property interests. For ease of reference I will refer to the applicant as the "father", and to the respondent as the "mother" throughout these reasons and the Order.
Separation occurred when the father was excluded from the family home following a family violence incident. Within a few months regular time between the father and the children, including overnight time, was established. The spend time arrangements were interrupted for a significant period in 2022 following allegations made by Y in December 2021 to the effect that the father had sexually abused her, an allegation which the father refutes in its entirety. Time recommenced on a supervised basis from 19 September 2022. Interim Orders were made on 16 November 2022 providing for X, then 8 years old, to spend supervised time with the father but there be no time spent with Y. X last spent time with the father on 5 October 2023 and Y has not spent any time or communicated with her father since November 2022.
The father initiated proceedings in Division 2 of this Court. The proceedings were transferred to Division 1 and placed into the Magellan List on 2 June 2022. The progress of this matter has been slow and interrupted, with several adjournments of the parties own making, before proceeding before me for final defended hearing on 2 December 2024. The matter proceeded over 11 days from 2 to 5 December, 9 to 12 December, 16 to 17 December and 19 December 2024. For the final hearing, the father was represented by Mr Warren Smith of Counsel briefed by Fernandez & Johnson, funded pursuant to s102NA of the Act. The father's Cost Notice, filed 12 December 2024, disclosed that he had incurred $180,000 in legal fees up to that date. The mother was represented by Mr Werner of Counsel and Rayner Song Family Lawyers. The mother paid privately. Her Cost Notice, filed on 29 November 2024, disclosed that she had paid up to $169,000 in legal fees to that date with a further $100,000 estimated costs for the final hearing. Mr Christopher Tesoriero of Counsel appeared on behalf of the Independent Children's Lawyer, who is funded by Victoria Legal Aid.
I reserved my decision on 19 December 2024. Then there were two Applications in a Proceeding initiated after the close of evidence and final submissions. These necessitated further hearings on 19 March 2025, 29 April 2025, 27 May 2025 and 30 May 2025. Neither parent was legally represented at those hearings, the father's s102NA funding having ceased and the mother no longer being able to afford a private lawyer. The Independent Children's Lawyer was excused from attending the hearings on 29 April 2025, 27 May 2025 and 30 May 2025.
On 20 December 2024, the father filed an Application in a Proceeding together with a supporting affidavit seeking to reopen his case to correct evidence he had given. That application was listed promptly but could not proceed because, unbeknownst to the court or the other parties, the father had travelled to China. On 1 March 2025 the father filed an Amended Application in a Proceeding expanding the purpose for which he wanted to re-open his case to include the appointment of an expert to prepare a "Remediation Assessment Report" for consideration by the court. The father's Amended Application was heard remotely on 19 March 2025 and reserved my decision. I detail my decision below commencing at [172].
The mother filed an Affidavit on 17 April 2025 deposing to a change in her financial circumstances, consequent upon her relinquishing her employment. The matter was mentioned on 29 April 2025 and the mother made an oral application to reopen her case to adduce evidence in relation to her financial circumstances and sought an immediate sale of the Suburb H property. The parties agreed the property was to be sold. The Court events on 27 and 30 May 2025 dealt with mechanical issues relating to the process for sale of the property. I reserved by decision on the mother's oral application, which I deal with below from [287] onwards.
The mother and the father were each provided with an interpreter for the Mandarin language on all hearing days.

[67]

The father gave evidence across 3.5 days of the final hearing.
The father was described, by Counsel for the mother, to be a "garrulous witness", self-serving and difficult. That accords with my impression. Counsel said the father had difficulty conceding the obvious and that his denials under cross-examination were unconvincing. Counsel submitted that while the father has completed parenting courses, he was arrogant in the witness box and made comments indicating that he knew more than the family report writer or experts in relation to "parental alienation". The written submissions of Counsel for the mother stated that:
1. When confronted with the proposition that - on [Y]'s evidence to the Police - he placed his hands on her external genitalia every time she went to stay with him - the Father initially pretended that he did not understand the question. He then went on to complain that his (then) five year old daughter did not specify the dates when he was supposed to have done what he was alleged to have done. That answer was extraordinary. It can leave the Court with little, if any, confidence in the Father's evidence on the topic.
2. What is all the more remarkable is that this response - to what was self evidently a straightforward proposition - came immediately after the Father had already given a blanket denial to the proposition that he had ever placed his hands on his daughter's external genitalia while he was in bed with her. Had the answer to the former question been truthful, one would have expected the same spontaneous answer to the latter. Instead, he obfuscated, and the atmosphere in the Court room immediately had a different feel to it. The father's Counsel submitted that while there were some issues as to credit, the father was not argumentative however did lack an understanding at times how to behave in the witness box.
Counsel for the Independent Children's Lawyer stated that the father's performance as a witness let the Independent Children's Lawyer to hold concerns about the father's ability to consider, let alone understand, the children's experiences. Counsel submitted that the father had a lack of insight into the impact of a change of residence to the father on the children. The father in the witness box said:[1]

[70]

The mother gave evidence across 3.5 days of the final hearing.
Counsel for the father submitted that the mother acted in a manner that was antithetical to her duty of financial disclosure when she withdrew large amounts of cash over a period and in cross examination, was vague and inexact, in relation to evidence about the withdrawal of cash despite a clear record to put her about the high-value cash withdrawals throughout 2022 and 2023.
The mother's Counsel submitted:[2]
- [The mother] was responsive to questions asked and she did her best to assist the Court with her answers.
- [The mother] did her best to answer in English when she felt comfortable doing so. [The mother] did not seek to hide behind the interpreter.
- With respect to [Y]'s disclosures of sexual abuse, [the mother] did not present as holding any obvious malice towards the Father, notwithstanding that ill-will would have been entirely understandable in the circumstances. If anything, her presentation was that of a mother who was still coming to grips with the enormity of what the Father had done. At all times, her focus was on the Children.
- [The mother] did not present as being motivated in any way by vengeance.
- [The mother] was reduced to tears on two occasions, in circumstances which included describing the Father's long history of controlling behavior and demeaning her personally, including in the presence of the Children and other adults. Those tears were real.
Counsel for the Independent Children's Lawyer submitted that the Independent Children's Lawyer was not as concerned about the mother's credit as the fathers. The Independent Children's Lawyer expressed concerns that the mother had exposed the children to her negative view of the father (or her parent's negative view) but demonstrated in the witness box that she is capable of meeting the children's needs and is likely to seek and take advice.
I observed the mother as poised and a generally truthful witness. She was guileless about putting money under her mother's bed for safe-keeping and made appropriate concessions as to failing to include cash in her financial statements, stating:[3]

[74]

The father was born in 1976 and is currently 49 years old. He was born in China and migrated to Australia in 2006. He is currently employed as on a full-time basis by GG Consultancy as a Professional. He earns a base salary of $128,153 per annum plus super.
The mother was born in 1981 in China and migrated to Australia in 2004. She received her Australian Citizenship in or around 2008. She is 45 years of age. Up until April 2025, the mother was employed by HH Bank with a salary of $196,930 per annum plus superannuation. Her income was approximately $271,000 for the 2023 year inclusive of bonuses. She is now unemployed.[4]
Prior to the relationship, the father says he was employed by JJ Limited in China from around 2000. He ceased employment with the company in 2006 before migrating to Australia. In 2001, his employer commenced building an apartment and offered the father a right to purchase the apartment upon its completion at a cost of approximately AU$30,000. The father says his parents and sister paid the $50,000 to complete the purchase of the apartment, as he did not have any funds at that time. The property was registered in his name in 2011.
The parties commenced a relationship in 2009 and commenced living together in late 2009. They married in China in 2010 and separated on 20 May 2019. The parties divorced in 2020 and their divorce became final in late 2020.
Neither parent has repartnered.
At the commencement of the relationship, the mother owned a property situated at LL Street, Suburb MM ("the [Suburb MM] property"). The Suburb MM property was purchased by the mother for $287,500 in December 2006.[5] The mother says that her parents gave her $100,000 towards purchase of the property which she put mostly towards the deposit. The property was also subject to a loan of 80% of the purchase price. When the parties commenced living together on 1 November 2009, the balance of the loan owing on the Suburb MM property was $214,614.[6] The mother's parents assisted her with the repayments by transferring $1,000 a month to the mother. The $1,000 was increased to $1,200 a month after approximately the first year.[7]
The father moved into the Suburb MM property with the mother in November or December 2009. At that time, the father was employed full time at NN Corporation as an administrator earning approximately $65,000 per annum. He had a Motor Vehicle 3 valued at $5,000 and cash savings of $44,200, nominal superannuation but no real property. The mother says that the father paid $700 per month to her from November or December 2009 until March 2010, which she classifies as rent for living in the Suburb MM property.
The parties jointly purchased the property situated at U Street Suburb H ("the [Suburb H] property") in March 2010 for $655,000 plus a 10 per cent deposit. The mother, children and mother's parents lived in the Suburb H property at the time of final hearing. The father says he contributed $35,100 towards the purchase price.[8] The mother says the father only contributed $30,000 with the outstanding balance provided by mortgage finance from National Australia Bank and later refinanced with OO Bank and then with PP Bank.[9] The mother maintained that, because the father only contributed a small amount to the purchase of the property upfront, then the property be registered in the sole name of the mother and it was so registered. Both parties had access to the joint NAB mortgage account.
The mother says from March 2010, both parties deposited the majority of their income into the Westpac loan offset account from which the Suburb MM mortgage was paid and combined their funds and from which all expenses were paid for both Suburb MM and Suburb H properties. The father agrees and says this arrangement continued until September 2011. The mother says she retained a small amount of her pay for "personal use" and transferred the bulk to the Westpac offset account. She says the father's salary was paid into a Commonwealth Bank Australia account and he likewise retained a little for himself before paying the bulk to the offset account.
The mother says that the Suburb H property was let to tenants shortly after purchase. The father says the income was paid into the Westpac account. The mother says that the rental income did not cover the mortgage repayments, and the shortfall was paid from the offset account.
In 2010, the maternal grandparents each applied for a Contributory Migrant Visa. In 2016, the mother says her father applied for a Spousal Visa. To fund the maternal grandmother's visa application, the mother's mother transferred $5,260 to the Westpac offset account. The mother says the maternal grandmother's visa would have actually cost more (approximately $30,000) and it was her father's visa that cost approximately $5,000. The balance of the maternal grandmother's visa was paid from funds in the Westpac account for the mortgage over the Suburb H property.
In or around September 2011, the parties moved into the Suburb H property and the mother rented out the Suburb MM property, with the rental income paid into the Westpac offset account for the Suburb MM property.
At this time, the mother's parents stopped their supplementary mortgage payments to the mother. The total amount paid by her parents towards that property is, on her evidence, approximately $69,000, plus the $100,000 to acquire the property.[10]
The father says that between 2011 and 2019 he undertook extensive repairs to the Suburb H property. The mother admits that work was done on the property but says that they both undertook and shared the physical work. [11]
The parties' first son, X, was born in 2014. Following X's birth, the mother took ten months of maternity leave. She deposes that her parents assisted in the care of X.
The father's evidence is that he was very involved following the birth of each child and that he and the mother shared in the care of X as a newborn. He stated that following the birth of X, he supported the mother to return to work as the mother was career driven. When the mother returned to full time work, the father says the maternal grandmother took care of X in the daytime when he was not in childcare and that he would sometimes take leave from work if X was unwell or had to attend medical appointments.
Y was born in 2016. The mother deposes to being the primary carer for Y following her birth. With Y, the mother took eight months maternity leave.
Following Y's birth, the father says that he and the mother took turns night feeding Y, changing her nappy, feeding and bathing her. The father says that he and the mother had trouble with adjusting to life with newborn Y and returning to full time work with both children. He alleges that he was the primary carer of the children when the mother returned to full-time work, assisted by informal and formal childcare arrangements including the mother's parents. The mother says she was the primary carer of both children as infants but that as children became older, the father assisted with their care including feeding them, bathtime, taking them out to play, and childcare pickups. She says her parents helped significantly, especially when the father and mother were at work. The mother's evidence sounded more thoughtful and even handed than the father's evidence on this point. All in all, I am satisfied that this was a busy time for both parties and, to the extent that there is a conflict in the evidence, it is a conflict of recollection with particular recall of how tired each would have been. I accept that the mother was primarily responsible for both children but that the father contributed in a meaningful way as a parent.
Insofar as the mother alleges that her parents assisted with the care of the children, I accept that from 2014, after X's birth, the maternal grandparents commenced living with the family for approximately 9 months a year. I accept that they did assist in a real and meaningful way. However, absent evidence about what the maternal grandparents actually did, and the financial implications of those actions, I do not take into account whatever assistance the maternal grandparents rendered as a homemaker and parent contribution made on behalf of the mother (see AB & ZB [2002] FamCA 1178; (2003) FLC 93-140 [275]-[277]; Bhagat & Sandhu (No 4) [2025] FedCFamC1F 229 [49]-[57]). A contribution as a homemaker and parent must fall within s79(4)(c) of the Act as the Act stood prior to the Family Law Amendment Act 2024 (Cth), and the amended property provisions which commenced on 10 June 2025. Section 79(4)(c) of the Act is directed to contributions by a party to the proceedings. Neither of the maternal grandparents are a party to the proceedings.
In December 2014, an incident occurred at the family home which resulted in the father being subject to a Family Violence Safety Notice with a two-week exclusion from the home, and an Intervention Order was made by consent without admission in late 2014 protecting the mother and X for a period of nine months. The father says that soon thereafter he and the mother reconciled. In her trial affidavit, the mother says:

[76]

In May 2015, the father transferred his property in China to his sister. The mother says this was done without any consultation with the mother. The mother's evidence is that the father claimed he was going to transfer the property in China to his sister, and the mother did not agree to this. She says she believed the property had a market value of AU $400,000 and based her belief on a conversation between herself and the father's mother.[12] The mother says that, several months later, she told the father that "if he were going to gift the property he brought into the relationship to his sister, it would only be fair if I transferred the property I brought into the relationship to my parents".[13] Following some discussions with the father and her parents, the mother eventually proposed that:
1. [...] My parents would pay us a sum of money equal to the mortgage balance at 30 June 2010 (when he and I commenced mixing our finances). My reason was that they paid the deposit, stamp duty, renovation costs, and mortgage repayments so they should only have to give us enough money to discharge the mortgage. I told [Mr Tai] that in addition, they would pay us for the contributions [Mr Tai] and I have made since 30 June 2010 and they would also reimburse us for what I paid towards my mother's immigration costs. I would then transfer the property to them.
The mother says the father agreed to this idea and it took three months for them to come up with an agreed figure. The mother says she eventually told her parents they should pay $180,000. The mother details the basis for her calculations at [132] of her trial affidavit.
In October 2016, the mother transferred the Suburb MM property to her parents. The mother and father agree the value of the property was $585,000.[14] The mother's parents paid the stamp duty for the transfer of the Suburb MM property. The father denies participating in any discussions about the calculation of the price to be paid by the mother's parents. Prior to transferring the property, the mother transferred $400,000 joint funds from a PP Bank account to her mother on 26 September 2016 so that, she says, the maternal grandmother would be able to satisfy the State Revenue Office that she was holding $585,000 in a bank account. The father says that this loan was facilitated by drawing down on a loan secured against the Suburb H property and that he was not involved in any discussions with a conveyancer or the transfer of funds. Counsel for the father called on the mother to produce correspondence between herself and the conveyancer but she was unable to retrieve emails sent by the conveyancer (and only provided emails sent by her to the conveyancer).[15]
The father contends that the maternal grandmother has not paid back the loan in its entirety and the sum of $331,934.29 remains outstanding, incurring further interest of $116,770. The mother's position is that these funds were returned, and the mother was subsequently paid a further $125,729.67 so the mother received a total of $309,729.67 for the Suburb MM property.[16]
Whether the Suburb MM property was sold to the mother's parents and the agreed value of the property for the purposes of the transaction is a fact in issue and forms the basis of an addback asserted by the father against the mother and I deal with that later in these reasons. The father does not seek to set aside the transaction. To the extent that he seeks an add back against the mother in the sum of $331,934.29, he does so in the absence of evidence which would qualify the amount as an add back (see discussion from [380]). I accept that the mother kept the father informed of what she was doing, but I also accept that he was not prepared to listen. It follows that there was no meeting of minds between the father and the mother, but the father acquiesced at the time, and it does not behove the father to seek an adjustment now.
Following the transfer of the Suburb MM property to the maternal grandparents in October 2016, the mother continued to collect the rental income paid by tenants of the property. The mother's evidence was that she collected the rent on behalf of her parents and she deposited the rent into an account with QQ Bank held solely in her name.[17] The mother says she did not receive the income for herself but provided it to her parents in cash because they could not do their own banking.[18] Counsel for the father called for the records of the mother withdrawing cash for her parents to be produced on 11 December 2024. The documents were not produced, and the mother conceded that she did not have a record of the cash withdrawals, but said that she had transferred $75,500 to her parents by way of rental income received by her on their behalf:

[80]

The mother presented as emotional during cross examination when detailing the occasions during the marriage, where the father commented on her physical attributes (i.e. flat nose and stomach) and inferior intelligence (i.e. that she was not smart), and the father's financial control. The mother cried at times when she described what the father had said. I observed that father to have a demeanour consistent with someone who would lash out and say hurtful things as a consequence of himself feeling inferior. The father presented with a surly nasty streak and a general lack of empathy for the children and the mother. In my observation the mother is not at all plain in her physical appearance, she is demure and intellectually smart. She gave me the impression of being extremely industrious. The fact that she was required to attend to business matters outside normal work hours was a consequence of the bank's client base who wanted to discuss loans and the like outside their own hours of employment. I accept that the father acted as the mother described in her evidence. To the extent that the father criticised the mother for not being at home, he was ignoring the fact that she was at work, had routinely augmented a decent income (which exceeded his own) with significant achievement based bonuses, illustrates that he resented the mother and was mean-hearted to her. It is not a case where the father perpetrated devastating family violence on the mother, but the actions of which the mother now complains, measured in the context in which they occurred, constitute family violence as defined in the Act.
I also take into account that the mother, as an only child in a family of filial piety values, described how she had to withstand criticism from her parents about having chosen to marry a man whom they regarded as inferior to her. Having observed the mother in the witness box and the father in the witness box and from the bar table over 11 days of trial and four more days of online mentions, I formed a particularly strong impression that the mother has tried to do her best in all respects but has had a pretty hard time of life and was emotionally and physically exhausted.

[83]

In her affidavit, the mother recounts the incident as follows:
1. On [...] 2019 at approximately 8.15 pm, I arrived home from work. [Mr Tai] was fuming. He did not greet me. He asked me in a raised voice why I was home late and what I had been doing all day. I explained that I had texted him a photo of me sitting on the train as proof that I was already on the train and that I had told him via text that the train was delayed. I also reminded him that since he had come to my work earlier in the day to collect my car keys so he could use my car to cart home a slab of beer, I had to take a bus once I got off the train. He told me to shut my mouth. I asked him why it was always me who had to shut up. He then used one hand to grab one of my arms and he used his other hand to grab me by the throat. He then pushed me by my arm and throat down the hallway towards the kitchen. He pushed me with such force that I stumbled and my slippers fell off. The bedroom in which the children were situated had a view of the hallway. [Mr Tai]'s grip on me was strong and I started to struggle to breathe. I tried to scream and managed to get out an "argh" noise. [Mr Tai] then picked up a wooden toy that was nearby and raised it above his head.
2. At that point, my father [MR N], who must have heard the commotion from the kitchen, came into the hallway. He told [Mr Tai] "Don t do that " [Mr Tai] responded that "This is my house. Go away". My father then tried to come between [Mr Tai] and I, at which point [Mr Tai] let go of me and advanced towards my father. He grabbed my father by the base of his throat and stuck one of his fingers into my father's mouth. He then kneed my father twice in the groin. Shortly thereafter, I heard my father yell out and then he doubled over in pain whilst clutching his groin.
3. I then dragged [Mr Tai] away from my father. I took out my mobile phone and attempted to call Police. Before I was able to make the call, [Mr Tai] grabbed my phone from me. I then picked up my other mobile phone, but [Mr Tai] grabbed that phone as well. He then went into the bedroom where both kids were, and closed the door. Before he went into their bedroom he said words to the effect "The kids are mine. You all go away".
4. After the Police arrived, they got [Mr Tai] to come out of the bedroom and they spoke to him. Another officer got my father to apply an ice pack to his groin. After speaking the [Mr Tai], the Police removed [Mr Tai] from home.
The father's evidence in relation to the altercation between him and the mother's father in early 2019, was that this stemmed from ongoing hostility and pressure from the mother's father to transfer the Suburb MM property to him. The father recalled two incidents in 2017 and early 2018 when the maternal grandfather (Mr N) punched the father after he refused their request to transfer the property. The father states he did not retaliate on these occasions and that the mother and his mother-in-law witnessed these incidents.
As to the events of early 2019, the father, in his affidavit, says that the mother came home late and they were both upset at each other. He says she raised her voice in front of the children and he asked her if they could talk about it later. He says she would not stop shouting and this was followed by an unprovoked punch from the maternal grandfather (Mr N) to the father's chest. He says the maternal grandfather tried to punch him a second time and he retaliated by kicking him on his "leg/thigh" and pushed his chest.:
1. [...] [Mr N] then tried to punch me again and as he did, I kicked him on his leg/thigh and pushed his chest to get him out of the door. [Ms Bo] then pulled me from behind and as she did, [Mr N] bit my left index finger. I was worried about the children who were still in their bedroom. I wanted to stop fighting and I picked up a toy from the ground and told them to 'go away'.
2. After [Ms Bo] and [Mr N] left the corridor I went to the living room and grabbed the mobile phone. I saw [Ms Bo] trying to call the police and I was concerned that the children would be scared should they arrive late in the night. I then went back to [Y]'s bedroom. As I did, 1 told [X] to stay in his bed.
3. I immediately felt ashamed and upset that this matter had escalated (and I still do), and I was worried the children would have heard what had occurred. 1 do not recall seeing the children during the altercation and I recall they were each in their bedrooms prior to it. I went back down to the children's bedrooms. I told [X] that I would leave his door open so he could hear the story I was going to read to [Y]. I read the story "My Donkey and I" as usual to [Y], who was almost asleep as the Police arrived.
The mother's version of events was put to the father in the course of cross-examination. The father admitted to taking the phone from the mother. Police records stated that on arrival police could hear Mr Tai verbally abusing Ms Bo and a child could be heard crying in the background.[20] Police advised the Department of Families, Fairness and Housing ("DFFH") they had attended the home, there had been a previous incident in 2015, and that that Mr Tai was interviewed and denied grabbing Ms Bo around the throat.[21]
It is uncontroversial that there is a hole in the wall in the family home and that the damage was done in early 2019. It is the mother's case that the father put the hole in the wall. The father disputes this, saying that while he caused the wall to crack, [22] it was the mother who created the hole by picking up a hammer and expanding it into a hole with a toy. He says he did not include these extra details in his affidavit as he didn't think it was necessary to mention it. In evidence in chief, the mother responded and gave evidence that she did not use any instrument such as mallet and said that after the father smashed a hole in the wall, the mother also smashed it, without any object, on the same hole.[23] She said she did so because she was upset too.
The father was asked about whether he thought the children had witnessed the violence and responded to the effect that it would have had minimal impact on them as they were very young. He was of the view the children wouldn't know about it, as long as no one had told them, as they were not there at the time.[24] However, in cross-examination, the father says that he felt ashamed and upset following the incident and was worried the children overheard. In his evidence before me, the father recounted feeling worried, uncertain, regretful and humiliated. He provided the following explanation as to the incident:

[88]

The father commenced these proceedings by an Initiating Application on 29 June 2020 seeking orders in relation to parenting only. The father sought orders, on a final basis, inter alia, for the parents to have equal shared parental responsibility (as it then was) for the children and that the children to spend week about time with the father throughout the school term and school holidays including time on special occasions.
The mother filed her Response to Final Orders on 29 September 2020 seeking orders, on a final basis, inter alia, for both parties to have equal shared parental responsibility for the children, the children live with the mother and spend time with their father on a week about basis from Saturday to Monday in week one and Saturday to Tuesday in week two (5 of 14 nights), half of school holidays and special occasions.
From 16 July 2020 until 4 November 2020, the father spent time with the children each week on Thursday and Sunday from 9:30am until 7:45pm.
At the first return date of the proceedings on 30 September 2020, both parties appeared in person and an order was made for the appointment of an Independent Children's Lawyer. Subsequently, Ms Trapski of Trapski Family Law filed a Notice of Address for Service on 14 October 2020.
Interim Parenting Orders were made by consent on 4 November 2020 providing for the children's time with their father to increase to each Wednesday night and Sunday night from 9:00am until the commencement of school on Monday.
The mother deposes to the children starting to refuse going to spend time with their father in early April 2021. She says that X returned from spending time with his father with a wound on his top lip, and when queried as to how he was injured, X had said that his father hit him because he did not go to sleep when his father asked him to. The next day, the mother reported X refusing to get out of the car during changeover and that following this incident, both children started telling her that did not want to go to the father's home.
The parties agreed to participate in a Family Dispute Resolution Conference, organised by the Independent Children's Lawyer, before the next interim hearing organised. The interim hearing was adjourned in Chambers on 8 April 2021 as the parties had yet to participate in Family Dispute Resolution Conference.
In the lead up to the parties' mediation, the mother filed an Amended Response to Final Orders on 22 April 2021, seeking property orders, such that she receive a lump sum payment of $101,605 from the father, that the former matrimonial home and the parties' investment property both be sold with the balance of the sale proceeds, after payment of commissions and costs, to be divided 70/30 in favour of the mother. She sought further orders for the sale of the parties' investment property in Suburb W.
On 29 July 2021, Judge Carter (as her Honour then was) listed the matter for final hearing with an estimate of three days, and for the preparation of a private family report. Further orders were made by Judge Kari (as her Honour then was) on 4 August 2021 in relation to the property proceedings, with the parties to attend a Family Dispute Resolution Conference at Victoria Legal Aid.
In accordance with Orders of Judge Carter, as her Honour then was, a Family Report was prepared by Ms FF dated 9 October 2021.

[89]

Ms FF prepared a Family Report dated 9 October 2021 and filed on 12 October 2021. X was aged 7 and Y was 5. Ms FF observed the children to be calm with the mother, consistent with their positive descriptions of her. Ms FF observed the children's behaviour with the father to be inconsistent - initially they hid from their father but then this turned into a game once the father entered the room, and the children greeted the father warmly. While they were content to sit down with the father to read a book, they returned to disrespectful behaviour, including calling him "stupid" and "poop face" Y began hitting her father, and the children were reluctant to say goodbye appropriately. Ms FF, on assessment of the parents and children, recommended shared parental responsibility, the children live with the mother, and spend alternate weekends with the father and one night a week in the alternating week. Ms FF recommended both parents participate in a parenting program, and Ms FF recommended the mother engage in counselling to assist her in "identifying how her words and behaviours within the home negatively impact the children's psychological and emotional wellbeing with their father".
Ms FF was not called to give evidence, but the father relies on her report, particularly paragraphs [69], [70], [73], [74], [85] and [86] to suggest that the children, prior to the sexual abuse allegations and subsequent cessation of time, had a strong bond with him. Counsel for the father submitted that the Court should have regard to Ms FF's report as historical context. Counsel submitted that the children have been exposed to excessive negative views of the father, and that those views have had an observable negative effect on the relationship with the father.
Those paragraphs relied upon by the father are as follows:
1. It appears that the children had been excessively exposed to negative views of their father from their mother, who openly spoken about their father in a wholly negative manner.

[90]

Children's relationships

As stated above, the children describe their father in wholly negative terms and similarly described positive attributes of their mother. [Y] openly stated that she and her brother liked their mother and did not like their father. The children discussed their parents in binary terms.

[...]

On the contrary, during the children's observation session with their father, both [X] and [Y's] behaviour towards him was inconsistent. At the beginning of the session, the children indicated that they did not wish to see their father and hid in the interview room. However, upon their father entering the room, this quickly turned into a game, and the children were very happy to be found and greeted their father warmly.

The children's behaviour towards their father continued to fluctuate throughout their short observation session. At times they were rude and disrespectful towards him, often ignoring or flouting his direct requests of them. They also appeared comfortable sitting down with their father [with a] Chinese book, where they chatted and laughed for approximately 10 minutes. At the end of the observation session, the children once again returned to their rude and disrespectful behaviour towards their father, with the children referring to their father as "stupid" and "poop face." Additionally, [Y] began hitting her father, and the children were reluctant to say goodbye to him in an appropriate manner.

[...]

This assessment has highlighted that the children's relationship with their father has been negatively impacted, most likely by the violence they experienced in 2019, but also by the current ongoing denigration of their father they experience within their mother's home. The children appeared to be receiving mixed messages which were evidence in their inconsistent behaviours towards their father. [Y], in particular, was observed to hit her father and refer to him using disrespectful words and terms, and yet she reported that she feels unsafe in her father yells at her when she is "naughty." It is noted that [Y]'s disrespectful and violent behaviour towards her father would not be deemed as acceptable behaviour within the classroom and possibly unacceptable towards her mother and maternal grandparents. Despite the above, she seems to believe that being disrespectful towards her father is appropriate due to his reported poor character.

As [Ms Bo] is seeking that the children spend additional time with their father rather than reduced time with him, one can assume that she does not hold significant safety concerns for the children within their father's care. Consequently, it is essential that the children are protected from the ongoing denigration of their father within their mother's home for their ongoing emotional and psychological wellbeing. It is further suggested that [Ms Bo] engages in personal counselling to assist her in identifying how her words and behaviours within the home negatively impact the children's psychological and emotional wellbeing with their father.

[98]

DFFH closed their investigation in February 2022, noting that there is "no identified ongoing role for Child Protection" at that time, given that there "...is insufficient information to suggest the children are being placed at immediate or significant risk of harm, given they remain in the care of their mother. There are family law court proceedings in place whereby decisions can be made on the children's contact with their father and ensuring this occurs in a safe way. Community support services remain in place including AB Counselling Centre, the Orange Door and the children's schools, who can report to Child Protection in the future if required."
On 2 June 2022, Judicial Registrar Altavilla made orders designating the matter Magellan and transferring the matter to Division 1 of the Federal Circuit and Family Court. A request was made for the Department of Families Fairness and Housing ("the Department") to prepare a Magellan Report to the Court following which such report was released for inspection only by the parties by Chambers Order made on 7 July 2022.
When the matter came before Judicial Registrar Altavilla for a directions hearing on 11 July 2022, it was adjourned to a procedural hearing with a Notation to the Order stating that the purpose of the adjournment was to enable SOCIT to conclude its investigation.
On the adjourned date, 8 August 2022, interim consent orders were made for the father's time to be "professionally supervised", facilitated by Family Contact Service, each Monday between 4:00pm and 7:00pm and such other times as agreed between the parents. The matter was listed for an interim defended hearing in November 2022 to re-evaluate the father's supervised time with the children and whether that time progress to being unsupervised. Further, the parents agreed to engage with Ms M for family therapy for the purposes of reintroduction of the time between the children and their father. Ms M recommended the therapy to be undertaken by psychologist, Ms B.
Ms B was engaged by the parents from September 2022 as a counsellor for Y in relation to her disclosure of sexual abuse. An Interim Order dated 16 November 2022 provided for Y to continue to engage with Ms B, with the parents to share the costs of the therapy and follow reasonable directions and recommendations of Ms B.

[102]

In accordance with Interim Orders dated 15 February 2023, the parents and children (X aged 9 and Y aged 7) attended upon Ms C for the preparation of a Magellan Family Report. At the time of the assessment, Court orders provided for X to spend supervised time with his father, each Monday for 3 hours and that Y spend no time. The Magellan Family Report was released to the parties on 9 June 2023.
The family report writer observed the father to be polite, cooperate and engaged in the interview process in a meaningful way. The family report writer observed the mother to be polite and cooperative and engaged in the interview process.
At the assessment, the father proposed two options, neither reflective of his formal application, with the first option for him to have sole parental responsibility for the children, both children live with him and spend time with their mother once a week. The father's second proposal was that both parents have equal shared parental responsibility and spend equal time with each parent. This was subject to the mother engaging in counselling to identify her behaviour that has had a negative impact on the children and his relationship with them. The mother told the family report writer that she sought orders for the children to live with her and that X spend only supervised day time with his father and Y spend time with her father, only if she wishes.
In the Magellan Family Report, Ms C reported on the risk of family violence:
1. [Ms Bo] alleged [Mr Tai] perpetrated physical family violence, where the first incident occurred in 2014, when [Mr Tai] allegedly slapped [Ms Bo] across the face in the presence of [X], who was an infant at the time. The second physical family violence incident occurred in March 2019, where both parents reported having an argument that resulted in the maternal grandfather becoming involved. [Ms Bo] alleged that [Mr Tai] forced his hand/arm across her throat and then kicked the maternal grandfather in the groin and forced his hands/arm across his neck resulting in scratches to his neck. [Ms Bo] reported she contacted the Police from the maternal grandmother's phone as [Mr Tai] had removed both phones from her.
2. [Mr Tai] alleged that the maternal grandfather physically assaulted him and had previously assaulted him on one other occasion. [Mr Tai]'s narrative was focused on the maternal grandfather's alleged assault of him. Both parents reported the police applied for an Intervention Order (IVO) where [Mr Tai] was the respondent and [Ms Bo], [X] and [Y] were the protected persons. Both parent's acknowledged that the children would have had some exposure to this incident.

[104]

With respect to the alleged sexual abuse of Y and concerns of exposure of the children to family violence perpetrated by either parent, Ms C reported:
1. [Ms Bo] alleged that [Mr Tai] has sexually abused [Y] after disclosures to her by [Y] and disclosures to psychologist, [Ms B]. [Mr Tai] denied having sexually abused [Y] and alleged that [Ms Bo] has influenced and coached [Y] to make sexual abuse allegations against him. The s67ZW report from Department of Families, Fairness and Housing dated [...] January 2023 reported seven reports from March 2019 to December 2022. Reports included: [X] and [Y]'s exposure to family violence perpetrated by their father in March 2019 where both parents were arguing and [Mr Tai] grabbed [Ms Bo] by the throat and pushed her against the wall and threatened to hit [Ms Bo] with a wooden toy. Child Protection reported that police attended and issued a full exclusion IVO. Police had interviews with [Mr Tai] who denied grabbing [Ms Bo] around the throat.
2. Further reports included reports in relation to historical family violence perpetrated by [Mr Tai] towards [Ms Bo] and the maternal grandfather, [Mr Tai] was sighted to be rough with [Y] when he forced her to hug him and held her extremely tightly.
3. Child Protection undertook a Protective Intervention in January 2022 to February 2022 with regards to a report in relation to [X] and [Y] being at a risk of sexual harm in [Mr Tai]'s care, where [Y] had disclosed that during spend time with [Mr Tai], he sexually abused her whilst believing she was asleep. The Sexual Offences and Child abuse Investigation Team (SOCIT) investigated where [Y] had made clear disclosures of ongoing sexual abuse by [Mr Tai] each time she spent time with him. [Ms Bo] was reported to act protectively by ceasing time between [Mr Tai] and the children and was agreeable to engage [Y] with [AB Counselling Centre]. [Ms Bo] also agreed to engage with The Orange Door (TOD) due to the alleged family violence. Child Protection interviewed [Mr Tai] who refused to comment on the allegations made against him. Child Protection substantiated the protective concerns on grounds of child sexual and emotional abuse and assessed [Mr Tai] as responsible for harm.
4. Child Protection received a report in June 2022 that [Ms Bo] attempted to alienate the children from [Mr Tai] by attempting to reduce spend time between [Mr Tai] and the children and following [Y]'s disclosing sexual abuse in January 2022. These concerns proceeded to Investigation. Child Protection ascertained that [Mr Tai] had been charged with unlawful assault in 2019 following a family violence incident, involving Y and the maternal grandfather.
5. A report was received in relation to the children being at risk of sexual harm in [Mr Tai]'s care. [Y] had previously disclosed sexual abuse by [Mr Tai] and that a SOCIT investigation had commenced in January 2022 however closed in August 2022 given lack of evidence. It was reported [Y] refused to speak with SOCIT a second time given she was uncomfortable in relation to all the questions about [Mr Tai]. A secondary report was received in relation to [Y]'s clear and detailed disclosure of ongoing sexual abuse by [Mr Tai]. It was reported [Y] had disclosed digital penetration by [Mr Tai] during a therapy session with her psychologist
6. The case was closed at Intake given [Y]'s ongoing disclosures were in relation to historical sexual abuse. Whilst Child Protection were concerned about the emotional impact that spend time with [Mr Tai] would be having on [Y], the spend time was supervised and the Family Court was currently involved regarding making parenting arrangements.
7. [Ms Bo] stated that [X] does not fully understand what has occurred in relation to [Y] although, [Y] had recently disclosed to him about the alleged sexual abuse. [Ms Bo] reported that both children had expressed to her that [Mr Tai] inappropriately disciplined them by putting them on the outside deck, in the cold with just their underwear and tops on to punish them for what he perceived as misbehaviour.
8. [Ms Bo] stated that the children had informed her that [Mr Tai] had allegedly told them that she does not like the children, and what has happened is all their mother's fault.
Ms C considered the different views held by the parents as to the needs of the children. She reported the father presented as focused on his views, insisting that he had not harmed the children in any way, specifically he had not sexually abused Y or inappropriately disciplined the children. His primary narrative was that the mother has negatively influenced the children's views about him and "alienated" the children.[27] Ms C reported that the father demonstrated minimal to no insight into the children's past experiences of family violence and parental conflict and the trauma the children may have experienced as a result of their exposure to the family violence incident between their parents and grandparents.
In response to Y's disclosure of alleged sexual abuse by her father, to her mother, Ms B and Ms C during the assessment, Ms C reported that the father denied these allegations and demonstrated minimal to no insight into how Y may have formed her own views and belief that he has sexually abused her, and why she currently does not wish to spend time with him. Ms C further reported:

[108]

In her evaluation, the family report writer states that, if the Court accepts the mother's account of family violence, emotional violence and coercive controlling behaviour by the father, then the father has demonstrated a pattern of behaviour and parenting decisions where he has placed his own needs above that of the mother, the children and the maternal grandparents. Moreover, should the Court determine that the children were exposed to family violence, than the children's current reported experience confirms that they have internalised to some degree, their father as not being a safe person to spend time with.
Ms C considered that should the Court determine that family violence has occurred, then the father's two proposals would not be appropriate and the children would benefit from the mother having sole parental responsibility. In relation to the father's proposals for spend time arrangements, Ms C opined that the father failed to take into account that the children have been in the primary care of their mother since separation and demonstrated no insight into the negative impact on the children should they be separated from their mother or spend considerably less time with her.
In considering the alleged sexual abuse by Y, Ms C reported:
1. If sexual abuse has occurred, then [Y]'s response to not wanting to spend time with her father would be an appropriate response of attempting to avoid contact with a caregiver who has made her feel unsafe. Children who experience sexual abuse by a parent, can feel confused, angry and anxious as they attempt to reconcile how an adult who has cared and protected them, has also made them feel uncomfortable or unsafe. If abuse has occurred, ongoing denial by the abuser can cause further emotional harm to the children. [Mr Tai]'s refusal to acknowledge that [Y]'s experience with him felt unsafe for her, suggests a lack of attunement to her needs, regardless of whether or not sexual abuse has occurred. In such circumstances, for [Y] to benefit from spending time with her father, [Mr Tai] would need to both acknowledge his behaviour, and meaningfully engage in appropriate treatment in order to ensure he is able to respond to her needs in an appropriate and child focussed manner.
2. Should the Court determine that sexual abuse has occurred than [Mr Tai]'s proposal for sole or shared parental responsibility would not be appropriate given he has made decisions to sexually abuse [Y] and violate her boundaries, breached her trust and likely caused a level of trauma. Hence, the children would benefit from [Ms Bo] having sole parental responsibility. Again it would not be appropriate for the children to live with [Mr Tai] and both children should continue living with their mother in order to maintain their current level of stability, safety and security. Despite what both [X] and [Y] have been exposed to or experienced to date, they have continued to thrive developmentally, be engaged at school and extra-curricular activities and have positive peer relationships whilst having been in the primary care of their mother.
3. The writer has noted that given both [X] and [Y]'s young age they are unable to fully protect themselves at this age and stage of their development. The children require an adult to assist them not only with daily caregiving tasks, but also to assist them to make sense of the world and keep them safe. Hence, should the Court lend weight to the possibility that sexual abuse has occurred, both children will require, additional safety measures such as, no spend time between [Y] and [Mr Tai] and supervised time between [X] and [Mr Tai] to mitigate any potential risks for them. The Court may wish to consider supervised time either four times per year for the purpose of identifying [Mr Tai] as his father, or no more than six times per year to maintain a relationship with [Mr Tai] that does not place an emotional burden upon [X].

[110]

Ms C also considered the possibility that sexual abuse had not occurred, and Y's disclosure was a result of purposeful coaching or influence by the mother. However, she noted that the Y's disclosure to Ms B were reported as genuine and authentic and when asked by the family report writer during assessment, Y's responses appeared to be in her own words, and language consistent with her developmental age. Ms C noted that:
1. [...] It was not surprising to the writer that [Y] did not go into specific detail during her interview given she had just met the writer and not developed a level of trust, as she has with her psychologist. [Ms B] stated that as [Y] felt more comfortable and developed more trust, the more detail she disclosed about her experience of sexual abuse. This is typical of victim-survivors of childhood sexual abuse, when initial disclosures are often incomplete due to the anxiety of the victim-survivor of how they will be received.
2. The writer noted that [Y] provided detailed contextual information when she disclosed to her psychologist, [Ms B], that included details such as, her father allegedly touching her vaginal area and that she pretended to be asleep at the time. [Y] also pointed to her vaginal area during the interview with the writer, when she disclosed that her father had allegedly touched her. [Y] appeared to describing her own lived experience and from her perspective in words consistent with her age and stage of development.
3. For this to be fabricated would require a level of sophisticated cognition, which is not congruent with [Y]'s age and stage of development. There is also the possibility that the experience described by [Y] was a misinterpretation of [Mr Tai]'s actions at the time, however this seems unlikely given the level of discomfort reported by [Y] during the concerning interactions between her and her father. The description of the events suggests that [Y] was vulnerable and frightened and recognised that pretending to be asleep was likely to offer her more safety than protesting. Three year old children are learning to voice their displeasure with decisions and actions by adults and caregivers and this is often expressed with intense emotional responses. [Y]'s responses to actions by [Mr Tai], regardless of whether they were sexually abusive or not, suggests a child who is fearful of the repercussions of disagreeing with her father. Regardless of whether the sexual abuse allegations can be determined as true or not, [Y] has internalised her experiences with her father as having made her feel uncomfortable and unsafe with him. Consequently, not wanting to spend any time with her father.

[111]

[...]

Although, [Y] articulated clearly she did not wish to spend time with her father, forcing her to do so would not be beneficial, regardless of whether the Court determined sexual abuse has occurred or not, as she currently does not feel safe to spend time with [Mr Tai]. If [Y] were forced to spend time with [Mr Tai] she would likely experience further trauma, distress, anxiety and confusion due to her internalised experiences of feeling unsafe, thus her feelings and experiences with adults she has trusted would be disregarded and invalidated. This would subsequently, negatively impact [Y]'s capacity to trust and build close intimate relationships into her adolescence and young adulthood.

Although [X] has expressed a wish to continue spending time with his father, as per the current arrangements, he also does not have the developmental maturity to fully understand the complex dynamics of the alleged abuse. The children currently have separate spend time arrangements with their father. [Ms Bo] reported up until recently [X] was unaware as to why [Y] did not spend time with [Mr Tai]. [X] having recently been informed by [Y] directly about the sexual abuse allegations, has likely placed a further emotional burden upon [X]. [X] reported feeling upset as to why [Y] had not told him earlier about the sexual abuse allegations, and he has demonstrated care and protectiveness towards his younger sister, consistent with the observations where [X] demonstrated his caring nature by attending to [Y]'s sore eye.

[X] has likely been attempting to reconcile his own experiences whilst being the older sibling. His own experiences of exposure to family violence, as both an infant and later childhood when the police attended the family home and subsequent parental separation, has likely disrupted his relationship with his father. In addition, [Mr Tai]'s lack of willingness to take full responsibility for his own decisions and actions, would further reinforce [X]'s lack of full trust in his father.

[112]

Based on her assessment, Ms C recommended that the children continue to live with the mother, the mother have sole parental responsibility for the children, Y to continue counselling with Ms B to support her wishes for any future spend time between her and the father and a consideration for X to also attend upon Ms B. Ms C recommended no time with the father and, should Y express a wish to spend time with the father, that only commence when the father is engaged in therapy. If the Court makes a finding of unacceptable risk, then the father engage in treatment regarding sexual offending and/or family violence. There were recommendations for the mother to also have individual counselling that addresses her past experiences that includes her past relationship with Mr Tai.
The father's version is that he recalls that on or around 30 June 2023, X was "unexpectedly reluctant" to spend time with him but improved over the course of the visit. He stated that he rewarded X for his (and Y's) progress at school with two Roblox gift cards. The father's time with X concluded in September 2023, after the supervised time scheduled was cancelled due to X refusing to get out of the car. It was put to the father to consider the possibility that X thinks that Y had been sexually abused by the father. The father did not accept the proposition and stated that X's views were that of a child and there was no credible report from a professional psychologist. He argued that X did not express this view in the SOCIT interview in early 2022 nor in the first Family Report but over the course of three years and in considering the children's perspective, the Court "consider the maturity of the children, how they understand the concept of sexual abuse, how much external influence they are subjected to, the lack of report from professionals and psychologists who have experience in this area" and concluded that "they (the children) don't have a real understanding of it".
At the Conciliation Conference in July 2023, the Orders of Judicial Registrar Russell included Notations which stated:
1. On 5 July 2023 the parties participated in a Court based Conciliation Conference with Judicial Registrar Russell and reached an in principle agreement to finalise all financial matters before the Court. The parties require time for drafting of the Minute of proposed final financial Orders for consideration by the Judicial Registrar in Chambers.

[123]

On 30 January 2024, the matter was listed for a case management hearing before me wherein I made orders relisting the matter for final hearing to 2 December 2024, with an estimate of nine days to determine both parenting and property matters. I was informed that Y was no longer attending any form of therapy despite her disclosures of sexual abuse. Y had attended Ms B for 6 sessions in 2023 under a mental health plan from Y's general medical practitioner. The mental health plan was confined to six sessions. At the conclusion of these six sessions, neither parent sought an extension or variation of the mental health plan to accommodate further subsidised sessions, and Y's treatment with Ms B ceased. X had not seen a psychologist.
I further listed the matter for an interim hearing on 15 April 2024 for the purposes of hearing from Ms B and Ms C, Family Consultant, to obtain their views as to whether the children required ongoing intervention and the most appropriate way forward in terms of the social science assessment for the defended hearing.
The interim hearing was relisted to 11 July 2024 as a result of judicial unavailability. In his Case Summary Document, the father put a proposal seeking the family enter a six-week private program for families facilitated by Ms D, Mr E and Dr F. I dismissed this proposal. It was a program called L Counselling.
Following the interim defended hearing on 11 July 2024, I made an order for the parents and children (X aged 10 and Y aged 8) to attend upon Ms C for the preparation of an Updated Magellan Report. At this assessment, X had not spent time with the father from September 2023. Y had not spent any time with the father as her time had been suspended in November 2022. Orders were made for the children to continue attending upon Ms B, psychologist, and that a Mental Health Care Plan be obtained to cover those costs. I delivered ex tempore reasons and incorporate those reasons into this decision: Tai & Bo [2024] FedCFedC1F 474.

[125]

The Updated Magellan Report dated 22 October 2024, in short, recommended the mother have sole decision-making authority for the children's health and education and for the children to reside with the mother. If the Court makes a finding that sexual abuse and/or family violence has occurred, Ms C recommended that the father's time be reserved. If the Court determines there was no significant or unacceptable risk to the children spending time with the father, it was recommended that the children engage with counselling and the father engage with therapy, before spend time is considered.
At the second assessment by Ms C, the father's proposal remained that the children live with him, however, he proposed that the children's time with the mother be suspended for a four-month period and she subsequently commenced supervised time with the children. The mother's proposal remained that she have sole decision making about the children's health and education that that the children live with her. No observations between X and the father took place, as X had clearly stated during his interview that he did not wish to see his father, that he did not feel safe with him and had not spent any time with him since the end of 2023. No observations took place between Y and her father.
Ms C reported that the father's narrative remained relatively the same as at the first assessment. It focussed primarily on his belief that the mother continued to negatively influence the children to make false allegations against him and to discourage spend time with him. Ms C stated:
1. [Mr Tai] explained he consulted with a number of professionals and had completed other courses in an attempt to understand how and what had changed in his relationship with the children, in that they did not wish to communicate or spend any time with him. [Mr Tai] stated he had completed a Triple P Positive Parenting Program [in] 2023 and an online [...] Training Course for professionals. [Mr Tai] believes that after the parental separation and in the context of high parental conflict the children have likely experienced [Ms Bo]'s negative emotions about him. As such he alleged that the children have experienced a level of psychological abuse by her whereby, she has influenced the children to make false allegations against him, that is, that he had sexually abused [Y] and inappropriately disciplined the children. [Mr Tai] believed that [Ms Bo] had asked questions continually of the children as to where they slept at [Mr Tai]'s house and whether [Y] had used her own quilt that [Ms Bo] had given her to take to his house.
2. [Mr Tai] repeated his denial of having sexually abused [Y] and explained that either [Y] or [X] would sleep with him in his king size bed and the other child would sleep in the other bedroom, in a queens size bed at their request. [Mr Tai] expressed his concern that if he does not spend any time with the children in the future that they will have questions, such as, "did my father sexually abuse me?" or "did my father physically abuse me?"

[129]

In contrast, Ms C reported the mother to have a strong understanding the children's needs and has an ongoing capacity to respond and attend to the children's physical, emotion, social and learning needs as evidenced by the children attending school regularly and both performing well academically and socially. During cross examination by the Independent Children's Lawyer, Ms C further noted that the mother's actions indicate that, when Y made the sexual abuse allegations, she continued to facilitate time, had understandable questions, did not know how to respond and was working through her own trauma response. Ms C assessed the mother's intention was to do what she thought was right to protect the children in the face of very "uncomfortable allegations" and noted a cultural overlay that made it particularly difficult and challenging to talk and think about the possibility of Y having been sexually abused as described.
In her evaluation, Ms C re-iterated her evaluation of the father, insofar as his fixed perception that the children's relationship with him has been obstructed and fractured by the mother's behaviour and influence on the children. She expressed that if the father continues to minimise his behaviour in relation to the children being previously exposed to family violence, that this would likely contribute to the fractured relationship he has with the children and their sense of fear of him. Ms C further commented on the father maintaining his belief that the mother had influenced Y to make false sexual abuse allegations following SOCIT having closed its investigation. Ms C opined that this demonstrated the father's inability to validate and acknowledge how this situation has impacted Y and how it will also likely impact Y's ability to recover and heal from her experiences. She reported that the father has appeared to become increasingly fixed in externalising of blame for Y's disclosures of sexual abuse, on the mother and her behaviours rather than any actions by him.
In cross examination by Counsel for the mother, Ms C commented on the importance of Y (and X) being believed and understood, in this case, by the father. She noted that as long as the father maintains his current view, then the children would be unlikely to change their current mindset about their father. She envisioned, should the Court consider any future reintroduction of time, that the father would have to demonstrate a sufficient level of insight and development and recognize the significance of the children's beliefs about their father. When asked to expand on such beliefs, Ms C stated that separate from the allegations of sexual abuse, the children were already exposed to the coercive and controlling behaviour of their father and their own experience of his discipline. She noted that while the father has completed his parenting course, she assessed that there was still a level of minimisation by him of his actions.
Based on the updated information and assessment conducted, Ms C recommended that the Court may wish to consider the mother have sole decision making regarding the children's health and education and that the father may obtain school reports and/or information regarding any significant health or medical issues about the children. It was recommended that the children remain living with the mother and that if the Court determine that either sexual and/or family violence has occurred, the children's time with their father be reserved. If the Court were to determine no significant or unacceptable risk to the children spending time with the father, Ms C recommended that the father and children engage in counselling before any consideration of re-introduction of time occur. In short, Ms C's recommendations from the previous report were unchanged.

[133]

Do you agree that you told Mr - the counsellor that?

THE WITNESS: It's the first time I read it. Can I read it first? So - - -

MR SMITH: I don't object to you reading the document.

THE WITNESS: "Mother believes that due to [Y]'s young age and innocence, in regards to being capable of understanding what her father has allegedly done to her, she's not exhibiting any obvious impacts from the abuse...."

Yes.

MR SMITH: Do you agree that you told the counsellor that?

THE WITNESS: Yes. I don't think [Y] understand what happened to her.

MR SMITH: But you did tell the counsellor on that day what you've just read out?

THE WITNESS: This is - no, this is not my - some of the English words - it's the first time I read it, so this is not exactly what I told her, but this is - express what I want to - to tell her.

MR SMITH: And that - and you wanted to tell her that because it was true; do you agree with that?

THE WITNESS: Because of true? What do - - -

MR SMITH: That was the truth?

THE WITNESS: This is the truth, or, sorry, what - what is the truth?

MR SMITH: Yes. What you told the counsellor - - -

THE WITNESS: yes.

MR SMITH: - - - was true?

THE WITNESS: Yes.

MR SMITH: And also you told the counsellor that since not visiting their father, both [Y] and [X] were exhibiting oppositional traits towards you?

THE WITNESS: No. No.

MR SMITH: You disagree?

THE WITNESS: No.

MR SMITH: You say - - -

THE WITNESS: No.

MR SMITH: - - - that you didn't say anything like that?

THE WITNESS: No.

MR SMITH: You didn't tell the counsellor that [X] and [Y] were rebelling against you, being difficult towards you, because they were no longer seeing their father?

THE WITNESS: No. Actually, they already started to complain to visit their father, so this time, they didn't complain to me they didn't see the father at all.

MR SMITH: Sorry, I didn't understand - - -

THE WITNESS: So -

MR SMITH: - - - [Ms Bo]

THE WITNESS: So before the disclosure of the sexual abuse incident, the children already expressed sometimes they don't want to go to the father's place already. So when the incident happened and the children stopped visiting him, they didn't complain and exhibiting oppositional traits towards me.

MR SMITH: So you deny that at any stage did [Y] and [X] ever exhibit any oppositional traits because they were no longer seeing their father?

THE WITNESS: No.

HER HONOUR: Do they customarily exhibit oppositional traits?

[...]

MR SMITH: Again, you said that they did not act too much abnormal. Did they act a little bit abnormally?

THE WITNESS: What should I say? I should say I didn't feel difference.

MR SMITH: Well, you said that they were - you suggested that there was some difference in their behaviour. Are you now saying there was no difference?

THE WITNESS: I'm recalling, so when they stop visiting [Mr Tai], they didn't behave abnormal. They behaved as normal.

MR SMITH: So they just accepted that they were no longer seeing their father, and they were content about that, were they?

THE WITNESS: They do ask why. Only speaking - very hard for me to explain as well.

MR SMITH: And they didn't express any - at all that they wanted to see him; is that your evidence?

THE WITNESS: They ask me why they couldn't see the father - why - why they stop visiting the father. They do ask me, but they didn't express any - any - or have any madness or whatever.

[135]

Ms B was engaged by the parents from September 2022 as a counsellor for Y in relation to her disclosure of sexual abuse. An Interim Order dated 16 November 2022 provided for Y to continue to engage with Ms B, with the parents to share the costs of the therapy and follow reasonable directions and recommendations of Ms B. On 11 July 2024, I ordered that the children return to Ms B but they did not attend until September 2024.
Ms B did not write a report but was subpoenaed by the Independent Children's Lawyer and gave evidence by way of MS Teams during the hearing. Ms B's notes in relation to her therapy with Y (and X) were subpoenaed and produced to the Court on 16 November 2023. She is a qualified paediatric psychologist in private practice. When initially called, Ms B indicated that she had not read Ms C's Magellan Report dated 8 June 2023 and Updated Magellan Report dated 22 October 2024 but had read Ms FF's Family Report dated 29 July 2021. I directed that Ms B to review the two reports prepared by Ms C and the VARE tapes before giving evidence to the Court and to say whether any part of her assessment has changed.
Ms B assessed the children in September 2024. She had two appointments with Y on 19 September and 11 November 2024 which included the assessment. When asked by Counsel for the father to provide specifics dates of her sessions with the children, Ms B outlined six sessions in late 2022, two sessions in early 2023 and the two sessions in late 2024.
Ms B assessed the effects of the allegations on the children and noted their levels of distress and anxiety. She found that the levels of stress and anxiety were within normal limits for both children. When looking at the effects of the allegations on the children, Ms B reported X was experiencing psychological distress around not having protected his sister and feeling like he could have prevented what he believed had occurred at the time. She described X as confused around his role in the family, and that he took on the role of the older brother being "more of a parental care role and wasn't able to do that in dad's care". She further reported that X is distrustful of his father and aggravated about not being told the truth by his mother, being told that his sister was at music lessons so could not see the father, and frustrated that his mother hadn't told him the truth. Ms B reported X was more engaged with her than she expected. Ms B noted: -

[137]

Ms B further noted that X reported telling his peers that his father no longer lives with them but that he was aware Y was saying that she did not have a father, and he would start to say the same if people asked where his father was.
With respect to Y, Ms B reported that she presented as relatively happy and unbothered but it became clear that she was having some attachment disorder issues, including a fear of abandonment by her mother, worrying about what would happen to her if her mother died and if that would mean she would need to return to the care of her father. Ms B noted Y had some intrusive memories and flashbacks that she had said occurred around bedtime and eating, as food was how she connected with her father. She noted Y's language use was more deliberate insofar as she was aware of the proper language around her genitals, including using the word "vagina" over "pagenta" and being able to correctly identify her basic anatomy. Y reported her teacher had covered some of this in the classroom including basic "consent classes".
Ms B's assessment of Y was that she will experience self-image and self-esteem issues and that she held concerns about Y's "relationship challenges" and the emotional impact that this would have on her but, otherwise, that she had no school refusal and had positive friendships at school. Y displays avoidance of the topic (alleged sexual abuse and/or her father). When asked to elaborate on this evidence, Ms B reported concerns about Y's future relationships and an attachment disorder including insecure attachment with her mother reporting an "enmeshed and strong attachment to her mother", who is the most meaningful person in her life, fear of abandonment by her mother and Y's increasing vulnerability to people who may hurt her. Ms B reported that Y often asked about who would look after her if her mother died and that Y needed to be re-assured she would not be placed in her father's care. She noted that the children were extremely attached to the maternal grandparents but had identified that their grandparents were old and couldn't take them places. She reported X asked about the foster system if their mother was unable to look after them. Ms B considered X's reference to foster care to be unusual but not surprising.
Ms B rejected any suggestion that Y's insecure attachment was created by the loss of her father.
Further concern was expressed with regard to Y's sexual development with Ms B noting that Y may experience either "premature sexualisation, or an avoidance of any kind of sexual behaviour when it's introduced to her at an age-appropriate time." Ms B opined that Y would experience relationship challenges and trust of authority or adult figures. She ultimately noted: -

[141]

Counsel for the father put to Ms B whether a medical condition such as a rash affecting her vulva and vaginal area that Y had in 2019 and 2021 would impact her assessment of Y's understanding of her genital anatomy and, relatedly, whether the sexual abuse occurred. Ms B stated she could not answer that as she was not aware of any information about Y's medical condition. I asked Ms B to consider if the alleged sexual abuse did not occur, what would be an alternative explanation for Y's disclosure. Ms B was unsure and commented that if it did not happen, giving Y was four years of age, she would not even know that fingers can be inserted into a vagina. She agreed that if Y's disclosures had been false, then it would be unlikely that Y would give a consistent account of it years later. When asked if there was any risk to Y by virtue of being treated for sexual abuse, which may not have taken place, Ms B commented "I don't know because in Y's mind and presentation it has taken place."
Counsel for the Independent Children's Lawyer asked Ms B to consider whether Y's exposure to the conflict between her parents could be a motivation to make untrue disclosures. Ms B did not consider this but noted that the high level of conflict occurred towards the end of the relationship so did not consider there to be ongoing conflict that Y was exposed to. She noted that the children often raised one incident, that is, the assault of their grandfather. Furthermore, Ms B conceded that, while there was negative attitudes towards the father in the mother's household, this was insufficient to explain Y's disclosure and reluctance to spend time with her father.
I asked Ms B to consider whether the children ever reported observing any behaviour that could constitute as coercive controlling behaviour by either parent. Ms B noted that X reported observing occasional arguments, about his mother was working long hours. I accept that the children were aware of the conflict between their parents and in the household.
When asked by Counsel for the Independent Children's Lawyer as to her view about the children's ongoing and future treatment as at the time of her assessment and as at the final hearing, Ms B noted:

[147]

On 1 March 2025 the father filed an Amended Application in a Proceeding seeking, in addition, that there be a "remediation assessment report" on the family reports in evidence, to identify "possibility of Child Psychological Abuse (Parental Alienation) and analyse if any, its impact on the children's perceptions and overall well-being." He seeks that the costs of the report be paid by Victorian Legal Aid, or, in the alternative, be borne equally between the father and mother. The application was supported by a further affidavit of the same date.
The father says that new evidence emerged during cross-examination that justifies reopening the evidence to consider expert analysis. He particularised that "new evidence" as being:
- [Ms C]'s conflicting reports and failure to explain inconsistencies
- Contradictions between [Ms C's] findings and external expert evidence, including SOCIT, child protection services, and forensic psychologists
- Failure to analyse alienation behaviours and their impact on the children's attachment to their father.
The mother filed a Response on 17 March 2025 opposing the re-opening of evidence. She filed a supporting affidavit of the same date. She sought an order that could be construed as a vexatious proceedings order, but when asked in Court whether her intention was to re-open her case to pursue that Order, she subsequently withdrew it.
The Independent Children's Lawyer filed a Summary of Argument on 17 March 2025, also opposing the father's application and seeking costs fixed in the amount of $1,060.
The matter was set down for 19 March 2025 and heard on that date. The mother and father both appeared in person and Ms VV appeared as the Independent Children's Lawyer.
The father filed a Summary of Argument on the morning of 19 March 2025, 30 minutes before Court was due to commence. I read that Summary of Argument during the hearing.
The reopening of parenting proceedings following a concluded hearing which is awaiting judgment is set out by McClelland DCJ in Saracuna & Siddele (No. 4) [2023] FedCFamC1F 166. The Court ought to have regard to:

[156]

Section 60CC(2) requires the Court to consider:
- arrangements that 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 will have parental responsibility to provide for the child's 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.
In considering those matters, the Court must consider 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.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful. Examples include :
- an assault; or
- a sexual assault or other sexually abusive behaviour; or
- stalking; or
- repeated derogatory taunts; or
- intentionally damaging or destroying property; or
- intentionally causing death or injury to an animal; or
- unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
- unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
- preventing the family member from making or keeping connections with his or her family, friends or culture; or
- unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence. Examples of exposure to family violence include (s4AB(4)):
- overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
- seeing or hearing an assault of a member of the child's family by another member of the child's family; or
- comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
- cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
- being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In Isles & Nelissen [2022] FedCFamC1A 97 the Full Court reviewed legal precedents regarding risk assessment in parenting cases, particularly in relation to the standard of proof required when assessing the future risk of harm. At [50] to [51] the Full Court noted and endorsed as being a correct statement of law, the following:-

[157]

[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")).

[161]

...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.

[183]

Counsel for the mother submits that a finding should be made that the father has sexually abused Y. In support of that proposition, Counsel submitted that there were no other plausible explanations available on the facts as to Y's disclosures. Counsel said that to the extent the father imputes that the mother has coached the children, it was put to the mother that she had directly or indirectly influenced Y to make disclosures by telling Y she would buy her a treat after her second VARE interview. I do not accept that the promise of a treat constituted an inducement to Y to make a statement to the effect that she had been abused by the father. As Y did not make any disclosures in that interview, any purported inducement by the mother for Y to talk to the police about child abuse was ineffective anyway.
Counsel for the mother submits there is no evidentiary basis upon which the Court could infer that the maternal grandparents coached Y to make disclosures. In circumstances where the maternal grandparents resided in the matrimonial home and, on both of the parents' evidence, have expressed negative views about the father which ultimately led to an assault in early 2019 between the father and maternal grandfather, I expect that they could have given evidence relevant to the dynamic within the household leading up to separation and surrounding Y's disclosure of sexual abuse. The mother did not rely on any evidence from her parents in circumstances where they have lived with the children, cared for them and were readily available to give evidence. I have to infer that their evidence would not have assisted the mother (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298).
Likewise, Counsel for the Independent Children's Lawyer submits that it is open to find that the sexual abuse occurred. Counsel submitted that the evidence suggests Y's disclosures were repeated, compelling, consistent and age appropriate. Counsel for the Independent Children's Lawyer also submits that there is no innocent explanation for some of the statements including the child's allegation that the father put his hand over her mouth and that abuse was perpetrated in the shower (where the father's evidence was that he had never showered with Y). Counsel submits that in those instances in particular it is difficult to see how there could have been some form of misunderstanding. However, Counsel says that the finding does not have to be made as unacceptable risk is established on the second limb of the test.
In his written and oral evidence before me, the father disputes the allegations as follows:

[189]

With respect to the mother's belief that Y had been sexually abused, the father stated he could not answer the question however based on his knowledge, the mother has in the past make similar allegations "like in the past said I sit too close to my sister". He did not elaborate or perfect a point.
Counsel for the father submits that the sexual abuse alleged did not happen and no finding of abuse having occurred should be made. Counsel submitted that the disclosures were made in circumstances where Y had knowledge of the mother's dislike for the father, she had been exposed to the negative views of the maternal grandparents, and the mother had asked leading questions of Y during her disclosure (notwithstanding that this was not put to the mother in cross examination). In support of Y's knowledge of the mother's dislike of the father, Counsel for the father submits that, as early as Ms FF's report in 2021, Y "thought her father hated her mother because he's trying to steal Mum's money and the maternal grandparents' money" (at [63]). Counsel submits that this type of observation was indicative of being spoken to directly about parental conflict. This was also not put to Ms C in cross-examination.
Counsel for the father submitted that Y's disclosures were inconsistent over time. He points to, for example, what he says is inconsistent evidence about whether she was wearing underwear and whether the abuse was penetrative at times. However, these inconsistencies were not put to the experts during cross-examinations. Counsel submits that one allegation, that the father had sat on Y, was "fantastical" and was entirely false, or else it would have been disclosed at an earlier opportunity than October 2022.
Counsel for the Independent Children's Lawyer submitted that the mother conceded that the police did not pursue the investigation as they had determined she had asked leading questions, but it was not put to her exactly what she asked or demonstrated how that may have led the child to make the statement she made repeatedly and consistently.
The father relied on the psycho-sexual report of Dr EE dated 23 November 2023, affirmed and filed on 8 December 2023 concluding that there was an insufficient degree of risk to prevent the father from having substantial time with either of the children. Counsel for the mother submits that the absence of a diagnosis of psychosexual disfunction is not evidence that the father does not have such a condition. Dr EE was not required for cross-examination. I take her evidence into account on the issue of risk of sexual abuse being perpetrated by the father into the future.

[191]

HER HONOUR: Okay. What if you forgot to get an invoice?

THE WITNESS: There will be some arguments.

THE INTERPRETER: The consequence will be argument, altercation and annoyance. And then I will give in. I just do every cent of money I would get a receipt.

HER HONOUR: Well how long would the argument last?

THE WITNESS: Sometimes - - -

HER HONOUR: Was it similar each time?

THE INTERPRETER: The start of the argument will be the same. "Why didn't you have a receipt", and "why didn't you do it?" Sometimes it will last days, even weeks because of that one receipt. And later on I just gave in.

HER HONOUR: You just what?

THE INTERPRETER: Gave in. Just do it. Receipt everything.

HER HONOUR: When you say it might last hours or days or weeks, what was his behaviour?

THE INTERPRETER: Criticising me.

HER HONOUR: So he criticised you verbally?

THE WITNESS: Yes.

HER HONOUR: Was there any other way that he treated you that you knew that he was cross, and he hadn't got over the fact that you didn't get a receipt?

THE INTERPRETER: In our marriage, I can feel that I lost my confidence more and more. It's not because I was blamed by not bringing the receipt home. And later on, I have a lot of things to be blamed. So that I - and my - my looks - it's something wrong because my nose is too flat, and my stomach is big, and my legs was not - - -

THE WITNESS: As fit. Yes.

THE INTERPRETER: As straight.

THE WITNESS: As fit as his.

THE INTERPRETER: As fit as his. And also that I'm not good at any house chores, and I'm not good at looking after my children. One day I was so confused and I called my friend, "can you tell me anything good about me?" And my friend told me, "you're good looking, and you have a great job, and you're very kind, and do not get yourself affected by his words." In the marriage, except in my work, I found out that I am a worthless person, like a piece of shit.

[...]

THE INTERPRETER: Yes, worthless, and like a piece of shit. Actually - actual words. Piece of shit.

HER HONOUR: Okay. And did he say that more than once?

THE WITNESS: Yes.

HER HONOUR: How regularly or frequently did he say it?

THE WITNESS: Often. He doesn't care where are the occasions. In front of my parents, in front of his parents, in front of his sister, in front of friends, neighbours.

HER HONOUR: What about in front of the children?

THE WITNESS: Yes, for sure.

HER HONOUR: Did the children ever say that - ever mimic him or repeat what he said?

THE WITNESS: If he say it in front of children.

THE INTERPRETER: If he says things in front of children, and I will not be quiet, I will defend myself because I do not want my children to see me as that type of person who.....argument. So I know that's not good for children. And one incident in front of his parents and his sister. And at that time we were living in [the Suburb MM] property, and he ridiculed the property as a - - -

THE WITNESS: As the furniture my parents bought.

THE INTERPRETER: The furniture that my parents brought. But he look at that - - -

THE WITNESS: The.....furnitures. At that time, I felt really not comfortable, but I just couldn't come out with any words. And then after a while, his sister said.

THE INTERPRETER: So his sister told me, "why are you not saying anything back? You can fight back."

HER HONOUR: And what did you say?

THE WITNESS: I just kept silent. I feel.

THE INTERPRETER: I just kept silent because I believe in front of other people fighting or argue with him isn't a good thing.

[197]

Counsel for the mother submits that past acts are indicative of future abuse.
Counsel for the father relied on paragraphs [69], [70], [73], [74], [85] and [86] of Ms FF's report to suggest that the children, prior to the sexual abuse allegations and subsequent cessation of time, had a strong bond with the father. Counsel submitted that the Court should come to the view that the children have been exposed to excessive negative views of the father, and that those views have had an observable negative effect on the relationship with the father.
Counsel for the mother submitted that the children, in particular, Y has been traumatised by the alleged sexual abuse and is currently suffering and any reintroduction with her father will exacerbate the trauma and cause her emotional harm. Ms B supports that view.
I am satisfied that the father has perpetrated family violence against the mother and the maternal grandfather. I do not take this into account in my assessment of whether sexual abuse occurred, but rather the father having had limited insight into the impact of this violence on the children, and the reflection of this on his ongoing capacity to support the children emotionally. The family report writer further noted that the father engaged in a pattern of externalising blame to the mother and that should he have an opportunity to see the children on an unsupervised basis, there is a potential risk that he would try to extract statements from the children to dispute the sexual abuse allegations.
Moreover, I note the family report writer reported ongoing concerns with a risk that the father would continue to engage in family violence insofar as the father continued to minimize his behaviour surrounding the March 2019 incident, as noted subpoenaed documents produced by the Men's Behaviour Change Program. Another example of this was reported by Ms C, where the children and mother recalled occasions where the father disciplined the children by putting them out on the patio when they were misbehaving. The mother says that the children were forced to stand outside on the patio, when it rained, and they were not wearing warm clothes. The father agreed as to the occasions where the children were on the patio however disputed the context and manner in which the mother portrayed these situations. He explained that the children were directed to stand on the patio for "quiet time" or "time out" and recalled several times where Y misbehaved and stood out on the deck to "cool down". He referred to these strategies as recommended for guiding child behaviour by the parenting programs he completed.
I accept that the father's punishment of the children is inappropriate and constitutes family violence as defined in the Act.
As to sexual abuse, I have carefully considered the evidence and Y's consistent statements over a considerable period of time. The weight of expert evidence is to the effect that she would be unable to make such statements, as a matter of childhood development, if they were false. I accept that Y's therapist, Ms B, believes the abuse has occurred. However, I am not persuaded, on the balance of probabilities, that the father has sexually abused Y as Y describes and accordingly make no finding to that effect. My finding does not mean that I am satisfied that he has not sexually abused Y.
I am persuaded, on the balance of probabilities, and make a finding that Y believes she has been sexually abused. Whereas, moving forward, I am not satisfied that the father presents an unacceptable risk to Y of sexual abuse, I am satisfied that spending time or having communication or contact with the father, contrary to her wishes and/or without extensive counselling, education and support, would carry with it an unacceptable risk of emotional and psychological harm to Y.
I am satisfied on the evidence that the father is not attuned to the emotional needs of the children and I accept that he would, more likely than not, use time or communication with the children as an opportunity to get them to disavow what Y has said in relation to sexual abuse and any other form of maltreatment. That would be, of itself, abusive. I am satisfied that the father puts his own needs above those of the children, a tendency which is fatal to good parenting. I am satisfied that Y and, for that matter, X, would currently feel uncomfortable and unsafe in the presence of the father. I am not satisfied that the father has made any progress whatsoever in understanding the perspective of the children in spite of hearing from the experts, Ms C and Ms B. Understanding how the children feel is the first step for the father to become attuned to their needs. The father's uniform and consistent response to all of the evidence which is supportive of him not seeing the children is that somebody other than himself is to blame, and that is usually the mother. However, in some respects he also nominates the child's therapist, Ms B, and the Family Consultant as having put negative thoughts in the heads of the children.
Insofar as X is concerned, there is no case that he has been sexually abused by the father. However, if X believes that his sister has been sexually abused or accepts that his sister believes that she has been sexually abused, he must not be required to see or communicate with the father against his wishes or without considerable support. To do so would likewise place him in an intolerable situation and most certainly expose him to an unacceptable risk of emotional and psychological harm. Hypothetically, if it were the case that X does not accept the allegations of sexual abuse on any level (and I do not find that is the case now) I am satisfied that any time or communication with the father could not proceed without strong psychological support being available for X. For the avoidance of doubt, I am satisfied that time or communication with the father represents an unacceptable risk to X of psychological harm.

[199]

Having determined that there is an unacceptable risk of emotional harm to the children upon spending time with the father, it is inappropriate for there to be any arrangements requiring time be spent between the children and the father.
As to keeping the father informed of the children's activities and wellbeing, Counsel for the mother and Independent Children's Lawyer say that there is no need for updates where there is no foreseeable reintroduction of the children to the father. Counsel for the father made a submission to the effect that in the case of Boulton, it was ordered that the mother keep the father informed of her decision-making with respect to the children, and that this should be followed in this matter. Counsel suggested that there would be advantages in this course if the children sought to reconnect with the father in the future. This proposition was not put to any experts. I note, in any event, that in Boulton, there was no order preventing future time between the father and two of the children - the effect being it would be up to the mother to determine whether to facilitate time if she deemed it appropriate in the future. There is very little chance that the mother in this matter would facilitate any future time, and in fact sought a positive injunction preventing future time. I agree with the submission of the Independent Children's Lawyer that there is little, if any, positive benefit to ordering there be regular communication and updates passed by the mother to the father in those circumstances.
The evidence of the expert witnesses with regards to letters, cards and gifts is that the father's past decisions to give gifts to X made Y feel like she missed out. I accept that it would feel punitive to Y and X. The family report writer opined that X receiving gifts may create a rift between him and Y and that his loyalty to his sister may create a further emotional burden on him and impact his relationship with Y if he were to receive gifts and not Y. She reported that Y mentioned she wanted to still receive gifts but that was a reasonable response if a sibling was receiving gifts, and the other was not.
Owing to the children both expressing a view to Ms C that they did not wish to spend any time with the father and having regard to the father's lack of capacity and to understand the children's views towards him, Ms C did not consider whether letters, cards and gifts would be appropriate. It was further noted that the children should be afforded stability, structure and consistency in their routine to continue to thrive and to heal from their experiences of exposure to alleged family violence, parental conflict, inappropriate discipline by the father and the impact of the sexual abuse allegations. Ms C noted that any form of communication would need to be "led by the children"
I can order that the parents exchange and keep an email address for the purposes of communication about the children in the future including if the mother wishes to facilitate contact or information between the children and the father. I leave the decision whether or not to do so to the mother. The father may wish to send updates relating to himself to that specified email address, but it will be the mother's choice whether and when those updates are relayed to the children.
I consider that these arrangements, as sought by the Independent Children's Lawyer and endorsed by the mother, will remove the conflict between the parents from the children's lives and reduce the risk of emotional harm to them arising from their belief that the father has sexually abused Y. I consider that, in the future, the children may decide to get in contact with the father and the mother may wish to facilitate this. If the mother does not permit this contact, then the children may contact the father once they reach maturity and have the psychological and emotional tools to grapple with the impact of reunification. In the meantime, the mother is to continue the children's engagement with medical and psychological treatment as required so as to facilitate their development of these tools.

[200]

The children have expressed clear views that they do not want to spend time with the father and that they want the parenting proceedings to be over. They both spontaneously shared their experiences of family violence with the report writer. They have both expressed a clear and strong bond with each other and with their mother. The report writer was not of the view that either child had been coached in their responses.
Y expressed the following to the family report writer in her interview for the first report:
1. When asked, [Y] recalled prior to her parents separating that her father would push her into the pool trying to teach her how to swim and this felt scary to her at the time. [Y] also recalled having 'scary feelings" when her parents were fighting on one occasion and her father smashed a hole in the wall. [Y] stated she was three years old at the time and the hole in the wall remains in their current family home.
2. When asked about why she does not currently spend time with her father, [Y] stated whilst pointing to her vaginal area, that "he touched my butt when I was little" and that she pretended to be asleep at the time. [Y] stated that he touched her "boobs' and "butt" when she was in bed. [Y] stated that her father took off her pyjamas and that her "undies" were on. [Y] stated she felt "uncomfortable" when this occurred. The writer asked if anything else happened, and [Y] did not make further comment.
3. [Y] then spontaneously explained that if she or [X] cried that their father would put both children outside on the deck. [Y] stated that on one occasion when [X] didn't sleep at night, [Mr Tai] pulled at [X]'s lip and his lip bled. When asked how she felt about these experiences, [Y] stated she didn't know exactly.
4. 81. [Y] clearly articulated that she did not wish to spend any time with her father because he touched her private parts. Although, [Y] wanted her father to know what she wanted for her birthday and it wasn't fair that she could not tell him herself.
At the time of the updated report, 16 months later:
1. When asked about not having spent time with [Mr Tai], [Y] stated that she felt happy not having spent time with [Mr Tai]. [Y] stated that [X] had spent time with [Mr Tai] and that [Mr Tai] had given [X] "a lot of stuff." [Y] explained that she also wanted to get presents, although did not want to see [Mr Tai]. [Y] stated, "I didn't really like him ([Mr Tai])." When asked why? She said, "because he did bad stuff to my Mum," "he hurt her, hit her and hurt my grandfather."
2. When asked if there was anything else she wished to say, [Y] stated "I want to stay with my mother," " I want all this divorce stuff to finish," "My Mum has all this file stuff to do, and I can't spend as much time with her."
X expressed the following to the family report writer in his interview for the first report in June 2023, when he was still seeing his father:
1. When asked about spend time with his father, [X] responded that "it's pretty decent" in that his father buys him a drink after dinner. [X] then spontaneously responded that he doesn't really want to spend any more time with his father. [X] then repeated his father use to put him outside on the deck and that he remembers the day when his father hurt his maternal grandfather, causing his neck to bleed. [X] recalled the day his parents separated because his maternal grandfather's neck was bleeding and "his penis was purple".
2. When asked how he knew this, he said his maternal grandparents had told him and he himself had seen his maternal grandfather's neck bleeding. [X] reflected that it felt "scary". [X] believed his maternal grandfather stepped up to defend his mother. He recalled the police attending the home and informing his maternal grandfather "to ice it", referring to his groin area.
3. [X] stated he knew a story about another incident that occurred at a restaurant where his father became angry with the waiter as the plate sizes were smaller and the servings were then smaller. [X] stated his father shouted and grabbed the Manager. When asked how he learnt about this incident, [X] replied his mother told him a few months ago. [X] stated he felt a bit more scared after hearing this story.
4. [X] stated he did not wish to increase the period of spend time with his father. [X] stated he preferred supervised time and inferred having another adult ensured he felt safe, "just in case something happened".
5. [X]'s three wishes were, firstly no more violence, secondly, no more arguing, and thirdly, preferably not shouting at each other. [X] explained that sometimes his maternal grandparents argued with one another and his mother tells them to not argue in front of the children. [X] also expressed his wish that the Court proceedings stopped so that he, [Y] and his mother could go on longer holidays together and that he wanted a new house. [X] concluded that he wanted to live with his mother so "I wouldn't get hurt or be put outside".
6. [X] presented as open and honest in describing his experiences, thoughts and feelings. [X]'s language and description appeared to be his own and not necessarily influenced by an adult or having been coached.
In his interview for the updated family report:
1. When asked about having ceased spend time with [Mr Tai], [X] responded that he did not want to spend time with his father now or into the future. [X] said he liked his mother more because she is "kind and nice," and "she makes us feel happy." [X] stated it has been good not having to spend time with [Mr Tai] as he hasn't had to go somewhere for three hours once a fortnight. [X] said that if he had to see his father he would feel "sad" and he wants to spend his time with [Ms Bo]. When asked why [Y] had not spent time with [Mr Tai]he said because [Mr Tai] had "touched her private parts." When asked how he knew this, [X] replied "my sister told me." When asked about supervised time with [Mr Tai], [X] responded he did not feel as scared because another adult, ["..."] was present. When asked if [X] wished to say anything further, he stated, "I don't want to meet my Dad, I don't feel comfortable with him." (emphasis added)
I take into account the children's views that they do not want to see their father.

[202]

As above, I have found that the father poses an unacceptable risk of emotional and psychological harm to the children. Ms C records that X and Y are vulnerable children due to their young developmental age.[40] The children need stability and an end to the conflict.
The mother has been the primary carer of the children since the parents' separated in March 2019.
The mother has not re-partnered and says her health, particularly her mental health, has been impacted by prolonged and stressful court proceedings. She has deposed to having depression and anxiety following the birth of X. She is also the only daughter and carries the sole responsibility to care for her elderly parents, one of whom, her mother, is undergoing cancer treatment. Despite her own health, the mother has always prioritised the children and their wellbeing and safety. Following separation, in circumstances where the father assaulted her father, the mother took all reasonable steps to enable the children to spend time with their father, as long it was safe. Following Y's disclosure, the mother took all reasonable steps and acted protectively of Y and X.
The family report writer reports, and I accept, that the mother has demonstrated an ongoing capacity to attend to the children's needs including their physical, emotional, social and learning. She has demonstrated that she is capable of meeting the children's needs and is more likely and welcome to seek and take advice with respect to the children.
The Independent Children's Lawyer noted some concerns that the mother had exposed the children to her negative views, or her parents' negative views but understood that there were times when the mother would not be present to restrain her parents. I share those concerns. However, the father's attack on the maternal grandfather was savage and I am satisfied that the children know of it and witnessed the aftermath.
The father deposes to good health and takes medication for Hepatitis B. He has not re-partnered and currently resides in a rental property in Suburb TT. The father's written and oral evidence demonstrates an immovable and rigid perspective, in that, the children have been isolated from him and the mother is at fault. Before me, the father's views remained firm insofar as the mother was negatively influencing the children in her household and encouraging Y to make false allegations against the father. Putting aside this firmly held view, the father did not demonstrate any insight into understanding that Y's experience, as reported to her mother, Ms B, Ms C and the police, may impact her in the long term and may impact her own experience of her father as an unsafe person to spend time with.
The family report writer expressed concerns as to the father's lack of capacity, both in the Magellan Report and Updated Magellan Report, to understand the children's views with respect to their previous exposure to family violence, Y's disclosure of sexual abuse and the children's fear of their father and refusal to spend time with him. It was noted that the father demonstrated a persistent belief and fixed view that Y's experience was not valid, or possible, and he displayed a resistance to developing and understanding Y's views. The family report writer's concerns are reflected in the recommendations for the mother to have sole decision making for the children's health and education and if the Court determines there is no significant or unacceptable risk to the children spending time with the father, that he attend upon a therapist to be assessed for his capacity to attune to the children's needs in the context of any potential introduction.
In cross-examination, the father stated that the main reason he was not seeing the children was that the mother did not support the children's relationship with him. He believes that the long period of no contact with the father has had an impact on the children and their views of him. The father concedes that there is no effective communication between him and the mother. He attributes the breakdown of the co-parenting relationship to the mother alone and says that it would not be hard to re-establish the relationship as he is willing and ready to co-parent.
It was put to the father, by Counsel for the mother, that the children would not cope with living with the father and in fact, react horribly. Specifically, it was put to the father:-[41]

[213]

In his Amended Application for Final Orders and Case Outline, the father sought a property distribution on a 60/40 basis in his favour. He sought orders for the sale of the recently tenanted but now vacant Suburb W property with the sale proceeds to discharge any or all partial loans secured by mortgage to AA Bank and contemporaneously, that the mother transfer all her interest and title in the Suburb H property to the father. He sought further orders for a superannuation split such that each party have 50% of the superannuation pool, and that the mother and father be solely entitled to the monies in their bank accounts, motor vehicles, superannuation entitlements (save for the superannuation split), shareholdings and personal belongings.
Following the conclusion of cross-examination, Counsel for the father advised that the father now sought orders consistent with him retaining the Suburb W property, unencumbered, and indemnifying the mother against the outcome of the VCAT proceedings against the tenant at Suburb W. The parties agreed that the Suburb W property was valued at $650,000. Further, that the father will indemnify the mother against the litigation on foot in VCAT. The parties further agreed that the father should be entitled to the rental arrears if the father is able to recover them.[43]
The transfer of Suburb W was completed in early 2025 with vacant possession. In a summary of argument filed 26 May 2025, the father says that he paid $24,000 to complete the sale of the Suburb W property including transaction and conveyancing costs, rates and repairs and VCAT-related possession and management fees. At the date of the last submissions, the VCAT proceedings had not concluded and the rental arrears have not been recovered.
In her Amended Response to Final Orders, the mother sought a final distribution of the non-superannuation pool as 60/40 in her favour. She also sought orders to sell the Suburb W property and that the father retain the Suburb H property. However, this position changed to the mother seeking to retain the Suburb H property pending her ability to refinance the property in accordance with any orders as to property distribution made by the Court.
Otherwise, the parties were in agreement save that the father contended addbacks amounting to $787,295.00 against the mother. He then revised his position to only seek addbacks for the funds he says are owed to the parties by the maternal grandmother for the transfer of the Suburb MM property to her, and for the amount of "unexplained cash withdrawals" he asserts against the mother. He did not make a claim for addback of legal fees but the mother consented to there being such an order provided it was made against both parties.
The only other issue in dispute at the conclusion of the hearing was the inclusion of Capital Gains Tax liability on the sale of the former matrimonial home if the mother defaults in making settlement payments to the father.
Both parties agree that superannuation should be equalised, and the superannuation trustee for the mother's superannuation company the Superannuation Fund 1 has been afforded procedural fairness by way of a letter dated 18 January 2024. No objection was received. There is no evidence of the father's superannuation trustee, the trustee of Superannuation Fund 2, being afforded procedural fairness so equalisation must be achieved by a payment from the mother's entitlement to the father.

[215]

On 17 April 2025, the mother filed an affidavit and emailed a sealed copy to my Chambers. She affirms that she recently resigned from her employment (with a cessation date of early 2025, and final pay due early 2025) and seeks an urgent sale of the property in which she and the children reside in Suburb H. She deposes that she cannot service the liabilities secured over the property. On 28 April 2025 my Chambers sent a list of preliminary questions to the parties. The questions, and their answers were provided at the Court event on 29 April 2025 and were marked Exhibit C1.
The mother's application to re-open her case was heard on 29 April 2025 with neither party being represented and the Independent Children's Lawyer excused from attending. Each party had the assistance of a Mandarin interpreter. The mother made an oral application to re-open her case to adduce evidence to include her updating affidavit and an immediate sale of the Suburb H property. The father opposed the mother re-opening the case but did not identify any grounds of prejudice suffered in the circumstances where the evidence arose after the close of the substantive case. I permitted the mother to re-open her case.
Both parties consented to the matter being heard on that day. The father filed a Summary of Argument on 28 April 2025 which was read by the Court during the mention on 29 April 2025. The father sought to cross-examine the mother as her change in financial circumstances but there being a s102NA ban in place all questions were relayed through the bench with the mother's consent.
The mother's evidence is that she resigned from her employment in early 2025. She said her final pay was paid in early 2025 and she was expecting to be paid out seven weeks of annual leave. The mother cites overwhelming stress at managing her workload and her parental responsibilities and legal proceedings, including divorce proceedings in China initiated by the father, and these family law proceedings (including the recent application in a proceeding filed by the father in December 2024, amended 1 March 2025 and heard on 19 March 2025). She says that her full-time position in a stressful work environment was not compatible with her caring responsibilities for the two children and her parents, including her mother who is undergoing treatment for cancer.
The mother informed the Court that after her work ceases with her current employer, she will begin the process of gaining accreditation to work in a self-employed capacity within her field. She estimates she will earn an income in six to twelve months. She gave an approximate first year income estimate of $50,000-$100,000 but did not say what her estimated final income might be.
The impact of the mother's change in circumstances on the property proceedings is limited. The mother's proposed final minute (Exhibit W22) is clear that her intention is that the property at Suburb H be sold if she was unable to refinance the property in her sole name and pay the father whatever cash payment over $250,000 is required. The father did not seek to retain the Suburb H property at final hearing and did not reagitate that issue before me.
At the first mention before me on this issue on 29 April 2025, the parties agreed that if the house is to be sold the agent is to be Ms AD of S Real Estate Agent.[44] The parties agreed the conveyancer should be Z Pty Ltd who handled the conveyance of the Suburb W property (as recorded in Exhibit C1) (although the selection of conveyancer was in dispute when the matter returned before me).
The mother had temporarily relocated to her parents' Suburb MM property with the children and her parents. Suburb MM is located 6 kilometres from the children's primary school, and they can continue to attend that school.
The father and mother clarified that the mother had been paying the AA Bank loans secured over the Suburb H property, including the loans attributable to the Suburb W property and Motor Vehicle 2 driven by the father, and had been doing so since separation in 2019. The mother clarified that she had been paying the Suburb W mortgage of $2,799 a month, the Suburb H mortgage of $1,588 a month, and the father's car loan of $506 per month, a total of $4,893 per month. The father initially argued that there was no loan over the Suburb W property but later clarified he had been claiming the interest expenses for a loan over the Suburb W property on his tax returns for the last three years. As indicated, the parents separated in May 2019 but the father paid no child support until 2023. The father is currently paying the mother $960 by way of assessed child support per month from 2023.
Following the oral application for leave by the mother to reopen her case to adduce further evidence on 29 April 2025, the position of the parties was as follows:
- The mother seeks sale of the Suburb H property, she no longer being in a position to service the mortgage registered against the property referable to the loan for the property; and, she says, the loan for the Suburb W property and Motor Vehicle 2 which is in the possession of the father but in the mother's name;
- The father consents to the sale of the Suburb H property by the mother;
- The mother and father agreed that the value of the property with respect to the Suburb H property application should be $1.5 million, regardless of the actual sale price of the property.
- The father states that the conveyancer and agent should be as stated in the alternative proposed final orders of the mother (Exhibit W22), being AE Real Estate Agent Suburb H and BB Financial Services respectively;
- The father stated that the alternative proposed final orders of the mother (Exhibit W22) was an "agreed proposed final order".[45]
The mother concedes that she withdrew $265,000 from the parties' joint offset account on 20 May 2019. In cross-examination she said had expended approximately $90,000, including on mortgage repayments, and held a remaining $175,000. As rough figures, and not accounting for interest rate variations, the $265,000 of joint funds could have covered those repayments for the three loans for just over 53 months (or 4 years and 5 months). The parties have been separated since May 2019, which is 6 years or 72 months at the date of judgment. There is therefore a period of approximately 19 months in which the mother has been repaying both mortgages from her personal income only, amounting to approximately $94,000. Notably that includes the loans attributed to the car driven exclusively by the father and the Suburb W property which he intends to keep. The father was in remunerative employment. He was also significantly advantaged by the mother's reluctance allow any loan or liabilities to go into arrears lest either of their credit ratings be affected.
Following the mention, the father and mother agreed to sell the Suburb H property.
The property at Suburb H was listed for sale in mid-2025. The parties could not agree on the following:
- The payment of loan repayments, council fees, etc from 16 May 2025 (date of mother vacating the home);
- Where the payment of proceeds should be directed;
- The identity of the conveyancer.
On 27 May 2025, the father and mother attended a further mention before me. Both had the assistance of interpreters.
The mother had already appointed the same conveyancer who had carriage of the sale of the Suburb W property (Z Pty Ltd). The father says the conveyancer should be the conveyancer agreed by the parties in the "minute of proposed final orders", which was a document outlining agreement and disagreements between the parties at the end of final hearing. The objection of the father was articulated as being that Z Pty Ltd was not the conveyancer as previously agreed by the parties, which was BB Financial Services. The father said that the mother had spoken to the Z Pty Ltd privately. He was unable to identify a further reason to dispute the appointment of that conveyancer. The mother says there was no previously agreed conveyancer and there was $400 difference between the quote provided by Z Pty Ltd and the father's preferred conveyancer. Z Pty Ltd was also used in the transfer of the Suburb W property to the father.
Significantly, BB Financial Services does not have a trust account. Z Pty Ltd does have a trust account. The father submits the proceeds of sale should go into an investment account. The father's attitude to Z Pty Ltd is emblematic of his attitude to the mother generally. The value of property was agreed as $1,500,000. There was no basis for any concern that the property would be sold for less or more than $1,500,000.
The father says he paid $24,000 for conveyancing and referenced a summary of argument document that was filed at 10:54pm the night before the mention. I adjourned the hearing to Friday 30 May so as to give the parties time to read the document.
On 30 May 2025, the parties attended a final interim defended hearing before me via MS Teams. The parties had the assistance of interpreters. The father relied upon his summary of case filed 26 May 2025, and the mother on her reply dated 27 May 2025. The issues in dispute were:
- Who should be responsible for the mortgage repayments and fees associated with sale of the Suburb H property? The father contended it should be the mother. The mother did not seem to oppose that proposition on the basis that each party retain a property as is and indemnify the other for liabilities attaching to the property he/she retained including the mortgage and any Capital Gains Tax ("CGT").
- Method of sale and reserve price for the Suburb H property. The parties agreed that the value of the property with respect to the property application should be $1.5 million, regardless of the actual sale price of the property.
- Identity of Conveyancer. As above, I indicated to the parties that as Z Pty Ltd had been engaged and had a trust account, they should continue to have carriage of the sale.
- The process for handling of the sale deposit and net sale proceeds. The father contends that the deposit and then proceeds should be held in a joint offset account. As above I did not make that order in the circumstances and all funds are to be held by the Conveyancer to be dealt with pursuant to my orders.
- Respondent's financial disclosure. The father pressed for documents to be provided to him evidencing the mother's resignation and financial circumstances, including bank statements and separation certificate. The mother provided these documents during the hearing and the father given an opportunity to read them and ask questions of the mother. In short, the mother received approximately $33,127.83 gross including leave payments of $27,494.66 on in early 2025, which amounted to a net leave payout of $14,598.66 in addition to her final regular pay. Her final payslip notes her taxable gross salary for the financial year to be $265,290, a net salary of $177,110.
The father also sought that the mother provide him full disclosure of any undeclared cash holdings and moneys held by her parents on her behalf. This latter request was, in effect, an application to re-open evidence that was available at the time of final hearing. I do not accede to the father's application.
The father also sought an update with regards to the schooling arrangements of the children which were provided orally and included that X would begin at P School next year in Year 7, and Y would be moved to a primary school closer to the new property in Suburb MM for Year 5, but that both children would serve the remainder of the 2025 school year at their current school.
I asked the parties for clarification as to the CGT liabilities attributable to both Suburb H and Suburb W properties. The parents clarified that Suburb H had been tenanted for a period of approximately 5 years prior to becoming the mother's principal place of residence. The mother says it is likely that CGT will be leviable on the property on sale. As to the Suburb W property, it was also tenanted and may attract CGT, but a sale of the property is not imminent. The parties agreed that each parent would take their property "as is", including absorbing any future CGT liability. Notably, the Suburb H property is registered in the name of the mother and is her home. The Suburb W property was a rental property that is currently untenanted but not lived in by the father.
Further, I asked the mother again the loan amounts and her current repayments of those amounts. She stated that she paid the Suburb W mortgage of $2,799 a month, the Suburb H mortgage of $1,588 a month, and the father's car loan of $506 per month. She clarified these were interest and principal payments - and with respect of the Suburb W property identified that the principal payment was approximately $535 per month (interest of $2265). In total, the outstanding loans secured against the Suburb H property amount to approximately $745,000. The father argued that the liabilities attributable to the Suburb W property and his motor vehicle were not attached to those assets and should not be a liability belonging to him. I agree that is the case but the liabilities attributable to the Suburb W property and the car will reduce the mother's equity in the Suburb H property and will, thereby, be taken into account in the fixing of each party's property entitlement. I will make orders that allow the mother to sell the property and relieve herself of the principal under the mortgage that is referrable to the Suburb W property and the father's car.
The father's opposition to the mother's proposed conveyancer and agent in the circumstances was unmeritorious and obstructive. It caused the mother extra stress which was not necessary and the need for a hearing to contest the mother's proposed method of sale only resulted in delay to both the mother's sale of the property and to the delivery of these reasons. As I have said, the agreed value of $1,500,000, regardless of the actual sale price, removes any need for the husband to have input into the sale.

[226]

When the parties commenced the relationship, the mother owned a property in Suburb MM which was purchased using funds gifted to her by her parents and the mother says was worth approximately $450,000 at the time. Her parents continued to assist the mother with mortgage repayments in the amount of $1,000 a month increasing to $1,200 after the first year. Upon cohabitation the father moved into this property with the mother and paid her rent of approximately $700 per month until they purchased the matrimonial home.
The mother says she received $10,000 from her parents on the birth of each child and she deposited the money to the parties' joint account. I am satisfied that the $20,000 was a direct financial contribution made on behalf of the mother.
The father says that during the relationship, the parties deposited their salaries into offset accounts in joint names. The joint funds were used for regular mortgage repayments, funding for household expenses and children's needs as well as to fund home improvements. The mother says that the parties only combined finances from June 2010, and her salary was paid into a personal account, she retained a small amount for personal use and the remainder was paid into the Suburb MM Westpac mortgage account. She says the father's salary was paid into his account and he likewise retained some before transferring the bulk into her Westpac account for the Suburb MM mortgage.
The parties purchased a property together in Suburb H in March 2010 for $655,000. The mother says that she paid approximately $80,000 from the Suburb MM mortgage while the father paid $30,000 towards the deposit. The father says she only contributed $30,000, but the mother contests this. Regardless, there was a joint loan of $589,500 and the property was initially let out to tenants, however there was a shortfall in rental income which was paid from the Westpac account in which both salaries were deposited.
The father had an interest in a property in China which the mother deposes was worth approximately $400,000. In his affidavit, he says that he was a registered proprietor of a small apartment in China by way of the following:
1. In or around 2000, I commenced employment with the [JJ Limited] in China. At the time, the [...] plant was located in a remote/rural area of China.
2. In 2001, my employer commenced building an apartment block on what was then, non-residential land. My employer offered me and other employees, the rights to purchase an apartment in the building upon its completion. The cost to secure rights was approximately $30,000.
3. At the time, I did not have the funds to purchase the rights, so my parents and sister paid this sum.
4. I remained employed by the [JJ Limited] until 2006, when I decided to migrate to Australia. At this stage, the building works had not been completed and the suburb was still developing. I recall that at the time, there were no shops or public transport available.
5. In 2008, my parents renovated the apartment and moved in. It was not until 2011 that the land zoning was converted to residential, at which time my parents completed the sale and paid the balance of the purchase price, being approximately AUD $50,000. It was during the settlement process, that I first became aware that I could not assign my rights to my parents. Not wanting to lose the funds that had been paid to date, we settled the sale under my name.
6. At no stage did I make any financial contribution towards the acquisition or upkeep associated with this property, which was subsequently transferred to my sister, at her sole expense, being approximately $4,000 in 2015.
The mother says that in 2015 the father transferred to his sister his house in China without consulting the mother. In cross examination, the father clarified his written evidence insofar as the property in China was owned by his previous employer, and he had a "right to live there but not ownership." He explained this was an employment perk but he did not have the funds at the time it was offered therefore his sister and parents paid the deposit on the land, equivalent to AUD$30,000.
The mother's evidence was that she told the father that if he was going to gift the property he brought into the relationship to his sister, it would only be fair if she transferred the property she brought into the relationship (the Suburb MM property) to her parents (who had substantially paid for the property).[48] This transfer is the basis of one of the addbacks sought by the father and is discussed below. He seeks that the mother be declared to have retained a benefit of $331,735 which should be added back against the mother.
The father says that the mother's parents put pressure on him to transfer the Suburb MM property to them. This is inconsistent with the father's assertion that he did not know about the transfer and did not agree to it. At one point, an argument ensured over the Suburb MM property. The father disagreed that the altercation was about the Suburb MM property and said the father-in-law was generally unhappy that the father's parents were not contributing financially to the household.
It was put by Counsel for the mother to the father that the mother wanted to transfer the Suburb MM property to her parents because the father transferred the property in China to his sister. The father did not agree with this assertion. However, the father did recall that the mother told him that his transfer of his property in China to his sister resulted in the mother wanting to transfer the Suburb MM property to the mother's parents. The father conceded that this was one reason the mother had told or given him for the transfer.
The father says he only discovered in December 2016 that the mother transferred the Suburb MM property to her parents by way of from an email from the mother. I find that the father knew of the transfer prior to, or not later than, the date of the transfer which was in October 2016.
In mid-2017, the parties jointly purchased the Suburb W property for $445,000 and paid the deposit from a loan account secured against the Suburb H property. The Suburb W property was leased to tenants following settlement and managed directly by the father and mother. There was a shortfall between rental payments and loan repayments. The mother says that she has been covering that shortfall since separation until she could no longer afford to do so. That is, upon resigning from her employment in early 2025.
By way of specific contributions, the mother says that she worked full time and paid her income towards mortgage repayments and living expenses. She took maternity leave for approximately 10 months following the birth of each child. She says the father also worked full time and paid his income towards mortgage repayments and living expenses. The mother's income was higher than the father's.
The father says that he contributed by way of maintenance to the various properties however the mother disputes the success of these endeavours. The mother says that she managed the rental properties and the father assisted in repairs when professionals were not needed. There was no evidence of the father's efforts adding any value to the property and I am not prepared to make inferences. The mother says that parties worked together on home improvements to the Suburb H property. The father said he made significant home improvements to the property.
After separation, the father did not pay child support from March 2019 until January 2023. Since January 2023 he has paid child support as assessed in amounts between $917 and $1086 per month. He says that child support, as assessed, is currently $992 per month.
Counsel for the mother submits that the mother has paid for all the children's post-separation expenses, the mortgages, outgoings on the matrimonial home, outgoings on the Suburb W property and the father's car loan. As above, I have found that the AA Bank loans are indeed referable to loans for the Suburb W property (that the father has now enjoyed sole use of since December 2024) and the father's Motor Vehicle 2.
My view is that the father exploited the mother's fear of falling into default on any loan in her name because of the consequent effect on her borrowing power and credit rating, and benefitted from knowing that the mother would never allow any loan to fall into default, even if it resulted in extreme financial stress to her.

[275]

Counsel for the mother contends that the mother has no prima facie obligation to satisfy the Court that her use of funds post separation was reasonable. She has "no obligation to live in a state of suspended economic animation".[52]
Counsel for the mother submits that the father has not discharged the legal and evidentiary onus to demonstrate the mother's aggregate expenditure constituted wastage. Counsel submits that the mother was responsible for financing a family of five, including her two elderly parents who provided her with essential support towards her parenting commitments while she worked, including all of the Children's expenses, the mortgage, outgoings on the matrimonial home, outgoings on the Suburb W property and the father's car loan.
From separation in March 2019 until January 2023, the father paid no child support, and, since January 2023, he has paid child support in various amounts between $917 per month and $1,086.50 per month.
Counsel for the mother submits that while the mother's withdrawals of cash were "frequent, collectively large and an unorthodox practice in the context of everyday home economics," that does not by itself justify an add-back in any particular amount or an adjustment pursuant to section 75(2). Counsel submits that the father has fallen short of what is required to prove his assertion.
Counsel for the father submits that where there is a deliberate non-disclosure, as alleged, the Court should not be unduly cautious about making findings in favour of the innocent party (citing Weir & Weir ([1992] FamCA 69; 1993) FLC 92-338). A failure to disclose undermines the whole process of adjudication of proceedings for a settlement of property in that the court is unable to identify the property of the parties to properly assess contribution or properly assess section 75(2) factors. That is correct. I am not being unduly cautious, but I accept the mother's evidence in regard to what she said she did with the monies and why she was averse to keeping it in a bank account. Her statement in Court as to her fear of her finances being monitored by the father had the ring of truth about it.
I find that, taking into account her legal fees as an addback and the payment by the mother of all loan repayments, this more than offsets her unilateral removal of $455,560 in cash over a 5 year period.

[277]

On 28 October 2016, the mother transferred the Suburb MM property to her parents. The parties both agree the value of the property was $585,000.[53] The background is discussed above. Whether the Suburb MM property was sold to the mother's parents and the agreed value of the property for the purposes of the transaction is in issue.
The mother's position is as follows:
1. The Father asserts that the Mother is owed $331,735 by the maternal grandmother and that this amount should be added back against her.
2. There is no dispute from the Mother's perspective that she advanced $400,000 to her mother in September 2016 in order that she would be able to satisfy the State Revenue Office that she was holding $585,000 in a bank account. It is also clear that one month later an amount of $585,000 was returned to the Mother.
3. The Mother's evidence was that the maternal grandmother subsequently paid her a further $125,729.67. What that meant, in practical effect, was that the maternal grandmother paid a total amount of $309,729.67 for a property that was worth $585,000 at the time of transfer.
4. The Mother's evidence was that she and the Father agreed between them that this was the total amount that her parents should pay, having regard to the deposit that they paid on the initial purchase, their subsequent payment of mortgage installments [sic] and the various other expenses they had met.
5. All of this evidence was left entirely unchallenged.
It was put to the mother, by counsel for the father, that the mother was able to transfer the property without any action required by the father. The mother disagreed and said she engaged with Q Pty Ltd to act on the transfer of Suburb MM property.
When asked about the process of transfer of funds to the mother, the mother agreed that she attended PP Bank to draw a cheque of $400,000 from the joint Westpac account (over Suburb MM property) from her and the father and then attended at another bank branch with her mother, to deposit the cheque. The mother insisted the father was aware of the transaction because it was from a joint account and the only reason she actioned the transfer herself was that she was on maternity leave at the time. The mother received funds from the maternal grandmother by way of three bank cheques, the purpose being to give the appearance that mother had received $585,000 for the Suburb MM property.
The father's position is that the mother transferred the property to her parents so that it was outside of the reach of the father. I note that, if that were the case, the father should be under the same microscope given he had transferred a property in China to his sister only shortly prior.
It is undisputed that the father and mother received funds from the maternal grandparents for the Suburb MM property. It is also undisputed that the father and mother received the benefit of funds paid by the maternal grandparents to the mother for her to acquire the home. I do not have enough evidence before me to determine either way whether the agreed sale price of the property to the maternal grandparents was market value, as the father suggests, or the agreed discounted value the mother contends.

Tai & Bo (No 2) [2025] FedCFamC1F 545 (15 August 2025)

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