FAMILY COURT OF AUSTRALIA

Langdon & Dodd	[2015] FamCA 407	

FAMILY LAW – CHILDREN – Best interests – competing proposals for parenting orders for three children of the marriage aged nine, eight and six – serious allegations of sexual abuse by the father of the children’s half-sister who is now aged 15 – father charged, however trial in County Court discontinued by the Director of Public Prosecutions – whether the father is an unacceptable risk of sexually abusing the three children of the marriage – whether the father should spend unsupervised time with the children – father found to be an unacceptable risk – orders made for supervised time only. 
	
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1988) 166 CLR 69
Johnson & Page (2007) FLC 93-344
Slater & Light (2013) 48 Fam LR 573	

APPLICANT:	Mr Langdon	

RESPONDENT:	Ms Dodd	

Independent children’s lawyer:	Alex McCormack 	

FILE NUMBER:	DGC	446		of	2012	

DATE DELIVERED:	1 June 2015	

PLACE DELIVERED:	Melbourne	

PLACE HEARD:	Melbourne	

JUDGMENT OF:	Thornton J	

HEARING DATE:	6–7, 10–14, 17–20 November 2014	

REPRESENTATION

THE APPLICANT:	In person	

THE RESPONDENT:	In person	

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Peter O’Connell	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	McCormack & Co Solicitors	

Orders
(1)	All previous parenting orders are discharged.
(2)	The mother have sole parental responsibility for the children of the marriage, W Langdon born … 2005, J Dodd born … 2006 and H Langdon born … 2008 (“the children”). 
(3)	The children live with the mother.
(4)	The children spend supervised time with the father for up to 4 hours once per fortnight on a Saturday at times and a location as nominated by the supervisor and which is agreed by both parties until such time as the eldest child reaches the age of 12 or such earlier time as agreed in writing between the parties.
(5)	The time spent pursuant to the previous paragraph:
(a)	shall be supervised by O Community Services or such other supervisor as is agreed between the mother and the father or failing agreement, a supervisor nominated by the Director of Court Counselling at the Family Court of Australia at Melbourne;
(b)	the cost of supervision shall be borne by the father; and
(c)	the mother is responsible for transporting the children to the supervisor.
BY CONSENT IT IS ORDERED THAT:
(6)	The mother and father shall communicate regarding the children, via email and in the event of an emergency, the parents communicate via text or mobile telephone directly with each other. 
(7)	The children may contact the father by telephone at any time in accordance with their wishes and the children may contact the mother by telephone at any time in accordance with their wishes when spending time with the father. 
(8)	The father may contact the children via the mother’s mobile telephone during reasonable times that they are not in his care.  
(9)	Each parent shall advise the other of any illness or accident suffered by the child or children, other than of a minor nature, whilst in their respective care as soon as practicable.  
(10)	The parties shall authorise the medical or other practitioners involved in the treatment of any of the children to communicate with the other parent and both parties must advise the other parent of the medical and other practitioners managing the illness or accident of the child or children as soon as practicable. 
(11)	The mother shall provide to the father the name and address of the usual general practitioner of the children. 
(12)	The mother shall authorise the father to receive all school notices related to the children and the father to provide the children’s school with his name and address. 
(13)	The father may attend all school events to which families are invited subject to the terms of any intervention order.
(14)	The Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Langdon & Dodd has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Family Court of Australia at Melbourne	

FILE NUMBER: DGC 446 of 2012

Mr Langdon 	
Applicant

And

Ms Dodd 	
Respondent

REASONS FOR JUDGMENT
Introduction
1.	This proceeding concerns competing proposals for parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).  The three children of the marriage (“the children”) are W aged nine years, J aged eight years and H aged six years.  The applicant father is also the step-father of Y who is the half-sister of the children and the child of the respondent mother from a previous relationship. An Independent Children’s Lawyer represented the children’s interests.  The proceeding was transferred from the Federal Circuit Court to this Court on 19 December 2013.
2.	A central issue in the proceeding concerns Y, who is now aged 15 years.  On 27 January 2012, when she was aged 12, Y made allegations that her step-father (the father of the children) sexually abused her some years previously, around the time she was in Year 2.  Y also complained of inappropriate touching over clothing and an incident when he had exposed his penis to her at a time more proximate to the time of her complaint. These allegations were denied by the father when he was interviewed by police and he has consistently denied them ever since.
3.	The father was indicted on two charges of incest, three charges of committing an indecent act with a child under 16 and one charge of attempted incest.  In the indictment, these offences were alleged to have occurred in 2008.  However, at the special hearing in the County Court, the indictment was amended to the year 2007.  At the committal hearing in the Magistrates’ Court, the mother was cross-examined about Y’s complaints and the father was committed for trial.  At the County Court, the Director of Public Prosecutions (“DPP”) discontinued the prosecution in November 2013 after Y was cross-examined in a pre-recorded audio visual hearing (“special hearing”) over two days.  
4.	It is the mother’s case that Y’s allegations are truthful and that a finding should be made that the father sexually abused Y.  In the event that such a finding cannot be made, the mother seeks that the father nonetheless be found to pose an unacceptable risk to the three children of the marriage. 
5.	The mother proposes that the father continue to spend supervised time with the children in accordance with interim orders made in the Federal Circuit Court on 31 October 2012.  Those orders provide for the children to spend strictly supervised time with the father for up to two hours each fortnight on a Sunday at times nominated by the supervisor.  There is a preference expressed in those orders for the venue to be at the home of the paternal grandparents and this is where the father has spent time with the children in the intervening period.   O Family Services have supervised those arrangements. 
6.	The interim consent  orders also provide for the paternal grandparents to spend time with the children once per month between 12 noon and 4.00 pm on a Sunday and that two hours per month of that time occur after the conclusion of the father’s fortnightly supervised time periods.  There is a restraint on the father attending for this time. 
7.	The father’s case is that the allegations against him are entirely fabricated. There is some inconsistency in terms of precisely what he asserts.  The lack of coherence in his argument centres particularly on the motives for the false allegations.  In part, the father blames the mother for causing Y to make the allegations against him.  In the father’s account, the mother’s role varied from active collusion to unwitting influence.
8.	On the one hand, he claims that the mother influenced or colluded with the child to make false allegations because the mother believed the father was having an affair. On the other hand, he asserts that the child was influenced by the mother because she had heard the mother discussing her own sexual abuse.
9.	The father also relies upon some evidence that the mother asked Y leading questions, for the proposition that the complaint made by the child to her mother was false. At the same time, the father depicts Y as a cunning and manipulative child who held a grudge against him and concocted the allegations in order to get rid of him, precipitated by an argument which occurred the night before the allegations were made.  Of course the father’s argument, of necessity, really amounts to speculation on his part for Y’s motives because he maintains the allegations are false. 
10.	It is also the father’s case that the mother failed to facilitate his relationship with the three children and continues to do so.
11.	The father ultimately proposes that he spend time with the children in accordance with the proposals of the Independent Children’s Lawyer.
12.	At the commencement of the hearing the Independent Children’s Lawyer did not have a view about the parenting orders which might be in the best interests of the children.  However, at the conclusion of the trial, the Independent Children’s Lawyer proposed that the father spend unsupervised time with the children with a number of conditions. 
13.	At the conclusion of the trial, the Independent Children’s Lawyer and the father proposed that the parents have equal shared parental responsibility for the children.  The mother proposed that she have sole parental responsibility for the children.
Background 
14.	The parties met at a meditation class in 2004 and began a relationship.  At the time, the child Y was five years old.
15.	The parties commenced cohabitation in 2004 and separated for the first time, in March 2006.  The child J was born during this separation period and has a different surname from her siblings (that of her mother). In or around the beginning of 2007 the parties reconciled and were married in April 2011.  The parents disagreed on the exact date of the marriage but it was agreed that a marriage took place in April 2011.
16.	The parties separated on a final basis on 27 January 2012, when Y told her mother that she had been sexually abused by the father.  Y was interviewed by police on the same day and the interview was recorded. That day, the father was charged by Victoria Police, as outlined previously. 
17.	The father is now aged 41 years and deposed that he is a sales representative but that he is “employed on a casual part time basis, having been unable to find full time employment”.    
18.	The father has re-partnered and lives in Suburb N with his new partner, Ms T, and her three daughters who, at the time when Ms T affirmed an affidavit on 24 August 2014, were aged eight, six and five years.  The father and his partner commenced cohabitation after the County Court trial was discontinued in November 2013.  
19.	The mother is aged 37 years and is engaged in home duties.  She has not re-partnered and lives in Town U with the children and Y.  
20.	On 16 February 2012, when the criminal charges were not yet resolved, the father commenced proceedings in the Dandenong Registry of what was then the Federal Magistrates Court, seeking final parenting and property orders by way of filing an Initiating Application and a Notice of Risk of Abuse.  On 22 March 2012, the mother filed a Response.  
21.	In January 2012, the mother obtained an interim intervention order against the father, wherein she and the four children were named as affected family members.  On 8 May 2012, a final intervention order was made until further order. This order was made with the consent of the father, without admission, and lists the mother and the four children as affected family members.  By consent, this intervention order was amended by further order of 13 November 2014, to explicitly make it subject to any order of the Family Court of Australia on the condition that the father does not commit family violence in doing so.
22.	The matter proceeded before Federal Magistrate Hughes (as her Honour then was) and a number of interim hearings were conducted.  On 26 March 2012, Federal Magistrate Hughes ordered (among other things) the appointment of an Independent Children’s Lawyer. 
23.	Final property orders were made by consent on 5 March 2013, leaving only parenting matters on foot.  
24.	Interim parenting orders were made by Federal Magistrate Hughes on 31 October 2012 providing for the children to spend supervised time with the father for up to two hours fortnightly on a Sunday.  A preference was expressed for the father to spend time with the children at the home of the paternal grandparents.  A supervised contact centre or O Community Services was to be utilised for the purposes of changeover.  The orders also provided for the children to spend time with the paternal grandparents monthly on a Sunday in the absence of the father.  By consent, the orders stipulated that the father was to undergo a psychosexual assessment by an expert nominated by the Independent Children’s Lawyer. 
25.	On 19 December 2013, orders were made by Judge Hughes transferring the matter to the Family Court of Australia and requesting that the matter be placed in the Magellan List.  However this did not occur as Registrar Field deemed the matter inappropriate for the Magellan List due to investigations of the alleged sexual abuse having already been concluded by both the Department of Human Services (“DHS”) and Victoria Police.  
Issues
26.	The parties agreed that the following issues required determination in the trial:
•	whether on the balance of probabilities, to the standard set out by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”), Y has been sexually assaulted by the father;
•	if the Court is unable to make a finding as to whether or not the abuse occurred, whether the father poses an unacceptable risk to the children;
•	if the Court finds that the abuse did not occur, whether the mother is in any way responsible for the allegations being made by Y;
•	whether the parties should have equal shared parental responsibility for the children or the mother should have sole parental responsibility; and
•	the time that the children should spend with the father and any conditions to be imposed on that time.
Evidence
27.	The documents relied upon by each party are listed in Annexure A.  The father, the mother, the paternal grandmother, the father’s partner, the maternal great aunt (Ms B), Ms G (the family report writer), and Dr E, consultant clinical and forensic psychologist, were cross-examined.  The expertise of Ms G and Dr E was not challenged.
28.	In the course of procedural hearings, I ordered that the rules of evidence in the Evidence Act 1995 (Cth), which ordinarily do not apply in child-related proceedings, would be applicable in relation to the issues of:
(1) 	whether the father sexually abused the child Y; and 
(2) 	whether the mother was responsible for Y’s allegations.  
This was in light of the seriousness of the allegations and the consequences of making adverse findings. 
29.	A number of Exhibits were tendered by the parties and in particular the following exhibits were tendered by Counsel for the Independent Lawyer:
•	Exhibit ICL-A: DVD audio visual recording and transcript of Y’s first interview with the police on 27 January 2012 (VARE interview); 
•	Exhibit ICL-B: Transcript of the cross-examination of Y at the special hearing in the County Court on 12 and 13 March 2013;
•	Exhibit ICL-E: Transcript of the cross-examination of the mother at the committal proceeding on 21 December 2012;
•	Exhibit ICL-F: Mother’s statement to police dated 30 January 2012; and
•	Exhibit ICL-G: Father’s Record of Interview with police on 27 January 2012.
30.	The audio visual recording of Y’s interview with the police (Exhibit ICL-A) and the audio visual recording of the father’s Record of Interview with the police (Exhibit ICL-G) were viewed in Court.
31.	It is not possible to comprehensively discuss in these reasons every aspect of the evidence, documentary and oral, in the trial.  I have taken the totality of the evidence into account.  If particular evidence is not mentioned here, it should not be assumed that I have disregarded it. 
Standard of proof 
32.	When determining what final orders the Court should make, the relevant standard of proof is the balance of probabilities.  Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
a)	the nature of the cause of action or defence; and
b)	the nature of the subject matter of the proceeding; and
c)	the gravity of the matters alleged.
33.	Dixon J explained the application of the standard in Briginshaw (supra):
[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
The Allegations of Sexual Abuse
34.	Firstly it is necessary to outline the allegations that were made against the father to put the trial into context.  Some of the allegations were historical, concerning events that allegedly occurred several years earlier; others were more proximate to the time of Y’s complaint. 
35.	Y first made the allegations on 27 January 2012.  On that day, she was interviewed by police at N Police Station and the interview was recorded (“the VARE interview”).  She was 12 years old at the time of interview.
36.	Ultimately, the father was indicted on the six charges detailed above.  Five of the six charges concerned the historical allegations.  The indictment specified that the relevant acts had occurred in 2008.  From information gleaned from the transcript of the special hearing in the County Court (“the special hearing”), an application was made to change the year in which these offences were alleged to have been committed and the date was changed to 2007.  The final charge of attempted incest referred to events that allegedly occurred in 2011.  
Summary of the VARE interview conducted 27 January 2012
37.	The police conducted an audio visual recorded interview with the child Y on 27 January 2012 which was the same day that she complained to her mother of the father’s conduct.  The child stated in her interview with police that the alleged abuse had “been going on for a few years”.  She thought she had been in Year 2 when it began, though she couldn’t recall how old she was at the time.  When asked specifically what the father had done to her, she said that he had “been raping me”, “touching me in places where I don’t feel comfortable” and that he had “licked me in places where I don’t feel comfortable” and “done things that I didn’t really like, like touched me with his hands and other parts of his body parts … Like, with his body parts touching mine.”
38.	Y was asked to describe the first incident that she could remember.  She said that she thought she had been reading a book and he was kneeling down next to the bed.  She thought that he had “starting licking me first” and that he had licked his finger and “stuck it down there”.  She said that he had “popped his thing into my downstairs body part” and that she had then told him that she was getting cold, he put her pants back on and she continued reading.  The interviewing police officer asked her to describe everything, step by step, from the moment she chose the book she was going to read.  She stated that she could not remember much “’cause I was young and, yeah, all I remember was him touching me, licking me, doing things he shouldn’t be doing downstairs.”
39.	Y said that “last year and the year before he hasn’t been doing this stuff, he’s just been touching me”.
40.	The interviewing officer again asked Y for detail of the earlier event. She said:
OK. I think he started sucking his finger and putting it down there and pushing hard. I remember him licking in circles and just normally licking it and I remember him trying to shove his thing into my thing, I think. I don’t know how to describe it. I think try and make a baby or something, I don’t know. Yeah, that’s when I said, Stop, I’m cold, no. And then at the end when we finished reading the book I said, Goodnight, and I think that’s when he tried to tongue-kiss me and that’s, I gave him a hug and then he tried to kiss me on the lips, which I didn’t want, and, and then he managed to get me head round and kisses me on the lips and tongue-kissed me and then said, Goodnight, and then I think he went, I don’t really remember much, and I think I was crying in bed.
41.	When asked what part of her the father was licking, Y said “the front part down below” and then clarified that she was referring to the front part of her vagina.  
42.	Y then went on to describe how the father had “licked his finger and put it on the nerve spot”.  When asked where the nerve spot is, she replied, “I think it’s where the girls have their period.”  She explained that, when his finger was on her “nerve part”, he rubbed it up and down and in circles and pressed hard on it.  Y also said that the father “used to rub my nipples in circles with his finger”.  She thought that this was also when she was in Year 2.
43.	Y then stated that the father had “put his private part down on my vagina … trying to get in the hole that makes a baby or something”.  She said that “he tried to shove it in there and that hurt too”.  She said that “It was cold and wet” because he “sucked on his finger and put it on his thing to make it wet and popped it in my vagina.”  She then clarified that he had only tried to get it in, but wasn’t able to.  She was asked how this felt and she said, “It felt really uncomfortable and cold and wet and it hurt.”  Later in the interview, Y clarified that by “his thing”, she meant the father’s penis.  She was asked to describe his penis; she said she had not seen it at all but that “It felt yuk and cold and squishy and wet and uncomfortable and it hurt when he tried to do that.”
44.	Y was asked how she knew about “the hole that makes a baby”.  She said that she had had “knowing and growing” classes in Years 5 and 6 and she and her mother had had a discussion about pregnancy when she was in Year 3, during which her mother had shown her books about pregnancy “and how to do it all”.  
45.	Y then went on to describe an incident that allegedly occurred in 2011 when her mother was “at the doctor’s or something”.  She said that this incident happened in the bathroom when she was changing her earrings and the father was helping her clean them.  She referred to cleaning her ear and earrings with Dettol in the sink. She stated:
He helped me clean and he had his dressing gown on, his black dressing gown which comes up to his knees and his thing was poking out stiff and he was helping me clean it and I kept looking away ’cause he tried to, I think he tried to get close that’s why I kept moving back and, yeah, I remember him helping me clean my earrings and I asked him, trying to distract him, instead of, like, standing up, like, Is this clean and off, and all that and he’s like, Yeah, I think it is, and all that. 
She went on:
I think [J], my sister, I think called for something. I don’t know what happened but that’s when he put it away, did his dressing gown up and that’s when I started cleaning and I think I said, Thank you, God. And then that’s when I put my earrings in and then I had to ask him again, Is this one clean enough, and then he did it again, his thing came out all stiff and, yes.
46.	She was asked whether this all occurred on the same day and she responded that it had.  She stated that this occurred in the bathroom of their home and again clarified that when she spoke about the father’s “thing”, she meant his penis. 
47.	Returning to the details of the first incident described, the interviewer asked Y to further elaborate on the “tongue kiss” she had mentioned previously. Y said, “He just, like, he, like, moved it back and forth, like, back into his mouth and then into mine and into his and into mine, licking it all around and, yeah …” 
48.	Y stated that she had stopped reading stories at night and, since then, “he hasn’t been doing that type of, like, putting his penis onto my vagina and all that. He’s just been touching me but with clothes on, everything on.”  When asked to describe such an incident, Y said that he touched her “down the bottom” when they were playing a tickling game.  She also said that the father sometimes “squeezes my bottom” and that he had “touched me on my vagina … he touched it or squeezed it a little bit.”  She described another occasion when she gave him a hug and he “wiped his hand on my boobs”.
49.	The interviewer asked Y to talk about what had happened that day to make her decide to tell her mother the truth.  Y said that her mother had asked her why she was reluctant to hug and kiss the father and Y began to cry.  She said that her mother then asked, “Has he touched you anywhere or anything?”.  She stated that she didn’t want to tell her mother because she didn’t want her to get hurt and “didn’t want us to be homeless”.  However, she told her mother and her mother was the first person she had told about any of this. 
50.	The interviewer asked if there was anything further that Y could recall.  Y stated that she thought that during the reading incident the father had pulled down his pants to reveal his penis and then put her hand on it.  She said that she moved her hand away and he pulled it back again, after which she put her hand beneath her body and he pulled his pants up.  She stated that she had not seen his penis, “It just felt yuck and squishy”.  She described his penis as “floppy” at this time. 
51.	Near the end of the interview, Y was asked to tell the interviewer about her relationship with the father.  She replied, “I think ever since he’s been doing things to me, I haven’t loved him at all.  I don’t really like him.  I don’t see him as my real father”.
The applicant father
52.	The father was cross-examined by the mother and counsel for the Independent Children’s Lawyer.
The father’s evidence about his relationship with the children, W, J and H
53.	The father deposed that during the marriage he had an excellent relationship with the three children of the marriage and was thoroughly involved in their schooling and extra-curricular lives. He deposed that he wishes to re-establish this relationship while they are young and provide a positive role model to them.   
54.	Following the allegations made by Y in 2012, the father deposed that the mother has failed to facilitate his relationship with the children and the paternal grandparents. 
55.	The general tenor of the supervised contact report of O Community Services dated 2 November 2014 (“the O report”) was the visits have been progressing well and that the children enjoyed the time with the father.  The report states that:
Overall the children have settled in well with these arrangements.  [H] the youngest was a little apprehensive on the first occasion but soon settled.  
All 3 children are eager and excited to be spending time with their father and their grandparents.
56.	However, the report did note that the only ongoing concern during the father’s supervised time with the children is the children’s reaction to his new partner.  The report notes that:
The way the situation was introduced to the children by the father was very concerning and inappropriate and the Supervisor did intervene.  But the children had already heard their father tell them that [Ms T] was his girlfriend, he lived with her and they would come and sleep over.  She would be their mum. 
57.	The father was assessed by Dr E as “highly accomplished in sporting, educational and employment pursuits.” Dr E stated that he is an “educated and intelligent man” of “above-average intellectual capacity.” He has competed in martial arts competitions and teaches both advanced and beginner students.  
58.	The father consistently and vehemently denied that he had sexually abused Y.  He participated in a Record of Interview with police on the same day that Y had been interviewed by the police, at which time he denied all of the allegations. 
59.	The father had various explanations and theories as to why the child Y originally made, and has not retracted, the allegations against him. These were as follows: 
•	Y had a history of lying and manipulation.
•	The mother colluded with Y to make false allegations.
•	Y had been influenced by conversations she overheard about sexual abuse within the maternal family as well as sexual education she had received from her mother at a young age. 
•	 Y hated him and wanted to get rid of him. 
60.	Each of the father’s explanations will be discussed in turn, followed by a discussion of the remainder of his evidence and cross-examination, as well as my assessment of him as a witness. 
The child Y’s alleged history of lying and manipulation
61.	The father deposed that Y had a history of lying.  He also deposed that Y was unable “to distinguish between truth, lies and secrets”.  As evidence of this, the father points to the fact that Y understands that the Tooth Fairy, Santa Claus and the Easter Bunny are not real, but each year pretends that they are. When cross-examined by the mother, the father conceded that Y did this in order not to spoil special times of the year for her younger siblings.  Nonetheless, the father persisted in emphasising, “But in doing so, is she not lying to the other children?”  
62.	When cross-examined by counsel for the Independent Children’s Lawyer, the father was pressed to provide examples of Y’s alleged history of “telling lies”.  The father said, “Any time she was in trouble, there was always an excuse, no matter how far-fetched”.  When asked to provide specific instances of this, the father gave the example of her lying about having broken a light in the lounge room, where he had seen her throwing something moments before.  Counsel for the Independent Children’s Lawyer asked whether she might simply have tripped over, to which the father replied, “Highly unlikely”.  The father then gave the following further two examples of Y lying to get out of trouble: 
•	Y had been told not to rock on the chair in her bedroom.  Eventually, the back legs of the chair broke.   Y claimed not to have been rocking on the chair. 
•	Y “[g]ot busted kneeing the dog in the head”.  She claimed that she had tripped and the dog tried to jump on her. 
63.	The father went on to state that Y “got into major trouble in school”.  When urged by counsel for the Independent Children’s Lawyer to give more detail, he said that she had been “answering back to teachers, had detention and things in school”.  However, he could recall no further detail other than that she had been talking in class and had a general disregard for her teacher and other adults.  Counsel for the Independent Children’s Lawyer suggested that Y did not sound too badly behaved, on this description, and the father conceded that “she wasn’t throwing rocks at peoples’ heads” or anything of that sort, and that there were no chronic or constant issues at school that he could recall.  
64.	The examples proffered by the father about Y being in trouble at school were not significant and I do not accept that Y was a trouble maker at school.  The father’s evidence on this point is an exaggeration to bolster his case and tarnish Y’s credibility.   
65.	Y’s alleged history of lying, particularly to get out of trouble, was connected in the father’s case to the argument that took place between he and Y the night before the allegations were made.  It is agreed between the parties that an argument took place that night, though the question of how the argument unfolded is contested.
66.	The father’s version of events is that he was at the kitchen table with J and Y who had been finishing her dinner.  The mother was upstairs in the bathroom with the other children.  According to the father, J went to give Y a hug, Y bumped her and said, “[J], I’m eating”.  The father’s evidence is that J looked “shattered” and he then had words with Y, telling her that her attitude “sucked”.  He stated that later, in the bathroom upstairs, he called her “no love [Y]”.  The father stated that he told Y that he was sick of her attitude and sent her to her room.
67.	Cross-examined about the mother’s version of the events in the bathroom that evening, the father denied that he had said to Y, “You better take that look off your fucking face or I’m going to punch you in the face”.  He denied that Y was crying and that the mother had to get between them.  He also denied that when the mother intervened, he complained to her that Y would not give him a kiss and cuddle good night.  He maintained that he had called her “no love [Y]” because of her attitude towards J. 
68.	The father claimed that he spoke with the mother in the lounge room directly following the argument, at which time he suggested that Y go and live with her grandfather in Queensland.  He asserted that Y could have overheard this conversation because of the close proximity of her bedroom to the lounge room.  
69.	The father argued that because Y had lied to get out of trouble before, she lied this time in order to avoid going to Queensland.  Indeed, the father deposed that Y’s allegations the day after the argument “would have been part of her plan to have her mother to herself and to stay in Victoria”.  The father’s idea that Y formulated this premeditated plan to dispose of him accords with his perception of Y as a “highly manipulative” child.  He deposed that “[Y] tried to manipulate her mother so that [the mother] and I argued … [Y] was determined to have me removed from her life as she didn’t want to have any restrictions placed on her behaviour”.  When asked during cross-examination for examples of Y’s manipulative behaviour, the father said, “The way that [Y] could manipulate her mother any time there was an argument or something where [Y] got in trouble for. Then, before I knew it, then she’d be off sooking to mum about whatever has happened”.
Collusion by the mother and the child Y
70.	The father claimed that either the mother actively colluded with Y, essentially putting her up to making the allegations, or tacitly but deliberately assisted her in making them.  The father proposed several possible reasons for the mother to do this.  The father depicted the marriage as “rocky” even prior to the wedding in 2011, and certainly thereafter. 
71.	In spite of the marital difficulties he described, the father conceded that, prior to separation, they had been inspecting properties because the mother wanted to live on an acreage.  They saw their bank manager in order to determine how much money they could borrow and, according to the father, were confident that they would be able to borrow the money to purchase a new property.  Extracted below is the cross-examination by the Independent Children’s Lawyer on this point.  While rather a long excerpt, it details each of the father’s suggested motives for the mother to participate in Y’s alleged deception:
As at the end of 2011, it was quite possible that you could’ve given [the mother] what she craved, an acreage in the country?---Yes.
Ok. And she had no way of getting what she craved independently of you.
---No.
Right. So it would’ve been in her interest to keep the marriage alive and going, would it not?---Unless I – something happened and I died of a heart attack or something, in which case then I had life insurance, which meant that the house would’ve been paid for. She also would’ve then had all of my super, which would’ve given her another $150,000 on top of - - - 
Ok, so short of you, a youngish healthy man, dying, it would’ve been in [the mother’s] interest to keep this marriage going, wouldn’t it?---Yes. 
There was no reason for her to end it was there?---Or unless – like when we split up originally, then I – this was all separated, then she had, basically, child support coming through, single parent’s pension – she was on almost as much by herself as what we were when we were together. Including for the first 10 or 11 months with my paying all the house loans, car loans, everything else as well child support, as well as the extra income she was getting as a single parent. 
So you’re saying that she would’ve believed that if you’d been off the scene, you would’ve been paying child support, the mortgage – what, into the very distant future? Forever? Both child support and the mortgage? And the single supporting mother’s benefit?---No because it depends if you’re talking about me being in jail, no. But then again if you’re talking about me – I’ve had a lot of chest pains …
Getting back to the state of the marriage, ok, you stated at one point that [the mother] colluded with her daughter in this because she wanted to be out of the marriage, is that correct?---Yes.
What benefit would it have been to her to be out of the marriage, after what you’ve told us about the acreage, going to the bank for a bank loan, that sort of thing? What benefit would it have been to her to stop the marriage?
---Apart from the fact that, well, she actually approached my mother and thought I was having an affair, so there’s one for you straight away. …
Ok, let’s explore the affair option. When did [the mother] – did she say to you ever “I believe you’re having an affair”?---She’d asked me several times in the previous 12 months prior to the separation … 
How would her being worried or concerned or suspicious of you having an affair, why would that make her, do you think, want to end the marriage?---Easy – to get rid of me. Before I go and try and do something else in this way, if you’ve admitted me into a poor light, you can not only get away, you can also make sure you can keep me away from the kids. …
Don’t you think you’re pulling a long bow here in relation to this? Think about what you’ve just said, ok?  It appears that financially it is in her interest to keep the marriage going. She’s suspicious about you having an affair, at best, ok?  Now you’re saying that somehow, despite the fact that it’s not going to be in her financial interest to end the marriage, she will end the marriage to keep you away from the kids.  That’s the reason.  Is that what you’re saying?---Yes.
That was her reason – to keep you away from the kids?---That or not to send [Y] – not to send [Y] away to live with her grandfather in [Queensland].
…
You’re saying that she would deliberately put [Y] up to tell a lie to the police about the sexual abuse allegations so that [Y] won’t be sent back to her grandfather in [Queensland].  Is that what you’re saying?---If she hasn’t – if she hasn’t been directly behind the actual allegations being made, she has certainly been a party to them. 
In what way do you say she has been a party to the allegations?---I will point those things out, I have pulled out all of – from the – you’ll find out where there’s numerous things where her and [Y’s] do not match, where they even state – and have changing versions of their own stories.
Ok, but, to be clear now – I mean, you’re making an allegation that she put [Y] up to this – is that right? Is that the allegation you make, she put [Y] up to this?---That or at least has been a party to the fact. …
So let’s be clear – you’re saying she put her up to it or – and/or – or she assisted [Y] in [Y’s] actions.---Yes.
To what end? What purpose?---To make sure that there was no worry that, yeah, I would push on this thing about sending [Y] away. 
Are you saying that she would’ve organised [Y] going to the police, with the risk of court action, cross-examination – a girl of 12 – just to stop her being sent away to [Queensland]? Are you serious?---Or to get rid of me. 
Are you serious?---To get rid of me, yes.
Why get rid of you?---Because if you get rid of me, then, basically, she has full control of the children again. And I can’t do anything – I can’t do anything to send [Y] away. And that is - - - 
…
So, are you seriously saying you can nominate a motive for [the mother] setting her daughter up to this and playing a part in it?---The only other one – the only other motive you’d have is the fact that, with her Aunt [Ms B], whether she’s sort of told her about how great it is as a single woman – “you don’t need him” – because it was clearly obvious that she never – she didn’t like having men around and, yes. She may have told [the mother] “you’d be better off without him”. That I can’t tell you. 
So this is a woman, [the mother], who was married to someone before you, the fellow who was the father of her child, and she was left as a single mother – you’re saying she needed to be told what it was like as a single woman by [her aunt Ms B]?---No.
She knew didn’t she?---Yes.
Ok. Any other motive you can nominate?---Not that I can think of, no. 
72.	This cross-examination demonstrates that the father’s theories about the mother’s motive for colluding with Y are dubious at best.
Influence
73.	The father alleged in his affidavit material that, during a visit by the children’s maternal great aunt, Ms B, during the summer holidays after Christmas 2012, Y had overheard a discussion between the mother and Ms B about sexual abuse within the maternal family (specifically, the abuse of Ms B and the maternal grandmother by their stepfather).  The father’s evidence was that he had been playing on the floor with the child H at the time and J and Y were seated nearby watching a DVD, within hearing of the conversation. 
74.	On this same occasion, it was the father’s evidence that the mother told Ms B about her own childhood sexual abuse at the hands of her brother. When asked by counsel for the Independent Children’s Lawyer in cross-examination why he did not intervene, the father claimed that, he did not signal to the mother about the inappropriateness of the conversation because “there were already issues between us and things were not going well”.
75.	The father further deposed and reiterated during cross-examination that Y had on many occasions overheard the mother discussing her own sexual abuse.  He deposed that Y had “eavesdropped for many years on the conversations that were going on with adults”.  Counsel for the Independent Children’s Lawyer pressed the father for an example during cross-examination, leading to the following exchange:
And you’ve got here “listening in to our conversations” – “throughout the relationship, [Y] had a history of telling lies and listening into our conversations”.  What detail can you provide to the Court about that? 
---The fact that, even when we’ve been talking about things – or, she’s actually started to laugh at something because she’s heard something.  Or she’s actually – she’s actually been foolish enough to even then comment on something that was said in one of our conversations that we were discussing.  She would sit there and pretend to be watching TV or playing with her toys and then come out - - -
Are you talking about a conversation you’re having with [the mother] in the same room as the child?---Or we’ve gone off into the kitchen to actually have the conversation and she’s sort of followed around into the family room just sitting down here – I’m looking at these toys – trying to hear on what’s actually being said. 
Ok. Well you can see where she is. It’s not as though she’s hiding behind a pillar or anything like that – eavesdropping.---Yes.
Any examples of her being eavesdropping in that way?---Hiding just around the corner at my grandparents’ house when we’ve been at the – my parents’ house, sorry – when we’ve been at the kitchen table.  And hiding just around the corner of the actual kitchen area.  Sitting there, listening in, claiming she was just sitting there reading a book, but the play room is down the opposite end of the house. So she’s come out and she’s sat there, leaning against the wall, directly around the corner. 
But how old would she have been then?---Ten. 
Well, is it surprising that a 10-year-old girl was listening in to her parents’ conversations, if they’re just there talking in front of them? Is that so surprising?---But she’s there to try and listen in on adults’ conversations. 
76.	The father’s attempts to depict Y as an eavesdropper seemed to have two purposes.  The first, and most obvious, purpose was an attempt to illustrate that she could have overheard the mother, or the mother and Ms B, discussing their childhood sexual abuse and been influenced by these conversations.  The second, more implicit, purpose of this narrative was as part of the father’s general portrayal of Y as a sneaky child. 
77.	It should also be noted that the father deposed that the mother had educated Y about pregnancy when the latter was in Year 3, by showing her “books about sex and how to have sex”.  This appears to have been based on Y’s own evidence at the special hearing. 
The child Y’s alleged hatred for the father
78.	During cross-examination, the mother asked the father why a 12-year-old girl would fabricate allegations of sexual abuse.  The father’s explanation was that Y “hated me and wanted to get rid of me.” 
79.	The father attributed Y’s negative feelings towards him to a comment he made to her during the parties’ first period of separation in 2006.  He deposed that he visited the mother’s home in order to spend time with the child W.  The mother was present at the time, along with some of her friends, all of whom were “saying hurtful things and making it as difficult as possible whilst I was having time with my son [W]”.  During the visit, Y apparently approached the father and said, “Hello Daddy,” to which the father replied, “I’m not your father – somebody else is”.  In his affidavit filed 29 October 2014 at [18(b)], the father writes: 
I deeply regret the comment that I made, however I cannot take back what was said at the time and [Y] has obviously never forgotten it. [The mother] and her friends would stand around making smug comments during my visits with [W]. I was never even allowed to interact with him with his toys, so I was forced to bring along toys during my visits so I had something to play/interact with him. 
80.	During cross-examination, counsel for the Independent Children’s Lawyer asked the father about this event.  The father reiterated that he deeply regretted saying this to Y but insisted that he did so “more because of [the mother] and her cronies”.  When asked about the effect of the statement on Y, the father replied that she “walked off” and he didn’t see her again.  Counsel for the Independent Children’s Lawyer asked if she had been upset; the father responded that he did not see as he was preoccupied with W.
81.	The father deposed that, from the time the parents reconciled in 2007, the relationship between Y and himself was “turbulent”, and connected this turbulence to the hurtful comment he had made to her.
The effect of the mother’s concerns on the children
82.	Counsel for the Independent Children’s Lawyer asked the father to consider the mother’s position, assuming that she truly believes that the father sexually abused her daughter Y.  Counsel for the Independent Children’s Lawyer then asked the father about his perception of the effect on the mother of the children having unsupervised time with him in this context.  
83.	The father agreed the mother might be worried and that this might cause the children stress, but said “being the primary carer of the children, would she not then have such a good relationship with her children that she will be able to find out if anything is – untoward is going on?”  Counsel for the Independent Children’s Lawyer then asked the father what measures might be put in place, regardless of the outcome of the trial, to reassure the mother that her children would be safe in the father’s care.  The father responded that the children could be independently assessed on a three or six monthly basis.  The father stated that he was prepared to pay the cost of this counselling, though he conceded that he may only be working part-time in the future. He also conceded that ongoing counselling over a period of 12 years might be a burden, but emphasised the benefits of having an independent counsellor speak with the children on a regular basis. 
84.	The father also suggested that the mother’s concerns might be quelled to some extent by the fact that he intended to have “one or more adults around … for my own protection” most of the time.
85.	The father also relied on a protective behaviour course that W and J had already completed and proposed that H might undertake a similar program. 
ISSUES REGARDING THE FATHER RAISED BY THE MOTHER 
Pornography
86.	During her cross-examination of the father, the mother questioned the father about pornography that he had on his desktop computer at the matrimonial home, during the relationship.  The mother asked the father about the number of pornographic videos on the computer at that time, to which the father replied that he believed the number to be less than 500, though he stressed that this was only an approximation.  The father denied that any of the videos related to child pornography, rape or death.  He insisted that if there were such titles on his computer, the police would have found them and “had a field day”.
87.	The mother then sought leave to tender evidence in the form of a report by an alleged computer expert detailing a recently-completed analysis of the father’s desktop computer.  The person who completed the analysis did not swear an affidavit and was not available for cross-examination.  The father had not seen this report until the time of the cross-examination, although it was referred to in the mother’s affidavit material.  The father objected to the report being admitted into evidence on the basis that the police had already checked the computer’s central processing unit and, in light of the charges he was facing, would presumably have laid further charges against him if child pornography had indeed been in his possession.  
88.	The report was not admitted into evidence but, at the request of counsel for the Independent Children’s Lawyer, the mother was given an opportunity to cross-examine the father by reference to the titles from the report in order to obtain his response as to whether he had any knowledge of them.   
89.	It must be emphasised that there was no evidence about the nature of the analysis and the mother conceded that she was not asserting that the person who undertook the analysis actually viewed any of the impugned titles. The content of any files cannot be assumed on the basis of the titles.  
90.	The mother then read to the father some 15 “titles of concern” from among the 700 videos that were found on the father’s central processing unit some of which did include words such as “child porn”, “rape” and “death”.  The father denied all knowledge of these titles and could not say whether or not he had viewed them. The father’s explanation for the presence of these titles on his central processing unit was that he was sometimes given CDs by people at work and would copy them in their entirety without necessarily viewing them.  When asked by the mother which of the titles he had viewed, the father replied, “I can’t tell you which ones I’ve viewed and which ones I haven’t.  I often got them from people at work and may not have viewed them”.  
91.	For clarity and to avoid all doubt, having had the benefit of hearing all the evidence, in light of the father’s denials of knowledge of the titles in question, coupled with the deficiencies of the evidence on this issue already mentioned, I place no weight on this aspect of the mother’s case. 
Possession of weapons
92.	The father conceded that he possessed not more than 50 weapons and that he did not have a licence for any of them.  He maintained that some of these were ornamental swords on display in the house during the marriage, while others were in a cupboard in the garage, string tied together.  He conceded that after he was charged in relation to Y’s allegations, the police seized the weapons, which have not been returned to him. The father stated that he had not been charged with any offences regarding the weapons and had not sought to have the weapons returned. 
93.	The relevance of the weapons was peripheral to the issues in this case and really only formed part of the narrative of events which occurred when the police became involved.  This is not a factor which I have taken into account in determining the issues. 
Alcohol 
94.	Another peripheral matter raised by the mother was the father’s alcohol consumption. The mother deposed that the father had a “serious drinking problem” before they separated and that the father had misled professionals in reporting that his consumption of alcohol was only moderate. The father denied these allegations. In her affidavit material the mother produced bank records from January 2011 until January 2012 when the parties separated. She deposed that the total amount spent on alcohol during that period was $4,473.98.
95.	The father disputed that he had consumed all the alcohol purchased and stated that some of the alcohol was purchased for entertaining at home and for gifts.  It was unclear whether the mother’s case was that the father was a risk to the children because of his level of alcohol consumption.  For the sake of completeness there was insufficient evidence to make any finding about the father’s consumption of alcohol and it is not relevant. There was no evidence that the father was under the influence of alcohol at the time of the conduct complained of by Y.
Assessment of the father
96.	The father clearly feels vilified by the accusations against him.  Whether that feeling is justified cannot be determined here.  Nonetheless, he seemed to believe that the current proceedings would entirely vindicate him; his preparation for the case (including, for example, the creation of several documents detailing inconsistencies in statements of the child Y and the mother between the committal hearing and the special hearing, which will be discussed further below) and indeed his appearance in the witness box manifested this misguided notion.  Unfortunately, his crusading came across as obstructive; instead of directly answering questions, the father often provided excuses and was non-responsive until pressed, at other times he responded tangentially in a  self-serving manner.
97.	The father had a tendency to focus selectively on evidence which suited his purposes.  For example, he consistently referred to the O report and supervisor as supporting his propositions but refused to acknowledge that the report is also critical of him at times and  complimentary to the mother.  
98.	The father meticulously compiled documents which he asserted highlighted detailed inconsistencies between the evidence given by the mother and Y, both in their own accounts at different times and between one another’s evidence.    The father’s detailed preparation of his case is to his credit.  However, as explained to the parties during the trial, these documents are not actually evidence in this trial.  The father’s documented alleged inconsistencies  were given exhibit numbers during the trial for identification only.  Whether the inconsistencies alleged were in fact inconsistencies, and what those inconsistencies went to proving, were a matter for argument. 
99.	Many of the inconsistencies relied on by the father in these documents are, in my view, insignificant. An example relied upon by the father, is the fact that Y when asked about the title of the book she had been reading when the incident happened in her bedroom, gave evidence that she was reading a Tarzan book.  Y said this during the special hearing, and during the VARE interview.  However the father pointed to notes of the police informant which recorded “Beauty & Beast, Aladdin, Hercules”.  Without explanation of the notes of the informant, this may not be an inconsistency but even if it is, I do not regard it as significant. Submissions about inconsistencies which concerned counsel for the Independent Children’s Lawyer are discussed later. 
100.	Less complimentary to the father is the way in which he consistently attempted to represent the child Y as a liar and manipulator.  As has been illustrated in the discussion of the father’s evidence above, he could not provide any examples that did not have relatively benign explanations.  Y was only 12 years old when the allegations were made and, even if it were accepted as the father deposed, that she was “very mature for her age”, she was nevertheless the child in their relationship.  This aspect of the father’s case did not reflect well on him.  
101.	In addition, the instance of the father “taking responsibility” for his actions was ultimately a denial of responsibility.  Most notable is the father’s expression of regret for making the hurtful and rejecting comments to Y during the first period of the parents’ separation.  Both in his affidavit filed 29 October 2014 (at [18(b)]) and during cross-examination, the regret was qualified by the suggestion that the mother was responsible for causing him to make the remark.
102.	In cross-examination, the father was generally not prepared to make any concessions unless confronted directly with material which contradicted his assertions.  Despite having read the O report, the father was not prepared to accept that the child W had been upset on a number of occasions because of the attendance of the father’s new partner and her children.  In cross-examination, he was not prepared to agree with any of the references in that report, about W’s distress.  The father lacked insight into the reasons why W might be upset about the father’s new partner.  He remained fixed in his notions that the children should adjust to his arrangements.  He appeared inflexible and was not child-focused.  
103.	A further example is that the father was not prepared to concede that the mother had been prepared to encourage the children’s relationship with him.  This was despite his concession that the children had provided him with many homemade gifts for Christmas, Easter and on Fathers’ Days since separation.  Cross-examined by the mother as to the reason why the mother would spend time making gifts for him with the children, he responded “because the kids would have pestered you”.
104.	The father insisted that the mother had failed to facilitate the time that he had spent with the children over a period of almost two years because the children had been absent on two occasions and he believed that a medical certificate was not provided for one of those occasions.  Despite references in the O report to the children travelling on two buses in order to spend time with him, the father was not prepared to accept this might be a reason for any difficulties.  He reluctantly conceded that the mother had agreed to him spending “make up time” with the children when there had been delays caused by bus timetable problems.  Until pressed, he was not prepared to accept that the mother communicated with the supervisor about travelling delays and that this information was provided to him whenever there was an issue.
105.	The father argued that the mother does not facilitate his relationship with the children and takes every opportunity to undermine that relationship. However, he conceded in cross-examination that between November 2012 when the supervised visits commenced and November 2014 when the Family Court trial commenced, the children had only missed two of the allocated visits. He also admitted that when visits had to be rescheduled due to the O supervisor’s other commitments, the children had always attended the rescheduled visits. 
106.	The father also alleged that the mother does what she can to make his visits with the children as unpleasant as possible, giving the example that she restricts what the children can eat and do during his time. During cross-examination, the mother put to the father that two of the children suffer from travel sickness and that any restrictions she suggests to the O supervisor at changeover are intended to avoid them being ill on the journey home, which takes more than an hour on very bumpy roads. The father refused to acknowledge this possibility, insisting that the children had never suffered from travel sickness while he lived with them. He stated that for children to suffer from travel sickness more than 50 per cent of the time was just not believable and argued that if it is the case, then it is probably due to what the mother is feeding the children. 
107.	The father alleged in his evidence that the mother had often been debilitated by migraines, from which she apparently suffered multiple times per month with varying degrees of severity. He claimed that during such times he took the more active parenting role. However, he ultimately conceded during cross-examination that he had often left the mother to care for the children at these times and felt no concern about her capacity to do so. 
108.	The father consistently denied the allegations made by Y and denied these allegations when interviewed by police.  There was no evidence elicited during cross-examination to detract from these denials.
109.	In assessing the father’s case I have taken into account that there is no onus upon him to prove any motive which might be attributed to Y for making false allegations.
The respondent mother
110.	The mother deposed that she “believe[s] that [Y] is being honest when she says that [the father] sexually abused her”.  It was the mother’s evidence that if she is correct in her belief, “then I would without qualification state that there is a risk to our three children” if the father was to have unsupervised contact with them.  The mother further deposed: “If, contrary to what I believe, the Court finds the allegations to be false I categorically say that I have done nothing to influence my daughter into making or persisting with the allegations”.
111.	The mother was cross-examined by the father and counsel for the Independent Children’s Lawyer.  
112.	The mother disagreed with propositions put to her by the father that the sexual abuse allegations were invented by Y.  The mother also denied that Y had not wanted to proceed with the prosecution but agreed that Y was reluctant to be asked personal questions.  The mother stated that ultimately it was Y’s decision to proceed to court and that she could not have forced her to attend because it would have damaged their relationship. 
113.	Questioned about Y’s change in behaviour at school in 2008, the mother conceded that it was a possibility that Y was reacting because of the reconciliation.  Suggested by the father that Y’s decline at school in 2008 might have been attributable to her poor health and asthma, the mother stated that Y was not away from school long enough and that she would always complete work at home to compensate.  
114.	The mother denied that she had invented any further information and denied that when cross-examined at the committal proceeding she was attempting to ensure the father was convicted.  
The mother’s alleged sexual abuse as a child
115.	In cross-examination the mother explained that her brother had sexually abused her when she was seven years of age and that she told her parents when she was about eight or nine. She stated that when she told her parents about the abuse, they made her brother apologise to her and aside from that it was “swept under the carpet”. When questioned by the father she denied that she was bitter about her parents’ reaction, stating her belief that they “did the best they could.”
116.	As to the father and paternal grandmother’s evidence that the mother frequently discussed her childhood sexual abuse, the mother denied this, explaining that it is difficult for her to discuss the abuse and that even now, she had not spoken about the details with her counsellor. The mother denied that she had told the paternal grandmother about any sexual abuse by her brother, but agreed that she had told the paternal grandmother that her brother had physically abused her.  
117.	Having observed the demeanour of the mother throughout the trial, I prefer her evidence over the evidence of the father and paternal grandmother on this point as the paternal grandmother’s evidence had clearly been discussed with the father.
Cross-examination of the mother by the Independent Children’s Lawyer
118.	The effect of the mother’s evidence was that she would not be satisfied that the children would be protected if the paternal grandparents supervised the father’s time with them. The mother believes that the paternal grandparents are biased and could not be impartial.  She was prepared to concede that they were loving and involved grandparents but was concerned that they had not been sensitive towards the children since the separation and in particular that the paternal grandmother had minimised W’s distress about the father’s introduction of his new partner.  She stated that she would not trust them to be vigilant or report anything suspicious because they did not believe that the father represented a risk to the children. 
119.	Regarding parental responsibility, the mother was prepared to concede that email and text messages were a potential avenue for communication between the parents and that it would be acceptable to her in the event that the Court found that parental responsibility ought to be shared.  She could not accept face to face contact because of her belief that the father sexually abused Y and the change in attitudes since the allegations were made.  She thought that the attitude of the father and paternal grandparents would be an impediment to any telephone communication between the parties. Whilst the mother accepted that email communication might be an effective means of communication, and stated that she is capable of communicating this way if ordered to do so, she stated that disagreements could not be resolved by email and she doubted that it would be effective. 
120.	The mother deposed that W is nervous around men and new people and that he struggles with making eye contact with them.  During cross-examination by counsel for the Independent Children’s Lawyer she elaborated that W has always been shy and reserved.
121.	She stated that W had approximately eight months of counselling with the X Centre against Sexual Assault (“CASA”) around the time of the police investigation of the father.  She stated that J and W had completed a protective behaviours program for two to eight weeks with CASA and her understanding was that the program taught the children to recognise signs within themselves and aimed to give them the confidence to approach a trusted adult if they ever feel upset or scared.  The mother agreed with counsel for the Independent Children’s Lawyer that W and J are far better resourced about knowing inappropriate behaviour than Y would have been.
122.	The mother stated that W is no longer having counselling with CASA and that this had been discontinued following her relocation to Town U with the children. However, she also said that she was in the process of completing the paperwork necessary for W to receive counselling via a mental health plan.  
123.	The mother stated that the children know nothing about the allegations made by Y. 
124.	Counsel for the Independent Children’s Lawyer questioned the mother about the effect upon the children of having no contact with their father for many months until the assessment for the first family report.  Counsel asked the mother whether the children suffered a loss from the absence of their father, to which she replied that they were confused by it.  Asked when the children found out that the parents had separated, the mother stated that it was about six to eight weeks after the allegations had been made, when she sought help from CASA as to how she should explain things to the children.  The mother said that she requested CASA’s assistance because she had previously told the children that the father had gone to speak to the police and they had decided that he was not allowed to return to the home because he had done something naughty, but that this had caused the children great concern.  The mother conceded that with the CASA counsellor’s assistance she had been given a form of words to use by way of explanation, and the children were told that the father had done something “very, very wrong.”
125.	The mother agreed that when the children eventually saw the father again they wanted to see more of him.  She conceded that they were very happy upon returning from their first supervised visit with him.
126.	The mother deposed that there was a lack of emotional connection between the father and the three children prior to separation and also that he prioritised his work and sport over the children.  Asked by counsel for the Independent Children’s Lawyer to elaborate upon this during cross-examination, the mother explained that there was a lack of depth to the communication between the father and the children.  She conceded that he played games with the children but said that their interactions involved “fluffy stuff”, and that he did not make the time to engage with them on a different level.  The mother also said that if the children were distressed, the father could not attend to their needs and that she always looked after and comforted them in such situations.  She stated that the father missed the children’s milestones because of his working hours, sport and overseas trips.  Although she also conceded that the father expressed regret about missing such things.  
127.	The mother conceded that the children speak positively about the father but said that the introduction of his new partner had caused “a massive fall out”.  She stated that J had asked her whether she was going to die and why the children needed a new mum.  Further, she stated that W had said, “I’ve got you.  I don’t need a new mum.”  The mother said that the children became concerned if she was unwell.  She stated that W was teary and highly emotional after spending time with the father and would burst into tears saying, “I feel really sad”.  She stated that W cannot articulate what he is sad about.  She explained that she has raised this with the school because she considered that he may have been bullied.  
128.	The mother stated that this is not a situation wherein the children witness any conflict between the parents.  She stated that she does not shut down when the father is mentioned by the children and she makes an effort to speak in a positive way about him during the one hour and ten minute drive to spend time with him.  I accept her evidence on this point and it was apparent in numerous examples of the mother’s conduct that she has promoted the children’s relationship with the father. 
129.	The mother was not prepared to concede that the damage done by the father with the introduction of his new partner to the children could be overcome.  However, regarding her opinion of Ms T, the mother said, “I haven’t formed an opinion … I’ve never spoken to her before today.”  This is an example of the very reasonable response by the mother which was typical of her conduct and attitude during the trial. 
130.	The mother agreed with counsel for the Independent Children’s Lawyer that, eventually, the children may want to “spread their wings” with their father.  The mother also agreed that eventually the two hours of supervised time per fortnight would be very restricting and that this situation would somehow need to be addressed.  The mother agreed that there was a dilemma between the children having a meaningful relationship with their father and ensuring their safety. 
131.	Counsel for the Independent Children’s Lawyer asked the mother about Y’s behaviour at school during a period of “acting out”.  The mother’s evidence was that the only time during Y’s entire school career when there were behavioural problems, out of the ordinary, was in July 2008 when she was at R Primary School. The mother’s evidence was that she could not find an explanation for Y’s behaviour at the time and that Y saw the school counsellor briefly.  The mother stated that Y’s behaviours improved when she changed schools to K Primary School. 
132.	When asked about the father’s evidence of Y’s proclivity for lying, the mother stated, “I don’t agree that she is a liar.”  She conceded that the issue of lying would have been raised at some point but insisted that this was not outside the parameters of what parents can ordinarily expect from children.  The mother did not recall any of the examples given by the father in evidence.  The mother stated that perhaps she was not present when these things occurred and she did not recall a broken chair except after separation.  She denied that Y was “into fantasy” other than normal play.  She also disagreed with the father’s description of Y as being “highly manipulative” though she acknowledged that the father had long held this notion about Y. 
133.	The mother’s explanation for the father’s view was that the father was frustrated because they clashed over parenting methods; he blamed Y for “running to” the mother whenever she was in trouble.  The mother stated that she disagreed with the manner in which the father tried to discipline Y with raised fists, yelling and threatening, and the father perceived this disagreement as undermining his parenting role.  
134.	Counsel for the Independent Children’s Lawyer asked the mother whether she believed Y disliked the father, to which she responded that during the last 12 months prior to the final separation she had noticed that Y did not want to cuddle the father.  She stated that she put it down to Y feeling awkward because of puberty, and the associated physical changes, and at the same time Y seemed to withdraw from physical contact with the father. 
135.	Counsel for the Independent Children’s Lawyer asked the mother whether Y had continued to be involved in play with the father and the other children over the 12 months prior to the final separation.  The mother answered affirmatively but added that it was mostly “running around stuff” and whenever there was ever any physical touching this would create an issue and Y would get upset.  The mother referred to an example that she would be in the kitchen and would overhear Y saying “can you stop that”, “stop it” and “I don’t like that”.  The mother conceded that she told both the father and Y not to be so rough in their play but the rough play continued as soon as she left the room.  She was prepared to concede that it may have been an outlet for Y and that Y may have enjoyed the play along with the other children.  Counsel for the Independent Children’s Lawyer put to the mother that Y entering into these games willingly is not consistent with Y wanting to put distance between herself and the father.  The mother responded that Y didn’t always play and sometimes left the game part way through. 
136.	Counsel for the Independent Children’s Lawyer asked the mother whether Y intensely disliked the father.  The mother responded that what she sensed was more of an uncomfortable feeling than dislike.
137.	The mother conceded that she did not see the father touch Y inappropriately when Y kissed him goodnight and she was present.  She conceded that Y did not complain to her about any inappropriate touching by the father until 27 January 2012. 
138.	As to the comment the father made to Y that he was not her father, the mother stated that the father apologised before they reconciled and she was present when he told Y that he was sorry and should not have said it.  She stated that it was not “an in depth conversation” but that Y seemed to accept that apology.  The mother stated that Y did not raise this issue with her again. 
139.	The mother was not surprised that Y did not remember the comment when she was cross-examined at the special hearing because she stated that Y was extremely distressed at the hearing and focused on more important things.  
140.	Cross-examined about the visit of Ms B, the mother stated that it was quite a long visit to the family home on 8 January 2012 and that the father was present. The mother stated that she had been quite nervous about the visit because she had not seen her aunt since 1991, but that she had been in communication with her via email sporadically.  The mother stated that she had invited the paternal grandparents for afternoon tea on that occasion because she was concerned that she might “run out of things to talk about” and she was keen for the paternal grandparents to meet her mother’s sister. 
141.	The mother denied that there had been any discussion about sexual abuse with her aunt during that day apart from one comment that the mother made to her as a quiet aside when she was seated adjacent to her at the kitchen table. She stated that they had been discussing many things and viewing photograph albums.  
142.	The mother stated that this comment was made after the paternal grandparents had left.  She stated that Y was in her bedroom approximately nine metres away and the three younger children were going backwards and forwards to the bedrooms to produce toys to display for Ms B.  She stated that the conversation was fragmented because it was interrupted by the children and they would stop to speak to them when they came back and forth. 
143.	The mother’s evidence was that the only comment she made that related to her childhood sexual abuse whilst they were at the house was to say: “What happened to mum happened to me”.  She stated that at the time she said this, she had a view of the lounge room, dining room and through the kitchen to the family room and that the father was not in sight.  When asked whether Y was in the vicinity when this was said, she replied, “I do not recall seeing her in my vision. I could see the whole of the lounge room and through the kitchen to the family room”. 
144.	The mother stated that when she made the comment, Ms B put her arm around her and they both welled up with tears.  She stated that nothing more was said until she was driving her aunt back to where she was staying later that night after dinner.  The children remained at home and were not present in the car.
145.	The mother was cross-examined about a further conversation between herself and her aunt on 24 January 2012 when she was again driving her to where she was staying.  The children were not present.  The mother denied that there was any discussion about sexual abuse.  She stated that she had raised with Ms B her feeling that there was something not right between the father and Y.  She said that she described overhearing games being played between Y and the father in other rooms of the house, wherein there would be laughing and then the game would stop and Y would say “can you stop that” or “can you not do that” in a loud voice.  The mother stated that she expressed to her aunt that it was perhaps that Y was a young girl becoming a young woman and was “grappling or dealing with teenage hormones”. 
146.	The mother stated that her aunt raised the issue of “rough play” between the father and Y but said nothing about sexual abuse.  Ms B suggested that the mother discuss it with the father and that she discuss any body changes with Y to see if things could be resolved easily.  
147.	During cross-examination by the father, the mother denied that any of the children were present when she made the comment to Ms B on the occasion of her visit to the house.  She denied discussing anything of a sexual nature with her at the house that day.
148.	The mother denied that she had any discussion with Y about her own sexual abuse before Y made the allegations against the father.
The child Y’s sex education
149.	Counsel for the Independent Children’s Lawyer asked the mother about the sex education of Y.  The mother’s evidence was that when she was pregnant with the other children she provided Y with basic age appropriate sex education but nothing in depth.  She stated that she discussed protective behaviours with Y when she was starting primary school, in terms of basic things such as “it’s your body, no one is allowed to touch it unless you say so”, but nothing specific as to sexual intercourse.  She stated there was some discussion when Y was in grade three because she was pregnant with H and Y had questions about babies.  
150.	When referred to Y’s references in the special hearing about the “knowing and growing classes” that took place for a six to eight month period in 2010, when she was in grade six, the mother explained that this was a primary school course which coincided with an exhibition at the Melbourne Museum.  
151.	The mother denied having any conversation about rape with Y prior to the allegations being made by Y.  Counsel for the Independent Children’s Lawyer asked the mother about Y’s statements made during the special hearing that she and the mother had had a conversation about rape in grade five or grade six.  The mother stated that Y may have been informed of rape during the “knowing and growing” classes but reiterated that she had not discussed rape with Y until after the allegations were made.  
152.	Counsel for the Independent Children’s Lawyer referred the mother to Y’s statement during the special hearing that, when she was in year three, the mother had asked her whether anyone had touched her and listed various people, asking whether any of them had ever touched her in a way that made her feel uncomfortable.  The mother agreed that this conversation had taken place when Y was about to start swimming lessons, though she was unsure as to whether this was when Y was in grade two or grade three.  Counsel asked the mother why she had asked that question, the mother stated that she was around that age when her own mother had asked her a similar question and that this was when she had told her mother about her abuse.  
153.	The mother conceded that asking Y this was potentially being overly cautious but stated that she was following the parenting model she was given.  She conceded that she had concerns because of her own experiences and wanted to ensure that Y was safe.  She conceded that she believed at the time that she was vigilant in watching for any signs of sexual abuse, such as unexplained changes in behaviour.  However, the mother insisted that she never asked Y again if anyone had touched her; she stated that she believed she had given Y the necessary tools and that Y would come to her with any issues because she had reassured her. 
154.	Counsel for the Independent Children’s Lawyer referred the mother to a statement made by Y during the special hearing.  Questioned as to whether the mother had ever, on other occasions, asked her similar questions about being touched, Y said that she only remembered that one time but that the mother had “probably” asked her again.  The mother stated that she could not recall any other occasions upon which such a conversation had taken place.  
Argument on the evening of 26 January 2012
155.	The mother deposed to her version of the events involving the argument that took place on the night of 26 January 2012, as follows:
The argument started around bedtime, as [the father] had started calling [Y] names. I asked what’s going on. To which [the father] explained that he was calling [Y] “miss no touchy” as she didn’t want a kiss and cuddle good night. I said to leave her alone and to give her some space as she is a young teenager with body changes and personal space can be tricky at her age. I bathed the younger three. While I was getting [H] dressed on the floor in his room, [Y] went into the bathroom to brush her teeth, and [the father] followed to fill up [W] or [J’s] night time cup. I heard [Y] say “Oh can you not”. I got up to see what was going on to see [the father] turn around and charge into the bathroom to yell in [Y’s] face “You’d better wipe that fucking look of (sic) your face before I smash it off!” I then got between them and replied with “Don’t you dare talk to her that way and you will never smash her or anyone. You’ll have to get through me first. Go to the lounge room, leave the kids. Back Off.” [The father] then went to the lounge room. I comforted [Y] and consoled the other children … Then I spoke with [the father]. I explained that I wouldn’t have it at all any talk like that to the kids or me. Not at all. [The father] then went on about how he was upset that she wouldn’t cuddle him good night. I explained again that it’s her choice and she doesn’t have to if she doesn’t want to. [The father] was still upset so I offered to talk to her tomorrow, on the Friday …
156.	During cross-examination by counsel for the Independent Children’s Lawyer, the mother said that this argument was more aggressive than usual.  The mother agreed with the father’s evidence that after his argument with Y he had a discussion with the mother in the lounge room, that his voice was raised and that Y was in her bedroom which was nearby.  However, the mother categorically denied that the father had ever said, as per his evidence, that Y should be sent to Queensland to live with her grandfather.  Instead, it was the mother’s evidence that the father kept saying, “I’m effing over this.  I’m sick of her attitude.  I’m sick of how she speaks to me.  I don’t want anything more to do with her. I’m done.  I don’t want to speak to her.”  The mother said that Y may have overheard this but it would not have been news to her because he had said this sort of thing directly to her before. 
157.	The mother conceded that the argument was not in her initial statement to the police.  She stated that she had told the police about it when interviewed by them on 27 January 2012 and did not know why they had not included it in the written statement that she signed on 30 January 2012.
158.	The mother agreed that she was surprised that Y could not remember the argument in the bathroom when she was cross-examined at the special hearing. 
The child Y’s complaint to the mother 
159.	Counsel for the Independent Children’s Lawyer referred to Y’s VARE interview, when she was asked to tell the police interviewer everything that had happened leading up to her making the allegations to the mother.  Responding, Y said, “… That’s when I started crying and [the mother was] like,…, Has he touched you anywhere or anything?”  The mother denied having said this to Y before the allegations were made.  
160.	The mother stated that Y started by saying, “Daddy’s licked me”; The mother asked where he had licked her and Y said, “Downstairs.”  The mother stated that she asked Y for a proper, specific word and said, “It’s time for big girl words”.  The mother stated that Y was shaking, crying and very distressed; the mother asked her if something was upsetting her before shutting the bedroom door to make Y feel comfortable.  
161.	The mother stated that Y had referred to the “nervy part down there” and that she had never heard her use that expression before.  She stated that Y did not discuss with her the circumstances in which or dates when these things happened but stated that this occurred when she was little and “doing reading” with the father.  The mother maintained that her evidence at the committal hearing about what Y had told her was true and correct.
162.	The mother explained the process of reporting the matter to the police and taking the children with her to CASA in Suburb N so that Y could be interviewed.  The mother was interviewed by DHS officers and the police.  The mother said she told Y to tell the police everything that she could remember and not to hold back.  The mother stated that it was very late in the evening when they went home, after being informed by the police that the father had been arrested and would not be returning home.  She stated that she did not speak about the allegations with Y again because she was struggling with her own emotional turmoil and did not want Y or the other children to see her upset.  
163.	On the Monday morning, J started her first day of prep, W and Y started the school year and the mother went to the Magistrates’ Court to apply for an intervention order against the father.  
164.	Regarding counselling, the mother stated that Y had sporadic appointments with CASA but that she was reluctant to attend and did not find it easy to speak to the first counsellor.  She stated that Y subsequently developed a good relationship with a second counsellor, Ms S, who attended the special hearing at the County Court in support of Y.  
165.	The mother stated that, in January 2013, Y told her that she remembered new things and the mother took her to be interviewed by the police again.  The father was not charged with any further offences as a result of this interview.  I do not place any weight on this evidence.
166.	Counsel for the Independent Children’s Lawyer asked the mother whether Y expressed any reluctance about giving evidence in the County Court. The mother said that Y was reluctant because of the prospect of being distressed about being cross-examined at length and reopening old wounds.  Asked whether this was the extent of Y’s reluctance, the mother conceded that she and Y had had a heated discussion about the process and the police investigation and explained that it was important for her healing to “see it through to the end as far as she could”.  
Evidence given at the committal hearing 
167.	During cross-examination by counsel for the Independent Children’s Lawyer, the mother was asked about her evidence during the committal hearing.  The mother stated that it was a normal occurrence for her to go into Y’s bedroom when the father was reading to her and say goodnight.  She estimated that the reading time was usually between five and 15 minutes and stated that the father would sit in a variety of postures whilst reading with Y – sometimes he would be sitting on the bed, sometimes kneeling beside her and so on. 
168.	Counsel for the Independent Children’s Lawyer read from the transcript of the special hearing referring to Y’s description of the mother walking into the bedroom during the story time incident and asked the mother whether she remembered anything like what Y described.  The mother said that she remembered an occasion when she walked in and noticed the father kneeling on the floor next to the bed.  In her account, he turned and looked over his right shoulder at her and she asked whether everything was alright; he said it was fine.  Y did not say anything.  The mother then left to feed the pets. 
169.	Asked why she remembered this particularly, the mother said that the father had had a strange look on his face “a bit sleepy” and “not right”, “strange and unusual at the same time”.  She stated that when the father looked at her he had licked his bottom lip and “it was just peculiar”.  
170.	Asked whether she was reconstructing something, the mother maintained that she was not and that she had brought this up with her counsellor six to eight months after the allegations were made, when she wasn’t even aware that Y believed she had walked into the bedroom during the story time incident.  The mother stated that she didn’t find out what Y had said during cross-examination until the week before the trial in this Court, which was when she immediately connected this with what she had earlier discussed with her counsellor and thought “well that correlates” and “confirmed that that gut feeling of being uncomfortable was true and correct”.  I place no weight on this aspect of the mother’s evidence as she is possibly reconstructing events and memories through the prism of later events and the allegations.
171.	Counsel for the Independent Children’s Lawyer referred the mother to her cross-examination during the committal hearing.  The mother agreed with her committal hearing evidence that when Y initially made the complaint to her, she asked Y where the mother was when these things happened and that Y had said that the mother had gone out to feed the pets or was cleaning in the kitchen.  The mother agreed that Y never told her at the time when she made the complaint that the mother had walked into the bedroom during the abuse.  The mother stated that she was surprised when she learned that Y had referred to this during the special hearing.  The mother conceded that it was a significant difference in her narrative but maintained that this did not cause her to consider that Y in any way fabricated the complaint. 
172.	The mother conceded that five minutes was a very short amount of time for all of the events alleged by Y, to have occurred.  She also conceded that it was enormously risky for the father to sexually abuse Y in her bedroom when the mother regularly came in unexpectedly during reading time, though she added that the father would have heard her approaching the room on the tiled flooring.  
Conversation with the mother’s aunt, Ms B
173.	As to the presence of the father when the mother told her aunt “what happened to her mother had happened to her” the mother conceded that Ms B in her evidence had remembered the father being present at the table, however she disagreed that Y was present when she spoke to Ms B.  The mother continued to deny that she told Y about her own sexual abuse as a child until after Y had made the allegations and after the separation when she did so on advice. 
174.	The mother denied having told any members of the father’s family about her own sexual abuse. 
Father’s relationship with the child Y 
175.	Referring to the first period of separation in March 2006, the mother gave evidence that she had been busy working full time when she was pregnant with the child W and at the end of the pregnancy, she had planned to become a full time mother caring for both W and Y.  She stated that the father came home from a sports weekend and was upset.  She stated that he said “I’m tired of you telling me when I can have a drink”.  She stated that she knew that she was pregnant with the child J and that she collapsed from the shock.  She stated that the father left and walked out the door.  
176.	Regarding the father’s suggestion that she made it difficult for him to see W, the mother stated that she went to Queensland to live with the maternal grandfather in April 2006 but that the father had spent time with W before then.  The mother stated that on legal advice she delivered a letter to the father the night before she left, advising him of her relocation to Queensland.  She stated that she returned to Melbourne on the advice of her solicitor and that W was very young and did not recognise his father after J was born. 
177.	The mother stated that it was a shock to Y when the father ended the relationship in 2006 and she was distraught.  The mother thought that she would lose the baby because she was stressed and worried about early labour. 
178.	The mother stated that Y was timid when the father returned because she was unsure of the relationship.  She had been more secure in the early relationship.  She stated that it was not a warm reception by the father either.  
179.	The mother gave evidence that Y was very upset when the father had said to her “don’t call me daddy.  You’re not my daughter,” and if the father came to the house to visit the children, she would be “very scarce”.  She stated that both parents raised this issue with Y when they reconciled and that the relationship between the father and Y was tentative.  She stated that the father made an effort to smooth things over and Y responded in kind.  However she stated that Y was concerned about what would happen to them if the father left again and she was worried about moving again because they had been renting a very small three bedroom house before the reconciliation.  She stated that it was “not poverty driven” but very different from when they had lived with the father. 
180.	The mother stated that it took about a year to repair the relationship and they moved back into the former matrimonial home in September 2007 and the relationship was good between the father and Y.  The mother was very busy at that time because J had just been born.  
Communication between the parents
181.	Regarding the mother’s approach to providing an explanation for the absence of the father, the mother stated that a professional counsellor had said to the children that the father had done something “very wrong” despite the fact that the criminal trial had not taken place.  The mother stated that she had discussed the explanation at length with a panel of counsellors at CASA and that she followed their guidance and judgment.  They suggested saying that the father had done something “very, very wrong” because the children had difficulty distinguishing between naughty and more serious behaviour which warranted police intervention.  
182.	The mother denied telling the children that they would never see their father again and stated that she did not know when the charges were laid against the father.  The mother conceded that the children had been concerned that the father was not being fed in gaol and she had discussed this issue with counsellors some weeks after the initial separation.
183.	I accept that the mother’s response was reasonable in the circumstances and that she was guided by professional advice.
184.	The father complained that the mother had moved to Town U with the children without notifying him.  The mother conceded that she did not notify him beforehand, on legal advice, but that her solicitors provided a letter to the solicitors for the father when she moved to Town U.  She also conceded that on the advice of her solicitor, she did not disclose the address of the children’s school to the father, however she stated that the children had told the father about their primary school and all the material was on the internet.  She did not have the father’s address. 
185.	Regarding the father’s evidence that she failed to notify him about a day surgery procedure for the child H conducted on 30 July 2014, the mother stated that she was unaware of the date of the surgery until advised the day before by her dentist.  The mother stated that she advised the father as soon as she knew the date of the treatment.  
Assessment of the mother
186.	I found the mother to be a truthful witness, who was consistently reasonable and measured in her approach. She was not prone to exaggeration or prolixity.   She answered questions directly, honestly and succinctly. 
187.	The fact that the mother was prepared to make reasonable concessions rendered her statements more credible.  The mother was not malicious or vindictive in giving her evidence.  She was resolute in her belief that Y was sexually abused by the father and accordingly in her belief that her other children needed to be protected from him.  The mother was not capricious in her judgments about others including the paternal grandmother.  She was understandably cautious about the father’s partner but did not condemn her.  She also  had an appreciation of the paternal grandparents’ belief in and defence of their son.  She was prepared to accept the judgment of this Court and implement any orders co-operatively.
188.	The mother minimised the ordeal that she had suffered since the allegations had been made because she appreciated the seriousness of the ramifications for the children in having their relationship with the father disrupted.  She appeared to have considerable strength of character in dealing with the dilemma with which she had been confronted when Y made the allegations.  Despite the criticisms directed towards her in cross-examination by the father about how she dealt with the explanation to the children for the father’s absence, I accept that she acted reasonably in following the advice of professionals. 
189.	The mother’s circumstances at the time when she took that advice were very different from those which ultimately transpired when the DPP discontinued the trial.  During the early stages of the criminal proceedings it is not surprising that the mother had to anticipate and contemplate how she might deal with the children when there was a possibility of the father being convicted and imprisoned.  It would appear that the mother also suffered from a lack of information about the criminal proceedings, which is not unusual, given that she was a prospective witness in the criminal trial.  An example of this is that the mother had not been present for Y’s cross-examination at the special hearing in the County Court and had no knowledge of the father’s interview with the police until the trial in this court.  None of this further information caused the mother to doubt the veracity of Y’s complaint.
The paternal grandmother, Ms L
190.	The paternal grandmother, Ms L, affirmed an affidavit on 24 August 2014.  In that affidavit, she deposed that she had known the mother and Y for seven years and until the allegations were made against her son, she “had a reasonable working relationship with [the mother]”.  
191.	The paternal grandmother deposed that she believed Y had been prompted into making up the allegations, though did not say by whom or in what way. 
192.	The paternal grandmother deposed that before Y made the complaint, on 3 January 2012, the mother had attended at her house and was very angry because the father had severely reprimanded Y the night before.  The grandmother deposed that the mother had said to her: “If it happens again, it will be the last time”.
193.	Ms L deposed that on 17 January 2012, the mother had asked her to check her diary in order to ascertain the date of the parents’ separation.   According to the paternal grandmother, the mother had found a photograph of the father with another woman, taken in mid-May 2006, and wanted to know whether the photograph was taken during the separation.  The grandmother’s evidence was that the mother “pleaded with” her not to tell the father about her enquiry. 
194.	The paternal grandmother deposed that over the years she had known the mother and Y, the child had been in trouble “countless times” for lying and making up stories.  
195.	Counsel for the Independent Children’s Lawyer asked the paternal grandmother for details about the mother’s alleged statement, “If it happens again, it will be the last time”.  Ms L said that it sounded like a threat to end the relationship.  Counsel for the Independent Children’s Lawyer asked the paternal grandmother whether she had pushed for more details, on that or any other occasion.  She said that she had not and added, 
There were some things you didn’t broach with [the mother]; you didn’t push too hard. Like any hint of criticism and there were prickles. And we wouldn’t see – if it was too much criticism, we wouldn’t see the kids for days afterwards, a week afterwards. So you never pushed it too much.
196.	Counsel for the Independent Children’s Lawyer asked the paternal grandmother whether she believed that, at the time the mother made the statement, the mother wanted to end the marriage.  The grandmother responded that she did not know what was in the mother’s mind; however, she also added that she “felt a drawing away in the last week” before the allegations were made.
197.	With regard to the mother allegedly asking the paternal grandmother to check the date of separation in her diary due to having found a photo of the father with another woman, counsel for the Independent Children’s Lawyer enquired as to whether the mother had been reassured when she was told the date. Ms The grandmother responded in the affirmative and then added, “I couldn’t understand why she was carrying on.”  When asked what she meant by “carrying on”, the grandmother said, “making a fuss”.  When asked what she meant by “making a fuss”, the grandmother said, “Why was she even questioning it … why even bring it up?”.  When asked what she had intended to convey by putting this information into her affidavit, the grandmother stated that she didn’t know.  It is unclear what any of this was meant to communicate to the Court, particularly as the paternal grandmother would not actually state her intent, but it seemed to be providing support for the father’s claim that the mother believed he was having an affair. 
198.	Counsel for the Independent Children’s Lawyer asked the paternal grandmother whether she believed, in light of her friendship with the mother prior to separation, that the mother was an honest person.  Ms L answered, “There were a lot of times that I felt that, with the children especially, they were not made aware of facts. There were little lies there, which I know some people would do with children but I – it was not my way, it was not what I agreed with”.  Asked for examples, she went on, 
There was a stage there when [J] was in trouble – in a lot of trouble – and they ended up, they couldn’t get her to stop making up stories.  So they took her toys off her.  And [J] was told the garbage man was going to take them away.  And then, a week later, she was being good again, the toys started coming back.  And I disagreed with that …
199.	The paternal grandmother conceded that such “little lies” were “very, very minor” and said that there had not been any “big lies” to her knowledge.  Another example of these minor deceptions offered by the grandmother was that the mother would tell the children that if they were good or if they cleaned up, she would take them to the playground after school, but then she would tell the grandmother that she would actually go shopping after school.  Ms L conceded that there were not many other examples like this. 
200.	Counsel for the Independent Children’s Lawyer asked the paternal grandmother about her belief, as deposed to in her affidavit, that Y was prompted to make the allegations.  The grandmother responded that, in her view, there are two ways of being prompted – the first would mean that the mother was behind it; the second would be that Y had been prompted by hearing her mother discuss her own childhood sexual abuse as well as overhearing the maternal great aunt’s story.  The paternal grandmother appeared to place some significance on the fact that in their stories, both the mother and Y would have been seven years old at the time of their alleged abuse.  When asked whether she believed it was likely that the mother knowingly prompted Y to make the allegations, the paternal grandmother said, “The hostility and vindictiveness that came out after the allegations can’t help but take me down that line”.  Ms L conceded, however, that this hostility and vindictiveness may have been as a result of the allegations.
201.	Counsel for the Independent Children’s Lawyer asked the paternal grandmother whether she thought Y was a truthful girl, Ms L responded in the negative.  Asked to back this up with her own observations, the paternal grandmother was unable to do so.  Counsel for the Independent Children’s Lawyer proposed the words “fabulist and fantasist” to the grandmother to describe Y.  The paternal grandmother said, “That was [Y]”.  She was again asked to give an example from her own experience of Y, to which she responded that Y often said that she had seen fairies in the garden.  The paternal grandmother conceded that she did not contradict Y because if she wanted to believe in fairies that was fine because “it’s a childhood thing”.  The paternal grandmother then thought of an example of Y not being truthful; she said that, after separation, during a visit to the house Y had come out of her room and said that her chair had broken.  Her mother had asked if she had been rocking on it and Y had denied that she had.  Y insisted that the chair just broke by itself. 
202.	Counsel for the Independent Children’s Lawyer asked the paternal grandmother about the statement in her affidavit that there were “countless times” over the course of the mother and father’s relationship that she had been told Y was in trouble for lying.  However, the grandmother was not able to give any further information about this as, according to her, she was not provided with details of the lies.
203.	The paternal grandmother was asked whether she was ever told about the mother’s childhood sexual abuse.  Ms L responded, “constantly”.  Pressed for detail, she said that she was told for the first time within two months of meeting the mother.  She then spoke of another time at a friend’s place, where the mother had told everyone present about her abuse.  The paternal grandmother stated that the mother had repeatedly spoken about her abuse (“maybe a dozen times”) and, on at least one of these occasions, Y was “listening in”.  The paternal grandmother further stated that she “got the impression [Y] was always listening in to the adults”. 
204.	Counsel for the Independent Children’s Lawyer asked the paternal grandmother about the visit by the mother’s aunt.  The grandmother explained that it was Ms B’s first visit to Australia for a number of years and that the mother had invited the paternal grandmother and her husband in order to reduce any awkwardness that might occur during the visit to the parents’ home.  The grandmother was asked whether she learned anything about the mother’s aunt during the visit, to which she stated that Ms B had called herself a “man-hater”, but the grandmother couldn’t recall the context in which this had been said.  The grandmother then went on to describe a telephone conversation she had with her son following the visit by the mother’s aunt, wherein he was angry because the mother and her aunt had been discussing, “in quite graphic detail”, the sexual abuse they had suffered as children within the hearing of the children. 
205.	Counsel for the Independent Children’s Lawyer asked the paternal grandmother what she noticed about the relationship between the father and Y, to which she replied that there were good and bad times and quoted with approval the mother as saying, in 2011, that it was a love/hate relationship.  She observed the relationship to be the same in the 12 months before separation, though there may have been, she said, more times when Y was in trouble for lying.  She could not, however, remember any of the lies Y had allegedly told.  
206.	The paternal grandmother deposed that there were “continual hiccups” with the supervised visits which took place at the retirement village where she lives with the paternal grandfather.  She stated that, on most visits, the mother had made minor complaints to the supervisor; examples were that the mother had insisted the children eat only fruit, had noted that there were mosquito bites on the children and had stated that she did not want wrappings from presents returned with the children as she had to dispose of them.  
207.	The paternal grandmother also complained about the mother insisting that the paternal grandfather refrain from taking the children, (wearing bathers) into the shower in the men’s change room in the retirement village before entering the swimming pool.  She requested instead that the boys be taken into the women’s change room to shower.  
208.	The paternal grandmother deposed that she and her husband had been prevented from participating in school activities with their grandchildren since the relocation because the mother “chose to keep her new location secret”.  She also deposed that she and her husband had been denied the type of relationships with the children that they had with their other grandchildren because the mother “needed to supervise them at all times”.
209.	When cross-examined by the mother, the paternal grandmother was asked about the occasion when the father introduced the children to his new partner and, in particular, whether she had heard the father tell the children that Ms T would be their “new mummy”. The grandmother said that she didn’t think it was those exact words that had been used.  However, later she conceded that she had heard the father tell the children something like, “[Ms T] could be your new mum”. 
210.	The mother then asked whether the children have at any times been upset since that occasion, to which the paternal grandmother stated, “we have not noticed it”.  She conceded that the child W had been quiet, but said that he was always quiet, regardless of whether or not the father’s partner was present, as he likes to play with his Nintendo-DS.  When the mother enquired as to whether the O supervisor had ever commented on the introduction of the father’s new partner, the grandmother said that the supervisor had stated that it was not done in the right way or at the right time.  The mother read to the grandmother from the supervisor’s notes made on the day of the introduction, and referred to earlier in these reasons, and asked for Ms L’s opinion on the supervisor’s remarks. The paternal grandmother’s response was that “two of the children are quite happy to have [the father’s] partner around and even [W] is coming around”.  Nonetheless, the grandmother conceded that the introduction should have been a slow process and was done too quickly and said that she had spoken to the father afterwards about its inappropriateness. 
211.	The mother returned to the question originally posed by counsel for the Independent Children’s Lawyer as to whether Y was a “fabulist or fantasist”, as well as Ms L’s response that Y had claimed to see a fairy.  At this point, the paternal grandmother conceded that she had had a “fairy alcove” in her garden, but insisted that Y had pointed to a different area of the garden as where she had apparently seen a fairy.  The grandmother conceded that stories of this kind were not unusual for a child of around ten years of age, which was when she recalled Y making the claim. 
212.	The mother then returned to the subject of “little lies”, which the paternal grandmother had disavowed during cross-examination by the Independent Children’s Lawyer, and asked whether Ms L would ever tell “little lies” to children.  The paternal grandmother said that she would not.  The mother raised the issue of Santa Claus and the Easter Bunny.  The grandmother then said that she had revealed the truth about Santa Claus not being real to Y, as Y had “backed me into a corner”, that she had been “determined to find out the truth”.  The grandmother was vehement that she would not tell a lie.  The mother then asked Ms L whether if, at some point in the next several years, W, J or H “backed her into a corner” about what has occurred in relation to the charges against the father, the Family Court proceedings and so on, she would tell them the truth.  The paternal grandmother said, “of course not … unless they’re old enough”.
213.	The paternal grandmother conceded that, since separation, she had received Christmas presents from the children, which included plaster ornaments and handmade “craft things”.  She conceded that a gingerbread house from the children as a gift “could have been homemade”.  Questioned about Easter gifts she received from the children in 2014, the paternal grandmother conceded “I guess so, but I don’t remember”.  
Assessment of the paternal grandmother 
214.	My observations of the paternal grandmother were that, not surprisingly, she blames Y and the mother for making false allegations against her son. The paternal grandmother had not viewed any of Y’s evidence in arriving at her conclusion. Her attitude towards the child was unsympathetic and judgmental.  She appeared to have no appreciation for the magnitude of the dilemma the mother faced when Y made the allegations.  However the paternal grandmother was prepared to frankly criticise the father for suggesting to the children that his new partner would be their new mother.
215.	The paternal grandmother appeared to honestly believe in her own capacity to simply report the truth.   Her cross-examination revealed that she values honesty above almost all other principles, to the extent that she would not tell a lie even to preserve the fiction of Santa Claus.  She described herself as a “stickler for the truth”.  
216.	The fact that the paternal grandmother’s evidence referred to the same examples as the father appears to have reassured the father that their accounts are true, rather than the more likely prospect that each account has been influenced by the other as they have discussed these matters over time.   Whilst the paternal grandmother may not have lied in her evidence, she cannot be impartial and now views all past events relevant to Y and the mother through the lens of what she considers to be the injustice against her son. Indeed, when counsel for the Independent Children’s Lawyer asked the paternal grandmother whether she had rehearsed in her own mind, the events that occurred prior to separation, she said, “of course. You go over and over and over it … And you remember things that have happened in the week before or the weeks before”. 
217.	Illustrative of this is the fact that, in their evidence, the paternal grandmother and the father both provided the example of Y lying about having broken a chair by rocking on it, as evidence of her propensity for deceit; however, the paternal grandmother stated that this incident occurred after the final separation on the one occasion when she and her husband visited and the father was not present.  Of course, it is possible that there were two separate incidents involving two separate chairs.  However, even if this is the case, it is extraordinary that both the father and the paternal grandmother used this as one of the scant examples they had to draw upon as evidence of Y’s dishonesty, particularly because, on their accounts neither was in the room when the chair(s) broke and neither could know with certainty that Y had lied at all.  The example proffered is inapt because of the insignificance of the type of lie which they alleged was told by Y. 
218.	The paternal grandmother’s attempts to portray Y as a liar and the mother as vindictive were not to her credit.  
219.	I accept the paternal grandmother’s evidence about the nature of her relationship with the mother and the children which has so obviously been impacted by the allegations made by Y. 
The father’s partner, Ms T
220.	The father’s new partner, Ms T, affirmed an affidavit on 24 August 2014, wherein she deposed that her parents and the paternal grandparents had been neighbours for approximately 35 years.  Ms T deposed that she and the father dated as teenagers and that her brother had been married to the father’s sister for 10 years, so they share nieces and nephews.  
221.	The father’s partner deposed that, in December 2012, after hearing from the paternal grandparents about the charges the father was facing, Ms T contacted the father.  When asked by counsel for the Independent Children’s Lawyer during cross-examination why she contacted him, she said, “ I wanted to sort of have a chat to him and just see how he was going. … I know in my heart that he wasn’t guilty so I wanted to chat with him and see how it all was going”.  She deposed that the father has been open and honest about the charges he faced and “[a]t no time then or since, have I had any doubts about [the father] or worried about him being near my daughters”.
222.	The father’s partner deposed that when the paternal grandparents moved into a retirement village, she invited the father to move in with her and her three daughters, who were aged eight, six and five years at the time Ms T’s affidavit was affirmed.
223.	The father’s partner deposed that she was contacted by DHS in December 2013; apparently “someone” had communicated to the Department “attempting to say that my children were in danger because [the father] had child sexual offence charges laid against him”.  Ms T stated in regard to this: “I can only assume this person was trying to stir up trouble between [the father] and me”.  According to Ms T, DHS insisted that the father move out of her home, contacted the father of her own children (thus upsetting his parents) and threatened to take her children away.  Ms T deposed to having contacted the Ombudsman and the DHS Complaints Department and stated that “[t]his has been ongoing and still continues”.
224.	The father’s partner deposed that if the father were to be granted the opportunity to spend more time with his children, she would welcome them into her family. 
225.	The father’s partner was cross-examined by counsel for the Independent Children’s Lawyer and the mother.
226.	During cross-examination by the Independent Children’s Lawyer, the father’s partner was asked about the spend time arrangements between her children and their father.  She stated that her daughters spend time with their father under supervision as a condition of an intervention order which she obtained in 2012 but which has since expired.  When asked about the circumstances that led to her obtaining the intervention order, she said that they had had a fight, he behaved aggressively towards her and two months later he threatened to kill her and her father.  However, she insisted that there were never any concerns in relation to her children and that, once she obtained the intervention order, things had “simmered down”. She stated that the father of her children spends time with them if he is available between four and six days of school holidays and has the children Friday night to Saturday night, supervised by his mother.  However, she conveyed that the time did not need to be supervised and this was simply the way his mother arranged the time.  Ms T said that she does not communicate directly with her ex-partner; rather, she speaks to his mother who arranges the visits for her children.  The father’s partner conceded that there was nothing to prevent the father of her children attending her home since the intervention order expired in August 2014.  
227.	The father’s partner acknowledged having read about child sexual abuse and the effects thereof but conceded that she “did not know a great deal about it”.  Counsel for the Independent Children’s Lawyer sought to impress upon her the seriousness of the effects, listing such examples as difficulty forming relationships, drug abuse and high rates of suicide.  When asked if she appreciated the gravity of these issues, the father’s partner said that she did.  She was, further, asked whether she felt she was in need of more education in relation to the possible consequences of child sexual abuse upon victims, to which she replied, “I suppose it never hurts to go and get some more learning of some sort about those things – about anything really. We’re dealing with lots of things in life; it’s always good to have more knowledge”.
228.	When cross-examined by counsel for the Independent Children’s Lawyer about the nature of the allegations against the father, she described them as “child misbehaviours, misdemeanours … molestation” and touching his step-daughter “or something like that”.  When questioned as to how she “knew in her heart” that the father was innocent of the charges, Ms T said, “I just knew that it didn’t sound right – it wasn’t him”.  When asked what the father had told her about the charges to make her believe he had been “honest and open” about them, she responded:
He told me all of the things he was alleged to have done … that he was meant – they – he was – allegedly he was meant to have, I think it was put his finger in her vagina … I can’t remember, I think it was making him (sic) touch his penis or something like that. I can’t remember the other allegations really but there was a lot there, like, he told me everything that had happened, going to the police station and things like that. So I knew all of that. 
229.	The father’s partner conceded that these were “very serious charges”.
230.	Ms T conceded that she had not seen or read any objective evidence in relation to the charges against the father.  In light of this concession, counsel for the Independent Children’s Lawyer sought clarification as to how Ms T could be so unequivocally certain of the father’s innocence.  She responded, “I just know that [the father] wouldn’t do that.  I’ve known him for 30 odd years, it’s not him.  He wouldn’t do that”.  
231.	The father’s partner conceded that, whilst the charges were pending, the father visited her on the nights when her own children were with their father and that when they were all together “as a family unit”, she was always present.  While they both agreed to this “precaution”, Ms T said that she never really had a problem with her children being alone with the father and that she “didn’t see the issue. I’ve known him that long.  But I suppose there’s always that precaution as well”. 
232.	The father’s partner conceded that, when the father moved in with her, she was aware that he was only seeing his children in a supervised setting and that there was an intervention order in place.  She also conceded that she was aware that there were proceedings on foot in the Family Court in relation to him seeing his children and that the Court had not, at the time when they moved in together, made an assessment of the risk of him having supervised or unsupervised time with the children.  When asked why, in light of these circumstances, she allowed the father to move in with her and her children, she stated, “ I’ve known him for years; I trust him 100 per cent.  I don’t know what else to say. … I have no problem with him.  I believe him 100 per cent that he didn’t do it”.  
233.	When it was suggested that she may have put the father ahead of her responsibilities to her own children, she stated her belief that she had made “a very good decision on all the evidence” but was prepared to concede that this was based only on what the father had told her; she had not heard the other side. 
234.	Counsel for the Independent Children’s Lawyer asked the father’s partner about her evidence concerning the intervention by DHS and specifically inquired whether the Department may have been involved due to protective concerns about her daughters, rather than because someone was “trying to stir up trouble”.  Ms T simply responded, “no”.
235.	The father’s partner conceded that DHS had never notified her that it was appropriate for the father to return to live with her but stated that “it was going to be forever”.  
236.	Counsel for the Independent Children’s Lawyer also queried Ms T’s frustration over DHS having contacted the father of her children.  Ms T stated that she was worried about his reaction but was prepared to concede that his response was probably based on concern for his daughters.  When asked why she made complaints about DHS, she insisted that she and the father had been treated unfairly by DHS.  Pressed for detail as to how they were treated unfairly, she said, “they were pretty much accusing me of not looking after my children properly and I don’t believe that that was the problem”. 
237.	At the conclusion of his questioning, counsel for the Independent Children’s Lawyer asked the father’s partner, 
Even now as you speak to me, after what I’ve taken you through, you don’t believe there was a problem in … allowing [the father] to live with your children until this Court has determined the matter of risk?
238.	Her reply was, “No because I know him completely”.
239.	During cross-examination by the mother, the father’s partner was asked about whether she was aware of the final proposals sought by the father, to which she responded that she had “half an idea that he’s asking for them for every second weekend” and holidays.  The father’s partner stated that there would be “extra kids to be running around the house, that’s all” and conceded that money was tight but that she considered that they would cope and that they would do “fun cheap things”.  She gave evidence that two of the children would have their own room in the study and J would share a bedroom with her own daughter.  She said that they had been friends at school.
240.	The mother queried the father’s partner about the amount of time that had passed since she had seen the father prior to resuming their friendship.  Ms T’s evidence was previously that she had not seen the father for five years.  Before that, she said they had seen each other eight years previously, around 2005, for a quick catch up.  She agreed that from 2003 they had not been close.  Ultimately, the father’s partner conceded that she had not actually known the father for a period of ten years before early 2013.  In light of this, the mother asked whether Ms T still believed it was a wise decision to allow the father to move back in with her without hearing from DHS, to which Ms T responded, “I’m still quite happy with the decision I made. I had no problem with it. No problem with it”.
241.	In re-examination the father’s partner stated that she had made phone calls to DHS to resolve the issue about whether the father could return to live with her and that they told her that it would be resolved in two to three weeks but did not contact her again.  She stated that she made a complaint about DHS.  She stated that she had known the father for 36 years and that she had interacted with him a great deal over the first 25 years.  She stated that the allegations made against the father were out of character because he “had never shown any nastiness, had always been truthful and honest” and “treated me like a little sister”. 
Assessment of the father’s partner
242.	The father’s partner was singularly unimpressive as a witness.  Although her mannerisms and laughter whilst in the witness box can be explained by her nervousness, and I do not place any weight on them in my assessment of her, her admitted actions and thought processes are enough to raise serious concerns about her suitability as a protective adult.  The father’s partnber genuinely did not seem to appreciate the seriousness of the allegations.  Her persistent reiterations that she “knows the father” and knows “in her heart” that he would not abuse anyone were revealed to be the only basis upon which she allowed the father to move into her home with her three young daughters, even after intervention by DHS.  Her frustration with DHS was apparent as was her negativity towards the Department.  She was not prepared to concede that there were any protective concerns in relation to her children which would have warranted the action taken by DHS. 
243.	I would have no confidence in Ms T’s ability to act as a suitably protective adult in the father’s residential environment, which is one of the conditions for the father having time with the children outside formal supervision recommended by Dr E.  
The mother’s aunt, Ms B
244.	Ms B is the mother’s maternal aunt who lives in England.  The mother deposed that she had not been in touch with her for almost 11 years.  The mother’s aunt swore an affidavit on 1 November 2012.  She deposed to having worked in childcare for 25 years and having undertaken relevant courses including in child protection.  She deposed that within her roles she has been responsible for monitoring and recording any issues of concern, including all aspects of child abuse, as required.  She deposed: “I am acutely aware of the need for professional conduct at all times where the well-being of the children is at stake”.
245.	The mother’s aunt deposed that between 26 December and 1 February 2012, she visited her family in Australia.  She had not seen the mother, her niece, since 1991 and had not met the children, Y or the father before Sunday 8 January 2012.  Ms B described the events of this day as taking place in the lounge room and dining area.  She deposed that for some of the time, she and the mother had sat at the dining room table, well apart from Y and the children, looking at photographs and talking.  At this time, the television was on and there was a train set on the floor.  The mother’s aunt deposed that the younger children were mostly playing with this train set and watching television, but that all of the children also spent some time in the dining room with her and the mother and some time in their bedrooms or playroom.  Ms B deposed that the father was on the couch with his laptop and was transferring family photos that they were exchanging, and that he had also spent some time playing with the youngest child on the floor.  At one stage, the father’s parents (the paternal grandparents) had visited as well.
246.	The mother’s aunt deposed that she and the mother had discussed many topics, encompassing both happy and sad times.  She deposed that they had talked about the maternal grandmother, Ms B ’s sister, and her death.  The aunt stated that the mother had cried and the father came over for a short time to comfort her.  Ms B deposed that:
[a]t no point was the topic of sexual abuse discussed other than [the mother] disclosing that ‘what happened to mum (my sister …) also happened to me’. This was said privately and very quietly to me out of earshot of any of the children.  
247.	The mother’s aunt further deposed that:
Given my background and training, and my own standards of behaviour, in no way would I think it appropriate on a personal or professional level to have discussed this matter in front of the children. I can state categorically that none of the children were in the vicinity to have heard this. Nor, may I add, would [the mother] have discussed this in front of her children. 
248.	Ms B deposed that it was later, when the mother drove her back to her brother’s house at 9.30 pm, that the two of them discussed their childhood experiences.  The children, she stated, were at home with the father at this time. 
249.	The mother’s aunt deposed that she visited her niece again on 24 January 2012 and, when the mother again drove her back to her brother’s house, the mother raised her concern that there was something “not right” between the father and the child Y and that Y was doing worse than previously at school.  Ms B deposed that the mother “thought it may possibly have been jealousy of her siblings, or because she was feeling awkward about puberty”.
250.	The mother’s aunt deposed that during that second visit on 24 January, she had observed the father
inappropriately physically rough playing with [Y] in my presence and her discomfort and embarrassment was very apparent. Based on my experience and training I felt I was observing something very wrong and he appeared to be very overpowering towards her.
251.	Ms B deposed that the father also engaged in rough play with the youngest child, who was then three years old and that W seemed to be a quiet, anxious child who was very nervous of the physical rough play from his father.
252.	The mother’s aunt deposed that when the allegations were made on 27 January 2012, she and her brother drove to the police station to provide support and to look after the younger children while the mother and Y provided their statements.  Ms B also attended at the mother’s home on 30 January 2012 to look after the children while the mother was at court.  On 1 February, the mother’s aunt left Australia and returned to the United Kingdom. 
253.	The mother’s aunt gave evidence and was cross-examined over the telephone from England.  
254.	The cross-examination by the Independent Children’s Lawyer served to reinforce Ms B ’s evidence; she did not deviate from her affidavit material. 
255.	In cross-examination of the mother’s aunt the father put to her that she and the mother had discussed the abuse that each of them, as well as the maternal grandmother (Ms B’s sister), had suffered in explicit detail.  The father put to Ms B that the children had been in a position to overhear these discussions.  The mother’s aunt denied this and maintained that it was “totally untrue”. 
256.	The father asked the mother’s aunt how she could be certain about the conversations which had taken place many months before she had sworn her affidavit.  Ms B responded that she did know when things were said and this was because of her own standards and regard for the wellbeing of the children.
257.	The father then put to Ms B that she had fabricated her apparent recollection of discussing the father’s relationship with Y with the mother.  The mother’s aunt said that this was “completely false”, adding that she had no motivation to lie and that both her affidavit and her evidence in court was the “absolute truth.”
258.	Cross-examined by the father the mother’s aunt denied that she claimed to be an expert witness qualified to assess parental capability, but added “I claim to be someone with a great deal of experience dealing with families and children”.
Assessment of the mother’s aunt, Ms B
259.	The evidence of the mother’s aunt was almost entirely consistent with the evidence of the mother.  In terms of the conversation at the house, which the father claims Y overheard, Ms B confirmed that the mother had only made a single comment to her in a quiet aside.  She corroborated the evidence of the mother that Y and the children were not present at the time.  I accept her evidence that Y was in her room most of the time on the day in question.
260.	I accept the veracity of the evidence of the mother’s aunt and found her to be an impressive witness who was not prone to exaggeration.  She was concise and unequivocal.  
The Social Scientists
Dr E
261.	Dr E is a consultant clinical and forensic psychologist, working primarily with sexual offenders.  Dr E prepared a Forensic Psychological Report – Psychological Risk Assessment of the father dated 29 February 2014.  The purpose of Dr E’s report was to evaluate the father’s risk of sexualised behaviour with regard to his children following the allegations by his step-daughter.
262.	Dr E interviewed and completed the psychological testing of the father on 16 December 2013.  The father actively participated in the assessment process, which was approximately eight hours duration.  He “appeared keen to engage in the assessment process and did not report any concerns with the assessment process”.
263.	Dr E reported that the psychological testing yielded apparently valid profiles and “the results of psychological testing can be viewed as an accurate indication of his current views and functioning”. However, Dr E reported that with regard to positive impression management, the father’s pattern of responses suggested: “that he tends to present himself in a consistently favourable light, and as being relatively free of common shortcomings to which most individuals will admit”.  
He appears reluctant to acknowledge personal limitations and will tend to repress or deny distress or other internal consequences that might arise from such limitations. This tendency will likely lead him to minimise, or perhaps even be unaware of, problems or other areas where functioning might be less than optimal.  Given these apparent tendencies, the interpretive hypotheses should be viewed with caution. 
264.	In terms of Dr E’s assessment of the factors relevant to risk of child sexual offences, the father was assessed using actuarial method as well as examination of dynamic risk factors.  The result of the pure actuarial prediction using the Static-99 Risk Assessment was a score of 1 indicating low risk.  The result of the empirically guided clinical judgment using the Risk of Sexual Violence Protocol indicated that the father had low priority in all of the domains, suggesting that the father:
… lacks static or historical factors associated with sexual offending and does not currently display any significant constellation of dynamic risk factors usually observed in men at risk of committing sexual offences.
265.	Dr E stated that 
On the basis of the information available to the writer, and as much as self-reported information can be relied upon, [the father] does not demonstrate features consistent with men who commit sexual offences.  He was considered to not indicate distortions supportive of offending.  It is noteworthy that [the father] has for many years engaged with children in a role as teacher in the sporting community.  To the writer’s knowledge there have been no concerns or allegations of sexual misconduct in this setting.
266.	Dr E concluded:
It cannot be said that where previous allegations have been made, a person represents no risk of committing sexual offence behaviours.  However, consideration of the clinical evidence with respect to [the father’s] case leads the writer to consider that he represents a low risk of sexual offending against children.  There were no current acute or dynamic risk factors known to be representative of sexual offence risk or which led the writer to hold concerns about immediate risk of sexual offending.  The factors that assist in [the father] obtaining a low risk status are;
i.	Highly limited history of prior sexual offence charges or allegations. 
ii.	No convictions of a sexual nature.
iii.	Late onset (at age 35 plus) before allegations of sexual misconduct were made.
iv.	His self-report and behavioural evidence of sexual arousal/interest to heterosexual consenting adult relationships.
v.	No evidence in [the father’s] history, self-report or psychometric testing to suggest that he has sexual interest, sexual arousal or cognitive distortions supportive of sexual relationships with children.
vi.	Lack of static and dynamic risk factors evidence in histocial and current information. 
267.	In her recommendations, Dr E stated that “[p]urely on the basis of the guidelines and standards I am unable to recommend that [the father] have sole parental care of the children at this time”.  In all the circumstances, Dr E did not believe that there was any rationale based on sexual offence risk to prevent the father from living with, or caring for, his children when either:
i)	living in the presence of another suitably protective adult in the residential environment, OR
ii)	where there was regular oversight by an external agency that occurred within the home, for example a parenting support service, OR
iii)	where the children are engaged in external, confidential counselling that provides the opportunity to monitor [the father’s] interactions and the children’s responses to spending time with him.
268.	Dr E emphasised, however, that her recommendations were made solely on the basis of risk and did not take into consideration the best interests of the children.
269.	Admitted into evidence and tendered by the father was an email from Dr E to Mr Terry Weerappah (then the father’s legal representative), wherein Dr E described the father as a “[l]ow risk of committing sexual offences against minors and must be considered to be at the lower end of the low risk band”.  
270.	Dr E gave evidence at the trial and was cross-examined by counsel for the Independent Children’s Lawyer, the father and the mother.
271.	Counsel for the Independent Children’s Lawyer drew Dr E’s attention to the father’s claim, recorded in her report, that the mother was questioning whether he was having an affair and this was causing problems in the relationship. This was relevant to the father’s theory that the mother colluded with Y to end the relationship. Counsel drew attention to fact that the totality of the evidence before the Court in respect of this issue was that the mother apparently asked the paternal grandmother the date that she and the father had separated for the first time as she had found a photograph of the father with another woman and wanted to check whether it was taken after separation.  Counsel for the Independent Children’s Lawyer asked Dr E whether this changed anything about her assessment, to which she stated that it did not, but that if there were many more such examples she would be concerned about the father’s self-reporting.  
272.	Counsel for the Independent Children’s Lawyer asked Dr E about a paragraph in her report (at [95]) wherein she stated: 
He appeared to have an understanding of victim empathy and notwithstanding his denial of the incident, he is able to fully accept the consequences of offences upon victims.  In this instance, he recognises the consequences to [Y] and to his children that have occurred due to separation from himself and the extended family.
273.	Counsel asked Dr E to elaborate on how she came to that conclusion.  She responded as follows:
… Ultimately, obviously, he says that the incident as alleged didn’t occur.  But he was able to talk about more generally what the impacts of sexual offending on children would have.  So he demonstrated a fairly good understanding of some of the longer term – the medium impacts obviously, but some of the longer term impacts – in terms of their self-esteem and all the consequences we recognise are associated with someone who has been sexually victimised.  He also was able to recognise that there have been – the whole incident has some fairly significant consequences for the entire family unit, including [Y].  His perception is that it didn’t happen, obviously, and that this is – has been – a vexatious complaint and, as such, [Y] is stuck in the middle of a very difficult set of circumstances.  So, whilst he was denying the offences and the fact that [Y] had made the allegations, he certainly wasn’t blaming of [Y] in any way for making those allegations …
274.	Counsel for the Independent Children’s Lawyer asked how important this is in the whole scheme of assessing risk.  Dr E replied that it is extremely important, adding that 
in terms of future risk, one of the factors that is demonstrated to reduce recidivism, or have the most influence on reducing future recidivism, is about demonstrating capacity for victim empathy.  So being able to understand the impacts of sexual offending, but also the long-term impacts and destruction of the family unit.  I’d be extremely concerned if he were, for example, focused and blaming [Y] for making the allegations in the first place but that wasn’t the case. 
275.	When cross-examined about the meaning she ascribed to “living in the presence of” in item (i) of her recommendations, Dr E explained that the guidelines of the Association for the Treatment of Sexual Abusers, which she is mandated to follow, dictate that she cannot under any circumstances recommend that someone who has had a prior charge or conviction of a sexual offence be a sole primary carer for a child.  Further, the guidelines stipulate that, if the children are in the residential environment with the father, albeit on weekends, another suitably protective adult needs to be present during those times. 
276.	Counsel for the Independent Children’s Lawyer sought clarification of  
Dr E’s recommendation referring to  “substantial attendance”.  Dr E explained that this does not entail the person being there in a supervisory role but rather that they are present some of the time and the children have a relationship with that person so that the children could go to them if concerned about anything.  The person could come and go but should be around the children for at least a few hours over the course of the weekend, both to observe interactions and to provide support.  
277.	When asked by counsel for the Independent Children’s Lawyer about how these supervision requirements would relate to overnight time, Dr E pointed out the difficulty in her commenting on this as she was unaware of the other evidence in the trial.  Nonetheless Dr E stated that, from a risk point of view, it would be difficult to justify a difference between contact during the day and contact for overnights.  Dr E said, “I think either he’s safe to be with them or he’s not.”  
278.	Counsel for the Independent Children’s Lawyer then raised the question of a “suitably protective adult”, drawing to Dr E’s attention two concerns held by the Independent Children’s Lawyer in relation to Ms T, the father’s new partner.  The first involved the father returning to live with Ms T and her daughters without receiving confirmation from DHS that it was appropriate to do so and the second was that Ms T seemed to have a shallow appreciation of child sexual abuse.  
279.	In light of these concerns, counsel for the Independent Children’s Lawyer asked Dr E whether it was possible for the father’s partner to be satisfactorily educated.  Dr E stated that she would not assume that the father’s partner is protective but interventions could be offered and education could be provided in order to assist in building her protective capacity and offering support.  
Dr E said that she could nominate a suitable person but could not personally engage in any treatment or counselling because she had undertaken the risk assessment. 
280.	During cross-examination by the father, Dr E agreed that an independent assessment would need to be undertaken of the father’s new partner before her protective capacity could be evaluated. 
281.	When questioned about the suitability of a school counsellor as being sufficient to meet condition (iii) of her recommendations, Dr E said that it would depend upon the particular services offered by the school and whether counselling was at the school.  She stated that regular formal and informal contact would be necessary and the children would have to feel that their discussions were confidential.  
282.	I asked Dr E to comment on a paragraph in Ms G’s family report dated 6 August 2014, wherein Ms G stated (at [83]):
Whilst the research in the area of child sexual abuse clearly indicates that step parents and de facto partners feature in the data regarding relationships between children and perpetrators of sexual abuse, there is no clear evidence that would indicate a greater/increased risk of sexual abuse to non-biological children.
283.	Dr E stated that this was in accordance with her own understanding of the current literature.  She explained that there was previously a perception that sexual abuse of children by step parents was more prevalent than offences against children within the family unit by a biological parent.  Now, however, the research suggests that where a step parent relationship has been in place for longer than three/four months, step parents are regarded in the same way as biological parents.  In other words, there is no difference in offending as between biological parents and step parents, with the exceptions of very short step parent relationships less than four months in duration.  Dr E stated that from a risk assessment perspective, the biological relationship is less important than the factors that lead someone to offend and the idea that offenders target step children rather than biological children is not supported by the literature.
284.	The mother in cross-examination, referred Dr E to the paragraph in her report (at [66]), wherein the father’s tendency to present himself in a consistently favourable light was reported.  Dr E was asked to convey this to the Court in layman’s terms.  
285.	Dr E explained that the psychological testing contains “lie scales” which pick up patterns of responses.  She gave the example that most people would, when asked if they had ever lied, admit to having done so and stated that in circumstances wherein someone will not admit to any such infractions, it is likely that they want to be seen in a wholly favourable light.  Dr E stated that when such a response profile is produced, it means that caution is required in relation to everything else that the person being assessed has said.  
286.	The mother asked Dr E about the use of pornography reported to her by the father; Dr E stated that she did not have a sense of concern about it at the time or it would have been noted in the report.  The mother then put to Dr E titles from the father’s computer analysis which have been discussed at length above and asked whether Dr E found this to be of concern.  Dr E stated that, if the Court was satisfied that the titles in question were in the father’s possession and he knew about them, this would be of concern and would require reconsideration in terms of the risk assessment.  As already discussed, no weight can be placed on the evidence of the alleged pornography and as such this aspect of Dr E’s evidence cannot be taken into account in my decision-making process. 
287.	The mother informed Dr E about the weapons owned by the father which were taken by the police and had not been returned.  The mother asked Dr E if this concerned her, to which Dr E stated that it did but with the proviso that she had not had the opportunity to discuss this with the father.  As noted above the issue raised by the mother about the weapons was peripheral.
288.	The mother asked Dr E whether she would reconsider any of her recommendations in light of the questions put to her.  Dr E responded that if the Court was satisfied on the evidence of the various things the mother alleged, (which appeared to be the references to pornography, the weapons and excessive use of alcohol by the father), then she would look at her assessment again and integrate the relevant information after allowing the father the opportunity to respond. I refer to what I have found earlier about these three issues. (at pars 86 to 95)
Assessment of Dr E’s evidence
289.	Dr E’s assessment was obviously confined to the father.  She did not interview the children, the mother or the father’s partner, Ms T. 
290.	I accept Dr E’s assessment of the father as a “low risk” of committing sexual offences against minors and that he must be considered at the lower end of the low risk band but with detailed qualifications to which I have referred  at par 267.  My acceptance of this opinion of Dr E is not determinative of the issue of unacceptable risk but one factor to be taken into account.
291.	I place no weight on Dr E’s evidence about the effects of alcohol, the possession of weapons and the computer file titles raised by the mother.  This is because, taken as a whole, these matters have not been factored into Dr E’s assessment of the father and are already the subject of my findings on these particular issues.  
292.	I place some weight on the caution Dr E expressed having regard to the father’s “lie scales” in his psychological profile which means that some caution must be applied to Dr E’s assessment. 
Ms G 
293.	Ms G, a family consultant employed by the Registry, completed two family reports.  The first report, dated 8 October 2012, was compiled for the proceedings in the Federal Circuit Court, while the second report, dated 
6 August 2014, was prepared for the purpose of these proceedings.  The expertise of the family consultant was not challenged. 
294.	For her first report, Ms G interviewed the mother, the paternal grandparents, the father and had separate interviews with the children W and J.  She observed the child H, as well as observing the other children as they interacted with the father and with the paternal grandparents.  Y was not included and was not assessed.  The first report was prepared to assist the Court in determining the desirability of the children spending supervised time with their father and what the arrangements should be for the children to spend time with the paternal grandparents.  
295.	For the second report, the family consultant interviewed each of the parents, Y, W, J and H in separate interviews and briefly observed W, J and H with each of their parents.  She did not interview the father’s partner, Ms T.  The family consultant spoke with the supervisor from O Community Services who had supervised the father’s time with the children following the orders of 31 October 2012.
296.	At the time of the interviews for the second report, the father was seeking that the children live with him.  By the time of the trial, the father had withdrawn this proposal.  The family consultant had the benefit of reading a psychiatric report by Associate Professor D, dated 2 July 2012, and the psychosexual risk assessment prepared by Dr E, dated 29 February 2014.  She also read the subpoenaed records from the DHS, Victoria Police and the DPP.  Ms G viewed the VARE tape of Y’s interview with the police and the transcript of her cross-examination during the special hearing in the Country Court.  She had also read the record of interview of the father and had the benefit of reading the Court file.
297.	Ms G described the father as neatly groomed and casually dressed, polite and cooperative.  Ms G noted that “at times [the father’s] responses were tangential to questions being asked”, a description which accords with my own observations of the father.
298.	In describing his relationship with Y, Ms G reported that the father said that:
in his view, he and [Y] had formed a “good relationship … she was happy to call me Dad.”  He also said that he and [the mother] regularly argued over [Y’s] behaviour and his attempts to reprimand her and he felt that [the mother] constantly undermined him, predominantly siding with [Y].  This dynamic created considerable tension in the couple’s relationship.
299.	Ms G remarked that:
[w]hat is clear … is that [Y] continued to call him Dad, on occasion actively sought his assistance … and she would regularly actively engage in physical play activities with him and her siblings.  Until sometime in 2011, [Y] appeared quite comfortable having physical contact with him.
300.	Ms G recorded the father’s description of his relationship with W, J and H as “very positive”.  However, Ms G noted that the father:
appears to have minimised the significant impact on all the children of him somewhat prematurely introducing his partner and her children and having them participate in access visits.  
301.	Ms G reported the father’s belief that the mother has deliberately attempted to undermine and minimise his relationship with the children, for example, by prohibiting him from accessing information in relation to their schooling, development, health and medical needs.  In addition, Ms G reported the father’s perception that W and J have been put under pressure by their mother at times, “either to obtain information from him or to have him behave in a way that would raise concern for their mother”.  Examples the father gave were that J had been intent on finding out the make and colour of his motor vehicle and, on another occasion, she had:
persistently asked [the father] to take her to the toilet at his parent’s (sic) new home and when the supervisor offered to accompany her, [J] said she no longer required the toilet.
302.	Ms G recorded that the father expressed concern about the mother’s mental health.
303.	Ms G described the mother as “polite and cooperative” and as “articulate”, “able to express her thoughts and views clearly and competently”.  Ms G recorded that the mother :
was unequivocal in her assertion that notwithstanding the decision by the Office of Public Prosecution to discontinue all criminal proceedings against [the father], she believes he has sexually abused [Y]. Consequently she believes that he poses an unacceptable risk to [W], [J] and [H] and any time they spend with him will require formal supervision. At this stage, [the mother] was not able to consider when or indeed if supervision would no longer be required.
304.	Ms G recorded the mother’s description of the relationship between the father and Y as “strained”.  In the mother’s depiction, the father regularly overreacted to Y’s behaviour and was, at times, “verbally aggressive, threatening and intimidating” towards Y.  The mother told Ms G that she often had to act as “the referee between them”.
305.	Ms G reported that the mother confirmed that in 2011 Y began to avoid physical contact with the father.  The mother stated that “she viewed this as a normal response to her commencing puberty and becoming self-conscious about her changing body”. 
306.	Ms G recorded the mother’s acknowledgement of her own history of childhood sexual abuse, which allegedly occurred at the hands of her brother. 
307.	Ms G recorded that the mother repeatedly expressed her commitment to continuing to facilitate the children’s fortnightly visits with their father as she recognises that they love him and miss him.  She acknowledged that the children have experienced a sense of loss following the separation.  The mother also reportedly acknowledged that the children have “a right to enjoy a significant relationship with their father; however their right to be protected needs to be prioritised”.
308.	Ms G had telephoned a staff member from O Community Services, who supervised the visits between the father and the children.  Ms G was advised that “the children enjoy the time they spend with their father and their grandparents and regularly try to delay leaving”.  The supervisor “described the relationship between the children and their father as very positive” and “commented that she has no concerns about the father’s interaction with the children”.
309.	The supervisor reportedly told Ms G that the father is “generally … child focused”, but mentioned that his decision to introduce his new partner and her children to W, J and H, identifying Ms T as “their other mummy”, has caused the children “significant confusion and distress”. 
310.	Ms G also recorded that the supervisor felt that, if the requirement for supervision was to be dispensed with, a “weaning” process should be considered because the children are accustomed to her presence when they spend time with their father.
311.	In relation to the children, Ms G reported the mother’s account that W and J still sometimes have nightmares and that these “appear to coincide with access visits”.  The mother had also stated that “she has observed changes in the children’s behaviour which she perceives also coincide with access visits.”  The mother reported to Ms G that “the children routinely become excited and look forward with anticipation to seeing their father”, though they also become “elevated, agitated, anxious and stressed”.  
The child Y  
312.	Ms G described Y in the following terms:
[Y] appears to be unsophisticated, somewhat immature and naïve for her age.  Having accessed the subpoenaed documents from the Office of Public Prosecutions, the report writer noted that the language [Y] used to describe the alleged sexual abuse experiences was that associated with a much younger child.  However, the nature of some of the sexual behaviour she described in her statement to Police indicates knowledge that is likely to come either from direct experience or exposure.
313.	Y was reportedly “friendly, polite and engaging” despite being nervous to speak to Ms G as she was unsure of the purpose of the meeting.
314.	When invited by Ms G to comment on the experiences of making her statement to police and being cross-examined in court, Y reportedly said:
the court was really hard … I didn’t really understand the questions … When Mum told me [the father] wasn’t going to jail I burst out crying. I said “why don’t they believe me?”  Mum said something about not enough evidence for the judge. … I felt I hadn’t done my best with giving evidence … maybe that’s why he’s not going to jail. … Maybe in some years I will remember some more but I don’t know if they can do anything about it then.
315.	In response to a comment by Ms G that Y had not told anyone of her alleged abuse for a number years, Y reportedly acknowledged this.  Ms G noted research on children’s disclosures of sexual abuse which identifies that it is common for children to delay telling for a number of reasons, including those which Y had expressed to her.  Ms G recorded that she asked Y what made her decide to tell, to which Y replied:
Me and [the father] had an argument … but I don’t remember why … the next day Mum was asking if I was alright and she closed the door and then she asked me if he had touched me and I just told her … but I didn’t know we would have to go to the police and the court and all that … I was shocked … I didn’t really want to.
316.	Ms G asked Y her views as to whether W, J and H should spend time with the father; Y reportedly said, “well I don’t really want them to but I know it’s in their best interests”.  When pressed, Ms G records that Y indicated that the children miss their father and “they would be really sad if they didn’t see him … especially [W]”.  Nonetheless, Y also stated that she would be “anxious without someone watching [the father] … I don’t trust him at all because of what he did to me … but I know they need and want to see him …”.
The child W
317.	With regard to W, Ms G reported the mother’s view that he has always been a sensitive child and her concern that he “has in recent months become increasingly withdrawn, clingy and tearful” though “[h]e has not been able to identify or articulate reasons for his feelings”.  Ms G noted the mother’s opinion that the changes in W’s behaviour coincided with the father’s introduction of his new partner to the children. 
318.	Ms G recorded that she invited W to comment on what he enjoys when spending time with his father and paternal grandparents, to which he replied that he enjoys swimming, going to the park, playing with his father and playing on his Nintendo DS.  When asked about his thoughts in relation to Ms T and her children being present at the visits with the father: 
[W] did not respond for some time and then said very quietly, ‘I feel sad. … I just miss Daddy a lot and want to see him more. … I don’t really know the girls. … I don’t want them to come. I want to see Daddy on my own with [J] and [H] … but if they come I just play with my DS.”
The child J
319.	Concerning J, Ms G noted no behavioural or other issues with the exception of occasional nightmares.  J reportedly confirmed the nightmares to Ms G as follows: “Sometimes I have bad dreams about daddy dying”.  Ms G stated that J did not indicate that there were other themes about which she had nightmares.
320.	When asked by Ms G about the time she spends with her father and paternal grandparents, J was reportedly “very positive” and said:
I wish we could see Daddy longer … like four hours and six hours. I wish it was every Saturday because I miss Daddy a lot.  Nan printed out two pictures for me … I have a little photo album. … Daddy is trying to work on us staying longer… 
321.	Ms G reported that, when asked about Ms T and her children being present at the spend time, J said, “the boys don’t like the girls … they just want their friends to come over”, but did not elaborate on this.
322.	Ms G asked J whether she had any worries and reported that:
[J] shook her head, indicating no.  She said: “I don’t have any worries but I just want to know what he (her father) did naughty and that’s how we got split up.  I have asked dad and I have asked mum but they don’t tell me. … I also get worried if I say the wrong thing. … Mum just says tell Dad next time you are doing that.”  [J] was not able to clarify this comment further.
The child H
323.	Ms G briefly interviewed H and only made general observations about him due to his age.
Observations
324.	Ms G’s observations of each parent interacting with the children were positive.  The father’s interaction with the children was described as “animated, light hearted and spontaneous” and the father reportedly “effectively manag[ed] the children’s competing demands for his attention”.  The children also reportedly expressed disappointment when the father prepared to leave.  As for the mother, Ms G stated that:
[t]he interaction between the children and their mother was warm, mutually responsive and indicated that the children are likely to have formed significant attachment relationships with her.  This is not surprising, given that she has always been their primary caregiver.
Ms G’s Assessment
325.	In her assessment, Ms G stated that the father perceives the decision by the DPP not to prosecute him in relation to Y’s alleged sexual abuse constitutes ‘proof’ that he does not pose a risk to his children.
326.	Ms G noted that parents, and in particular mothers, who have had their own experience of sexual abuse are not uncommonly highly protective of their children and vigilant for any signs indicating that the children may be at risk of sexual abuse.  However, Ms G observed that:
[t]here is no information that would indicate that [the mother] had concerns about [the father] engaging in inappropriate sexual behaviour with [Y] or the other children.  
327.	Ms G noted that, on the contrary, when Y reportedly becoming increasingly avoidant of physical contact with the father, the mother saw this as being normal behaviour associated with the commencement of puberty and Y’s self-consciousness about her body.  Indeed, Ms G recorded that the mother actively encouraged Y to hug and kiss the father goodnight in order to avoid an argument.  In Ms G’s view, “[i]t is highly unlikely that [the mother] would have done this, had she had concerns that [the father] was engaging in sexually abusive behaviour”. 
328.	The family consultant noted Dr E’s conclusion that, based on her assessment there was little justification, in particular, in terms of sexual offence risk, to prevent the father living with or caring for his children, provided that that specified conditions are met.  Regarding these conditions, Ms G reported that the father:
perceives that these conditions would easily be met; he is currently living with his partner who according to him is fully aware of the extent and nature of the allegations against him.  He is also supportive of the children attending counselling and has indicated his commitment to facilitate this in the event that the children would live with him.
329.	Ms G noted that the children have clearly experienced confusion and a sense of loss following the separation of their parents and having only restricted time with their father.  She noted the children’s significant confusion and distress, and their likely feelings of insecurity, resulting from their father’s suggestion “that they will have a new/another mummy and new siblings”. 
330.	Importantly, Ms G noted that the mother has continued to actively facilitate the children spending supervised time with their father, even after she relocated to regional Victoria, despite her belief that the father sexually abused Y. Furthermore, Ms G stated:
From the information available to the report writer, the father’s views that the mother is actively undermining the children’s relationships with him, does not appear to be the case.  It is clear that [the mother] has not denigrated [the father] to the children, or provided them with any information, let alone fabricated information, regarding allegations of sexual abuse.
331.	Ms G noted that the question of risk was a matter of a finding for the Court in relation to the allegations of sexual abuse and recommended that, should the Court find that the father poses an unacceptable risk to the children, any time he is to spend with the children will require formal supervision and this time should entail a period of no less than two hours each alternate Saturday at the home of the paternal grandparents or as agreed between the parties.  She also recommended that, if the aforementioned finding as to unacceptable risk is made, the mother have sole parental responsibility for the children. 
332.	In the event that the Court finds that the father poses no future risk or “a manageable risk to the children”, Ms G recommended that the parents have equal shared parental responsibility and stated that it would be in the children’s best interests to spend regular time with their father, without the need for ongoing supervision, with the father undertaking all the tasks and duties normally associated with parenting.  However, Ms G was of the view that the conditions recommended by Dr E should be adopted. 
333.	To adopt the words of the family consultant, in the event of a finding of a “manageable risk” or no risk, because of the limited time the children have spent with the father over the last two years, Ms G also recommended that any increases in time spent with the father be staged and gradual, taking into account the children’s emotional needs.  She suggested that the children spend four hours with their father each fortnight, with the paternal grandparents being in substantial attendance and with the last two hours being supervised by O Community Services for two consecutive occasions with an additional occasion one month later.  Ms G recommended that, thereafter, the children spend six hours with the father each fortnight from 10.30 am to 4.30 pm, with the paternal grandparents being in substantial attendance, for a period of three months.
334.	She recommended that consideration should be given to the children staying overnight with their father from April 2015, each alternate fortnight from 10.30 am Saturday to 4.30 pm Sunday, with the father’s partner being in substantial attendance.  
335.	She recommended that the children spend school holiday time with the father in 2015 for no more than four consecutive nights on the first occasion and thereafter for a week at a time commencing in the second school term holidays in 2015. 
336.	Ms G recommended that a neutral venue be adopted for changeover and the parents be encouraged to use a communication book to keep one another advised vis-à-vis all matters to do with the children.  
337.	Ms G also stated it would be in W’s best interests to have counselling to help him to identify, express and explore his emotions and develop strategies to assist him in managing competing emotions.  She suggested that this be undertaken either through school or via a mental health referral from a general practitioner.  She considered that it would not be in W’s best interests to attend counselling at a sexual assault service and recommended that both parents be involved in the counselling process at the discretion of the counsellor. 
338.	Ms G strongly encouraged the father and his new partner to attend counselling to help increase their understanding of the children’s emotional needs from a developmental perspective and to support them to effectively manage the dynamics of a blended family.  She recommended that Stepfamilies Australia as a means of accessing this assistance. 
339.	Ms G recommended that the mother authorise the children’s schools to allow the father to access newsletters, copies of the children’s school reports and any other information commonly available to parents, at his expense.
Cross-examination of the family consultant 
340.	Ms G was cross-examined by counsel for the Independent Children’s Lawyer, the mother and the father.  A great deal of cross-examination focused upon Y’s allegations and Ms G’s assessment of  Y’s recorded interview with the police (VARE interview) and Y’s evidence at the special hearing.  
341.	Ms G agreed that there were inconsistencies in Y’s evidence during the VARE interview, particularly in the level of detail.  Ms G found Y’s presentation and use of language as lacking emotional sophistication and maturity.  Ms G also agreed with counsel for the Independent Children’s Lawyer that there was a sense of confusion in Y’s cross-examination at the special hearing and there were a number of occasions when her answers were contradictory.  For example, counsel for the Independent Children’s Lawyer referred to an inconsistency between Y’s cross-examination at the special hearing and her statement in the VARE interview regarding inappropriate touching over her clothes. Ms G stated that “it’s possible [[Y]] may have recalled a scenario which she has not spoken to the police about” but at the same time, Ms G found Y’s description to be “somewhat vague”.  
342.	Ms G added that the VARE tape and transcript showed Y’s naivety on a range of issues and considered that she was “emotionally immature”. 
343.	Ms G also noted that it was possible that some of Y’s responses may have been in response to what she perceived to be leading questions. 
344.	When questioned about the father’s theory, that Y had engineered the situation to rid herself of the father, Ms G answered:
It’s possible.  But I would wonder, if that was [Y’]s agenda, I would wonder why she had not raised these allegations previously ... there was ample opportunity for her to make these allegations long before she did. 
345.	When asked generally if she had any concerns, Ms G responded that there are a number of unanswered questions because of the discrepancies in the detail of Y’s statements.  Indeed, Ms G said that some of what Y described is “unlikely to have been physically possible”.  The example she provided was Y’s description of how she and the  father were positioned in the bedroom during the alleged story time incident, with the father kneeling on the floor and Y lying on the bed when the penetration allegedly occurred. 
346.	Counsel for the Independent Children’s Lawyer referred Ms G to Y’s VARE interview and asked if she had any other comments in relation to Y’s presentation.  Ms G noted her opinion that Y appeared to lack emotion and also noted that:
the only thing that I was significantly aware of was [Y’s] use of language, which I would attribute to a much younger child … there were times during the interview that she used language that was more appropriate to a child of her age, but it wasn’t consistent.
347.	Specifically, Ms G described how Y avoided using terminology for genitalia or body parts, instead using terms like “down there”.  However, Ms G agreed that the fact that it was a male police interviewer was likely to have contributed to Y being anxious, but went on to say that she did not think that the interviewer was the cause.  She reiterated that she was struck by the fact that Y did not use correct terminology or even common alternate terminology in her VARE interview.  When asked what she made of this, Ms G stated that it indicated to her that Y is “not sophisticated at all and somewhat naïve”. 
348.	Commenting further on the VARE interview, Ms G stated that some of the details provided by Y were very significant and very comprehensive, suggesting that she had either experienced the behaviour or been exposed to it.  She gave the example of oral genital contact described by Y and stated her opinion that it would be difficult for any child to completely fabricate that level of detail.  Ms G stated her view was that either such descriptions were based on experience or exposure in some other way, such as access to pornographic material or discussions of that nature.  
349.	When questioned about what she meant when she said that the detail was such that Y would have come by it through direct experience or exposure, Ms G referred to Y’s detailed descriptions of oral genital contact, the digital penetration and where she and the father were each situated at the time.  Counsel for the Independent Children’s Lawyer asked Ms G whether exposure to pornography could have given Y the exposure necessary to affect the level of detail in her statement, to which she responded that it could.  
350.	Counsel for the Independent Children’s Lawyer told Ms G of the undisputed sexual education Y had received from her mother and her school and, in light of this, Ms G was asked if she would qualify her statement about Y’s naivety.  Ms G said, despite the discussions with her mother and sex education at school, she nonetheless presented in the VARE interview, and when Ms G met her, as naïve.  Ms G stated that it was important to remember that her mother had had three pregnancies, so it was likely that Y would have had many questions for both parents and this would have been discussed.  
351.	Counsel for the Independent Children’s Lawyer then detailed a contradiction between the mother’s evidence that Y had originally said that the mother had been out feeding the pets or cleaning the kitchen when the story time incident occurred and Y’s evidence at the special hearing that the mother walked into the bedroom during the abuse.  Asked for her view about this, Ms G said it was certainly possible that Y only recalled that detail at a later date or even during the special hearing, particularly in light of the fact that she was 12 years old at the time of the initial “disclosure” and the special hearing took place 13 months after Y was interviewed by police.  She also said that it was possible that both of the things Y had said might be true.  Counsel for the Independent Children’s Lawyer asked whether the mother walking in during a sex act would be very significant for the child, to which Ms G responded affirmatively, but reiterated her belief that both things may have occurred – the mother being absent attending to chores and also walking into the room at some point.  
352.	Counsel for the Independent Children’s Lawyer outlined everything that Y alleged happened in the five minute period on the night of the story time incident.  Counsel commented that this was a busy scenario, to which Ms G agreed.  When asked to comment on this, Ms G stated that what struck her about Y’s disclosures and even the sequence of events was that the alleged behaviours appear to have occurred in the absence of any kind of grooming behaviour or process leading up to this behaviour.  Ms G was also struck by the fact that Y did not make allegations of any other behaviours of this type occurring until 2011, which is when Y described the incident with the earrings occurring as well as touching over her clothes.  Ms G stated that, if there had been behaviours of the nature described as having occurred during the story time incident of 2007/2008, it was very unusual that there were no other incidents of this nature either before or subsequent to that.  Prompted in further questioning, Ms G stated that the dynamics of offending behaviour generally involve a pattern which, most often, will begin with a grooming process; further, the literature suggests that it is not uncommon for behaviours of that nature to continue and to escalate.  Ms G said that for Y to have described one single incident and then around four years before any subsequent incidents, where these subsequent incidents were also very different in nature, is unusual, particularly when it was clear that Y had not disclosed the incident to anyone and as such there appears not to have been any deterrent to that behaviour.  
353.	Counsel for the Independent Children’s Lawyer pointed Ms G to the mother’s evidence that, during story times, she would more often than not walk into the room to say goodnight to Y.  Ms G agreed that Y’s account of what occurred would appear to be very risky behaviour on the father’s part.  She further commented that sexually abusive behaviour most often occurs in secrecy and offenders go to great lengths to ensure that the behaviour is not detected, including through the use of a variety of techniques to ensure that the child remains silent, for example through threats, bribery or preferential treatment. Ms G commented that, from the information she had, neither Y nor the mother reported that this occurred. 
354.	Counsel for the Independent Children’s Lawyer asked Ms G about Y’s allegation that the father had inappropriately touched her breasts when she said goodnight and hugged him in the presence of the mother.  Ms G stated that she found it surprising that Y did not complain to her mother at the time, as she was apparently present.  However, Ms G also commented that she was aware that for a number of months Y had been reluctant to kiss the father goodnight or have other physical contact with him. 
355.	Cross-examined about the lack of clarity around Y’s references to the father touching her nipples and that it might have happened at the story time and not remembering how it happened, Ms G stated that this indicates that there may be some confusion for Y as to what particular incidents happened on which occasion, whether it all occurred on one occasion or whether there were a number of occasions that have been rolled into one event.  Ms G commented that it is difficult to know. 
356.	Counsel for the Independent Children’s Lawyer then asked Ms G whether the argument the night before the allegations were made may have impelled Y to engineer the allegations at this time rather than at some previous point in time.  Ms G stated that it was possible but it required a level of sophistication that she was not convinced Y possessed.  
357.	Counsel for the Independent Children’s Lawyer put to Ms G the proposition that Y wanted to get the father into trouble with the mother.  Ms G stated that this was entirely possible but also said that there is agreement between the parties that Y and the father argued frequently and this was not an isolated incident. 
358.	When questioned about the father’s theory that Y had overheard discussions between the mother and Ms B in January 2012 concerning sexual abuse, the family consultant stated that if Y had overhead any discussions it was possible that she would have felt she had permission to “disclose.” Counsel for the Independent Children’s Lawyer asked whether overhearing a discussion of this sort could have led to the manufacturing of the allegations.  Ms G conceded that it is possible that this might lead to fabrication of an allegation but pointed out that it is also possible that it may have contributed to an embroidering of her experience or Y perceiving the behaviour in a different light.  
359.	Counsel for the Independent Children’s Lawyer told Ms G that the mother had admitted to having asked Y, around the time Y was eight years old, whether she had been abused by any of several people who the mother listed by name, including the father.  Ms G expressed her surprise that Y had not, in the context of that conversation with her mother, made any “disclosures” at that time.
360.	When questioned about Y’s changed behaviour at R Primary School over about a three month period, the family consultant pointed out that this was during the mother’s pregnancy with the youngest child, H, and the family would be anticipating a new baby.  In light of this, Ms G believed that there could be a number of different explanations for Y’s behaviour at that time. 
361.	Ms G was asked for her view about Y’s statement that the father’s attempt to penetrate her “hurt a little bit”. Ms G stated that when young children refer to penetration, it may not actually be full penetration.  As such, she stated that it would not be accurate to interpret Y’s experience through the adult expectation that penetration would have caused her significant pain, as it was Y’s perception that the father attempted penetration.  Thus while Y’s description probably discounts the possibility that full penetration occurred, this doesn’t detract from Y’s perception.  
362.	Ms G was asked by counsel for the Independent Children’s Lawyer about why she suggested that parental responsibility should be solely ascribed to the mother in the event that there was a finding of an unacceptable risk to the children in their father’s care.  She stated that if the father’s time with the children was very limited and continued to be supervised, the time would be so insubstantial and so prescribed that the ability for him to have a meaningful involvement in all aspects of their lives would be significantly curtailed.  
363.	Ms G was also questioned about the meaning of her recommendation that the father’s time be undertaken with “formal supervision” in the event of a finding of unacceptable risk. Ms G clarified that this would mean someone being formally charged with supervising the period of time, as opposed to simply being in substantial attendance.  She referred to “active eyes-on” supervision, and being within earshot at all times.  Counsel for the Independent Children’s Lawyer conveyed to Ms G the reality of the mother having no trust in the paternal grandparents in terms of them formally supervising this time; Ms G stated that she did not share the mother’s view. 
364.	Counsel for the Independent Children’s Lawyer sought Ms G’s definition of a “manageable risk” to the children.  Ms G drew upon Dr E’s report to state that where allegations have been made, it is not possible for the Court to make a finding of no risk.  She described a “manageable risk” as a finding acknowledging that there may have been some inappropriate touching or there may have been some misperception of events, which can now be managed and addressed to ensure that the children’s safety is not compromised.  As an example, Ms G referred to the alleged earring cleaning incident and said that a “manageable risk” would be about the father ensuring that he does not wear boxer shorts or a dressing gown that might inadvertently expose his genitalia. 
365.	Ms G also stated that it is important to take into account that the father has cooperated with the various assessments and is willing to do anything required in order to spend substantial and significant time with his children.  
366.	Referring to the family consultant’s recommendations in the event that the Court determined that the father presents an unacceptable risk to the children, Ms G conceded that it was extremely limiting for the father to have only two hours of supervised time with the children per fortnight and acknowledged that this would impact upon the children’s relationship with the father.  When asked how the father could, at some point in the future, move on to a less rigid structure, Ms G pointed out the difficulty of answering that question because it involved reducing risk.  Notwithstanding, she said that the father may benefit from a program to educate him about the effects of sexual abuse on children, though she emphasised that what she was suggesting was not counselling but an educative program, such as a step-families program which she thought would be of benefit to the father and his partner.  
367.	Regarding her recommendation that, in the event that the Court finds that the father presents no or in her words a “manageable risk” to the children going forward whether orders should be made that parental responsibility be shared, Ms G explained that if the children spend significant and substantial time with the father, it follows that he should be involved in the decision-making.  If parental responsibility were to be shared, Ms G was of the view that email communication, while not ideal, is sufficient provided the parents are committed to responding to the children’s needs.  Ms G also highlighted the fact that the younger children have not been contaminated by the events of the last few years.  
368.	Cross-examined about Dr E’s detailed qualifications upon the father spending time with the children, Ms G stated that it is unlikely to be particularly beneficial for the children to be assessed every three to six months.  She stated that the infrequency of such assessments would mean that the children lack the opportunity to build a therapeutic relationship and are therefore unlikely to feel comfortable sharing their experiences.  She was also of the view that such assessment would be unlikely to provide any reassurance to either of the parents.  
369.	Counsel for the Independent Children’s Lawyer questioned Ms G about Dr E’s recommendation that the father spend time with the children whilst living with another suitably protective adult; in particular, she was asked whether there would be a need for another adult to be in substantial attendance if the father and his new partner separated.  Ms G responded affirmatively but emphasised that this did not mean formal supervision.  However, Ms G did not seem to be entirely clear about the conditions incorporating a suitably protective adult, referred to by Dr E in her report. 
370.	During cross-examination by the father, Ms G again was questioned extensively about the nature of Y’s allegations.  
371.	She agreed that there was no suggestion of physical violence from the father with the exception of Y’s allegations of sexual abuse.  Ms G also agreed that it was possible that Y had experienced the sexual behaviour she alleged against the father with boyfriends or that she had been exposed via pornography, school yard conversations, discussions with her mother or conversations she had overheard. 
372.	At various points during his cross-examination, the father returned to Ms G’s evidence that Y’s allegations revealed no pattern of grooming behaviour, no special treatment, bribes or threats and no escalation of behaviour over time.  Ms G confirmed this evidence and agreed that it was very unusual for these behaviours to be absent and for there to be no other allegations.  However, the mother also questioned Ms G about grooming behaviour and asked whether physically rough game play could be part of the desensitising process of grooming.  Ms G stated that on its own, rough play is not considered to constitute grooming but that it could be one component thereof.
373.	The father questioned Ms G about whether it could be considered unusual for a young child not to call out or ask a parent for help based on a belief that most people deny allegations (which was the reason given by Y at the special hearing).  Ms G was of the view that this would be unusual reasoning for a young child, however, at the time that Y was cross-examined, it was possible that she had by then, had time to consider general or typical responses where allegations of sexual abuse are made against adults and perhaps that is what Y was referring to.
374.	The mother questioned the family consultant about Y’s emotional development at the age of seven when the comment was made to her by the father that he was not her father.  Ms G agreed that it was highly unlikely that Y would have plotted revenge from that age and stated that both parents had mentioned during interview that they had spoken to Y at the time of reconciliation and she was quite happy with that at the time. 
375.	The mother asked Ms G if it was common for children to roll several events into one incident in their memories.  Ms G stated that it was very possible that particularly young children could get confused about specific incidents and when they occurred and so may confuse a number of behaviours that occurred at various times, remembering them instead as one incident. 
376.	Referring to behavioural changes in children who have suffered sexual abuse, the mother asked whether the change in Y’s behaviour at school, previously mentioned by counsel for the Independent Children’s Lawyer and documented in the a communication book tendered as Exhibit D, could be a sign that she had experienced sexual abuse.  Ms G responded that while this is possible, if the abuse was not addressed then a change of school would not alter that behaviour. 
377.	Ms G agreed that the mother had done everything she could to facilitate time between the children and their father, as well as the paternal grandparents.  She agreed that there was no evidence that would suggest that the mother had colluded with Y to go to the police with a story. 
Assessment of the evidence of the family consultant 
378.	I was assisted by the evidence of Ms G who has significant experience and expertise. 
379.	It is very significant that Ms G did not interview the father’s partner as accordingly Ms G was not in a position to assess her suitability as a protective adult in the event that the father had unsupervised time with the children.
380.	Ms G was asked whether it could be inferred from the fact that there was only one incident of sexual contact alleged, that this cast doubt on the veracity of Y’s allegation.  This question was put in the light of the alleged conduct of the father being “very risky behaviour” and also in the light of one single incident being described and then approximately four years before any subsequent incident which was different in nature.  I accept the evidence of the family consultant, outlined previously, that sexually abusive behaviour often occurs in secrecy and offenders go to great lengths to ensure that behaviour is not detected.  
381.	The evidence of Ms G admitted many possibilities as alternatives for the allegations made by Y.  Whilst these are all matters for speculation, I found the family consultant’s evidence compelling in respect of the level of Y’s naivety and her evidence that the only way that Y could have described the oral genital contact was if she had experienced or been exposed to behaviour of that nature.  It was Ms G’s opinion that it would be difficult for any child to fabricate that level of detail.  It was her view that either such descriptions were based on experience or exposure in some other way.  There is no direct evidence of Y being exposed in other ways but these possibilities cannot be excluded.
382.	Whilst Ms G accepted that there were no techniques suggested by Y of, for example, threats, bribery or preferential treatment from the father, she referred to Y’s reasons for not reporting the abuse earlier.  These reasons were explained to the police by Y as being afraid of hurting “anyone in the family”, the family becoming homeless and the fact that the father was highly qualified in a martial art.  These reasons together with Y’s immaturity provide a reasonable explanation for the delay in complaint. 
383.	Perhaps not surprisingly, Ms G’s evidence was entirely equivocal in respect of the veracity of Y’s allegations.  In terms of the crucial question about whether there would be an unacceptable risk to the children in the father’s care, Ms G deferred to the opinion of Dr E.
384.	Unlike Dr E, however, Ms G had the benefit of assessing the mother, the father, Y and the children.  I accept her opinion of the mother and the father referred to previously in these reasons but Ms G held no firm views about the risk to the children.  
Psychiatric Report of the father by Associate Professor D 
385.	Psychiatrist Associate Professor D completed a psychiatric evaluation of the father on 1 June 2012.  The father in his case outline relied on this report dated 13 June 2012 which had been filed in affidavit form for the Federal Magistrates Court at Dandenong in July 2012.  Associate Professor D was not cross-examined and the father did not refer to this evidence in his submissions during the trial. 
386.	That report indicated that Associate Professor D did not assess comprehensively the father’s parental capacity.  However the opinion of this witness was recorded as follows:
I could detect no disorder of sexual object choice or any disorder of arousal, a paraphilia or sexual activity that would interfere with his parental capacity. There appears to be no interference in parental capacity due to the presence of a mental disorder……. I could detect no psychiatric reason why he should not spend time with his children. I could not find a history of violence, apart from the accusation, and no evidence in the documents provided or in the history I obtained to suggest that the wife in this case harboured concerns regarding violence towards the children.
387.	For the sake of completeness neither the mother nor counsel for the Independent Children’s Lawyer asserted that there were any psychiatric reasons why the father should not spend time with the children.
The Competing Proposals
Proposals of the Independent Children’s Lawyer
388.	Counsel for the Independent Children’s Lawyer proposed that the parents have equal shared parental responsibility for the children and the children live with the mother. 
389.	Counsel for the Independent Children’s Lawyer proposed a range of orders which would allow for the children to spend further time with the father on a graduated scale on alternate Saturdays and with the condition that the father and his new partner satisfactorily complete a course of counselling to be recommended by Dr E relating to the issues of child sexual abuse and inappropriate behaviour with children.  He proposed that the father attend and obtain counselling from Stepfamilies Australia to assist in increasing understanding of the children’s emotional needs from a developmental perspective and to support them effectively manage the dynamics present in blended families or alternatively attend upon Dr E to obtain a referral to a therapist suitably qualified to provide such counselling and that the father request that Ms T, his new partner, also attend.  He proposed a graduated regime for the children to spend  time with the father ultimately providing for time with the children on alternate weekends, the first week of term school holidays, and for two weeks of the Christmas school holidays and special days. 
390.	Counsel for the Independent Children’s Lawyer had reservations about the father’s new partner’s protective capacity but suggested that she was willing to attend an educational program and provided that she did so, she could be made aware of the magnitude of child sexual abuse. He submitted that close supervision is not appropriate in the light of the “hampering effect” on the relationship between the father and the children. 
391.	Counsel for the Independent Children’s Lawyer proposed that in the event that the father’s partner did not provide the mother with the written proof of the education and Stepfamilies Australia counselling or in the event of the father not living with Ms T, then a suitably protective person agreed to by the mother should be a condition of the father spending time with the children.  It was proposed that if the father was not living with a suitably protective person agreed to by the mother, then the father’s time should be conditional upon the father for the duration of such time, staying in the same residence as the paternal grandparents or such other suitably protective person agreed to by the mother. 
392.	Counsel for the Independent Children’s Lawyer also proposed that the mother arrange counselling for the children through the school or a medical referral, and that she be at liberty to provide any counsellor with copies of the family reports and any reasons for judgment. 
393.	Both parents agreed with proposals by counsel for the Independent Children’s Lawyer for communication by email between them, non-denigration orders and keeping each other informed of medical emergencies and the names and addresses of treating practitioners for the children and the authorisation for the father to receive all school notices.  
Proposals of the father
394.	The father substantially supported the proposals of the Independent Children’s Lawyer but proposed that the children spend Christmas on alternate years with each parent and also sought that the children communicate with him by mobile phone each Tuesday and Thursday at 6.00 pm and at 6.00 pm on Saturdays on the weekend that they do not spend time with him, via Skype or telephone. 
395.	After some discussion in court, both parties agreed that having regard to the young age of the children, that a mobile phone was premature.  The mother agreed to provide the father with her mobile phone number for the children to be contacted by him and proposed that the children telephone the father on her landline when they were not in his care.  The father agreed with this proposal. 
Proposals of the mother
396.	The mother sought sole parental responsibility for the children and that the children live with her and spend strictly supervised time with the father for up to two hours once per fortnight on a Saturday at times and locations as nominated by the supervisor agreed to by both parties or as directed by the Court.  The mother sought a finding that the abuse against Y occurred.  In the alternative, she sought a finding that the father is an unacceptable risk to the children without supervision. 
397.	The mother proposed that the time spent by the father be supervised by O Community Services or such other supervisor as is agreed to by the parties or, in the absence of agreement, as directed by Child Dispute Services at the Family Court and that the costs be borne by the father.  
398.	The mother was amenable to the other orders proposed by the Independent Children’s Lawyer for communication between the parties and agreed to provide the father with the name and address of the children’s treating doctor.  The mother agreed with the proposals of the Independent Children’s Lawyer for the counselling of the children.  
399.	In the event that the court determined that there is no unacceptable risk to the children, she sought sole parental responsibility for the children and  that the children live with her.   The mother proposed that the arrangements for the father to spend time with the children be increased in stages and take into consideration the children’s emotional needs.  She agreed that both parents be entitled to receive all school correspondence.
400.	 She proposed that changeover occur at McDonald’s restaurant at Town P and this was agreed by the father. 
LEGAL PRINCIPLES
The relevant law
401.	These proceedings are brought under Part VII of the Act.  In making any parenting order, the children’s best interests are the paramount consideration mandated under s 60CA of the Act.
402.	What orders are in the best interests of the children must be determined in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act. 
Determining the children’s best interests
403.	Section 60CC sets out “primary” and “additional” considerations, to which the court must have regard in determining what orders are in the child’s best interests.
404.	These proceedings were filed before amendments to the Act made by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth).
405.	Because these proceedings were commenced prior to 7 June 2012 the new definitions of abuse and family violence introduced by that legislation do not apply.  The discussions of Part VII of the Act are accordingly in the form which applied prior to the operative date for the amendment which was 7 June 2012.
406.	However the factors outlined in the amendments may nevertheless be taken into account, pursuant to section 60CC(3)(m) of the Act, which provides that the Court must take into account any other fact or circumstance that the Court thinks is relevant.
Primary considerations 
407.	The primary considerations are:
(a)	the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)	the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
408.	The key issue here is whether there is an unacceptable risk of the children being exposed to sexual abuse in the care of the father such that it overrides the benefit to the children of having a meaningful relationship with the father.
409.	Central to this issue is the question of the risk to the children who have not been the subject of any allegations of abuse by the father.  The serious allegations made by Y, who is the step-daughter, against the father raise the question of whether there is an unacceptable risk of sexual abuse by the father to the biological children, who are the focus of this trial.
410.	Although Part VII of the Act has been amended, the substance of the principles expressed in the decision of the High Court in M v M (1988) 166 CLR 69 (“M v M”) apply in determining parenting orders in a case involving allegations of sexual abuse.
411.	I have particularly taken into account and noted that the allegations here are removed from the children in that the allegations have been made by the step-child of the father who is not the subject of these proceedings.
412.	The fact that a case involves an allegation of sexual abuse does not alter the Court’s paramount obligation to determine what is in the best interests of the child and make orders that will best promote them.  The High Court in M v M pointed out that the determination of the best interests of the child should not be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
413.	An allegation that a parent has sexually abused a child is often easy to make but difficult to refute.  As the High Court stated in M v M: 
there will be many cases…in which the court cannot confidently make a finding that sexual abuse has taken place.  And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
414.	A positive finding that the allegation is true should not be made unless the Court is so satisfied on the balance of probabilities and having regard to the factors mentioned by Dixon J in Briginshaw (supra), which I have previously outlined.  These factors are reflected in s 140 of the Evidence Act 1995(Cth), as illustrated above. 
415.	In considering the wider question as to whether there is a risk of sexual abuse occurring if the children spend time with the father, the court must determine:
a)	whether, on the evidence and circumstances, there is a risk of sexual abuse occurring in future; and
b)	the magnitude of that risk; and
c)	whether and how that risk may be addressed; and
d)	whether, because of the nature and magnitude of the risk, there would exist an unacceptable risk that the children would be exposed to sexual abuse by the form of parenting orders made.  
Unacceptable Risk 
416.	In M v M, the High Court referred to the protection of the child’s best interests by endeavouring to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.  The test to be applied in considering the magnitude of the risk was expressed as “a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”.
417.	The “unacceptable risk” test is the standard used by the Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”.  The finding of unacceptable risk is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
418.	The High Court stated in M v M that “[i]n access cases, the magnitude of the risk may be less if the order in contemplation is supervised access”.
419.	In Johnson & Page (2007) FLC 93-344 at [68], the Full Court endorsed a list of principles emerging from M v M, as enunciated by Fogarty J in his extra-curial essay “Unacceptable risk – A return to basics”.  Since then the Full Court in Slater & Light (2013) 48 Fam LR 573 has referred to what was said in Johnson & Page with approval.
420.	In W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235, the Full Court stated at [111] that the questions posed by Fogarty J in N & S and the Separate Representative (1996) FLC 92-655 (“N & S”) provide a framework which may assist a trial Judge to assess future risks to a child.  Those questions are:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as:  What is the nature of the events alleged to have taken place?  Who has made the allegations?  To whom has the allegations been made?  What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred?  What are the effects exhibited by the child?  What is the basis of the allegations?  Are the allegations reasonably based?  Are the allegations genuinely believed by the person making them?  What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
421.	Counsel for the Independent Children’s Lawyer urged that I consider those questions here, but these questions are usually applied to the children who are the subject of the proceedings.  Whilst those questions are not applicable to the children the subject of the proceedings here, I consider that the questions are nevertheless a useful guide for considering the allegations made by Y.  However it then remains to be considered how the answer to those questions affects the magnitude of the risk in respect of the children who are the subject of this proceeding.
Other Findings
422.	The nature of the events alleged to have taken place here are very serious.  They involve oral genital contact, attempted penile penetration of a young child and placing the hand of the child on the penis of the father.  There are also later events which allege the exposure of the father’s penis to the child and inappropriate indecent touching of the child over clothing.
423.	The allegations have been made by a 12 year old child to her mother and then immediately to police in some detail.  The allegations have been maintained over a considerable period of time and have not been retracted.  Y is now aged 15 and has expressed concern to the family consultant about the father having contact with the children the subject of these proceedings because of what he had done to her.  This was notwithstanding that Y acknowledged to the family consultant, Ms G, that the children have an important relationship with their father and missed him.
424.	The events relating to the more serious allegations are alleged to have occurred on one occasion about four years before they were reported.  The less serious allegations relate to a more recent period of time leading up to the report by Y to her mother and are more equivocal.  The timing of the alleged misconduct is inexact but this is not unusual where there are historical allegations of sexual offending made by children and charges are brought between dates rather than on a particular date. 
425.	There is some evidence relied upon by the father and counsel for the Independent Children’s Lawyer to suggest that the allegations are not reasonably based.  Namely because Y’s evidence was that a number of things occurred in a short period of time in circumstances where there was every likelihood that the mother would, and did enter the child’s bedroom.  But there is also evidence to suggest that the allegations are reasonably based having regard to Y’s recorded interview with the police which resulted in the father being charged and committed for trial.  There is clear evidence that Y genuinely believed and continues to believe the allegations.  The evidence from Y about the duration of the alleged incident in the bedroom was an estimate of a historical event when she was quite young.
426.	The alternative theories advanced for the allegations of sexual abuse, that they have been fabricated by Y, unwittingly or otherwise encouraged by her mother, or to seek revenge for comments made many years earlier by the father and precipitated by an argument the evening before Y complained to her mother, in my view are unsatisfactory.  This is because I accept the evidence of the mother that there was no discussion about Y being sent to live elsewhere the evening before the allegations were made. I accept the evidence of the mother that the response of the father in the heated discussions with the mother about Y the evening before was not unusual.  I accept the evidence of the mother that the response of the father was similar to responses he had made in the past regarding Y’s behaviour and would not have been a surprise to Y in the event that she had overheard the discussion.
427.	Having watched, listened to and read Y’s evidence of the events she alleged occurred when she was aged about seven or eight years, I cannot dismiss her account as unreliable.  I do find that her account is inconsistent in part and not entirely clear about peripheral matters.  However this might be explained by the fact that she was recounting events that occurred four years previously.  I accept the evidence of both the mother and the family consultant that Y was very naïve. I do not accept that Y possessed the level of sophistication to fabricate the details of the more serious allegations. 
428.	My impression was that Y was attempting to be accurate but that she struggled with details and was uncertain about the timing of events.  This does not necessarily indicate a false account in a young person who is recalling historical events from a young age and events which occurred on one occasion only, in respect of the more serious conduct alleged.
429.	I accept the evidence of the family consultant that the details of Y’s account were very significant and comprehensive and effectively her evidence was that Y had experienced or been exposed in some other way to what she described.  I place particular weight on the family consultant’s evidence that the example of oral genital contact described by Y would be difficult for any child to fabricate to that level of detail.
430.	There was no direct evidence of Y, at the age of twelve, having been exposed to that type of sexual conduct through boyfriends or the internet or school friends, although this remains a possibility.
431.	I agree with the submission of counsel for the Independent Children’s Lawyer that the suggestion that Y “engineered” the allegations was “singularly uncompelling” on all the evidence.  I also place some weight on the evidence of the family consultant that the suggestion of Y engineering the situation would require a level of sophistication that was not in her presentation.  I accept the opinion of the family consultant that she saw no real evidence of manipulation by Y. 
432.	I accept the evidence of the mother that she did not discuss her personal sexual abuse with the paternal grandparents or any other members of the father’s family and that she has not even discussed the detail with her counsellor.  I do not accept the evidence of the father and paternal grandmother that this was the subject of discussion by the mother, other than by way of a reference to physical abuse by her brother.  I regard the evidence of both the father and the paternal grandmother as having been a retrospective interpretation of conversations strategically reconstructed for the purposes of the trial.  There is no evidence that the mother discussed any details of sexual abuse by her brother with either of these witnesses.  I do not accept that the mother has discussed any details of her own sexual abuse with Y before Y complained to the police. 
433.	I also accept the evidence of the family consultant that there are a number of credible reasons for inconsistencies between Y’s accounts which are not necessarily consistent with a false account by Y.
434.	I do not accept the suggestion raised by counsel for the Independent Children’s Lawyer that the fact that Y did not complain earlier to her mother, with whom she had a close relationship, casts doubts upon the veracity of her complaint.  There may be many reasons why a young child under 12 would not complain contemporaneously about such conduct.  This might apply even more so to a child who is naïve and unsophisticated and who may be confused about the nature of the conduct of a trusted adult.  In this context it is notable and perhaps significant that Y told the police in her interview that she was scared to tell her mother because she did not want her “ending up hurt or anyone else ending up hurt… Seeing he is [highly qualified in a martial art]”. None of Y’s explanations for delaying her complaint are implausible.  In the mother’s statement to police, she stated that Y had not disclose this information to anybody else because she was worried that she would be taken away from  the mother and she was worried that the mother would be “cross”.
435.	I cannot put any weight on Dr E’s evidence regarding the father’s self-report that he has for many years engaged with children in a role as teacher in the sporting community and that she has no knowledge about “any allegations of sexual misconduct in this setting”.  There was no detailed evidence about this teaching role. 
436.	I reject the argument that there is a dichotomy in the disclosures made by Y and her continuing affection for the father or a willingness to engage in game-playing with the father.  There is clear evidence of Y being reluctant to hug and kiss the father.  There is evidence of Y spontaneously joining in game-playing with the other children and the father in the presence of the mother and Ms B.  This does not diminish the prospect of the abuse having occurred four years earlier.  The inappropriate touching whilst game-playing which was complained of by Y, on her account, was managed by her pushing the father away at the times that this occurred.
437.	I agree with the opinion of the family consultant that it was highly unlikely that Y would have plotted revenge from the age of seven because of the comment made by her father that he was not her father.  I reject the argument of the father that the mother had something to gain by colluding with her daughter, either in coaching her to make false allegations or even unwittingly eliciting false allegations from her.  The mother clearly had nothing to gain from the breakdown of her relationship with the father and his family with whom she had a good relationship prior to the final separation.  The mother also clearly had nothing to gain from the police investigation and court processes which had a detrimental effect upon her relationship with the paternal family who had previously been supportive of her. As counsel for the Independent Children’s Lawyer submitted there was no evidence that the mother would benefit from or wanted to end the relationship.  I find that the mother is not responsible for Y making the allegations against the father.
438.	I reject the argument of the father that the mother’s aunt and the mother had discussions in the presence of Y which caused her to make false allegations.  I accept the evidence of Ms B and the mother about the nature of their conversation being in the absence of the children.  My observations and assessment of the mother and the evidence of the mother’s aunt left me with the very strong impression that that they would not enter into such a sensitive discussion in circumstances where it might be overheard by the children.  I am supported in this conclusion by the fact that the mother and Ms B were not close and it was for this reason that the mother invited the paternal grandparents to accompany the visit.  I am satisfied that any  conversations about sexual abuse within the family which took place between the mother and her aunt occurred when the mother was driving her home and the children were not present.
439.	I was particularly impressed by the mother as a truthful and reliable witness.  I agree with the assessment of the family consultant that the father’s view that the mother was actively undermining the children’s relationship with him does not appear to be the case.  Quite the contrary, I am satisfied that the mother has at all times acted appropriately and in what she believed to be the best interests of the children to ensure the continuation of their relationship with the father in very difficult circumstances. The fact that there is a strong and loving relationship between the children and the father demonstrates that the mother has been supportive of this relationship and as the family consultant noted, it is clear that the mother has not denigrated the father to the children or provided any information to them about the legal proceedings of the last two years, let alone fabricated information regarding allegations of sexual abuse. 
440.	I accept the submission of Counsel for the Independent Children’s Lawyer that there was compelling evidence about the mother’s remarkable and admirable conduct in facilitating the relationship between the children and the father and the paternal grandparents, notwithstanding Y’s allegations.  He noted that the mother had been solicitous for the safety of the children as well as providing support for Y. 
441.	 I do not accept the argument that Y was effectively forced to give false evidence against the father because of a lack of understanding about the ramifications of the complaint that she made to her mother.  No doubt having regard to her age, Y was not necessarily familiar with the legal processes which might follow her complaint however she participated in the interview with the police and subjected herself to cross examination in the special hearing in the County Court for a two day period.  She has continued to maintain the complaint at the age of 15 and expressed concern to the family consultant about risk to the children from the father.
Whether the father committed the acts complained of by the child Y
Submissions of counsel for the Independent Children’s Lawyer
442.	At the conclusion of the trial, counsel for the Independent Children’s Lawyer submitted that no positive finding of sexual abuse by the father against Y could be made on the evidence under the Briginshaw standard.  He relied upon  W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 (“W and W”) at [105] where the Full Court endorsed the statements of Fogarty J in N & S and the Separate Representative (1996) FLC 92-655.
443.	I have had regard to the submissions of counsel for the Independent Children’s Lawyer regarding Y’s complaint.  His submissions may be summarised as follows:
•	Taken as a whole, Y’s account was an unsatisfactory narrative which was very vague.  However, he submitted that Y does not emerge as “a habitual liar, fantasist or a troubled girl” and that this is important when considering who made the allegations and to whom.  
•	Y’s account would have amounted to “a brazen encounter” because the mother had given evidence that she was in the habit of walking into Y’s bedroom at any time and more often than not did walk in.  He pointed to the proximity of Y’s bedroom to the lounge room and submitted that there was a high risk of detection in those circumstances which contradicted the evidence of the family consultant that offenders often engineer circumstances where they are unlikely to be discovered.  He highlighted the fact that there was no evidence of grooming, bribes, gifts or special treatment of Y and, on the contrary, there was evidence that the father had been verbally abusive and did not give her special treatment.  
•	The delay in Y complaining was surprising, bearing in mind the mother’s evidence that she had specifically asked Y if anyone had touched her around the time that she started swimming lessons.  Referring to the cross-examination of Y at the special hearing where she said that the mother probably questioned her on a later date as well, it was surprising that given their close relationship, Y had not complained to her mother earlier.  
•	Y’s recollection of her mother having walked into her bedroom at the time she was being sexually abused by the father was too significant for her not to have recalled to police in her original interview.  He submitted that whilst it might be suggested that Y could be conflating more than one incident, nevertheless there was no real evidence of this and Y only recalled one occasion that this happened and there was no evidence otherwise. 
•	There must be great reservations about Y’s narrative because of the number of events that occurred within a five minute period when she was reading to her father and on her evidence in the VARE interview the following things happened:
o	He shoved his penis into her vagina and it hurt a little bit, he licked her vagina and touched her nipples;
o	Y finished her story and asked for assistance with words;
o	The father placed her hand on his penis twice with some resistance from Y; 
o	Y hugged her father goodnight and he tongue kissed her; 
o	The mother walked into the room without knocking but the father had just been licking her vagina and threw the bedclothes on; and
o	Y gave her mother a worried look. 
o	Y’s account of the positioning of the father during the incident lacked credibility 

•	Regarding Y’s allegation that the father had exposed his erect penis to her in the bathroom when she was cleaning her earrings, this was inconsistent with her calling him back into the bathroom to ask about her earring.  He submitted that this was inconsistent with the incident having occurred. 
•	The mother’s evidence that Y entered into the game playing with the father with gusto was inconsistent with Y’s complaint that the father touched her inappropriately during game playing. 
•	It was possible that Y had “picked up on” the mother’s sad history of sexual abuse even if she did not know the details.  
•	He noted that the mother’s aunt had visited and sensitive matters had been discussed and that Y may have become sensitive to her mother’s feelings. On the other hand, counsel for the Independent Children’s Lawyer submitted that the mother and Ms B were convincing witnesses and that their evidence was that they had been punctilious that the children were not present when they had this discussion.  
•	He submitted that one of the possibilities might be that Y might have overheard the father’s statement that she should go to Queensland because of the serious argument the night before and even though this was disputed, it was a possibility.  
•	He emphasised the issue about whether the mother had asked Y a direct or prompting question prior to her making the complaint.  He referred to father’s case about references to inconsistencies between the VARE interview about what the mother had asked Y and the mother’s denial at the committal that she had asked Y any leading question. 
•	Counsel for the Independent Children’s Lawyer argued that it was possible that Y made the complaint not realising the consequences. Presumably the inference to be drawn from this was that the complaint was false.
Conclusion about whether the father committed the acts complained of by the child Y
444.	Applying the principles earlier discussed, and for the reasons outlined in submissions by counsel for the Independent Children’s Lawyer, I am not able to make a positive finding as to whether or not the father committed the acts complained of by Y. 
445.	However based on my previous findings, I do not accept the following submissions of counsel for the Independent Children’s Lawyer about Y’s lack of credibility: 
•	the possibility of leading questions from the mother;
•	inconsistencies regarding the details of the timing of the events in her bedroom in Y’s account;
•	the delay in complaint;
•	the dichotomy of Y continuing to involve herself with gameplaying with the father and children;
•	the possibility that Y manufactured the allegations in order to avoid being sent to Queensland;
•	the inference that Y made a false complaint based on the possibility that she was sensitive to her mother’s sexual abuse;
•	Y was effectively forced to give false evidence because she was committed to that course and did not appreciate the legal consequences of her complaint. 
446.	I cannot dismiss Y’s allegations as false. 
Whether the father is an unacceptable risk 
447.	Counsel for the Independent Children’s Lawyer submitted that the father would not pose an unacceptable risk to the children with the various safeguards that had been recommended by Dr E. Counsel for the Independent Children’s Lawyer acknowledged some concern about risk because of the family consultant’s evidence about the words used by Y, which could only be a result of exposure to oral vaginal contact.  However he speculated that it was possible that Y had been exposed in some other way, such as by internet or school friends. 
448.	Counsel for the Independent Children’s Lawyer highlighted the consistent denials by the father in his police interview and the fact that he was assessed as low risk by Dr E.  He pointed out that the father had always been cooperative, complied with assessments and had suffered great stress from having been charged by the police.  He emphasised that the stress for the father had not abated until after the special hearing and the evening before the criminal trial when he was told that the prosecution would be discontinued.  He suggested that the father had been “through the mill” and would no doubt appreciate the serious consequences of having faced a gaol term. 
449.	The question here is whether the father poses an unacceptable risk of sexually abusing, not Y, but the children who are the subject of these proceedings.  The evidence of Dr E was that the father is a risk but that he presents a low risk in respect of the children with qualifications.  The question then is whether this qualified low risk is unacceptable having regard to all of the evidence?   
450.	The evidence of Dr E was that the risk of sexual abuse to biological children is equal to the risk to non-biological children. 
451.	In considering the magnitude of the risk, I am not satisfied that the qualified low risk identified by Dr E is acceptable having regard to the seriousness of the allegations, and the other matters I have found in answering the questions posed by Fogarty J in N & S and the Separate Representative.
452.	Whilst the tenor of Dr E’s evidence was favourable to the father, I place some weight on her evidence that there is need for some caution having regard to the father’s psychological profile.  I find that the father has not been entirely candid when interviewed by Dr E about his attitude towards Y.  As Dr E stated, she would have some concern if the father was blaming E, which, on his evidence, he clearly does. 
453.	The father’s case was that Y was a liar and had fabricated the allegations to bring about the breakdown of the relationship.  The father relied on the paternal grandmother to support his examples of Y’s propensity for lying.  I agree with the evidence of the family consultant that these examples were entirely different examples which were not appropriate for comparison.  Dr E factored into her assessment that the father was not blaming Y for the allegations.  However the father’s case focused blame upon Y.  This seriously affects the weight to be given to the assessment by Dr E. 
454.	In considering whether and how that risk may be addressed, I have had regard to the evidence of Dr E about the conditions which should be met to satisfy her assessment of the father as “low risk”.
455.	Neither Ms G nor Dr E interviewed the father’s new partner.  My assessment of Ms T is that she would be entirely unsuitable as the person in whom to place responsibility as a protective adult in a residential environment.  She has little regard for DHS and in my view is unlikely to be cooperative in any regular oversight in the home by any parenting support service or external agency which was recommended by Dr E.  She appeared to have little regard for the gravity of the circumstances.  The fact that the father’s partner has expressed a willingness to undertake an educative program on child sexual abuse offers me little consolation in this regard.  Ms T has been so clear about her resolute support for the father and her unequivocal belief in his innocence that I do not believe she is capable or willing even to entertain the possibility that the father could ever sexually abuse anyone.  In such circumstances, it cannot be said that she can act as a protective adult. 
456.	It is neither appropriate nor practical to provide for long-term “confidential external counselling” to be engaged in by the children in order to monitor the father’s interactions with them and their responses to spending time with him as recommended by Dr E.  Even balancing the importance of the children’s relationship with the father, I do not regard long-term counselling as being a protective factor in the best interests of the children having regard to the evidence of the family consultant.
457.	In considering whether and how that risk may be addressed, I am not satisfied that the proposed conditions suggested by Dr E are practical or reasonable for implementation having regard to my assessment of the father’s partner. 
458.	The father’s case attributed blame to Y and this point was raised by counsel for the Independent Children’s Lawyer with Dr E.  However the significance is the fact that the father was prepared to raise insignificant matters as suggested lies on the part of Y to portray her as manipulative.
459.	Dr E and Ms G referred to the fact that there was no evidence of secrecy or psychological coercion of Y. There is no evidence that Y was threatened or told to keep any secrets from the mother.  Nonetheless as Dr E stated in her report, the father was in the role of step parent and “by virtue of the parent child relationship any transgression of sexual boundaries must be considered a psychological coercion”. 
460.	In conclusion I find that the father poses an unacceptable risk to the children of inappropriate sexual conduct if they are placed in his unsupervised care. 
The additional considerations
461.	The additional considerations are listed at s 60CC(3) of the Act.  I have referred to only those which are relevant to the facts and circumstances of this case.
462.	Reflecting what was stated previously, these proceedings were commenced prior to 7 June 2012, the date upon which the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) reforms to the Act came into effect and therefore those parts of the current Act do not apply to these proceedings. 
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
463.	The Independent Children’s Lawyer did not interview the children.  The views of the children can be gleaned from the family report.  The children miss their father and would like to spend more time with him.  This is acknowledged by the mother. 
464.	Given the age of the children, their views have some weight.  However the risk identified in these reasons is of far greater weight.  The children are unaware of the nature of Y’s allegations against the father.  The level of understanding of the children is low having regard to their age.  
Section 60CC(3)(b): the nature of the child’s relationships with each parent and with other persons, including grandparents
465.	The supervisor from O Community Services who provided supervision for the father with the children was consulted by the family consultant.  She reported to the family consultant that the children enjoy the time they spend with their father and their grandparents and regularly try to delay leaving.  She described the relationship between the children and their father as very positive. 
466.	In her observations of the children with the father, the family consultant, Ms G, noted that “their interaction was animated, light hearted and spontaneous”.  She recorded that the father was observed effectively managing the children’s competing demands for his attention.  The children expressed disappointment when he prepared to leave.
467.	In her observations of the children with the mother, Ms G noted that the interaction between the children and their mother was:
warm, mutually responsive and indicated that the children are likely to have formed significant attachment relationships with her. This is not surprising, given that she has always been their primary care giver.
Section 60CC(3)(c): the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
468.	The mother was particularly impressive in her attitude towards facilitating the children’s relationship with the father.  Notwithstanding her acceptance of the reliability of Y’s statements about her sexual abuse by the father, I am satisfied that the mother has made every effort to ensure that the children spend time with the father and that statements about him have been positive.  As detailed above, I reject the father’s assertions that the mother has prompted, coached or colluded with Y in making the allegations.  This is supported by the evidence of the family consultant about the mother’s attitude towards the father. 
469.	Significantly the mother accepted professional advice about what she should tell the children about the father and has not said anything to the children about Y’s allegations against the father.  This demonstrates a very responsible attitude on the part of the mother who was confronted with a very serious dilemma when Y made the allegations.  
470.	The father has not demonstrated the same commitment to facilitating the relationship with the mother, having regard to what he has told the children about their “new mother” or words to that effect referring to his partner of just over 12 months.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
471.	The orders I propose to make, which reflect the proposals of the mother, will not significantly change the children’s circumstances save that they will allow for an additional two hours of time with the father.
Section 60CC(3)(e): the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
472.	Because the risk to the children is unacceptable, supervision is required.  Any orders for supervision, as proposed by the mother, would impose an expense on the father if supervision is required by an agency.   I am not satisfied that the paternal grandparents alone would offer sufficient protection for the children having regard to the paternal grandmother’s response to the allegations and her alliance with the father and his new partner. There was no evidence from the paternal grandfather.  Accordingly, any time between the father and the children is required to be supervised by an agency.  Whilst no submissions were made specifically about this expense or practical difficulty, I have carefully considered any expense involved and note that the present arrangements have involved supervision by an agency for a considerable period of time.
Section 60CC(3)(f): the capacity of each of the child’s parents, and  any other person (including any grandparent or other relative of the child), to provide for the needs  of the child, including emotional and intellectual needs
473.	I have serious reservations about the father’s capacity to provide for the emotional needs of the children.  A clear example was his introduction of his new partner to the children as their “new mother” or words to that effect.  Despite the fact that his own mother has subsequently discussed the inappropriateness of this remark with him, he was reluctant to concede this in the trial and in the reports from the supervising agency. 
474.	In contrast the mother has sensitively managed an extremely difficult separation, at all times placing the children’s needs above her own.  Her conduct during the trial was an outstanding example of her capacity to bring rationality and courtesy to a harrowing experience in emotional circumstances.  Her attitude and response towards the father’s case that she had brought about the making of false allegations by Y in order to end the marriage, was remarkable.  Despite the overwhelming evidence that but for the allegations made by Y, the mother did not intend to end the relationship or that she had anything to gain from the end of the relationship, the father persisted in this theory.
Section 60CC(3)(i): the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents
475.	The mother has demonstrated an extremely responsible attitude towards the children and parenthood in difficult circumstances.  She has financially supported the children.
476.	The father has deposed that he has paid minimal child support because he lost his job “as a direct result of the charges” and because he was being counselled for about one year.  He deposed that he intends to pay child support as soon as he starts earning a regular income. 
477.	The father has demonstrated a commitment to spending time with his children in difficult circumstances.  With the exception of the circumstances of my finding of unacceptable risk, in reaching my conclusions I have not placed any weight on any suggestion that the father is not a responsible parent.
Sections 60CC(3)(j): any family violence involving the child or a member of the child’s family
478.	There is no finding of any family violence involving the children or Y. 
Sections 60CC(3)(k): any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person 
479.	There is an intervention order which has been made by consent between the parties.  I do not draw any adverse inferences against the father from the making of this order because it was made by consent without admission of the allegations as to the need for the order.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
480.	The orders made here will not necessarily lead to finality for the parties because where allegations of this type are made and criminal proceedings are discontinued there will always remain unanswered questions.
481.	In particular, the father will continue to feel aggrieved by the process and there is a ripple effect brought upon the entire family and extended family. 
482.	Having had the opportunity to observe the mother, I am satisfied that she possesses the sensitivity and sense of balance to fairly approach the task of managing the future arrangements for the children to spend supervised time with the father.  Hopefully with the assistance of professional advice, the mother will manage the inevitable issues which will arise for the children in their relationship with the father as they mature.  
483.	There is a real issue about the viability of long-term and indefinite supervision which the mother conceded.  The mother’s concession about this is recorded in these reasons.  There were no submissions or proposals made about the long term viability of supervision.  To make no provision for the future other than ongoing supervision will inevitably lead to further proceedings which would not be in the best interests of the children.
484.	 Accordingly I have addressed this issue in my conclusion.
Section 60CC(4) and (4A)
485.	Section 60CC(4) and (4A) of the Act applied at the time these proceedings commenced but have since been repealed. I have considered the extent to which each of the parents has fulfilled or failed to fulfil his or her responsibilities as a parent and in particular the extent to which each of the parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children and to communicating and spending time with the children.  The father’s role in decision-making, communicating and spending time with children has been severely limited because of the criminal proceedings.  I have rejected the father’s assertion that the mother has failed to facilitate him spending time with the children or communicating with them for the reasons previously outlined.
486.	The mother has fulfilled her obligation to maintain the children in difficult circumstances.  As previously noted, there was little evidence about the father having contributed to the financial support of the children since separation.  I accept the evidence of the father that there have been repercussions for him in his employment as a result of the criminal charges and that this has affected his capacity for work.
487.	I have taken into account the circumstances which have occurred since separation as previously outlined.
The presumption of equal shared parental responsibility 
488.	Parental responsibility is defined in s 61B of the Act and means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
489.	Section 61DA of the Act provides that I must apply a presumption that it is in the best interests of the children that the parties have equal shared parental responsibility.  There is no suggestion of family violence and I have made no finding that the father abused Y or any of the children.
490.	The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.  It is on this basis that I find that the presumption has been rebutted on all the evidence which satisfies me that it would not be in the best interests of the children for the parents to have equal shared parental responsibility.
491.	The family consultant recommended that in the event of a finding that there was an unacceptable risk to the children in the care of the father, that the mother have sole parental responsibility for the children.  She also recommended that in the event of such a finding, any time the father spends with the children would require formal supervision and this time should entail a period of no less than two hours each alternate Saturday at the home of the paternal grandparents or as agreed between the parties.
492.	I am satisfied that the presumption is rebutted by evidence that it is not in the children’s best interests for the parties to have equal shared parental responsibility.  I have found that the father is an unacceptable risk to the children on the basis of all of the evidence in the trial.  After the complaint made by Y to the mother there have been protracted criminal proceedings which included a committal proceeding in the Magistrates’ Court and two days of cross-examination by way of the special hearing in the County Court.  Despite the discontinuance of the prosecution of the father, Y has continued to maintain the truth of her allegations and has not retracted her account. 
493.	It became abundantly clear during the course of the trial that both the father, 
his partner and the paternal grandmother blame Y for the breakdown of the relationship between the parties and the restriction on the father’s time spent with the children.  It is apparent that the attitude towards Y is one of hostility.  This attitude towards Y is unlikely to abate following the conclusion of the trial.  The children are living with the mother and Y.  Any negative interaction between the father, Ms T, the paternal grandmother and Y, in all likelihood, will have a deleterious impact upon the children.  The risk of this occurring is inevitable but more likely, for example, when the entire family is involved in school activities or sporting events.
494.	I accept the evidence of the mother that she would find it extremely difficult to consult with the father concerning issues relating to the children in these circumstances.  She was not confident that the use of email would resolve disputes.  This is not unreasonable having regard to the strength of the mother’s conviction that Y’s allegations are truthful.  The mother has been involved from the outset with Y’s account of the conduct of the father and the extended criminal legal process which ensued.  The mother has had the opportunity of observing Y’s interview with police, reading the transcript of her cross-examination in the County Court and viewing the police interview of the husband.  None of these things have given her cause to doubt the veracity of Y’s allegations.
495.	As there will be no order for equal shared parental responsibility I am not required to consider whether it is in the children’s best interests, and reasonably practicable, that they spend equal or substantial and significant time with their mother and father. I am at liberty to determine directly which parenting orders are in the best interests of the children.
Conclusion 
496.	This is a finely balanced case where the focus has been on the allegations made by Y but the best interests of the children are paramount.  The dilemma is that the allegations are very serious, have not been retracted and were made by a 12 year old.  On the other hand the ramifications for the children of spending limited time with the father are significant.  Taking into account the difficult finely balanced facts, I have found that there is an unacceptable risk to the children in the unsupervised care of the father.  I am satisfied that it is in the best interests of the children to err on the side of caution by requiring supervision when the children spend time with the father. 
497.	I am not satisfied that any steps which might be taken to reduce the risk such as living with a protective adult or subjecting the children to ongoing counselling would be in the children’s best interests having regard to all the evidence before me.  
498.	On the available evidence, I am not satisfied that there is a protective adult to support the father’s case and I have referred previously to the inadequacies of Ms T.  I reject the paternal grandmother as a supervisor or protective person having regard to her alliance with the father.  There was no evidence from the paternal grandfather.   I am satisfied that at the present time it is in the best interests of the children for the father to spend supervised time with the children in accordance with the arrangements which are already in place but have allowed for an extra two hours each alternate Saturday.  Properly conceded by the mother, this cannot go on forever. 
499.	Regrettably no party put a proposal regarding the long term future for the father spending supervised time with the children.  Doing the best I can and taking into account the evidence about the counselling undertaken by J and W, I consider it in the best interests of the children to make provision for the father’s time with the children to be supervised until such time as W reaches the age of twelve. The children are likely to be protective of each other.  In these circumstances, of necessity, my determination of an appropriate age is somewhat arbitrary but the alternative would be ongoing supervision which, in all probability, is not viable.  To allow for the unforeseeable vicissitudes of life, I have provided for the supervision to cease at an earlier time if the parties agree in writing.
500.	For the reasons previously outlined and on the recommendation of the family consultant, I consider it in the best interests of the children that the mother be vested with sole parental responsibility.
501.	The father sought that if he was unsuccessful in his proposals, that the paternal grandparents spend time with the children in accordance with the arrangements which had been consented to in interim orders.  Because the paternal grandparents were not a party to the proceedings and made no application in their own right to spend time with the children, it is inappropriate for any such orders to be made.  There is no reason why the paternal grandparents cannot spend time with the children when the father is spending time with them as they have done in the past.
502.	Counsel for the Independent Children’s Lawyer proposed that the children have counselling at school.  There was evidence from the mother and the family consultant that W might be assisted by counselling.  I accept the mother’s evidence that she was in the process of arranging that counselling.  There is no evidence that the children, other than W, are in need of counselling but I am confident that the mother will address this if necessary having regard to her attention to the children’s needs in the past. Accordingly I find that there is no necessity for such an order to be made. 
503.	The parents agreed to a proposal of Counsel for the Independent Children’s Lawyer that there be mutual non-denigration orders made, but there is no evidence of the need for such orders.   I consider that such orders are difficult to enforce and might only invite further litigation and conflict in this complex situation.  It is important to bring an end to litigation.  Accordingly I find that there is no necessity for such orders to be made.   
I certify that the preceding five hundred and three (503) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 1 June 2015.

Associate:  

Date:  1 June 2015

ANNEXURE A

Documents relied upon by the applicant father:

•	Amended Initiating Application filed 7 March 2014, amended further to reflect his final orders sought in his Case Outline of 8 September 2014;
•	Affidavit of the father filed 29 October 2014; 
•	Affidavit of Ms T filed 26 August 2014;
•	Affidavit of Ms L filed 26 August 2014;
•	Affidavit of single expert witness Dr E filed 28 April 2014;
•	Affidavit of Associate Professor D affirmed 24 June 2012 annexed to affidavit of the father filed 29 October 2014; and
•	Report from O Community Services dated 2 November 2014.

Documents relied upon by the respondent mother:
•	Amended Response to Amended Initiating Application filed 25 March 2014; 
•	Case outline of the mother filed 10 September 2014; 
•	Affidavit of the mother sworn 9 September 2014; and
•	Affidavit of Ms B sworn 1 November 2012.

Documents relied upon by the Independent Children’s Lawyer
•	Summary of Issues in Dispute filed 4 April 2014
•	Family Report dated 6 August 2014