Blann & Kenny
[2021] FamCAFC 161
•25 August 2021
Family Court of Australia
Blann & Kenny [2021] FamCAFC 161
Appeal from:
Blann & Kenny [2021] FamCA 322
Appeal number(s):
EAA 61 of 2021
File number(s):
SYC 8232 of 2018
Judgment of:
WATTS, AUSTIN & TREE JJ
Date of judgment:
25 August 2021
Catchwords:
FAMILY LAW – APPEAL – PARENTING – Unacceptable risk – Appeal against parenting orders – Allegations of sexual abuse – Where the primary judge did not err in finding the father did not pose an unacceptable risk of harm to the children – Procedural fairness – Where the primary judge was not obliged to re-list the proceedings to inform the mother of a conclusion which defeated her expectations at trial – Where there is no principle of law that obliged the primary judge to finally dispose of the proceedings – Appeal dismissed – No order as to costs.
Legislation:
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 60CC, 64B(2), 65D(2), 69ZR, 69ZQ(1), 94AA(1)
Family Law Rules 2004 (Cth) r 22.09(1)
Family Law Regulations 1984 (Cth) reg 15A
Cases cited:
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Deiter & Deiter [2011] FamCAFC 82
Faulkes & Tomkins (2018) FLC 93-854; [2018] FamCAFC 151
Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
M v M (1988) 166 CLR 69; [1988] HCA 68
Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47
Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Reid & Lynch (2010) FLC 93-448; [2010] FamCAFC 184
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Stott & Holgar and Anor [2017] FamCAFC 152
Division:
Appeal Division
Number of paragraphs:
110
Date of hearing:
30 July 2021
Place:
Heard in Sydney (via video-link), delivered in Newcastle
Counsel for the Appellant:
Mr Coleman SC with Ms Bartley
Solicitor for the Appellant:
Uther Webster & Evans Solicitors
The Respondent:
Litigant in person
Counsel for the Independent Children's Lawyer:
Ms Rebehy
Solicitor for the Independent Children's Lawyer:
Shedden & Associates
ORDERS
EAA 61 of 2021
SYC 8232 of 2018
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:
MS BLANN
Appellant
AND:
MR KENNY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
WATTS, AUSTIN & TREE JJ
DATE OF ORDER:
25 August 2021
THE COURT ORDERS THAT:
1. The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blann & Kenny has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WATTS, AUSTIN & TREE JJ:
On 21 May 2021, a judge of the Family Court of Australia made orders between the parties in respect of their two children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The orders made provision for the children to live with the mother and for her to have sole parental responsibility for them, which outcome was not contentious at the trial and so those particular orders are not the subject of this appeal.
Relevantly, however, the orders also made provision for the children to spend time and communicate with the father (Orders 6, 7 and 8) and required the parties to ensure the children’s consultation with a psychologist appointed by the Independent Children’s Lawyer (“the ICL”) (Orders 9, 10, 11 and 12). Only those orders are the subject of the appeal.
The orders which require the children to spend time and communicate with the father were intended to resolve those issues until that discrete aspect of the parties’ dispute was given further consideration about six months ahead in December 2021 (Order 26). While the orders did not therefore finally determine those issues, it is clear from the reasons for judgment that the primary judge was only intending to contemplate the expansion, not constriction, of the children’s interaction with the father after December 2021.
The central challenge in this appeal is that the primary judge erred at law when assessing the risk of harm posed to the elder child as “low” and to the younger child as “even less [than low]” as a consequence of their prospective sexual abuse by the father or a member of his family and, further, by finding the children would not be exposed to an unacceptable risk of harm by spending unsupervised time with the father.
The mother’s appeal was supported by the ICL, but resisted by the father.
For the reasons which follow, the appeal should be dismissed.
background
The parties commenced their relationship in 2010 and separated on a final basis in December 2018.
The children were born in January 2014 and August 2017 and were aged seven and three years respectively when the appealed orders were made.
Upon the parties’ separation, the mother and children vacated the family home in regional New South Wales and moved to Sydney to live with the maternal grandmother and her partner (at [3] and [74]).
Shortly after separation, the mother took the elder child to consult a doctor about his infected toenail but, during the consultation, she made allegations about the father’s physical (but not sexual) abuse of the elder child, causing the doctor to make a mandatory report of her allegations to the New South Wales child welfare authority. As a consequence, the elder child was then referred to a psychologist (Ms M) for counselling (at [74]).
In late December 2018, the mother commenced proceedings under Pt VII of the Act in the Federal Circuit Court of Australia. She made an application for interim orders, confining the children’s interaction with the father to only supervised time at a commercial contact centre. Then, in early January 2019, before her interim application had been heard, the mother withheld the children from the father altogether, ending the arrangement she initially implemented for the children to spend time with the father if supervised by the maternal grandfather (at [77]).
The parties’ competing interim applications were heard in early March 2019, at which point consent orders were made for the children to live with the mother and to spend professionally supervised time with the father (at [5]).
After those interim orders were made, in the period between March and May 2019, relying upon statements made by the elder child to the mother and the maternal grandmother, they concluded he had been sexually abused by the father. Consequently, the mother brought an urgent application to immediately suspend the existing interim orders and stop the children from spending supervised time with him. Those orders were suspended in May 2019 (at [6]). Neither child saw the father after that (at [1]).
Later, in July 2019, the proceedings were transferred to the Family Court of Australia (at [7]). Given the nature of the mother’s allegations against the father, an ICL was appointed and the Court sought from the State child welfare authority a report cataloguing all of the “risk of harm” reports made to the authority about the children and the results of the investigations into those allegations (at [9]).
The trial was heard by the primary judge over five days in August 2020, with the pre-eminent issue being whether the father posed an unacceptable risk of harm to the children.
The mother’s case was that the father posed an unacceptable risk of harm to the children because, historically, he had physically and sexually abused the elder child (at [1], [136] and [141]). She sought an order mandating that the children spend “no time” with the father because, as she contended, it was more important to protect them from the risk of harm he posed than to ensure they derive benefit from their relationships with him.
The father’s case was that he had not physically or sexually abused either child, he had always enjoyed close and loving relationships with both children, and their interests were best served by immediate re-introduction to him to avert any detriment to their emotional welfare, which would otherwise occur if their estrangement was allowed to continue. Realising the children had been withheld from him for well over a year by the time of trial, the father proposed their staged re-introduction to him, beginning with supervision so as to abate any anxiety which may be experienced by either them or the mother (at [1] and [138]). He also suggested, as an alternative option, that the orders be reviewed some six to twelve months ahead, after the family therapy proposed by the ICL had begun (at [139]–[140]).
The appealed orders were pronounced and the reasons for judgment were delivered about nine months later on 21 May 2021. The orders reflected the primary judge’s acceptance of the father’s case and rejection of the mother’s case. Specifically, the primary judge rejected the proposition that the father posed an unacceptable risk of harm to the children.
The appealed orders were stayed on 29 June 2021, pending determination of this appeal.
leave to appeal
The mother applied for leave to bring the appeal, but it was unnecessary.
The appealed orders dictating when and how the children will spend time and communicate with the father are not prescribed decrees and do not require leave to appeal. The orders concerning the children’s consultation with the psychologist are not interlocutory orders. The mother enjoys an unconditional right to appeal from each of the subject orders (s 94AA(1) of the Act; reg 15A of the Family Law Regulations 1984 (Cth)).
the appeal
The mother sought to move on her Amended Notice of Appeal filed on 13 July 2021. Had she filed it the day before, she would have been entitled to rely upon it (r 22.09(1) of the Family Law Rules 2004 (Cth)) and so, given the absence of any tangible prejudice to the father, leave was granted to rely upon the amended grounds.
The amended grounds of appeal were all directed to the orders which make provision for the children to spend time and communicate with the father (Orders 6, 7 and 8). Even though the appeal encompassed the other orders requiring the children to be counselled (Orders 9, 10, 11 and 12), nothing was said of them.
We will deal with the grounds in a different order to that in which they were addressed by the mother.
Ground 3 – denial of procedural fairness
It was contended the mother was denied procedural fairness because the primary judge made “interim” orders for the children to spend time and communicate with the father, when only final orders had been sought by both parties and the ICL and exchanges with the primary judge during the trial suggested interim orders were “not seriously in contemplation”.
The paradox of this ground of appeal should be immediately exposed.
Supposing the ground succeeds, the mother acknowledges that remitter of the proceedings is the only option if this Court cannot or will not simply set aside the appealed orders and dismiss all outstanding applications in the re-exercise of discretion. However, we could not merely re-exercise discretion in the manner the mother hopes for two reasons: first, this ground only attacks the interlocutory nature of the orders and not the substance of the orders themselves, so the underlying validity of the orders remains contested; and secondly, if this complaint of procedural unfairness is made good, the only remedy is remitter for re-hearing (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]). On the other hand, supposing the appeal fails, the first-instance proceedings are already listed before the primary judge for further consideration of the final orders which will regulate the children’s future interaction with the father (Order 26).
Therefore, nothing is gained by the mother, regardless of this ground’s success or failure. In either case, the final form of orders regulating the future time spent by the children with the father will certainly be re-considered – either by the primary judge, commencing from when the matter is next re-listed for mention in December 2021 pursuant to Order 26, or by another judge who re-hears the dispute upon remitter, perhaps even later than that.
Despite the apparent futility of this ground, we shall explain its lack of merit.
The essence of the mother’s complaint of procedural unfairness is the alleged denial of any reasonable opportunity to make submissions in rebuttal of the idea to abstain from making orders to finally resolve the dispute over the children’s future interaction with the father. However, the contention collides violently with the facts in this case since, as the mother concedes, the prospect of this aspect of the parenting dispute not being finally resolved was raised during final submissions, to which idea her senior counsel was able to respond.
Although the parties and the ICL formally sought final orders, the issue of whether orders should not be finally made arose when submissions were made by the father’s counsel. The primary judge’s acknowledgement that the father submitted for future re-consideration of the orders, at least as an option (at [139]), sprang from this exchange:
HER HONOUR: Does it follow from that that I make – don’t make final orders?
[COUNSEL FOR THE FATHER]: Notwithstanding your Honour’s – perhaps your Honour’s reluctance to leave this matter in the docket, in one respect, there’s – there’s some benefit of that, coming back in six or 12 months, “Where are we at with family therapy and supervised time?” It’s certainly – it’s certainly, in my submission, an avenue available to your Honour. …
(Transcript 21 August 2020, p.26 lines 4–10)
Once squarely raised, the mother was afforded the chance to make submissions on the issue because the primary judge then engaged her senior counsel in debate about it. Their exchange is set out in the transcript as follows:
HER HONOUR: … [I]f, for argument’s sake – if I were against you on no time and was going to introduce the time, then would you say it would be not final orders?
[SENIOR COUNSEL FOR THE MOTHER]: No, I would say it should be final, your Honour. Your Honour should make a decision about this case based on the evidence…
HER HONOUR: I guess what I’m saying to you is in the alternative, though. If I’m not with you on no time as a hypothetical, would you then say that it should be – and I decide some time, do I make final orders as to some time?
[SENIOR COUNSEL FOR THE MOTHER]: Your Honour make final orders.
HER HONOUR: Okay.
[SENIOR COUNSEL FOR THE MOTHER]: There are a whole myriad of reasons, one of which is that there has been no finality, obviously, to the proceeding.
HER HONOUR: No.
[SENIOR COUNSEL FOR THE MOTHER]: The parties could very well think, well, we haven’t finished this fight yet. Just – it wouldn’t be conducive to the settling down of the matter.
…
HER HONOUR: It does open up an invitation to –
[SENIOR COUNSEL FOR THE MOTHER]: Yes. And the court is, with great respect, here to make decisions based upon the evidence that –
HER HONOUR: That it has. Yes. Okay. And I hope – as I say, there’s so many – I have – there’s so much in the mix here in terms of the decision, and obviously it will take me some time to analyse it all. But – yes. Okay, thank you.
[SENIOR COUNSEL FOR THE MOTHER]: Thank your Honour.
(Transcript 21 August 2020, p.27 line 33 to p.28 line 23)
That being so, there was no denial of the mother’s opportunity to address the issue, in which case the argument could only be as to the sufficiency of the opportunity.
In the appeal, the mother submitted:
… The submissions of Senior Counsel for the [mother] left no room for doubt that the [mother] opposed the making of any but final orders. The statements by the primary judge…comfortably establish that her Honour accepted the submissions of Senior Counsel for the [mother], and that Senior Counsel did not need to address further on that issue.
(Mother’s Summary of Argument filed 13 July 2021, paragraph 48)
The mother’s contention in the appeal that her submissions were so clear there was no room for the primary judge to doubt her opposition to anything other than final orders must mean she implicitly accepts she was given sufficient chance to explain the merit of her position on the point. That her senior counsel believed he had successfully persuaded the primary judge and so voluntarily desisted from making further submissions does not advance her cause under this ground of appeal. Counsel was not shut down by the primary judge, but rather was given (and used) the opportunity to make the submissions considered adequate to cover the matter.
This situation is quite unlike the one which arose in Faulkes & Tomkins (2018) FLC 93-854, where the appellant altered the way in which she conducted the hearing because of an expectation created by the primary judge’s assurance that a particular issue would be decided in a certain way. No such assurance was given by the primary judge here. The mother knew the primary judge tentatively harboured an inclination to make only interim orders and was given the fair chance to persuade her Honour not to do so. The primary judge said nothing which could fairly be construed as a representation that her Honour would not make interim orders, thereby creating an expectation that only final orders would be made and inducing the mother to say nothing more when there was still more to say.
Even if the mother and her senior counsel were left with the impression that the primary judge had acceded to the argument and the point was won, it is not dispositive because the test of unfairness is objective, not subjective. The defeat of a litigant’s expectation is not, of itself, demonstrative of procedural unfairness (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 12–13) and, in any event, not every departure from the rules of natural justice entitles the aggrieved party to a new trial (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). Here, at the very most, the mother only lost the chance to make more submissions than she already had about an entirely legal issue. Supposing further opportunity for submissions had been given, the mother accepted nothing more than what had already been submitted to the primary judge could really have been said. As she contended in the appeal, her position was quite clear, as were her reasons for adopting that position.
Even if the primary judge was persuaded by the mother’s submissions at the time (which the mother assumes, but which may not be correct because her Honour did not say so), her Honour was not precluded from changing her mind after quiet reflection. Upon further deliberation while judgment was reserved, the primary judge decided not to finalise all aspects of the parties’ applications. Her Honour was not then obliged to re-list the proceedings to inform the mother of the adverse provisional view and give the mother another chance to convince her Honour otherwise before conclusively deciding the issue (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 599).
Grounds 4 and 5 – interim in lieu of final orders
These two grounds of appeal are extensions of Ground 3. They assert the primary judge erred in principle by making only interim orders instead of final orders (Ground 5) and by failing to provide adequate reasons for why only interim orders were made (Ground 4).
Order 6(a) requires the children’s time with the father to be supervised at a contact centre for the first 12 visits. Order 6(d) then requires the children’s time with the father each alternate Saturday to be supervised by a “responsible third person” (the appointment of whom was prescribed) for a further three calendar months. Then, under Order 6(e), the requirement for supervision lapses from that point onwards. The date of commencement of operation of Order 6(e) was not stated, but the timing was designed to start shortly before the primary judge intends to begin the process of considering the expansion of the orders in December 2021 (at [195] and [197]).
In reference to those orders and in support of these grounds of appeal, the mother submitted in her Summary of Argument:
… [T]he making of order 6(e) for unsupervised time was erroneous in principle and not reasonably open where a risk of child sexual abuse has been found.
…
The primary judge’s reasons thus inadequately reveal the process of reasoning which led her Honour to conclude that the supervision of time, which was necessary to protect against the risk of abuse which was found, would cease to be necessary for that purpose after some months.
(Mother’s Summary of Argument filed 13 July 2021, paragraph 46)
The flaw in the argument is her Honour did not find the imposition of supervision was necessary to protect against the risk of abuse.
The primary judge expressly found:
175. …I am satisfied that making orders that the children spend time with the father would not expose [the elder child] and/or [the younger child] to an unacceptable risk of abuse.
That finding was made before the issue of supervision was broached in the reasons for judgment. The primary judge did not find the imposition of supervision was required to reduce the risk of harm posed by the father from an unacceptable level to an acceptable level. The purpose of the temporary supervision was not to ameliorate risk, though that is an incidental consequence while it is in place. Rather, its purpose was to provide some reassurance to the mother, to support the children’s re-introduction to the father, and to avoid the possibility of more unsubstantiated allegations (at [193]). The approximate period of initial supervision was contained to six months because, if it was any longer, it might lead the children to falsely believe they are not safe with the father (at [195]).
The primary judge’s reasons for not making orders to regulate the manner in which the children would spend time with the father on a final basis were expressed this way:
192. In my view whether or not there are further proceedings will depend to a significant extent upon the mother’s ability to support the orders the Court makes and the children’s relationship with the father. Given the strongly held views of the mother and the maternal grandmother that [the elder child] has been sexually abused by the father and other members of his family I am concerned that if the Court were to make interim orders this could lead to ongoing litigation in relation to how the children and [the elder child] in particular are coping with spending time with the father and invite if not encourage further litigation. I am satisfied that this should be avoided to the extent it is possible to do so.
…
197. However, although I am satisfied that it is in the children’s best interests to spend time including unsupervised time with the father and there seems to be no reason why this should not in due course include overnight time, the risk of the children being abused by the father was not the only the risk in this case. There is also the question of how the children might be coping with their reintroduction to the father after so long particularly given that the mother may be unable to accept any other possibility other than that [the elder child] has been sexually abused by the father. In circumstances where there was also some uncertainty about the father’s proposals for overnight time in Sydney and given his concession that there might be some benefit in the Court relisting the matter in 6 to 12 months I propose to adjourn the question of the children spending overnight time to a date after the commencement of unsupervised time. Although it is to be hoped that this family will be able to move forward and the father and mother reach agreement as to the way forward if they cannot there will be an opportunity for the father to pursue his application for overnight time putting forward his proposals based upon the circumstances at the time and for there to be a further assessment at that time if the Court considers it necessary.
…
210. The ICL also proposed that the mother should facilitate the children making contact with the father on special occasions such as their birthdays and Christmas Day. Although the father agreed with this proposal as a minimum it was his case that if the children were to be spending time with him provision should be made for the children to spend time with him on these special occasions. Although there is some force in the father’s submission none of the parties addressed me directly in relation to this issue. In any event I am satisfied that I should make the order proposed by the ICL and that this matter can be further considered after the children have been reintroduced to the father.
…
212. The ICL also sought orders restraining the father from attending the children’s schools or day care, extracurricular activities and the mother’s home and place of employment. Although I propose to adopt the ICL’s proposal and make the orders I will do so until further order. Although I am satisfied that these orders are appropriate during the children’s initial reintroduction to the father in my view they will need to be reconsidered as that relationship develops.
As can be seen, her Honour was expressly conscious of the desirability of avoiding further litigation, but was persuaded it was necessary to keep options open. We regard those reasons as quite sufficient to explain why the primary judge decided not to finalise the orders concerning the children’s future interaction with the father, in which case Ground 4 fails.
Contrary to the mother’s submission, no principle of law obliged the primary judge to finally dispose of the proceedings. While the Act exhorts the finality of child-related proceedings as a desirable objective (s 60CC(3)(l)), it does not mandate such an outcome. The circumstances affecting children’s best interests are multifarious and liable to change quickly, meaning relevant issues may need to be determined sequentially in the litigation (ss 69ZQ(1) and 69ZR), or certain aspects of the litigation may even need to be re-visited (ss 64B(2)(g) and 65D(2)), or more evidence may be required because the available evidence at trial is manifestly inadequate to enable a proper decision (Reid & Lynch (2010) FLC 93-448 at [213]). Such clear statutory provisions governing the ambit of procedural and substantive power override the force of any generalised quotes which may be cherry-picked from an authoritative common law case lauding the finality of litigation. Ground 5 also fails.
Grounds 1 and 2 – errors of law
Albeit expressed in a variety of different ways, these grounds relate to the findings made about the alleged risk of harm posed to the children by the father and assert the primary judge erred by finding the risk of harm was “low” and the children could consequently spend unsupervised time with the father without being exposed to an unacceptable risk of harm.
More specifically, the grounds contend the primary judge:
(a) failed to take into account as a material consideration that the elder child made disclosures of his sexual abuse by the father (Ground 1);
(b) wrongly found that the mother failed to establish, on the balance of probabilities, the elder child had been sexually abused by the father or by some other member of the paternal family (Ground 1);
(c) erred at law by not correctly applying the test of risk set out by the High Court of Australia in M v M (1988) 166 CLR 69, and in particular by:
(i) finding that the magnitude of the risk of harm posed by the father to the elder child was “low” (Ground 2(a));
(ii) making any order at all for the children to spend time with the father, even if supervised, having found he posed some risk of harm to them (Ground 2(b)); and
(iii) failing to give adequate reasons for making orders for the children to spend any time with the father, even if supervised (Ground 2(c)).
Before analysing these grounds, it is instructive to understand the findings made by the primary judge and the reasons given for such findings.
The findings ultimately made by the primary judge were expressed in these terms:
175. I am not satisfied on the balance of probabilities that [the elder child] has been sexually abused by the father or other members of his family. However, although I have reservations about whether [the elder child] has been sexually abused at all I equally cannot find on the balance of probabilities that the allegations made by the mother have no foundation or that there is no risk that [the elder child] will be sexually abused by the father or some other member of his family in the event that the Court accedes to his application for the children [sic] spend time with him. Having carefully considered all of the evidence I am however satisfied that the magnitude of that risk is low. I am also satisfied that whatever risk there is to [the elder child] given the evidence or perhaps more correctly the lack of any evidence with respect to [the younger child] the risk if any to [the younger child] is even less. That being the case I am satisfied that making orders that the children spend time with the father would not expose [the elder child] and/or [the younger child] to an unacceptable risk of abuse.
(Emphasis added)
The elder child repeatedly represented to the mother, the maternal grandmother and Ms M (in language which was commensurate with his young age) that he had been treated in certain physical ways by four adult members of the paternal family, which could only rationally be construed as reports of his sexual abuse. There could really be no benign explanation for his descriptions of their physical interaction.
The mother’s case at trial hinged upon the acceptance of the elder child’s statements as being truthful, which contention continues to underpin her grounds of appeal and her submission in the appeal that, in the face of such allegations, her Honour had no option but to find the father posed a risk of harm to the children. As her Honour recognised in the reasons for judgment (at [141]), the mother’s case was conducted upon the foundation of this rhetorical question:
Why would [the elder child] have made these statements “unless what he said was true”?
The intrinsic premise of the question is that the elder child is always truthful, when such an assumption could scarcely be made about any person, let alone a child so young. Tritely stated, the elder child’s allegations were not true simply because they were made. Here, the truth of the allegations was plainly in issue because cogent evidence called them into doubt. In the upshot, the primary judge found the elder child’s statements were not credible and should not be accepted at face value. In reliance upon expert evidence given by the Family Consultant, as was open, her Honour found the mother, the maternal grandmother and Ms M all impulsively embraced the veracity of the elder child’s statements without hesitating to contemplate their implausibility.
The primary judge’s reasons exposed how many aspects of the elder child’s representations were so bizarre as to inherently compromise their credibility. For example:
(a) the elder child made the allegations when he was barely five years of age, asserting that his sexual abuse extended back to when he was only three years of age (at [149] and [176]) – which was almost two years before the parties separated in December 2018 and well before, it might be thought, he was of sufficient cognitive maturity to possibly enable his clear recollection of the events he described;
(b) he implicated not only the father in his sexual abuse, but also three other adult members of the paternal family: the elderly paternal grandmother, a paternal aunt, and a paternal uncle (at [43], [91], [126]);
(c) he said he had been abused “100’s of times” (at [43] and [114]);
(d) he alleged he was abused by the father in a public park during a supervised visit in April 2019, even though under the observation of an independent supervisor who was making contemporaneous notes about the visit and who said nothing of it (at [104] and [110]);
(e) he alleged the sexual abuse took these different forms:
(i) the paternal grandmother placed his penis in her bottom (at [50] and [126]);
(ii) the paternal aunt placed his penis in her bottom (at [50] and [126]);
(iii) the father placed the child’s penis in the father’s bottom (at [114]);
(iv) the father placed the child’s hand in the father’s bum (at [121]–[122]);
(v) the father and the paternal uncle both sodomised him, apparently in succession and in one another’s presence (at [109], [111], [114] and [126]);
(vi) while the father and the paternal uncle were both naked in his presence, he was induced to lick the father’s penis and the paternal uncle’s back (at [85], [88] and [91]);
(vii) the father urinated on his head, causing his eyes to burn (at [127]);
(viii) the father “put some poo” on his head (at [127]); and
(ix) the father touched the younger child’s vagina (at [128]).
Allowing for uniformity in the child’s descriptors of “in the bottom” and “in the bum”, he must have been alleging penetration of the relevant person’s anus.
The mother explicitly acknowledged that some of the elder child’s allegations could not possibly be true, but sought to imply his more outlandish statements could be conveniently disregarded. The mother’s senior counsel submitted this to the primary judge:
In these cases, your Honour, children say things that may not literally be true …
… so it’s not our case that you can take absolutely literally what this child has said …
(Transcript 21 August 2020, p.8 lines 22–27)
The submission found no favour with the primary judge. Nor need it have. The mother’s case depended upon acceptance of the truth of what the elder child said was done to him, so she could not pick and choose between the allegations which suited her case and those which did not. The almost inescapable conclusion was the child’s preposterous and generally unreliable statements tended to undermine the veracity of all his allegations.
Apparently, the mother did not pause to reflect upon how an aged grandmother could insert the flaccid penis of her three to four-year old grandson into her anus, or why a child of such tender age had no sign of rectal injury despite his alleged anal penetration by two erect adult penises, or why the father might be inclined to urinate or deposit excrement on the child’s head, or how she could really have been blind for so long to such rampant sexual deviance within the paternal family, or how the child could possibly have been abused so many times during the parties’ marriage without her having the slightest inkling, or how the child could possibly have been abused while under the observation of a professional supervisor in a public park.
Besides the inherent incredulity of many of the elder child’s allegations, there were other aspects of the evidence which derogated from the strength of the case presented by the mother.
First, the timing and circumstances under which the allegations were made evoked doubt about their reliability. No allegations were made by the elder child before March 2019, some three months after the parties separated, by which time the parties were locked in this tense litigation. From January 2019, the mother had been withholding the children from the father because she contended he posed a risk of harm to them – though not because he might sexually abuse them. The mother told the Family Consultant she did not suspect any sexual abuse before the elder child’s first allegation was made in March 2019 (at [38]), which coincidentally happened to be only six days after the interim orders were made requiring the children to spend supervised time with the father.
The verbal allegations made by the elder child in March, April and May 2019 were certainly startling, but the Family Consultant offered expert opinion evidence of other explanations for why such statements might be fabricated by a young child such as this, which evidence the primary judge accepted as correct. Her Honour extracted such evidence in the reasons for judgment to this effect:
144. In the Magellan Family Report the family consultant said as follows:
[The elder child] has reportedly made a number of statements since March 2019, which suggest that he has been sexually abused by [the father]. When a young child makes a disclosure indicative of sexual abuse, it is always important to consider what the child has said, and the context for the child making such a disclosure. This is important as children do not have a mastery of language, and a simplistic view of the world, and they may thus not be able to provide and accurate description of events, and this may give way to misinformation. Furthermore, children can also be vulnerable to suggestion, and they may also be inclined to try to please adults, and this means that children can sometimes agree with false statements, or make false statements they have been lead to believe an adult wishes to hear. For example, if an adult asks a child whether a particular person has touched them inappropriately, a child may be vulnerable to answering in the affirmative, even if the event has not taken place, particularly if they have been asked this question a number of times and the adult asking has not appeared contented by their pervious responses. There is also the possibility that a child can come to believe that something has occurred if they are repeatedly questioned about certain events, or repeatedly asked to say that certain events occurred.
While it is sometimes difficult to determine whether child sexual abuse has occurred because a child has provided an inadequate description about what has occurred, the statements reportedly made by [the elder child] seem to be very clear disclosures that sexual abuse has occurred. Notably, [the elder child] has reportedly clearly stated, amongst other things, that his father and his [the paternal uncle], put their penises in his bottom and, on a separate occasion, that his father put [the elder child’s] hand on his [the father’s] penis and in his [the father’s] bottom.
From the information provided by [various witnesses] in affidavit material, [the elder child’s] statements regarding sexual abuse were unprompted. It does not appear that [the elder child] was ever asked directly by any of them whether [the father] engaged in sexual acts. From what is detailed in affidavit material, it does not appear that [the elder child] was subjected to any probing utterances that might have lead him to make a false statement about sexual abuse. If it is accepted that [the elder child] has disclosed information in the manner stated, there would be little concern that [the elder child] has inadvertently been influenced to make these statements. It is, however noted that it might very well have been difficult for [the witnesses], to recall exactly what [the elder child] said at the time of [the elder child] allegedly disclosing such information. It is also noted that in the Project Magellan report that [the maternal grandmother] acknowledged some of her questions to [the elder child] were leading and. In one discussion with [the elder child], fantasy was used in an attempt to support [the elder child] to talk about disclosures. If this has occurred, there may be some question about whether [the elder child] has accurately stated what has occurred, or whether he may have been inadvertently led to make a false disclosure. Consideration about whether [the elder child] might have inadvertently been led to make a false disclosure of sexual may need to account for what leading questions and fantasy scenario [the maternal grandmother] might have put to [the elder child], and when this occurred. Unfortunately, the Family consultant was unable to find any further information about this in what was able to be viewed of the DCJ file. The multitude and variety of statements made by [the elder child] to various people, however, might ward against believing that [the elder child] has been inadvertently caused to affirm that sexual abuse has occurred.
(Emphasis added)(As per the original)
Ms M, in whom the mother seemed to repose so much faith, could not and did not contradict such expert evidence when she was cross-examined. She admitted there could be other reasons for the elder child’s behaviour aside from his sexual abuse by the father (at [47] and [161]).
The primary judge permissibly inferred the elder child was encouraged, even if only inadvertently, to make the allegations (at [155]–[156] and [159]). That conclusion flowed, in part, from evidence that the mother and maternal grandmother took him back to investigating officers for successive supplementary interviews because he omitted to give complete versions beforehand (at [99], [102], [106] and [125]). In one of the interviews, the elder child said it was the mother who knew what to say, not him (at [106]). By the time of the last interview, the elder child declared to the officers “I’m here to tell you that [the father] hurts me” but, when pressed, he reverted to saying the mother could answer their questions and he denied anything happened between him and the father and he denied feeling unsafe when with the father (at [125]). It also seems the elder child’s revelations to Ms M were mostly not spontaneously made, but rather tended to be endorsements of allegations made in his presence by either the mother or maternal grandmother or recitations at their bidding (at [91], [94]–[95], [104]–[105], [119], [124], [126] and [128]–[129]). Despite then still only being six years of age, the elder child told Ms M in March and May 2020 that the father needed “consequences” for what he had done, which he elaborated to mean being “thrown in prison” (at [129]–[130]), which concepts and language hardly seemed to correlate with his relative immaturity.
Passive encouragement, by words or conduct, given by adults to children to make statements which are favourable to one party but adverse to another is not a novel concept. Albeit in different circumstances to these, the High Court of Australia has explicitly recognised that children’s statements are liable to be influenced by adult carers and some caution needs to be applied (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34]–[41]; RCB v The Honourable Justice Forrest (2012) 247 CLR 304 at [52]).
Secondly, the versions of events related by the mother and the maternal grandmother revealed inconsistencies. For example: the maternal grandmother gave “much lengthier and more detailed” accounts of her conversations with the elder child to investigating officers than she did in her affidavit (at [85], [89]–[90] and [148]–[149]); the maternal grandmother gave inconsistent accounts of the location where the elder child had supposedly been abused (at [110]); the maternal grandmother admitted she thought the elder child regarded his sexual abuse as “a game”, which is difficult to reconcile with the evidence given by both her and the mother of the child being occasionally “distressed” and complaining of being “hurt” by his abuse, which warranted him being soothed by their “hugging”, “rocking” and “wrapping him in a blanket” (at [85], [96], [100], [114], [121]–[122], [150]–[151] and [156]); and the maternal grandmother’s evidence was contradicted by official records in respect of when the allegations were first reported to the authorities for investigation (at [89] and [147]).
Thirdly, although the elder child made allegations separately to the mother, the maternal grandmother, the maternal step-grandfather and Ms M, he made no allegations at all to implicate the father or any other member of the paternal family in any sexual impropriety during his multiple formal interviews with skilled investigating officers, even when they intentionally asked him leading questions on the topic. The child was not merely mute – he positively denied his sexual molestation when probed by the officers (at [98]–[99], [102], [106]–[107], [125], and [132]). In all, the child participated in five separate formal interviews between 20 March 2019 and 30 May 2019 (at [132]). Significantly, the elder child’s allegations were unsubstantiated by the investigating officers following their thorough investigation (at [132]–[133]), so the primary judge’s eventual findings were consistent with the conclusions reached by the authorities.
Lastly, the father denied the elder child’s allegations. He willingly participated in an interview with child welfare officers in June 2019 to deny the allegations (at [131]), despite being entitled to decline the interview and maintain his privilege against self-incrimination. He denied his molestation of the children and submitted to cross-examination in the proceedings, with the primary judge finding his evidence credible and persuasive (at [30]).
Turning then to these grounds of appeal, although couched in language evocative of appealable errors in discretionary judgments (House v The King (1936) 55 CLR 499 at 504–505), their flavour was more redolent of complaints about the primary judge’s failure to repose more weight in the evidence the mother emphasised as being important, even though she sought to disavow that proposition in oral submissions. It is worthwhile acknowledging at this point that appeals based on challenges to the primary judge’s attribution of weight to particular portions of the evidence face obstacles which are difficult to surmount (Lovell v Lovell (1950) 81 CLR 513 at 519 and 533; Gronow v Gronow (1979) 144 CLR 513 at 518 at 519–520; CDJ v VAJ (1998) 197 CLR 172 at 231–232).
The mother asserted the primary judge failed to take into account, as a material consideration, that the elder child actually made disclosures of his sexual abuse by the father (Ground 1), which contention must be rejected. It was taken into account, but just not given the probative weight the mother expected.
It is true the primary judge speculated about whether the elder child’s initial allegations were misconstrued by the mother and maternal grandmother (at [31], [33], [143], [145] and [160]), but only in the context of discussing their propensity to impulsively jump to conclusions about the meaning and truth of the elder child’s disclosures (at [38], [42]–[46], [143], [146] and [152]). Despite such rumination, her Honour did not repudiate the representations made by the elder child or their effective interpretation as allegations of his sexual abuse. As her Honour recognised (at [142]), the father was not in any position to challenge what was said by the elder child, but he was able to and did deny the truth of the elder child’s allegations. The focal point of the dispute was the truth of the allegations; not whether they were made or their meaning.
Her Honour still entertained some doubt about the exact terms in which the allegations were made (at [145]–[146] and [160]), but that was because the mother and the maternal grandmother delayed recording their memories of conversations with the elder child and there were some other inconsistencies within the evidence. Neither the mother nor maternal grandmother swore affidavits for more than a month after the elder child’s first disclosure (at [32]) and the maternal grandmother at least conceded she could not remember the conversations word-for-word (at [33]–[36]). The elder child’s first disclosure was made to the maternal grandmother and related by her to the mother, yet there were differences between the versions given by them (at [31] and [37]). The maternal grandmother gave different versions of her conversations with the elder child to the investigating authorities and in her affidavit for the trial (at [85], [89]–[90] and [148]–[149]). There was also an inconsistency about the date upon which a report was made by the maternal family to the investigating authorities about the elder child’s first disclosure (at [89] and [147]).
It follows that, in determining the pivotal issue, the elder child’s disclosures were a material consideration and were factored into the deliberations. The primary judge found the disclosures were made, but were likely encouraged (at [155]–[156] and [160]). It could not have been found the disclosures were invited or encouraged unless her Honour first accepted the disclosures were actually made. In the appeal hearing, the mother agreed the primary judge had indeed accepted the disclosures were made.
The mother next contended the primary judge erred by finding she had not established, on the balance of probabilities, that the elder child was sexually abused by the father or by some other member of the paternal family (Ground 1), which should also be rejected.
It was doubly difficult for the mother to make good on this contention because, first, she had to demonstrate how the evidence would admit of no other finding than that the elder child was sexually abused and then, secondly, explain why the primary judge was obliged by law to make the positive finding. The mother could not make good on the first argument because the finding that the evidence was insufficiently strong to prove the elder child’s past sexual abuse was undoubtedly open on the evidence we have summarised. Regardless, the mother could not make good on the second argument because binding authority establishes that a court should refrain from making a positive finding of past sexual abuse unless impelled to do so (M v M at 76–77). There was no ostensible need to make a positive finding in this instance because, aside from one brief exchange in final submissions when the mother invited a positive finding, she conducted the case as one in which only a finding about the unacceptable risk of harm posed to the children was required.
In the amended Case Outline document filed by the mother for the trial, she did not identify the need for a positive finding as being one of the salient issues. Rather, she contended the primary judge only had to determine whether or not there was an unacceptable risk of harm to the children, which issue she defined as follows:
Whether there is an unacceptable risk of harm were the children to spend any time with the non-residential parent.
And she stated her position on that issue in this way:
…there is an unacceptable risk of harm were the [elder] child to have any contact with the Father. This risk of harm extends to the [younger child].
After the evidence was closed, the mother’s senior counsel opened his final submissions to the primary judge in this way:
[SENIOR COUNSEL FOR THE MOTHER]: … [T]he first issue for us and – and for your Honour to determine is whether or not there’s an unacceptable risk. Consistent with the submissions that we have identified as to the risk of harm, we would contend, and it seems to be adopted by the ICL as well, that there should be a finding of unacceptable risk …
(Transcript 21 August 2020 p.8 lines 18–21) (Emphasis added)
Later, during the discourse, this further exchange occurred between the primary judge and the mother’s senior counsel:
[SENIOR COUNSEL FOR THE MOTHER]: …We would invite your Honour therefore to find in the circumstances that the interference ..... the child and as found by ..... occurred.
HER HONOUR: You seek a positive finding.
[SENIOR COUNSEL FOR THE MOTHER]: I say there’s a positive – all the material there is for a positive finding. And if your Honour concludes positively on balance and in accordance with the test, you would find that there is an unacceptable risk. Having adopted that finding, should you do that, you - - -
HER HONOUR: Okay. So you say I should find that the father has - - -
[SENIOR COUNSEL FOR THE MOTHER]: Yes, I do.
HER HONOUR: Has sexually abused this child.
[SENIOR COUNSEL FOR THE MOTHER]: Yes, I do.
HER HONOUR: Okay.
[SENIOR COUNSEL FOR THE MOTHER]: And one – another reason - - -
HER HONOUR: Because I don’t have to – I can find an unacceptable risk, obviously.
[SENIOR COUNSEL FOR THE MOTHER]: Your Honour, of course.
HER HONOUR: Without that positive finding.
[SENIOR COUNSEL FOR THE MOTHER]: Yes. Your Honour, I agree with that completely. Of course you can…
(Transcript 21 August 2021, p.15 lines 13–42)
The mother advanced her case on the basis that the father posed an unacceptable risk of harm to the children, which the primary judge did not accept. The mother’s senior counsel readily accepted her Honour was not obliged to make a positive finding, but her Honour found the evidence was not strong enough to prove the alleged past sexual abuse to the requisite civil standard (at [175]). In any event, the absence of any such positive finding was not dispositive of the ultimate issue about whether or not the children were at unacceptable risk of abuse, which her Honour correctly observed to be a quite different question (at [172]–[173]).
Ground 2 complains the primary judge erred at law by not correctly applying the test for risks of harm set out in M v M but, at the outset, it should be observed her Honour recited the principles established by M v M and thereafter purported to apply them.
In the reasons for judgment (at [19]–[23] and [172]–[174]), the primary judge demonstrated an understanding of the test contained in the propositions set out in M v M.
On the question of how the existence and magnitude of a risk of future sexual abuse is assessed, the primary judge (at [22]) adopted the discussion by Austin J as the dissentient in Fitzwater v Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”).
The conduct of this appeal necessitates some limited consideration of Fitzwater because, not only did the primary judge cite and apply Austin J’s dissenting judgment (at [22] and [172]), the mother also relied upon the dissenting judgment in aid of her appeal. So, in effect, the primary judge and both parties sought to use the legal principles described in the dissenting judgment, though the parties were at odds over the result dictated by the synthesis of those principles with the evidence.
We acknowledge the majority in Fitzwater (as did the Full Court in Johnson and Page (2007) FLC 93-344 at [68] and [71]) seem to assert the question of whether or not an unacceptable risk of harm is posed to a child is determined by application of the civil standard of proof under s 140 of the Evidence Act 1995 (Cth) but, since that particular issue occupied no attention in the appeal, now is not the occasion to do anything other than record our doubts about the correctness of the proposition. That is because we doubt an asserted risk of harm is capable of characterisation as a fact in issue – as distinct from merely an issue in dispute – and the civil onus of proof only applies to the determination of facts; not forecasts or hypotheses. As the High Court of Australia has said, the approach is different in the case of possible eventualities, as predictions and assumptions about the future are not susceptible of scientific demonstration or proof (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; CDJ v VAJ at [151]).
Without purporting to reach any concluded view uninformed by argument on the point in the appeal, given the absence of any dispute over the primary judge’s reliance upon Austin J’s analysis in Fitzwater, we shall proceed on the basis there was no error in that regard.
The first manifestation of error for which the mother contended was the primary judge erring by finding the magnitude of the risk of harm posed by the father to the elder child was “low” (Ground 2(a)), which should be rejected.
It is difficult to see how that is an error in the application of the test when there is a requirement to determine the magnitude of the risk. On the continuum identified by the primary judge (at [172]), ranging between highly probable and remotely possible, the primary judge identified the risk as “low”.
The mother could not persuasively contend it was not open for the primary judge to find there was a low risk of harm to the children on the available evidence. The aspects of the evidence we have already canvassed above enabled the risk to be so quantified. That another judge might have concluded, in the exercise of discretion on the same body of evidence, that the risk of harm was somewhat higher up the scale of severity does not demonstrate error and justify appellate intervention (CDJ v VAJ at 231–232).
In oral submissions, senior counsel for the mother focused heavily upon the notion that the assessment of the magnitude of a risk of harm and indeed the assessment of risk in parenting cases more generally involves, first, the prediction of the likelihood an event will happen, and secondly, consideration of the severity of the impact of that event if it does happen (Deiter & Deiter [2011] FamCAFC 82 at [61]).
In the reasons for judgment (at [22]), the primary judge specifically acknowledged the reference by Austin J (at [142] of Fitzwater) to comments made by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611 at [28] to the effect that, in child-related proceedings, a comparatively small risk of really serious harm can justify action while even the virtual certainty of slight harm might not.
There was no question before the primary judge about the severity of the impact which future sexual abuse would have upon the children. In acknowledging the severity of the risk, the primary judge said:
24. The consequences of the Court’s decision in a case such as this one are momentous and will likely have a long lasting impact on the lives of both of these young children. However the risk is not limited to the risk that one or both of them might be sexually or physically abused by their father or other members of his family. There is also the risk to these children of not having any relationship with the father and his extended family and the impact upon [the elder child] in particular of identifying himself as a victim of sexual abuse, whether or not there is any substance to the allegations…
Earlier in the reasons, the primary judge correctly acknowledged the statutory direction contained within s 60CC(2A) of the Act, saying:
15. … In determining what orders will be in a child's best interests the Court must consider the matters in s 60CC(2) and (3) of the Act. When considering the matters in s 60CC(2) the Court is required to place greater weight on the need to protect a child from physical or psychological harm, and from being subjected or exposed to abuse, neglect or family violence….
Given the primary judge’s extensive discussion and consideration of the allegations relating to sexual abuse, we are satisfied her Honour appreciated the profound and lifelong effect of sexual abuse upon a child.
The assessment of the magnitude of the risk of harm as being “low” axiomatically involved the primary judge reaching a conclusion about both the likelihood and the seriousness of the risk.
Senior counsel for the mother submitted the primary judge “regrettably” omitted to refer to what was, for this case, probably the most important paragraph in M v M (at 78), which is in the following terms:
In the present case Gun J. was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.
Senior counsel for the mother argued that M v M was “precisely this case”, given the primary judge was not satisfied the father had not sexually abused the elder child and was therefore unable to exclude the possibility the father had so abused the child. The corollary of the submission was that the primary judge had no alternative in this case but to eliminate the father from the children’s lives.
We do not agree, as the submission mistakenly relies upon an assumption of analogous facts as distinct from the extrapolation of general principle. Every case turns on its unique facts. As the High Court explain in M v M (at 75), the primary judge there found on the evidence that “as a matter of practical reality”, the risk the subject child might be sexually abused and her welfare endangered was judged to be of sufficient strength to warrant an order precluding her from spending time with the father. By contrast, on the evidence presented in the present case, the primary judge had strong reservations about whether the elder child had been sexually abused at all (at [175]). The evidence did not establish the negative proposition that the elder child had not been sexually abused – so it remained at least a bare possibility. However, the level of risk was assessed as being “low” – in fact, so low the children did not need to be supervised to protect them against the risk when spending time with the father. Supervision was needed to reassure the mother, to support the children’s re-introduction to the father, and to obviate the chance of further unsubstantiated allegations (at [193]), though it had a concomitant benefit of guarding against any risk. The period of supervision was not lengthy, for otherwise it might falsely cause the children to believe they are not safe with the father when it was found he did not pose an unacceptable risk of harm to them (at [195]–[196]).
The mother next contended the primary judge erred by making an order for the children to spend any time at all with the father – even if supervised – once it was found he posed some risk of harm to them (Ground 2(b)), which should also be rejected.
The corollary of acceptance of this ground of appeal would mean that, in cases where it is alleged a person has abused children and therefore poses a risk of harm to them, unless the alleged risk of harm is found to be nil, the residual risk (no matter how slight) would still be too potent to tolerate and could not be satisfactorily attenuated by anything short of complete elimination of the alleged abuser from the lives of the children. Such a proposition cannot be accepted because “unacceptable risk” is quantitatively different from “risk” simpliciter, which two concepts the mother’s submissions tended to conflate. If it were otherwise, the adjective “unacceptable” would be superfluous. The mother’s submission in the appeal that “any” risk of child abuse is unacceptable, was challenged by us, but ultimately the mother did not deviate from it. That submission should be rejected.
As the Full Court observed in Stott & Holgar and Anor [2017] FamCAFC 152:
37. As an eminent former judge of this Court has said (emphasis added):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
(Footnote omitted) (Emphasis in original)
The primary judge here could not entirely rule out any risk of harm posed by the father, but found the risk was low (at [175]–[176]). The level of risk did not require the father’s elimination from the children’s lives, as the mother posited (at [1] and [136]).
Lastly, the mother contended the primary judge failed to give adequate reasons for making orders for the children to spend any time with the father, even if supervised (Ground 2(c)), which should also be rejected.
The reasons given by the primary judge for making the appealed orders were summarised in a comprehensive, clear and eminently satisfactory way (at [168]). Her Honour was not satisfied the father poses an unacceptable risk of harm to the children because, in essence, the elder child’s allegations were unreliable. In summary, that was because many were inherently incredulous; he was encouraged, even if only unintentionally, to make them; he did not make the allegations to anyone aside from the mother, maternal grandmother, maternal step-grandfather and Ms M, even though afforded repeated opportunities to do so in formal interviews conducted by investigating authorities; and his allegation of being abused by the father during a supervised visit was irreconcilable with contemporaneous records made by the supervisor. The evidence given by Ms M was separately found to have such little probative weight as to not be corroborative (at [161]–[167]). All of those underlying findings were the subject of extensive evaluation earlier in the reasons for judgment and none was discretely challenged in the appeal.
Once determined the father did not pose an unacceptable risk of harm to the children, there was no reason to thwart the restoration of their relationships with him, from which restoration they would benefit (at [177]–[180]). The countervailing risks of emotional harm to the children were the loss of their relationships with the father and the prospect of the elder child identifying himself as a victim of sexual abuse even if he was not (at [24] and [180]–[181]). There was no evidence to support any conclusion the mother’s parenting capacity would be impaired if orders were made for the children to spend time with the father because of her honest belief in the risk posed to them by him (at [182]).
Since the children had not seen the father for about two years preceding the pronouncement of the appealed orders, the primary judge was satisfied the children should be initially supervised with the father to reassure the mother, to support their re-introduction to him (which would also be facilitated by family therapy with a psychologist (at [201])), and to restrict the chance of further allegations being made against him (at [193]–[196]).
The reasons for judgment confront the parties’ arguments at trial and adequately explain why the mother failed to establish her case that the father poses an unacceptable risk of harm to the children.
Conclusion and Costs
The appeal will be dismissed.
The father, who was unrepresented in the appeal, had no costs to recoup and made no application for costs.
The ICL supported the appeal and made no application for costs in the event of its dismissal.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Watts, Austin & Tree.
Associate:
Dated: 25 August 2021
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