Walshe & Walshe [2025] FedCFamC1A 231 (15 December 2025)

House v The King (1936) 55 CLR 499; [1936] HCA 40

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Kellerman & Kellerman [2024] FedCFamC1A 126

Marvel & Marvel (No 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101

Maviglia v Maviglia [1999] NSWCA 188

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9

Nootkamp & Brulja [2023] FedCFamC1A 90

Perdicari & Perdicari (2019) FLC 93-914; [2019] FamCAFC 147

Pickford & Pickford (2024) FLC 94-230; [2024] FedCFamC1A 249

Pierce & Pierce (No 2) [2025] FedCFamC1A 162

Pilot & Silver [2022] FedCFamC1A 191

Sacco & Allan (No 2) [2024] FedCFamC1A 139

1. The oral application of the father seeking leave to appeal from the order made on 10 July 2025 dismissing his Application in a Proceeding filed on 1 May 2025 is refused.
2. The appeal is dismissed.
3. The appellant pay within 90 days the respondent's costs of the appeal fixed in the sum of $13,143.99.

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

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

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

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

1. By way of an Amended Notice of Appeal filed on 15 October 2025, Mr Walshe ("the father") appeals from a single order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 10 July 2025, being:

1. The application in a proceeding filed on 1 May 2025 is dismissed.

1. The father sought an order in his Application in a Proceeding to spend professionally supervised time at a contact centre with X born in 2019 ("the child").
2. By way of context, interim orders were made on 8 November 2023, as varied on 20 March 2024, for the child to spend unsupervised time with the father.
3. Ms Walshe ("the mother") contends that the father poses an unacceptable risk to the safety of the child by way of sexual abuse, family violence, and emotional harm.
4. The child has not spent time with the father since early June 2024.
5. On 25 July 2024, the spend time with orders made on 20 March 2024 were suspended pending further order.
6. On 1 August 2024, an interim Apprehended Domestic Violence Order ("ADVO") was made on the application of the police for the protection of the child. The reasons record:
   1. The child has not spent time with the father since about [early] June 2024, at which time she disclosed, in essence, that her bottom and her genitals were sore because the father had wiped inside her bottom and genitals using his hand or his fingers with toilet paper after the child had used the toilet. The child was interviewed by a detective from the child abuse squad who, following the child's interview, successfully applied for a no-contact Provisional Apprehended Domestic Violence Order ("ADVO") against the father for the protection of the child.
   2. There is currently an Interim ADVO in place against the father for the protection of the child, which was made [in] August 2024, and which is in place until revoked. The interim ADVO is made in the mandatory terms, and there is a no contact order which prohibits the father from approaching the child or contacting her in any way unless the contact is through a lawyer, and prohibits the father from approaching the school or any other place that the child might go to study, and any place she might go for child care, or any other place listed, which includes the an early learning centre and a day care centre. There is a further order restraining the father from going within 50 metres of any place where the child lives, any place where she works or any other place listed, and there are no other places listed in the order.
7. A notation to the order under challenge records:
   1. It appears that the Office of the Director of Public Prosecutions ("ODPP") is currently considering whether the father will be prosecuted due to the disclosure made by the child during an interview with police conducted [in] June 2024. The pending decision of the ODPP is relevant information for the Court to consider when making case management decisions in the family law proceeding.
8. The Independent Children's Lawyer ("the ICL") supports the appeal. The mother opposes the appeal.
9. The mother identified that the judgment under challenge is published as being delivered ex tempore, attracting the import discussed in Maviglia v Maviglia [1999] NSWCA 188 at [1] and Perdicari & Perdicari [2019] FamCAFC 147; (2019) FLC 93-914 at [25]. It is not an ex tempore judgment, notwithstanding the catchwords and the heading on the reasons. The hearing was conducted on 4 July 2025. A large volume of material was adduced into evidence to be considered by the primary judge while also dealing with a challenging workload. An oral judgment was delivered on 10 July 2025, with settled written reasons published on 11 August 2025.
10. The proceedings are not currently listed for final trial. On 14 November 2025, the proceedings were transferred from Division 2 to Division 1, it next being listed on 18 March 2026.
11. For the reasons that follow, the oral application of the father seeking leave to appeal from the order made on 10 July 2025 dismissing his Application in a Proceeding filed on 1 May 2025 is refused and the appeal is dismissed.

1. The parties met in 2016 when the mother was living in Town B, and the father was living in Town C. The mother has an 18-year-old son from a previous relationship, Mr D. Mr D lived with the parties during their relationship.
2. The parties commenced cohabitation in late 2016 in Town C and married in early 2018. They separated on a final basis on 1 March 2023 when the mother moved out of the home and relocated to Town B with the child.
3. The father commenced the proceedings in Division 2 on 16 March 2023. He sought an order that the mother return the child to live within a 50-kilometre radius of Town C, that the child live with the mother, and spend overnight time with him.
4. The child did not spend time with the father for around the first five weeks following the parties' separation (at [16]). In April 2023, the father spent supervised time with the child for the first time. This visit was "very positive" (at [52]). The mother was "supportive and encouraging towards the child's time with the father" (at [57]). The child's supervised time with the father moved from Town E to Town B due to travel demands and increased to two visits per week. The reasons record:
   1. There have been allegations of risk raised, including that the father engaged in illegal use of testosterone, which he has admitted to the single expert. The mother asserts that the father engaged in a pattern of coercive and controlling behaviour during the parents' relationship, including acts of sexual violence against her by way of nonconsensual touching and filming. The mother alleges that the father physically assaulted her child, [Mr D], and she raises the subject child's disclosure which is discussed further.
5. In July 2023, supervising staff observed that the child became more resistant of her time spent with the father. The father described to the single expert that the child's demeanour had changed, "was more standoffish and quieter with him". The father found the child's behaviour concerning. The father attributed the child's presentation change to her exposure to the mother's influence. The supervision reports record that the supervising staff detected that the child did not want to engage with the father but were able to redirect her, resulting in engagement and positive interactions between the child and the father. Thereafter the supervision reports record consistent reluctance by the child to attend supervised time with the father. Efforts to redirect the child to engage with the father were mostly successfully (at [59]).
6. Supervised visits between the father and the child were cancelled in August 2023 in the face of the child's resistance. The situation improved from September 2023 onwards (at [63]).
7. A single expert family report was prepared by Dr F dated 3 November 2023. The single expert noted that the child's reason for reluctance to engage with the father was related to her concern that the father "talks over [her]" (at [60]). This behaviour had not been observed by the supervising staff. The mother theorised that the child's resistance was due to the father's demanding behaviour during video calls with the child (at [61]).
8. The reasons then record:
   1. On 8 November 2023, interim parenting orders were made by consent, which provided that the child would commence to spend unsupervised time with the father, on a daytime basis initially for three hours before building to five hours, which time occurred, and time on special occasion such as the child's birthday and on Christmas Day.
   2. On 20 March 2024, further interim orders were made by consent which resulted in the child spending time with the father on an unsupervised basis including, from 20 May 2024, overnight each Monday and Friday. Those orders were implemented until [early] June 2024.
9. The father described the unsupervised time spent after the orders made on 8 November 2023 "as positive for the child" (at [64]).
10. The primary judge's reasons record:
    1. The mother's evidence is that [in early] June 2024 she collected the child from day care after the child had spent unsupervised time in the care of the father in accordance with the interim orders made by consent on 20 March 2024. The mother says that she observed that the child kept grabbing her genitalia. The child complained that her "flower" hurt. "Flower" is the term by which the child refers to her genitalia. The child told the mother that her flower hurt on the inside, and that it had started to hurt after the father wiped it after the child had done a poo and a wee.
    2. The mother did not immediately assume that the father had done anything wrong. She says that her initial assumption was that the pain the child was complaining of was possibly due to faeces contacting her genitalia, and the child and the mother indeed went out that evening to a community event, and the mother says that while she and the child were out, she observed that the child was uncomfortable and complaining of pain. The mother says that she asked the child, "How did Dada wipe your flower?" and that the child said that he wrapped toilet paper round and put his hand "like this and wiped inside and it hurt". The mother says the child held her hand up with her thumb tucked in and mimed wrapping toilet paper around her four fingers and then held her four fingers up straight with her thumb still tucked in. The mother says the child said that the father put his hand "like this and went inside my flower". The mother says that she was shocked by this because the child can wipe her own bottom when she is with the mother, and her parents, and at day care. The mother says that later in the evening she bathed the child and could not see any outward signs of concern.
    3. The next day, ... the mother says that the child said that her flower was still hurting and complained of pain on the inside. The mother used a wet wipe to wipe the child's bottom after the child had been to the toilet and the mother again asked the child how the father had wiped her. The child again gave a visual description of the father's actions. The child held her hand up with her thumb, fourth and fifth fingers tucked in and mimed wrapping toilet paper around her two fingers, and then held her two fingers straight up, and with the other hand made a pincer grip with her fingers and did an opening action. The child's visual descriptions are slightly different, but nonetheless broadly consistent.
    4. The mother took the child to a general practitioner [in the morning] on [that day]. The general practitioner immediately referred the child to [Hospital G], where the child underwent a forensic medical examination. It appears that the child was not questioned by anyone at the hospital. The hospital examination did not demonstrate any abnormalities. The examiners at the hospital, however, told the mother to take the child to the police station. The mother did that, and the child was interviewed by a child abuse squad detective on [that same day]. The police interview with the child is contained within Exhibit F2 and I have read it for the purposes of this decision.

...

1. On 25 July 2024, by consent orders 3, 4, 5, 6, 7, 8 and 9 of the interim parenting orders made on 20 March 2024 were suspended until further order. The suspended interim orders are those which provided for the child to spend time with the father and communicate with the father on an unsupervised basis.

2. The father has consistently maintained that the mother's allegations against him are false and vexatious and that the mother is undermining and failing to support his relationship with the child.

(Footnotes omitted)

1. The father asserts that the child has been influenced by the mother to resist or fear him, that she has inappropriately influenced the child to hold a negative view of him, and has emphatically and persistently denied any inappropriate sexual behaviour between he and the child.
2. The primary judge's reasons also record:
   1. It is common ground between the parents that in May 2024 the father was charged with common assault on [Mr D] arising from the incident in January 2023, and an interim ADVO was made for the protection of [Mr D] [in] July 2024. [In] November 2024, the offence of common assault against the father was found proven in the Local Court, and the father was sentenced to a conditional release order for 15 months. A final ADVO, no contact, was made against the father for the protection of [Mr D] for a period of two years. The father lodged an all-grounds appeal to the District Court, and the order in the Local Court was quashed [in] April 2025.

...

1. The mother has consistently maintained, throughout the course of the proceeding, that she considers that the child is unsafe in the care of the father for a variety of reasons, and she has expressed doubt about his parental capacity in general, and concern about the father's sexualised needs and his behaviour and how this may impact the child in the future in terms of the child being exposed to such behaviour in the context of the father engaging in other relationships.

(Footnotes omitted)

1. Before the primary judge, the father sought orders for supervised time at Supervision Service H, denying that he poses any risk to the safety of the child. It is his case that any disclosure by the child is innocuous and that the mother has influenced the child (at [6]-[7]). The ICL supported supervision of time for two hours each fortnight by way of gradual reintroduction (at [9]-[10]). The mother sought dismissal of the father's Application in a Proceeding. She said that she intends to seek a no time order at any final hearing (at [8]).
2. The decisive issue to be determined by the primary judge at this interim stage of the proceedings was how best to protect the child from potential exposure to an unacceptable risk of harm to her safety until trial.
3. The primary judge recorded the extensive volume of evidence relevant to the assessment of the possibility of prospective risks posed to the safety of the child (at [44]-[126]). Within these paragraphs of the reasons, the father, and to some extent the ICL, assert that the primary judge impermissibly made findings on contested factual issues.
4. The primary judge ultimately concluded that it was not established that reintroduction of time between the father and the child would ensure the safety of the child and hence was not in the child's best interests (at [127]-[130]).

1. The father omitted to seek leave to appeal in his Notice of Appeal filed on 7 August 2025 or in his Amended Notice of Appeal filed on 15 October 2025. His Summary of Argument filed on 15 October 2025 did not address the issue.
2. Parenting orders are child welfare matters within the meaning of s 28(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCOA Act") and reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth). Leave to appeal is not required for orders in child welfare matters. Regulation 4.02(2) provides:

For paragraph (1)(a), a child welfare matter is a matter relating to the following:

(a) the person or persons with whom a child is to live;

(b) the person or persons with whom a child is to spend time or communicate;

(c) any other aspect of parental responsibility (within the meaning of Pt VII of the Family Law Act) for a child.

1. An order dismissing an application does not fall within the regulatory definition of a "child welfare matter" and is not a parenting order (Nootkamp & Brulja [2023] FedCFamC1A 90).
2. During the hearing of the appeal the father sought and was consensually granted leave to make an oral application for leave to appeal from the order made by the primary judge dismissing his Application in a Proceeding filed on 1 May 2025.
3. Whilst the discretion to grant leave is unfettered, generally the court will look to see whether the decision is attended with sufficient doubt so as to justify leave and whether a miscarriage of justice would occur if leave was not granted, supposing it to be wrong (Medlow & Medlow (2016) FLC 93-692).
4. As explained below, the father has not demonstrated that the order dismissing his Application in a Proceeding filed on 1 May 2025 is attended by sufficient doubt to justify a grant of leave. The application for leave will be dismissed.

1. The primary judge in this matter exercised a broad discretion as to the parenting of the child pursuant to Pt VII of the Family Law Act 1975 (Cth) ("the Act"). It is well established that, except as to grounds asserting procedural error, for an appellant to succeed in an appeal from an exercise of that discretion they must bring their appeal within one of the recognised categories of appellate intervention identified by the High Court in House v The King (1936) 55 CLR 499 ("House").
2. The weight given to evidence in the exercise of discretion in making an order that promotes the best interests of a child is a matter quintessentially for the primary judge. As identified in Kellerman & Kellerman [2024] FedCFamC1A 126:
   1. There is no doubt that in making parenting orders, the Court is exercising a very broad discretion. In CDJ v VAJ (1998) 197 CLR 172 the majority said "The evidence in residency cases is often such that the same body of evidence may produce opposite but reasonable conclusions." (at [140]). They added:
      1. The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [[1985] FLR 894 at 897-898], Lord Fraser of Tullybelton pointed out:

"The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory."

1. The father's Amended Notice of Appeal filed on 15 October 2025 prosecutes a single ground:
   1. The learned Judge made findings, on contested facts at an interim hearing where such findings were not open to [the primary judge] on the contested evidence. The findings made by the learned Judge both singularly and collectively amount to an error of law.
2. The purpose of a Notice of Appeal is to identify with precision the error asserted to have been made by the primary judge. It is challenging when the construction of a single ground of appeal identifies both an assertion of an error in application of principle and an error of fact.
3. The father's Summary of Argument submitted:
   1. It is well established, and the learned Judge refers in [the] Judgment, to the fact that [the primary judge] cannot make findings about certain issues, where there is a dispute, and where there are contested facts.
4. He drew an analogy from the joint judgment of Aldridge and Carew JJ in Pickford & Pickford [2024] FedCFamC1A 249; (2024) FLC 94-230, applying the principles espoused in that judgment as to allegations of family violence to allegations of sexual abuse. The father's Summary of Argument says:
   1. The Full Court recently in Pickford & Pickford [2024] FamC1A249 at paragraph 79 in a joint judgment of Justices Carew and Aldridge said this about the fact finding exercise (in that case in relation to issue of family violence, but it is submitted equally applying in a case of risk, especially allegations that a parent of a child has sexually abused that child) (my emphasis):

'However, in litigation under Pt VII of the Act, untested allegations made by one party against the other are true or false, if false, whether that falsehood is deliberate or inadvertent. Disputed allegations of family violence must be subjected to the same forensic rigour as any other contested issue (Edinger & Day [2023] 68 FamLR55). The party alleging the fact bears the onus of proving it (Wallaby Grip Ltd v QBE Insurance 240 CLR 444 at 36) and the standard is the balance of probabilities (Section 140 of the Evidence Act 1995 Cth). The same point was recently made by the Full Court, though perhaps in less robust terms (Leventis & Leventis [2024] FedCFamC1A 141; (2024) FLC 94-204 at 13-19)

1. The father's Summary of Argument submits:
   1. The above passage it is submitted is confirmation of the fact finding exercise of a Judge.
   2. Only after 'forensic rigour' as the Full Court refers to it can facts be determined and that usually only can take place at a trial when all of the evidence is both heard and tested by cross-examination.
   3. Despite that well settled doctrine, the learned Judge in this case made a variety of findings which were not open to her at an interim hearing.
2. Counsel for the father helpfully confirmed at the hearing of the appeal his contention was confined such that:

(a) The primary judge erred by failing to apply relevant legal principle by making findings on contested issues in an interim parenting hearing;

(b) The findings of fact he identifies elucidate that error of principle; and

(c) He does not contend a complaint as to appellate factual error (such that the asserted controversial findings were not reasonably open on the evidence; see Edwards & Noble (1971) 125 CLR 296).

1. The father misinterprets applicable principle.
2. The Full Court said in Marvel & Marvel (No 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348 at [122]-[123] that while findings of fact can always safely be made on uncontested evidence, findings made in interlocutory proceedings should be circumspect if the evidence upon which they are made is, or is liable to be, controversial.
3. Thereafter, in Banks & Banks [2015] FamCAFC 36; (2015) FLC 93-637 the Full Court said (at [50]) "[p]roperly understood, we do not interpret what was said in [Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286] as meaning that in an interim case, each and every fact must be characterised as disputed or not..."
4. A primary judge is not prohibited, despite constraints preventing the evidence being tested, from making contested factual determinations in an interlocutory Pt VII hearing. In Pilot & Silver [2022] FedCFamC1A 191 the Full Court said:
   1. There was some misapprehension in the prosecution of the mother's appeal that at an interim hearing the Court is prohibited from making any finding of fact on a controversial issue. Although the Full Court in Goode and Goode [2006] FamCA 1346; (2006) FLC 93-286 cautioned that the Court should be circumspect in making findings on contentious facts in this context, it has made clear that evidence must not be ignored simply because it is contested. At any stage of a proceeding, including at an interim hearing, the Court is both expected and required to give credible evidence appropriate weight.
5. The principles in assessing whether risk is unacceptable as identified in Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 ("Isles") remains a two-step process as to the consideration of conduct allegations applying the civil standard of proof and assessing the risk of recurrence. In an interim parenting hearing, these considerations are conservatively directed to the likelihood of the postulated event and the prospect and magnitude of harm that may flow if the event occurs.
6. The Full Court in Pierce & Pierce (No 2) [2025] FedCFamC1A 162 (at [31]) said:

The construction of Pt VII of the Act subsequent to the 2024 amendments places a consideration of the safety of a child or another person as a focused starting point in the considerations being weighed in determining a parenting regime that best promotes the best interests of the child...

1. Provisions of the Act now prescribe that a Court should not make orders for a child to spend time with a parent unless it is satisfied that it is safe to do so (s 60CC(2)(a), s 60CC(2)(e), s 60CC(2A) and s 60CG). These provisions mandate that a judge must engage with credible evidence of risks of harm to which a child might be exposed and against which they require protection, thereby making the evaluation of the contended risks an indispensable product of the interlocutory determination, despite evidence being contentious (Fowler & Northwood [2022] FedCFamC1A 173; (2022) FLC 94-114 at [24]). The assessment of risk is an evidence-based conclusion, not the product of an exercise of discretion (Isles at [85]).
2. Ensuring that competing claims as to controversial assertions are not ignored when considering an order that promotes the best interests of a child on an interlocutory basis engages nuances in evaluating the nature and quality of the evidence, including whether a primary or subsidiary fact is disputed, and the premise underscoring that dispute. Simply because evidence is disputed does not render it not credible or unreliable. These evaluations direct the process of weighing the probability of the competing factual disputes.
3. The father's revised ground that it is impermissible in an interim hearing to make findings on controversial factual disputes would fail, concluding that his oral application for leave to appeal ought to be dismissed at this juncture, absent further consideration.
4. The provisions of s 102NJ of the Act were raised with the parties during the hearing of the appeal as germane in the consideration of the revised ground of appeal. The section provides:

102NJ Power to make determinations, findings and orders at any stage of proceedings

(1) If, at any time after the commencement of child‑related proceedings or property or other non‑child‑related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:

(a) make a finding of fact in relation to the proceedings;

(b) determine a matter arising out of the proceedings;

(c) make an order in relation to an issue arising out of the proceedings.

(2) Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.

(3) To avoid doubt, a person who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to be disqualified from a further hearing of the proceedings.

1. Counsel for each party and the ICL said they had not given the section consideration. Counsel for the father identified that a predecessor of s 102NJ of the Act (being previously s 69ZR of the Act) was the subject of limited consideration by the Full Court in Sacco & Allan (No 2) [2024] FedCFamC1A 139, albeit in the context of a "discrete hearing as to risk" that was "bedevilled by delay". There the Full Court said:
   1. Whilst part of the armoury of the Court, s 69ZR is a power which, respectfully, should be exercised with a great deal of circumspection. It is questionable whether such power should ever be exercised in the absence of at least some expert evidence.
   2. To undertake a determination that there exists or does not exist an unacceptable risk at any time prior to a final hearing is a decision of considerable magnitude which can have far reaching consequences
2. Further consideration as to the possible evolution of applicable principle by way of the armoury resting in s 102NJ of the Act in the circumstances of an interim hearing in child related proceedings ought to be clearly identified and particularised in grounds of appeal and developed in the Summary of Argument, rather than being elucidated in oral argument during the hearing of the appeal (Nguyen v Nguyen (1990) 169 CLR 245 at 269).
3. Nevertheless, I propose to deal briefly with the merit, or otherwise, of the balance of the father's ground. He submitted that eight conclusions of the primary judge were "findings glaringly, which [the primary judge] could not have done on the untested evidence". He conceded at the hearing of the appeal that three of his eight contended impermissible "findings" were simply the primary judge recording the case as contended by the mother or recording summaries of evidence. As will be explained, the father's contentions as to "findings" made by the primary judge on contentious factual issues are hollow. The discrete passages he identifies when read in the context of the reasons are either not findings at all, comprise recitations and summaries of evidence, or are the exposure of the reasoning process to evaluate the nature and quality of credible evidence.
4. A subtle, but often not recognised, difference exists between the recording of evidence and its evaluation in the confines of an interlocutory parenting determination engaging with the mandated conservative assessment of risks posed to safety, and making findings of material fact on disputed matters.
5. The primary judge meticulously recorded the mother's allegations of family violence and abuse (at [68]-[90]) and the father's conceded illicit use of testosterone (at [78]), and the evidence of what the child said, and to whom, in addition to what was said to the mother, to day carers, to the child's teacher and school counsellor, reports to the Department of Communities and Justice, to the general practitioner, and to the police (at [44]-[48], [88]-[89], [90]-[92], [94]-[96] and [100]).
6. Exposure of the circumspect approach of the primary judge in weighing factors to determine what orders will promote the safety of the child is plain:
   1. So there have been various concerns, including concerns raised by mandatory reporters, such as the child's day carers and schoolteachers. The risks include potential subjection and exposure to family violence and sexual abuse, which could amount to physical and psychological harm to the child.
   2. The father proposes, effectively, a reintroduction to the child, as does the independent children's lawyer. Supervised time may ameliorate the risk of physical harm to the child, but there is still a risk of emotional harm to the child, even under supervision, which must be weighed and balanced against other risks, such as the risk to the child of not having a relationship with the father, which is more a consideration under the benefits to the child of having relationships with both parents. There are risks to the child if she does not spend time with the father, I accept that.
   3. There is a need to further interrogate the basis of the child's disclosures and behaviours and, at a preliminary stage of the proceedings such as this, I certainly can't discount the child's disclosures and I can't make a finding that the child's disclosures have been in any way influenced by the mother, as the father would have me find. A trial will assist the court to come to a concluded view about the extent to which the child is at risk of harm in the household of the father and the extent to which the child may have been influenced by the mother.
   4. Certainly, the risks to the child's identity and to her emotional development, if no order for time is made, are real and must be weighed and balanced against the risk that the child could be re-traumatised by exposure to the father. There is evidence of the child suffering pain and distress related to her experiences with the father.
   5. ...The court must determine whether it is in the best interests of the child to spend time with the father, and I can't delegate that decision to a third party. The court must make a decision about whether it is in the best interest of the child, at this stage on the current state of the evidence, to reintroduce her to the father. I am mindful of the fact that the contact supervisors are not therapists, and it occurs to me that by the time the child might exhibit observable signs of trauma, further damage could be done to her. Trauma could be re-triggered, and I must factor in that concern.

1. The primary judge repeats (at [32], [55], [105], [108], [110], [111], [118], [125] (twice), [127] and [128]) that the determination of the issue as to risk to safety will be determined at trial upon a ventilation and testing of the evidence, including by way of cross-examination.
2. As to the father's remaining five complaints said to elucidate asserted error as to principle, the relevant identified part of each paragraph as asserted is highlighted in bold, illustrated in the context of the reasons:

(a) "...The child's visual descriptions are slightly different, but nonetheless broadly consistent" (at [46]). To unpack this sentence, it is necessary to refer to the surrounding paragraphs of the reasons as recorded earlier (at [44]-[47]) and not repeated here. The father's submission that this impugned sentence is "suggestive of a finding" is not accepted. In the context, the identified sentence is the primary judge's correct recitation that the available evidence of what the child said to the mother, and to other "third-party sources", was slightly different, but broadly consistent. While the father puts into issue the origins and interpretation of what the child said, no material factual dispute was asserted that the child did not say what was reported.

(b) The father asserts the primary judge made a "clear finding" (at [94]):

1. The child was clearly displaying some sexualised behaviour at childcare as early as 2023, and the educators were concerned, particularly after the father appeared to brush off concerns about the child's swearing and when it was raised with him about the sexualised behaviour. In early 2024, the child's day care educators reported to DCJ helpline behaviours of the father towards the child which had led the educators to form concern that the child may be exposed to grooming behaviour by the father. They observed "unusual" interactions on a number of different occasions by the father toward the child, but nothing reportable, but culminating with an observation that, while in the car with the child on a hot day, it was observed that the father moved the child's dress and was rubbing sunscreen in between the tops of the child's legs. The above are reports prior to the child's disclosure in June 2024.

(Footnotes omitted) (Emphasis added)

The father agreed during the hearing of the appeal that the first half of the sentence subject to complaint is an accurate summary of the evidence of the child's day carer (AB p.164). He said there was no evidence of the "brushing off" concerns. That was not correct. The source of this evidence is Exhibit ICL2 and text messages annexed to the mother's affidavit as to the father "brushing off" the child's day carer's concerns (at [89]). The complaint is not a disputed finding, but a recording of the evidence on a particular topic as a precursor to engaging with it.

(c) The reasons record:

1. It's hard to know what to make of that, but it is another piece of evidence that has been presented to the Court in this matter, and it is certainly recent evidence of some distress on the part of the child relating to an event she is or appears to be recalling which occurred in the father's household while she was spending time with him.

(Emphasis added)

The primary judge is again recording uncontroversial evidence and legitimately pondering an enquiry.

(d) The father and the ICL submitted that the primary judge clearly made an "impermissible finding" (at [110] and [121]), focusing on the term "prima facie", said to establish a primary conclusion that the child's disclosures are accurate as to the father occasioning sexual harm:

1. Prima facie, this Court considers the evidence before me, including reports made by third parties and action taken by a police officer after interviewing the child, during which time the child certainly made a disclosure. There have been some submissions about what weight I could put on the child's disclosure and the child's capacity to tell the truth, but the child seemed to have a good grasp of her surroundings, and day and night and things of that nature. Certainly there's some inconsistencies, but overall there's a broadly consistent report by the child that the father did something to her with some toilet paper on his fingers which caused her to suffer pain that the mother observed after the event, and the child complaining about that pain, so it would appear to me that, prima facie, the mother does have some objectively reasonable reasons to hold some genuine concerns. At a trial, there can be a more detailed exploration of those concerns.

...

1. Currently on the state of the evidence, the child's basic needs, which I've already summarised in general terms, are being adequately by the mother. Some of the evidence, in my view, demonstrates, at least on a prima facie basis, that the mother values the relationship between the child and the father provided the child is safe, and the mother has raised safety concerns as a barrier to the child spending safe time with the father.

The term prima facie imports the opposite from that asserted, being a consideration of the starting point in evaluating the weight to be ascribed to the evidence informing risk.

Here the primary judge correctly summarised some evidence given by the mother, illuminating that it did not support the father's submissions about how her evidence should be interpreted.

1. The reasons importantly record:
   1. The child has her own lived experiences and while I can't make any findings at this stage, it's possible that the child's own lived experiences have led her to resist spending time with the father in June and July 2023. There's certainly some evidence that the child has been exposed to elements in the parents' relationship which may have caused her to be concerned that the father had hurt the mother, for example, and then the disclosure in June 2024. I am concerned that the mother, prima facie at least, has some genuine basis to hold some concerns.

...

1. There lies the problem for the Court in the current interim application, because all of these things cannot be tested until a proper and fulsome exploration of the evidence.

2. The single expert notes in paragraph 204 of the report the mother's contentions about the child's resistance, back in November 2023 before the subsequent events that have occurred in the child's life, that the child's resistance towards spending time with the father is related to exposure to the father's abusive and sexualised behaviour during the parent's relationship, and is plausible if those claims are accurate**. Should the child have engaged** in sexualised behaviour toward a peer in daycare, as the mother claims, and which is corroborated by the communication with the child's day carer, this may be related to such exposure and is of significant concern. If the mother's claims are accurate, this would indicate that the father has demonstrated a significant lack of parental insight in exposing the child to such behaviour, and as such would suggest that the father needs to undertake parental training to address this. The child's alleged behaviour does not appear to have been an isolated incident and is disputed by the father as either occurring or being relevant.

3. It could also be plausible that the child's expressed resistance to being touched by the father or receiving affection from him is related to witnessing his attempts to be affectionate toward the mother and these being rejected by her, as described by the mother. It was noted that the requirement for supervision during time spent between the child and the father was keenly disputed by the parties.

...

1. I certainly accept that there is more likely than not, a benefit to the child of being able to have a relationship with both her parents where it is safe to do so, but that goes back to the fundamental dispute in this case as to whether the child is safe in the care of the father. The parents are in dispute about the nature and extent of the child's relationship with the father during the marriage.

...

1. In this interim proceeding, the mother has expressed that it is her intention, ultimately, to seek an order that the child spends no time with the father in the future due to her concern about risk. It is not possible at this interim stage of the proceeding to make a finding that the father poses an unacceptable risk of harm to the child from sexual abuse or from family violence. However, the alleged risks cannot be ignored, particularly because there are concerning reports from not less than four third-party sources, being the GP, the police, the child's day carers, and the school counsellor more recently. There appears to me to be an accumulation of factors, and, while I accept the submission of the independent children's lawyer that the specific disclosure made by the child is capable of innocuous explanation and, in and of itself, might not raise the level of risk to the state of unacceptable, that disclosure is one of many relevant pieces of evidence in this complex matter which the Court must take into account ultimately, at a trial, in determining the issue of whether there's an unacceptable risk of harm to the child in the household of the father.

2. It has been argued by the father that supervision is an effective panacea to address the risk issues in this matter. The mother has raised her concern about the recommencement of the time between the child and the father at this stage, namely, that the child has been a victim of sexual assault by the father and that the child should not be forced to spend time with the father even in a supervised situation, because to do that would be to expose the child to present and, potentially, future emotional and psychological harm, and that to reconnect the child with the father under supervision in circumstances where the mother will be seeking ultimately, on her current case at least, a no time order would be premature and would potentially not only pose the risk that the child will suffer distress and potentially be retraumatised but also that, having been reunited with the father, if ultimately the court determines that there are unacceptable risks of harm issues in his household such that he should be permanently eliminated from the child's life, that the child would be destabilised yet again, and noting that more recently the child has made some disclosures at school, which indicate that there's a level of distress experienced by the child in recalling her relationship with her father even as late as May this year.

CONCLUSION

1. Overall, weighing and balancing and evaluating all of the various issues in this complex matter, I am not able to be satisfied, on the current state of the evidence, that it will promote the child's safety if there is an arrangement implemented whereby she will be required to be reintroduced to the father pending a full ventilation of the issues at trial.

2. There is no evidence before me currently to suggest that the child's basic needs are not being attended to adequately in the interim in the mother's care. There is potential for harm and disruption to the child if any order for time is made now. A trial is required to determine the risk issues in this matter.

(Emphasis added)

1. During the hearing of the appeal, the ICL submitted that if "[i]t is not possible at this interim stage of the proceeding to make a finding that the father poses an unacceptable risk of harm to the child from sexual abuse or from family violence", that conclusion is "difficult to reconcile" with no order being made as to time to be spent between the child and the father. It was then submitted that it can be "inferred" that "[the] order[s] must have been predicated on [the primary judge] actually finding a risk of sexual harm". Putting it another way, the ICL expressly confirmed the submission that by not concluding that supervised time should occur, the primary judge in fact made a finding as to risk of sexual harm. The submission is alarming and ill-considered. It fails to grasp the reasoning of the primary judge, is illogical, and wholly misinterprets relevant principle. It is rejected.
2. The primary judge's task was to assess the evidence and identify whether the risk to safety as asserted was unacceptable. The process of evaluation by the primary judge as to the probabilities of the competing claims was substantial, circumspect, considered, and correctly completed.

1. Even if leave were not required, for the reasons set out above, the father has not established his ground of appeal. His Amended Notice of Appeal will be dismissed.
2. In the event the appeal was unsuccessful, the father conceded that an order that he pay the mother's costs was justified, and that the fixing of costs in the modest sum she seeks is just, provided he had a period of 90 days to pay costs. The wife did not disagree that costs be paid in that timeframe. An order for costs will be made in those terms. The ICL did not seek costs.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.