Waibel & Trevis [2025] FedCFamC1F 372 | Case summary

Waibel & Trevis [2025] FedCFamC1F 372 | Case summary | Zoe

[8]

The applicant is 37 years of age, and the respondent is 35 years of age. Both parties reside in City D, South Australia.
The parties commenced cohabitation in 2016 and were married in 2018. The parties separated on a final basis on 9 August 2021 and divorced in mid-2023.
From the date of separation, the child remained in the sole care of the respondent living in the home of the respondent's parents.
Upon the parties' separation, the respondent offered the applicant weekly time spending for approximately half an hour to an hour which took place at a local park in City D until the end of April 2022. The respondent was present at all times.
In November 2021, the parties attended a Family Dispute Resolution Conference at Z Centre in City D and were unable to reach an agreement.
From May 2022, the applicant attended one and a half hour-long supervised time spending sessions with the child fortnightly for seven sessions at the M Contact Centre ("the M Contact Centre").
The applicant commenced proceedings on 2 September 2022. His initial position was that the parties should have equal shared parental responsibility for the child, that the child remain in the primary care of the respondent and spend time with the applicant on an increasing basis building to six nights per fortnight.
The initial Response to Final Orders filed by the respondent on 6 October 2022 sought equal shared parental responsibility and that the child remain in the primary care of the respondent but that time spending with the applicant be determined by the Court following the applicant and the child participating in family therapy.
Consent Orders were made on 12 October 2022 at the parties' first court hearing that provided for the child to spend two periods of supervised time with the applicant initially for a period of two hours on Sunday, 17 October 2022 and Sunday, 30 October 2022 at M Contact Centre, but that unsupervised time then take place on a gradually increasing basis up to six hours each alternating Sunday with changeovers to take place at M Contact Centre.
Further Consent Orders were then made on 23 January 2023 suspending the earlier orders. The parties were able to agree during the period of adjournment that the child would live with the respondent and spend time with the applicant for one hour on the first two Sundays following the making of the said Order, and each Sunday thereafter between 10.30 am and 1.30 pm.
Interlocutory orders were made again by consent until further order by a Senior Judicial Registrar on 13 April 2023 for the parties to have equal shared parental responsibility, and for the child to spend three hours with the applicant each Wednesday and Sunday commencing 16 April 2023 on a gradually increasing basis. By 24 September 2023, the applicant's time with the child was to increase to incorporate overnight time for one night each alternate weekend.
The applicant's last visit with the child was on 18 June 2023 when in the company of his sister, Ms G ("Ms G"), her children and the applicant's partner, Ms F ("Ms F"). The group went out foraging to see and collect at "[N Park]" in City D.
As a result of disclosures made by the child in June 2023 to the staff of the Early Learning Centre ("ELC") at O School in City D that the applicant had "touched me and its sore",[1] the respondent ceased all time spending and contact between the applicant and the child.
The child was referred by the Department for Child Protection of South Australia ("DCP") to the South Australian Police ("SAPOL") consequent upon allegations that the applicant had sexually assaulted the child. The child alleged that the applicant had "touched me in the hole", pointing to her genitals when they were foraging.[2]
In June 2023, following the child's disclosures, the respondent took the child to the Region P Child Protection Services ("CPS") for a forensic medical examination with a complaint that the child was experiencing genital discomfort. The respondent's concerns were heightened by genital redness. With the respondent's consent, the child underwent an invasive genital examination which the respondent concedes caused the child significant distress.
The observed symptoms of genital redness, inflammation and irritation were adequately explained by a diagnosis of vulvovaginitis.[3]
In July 2023, the child participated in a further forensic interview with CPS upon the request of SAPOL. The interview was unable to conclusively identify if the child had been sexually abused by the applicant.
It is uncontested that, in interview, the child did not provide any detail and whilst some concern on the part of SAPOL and DCP remained, sexual abuse was not substantiated and there was insufficient evidence to support any further police investigation. The respondent now acknowledges that no evidence exists that could enable a court to find, on the balance of probabilities, that the child had been the subject of sexual assault by the applicant.
In August 2023, the child was further reinterviewed by CPS but did not make any further allegations nor present in such a way that would provide support for a further investigation.
A DCP report was issued on 21 November 2023. Whilst a detailed document, the summary was to confirm that sexual abuse could not be substantiated but that the child's behaviour could be explained by a poor relationship between the child and the applicant which had the potential to place the child at emotional risk.
On 1 March 2024, a Senior Judicial Registrar ordered that the parties and the child engage with a therapist to explore and facilitate a relationship between the applicant and the child noting her resistance. Following a failed therapeutic intervention, Ms H ("Ms H") published her report on 11 June 2024 which noted that the child was consistent in her refusal to engage with the applicant and exhibited distress and discomfort at the prospect.
As will become apparent, the professional involvement of Ms H was ill-advised and had the potential to play a part in falsely reinforcing in the child's mind that she had been the victim of sexual assault by the applicant.

[11]

(a) Until 1 June 2025 from 10.00am until 4.00pm Sunday; > > (b) Until 1 August 2025: > > > (i) In week 1, from 10.00am Saturday until 4.00pm Sunday; > > > > (ii) In week 2, from 10.00am until 4.00pm each Sunday. > > (c) Until 1 October 2025: > > > (i) In week 1, from the conclusion of school on Tuesday until the commencement of school on Wednesday; and > > > > (ii) From 10.00am Saturday until 4.00pm Sunday; > > > > (iii) In week 2, from 10.00am until 4.00pm each Sunday. > > (d) Until 1 December 2025: > > > (i) In week 1, from the conclusion of school on Tuesday until the commencement of school on Wednesday and > > > > (ii) From the conclusion of school on Friday until 4.00pm Sunday; > > > > (iii) In week 2, from 10.00am until 4.00pm each Sunday. > > (e) Until 1 February 2026: > > > (i) In week 1, from the conclusion of school on Tuesday until commencement of school on Thursday; and > > > > (ii) From the conclusion of school on Friday until 4.00pm Sunday; > > > > (iii) In week 2, from 10.00am until 4.00pm each Sunday. > > (f) Until 1 April 2026: > > > (i) In week 1, from the conclusion of school on Tuesday until 4.0pm Sunday; > > > > (ii) In week 2, from 10.00am until 4.00pm each Sunday. > > (g) From 1 June 2026: > > > (i) In week 1, from the conclusion of school/kinder or school on Tuesday until 4.00pm Sunday; > > > > (ii) In week 2, from the conclusion of school/kinder or school on Thursday until the commencement of school on Friday. > > > > (iii) For half of each of the April, July and September/October school holidays at times to be agreed in writing between the parents and failing agreement from 5.00pm on the last Friday of the school term until 5.00pm on the middle Saturday in even years and from 5.00pm on the middle Saturday until the commencement of school in odd years of such school holiday period; > > (h) On Christmas Day: > > > (i) From 9.00am Christmas Eve to 2.30pm on Christmas Day in even number years; and > > > > (ii) From 2.30pm Christmas Day to 6.00pm Boxing Day in odd number years; > > (i) On [X]'s birthday as follows: > > > (i) If [X]'s birthday falls on a weekday when she is with the Mother from 3.30pm to 6.30pm; > > > > (ii) If [X]'s birthday falls on a weekend when she is with the Mother from 10.00am to 3.00pm. > > (j) From 5.00pm on the day before Applicant's Day to 5.00pm on Applicant's Day. > > (k) For Easter: > > > (i) From 5.00pm Maundy Thursday to 5.00pm on Easter Saturday in odd number years; and > > > > (ii) From 5.00pm Easter Saturday to 5.00pm Easter Sunday in even number years; > > (l) At such other times as may be agreed in writing between the parents.

[14]

For the purposes of paragraph 4(a), that this time spending to occur substantially in the presence of either [Ms AA], [Ms G], [Ms F] or [Mr Q]. 2. That for all handovers that cannot take place at [X]'s school shall take place in the car park [B] Park [C Street], [City D] unless otherwise agreed in writing between the parents. 3. That both parents shall keep each other informed of their current residential address, mobile phone number and email address and advise any changes to the same within 24 hours. 4. That both parents shall notify the other via text message as soon as is reasonably practicable of any serious childhood illness or medical emergency affecting [X] whilst in his or her care. 5. That both parents are hereby authorised to obtain such information from [X]'s school as is usually provided to parents including but not limited to school newsletters, school reports and school photographs and to attend functions/events at [X]'s school to which parents are normally invited to attend including but not limited to school concerts, school assemblies, Sports Days and Parent/Teacher Interviews. 6. That the parents shall communicate on non-urgent issues concerning the care, welfare, development, education, health and wellbeing of [X] via the Divvito app and each party shall download this app forthwith. 7. Both parents shall use courteous and polite language only in their communications. 8. That the parents shall keep each other informed in writing of any appointments for [X] with any treating GP, medical specialist, allied health professional, psychologist, therapist and/or counsellor and where possible advise in writing at least 14 days prior to the appointment the name and the contact details pf the medical professional to be consulted. 9. That both parents are hereby authorised to obtain information from a consult with any medical professional upon whom [X] may attend from time to time. 10. That if either parent plans to travel with the children for more than 400km away from that parents place of residence, they shall provide to the other parent, not less than 14 days prior of such travel (save in the event of an emergency), an itinerary including the location they are traveling to, flight information (if applicable) and dates of travel. 11. That [X] is not to be removed from the Commonwealth of Australia unless no later than 45 days prior to departure from the Commonwealth of Australia the parent shall provide the other parent with the following information by either text message or email:-

[27]

...In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to 'regard the welfare of the child as the paramount consideration' (sec 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; McKee v. McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J v Lieschke (1987) 162 CLR 447, at pp 450, 458, 462, 463; 69 ALR 647.

Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336, at 362. There Dixon J said:

[35]

The applicant's position at the commencement of the proceedings was primarily focused on what was, at that time, the respondent's primary stance, namely that based upon comments raised by the child, her purported trenchant opposition to spending time with the applicant and the observations of the ELC teacher, he had perpetrated sexual abuse. The Court was being asked to find, on the balance of probabilities, that sexual abuse occurred at the hands of the applicant and, given the "gravity of the allegation and cogency of the available evidence",[5] the applicant presented as an unacceptable risk of harm to the child, and that as such, should have either limited or no ongoing involvement in the child's life.
It is uncontroversial that during the conduct of the trial, but in particular at the conclusion of evidence as confirmed in counsel's final submissions, it was conceded that a positive finding of sexual abuse was not open. It is arguable that this concession amounts to the respondent abandoning her primary ground in seeking a finding of unacceptable risk to the child based upon allegations of sexual abuse.
The applicant has denied that he was the perpetrator of sexual abuse and that he presents a risk to the child. It is his case that the respondent has adopted either a malicious approach towards him and has actively discouraged, or has wantonly or recklessly failed to promote the applicant's relationship with the child. The applicant's contention is that the respondent has sought to enmesh the child in her negative view of him; unwittingly reinforced by well-meaning but ultimately damaging conduct of professionals who have engaged with the child.
The applicant is concerned that the child may be at significant emotional or psychological risk if she remains in the respondent's care given the potential for the child to go through life with the false belief that she was the victim of sexual assault by the applicant.
The applicant does not consider that the respondent has or is likely to demonstrate any contrition or remorse for the manner in which the litigation has been conducted, and given the primary focus was to establish that he perpetrated sexual abuse, the child remains at emotional risk in respondent's primary care.

[36]

As discussed, the respondent's position altered as the trial progressed. It is uncontroversial that at the commencement of the trial, the respondent considered that the applicant had not only sexually assaulted the child but that the evidence was such that she could ask that the Court make a positive finding that sexual assault had occurred.
The concession of counsel at the conclusion of trial on behalf of the respondent confirmed that the respondent was never in a position to present evidence in support of her contention. It could not be said that the respondent heard evidence for the first time during the trial that justified a change in her position.
The affidavit evidence of the respondent was clear in its direction and focus.
The respondent says that irrespective of her belief that the applicant had sexually abused the child, such is the child's demeanour and apparent trenchant opposition to the applicant that there is no circumstance she can envisage which would result in the child spending time with the applicant.
Further, if an order is made in favour of the child spending time with the applicant, this would likely result in the child's total refusal to do so and place her at an unacceptable risk of emotional harm.
The respondent's case is that she has not been proactive in promoting a false allegation of sexual abuse but rather she has been reactive to the observations, remarks and actions of professionals who have been involved with the child. In summary, whilst the respondent has a belief that the child is at risk of sexual abuse in the applicant's care, she recognises that she is not able to establish the necessary prerequisite basis for the Court to make such a finding.
Her further position is, that whilst it may be regrettable, the focus must be upon the consequences to the child of a resumption of time with the applicant. The respondent alleges that such a consequence is the unacceptable risk of psychological harm to the child resulting in the following "sustained trauma responses":[6]

[40]

The applicant relied on his trial affidavit filed 18 February 2025, he gave evidence and was cross-examined by counsel for the respondent and counsel for the ICL.
The applicant's trial affidavit provides an adequate history of his engagement with the respondent, the child and then with various child protection agencies who explored the allegations of sexual abuse.
Annexure "MRW-1" of his trial affidavit comprises certificates of attendance and completion for various parenting courses. The observational reports of the applicant's supervised visits with the child for the period 7 May 2022 to 13 November 2022 were accepted without the need to call either the author of the certificates of attendance and completion, or the supervisors for the applicant's time with the child.
The applicant acknowledged that the allegations of sexual abuse commenced with a report to the Child Abuse Report Line ("CARL") that alleged that he had touched the child and that her vaginal area was sore.
As is demonstrated in the observed interaction reports, the applicant acknowledged that the child was initially reluctant to spending time with him but that her opposition lessened over time. He considered that notwithstanding the child's reluctance, when brought together, the relationship was productive and enjoyable for the child.
The applicant had given careful consideration to the report of Ms H who had been jointly instructed by the parties to undertake a therapeutic intervention to strengthen and restart the child's relationship with the applicant.
The applicant rejects any allegation that he has sexually or physically abused the child and considered that the respondent and members of her family were convinced that sexual abuse had occurred.
The applicant has not spent time with the child since 18 June 2023. It is apparent that the basis for a suspension of the applicant's time with the child was a cautious approach given the allegations of sexual abuse.
The applicant was asked to consider how he would manage the significant anxiety and distress that the child would experience if removed from the respondent's primary care.
The applicant presented as well-meaning and even having a level of insight given his acknowledgement that some sort of therapeutic assistance for the child would likely be needed. The applicant was unconvincing as to the nature of the therapy that might be needed, and it was apparent that he had given that aspect scant consideration.
As at the date of separation (being 9 August 2021), the child was aged two years and three months. The applicant saw the child for varying periods but usually for about one hour in the park under the respondent's supervision. That arrangement continued until observed interaction started with the first visit on 7 May 2022. As considered, the applicant conceded that for the period 7 May 2022 to 30 July 2022 (being five visits in total), there were difficulties and, at times, the child expressed reluctance to remain with him.
In August 2022, the applicant was advised that the respondent had caused the child to be taken to Ms R ("Ms R") for counselling. Whilst Ms R was not called, the applicant was advised that she had made a report to CARL which alleged that he had hit her whilst in the bath and that now the child locks the door in case he should attempt to approach her.
The applicant spent supervised time with the child on 16 October 2022. It was apparent that the applicant remembered the occasion, and in particular that the respondent appeared to follow the advice of the supervisor to encourage the child to come into the playroom.
Despite his best endeavours, the applicant was not able to fully engage with the child and it was only that the respondent remained in the observation room that the session was able to continue.
The observational notes noted that the respondent was cooperative with the process and appeared to encourage the child to spend time with the applicant. He readily acknowledged that the respondent did not do anything that suggested or promoted the child not spending time with the applicant.
The applicant was candid in his acknowledgement that there were numerous occasions at the M Contact Centre, S Café and B Park where the child demonstrated a reluctance to engage with him. However, there were other occasions that the applicant believed to be demonstrative of the relationship that he considered existed.
Orders were made by consent on 12 October 2022 for two periods of supervised time before unsupervised time was to take place gradually increasing to six-hour visits. On 23 January 2023, the earlier orders were suspended in favour of the child spending one-hour unsupervised time with the applicant on two occasions and then to be extended to three hours.
The period that the applicant considers is most indicative of his engagement with the child arose from the Orders of 13 April 2023 which enabled the child to spend time with the applicant each Sunday and Wednesday. Those visits were often taken at the paternal grandmother's farm allowing the child to interact with farm animals and with her cousins. As discussed, the last visit with the applicant was on 18 June 2023.
It was apparent from the cross-examination of the applicant that the respondent's counsel was attempting to explore the occasions when the applicant may have had the opportunity to sexually abuse the child.
The applicant agreed that there were occasions when he was alone with the child whilst in his car at the commencement and conclusion of time spending. At all other times, the applicant and the child remained in the presence of his partner Ms F, his sister or the paternal grandmother.
The applicant's evidence was convincing, and I consider it to be reliable. An important observation is that whilst counsel explored whether any opportunity may have existed for the applicant to abuse the child, counsel did not challenge the applicant as to his denials that there was any occasion in the period April to June 2023 that he behaved inappropriately with the child, or, in particular, his denial that he had ever placed his hand on the child's vagina.
The applicant denied that he had ever smacked the child whilst in the bath or at any other time. The applicant reconfirmed his evidence at paragraphs 46 to 48 inclusive of his trial affidavit as to his assertion that on 4 and 18 June 2022, 13 and 27 August 2022, the respondent did not bring the child to the M Contact Centre visits.
There remains uncertainty as to the detail of the child's alleged disclosures. All reasonable effort and investigation undertaken by CPS, DCP and SAPOL resulted in an outcome that the allegations of sexual abuse could not be substantiated.
The most detailed allegation is that the child was the subject of sexual abuse at the hands of the applicant on 18 June 2023. Whilst the detail of this allegation will be the subject of further discussion, in broad terms the respondent places significant weight on the child's narrative that the applicant took her foraging to an area near City D known as "N Park." The interest in foraging is that the plantations are notable for the existence of a type of plant that glows at night. Some of the plants are edible and some are not. It is a popular recreational pastime for the local community.
The applicant's evidence is set out in paragraphs 111 to 114 of his trial affidavit.
In summary, the applicant says that he picked up the child from the handover point at 10.30 am. Handover went smoothly. The applicant and the child then collected Ms F and drove to the home of the paternal grandmother. After lunch, the applicant, the child and Ms F travelled to N Park and met with the applicant's sister and her children.
It is the applicant's contention that the child enjoyed the day and that there was no occasion, other than the short period of time that the child and the applicant were alone in the car, when no one else was present.
The applicant was not challenged as to his primary evidence that on 18 June 2023, there was no time that he was alone with the child. It is also uncontroversial that there were no public toilets nor that he assisted the child to go to the toilet at any stage. Earlier in the day, Ms F did take the child to the toilet but without involvement by the applicant.
Whilst it was not the position of the ICL that the applicant had sexually abused the child or that he presented as an unacceptable risk to her, it was apparent that counsel for the ICL wanted to explore the extent to which the allegation of the child (as relied upon by the respondent) had any foundation.
I am able to find, on the balance of probabilities, that there was no occasion or opportunity on 18 June 2023 for the applicant to sexually assault or abuse the child.
I also accept the evidence of the applicant, as supported by Ms F and the paternal grandmother, that the child very much enjoyed her time with the applicant.
I consider that the applicant was a sound witness. He was calm and responsive to detailed cross-examination. I did not get the sense that he had a malicious intent or disposition towards the respondent and was satisfied that he was prepared to put aside the difficulty experienced by him arising from allegations of sexual abuse.
As considered, I find that the applicant had not given much regard to the manner in which he would be able to manage the child were orders to be made that there be a change in the child's primary care to him. He provided little evidentiary assistance as to the extent and nature of the therapeutic input required to, at least in part, ameliorate the likely distress to the child of transitioning to the applicant's care.

[44]

The respondent relies upon her evidence contained in her trial affidavit filed 25 March 2023.
The respondent continues in her employment as an administrator in a company and continues to have the full-time care of the child.
The respondent confirmed that after separation, the applicant did not return to her home and whilst she confirmed the allegations of sexual abuse arose out of the events of 18 June 2023, she is now open to the possibility that sexual abuse did not occur.
The respondent remains concerned that the child will regress significantly in behaviour if made to spend time with the applicant. She is worried that the child will not be able to sleep alone and could experience difficulties at school if required to see the applicant.
The respondent's contention is that she was initially shocked when told that the educators at ELC had considered that a disclosure had been made and as a result completed a mandatory notification report.
The respondent was told that following the disclosures at ELC, two educators had inspected the child's genitals in a disability toilet. Prior to 20 June 2023, no adverse reports were made by ELC to the respondent, however in a phone call on 25 May 2023, an ELC teacher said that she observed the child rubbing her legs together. As is now understood, the observation disclosed to the respondent was considered by her to be an example of sexualised behaviour.
The respondent took the child to the doctor to rule out a medical diagnosis.
The process thereafter was damaging to the child. The respondent was requested to take the child for a medical examination at the Region P Medical Centre. A doctor then conducted an internal examination of the child's genitals which the applicant concedes was very distressing and upsetting for her and shocking for the child.
A Medical Report was received on 28 September 2023 with a concluded diagnosis that the child suffered from genital inflammation which typified "non-specific vaginitis."[7]
The respondent's evidence is that she now accepts the diagnosis of vaginitis, and that the inflammation was not as a result of sexual abuse perpetrated by the applicant.
The respondent still considered that the child is at physical risk in the care of the applicant given that the child had told her "[Mr Waibel]" (the applicant) had hurt her. The respondent conceded that the child did not elaborate as to what she says the applicant did but remained concerned about a bruise around the child's neck and on her legs.
To better confine and contain the period during which the respondent became concerned as to matters raised by the child, she concedes that there was no issue with the applicant before 23 January 2023. It is the respondent's position that she was supportive of the child's time with the applicant and did all she could to promote the relationship. She referred to the orders sought in her Response to Initiating Application filed 6 October 2022 which provided for the parties to have equal shared parental responsibility in respect of long-term decision-making for the child, and for the child to live with her and spend time with the applicant as may be determined by the Court after the applicant and the child participating in family therapy.
The broad contention of the respondent was that the orders sought by her reflected the child's resistance to readily separate from her. However, she also acknowledged that it would be in the child's best interests to maintain a relationship with the applicant.
The respondent had raised the involvement of the parties and the child with Ms R, therapist. The respondent acknowledged that the therapeutic intervention was not successful and did not focus on the primary issues that the respondent considered were adversely impacting the child.
What is apparent, however, is that from a very young age, the child has been required to engage in well-meaning but possibly unhelpful therapy, assessment, invasive genital examination and forensic interview.
Other than the respondent's concern as to the child's reluctance to engage with the applicant, she conceded that between July 2022 and June 2023, no other allegations were raised other than a vague assertion that the applicant may have smacked the child in the bath. The respondent's evidence was that the child would just say she did not want to go into the applicant's care.
The respondent adopted the practice of preparing detailed notes of the child's reported interactions with the applicant and her observations of the child's demeanour. The respondent revealed that the notes were to be used to progress the CPS investigation.
The respondent recorded interactions between the child, the applicant and the aftermath from 29 January 2023 to 18 June 2023.
At the conclusion of the notes, the respondent summarised her assessment of the child's presentation and recorded in detail what the child had expressed.
It was conceded that the respondent's notes should have been disclosed to the applicant. It is difficult to know the weight that was placed upon the notes in general or upon particular extracts by CPS other than the broad overview that notwithstanding the content of the notes, sexual abuse could not be substantiated.
It is apparent from a consideration of the respondent's notes that now comprise Exhibit "5", that the respondent recorded the child's reluctance to spend time with the applicant, occasions when she says that the child wet herself and detailed any remarks by the child which could corroborate or sustain the allegation of sexual abuse.
There was significant cross-examination on the parts of the respondent's notes that recorded the child's concern about her wanting to lock doors with the implication that it was to protect her from the applicant.
The following extract is from the respondent's notes recording interaction between the applicant and the child on 5 March 2023 at B Park:

[46]

The respondent did not disclose how her notes were prepared, whether they were contemporaneous with events as recorded or prepared at a later time in the absence of the child.
It is likely that the child was aware that the respondent was interested in what she had to say, particularly when it related to the applicant.
An important consideration is that the child does not have any current relationship with the paternal family. It is not suggested that there is any reason for the child to be frightened of any members of the applicant's family and as such, there is limited evidence to explain why the child's opposition extends beyond a reluctance to interact with the applicant.
The respondent did not impress as a reliable witness. Even in the knowledge that there is no credible evidence that the applicant had behaved sexually inappropriately with the child, her stated position is one of disbelief.
The respondent was critical of the applicant, and it is apparent from her detailed notes, her affidavit and oral evidence that she does not consider the applicant has anything to offer the child.
It is likely that the respondent is not genuine in her assertion that she will abide by court orders. More is required. Since 19 June 2023, there is no evidence that the respondent is prepared to acknowledge the applicant as a parent. The respondent did not impress as having had a 'Road to Damascus' realisation that the allegations of sexual and physical abuse are without any credible foundation.
The presentation of the respondent in evidence is such that a finding can be made that she would not easily promote or support the child's relationship with the applicant.
A relevant consideration is the apparent inability by the respondent to require the child to refer to the applicant by any other more familiar name than "[Mr Waibel]." The respondent's evidence is that despite her best endeavours, she has not been able to change the child's attitude towards the applicant. It is unlikely that the respondent would positively support the child's relationship with the applicant.

[47]

Ms BB ("Ms BB") is the maternal grandmother. It is apparent from the content of Ms BB' affidavit filed 18 March 2025 that she does not hold the applicant in high regard. She is disparaging of the applicant and for reasons that are likely to be relevant to the future parenting arrangements for the child, Ms BB relays conversations that she overheard between the parties rather than those in which she participated to reinforce her view that the applicant was demeaning towards the respondent and at times, aggressive in his interaction with her.
An aspect of the proceedings is the respondent's evidence that despite her best endeavours, she has not been able to deter the child from calling the applicant "[Mr Waibel]" as opposed to "dad." The issue is curious in that it is raised potentially as an indication of the lack of relationship between the child and the applicant. The inference projected is that the use by the child of the applicant's forename is intended to be pejorative.
Ms BB says as follows:
1. [The child] would refer to [Mr Waibel] as "dad" however this changed to [Mr Waibel] very quickly. I heard [Mr Waibel] and [Ms Trevis] encourage [the child] to call [Mr Waibel] "dad" however it never stuck and it was not enforced...[9]
Ms BB was involved with assisting the handovers at the M Contact Centre, S Café and B Park. The broad summary is that despite wanting to facilitate the handover and transition of the child into the care of the applicant, she was unsuccessful. The child would cling to her and not go to the applicant despite her encouragement.
I accept that, on occasion, the child was reluctant to transition to the applicant's care, however Ms BB was unconvincing as to the level and extent to which she was prepared to encourage handovers to occur or as to whether the applicant had any beneficial qualities to offer the child.
Ms BB became aware of the allegation that the applicant may have sexually abused the child by touching or rubbing her vagina.
The Medical Report of CPS (being Exhibit "6") highlights that the child had demonstrated what had apparently happened to her by rubbing or touching the genitals of a doll in the presence of Ms BB.
Ms BB' trial affidavit does not make mention of the use of a doll to assist in the description and depiction of what might have occurred.
The use of dolls in respect of allegations of sexual abuse, whether anatomical or otherwise, should be avoided. It is likely that the child was either encouraged by Ms BB to use a doll or that the child was encouraged in the demonstration arising from the overt interest of Ms BB. There was certainly no suggestion that it was discouraged.
The evidence of Ms BB was unreliable arising from the significant omission in her trial affidavit of the use of a doll to enable the child to demonstrate what had allegedly occurred to her, and also by her palpable dislike of the applicant. I am satisfied that Ms BB remains implacably opposed to the applicant and would not be capable of encouraging or promoting the child's relationship with him.
In that respect, the evidence of Ms BB is troubling given that the respondent's case of necessity would see a continuing involvement by the maternal grandmother.

[50]

Ms V has not had a continuing involvement in the matter since the assessment and subsequent Assessment Report dated 31 October 2023. She was professional in her presentation and conceded that her memory was poor, preferring to rely upon her notes.
She was asked whether she had made any note as to whether she thought that the child may have been coached by the respondent or others. Whilst it was unclear, she did not form a negative impression.
The gravamen of Ms V's evidence is to be derived from the content of the Assessment Report as opposed to her separate and independent recollection.
The Assessment Report confirms that the family had a minimal child protection history in relation to the child, but that there were four notifications dating back to August 2022 and October 2022. The broad thrust of the notifications was a report that the child continued to tell the respondent that she did not wish to see the applicant, referred to him as "[Mr Waibel]," and that there were concerns surrounding the child locking doors at home fearful that the applicant would take her away.
It is a significant issue that much of what is contained in the Assessment Report is derived from the respondent's notes for the period 20 January 2023 to 18 June 2025 (being Exhibit "5").
The Assessment Report notes a report to DCP that the child was observed to be rubbing her genitals under a blanket. When the child was asked why she needed to do this, her response was "[Mr Waibel] touched my fanny" and "[Mr Waibel] touched me and it's sore."
It was noted by Ms V that the child's vaginal area had been examined by two adults. During the examination, the child repeated "[Mr Waibel] touched me in the hole" whilst she and the applicant were foraging.
The notifier also added that the child had been observed to masturbate, and it was around this time that the child began to experience difficulty in separating from the respondent and being collected by the applicant from kindy or childcare pursuant to court orders.
The Assessment Report also noted that the applicant agreed to a safety plan such that he would have no contact with the child. The outcome of the forensic medical assessment indicated that the vaginal redness and inflammation was "well explained by visible vulvovaginitis."
The first forensic interview with the child occurred in July 2023. The child was four years of age. Ms V considered that the child was "bubbly, warm, and bright, walked into the interview room comfortably and easily engaged in conversation with the CPS clinician."
Ms V commenced the interview by establishing ground rules to explore the extent to which the child could differentiate between truth and a lie.
When asked, the child said that she did not know why she was there, but she thought it was because she had seen a doctor "coz they were checking my fanny."
The clinician directed the child to the "[plants]" activity on 18 June 2023. When asked to speak about what happened, the child said "I don't know" and then "[Mr Waibel] did it." When asked what it was that the applicant had done, the child was not able to better elaborate.
The questioning of the child continued and despite prompting, the predominant response of the child was "I don't know", or to ignore the questions. At the end of the assessment, the child said, "I was at the [park] when he hurt my fanny."
In the feedback session to the respondent, she was advised that the allegations were without adequate substance and contextual information and, therefore, inconclusive. The Assessment Report records that the respondent did not know how she was going to re-engage with the applicant concerning the child spending time with him following the allegations. Perhaps prophetically, the Assessment Report records the respondent as saying, "he is going to think this is a joke and he will try to blame and gun for her [the child] to be taken from me."
It is apparent that subject to further information or other developing circumstances, Ms V did not intend for there to be a second interview.
On 4 August 2023, Ms V records that the respondent phoned CPS advising that the child had been requesting to speak to CPS again and was "white and clammy, crying, super clingy" and "was presenting as fearful."
The child was recorded by the respondent to repeat that the applicant had touched her vagina and was "smacking it and hitting it" apparently in two different houses.
The second forensic interview occurred in August 2023. Ms V recorded that the child's presentation was "confident and bright."
Unlike the first forensic interview, when asked why the child had come to speak to the clinician the child responded by saying, "Uuh [Mr Waibel] hurt my fanny." It was recorded that this had occurred lots of times and at the playground.
The opinion and recommendations arising from the CPS Assessment Report was that sexual abuse could not be substantiated and that:

[66]

It is apparent from the Therapy Summary Report that Ms H gave careful consideration to the matters raised in the first Family Assessment Report prepared by Ms L, psychologist ("Ms L"), dated 24 March 2023, and documents relating to the child's engagement with DCP and CPS including the Assessment Report, the Case Closure letter and the Forensic Medical Assessment conducted on 22 June 2023.
In the intake session with the respondent, the following summarises her position:
1. Due to [the respondents'] reportedly close and robust relationships with both her parents, she felt sad at the possibility of [the child] not having a meaningful relationship with [the applicant] and [the child] feeling fearful of [the applicant]. Conversely, [the respondent] highlighted the importance of maintaining [the child's] physical and psychological safety in the context of unsubstantiated allegations of sexual abuse against [the applicant].[19]
It is apparent from the matters recorded by Ms H from the intake session that the respondent held a view that the applicant had sexually abused the child. It was recorded that the respondent referred to the applicant having hurt the child's vagina whilst assisting her to dry off after a shower.
Moreover, it was obvious that there was a deep level of mistrust between the parties and there was little in the respondent's presentation which would have enabled Ms H to consider that the intended therapeutic intervention was either supported by the respondent, or that there was any likelihood that a relationship between the applicant and the child would be encouraged and supported.
Moreover, Ms H noted that the child presented "as strongly resistant to the possibility of reconnecting with [the applicant]." The child continued to say that the applicant had "touched my fanny." The following paragraphs from the report are relevant:
1. [The child] was advised that [the applicant] would be attending the therapist's office at the next therapy session. [The child] did not display overt fear or anxiety. However, she requested that the therapist ask [the applicant] if he touched [the child's] genitals. [The child] warned the therapist that [the applicant] would deny the allegation.
2. Following further exploration, [the child] shared that she wanted the therapist to tell [the following] the following: "[the child] doesn't like you because you always touched her fanny, and to stop touching [the child's] fanny."
3. [The child] indicated that she wished to be present when the therapist informed [the applicant] of the above.
4. The above suggested that [the child] considered the therapist to be a sufficiently safe adult to speak on her behalf and advocate for her wishes and safety regarding [the applicant].[20]
The purpose of Ms H's involvement was to provide a therapeutic based intervention that would explore and hopefully restore a relationship between the child and the applicant. Her preparedness to undertake the role in all the circumstances is not easily understood.
Ms H's role was not to advocate for the child in terms of matters relating to allegations of sexual abuse nor to explore those allegations.
A proper approach by Ms H would have been to undertake the necessary intake sessions to determine whether there was a basis for the therapeutic intervention to continue. If Ms H believed, as she apparently did, that there was some substance to the allegations of sexual abuse, that should have been a sufficient warning sign that any attempt to reintroduce the child to the applicant was ill-advised, not child-focussed and had the very real potential of causing emotional or psychological harm.
The other unfortunate aspect is that it may well have also had the unwanted outcome of reinforcing a false narrative of sexual abuse.
It was unlikely that even with the most generous view of Ms H's actions, the applicant was likely to concede that he had engaged in sexual abuse. It is also not clear what Ms H had intended would be the advantage of telling the applicant that the child did not like him because he "always touched her fanny."
In circumstances where it was likely that the applicant would be consistent with his previous denials of any conduct that could constitute sexual abuse, the matter could go no further given that it was unlikely the child would alter or change her position.
It is a startling observation that at the conclusion of the session, the child independently approached the applicant for a brief hug and to say goodbye.
In subsequent sessions, Ms H records that the child was "uncharacteristically distant from [her]" and ignored attempts to engage.
It is likely that the child did not wish to further engage in the therapeutic intervention and even though the child continued to assert that the applicant had touched her genitals, the continuation of the therapeutic sessions continued.
On 24 May 2024, Ms H records that the child was unwilling to remain in the same room as the applicant. As such, she considered that there would be an advantage if the child wrote a brief letter to the applicant which she would read to him in a separate room. Apparently, Ms H assisted the child to correct her spelling and the following note was penned:

[72]

Ms E ("Ms E") is a Regulation 7 Family Consultant. She holds tertiary qualifications.
She has worked in her capacity as a social worker specialising in child and youth health from 1999 until 2007 when she held the position of senior social worker. From 2013 to the present, she has practiced as a Regulation 7 Family Consultant.
Ms L was jointly appointed by the parties to prepare a Family Assessment Report pursuant to interim Orders of 12 October 2022 and 23 January 2023 ("the first report").
Pursuant to the Orders of 3 December 2024, Ms E was required to prepare a further Family Assessment Report in anticipation of the final hearing. Ms E produced her Family Assessment Report on 17 March 2025 ("the second report").
As is not uncommon, Ms L was provided with a raft of court documents for the preparation of the first report, and Ms E was provided with an expanded tranche of documents for the second report.
In the first report, Ms L demonstrates an adequate understanding of the background to the parenting dispute including the current arrangements, relevant family background and the history of the dispute.
At the time that Ms L undertook the assessment for the first report, the child was in the primary care of the respondent and spent time with the applicant every Sunday from 10.00 am until 1.30 pm.
Relevant to the conduct of the interim proceedings, Ms L noted that the applicant's proposal was that the parties have equal parental responsibility for the child and that his time should increase to six nights per fortnight with the child. The respondent's proposal was that the child would remain in her primary care and spend time with the applicant as directed by the Court.
An important concession is recorded by Ms L, namely that the respondent considered that the child's reluctance to transition to the care of the applicant should be respected and as such, time should gradually increase based upon the child's needs.
Ms L recorded the respondent's allegation that she had been the subject of verbal and emotional abuse by the applicant and that she considered the applicant may have physically abused the child. Ms L recorded that the concern of the applicant, namely that the child was being influenced against him and was encouraged by the maternal family to refer to him as "[Mr Waibel]."
Each of the parties expressed to Ms L a different perception of the current time spending arrangements. The respondent was persistent in her concern that the child was frightened of the applicant, was not comfortable in his care, and that there remained a risk of physical or emotional abuse if the child was forced to spend more time with the applicant than she was able to cope with.
The applicant denied the allegations of physical violence and said that there was no basis for any allegation that suggested he had physically hurt or struck the child. The applicant considered that any apprehension demonstrated by the child was a result of the respondent's influence.
Whilst the applicant accepted that, at times, the child demonstrated reluctance to transition into his care pursuant to court orders, once the exercise had been undertaken, the child was happy and able to engage appropriately. It was his perception that the child was not being encouraged to enjoy her time with him.
For her part, the respondent reported to Ms L that whilst the relationship had started well in 2016, gradually the applicant's behaviour towards her worsened which she considered was a reaction to him being frustrated once the parties became aware that the respondent was pregnant.
The separation of the parties was tumultuous and whilst there had been an attempt at reconciliation following marriage counselling, the parties were not able to reconcile their differences.
The respondent detailed offensive language used by the applicant that she considered was intended to diminish and demean her status.
A continuing cause of concern throughout the proceedings has been the propensity of the child to refer to the applicant as "[Mr Waibel]." As discussed, the applicant contends that this is a deliberate tactic on the respondent's part to disrupt the child's relationship with him and to encourage the child not to refer to him as "dad."
The respondent denied that she had embarked upon any campaign or course of conduct, and that initially when the child referred to the applicant as "[Mr Waibel]", she would challenge the child and urge her to refer to the applicant as "dad."
Specifically, the respondent did not attempt to link the child calling the applicant by his forename as an indication of a lessening of the paternal relationship. The respondent opined that the child had heard other members of the family call the applicant by his forename and was simply mimicking them until a point was reached where it became the norm rather than the exception.
Ms L recorded the respondent's explanation for why the child appeared resistant at handovers:
1. In further considering why [the child] might be resistant at handovers, [the respondent] reported that she wondered if [the child] had been exposed to "so much conflict" between the parties and had been distressed at the inappropriate "way" [the applicant] "treated" her. [The respondent] further acknowledged that due to their past interactions, she would "get anxious" that [the applicant] had "no respect" for her and this would result in her "shutting down"...
The respondent's principal concern was that the request by the applicant for time with the child needed to be slowed down to better match the child's capacity to manage the transitions.
At the time of interview, the child was three years of age. Whilst Ms L observed the child to be active and confident, there could be little confidence in terms of any wish or view that the child might either express or be perceived to express by conduct.
In interview, Ms L recorded that the child was not able to name members of her family save for the respondent and members of the maternal family. When asked if she had a "dad" the child responded favourably in respect of her maternal grandfather but said that the applicant ("[Mr Waibel]") made her feel sad, reporting that the applicant had hit her and the respondent. The child was not able to provide further information.
The observed interaction revealed some reluctance on the part of the child to engage with the applicant, but did not display behaviour consistent with discomfort, distress or fear. The applicant and the child engaged in play activities and felt comfortable.
The following summary of the observation is recorded as follows:
1. When informed there was 5 minutes to go, [the child] initially appeared to have no response, before then requesting her "mummy and [Ms Y]". [The child] approached the writer to leave the room appearing to seek support from the writer. The writer encouraged [the child] to say farewell to [the applicant] and she agreed walking back to him to say goodbye. Of note was that when [the applicant] requested a "cuddle", [the child] replied "mummy says no" before hugging [the applicant]. [The child] walked out of the room calling out to [the applicant] "miss you".
In attempting to evaluate the relationship between the child and the applicant the following summary appears:
1. From the writer's perspective, it remained apparent that [the child] shared a close and connected relationship with her mother and whilst she interacted and engaged with [the applicant], she appeared less comfortable and relaxed with him. Although this difference was likely reflective of the limited time [the child] had spent with [the applicant], the writer also appreciated that potentially [the applicant's] alleged behaviours towards [the child] and [the respondent's] alleged comments to [the child] may have adversely influenced [the child's] understandings of her relationship with [the applicant]...
Ms L considered that any increase in time should be on a gradual basis to ensure that the child was comfortable and able to adjust to spending less time with the respondent and more with the applicant.
Specifically, Ms L was not supportive of the applicant's proposal that there be a reversal of primary care. She considered that it "would be detrimental" to the child and could have "significant developmental consequences for her." In her recommendations, Ms L supported a shared parental responsibility for decision-making for the child, that the child remain in the primary care of the respondent and spend limited but gradually increasing time with the applicant.
The first report and the underlying assessment was undertaken prior to the allegations of sexual abuse being raised at ELC on 20 June 2023. There is no allegation made by the respondent nor any reported by Ms L that alleges sexual abuse. I do not diminish the matters raised by the respondent that, at times, the applicant may have been aggressive in his demeanour and language towards the respondent (which the applicant denies). However, given those outstanding issues, the respondent acknowledged that it would be in the child's interest for her to spend time with the applicant provided it takes place and is implemented with sensitivity.
Ms E prepared the second report in anticipation of the final hearing. As highlighted, she had the advantage of a comprehensive list of court documents including court orders, the parties' affidavits and subpoenaed material together with ss 67ZBD and 67ZBE documents.
Consequent upon the report by the child's ELC educators to DCP in June 2023, the interim orders which were to provide for the child to spend three nights per fortnight with the applicant were suspended by the Orders of 24 August 2023.
Ms E was also aware of the engagement of the family with Ms H for reportable therapy in 2024.
At the time of the assessment, Ms E was aware of the following:

[74]

The parties and Ms E had the CPS Assessment Report dated 31 October 2023 which confirmed that sexual abuse was not substantiated. The respondent's position was that she believed the child and considered that ongoing disclosures reinforced in her mind that the applicant had hurt the child and touched her vagina.
For his part, the applicant maintained his trenchant denial of sexual abuse and said that after the initial allegation of physical abuse in 2022, he was careful to ensure that there was always another person present during his interaction with the child which usually comprised a member of the applicant's family or his partner, Ms F.
The respondent denied that she had behaved in such a way that the child would be reinforced in her refusal or reluctance to engage with the applicant. She was careful at handovers to have a civil relationship with the applicant, and this was corroborated by occasions of handover when there appeared to be a lessening of difficulties with the transition into the applicant's care and a return to the respondent's care without significant distress.
It is a simple observation that the respondent considered that the allegations of sexual abuse was the turning point. Whilst reluctant, initially the respondent was prepared to support the child's relationship with the applicant. However, following the notification alleging abuse on 20 June 2023, the respondent was thereafter mistrustful of the applicant, accepting of the child's alleged disclosures and unwilling to facilitate time.
At the time of interview and assessment, the child was aged five years. Ms E reported that the child separated from the mother without distress and was age and stage of development appropriate.
When the child was asked by Ms E whether she had a dad, Ms E records the following:
1. ..."I don't. [the applicant] is my Dad but he is stupid because he always touches my fanny and he will kill your Mum...are you going to talk with [the applicant]?". [The child's] affect was not distressed, angry or sad; rather, she remained matter of fact. [The child] was invited to provide a narrative about her comment "he will kill your Mum" and she stated "so when I was at another lady...far away...I forgot.....ummmm, in a different town...I always sleep when I go back and I get bread rolls when I got back in the car.....Nan said "how was the meeting?" and I said "no, because he (the applicant) said he will kill my Mumma". [The child] clarified that the applicant had made this comment "at the lady's place" (with [the child] confirming this was [Ms H]), with [the child], [Ms H] and the applicant "in the same room" when this comment occurred. She added that the applicant had "whispered (the comment) to me and said, "don't tell anyone".
In preparation for the observed interaction between the child and the applicant, Ms E arranged for the respondent to leave the office so that she did not come into contact with the applicant.
The child did not appear distressed, upset or frightened to see the applicant. There was then a period when the child exited from her hiding spot and began to set up the activity on the floor with the applicant becoming more engaged, entering into discussion and asking questions.
An important observation of Ms E is that the child was observed to remain regulated, made eye contact with him and often smiled. Overall, the interaction was spontaneous, animated and at times highlighted by the child delighting in the interaction.
After 40 minutes, the child indicated that she now wished to leave the room, allowed the applicant to assist her to put on her shoes, engaged in some further playful activity and then was reunited with the respondent. Whilst the observation of Ms E was that the respondent praised the child when advised of the positive nature of the observed session, in response to Ms E expressing a positive observation that the applicant and the child had "shared" the kinetic sand game, the child told the respondent the following, "I only gave him a little bit."
It was not the role of Ms E to determine the allegations of sexual abuse or to test the veracity of evidence. A precursor to a consideration of Ms E's recommendations was a determination by the Court as to the extent to which allegations of sexual abuse had either been made out, or that there was sufficient collateral information which would enable a finding that the child was at risk and, indeed on the respondent's case, an unacceptable risk.
Ms E considered that whilst the first report of Ms L and the child's presentation for the purposes of the assessment suggested that she had a poor view of the applicant, such an assessment is tempered by the child likely being aware of the respondent's deep mistrust of the applicant. Ms E opined that the child's age and stage of development when time spending commenced post-separation may be an explanation for the child's reluctance to separate from the respondent who at all material times was the child's primary carer. In summary, the child's reluctance to engage with the applicant may be a result of separation anxiety as opposed to fear, distress or concern at some aberrant conduct by the applicant.
Ms E was concerned as to the potential for the child to be influenced by the respondent's negative attitude towards the applicant. It is likely that there is no member of the maternal family that is able or prepared to support the child's relationship with the applicant. On that basis, Ms E summarises the position as follows:
1. 94. If the Court finds that sexual abuse has not occurred, it may rather consider that [the respondent's] support of a narrative that frames [the applicant] as an abuser is emotionally abusive of [the child]. In considering [the child's] future emotional wellbeing, this could have serious ramifications into her adolescence and adulthood if she carries the false notion of having been sexually abused, with regard to the impact on her relationships with others and her emerging sexual development and sense of identity and self over time.
2. [The respondent], justifiably or otherwise, worries that [the applicant] is not a safe parent. Whilst it may be the case that she notionally says and does the 'right' things in supporting [the child], at the same time it is nigh on impossible for a parent to completely quarantine their non-verbal expression of emotion from children who are generally very sensitive to their parent's emotional state. This is illustrated via [the child's] clear awareness of her mother's feelings about her applicant. [The respondent's] poor view of [the applicant] is unlikely to change, given this negative view of him as a parent appears to have commenced during their relationship and has been compounded during this dispute.
Ms E opined that if sexual abuse has not occurred, then there is benefit to the child spending time with the applicant. Whilst the child resides in the primary care of the respondent, it is unlikely that there will be future success of time spending arrangements. Ms E considers that in circumstances where there is no substance to the allegations, if the child remains living with the respondent, then she will never be able to reform or re-establish a relationship with the applicant. As such, the respondent's conduct could be considered "emotionally abusive" to the point where it constitutes an unacceptable risk.
It is not surprising that Ms E considered that the child could be the subject of a tragic decision in either remaining with the respondent and maintaining a negative view of the applicant, and potentially harbouring the false narrative and belief that she had been the subject of sexual abuse by him, or transitioning to the primary care of the applicant and having little or no ongoing relationship with the respondent.
Under cross-examination by counsel for the ICL, Ms E accepted the proposition that the negative view that the child holds of the applicant mirrors that of the respondent.
Ms E was asked to consider whether the child's opposition to spending time with the applicant and not acknowledging him as her father could be explained by the respondent failing to exercise appropriate parental control and authority over the child. Ms E gave consideration to the child's developmental stage at the time of the parties' separation and when she first began spending time with the applicant as follows:

[88]

As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111], "a chance of a meaningful relationship...which is beneficial to" the child was likely to be to the child's advantage and the absence of such a relationship had "the potential to cause [the child] harm in the long term."
The respondent's contention is that the applicant had perpetrated family violence during the course of cohabitation as to physical harm by the use of aggressive and demeaning language to the respondent. In addition, the respondent alleges that there have been occasions when the applicant smacked the child whilst she was bathing and had either told the child, or the child overheard, a threat by the applicant to harm or kill the respondent.
The applicant denies that he exhibited any conduct towards the respondent that could be considered as family violence. He does not deny that towards the end of the relationship the parties had unhappy differences, but it is his position that the respondent was either deliberate in her efforts to disrupt and sever his relationship with the child or she was recklessly indifferent to that being the outcome and did nothing to promote the child's relationship with him.
The respondent conceded at the conclusion of the evidence that she was not able to discharge the onus of establishing, on the balance of probabilities, that the applicant had sexually abused the child. It is more difficult to understand whether the respondent accepts that there was no substance to the allegation of sexual abuse that arose following the child's disclosures to her ELC educators following an outing with the applicant and members of his extended family to collect plants from an area known as "[N Park]" on 18 June 2023.
The respondent contends that in the absence of the Court being able to make a positive finding of sexual abuse by the applicant, or that there are sufficient evidentiary indicators which would enable the Court to exercise its discretion and determine that the applicant presents as an unacceptable risk, the secondary position any attempt to restore a relationship between the child and the applicant would result in overwhelming emotional sequalae such as to constitute an unacceptable risk.
The parties find themselves mired in hostile litigation. The proceedings commenced in 2022 reaching a final hearing in 2025. The court file comprises some 108 filed documents and 37 separate court orders. As discussed, the child has been the subject of multiple assessments, interviews, unhelpful and probably inappropriate therapeutic engagement together with genital examination.
Whilst it is not now a matter of separate statutory consideration, I consider that the child is likely to benefit by having a meaningful relationship with both parents providing it is safe to do so. I am not obliged to make an order that ensures a child has a meaningful relationship. The obligation is to make orders that are in the child's best interests. A meaningful relationship is likely to be of benefit to a child but must be considered along with other relevant factors.
For his part, the applicant's contention is that the respondent has resisted his ability to establish and maintain a meaningful relationship and irrespective of whatever order may be made by the Court to promote a relationship, the respondent will either resist a relationship being established between the applicant and the child or will take no active steps to promote a relationship.
I do not ignore the possibility that notwithstanding the substantial advantage to the child of maintaining a meaningful relationship with her parents, the level of conflict and the unfortunate and, at times, deleterious involvement of the child in the court process may represent an overwhelming disadvantage. Such a consideration is secondary to the question of whether a meaningful relationship is of benefit to the child and how that may be reinvigorated.
Following separation, it is the respondent's position that she considered the child should maintain a relationship with the applicant and she took all necessary steps for that to occur. The respondent argues that the applicant was disinterested as a parent during the course of their relationship and was not enthusiastic post-separation. That contention is disputed by the applicant.
It is, however, a reasonable observation that up until the allegations of sexual abuse arising on 18 June 2023, on her case, the respondent promoted orders for the child to spend time with the applicant. I do not ignore that the applicant considers the respondent to be disingenuous in her assertion that she was prepared to promote a relationship continuing.
Ms E was clear in her opinion that there would be advantage to the child in having a relationship with the applicant. Whilst the observed interaction was problematic in terms of the level of enthusiasm shown by the child, as the observed interaction progressed there was evidence that the child was not frightened of the applicant nor was she distressed in his company. Whilst the child's interaction with the applicant might be considered as 'standoffish', the child and the applicant were observed to engage appropriately in games and other activities which appeared to be to her enjoyment.
The observed interaction at the M Contact Centre also enables a finding to be made with some confidence that a relationship exists between the applicant and the child which demonstrates an emotional attachment.
I do not ignore the remarks of Ms E that a credible explanation for the child's reluctance to engage with the applicant rests with the age of the child at separation. Ms E considered that the child maintaining a meaningful relationship with the applicant was of sufficient moment to recommend that if the Court determined the applicant had not sexually abused the child or behaved inappropriately with her, then there should be a change in the primary care.
By necessary implication, the respondent concedes that but for her concern that a change in primary care will result in the child experiencing an unacceptable risk of emotional and/or psychological harm, there is benefit in the child having a relationship with the applicant.
Whilst it could not be said that the time spending arrangements prior to the allegations of sexual abuse having been raised were uneventful, it was after the disclosures, and the ensuing investigation and assessment that the respondent's position hardened and the orders that she now seeks are such that she does not consider there to be any advantage to the child in maintaining any relationship with the applicant.

[97]

In considering the split decision in Fitzwater v Fitzwater [2019] FamCAFC 251; (2019) 60 Fam LR 212, the Full Court in Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 considered that the majority opinion was affected by error and summarised the position as follows:
1. Further, we accept that Austin J did not say s 140 of the Evidence Act has no role to play in a case where an unacceptable risk of harm is alleged; only that the civil standard of proof is not the measure by which an unacceptable risk of harm is to be assessed. The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm.
To further emphasise the point, reference to the application of statutory provisions is emphasised as follows:
1. As the Full Court has previously counselled, the terms of the Act are of pre-eminent importance (Simmons & Kingley [2014] FamCAFC 47; (2014) FLC 93-581 at [17]-[20]). The provisions of ss 60CC and 60CG of the Act are wide enough to embrace most, if not all, assertions of an "unacceptable risk" of harm to children and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act.
It was belatedly conceded that the respondent has not discharged the onus of establishing, on the balance of probabilities, that the applicant sexually abused or assaulted the child.
Moreover, I do not consider that there is any evidence which could be relied upon such that I would exercise my discretion in finding that the applicant presents as an unacceptable risk.
A careful consideration of the CPS Assessment Report provides no corroboration for any allegation of sexual abuse, nor does it raise the fear of the child being at physical risk in the future if she were to come into contact with the applicant.
Whilst it is not determinative, it is a relevant consideration that there has been significant investigation in respect of the allegations which did not result in any criminal charges being laid and a clear outcome following the CPS investigation that sexual abuse was not substantiated.
It must be remembered that the catalyst for the allegations of sexual abuse and the subsequent investigation arose from matters said by the child to her ELC educators. I do not ignore that, at the time, the child was four years of age. These are not criminal proceedings and as such, whilst strict proof is not available, I adopt a cautious approach given the age of the child and am careful to ensure that the child is not placed at risk. The focus must be to ascertain the child's best interests.
The respondent concedes that the period during which the child may have been exposed to sexual abuse by the applicant is limited. After the purported disclosures on 20 June 2023, the applicant had no further contact with the child. After separation, the applicant spent time with the child pursuant to initial agreements between the parties and then as determined by the provisions of various court orders.
I am satisfied that the applicant was aware that the respondent was not supportive of his time with the child and as such, took care to ensure that his opportunity to spend time with her alone was minimised. I am satisfied that the relatively limited periods of time spending were either supervised or in the presence of others, particularly his family.
A good example is the evidence as to the events of 18 June 2023. Other than some brief periods when the applicant was alone with the child in his car, at all other times either the paternal grandmother, Ms F or the applicant's sister, Ms G, were present. The evidence is compelling and enables me to make a finding that there was no opportunity on 18 June 2023 for the applicant to sexually abuse or assault the child. It is not a matter of nuance nor degree.
I accept the evidence of the applicant. The evidence of Ms F, the paternal grandmother and the applicant's sister should also be considered reliable. On that basis, I am able to find, on the balance of probabilities, that the applicant did not sexually abuse the child. During the periods of time spending, the child was not at risk in the applicant's care.
I do not ignore that the child's presentation towards the applicant was, at times, resistant to seeing him or spending time with him. I also accept that the respondent did not support a relationship between the applicant and the child whether by direct interference or otherwise.
I also accept the opinion of Ms E that an alternate answer to the child's reluctance to engage fulsomely with the applicant may be a result of separation anxiety in circumstances where the child was two years old and found difficulty in navigating separated parents.
The evidence of the maternal grandmother was of limited assistance other than to establish a foundation that fomented a disparaging view of the applicant. As discussed, there is no circumstance where the extended maternal family and the maternal grandmother would provide a supportive environment for the child to engage with the applicant.
There is a paucity of evidence relied upon by the respondent to establish a foundation for the Court to consider that the child would be placed in a position of unacceptable risk of emotional or psychological harm if orders are made for time to be spent with the applicant.
A careful consideration of the alleged disclosures made by the child, the CPS Assessment Report consequent upon their investigation, the unsatisfactory evidence of Ms H and the single expert evidence of Ms E leads to a finding that sexual abuse did not occur. As discussed, Ms E promoted, at least as an option dependent upon the Court's findings as to the applicant having sexually abused the child, for a change in the child's primary care. It is Ms E who was best placed to assist the Court in understanding how the child would be advantaged or disadvantaged by the orders sought by each of the parties.
The ICL promotes a change in the primary care such that the child will, thereafter, have only very limited time with the respondent. It is reasonable to surmise that the ICL places significant weight on the recommended options as promoted by Ms E.
The stance of the ICL is predicated upon a finding by the Court that the respondent presents as an unacceptable risk to the child by her inability to accept that the applicant did not sexually abuse the child, a reluctance to promote the child's relationship with the applicant, and the very real risk to the child of her life being disrupted and adversely affected by maintaining a false narrative that the applicant has sexually abused her.
The difficulty with the position adopted by the ICL is that whilst there is evidence that could support the submission, a further risk arises from the paucity of evidence on the part of the applicant. Such paucity is in relation to the applicant's personal and domestic circumstances and, in particular, his ability to properly care for the child both in terms of the immediate psychological needs as highlighted by Ms E consequent upon a transition to his care but then also her long-term needs in terms of the day-to-day parenting requirements.
The applicant did not impress as having given careful and detailed thought to the needs of the child both in the immediate future (should there be a change in primary care) nor to the medium and long-term future.
The involvement of Ms F is such that she should be considered as an appropriate adult and likely to provide a measure of assistance to the applicant. Little is known as to the applicant's work arrangements, his current domestic circumstances, his plans for the child's education (both curricular and extra-curricular) and importantly, how he will navigate the uncontested evidence of Ms E that the child will be significantly affected by a change in the primary care. I propose to bring those matters to account.

Waibel & Trevis [2025] FedCFamC1F 372 (23 June 2025)

At a glance

Court

Decision date

Before

Source

Judgment (146 paragraphs)

Legislation Cited (2)

Cases Cited (6)