CONLAN & TOMLINSON
[2014] FCCA 3118
•11 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CONLAN & TOMLINSON | [2014] FCCA 3118 |
| Catchwords: FAMILY LAW – Parenting – interim care arrangements – allegations of sexual abuse – mother seeks suspension of all existing orders providing for time and communication between the child and father – consideration of unacceptable risk. |
| Legislation: Family Law Act 1975 (Cth) |
| Goode & Goode (2006) FLC 93-286 Johnson & Page [2007] FamCA 1235 Deacon & Castle [2013] FCCA 691 M & M [1988] HCA 68 B & B (1993) FLC 92-357 |
| Applicant: | MR CONLAN |
| Respondent: | MS TOMLINSON |
| File Number: | AYC 59 of 2013 |
| Judgment of: | Judge Harman |
| Hearing date: | 11 December 2014 |
| Date of Last Submission: | 11 December 2014 |
| Delivered at: | Albury |
| Delivered on: | 11 December 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Morrisey of Robb & Associates Solicitors |
| Solicitors for the Respondent: | Mr Huggins of Skinner & Associates |
| Solicitors for the Independent Children’s Lawyer: | Ms Dunbar of Legal Aid NSW Wagga Wagga Family Law |
ORDERS
Leave is granted to the Applicant in the substantive proceedings to file in Court a Response to the Application in a Case and Affidavit.
Leave is granted to the Respondent in the substantive proceedings to file in Court an Affidavit.
Pursuant to s.62G an updated Family Report is to be prepared for the Court by a Family Consultant nominated by the Manager Child Dispute Services in accordance with Exhibit A.
IT IS NOTED that a Report has previously been prepared by Mr B and it is requested that this updated report also be prepared by him.
The Court requests that the Report be available if at all possible by the end of May 2015.
Pursuant to section 13C of the Family Law Act1975, the Independent Children’s Lawyer (if appointed) and the parties and each of them shall forthwith and within seven (7) days contact a Family Dispute Resolution Practitioner agreed between them for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for Family Dispute Resolution and subject to the assessment of suitability each party shall then:
(a)Attend at such times, dates and places as may be advised; and
(b)Pay such fees as may be charged;
(c)To participate in and complete Family Dispute Resolution, to occur if at all possible following the release of the Family Report and in sufficient time for a resolution to be achieved neither party will need to commence preparation of the hearing.
The matter is listed for Final Hearing before Judge Harman at 10.00am on 15-16 December 2015 and to continue until completed.
In the event that either/any party (or the Independent Children’s Lawyer) (if appointed) requires the report writer for cross examination then written notice of that fact is to be given to (select) the report writer/the Director of Family Consultancy services within 21 days of today’s date and in the event that the report writer is not available on the allocated dates then upon that fact becoming apparent to a party or the Independent Children’s Lawyer (if appointed) they shall cause the proceedings to be relisted.
Direct the Applicant to file and serve all Affidavit material on which he intends to rely at trial no later than close of business on 4 September 2015.
Direct the Respondent to file and serve all Affidavit material on which she intends to rely at trial no later than close of business on 2 October 2015.
Direct the Applicant, should he consider it necessary or appropriate, to file an Affidavit by him and only him answering any material in reply to the Respondent’s Affidavits which has not already been addressed in his evidence in chief no later than close of business on 27 November 2015 and in the event that evidence is to be called in reply it shall be by filing such Affidavit and not otherwise.
The Court notes that the Applicant would propose calling evidence from himself.
The Court notes that the Respondent would propose calling evidence from herself plus one witness.
The parties are to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Circuit Court Regulations 2000 or as otherwise directed by the Registry Manager.
Direct each party and the Independent Children’s Lawyer (if appointed) to file a Case Outline directly by email to my Associate no later than close of business 11 December 2015, such Case Outline to incorporate:
(a)The material that is relied upon by that party or the Independent Children’s Lawyer (if appointed), being one Affidavit per witness together with any Affidavit in reply;
(b)The material from which tender is to be made in that party or Independent Children’s Lawyer’s (if appointed) case and unless entirely impracticable copies of all documents proposed to be tendered shall be served with the case outline;
(c)A chronology of events.
Leave is granted to the Independent Children’s Lawyer (if appointed) to issue such further subpoena as they may consider relevant appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.
Liberty is granted to the parties in the event that the matter is resolve and Terms of Settlement prepared and signed to forward those Terms to my chambers for the purpose of orders being made in Chambers and hearing dates vacated.
Any further subpoena for the production of documents shall be filed and served and so as to require production of material to the Court not less than 21 days prior to the allocated hearing dates and the party issuing same shall ensure that all necessary steps are taken to have obtained leave to inspect material expeditiously and all parties shall ensure that they have inspected material and tabulated same (in the event that tender or cross examination on those documents is proposed) prior to the hearing (as no time will be made available for inspection of that material prior to the hearing commencing).
Dismiss the Application in Case filed 8 December 2014 and the Response thereto filed in Court today and remove that application from the list of cases awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Conlan & Tomlinson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
EXHIBIT A
FAMILY REPORT
Pursuant to s.62G of the Family Law Act 1975, a report be prepared for the Court by a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia.
The Report writer is requested to consider and comment upon the following:
(a)The nature of the relationship of the child/ren with each of the child/ren's parents; and other persons (including any grandparent, partner of a parent or other relative of the child/ren or other person’s living within either parent’s household;
(b)The practical difficulty and expense of a child/ren spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child/ren's right to maintain personal relations and direct contact with both parents on a regular basis and, if so, what arrangements might be made to seek to address such affects, noting the father lives in (omitted) and the mother in (omitted);
(c)The capacity of each of the child/ren’s parents and any other person (including any grandparent or other relative of the child/ren or member of the parent’s household) to provide for the needs of the child/ren, including physical, emotional and intellectual needs and each parents insight into their role as a parent;
(d)The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren's parents and/or members of a parents household or other care givers and including the attitude of each parent towards the other and the other parents’ relationship with the child.
(e)The parents' current and future capacity to communicate with each other and resolve difficulties that might and with respect to same:
(i)any specific course, program or counselling service that might be of assistance in supporting, encouraging and/or assisting the parents (jointly and/or severally) in addressing any such difficulties as are apparent; and
(ii)the impact upon future parenting arrangements (including the allocation of parental responsibility) of such apparent difficulties (if not addressed) and/or upon the child/ren;
(f)Such other matters as the Report Writer considers relevant.
The Report Writer is requested to identify and provide appropriate citations for any social science literature that has been referred to and/or relied upon in expressing opinions within the report.
The Family Consultant is requested to complete the report, if at all possible, by the end of May 2015.
The parties shall attend all appointments with the Family Consultant and shall ensure that any other member of their household or other relative (as the Report Writer may request) as well as the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to the parties and/or the Independent Children’s Lawyer.
| FEDERAL CIRCUIT COURT AT ALBURY |
AYC 59 of 2013
| MR CONLAN |
Applicant
And
| MS TOMLINSON |
Respondent
REASONS FOR JUDGMENT
These are proceedings relating to care arrangements for a young child, X born (omitted) 2010 being 4 years of age.
The parties to the proceedings are the child’s parents, being her father, Mr Conlan, who is the Applicant in the substantive proceedings and her mother, Ms Tomlinson, who is the Respondent in the substantive proceedings.
The proceedings have been on foot since February 2013. The proceedings have today been listed for a final Trial although, regrettably, not for some 12 months hence.
On 8 December an Application in a Case was filed by Ms Tomlinson. Ms Tomlinson has sought to prosecute that Application today. The Application has not been the subject of an abridgment of time and would not be before the Court but for its filing in proximity to today’s mention date. I have dealt with the Application today, together with the Response filed by the father in Court today. I have dealt with the Application today on the basis that both the father and Independent Children’s Lawyer indicate that they are ready, willing and able to meet it.
Material considered
In dealing with this matter today I have read and considered each of the following documents:
a)The Application in a case filed 8 December 2014;
b)The Affidavit of Ms Tomlinson sworn or affirmed 5 December 2014, filed 8 December 2014;
c)An Affidavit of Ms L, an occupational therapist and mental health practitioner, sworn or affirmed 10 December 2014 and filed in Court today;
d)A Form 4 Notice of Abuse filed 8 December 2014;
e)The Response to an Application in a Case filed in Court today;
f)An Affidavit of the father sworn or affirmed 10 December 2014 and filed in Court today.
The Application in a Case seeks a suspension of all Orders that provide for the father’s time or communication with X. The fulcrum upon which the Application balances is a suggested disclosure of sexual abuse by the child.
The disclosure of sexual abuse, as it has been termed in the proceedings, is contained in paragraph 4 of the mother’s Affidavit and as repeated in the Form 4 Notice of Abuse. It provides as follows:
I am greatly concerned that X may have been sexually assaulted. The reason I have formed this view is that on 30th November at 5.05pm X said to me: “I saw Dad naked in the shower - and it hurts”. She then paused for a moment and then said “I don’t know”. At 6.30pm that same night she said to me: “Daddy was in the shower and I was yesterday - Dad put his hand in between my gina and bottom”. I take the word “gina” to be her preference [sic] to her vagina. X then lifted her dress and pulled her knickers down to show me.
There is then reference to a build-up of behaviour that has caused the mother to form a concern and which, it is suggested, will be detailed later in the Affidavit. There are significant details of events which have occurred over an extended period - all of 2014 and some events in 2013, in fact some events predating the separation of the parties.
The child has, since the above statement, been seen by Ms L. The child, to be clear, was seeing Ms L prior to the statement and in fact, commenced her engagement with Ms L, it would seem, on or about 14 April 2014.
The initial referral of the child to Ms L was “for behaviour concerns, nightmares, bed wetting and anxiety related to the separation of her parents”.
Ms L indicates on 7 July 2014 in a Report to the referring General Practitioner that she had noticed that:
X is fearful, has hypersensitivity to noise and has a tendency to worry about many things, as well as anxiety around separating from her mother. I attributed these symptoms to parental separation and conflict and gave a diagnosis of unspecified anxiety disorder.
It is then suggested that X’s confidence and self-esteem have begun to improve, although more recently her behaviours have regressed. She has begun to make statements to Ms L, such as “Old people who are naughty in the doll’s house attic to die” and various other statements about bad people.
A Report of Ms L annexed to her Affidavit indicates:
During X’s last two appointments, 24 November 2014 and 8 December 2014, her play has been quite different and raising concern. After seeing her father the morning of her birthday, X’s play was very unsettled and she threw things and tipped up boxes of toys in a manner unusual for her, quite unable to settle to a particular activity.
Various other comments are made with respect to behaviour. The Report concludes:
X’s frequent bouts of anxiety and recent disturbed play lead me to have concerns about X’s time with her father and paternal grandmother.
The father has not been involved in appointments with Ms L, save on one occasion, when it would seem he was a participant in what is described as “a sensory profile”. The extent of that involvement is not clear. It would not seem Ms L has ever met the paternal grandmother.
It is unclear from the Report the basis upon which the above opinion is formed, let alone expressed, being that there are “concerns” around X’s time with her father and paternal grandmother. There is no suggestion the paternal grandmother has done anything to the child of any untoward nature, if at all. She is simply absent the evidence, by and large.
What would appear to have arisen in Ms L’s mind is a causal connection drawn between the child’s behaviours, as observed, and the fact that the child had seen the father. They are certainly consequent and convenient but whether they are connected in a causal fashion is entirely unclear and the basis upon which it is suggested that they are is similarly unclear.
It may be that there are alternate explanations to which Ms L and the mother have failed to turn their minds. It could simply be that the child is behaving in a particular fashion on a particular day. It could be that other events, completely disconnected from the father, have caused the child to be upset. It may in fact be that the child, having seen her father for the morning of her birthday, had not wished to leave his care and accordingly was upset. It is simply impossible to determine, and certainly from Ms L it is impossible to ascertain how she has formed that conclusion.
Similarly, the events that are described as a “disclosure of sexual abuse” could not, I am satisfied, be the basis of any finding by me today. That is not only on the basis that these are Interim proceedings and thus, as the Full Court has been clear at paragraph 68 of Goode & Goode (2006) FLC 93-286, the Court should be cautious in forming a concluded view absent consent, agreement, concession or irresistible corroboration.
What is clear is that the child said to the mother, or so it is alleged, that she had seen her father naked, that her vagina hurt, that she was in the shower with her father and whilst in the shower the father had put his hand in between her vagina and bottom.
This is a little girl of four years of age. It is not extraordinary that a parent, male or female, would touch a child whilst showering with them and cleaning them. That is an entirely and equally plausible, if not in fact more plausible, explanation for that which the child has said.
The fact that the child describes that her vagina “hurts” is not connected with anything she has said or described of the father. She does not describe that the father touched her vagina. She describes that the father put his hand between her vagina and bottom. He may have been washing her. It may have been inadvertent. It may have been sinister. But what is extraordinary is that the conclusion that is immediately leapt to, at least by the mother, is that it is sinister. That is not to seek to discredit or do disservice to the mother. She suggests that the child’s behaviours had been concerning for some little time, that she had spoken of “secrets” and various other complaints in relation to her father. They are catalogued in detail in the mother’s material - several pages of itemised complaints with dates and at times, times.
The statement that the child makes could, however, be entirely innocently explained as a parent showering with their child and washing them. If the child has a sore vagina it can be innocently explained as an infection, a bump to the area or various other things. There is no suggestion that the father has digitally penetrated the child, touched the child in any fashion to derive sexual satisfaction or anything of a nature which by and of itself would categorise it as abuse. What it is, is an allegation of this father showering with the child without clothes on (as one would expect), and touching the child’s body whilst showering with her and washing her. I can take it no further and place it no higher than that.
There are certainly other complaints in relation to the father including suggestions that he has said to the child that he was going to kill her mother, that he routinely, it would seem, tells the mother to fuck off, (including when the child is present) and various other things. They are not, however, styled as allegations of abuse. They are certainly symptoms of the great dysfunction in the relationship between these parents, dysfunction which by and of itself is potentially seriously injurious to this child. They are also behaviours which would cause the mother to think ill of the father and to be distrustful of him.
What has followed from the child’s simple statement that she was in the shower with her father is that the child has then been taken to a doctor, taken to the police and has spoken to various other people, including Ms L.
It is not clear from Ms L’s material whether she has questioned the child about the suggested disclosure of sexual abuse. One would hope that she has not because it is nothing of the sort. It is a statement that the child has seen her father naked whilst in the shower with him and that he has touched her in the shower.
The Department of Family and Community Services has been contacted. The mother details a series of contacts between her and the police and the Department in seeking to arrange and set up interviews. What is somewhat remarkable in that regard is that the mother, upon being contacted by an officer from the Department of Family and Community Services with respect to making an appointment with her to speak about the allegations, is suggested in her evidence to have responded “Great!” What is great about it in the context that the child is suggested to have been abused, a conclusion drawn from the above statement, is difficult to discern.
The suggestion of stresses and conflicts between the parents, particularly at changeovers, which have recently moved away from a supervised Contact Centre previously used to facilitate exchange, may be an entirely appropriate explanation for the disturbed and increasingly disturbed behaviours that this little girl is demonstrating. Both parents should be aware, they have attended Family Counselling services and one would hope, gotten something from them, that the exposure of this child to their conflict is the most injurious thing that they could possibly do to her.
The mother clearly has concerns with respect to the father’s care of the child on a number of levels. It is suggested that at an earlier time in 2014 the child was developing rashes after visits with the father and as a consequence, when the child returned to the mother’s care on at least one if not more occasions, her clothes would be removed and she would be searched for signs of a rash.
There were clearly concerns and problems perceived by the mother in utilising the Contact Centre. The Independent Children’s Lawyer has indicated that notes have been subpoenaed from that centre, although they are not tendered into evidence for the purpose of this determination and need not be. It is clear from those records, the Court is advised, that there have been ongoing problems at the Contact Centre.
For the purpose of this determination whereby the mother seeks to suspend the father’s time, I must be satisfied that there is an unacceptable risk. In that regard, I incorporate herein the relevant portions of my earlier decision in Deacon & Castle discussing the unacceptable risk test as set out in Johnson & Page [2007] FamCA 1235, M & M [1988] HCA 68, B & B (1993) FLC 92-357 and a line of similar authorities and extrajudicial writings:
454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgement at paragraphs 62 and 63 and 65-68 (inclusive) as follows:
“Relevant legal principles
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“The 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.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, 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.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, 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. To achieve a proper balance, the test is best expressed by saying that 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.”
455. And:
456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
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 have 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?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]
458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
(a) The decisive issue is and always remains the best interests of that child.
(b) All other issues are subservient.
(c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
(d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
(e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
(f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
(g) The onus of proof in reaching that conclusion is the ordinary civil standard.
(h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary.”
I must also be cautious for the child’s welfare in addressing the allegations and in doing so, balance the allegations that are raised, the explanations that might apply to the behaviour that is complained of, the plausibility and probative value of the evidence relied upon and importantly, balancing alternate propositions: what if the allegation is true and what if it is not?
If the allegation is true and the child requires protection, I must then consider the risk, the consequence for this child of time occurring at all or on a supervised basis. But I also must balance the risk to this child if I cut off an entirely appropriate and healthy relationship.
On balance I am not satisfied, as indicated, that the evidence could establish to the appropriate standard of proof that there is an unacceptable risk. That is not a concluded finding. These are interim proceedings dealt with on the papers in a busy duty list.
The evidence that is available establishes nothing more, as noted above, than that the child has seen the father naked whilst she has been in the shower with him and that he has, whilst in the shower with her, touched her in a particular place. That does not, by and of itself, suggest anything sinister or anything which I could be satisfied, in light of the above balancing exercise, would warrant the termination of the child’s relationship or any other order to interfere with it at this time. The matter is being advanced to hearing as quickly as can be accommodated in light of the court’s current lack of resources.
It is entirely unacceptable that these parties have to now wait 12 months for a final hearing. The case should be heard and determined in a fraction of that time. But because of the absence of judicial resources and their scarcity – 4 recent retirements for whom no replacements have been announced and a further 11 retirements in the next 12 months – it is simply not possible to advance the matter any more quickly.
In those circumstances and for those reasons, I will dismiss the Application in the Case and the Response thereto. As a consequence, the Orders of 26 June 2014 remain on foot. Those Orders should be complied with. The Orders require that the child spend time with the father each alternate weekend from Friday to Sunday, Father’s Day and other periods.
The parties agree that time will resume this weekend and thus the first alternate weekend period will commence tomorrow.
Nothing more needs to be done other than to advance the matter to trial and Orders and directions have been made to achieve that.
I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 20 February 2015
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