CORSON & CORSON

[2020] FamCAFC 311

FAMILY COURT OF AUSTRALIA

CORSON & CORSON [2020] FamCAFC 311

FAMILY LAW – APPEAL – INTERIM PARENTING – Where the mother appeals from interim parenting orders allowing the father to spend unsupervised time with the children – Where evidence was untested – Challenge to the adequacy of reasons – Where the primary judge extensively referred to and commented upon the single expert’s report and traversed the parties’ evidence and their particular positions – Where the primary judge’s reasons, taken as a whole, explain why the outcome which he determined was in the children’s best interests, represented the least-worst outcome – Where the primary judge’s risk assessment was exquisitely one to which, absent error of the kind identified in House v The King (1936) 55 CLR 499 being established, is not susceptible to appellate interference – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the father and the Independent Children’s Lawyer each sought their costs from the mother – Where the circumstances justify an order for costs – Costs orders made in favour of the father and the Independent Children’s Lawyer in the amounts sought.

Family Law Act 1975 (Cth) s 117

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Deiter & Deiter [2011] FamCAFC 82
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378
M v M (1988) 166 CLR 69; [1988] HCA 68
N and S and The Separate Representative (1996) FLC 92-655; [1995] FamCA 139
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT: Ms Corson

RESPONDENT: Mr Corson

INDEPENDENT CHILDREN’S LAWYER: Helen Volk Lawyers

FILE NUMBER: WOC 886 of 2018

APPEAL NUMBER: EAA 115 of 2020

DATE DELIVERED: 10 December 2020

PLACE DELIVERED: Cairns

PLACE HEARD: Sydney (via video link)

JUDGMENT OF: Strickland, Watts & Tree JJ

HEARING DATE: 11 November 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 17 July 2020

LOWER COURT MNC: [2020] FCCA 1910

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Schonell SC

SOLICITOR FOR THE APPELLANT: Rossi Simicic Lawyers

COUNSEL FOR THE RESPONDENT: Mr Johnston

SOLICITOR FOR THE RESPONDENT: Caldwell Martin Cox

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Anderson

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER: Helen Volk Lawyers

Orders

1. The appeal be dismissed.

2. Within four months of the date of these orders, the appellant mother pay the respondent father’s costs fixed in the sum of $8,558.63.

3. Within four months of the date of these orders, the appellant mother pay the Independent Children’s Lawyer’s costs fixed in the sum of $10,539.69.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 115 of 2020
File Number: WOC 886 of 2018

Ms Corson

Appellant

And

Mr Corson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. On 11 December 2018, for reasons then delivered (“the first reasons”), the primary judge made interim parenting orders (“the first orders”) relating to the parties’ two children, X (born in 2013, and hence presently 7 years of age) and Y (born in 2017, and hence presently 3 years of age) (“the children”). Pursuant to those orders, Mr Corson (“the father”) and Ms Corson (“the mother”) were to have equal shared parental responsibility for the children. Although the children would primarily live with the mother, they were to spend two periods, of three and nine hours respectively, of unsupervised time with the father each week. In addition, a suite of injunctions were ordered restraining the father from, amongst other things, accessing pornography, exposing himself, or sending or receiving sexually explicit messages, when the children were in his care. No appeal was brought by either party from those orders.

2. Subsequently, the child X made disclosures of being sexually abused by the father. We shall have more to say about those disclosures shortly, however, in consequence of them, in August 2019, the mother withheld the children from spending time with the father until, on 15 October 2019, further interim orders were made which varied the first orders by requiring that the father’s time with the children be professionally supervised, and not occur at the father’s home (“the second orders”). Those variations were made by consent, albeit without admission of any wrongdoing by the father.

3. Finally, after a contested hearing on 1 July 2020, on 17 July 2020, for reasons then delivered (“the second reasons”), the primary judge made further interim parenting orders (“the third orders”), extending the supervision of the father’s time with the children for a further eight weeks, but thereafter reverting to the arrangement of 12 hours of unsupervised time each week, established by the first orders.

4. From the third orders, the mother now appeals, which appeal is resisted by both the father and the Independent Children’s Lawyer. For the reasons which follow, the appeal fails.

Background

1. The father is presently 44 years of age, and is an educator by profession. The mother is presently 40 years of age, and is also an educator.

2. The parties commenced cohabitation in November 2003, married in 2004, separated under the same roof in February 2018, and physically separated in July 2018, with the mother remaining in the former matrimonial home and the father moving out.

3. Proceedings were thereafter commenced by the father on 3 September 2018 in relation to both parenting and property settlement matters.

4. Although post separation the father had continued to spend time with the children, albeit not as much as he wished, on 1 November 2018 the mother ceased all contact between the children and the father. She did so on the basis that she asserted that the father presented an unacceptable risk of abuse to the children, although in the interim hearing before the primary judge on 19 November 2018 (which resulted in the first reasons and the first orders), she explicitly eschewed the suggestion that the father posed any direct risk of sexual harm to either child.

5. As we shall shortly discuss in greater detail, in the first reasons, the primary judge, insofar as he dealt with the question of the father’s time with the children, concluded “that any risk [posed by the father] to the children can be minimised and managed by limiting the [f]ather’s time with them and restricting his behaviours, and that there is no necessity for the [f]ather’s time to be actually supervised” (first reasons at [42]).

6. Time between the children and the father pursuant to the first orders ensued but, as we have mentioned, in August 2019, was suspended by the mother because of disclosures of alleged sexual abuse by the father made by X. That resulted in the second orders, which were, as we have said, agreed to by the father without admission of any wrongdoing by him.

7. X’s several disclosures were investigated by the relevant New South Wales authorities on two occasions in 2019, however no determination was made that the father posed an unacceptable risk of harm to her (second reasons at [41]) and the investigations were closed.

8. On 21 April 2020, the report of Dr B, a forensic clinical psychiatrist who was appointed single joint expert in the case, was released to the parties. We will need to traverse aspects of that report in due course.

9. In the 1 July 2020 interim hearing before the primary judge, the father contended that there should be orders that his time with the children revert to being unsupervised, and ultimately move, in a relatively short space of time, to include overnight time. For her part, the mother proposed that the children continue to spend supervised time with the father. The Independent Children’s Lawyer proposed that the father’s time revert to unsupervised, but its quantum be as per the first orders. Necessarily therefore the Independent Children’s Lawyer was not in conflict with the father in relation to whether his time be supervised, but was as to the progression and ultimate point of culmination of that time.

10. As we have indicated, in substance the primary judge adopted the proposal of the Independent Children’s Lawyer, save that his Honour continued supervision of the father’s time for a further eight weeks, the rationale being that time would allow the mother to obtain therapeutic assistance to adapt to the order for unsupervised time.

The appeal generally

1. The mother’s Notice of Appeal filed 13 August 2020 extended to five grounds. However, Grounds 1, 3 and 4, all of which challenge the adequacy of the primary judge’s reasons, were argued collectively, and the other two grounds argued discretely. It is convenient in these reasons to also adopt that structure.

2. However before doing so, it is useful to restate the principles governing appeals from discretionary judgments as articulated by the majority of the High Court in House v The King (1936) 55 CLR 499 (“House v The King”) at 504–505 as follows:

   …The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Grounds 1, 3 and 4

1. These grounds provide as follows:

   1.That His Honour erred in failing to give reasons or failed to give adequate reasons for the Orders that he made.

   …

   3.That His Honour having identified the submissions made by the Appellant at Judgment paragraphs 32 and 33 erred in failing to give any reasons addressing why he rejected those submissions.

   4.That His Honour in having determined that the Court had ‘to evaluate the least worst outcome for the children’ (Judgment paragraph 20) erred in failing to give reasons why the least worst outcome was unsupervised time.

   (As per the original)

2. The test for the adequacy of reasons has been articulated in a number of cases. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the test propounded by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18 as follows:

   The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —

   (a)the appeal court is unable to ascertain the reasoning upon          which the decision is based; or

   (b)justice is not seen to have been done.

   The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.

3. However, it is not necessary for a judge who is exercising a discretionary judgment to detail each fact which he has found to be relevant or irrelevant, nor is a judge required to make an explicit finding on each disputed piece of evidence (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378 at 386 per Mahoney JA).

4. His Honour explicitly, on several occasions, identified in the second reasons that the task confronting him was one of risk assessment (at [22], [26] and [41]).

5. For her part, the mother contended that the father posed such a risk of harm to the children, which, unless mitigated by strict supervision, was otherwise unacceptable. Both the father and the Independent Children’s Lawyer denied that the father posed a risk which required his time to be supervised, but their proposals differed as to the amount of unsupervised time which the children should spend with him.

6. The mother also argued that supervision would allay her fears that the father may sexually abuse the children when spending time with them, and so would mitigate against the risk she might “emotional[ly] collapse” (Transcript 1 July 2020, p.12 lines 4-11), or that her hypervigilance might result in her questioning of the children, or otherwise undertaking investigations, after they returned from the father (Transcript 1 July 2020, p.12 lines 14-17). Whilst full transcript of the father’s submissions before the primary judge was unable to be obtained, we take it that the father and the Independent Children's Lawyer did not accept that those arguments provided a significant basis for supervision. Rather, the father and the Independent Children’s Lawyer contended, consistent with Dr B’s opinion, that the mother’s emotional distress and hypervigilance ought be addressed by therapy.

7. Many authorities give some guidance as to what comprises an unacceptable risk, and particularly the relationship between any such risk and the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N and S and The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   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 a particular case fall, and to explain adequately their findings in this regard.

8. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings in the context of allegations of sexual abuse of a child. At 76 and 78 the High Court said as follows:

   But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.

   …

   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) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 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.

9. In Deiter & Deiter [2011] FamCAFC 82 at [61] the Full Court said:

   The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

10. With those principles in mind, it is useful at this point to set out pertinent aspects of the second reasons. First, as we have just mentioned, by the time of the 1 July 2020 hearing, it was not only the father who was identified as posing a risk of harm to the children, but also the mother. That was because the mother was of the view (albeit on “no known objective basis” at [42]) that the father “had sexually abused X, was grooming her for the purposes of future sexual abuse, and will continue to pose a risk to X” (at [26], first dot point). In the course of assessing those risks, the primary judge extensively referred to Dr B’s single expert report. Indeed it may fairly be said that to a considerable degree, the primary judge structured the second reasons largely as a commentary on, and critique of, Dr B’s evidence.

11. At [3] of the second reasons, the primary judge incorporated “matters of background” and “appropriate law” from the first reasons. At [26], fourth dot point, the primary judge generally refers to the first reasons in the context of the history of the father acting inappropriately with respect to his sexual behaviours, his interpersonal relationships with adult female work colleagues and the mother’s reaction to the father’s behaviours, making specific reference to [37] of the first reasons. Dr B opined that this behaviour of the father, “no doubt, would have humiliated the [m]other, who would have felt disgusted about the [f]ather’s sexual behaviours which included sending explicit video footage of himself masturbating to work colleagues” (at [26], fourth bullet point).

12. It is useful then to recite some background matters contained in the first reasons as follows:

    29.The Mother raised a number of specific concerns about the Father. X disclosed that her father sat with his legs open, and that her father had his penis out. The Mother alleges that the Father has walked around naked in front of X, and responded aggressively when the Mother remonstrated with him. The Mother further contended that the Father regularly viewed pornography on his mobile phone and laptop, and received and responded to sexually explicit messages in his workplace as an educator, even when training children’s sports games. The Mother contends that X was able to access a video of animals mating through YouTube, on the Father’s mobile phone. Her concern is that the Father found this to be humorous, and could not appreciate that X had been exposed to inappropriate material for a girl her age. The Mother contended that the Father continued to kiss X on the lips, despite X indicating her dislike of this. Moreover, the Mother contends that on 18 May 2018, the Father filmed himself masturbating and sent the video to a third party, all whilst he was located on the lounge opposite the children’s bedrooms. The Mother’s concern was that X would wake up and be exposed to the Father’s behaviour.

    30.The Mother also relied on information derived from the Father’s employment records which indicated that he had been the subject of a number of formal and informal complaints by female colleagues, over an extended period of time, in relation to inappropriate conduct. The conduct included inappropriate comments to female colleagues with respect to oral sex and unwarranted sexualised conversations, and the Father sending two videos of himself masturbating.

    31.The Mother deposes to X engaging in sexualised behaviour, including repeatedly touching her vagina through her underwear and lying with her legs open whilst facing her brother. In her submissions, the Mother seemed to emphasise that she was not alleging that X had been sexually abused, but rather that the risk to her arose from the Father’s poor boundaries, and the risk of her being exposed to inappropriate behaviour and/or content whilst in the care of the Father.

    32.The Mother’s case emphasised that the risk to the children was exacerbated by the father continuing his behaviour in the workplace despite disciplinary action, and his dismissive response to the Mother’s concern.

    33.The Father disputes the characterisation of his behaviour as inappropriate towards his children. He asserts that the children never have, and never will be exposed to inappropriate material via their father. He believes that the cause of the Mother’s resistance to him spending time with the children is her anxiety and possible depression. He denies ever having exposed himself to the children, even accidentally. He agrees that X has been touching her vagina through her underwear, and deposes to X having said to him that she is itchy, or needs to go to the toilet. He says he has never seen X laying, or sitting, with her legs open towards Y. Nonetheless, he accepted that he does occasionally view pornography, usually at night, and when he was alone. He agreed that between 16 and 24 May he received text messages from a female who he had known for several years, which were very personal in nature, and which were in fact reproduced in annexures to the Mother’s Affidavit. He insists that at no time did the children see the images, nor were they in his presence when he viewed the images.

    34.The Father conceded that there were workplace complaints, but professed to not being aware of the specific allegations. Indeed, he contended that the allegation and subsequent investigation was as a result of the Mother’s intervention through her solicitor.

    35.The Father agrees that X was watching a YouTube clip on his mobile phone. He was allowing her to watch a clip of a professional bull riding but, apparently, and unbeknownst to him, she then clicked onto another video of a bull attempting to mount a cow. He explained to X that it was two cows playing.

1. It was against that background that [36] and [37] appear in the first reasons, under the heading “Is there a risk of harm to these children if they spend unsupervised time with their father?”, as follows:

   36.There is a difference between a parent undertaking conduct that another parent might find to be unacceptable, and indeed possibly repulsive, and that same activity presenting an unacceptable risk of harm to children. It was incumbent on the Mother to assist the Court in understanding how behaviour which is clearly socially inappropriate, and possibly even repulsive, amounted to an identifiable risk to the children of both the Father and the Mother. The Mother conceded that the risk to the children was not that the Father would sexually abuse them. The risk was framed in terms of being inappropriate boundaries, but it was hard to understand why, even if the Court accepts (as it does) that the Father’s behaviour was demonstrative of inappropriate personal boundaries, that this presented a risk of harm to his own children. There is no evidence that he ever masturbated in front of children, let alone his own children. There is no evidence that his sexting involved children in any way. There was no evidence presented before the Court to suggest that his alleged inappropriate, perhaps even lewd, behaviour towards colleagues at work somehow presented a risk to anyone’s children, let alone his own. Even the Mother’s case seemed to contend that the Father was no more than an occasional user of pornography, and even joining the dots of her case, this seemed to be in the context of self-gratification. The risk to the children was depicted in only the most indirect of terms.

   37.None of the above comments should be misunderstood as some tacit acceptance, or legitimisation, of the Father’s conduct. Indeed, the Court may well share whatever feelings of revulsion the Mother has about what the Father has done, or is alleged to have done. But that is irrelevant.

2. X’s 2019 disclosures were extensively considered in the expert report of Dr B, who conducted two rounds of interviews, the first on 19 August 2019, and the second on 14 April 2020. At paragraph 223 of her report, she noted:

   Between my initial interviews and observations and my second interviews, there was an intense escalation of allegations regarding the father and risk of sexual harm to X. The mother said her conviction that X had been sexually abused was firming around the time that I initially interviewed her. On her second interview with me [in April 2020] she said that after her initial interview with me, she reflected on various things that X had said and done and firmly developed the belief that X had definitely been sexually abused by her father. By the time of the second interview, the mother’s position had crystallised to the extent that she thought the children should have no contact with their father. She opined that if the court ordered unsupervised contact between the father and the children that she would “not send them”.

3. At paragraphs 227–233 Dr B traversed some of the detail of X’s 2019 disclosures as follows:

   227. In my opinion, there is no indication that the father has posed any direct risk of sexual harm to either of the children, including X. Whilst I have numerous concerns about the father’s personality and interpersonal functioning. I do not think he has any specific risk factors with respect to sexual abuse of children. There is no indication that the father has ever posed a direct risk of sexual abuse of any children, including his own children. I think that X’s behaviour and statements may have multiple causes including: acting out/behavioural regression as a result of stress or maladjustment to her parents’ separation; learned behaviours in response to behavioural and/or emotional reinforcement; exposure to sexualised material such as pornography; a response to multiple investigations and formal and informal interviews in relation to topics of sexual abuse, genitalia and her father generally or as a result of explicit or direct misinformation, or any combination of these factors.

   228. I have formed the view that understandably the mother has a complete lack of trust with respect to the father particularly given that she discovered the depth and extent of his sexual behaviours after the separation. In my mind, the mother’s views of the father have become so contaminated by her emotional repulsion at his actions, that his sexual behaviours have, in her mind, escalated risk to a degree that is not reality based.

   229. I am conscious of the escalation and development of the mother’s views and the ongoing utterances and behaviours of X. The mother initially reported that X had disclosed sexual abuse by her female cousin, who was at the time 12 years of age. The mother alleged that X had reported that her cousin had digitally penetrated her vagina. The mother took X to the GP who referred her to Suburb L Hospital where she was examined, including having a vaginal swab taken in relation to potential urinary tract infection. X was interviewed by specialist detectives from JIRT in January 2019 but made no disclosures of abuse and JIRT closed their investigation.

   230. I have reviewed this interview with X. X reported that she had a “sore wee wee” and that her mother had told her that she does not wash it properly. She made no disclosures and eventually asked a series of leading questions, including whether anybody had touched her on her “private part” and she responded “no” and that “only mummy washed it”. She was then asked leading questions in relation to her cousin and no disclosure of any abuse was made by X.

   231. I have also carefully reviewed the notes of X’s psychologist where the issue of potential sexual abuse was raised on several occasions. The psychologist’s notes indicate that X was subjected to often detailed, leading and suggestive forensic questioning but that she did not disclose any sexual abuse of any kind.

   232. The mother remained concerned regarding X and her behaviour. The mother deposed that in March 2019 X made further disclosures regarding her cousin digitally penetrating her vagina. The mother said that in May 2019 X disclosed “Daddy touched me on the wee wee”. The mother said that although she was concerned about this that she did not make a report because her solicitor cautioned her against it. The mother deposed that on 17 June 2019 X reported that X told her that when her father touched her “wee wee” that it hurt. The mother did not make a report at that time.

   233. The mother said that after her interviews with me on 19 August 2019 she reflected that collectively these previous disclosures and behaviours were indicators that X had been abused. At her initial interview with me, the mother reported that she was sure that X had been sexually abused by the father. That night, the mother reported her concerns to FACS. As a result, X was interviewed by JIRT on 30 August 2019 for the second time. She had been interviewed by me 11 days prior to that. I have viewed the recording of this interview in its entirety. Before the detectives had introduced the interview process and established that X understood the difference between truth and lies, she had told the detectives that her father touched her “wee wee”. She presented as rehearsed and scripted. Her timeline and details were inconsistent and at times, improbable. The mother and maternal grandmother deposed that on the evening of these interviews that X displayed sexualised behaviour and, on questioning, said that her father puts his penis on her vagina. The mother and maternal grandmother reported these concerns to FACS. However, FACS and JIRT closed their investigations and concluded that sexual abuse was not substantiated. The mother told me that she was instructed that further interviewing of X would be psychologically harmful.

4. At the fifth and sixth bullet points to [26] of the second reasons, the primary judge said as follows:

   ·At paragraph 226, however, Dr B concludes that having very carefully considered the risk to the children of harm, and specifically harm related to the Father’s sexual activities, and taking into account all of the material before her (which is identified in this paragraph), she approached this exercise:

   [226]…fastidiously, with an open mind as to the possibility that X may have been sexually abused by her Father.

   ·However, at 227, Dr B states, and this time it is important to reproduce the paragraph:

   … (see above at [31])

   It is important for the Mother to understand that the Court has, independently of Dr B, and based on the totality of the material before it, also meticulously considered the issues of risk to the children and has come to the same conclusion as Dr B. The Father’s past behaviour was disgusting and inappropriate. Even if it were the case that Dr B was not fully appraised of his misconduct whilst working as an educator, all of that evidence was before the Court and it does not change the Court’s assessment that there is no risk of harm to these children that warrants the continuation, let alone the perpetuation, of supervised contact.

5. A little later, at the sixteenth bullet point to [26], his Honour returned to the theme of the risk posed by the father as follows:

   ·At paragraphs 322-328, Dr B confirmed that there was no material available to her at that time to indicate that the Father posed a risk of sexual harm towards either of the children.  Whilst he had deficits with respect to appropriate personal boundaries and interpersonal relationships, these are unlikely to affect the co‑parenting arrangement and may also have a deleterious impact on his parenting.  However, there is no indication that he has ever been a risk of sexual harm to the children.  Notwithstanding that, the Mother is firmly of the view that he poses a direct and continuing risk.

6. Thereafter, under the heading “[d]iscussion,” his Honour traversed the arguments advanced by all parties as to the risk posed by the father, before turning to consider the “[o]rders in the best interests of the children.” Under that heading, at [39]–[42], his Honour said as follows:

   39.With great respect to the Mother, and those advising her, it is hard to make sense of her case. Her case at the first Interim Hearing was that there was no risk of harm of sexual abuse from the Father. By the present Hearing, based on evidence that was neither quantitatively nor qualitatively superior to that presented in the first Hearing, the substance of the Mother’s case was that the children should not have any time with their father unless supervised. The unexplained dichotomy was the Mother’s proposal at the Interim Hearing – continued supervised time – and the Mother’s clear, and unresiled comments to Dr B – that her real opinion was that the children should have no time with their father.

   40.What is the Court to make of this inconsistency? If the Mother truly believed that the Father presented such a risk to the children that he should have no contact with them whatsoever, and if that is the position she was going to press at a Final Hearing (for example), then why maintain a position that he should have supervised time? Moreover, the Mother’s case seemed to focus exclusively on the weaknesses in the Father’s case, without addressing any of the weaknesses in her own case, namely the adverse impact on X, in particular, of the Mother’s own behaviour.

   41.The harsh reality for these children is that at least 4 risk assessments have been conducted about them in the context of the allegations made about the Father’s inappropriate conduct. The JIRT team have made 2.  Now this Court has made 2.  Dr B conducted what was, in effect, a comprehensive risk assessment. Each of these risk assessments finds that there is no unacceptable risk of abuse of the children spending unsupervised time with their father. There are real concerns in the Court’s mind, as indeed identified by Dr B, that the Mother is not prepared to accept any risk assessment except her own.

   42.Doing the best the Court can, having regard to all the circumstances of this case, the Mother’s subjective beliefs about the risk of harm presented to the children by the Father have no known objective basis. The real issue in this case, pending a Final Hearing, is how the Mother can cope with and adjust to an environment in which X and Y will be regularly spending time with their father on an unsupervised basis. The onus is on her to obtain therapeutic assistance.  The rationale for giving the Mother 8 weeks before the time is extended is to enable her to obtain such therapeutic assistance. The Court notes that at paragraph 310 of Dr B’s Report she opined that the Mother did not suffer from any underlying psychological issues of significance. This hopefully bodes well for her engagement in therapy.

7. Turning then to the challenges raised by the grounds of appeal, within this group, we are not satisfied that there was some general inadequacy of exposure of reasoning by the primary judge. His Honour extensively referred to and commented upon the evidence of Dr B in the form of her single expert report. Further, his Honour traversed the parties’ evidence and their particular positions, and ultimately concluded that the risk posed by the father as a result of the further allegations did not warrant continued supervision of his time with the children.

8. Insofar as under Ground 1, challenge was made to the adequacy of the reasons for the assessment of risk in relation to the father, where his Honour states at the sixth bullet point to [26] that “the Court has, independently of Dr B, and based on the totality of the material before it, also meticulously considered the issues of risk to the children and has come to the same conclusion as Dr B”, it is claimed that there is inadequate exposure of reasoning for that conclusion. However, that contention has no merit. It is unnecessary to set out all of the commentary which the primary judge has made on Dr B’s observations in [26] of the second reasons, but it is clear that commentary is reflective of his Honour’s own consideration of the matters addressed by Dr B, rather than some wholesale acceptance of her evidence.

9. Particularly, the three conclusions of Dr B recited by the primary judge in the sixth bullet point to [26] are expressly there said to also be his Honour’s conclusions. We are satisfied that sub-paragraph adequately exposes the primary judge’s reasoning. In any event, even if that is not correct, the passages at [6] and [37]–[42] adequately explain again the reasons for the primary judge’s assessment of risk relating to the father.

10. Insofar as it was contended under Ground 1 that the primary judge failed to explain why supervision was not an appropriately conservative response to the risks at play, we are well satisfied that the primary judge’s reasons are adequately exposed at [30]–[36]. Particularly, his Honour was mindful of the risk which the untested nature of Dr B’s evidence necessarily gave rise to (at [33]) but was equally mindful of the risk to the children which the mother’s behaviours posed (at [33] and [36]). In balancing those risks, the primary judge clearly was of the view that the latter risk told against continued supervision (at [36]).

11. Ground 1 fails.

12. Ground 3 asserts a failure to give any reasons addressing the contentions of the mother stated at [32] and [33] of the second reasons. Those paragraphs provide as follows:

    32.The Mother’s case urged the Court to proceed carefully, cautiously, and not ignoring the Mother’s serious assertions. It was contended that if there was a possibility that the Father had in fact sexually abused X, then this possibility was a legitimate basis for coming to a conclusion at an interim level that there was an unacceptable risk of harm to her. The children were vulnerable because of their young ages, their limited ability to communicate, and their limited ability to protect themselves and each other. The Court was reminded that the fact of X’s disclosures was not in dispute, nor was the evidence about her sexualised behaviours. The Father’s appalling behaviour would cast doubts about his trustworthiness. It was submitted that the Father’s disclosure about his inappropriate behaviour in his employment was not complete before the Court during the Interim Hearing, a matter thus casting further doubt on his reliability.

    33.Perhaps the most important point made by Senior Counsel for the Mother was that if the Court accepts Dr B’s risk assessment, but it turns out to be wrong, then there was the risk of irreparable harm to the children. If Dr B is correct, however, the only risk that the children are exposed to is the loss of time with their Father.  Ultimately, the Mother’s contention was that the least risk was continuing the existing arrangement for supervised time. The Court could not underestimate the significance of the risk of the Mother’s emotional collapse.

13. The answer to this ground is that once the primary judge found that the father did not pose a sufficient risk of harm to the children as to be deemed unacceptable, the contentions traversed at [32] and [33] necessarily would be insufficient to require the imposition of supervision by reference to the matters which the mother raised referable to the father. We are satisfied that there was a sufficient implicit traverse of those arguments in both the review of Dr B’s evidence at [26], and otherwise at [37]–[42]. It is plain that the primary judge was of the view that the risk the mother posed to the children extended beyond “the loss of time with their father”.

14. Ground 3 fails.

15. As to Ground 4, whilst it is true that the primary judge had earlier identified that the task confronting him was to choose the least-worst outcome, we are satisfied that his Honour’s reasons, taken as a whole, explain why the outcome which he determined was in the children’s best interests, represented such a result. Particularly, it enabled the mitigation of “the potentially disastrous scenario confronting these children, i.e. that one of their parents will be removed from their lives” (at [38]). That was because, if the mother remained incapable of modifying her behaviour so as to permit the children to have a relationship with the father, then absent any finding the father posed an unacceptable risk of harm to the children, it was likely that she would be deprived a relationship with them. The primary judge specifically identified that one of the benefits of the orders would be to, in effect, compel the mother to confront her own beliefs and behaviour, and to seek therapeutic assistance in modifying them (at [36]). We are well satisfied that is a sufficient explanation as to why this was the least-worst outcome for these children.

16. We have previously sufficiently addressed the complaint in relation to a lack of explanation as to why unsupervised time was the least-worst outcome, when discussing Ground 1.

17. Ground 4 fails.

Ground 2

1. This ground provides as follows:

   2.That His Honour having determined that it was necessary to undertake a ‘risk assessment exercise’ erred by not setting out the risk assessment exercise he undertook.

   (As per the original)

2. In large part, this ground has already been traversed in discussing Grounds 1, 3 and 4. His Honour patently adverted to the potential harmful outcome of sexual abuse of one or both of the children, explicitly concluded that “irreparable harm” would ensue to the children if they were sexually abused (at [33]), but concluded that there is no unacceptable risk of abuse of the children spending unsupervised time with their father (at [26], sixth bullet point and [41]). His Honour must be taken to have been cognisant that the factors which could increase or decrease the risk included the continuation of the injunctions which his Honour had earlier made in the first orders, as explained at [44] of the first reasons. His Honour was well conscious of the option of supervision, but concluded that the risks presented by the father did not warrant supervision in this case, and insofar as supervision might mitigate against the risks posed by the mother, outweighed by the likelihood that unsupervised time might, on a practical level, force her to seek appropriate assistance, and thus avoid the risk that the children might lose their relationship with her (at [42]).

1. Therefore there is no merit to this ground, and it fails.

Ground 5

1. This ground provides as follows:

   5.That in circumstances where neither the Father nor Dr B were cross examined His Honour’s exercise of discretion was plainly wrong in making an order for unsupervised time.

   (As per the original)

2. This ground may be shortly dealt with. As a general proposition, the absence of cross-examination of a single expert witness who opines that supervision of time is not required, in the face of a contention by a party that supervision is required, could not possibly preclude the making of an order for unsupervised time. Were it otherwise, the mere existence of an allegation and contention would trump all other evidence.

3. Whilst senior counsel for the mother conceded the foregoing observation, he argued that on the facts of this case, nonetheless the mother’s contentions should, by way of a conservative response, have led to orders for supervision. We disagree. That is because the task of the primary judge was, on the one hand, to balance the risk that Dr B was mistaken, such that the father did pose a direct risk of sexual harm to the children, with the risk posed by the mother on the other hand. That assessment was exquisitely one to which, absent error of the kind identified in House v The King being established, is not susceptible to appellate interference.

4. This ground of appeal is without merit.

Outcome

1. Since no ground of appeal is established, the appeal therefore fails, and must be dismissed.

Costs

1. In the event that the appeal failed, both the father and the Independent Children's Lawyer sought an order that the mother pay their costs. Whilst the mother opposed such an order by reference both to s 117(1) of the Family Law Act 1975 (Cth) (“the Act”), and her financial circumstances, as to the latter, she sought that, if an order for costs were made, it be payable within four months (a course not opposed by the Independent Children's Lawyer or the father). We assume from that submission that therefore such an order would not be beyond the mother’s financial resources.

2. In relation to the Independent Children's Lawyer's application for costs, the mother suggested that the amount awarded should be limited to the amount of the grant of legal aid. However, s 117(5) of the Act obliges us to disregard the fact that the Independent Children’s Lawyer is funded under a legal aid scheme, and thus we do not accept this submission.

3. The mother has been wholly unsuccessful in the appeal. The father has thereby been put to expense.

4. We are satisfied that, in this case, the circumstances justify an order for costs, and that the amounts claimed by the father (as amended during the appeal hearing) and the Independent Children's Lawyer are appropriate. There shall therefore be orders that those costs be paid by the mother within four months of these orders.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Watts & Tree JJ) delivered on 10 December 2020.

Associate:

Date:  10 December 2020