DAVIDSON & DAVIDSON

[2010] FamCA 5

FAMILY COURT OF AUSTRALIA

DAVIDSON & DAVIDSON [2010] FamCA 5

FAMILY LAW  -  CHILDREN  -  final parenting orders  -  Magellan  -  residence  -  parental responsibility  -  allegations of physical, sexual and emotional abuse by father and paternal family  -  whether unacceptable risk of abuse  -  no finding of abuse or unacceptable risk  -  children to live with father  -  time with mother  -  injunctions.

Family Law Act 1975 (Cth), Division 12A, s 4(1), s 69ZT(1) and (2), s 60B(1), s 60CC, s 60CC(2), s 61DA(2), s 61DA(2) and (4), s 65DAA(1) and (2), s 91B
Evidence Act 1995, s 59, s 69
Children Youth and Families Act 2005 (Vic)

Hartford and Ansilda [2009] FamCA 23
Hemiro and Sinla [2009] FamCA 181
Milne & Fairhead [2006] FCWA 89
State of New Jersey  v  Michaels 642 A.2d 1372 (N.J., 1994)

HUSBAND: Mr Davidson

WIFE: Ms Davidson

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2243 of 2007

DATE DELIVERED: 14 January, 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: BROWN J

HEARING DATE: 9, 10, 11, 12, 13, 16, 17, 18, 19, 20 and 23 November, 2009

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms. Benjamin

SOLICITOR FOR THE HUSBAND: Richard Calley Family Lawyers

COUNSEL FOR THE WIFE: Ms. Agresta

SOLICITOR FOR THE WIFE: Schetzer Constantinou

COUNSEL FOR THE ICL Ms. Boymal

INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

1. That all previous orders and injunctions in respect of the children N and L both born in October, 2003 be discharged. 

1. That N and L live with the husband and he liaise with the Deputy Manager of Child Dispute Services in this registry as to the time he may collect N and L from the child minding room this day. 

1. That  IT IS REQUESTED  that Ms B forthwith meet with N and L and explain to them the effect of the orders made this day and save pursuant to a request by the Deputy Manager of Child Dispute Services or Ms B, N and L not be removed from the child minding room by either party. 

1. That until 12 February, 2010 N and L communicate with the wife by telephone on each Monday, Wednesday and Friday, such telephone calls to be initiated by the wife between 6:00 pm. and 6:30 pm. and facilitated by the husband  PROVIDED THAT:

   (a)each telephone call last no longer than fifteen minutes;  and

   (b)the husband be at liberty to listen to the telephone conversations and, in his absolute discretion, terminate the call if he believes it represents a risk to the emotional or physical health of either or both children. 

1. That commencing from 13 February, 2010 the wife spend time and communicate with N and L as follows :

   (a)from 9:00 am. until 1:00 pm. on Saturday 13 February, 2010;

   (b)from 9:00 am. until 1:00 pm. on Sunday 14 February, 2010;

   (c)from 9:00 am. until 5:00 pm. on Saturday 27 February, 2010;

   (d)from 9:00 am. until 5:00 pm. on Sunday 28 February, 2010;

   (e)from 9:00 am. on Saturday 13 March, 2010 until 5:00 pm. on Sunday 14 March, 2010;

   (f)from 5:00 pm. on Friday 26 March, 2010 until 5:00 pm. on Sunday 28 March, 2010;

   (g)thereafter, during school terms, on each third weekend, from the conclusion of school on Friday until 5:00 pm. on Sunday, or, if Monday is a public holiday, Monday, commencing on the first weekend in the second school term 2010 and each term thereafter;

   (h)for five days (four nights) in the first school term holiday in 2010, at times to be agreed and, failing agreement, from 10:00 am. on Thursday 8 April, 2010 until 5:00 pm. on Monday 12 April, 2010;

   (i)for eight days (seven nights) in each of the second and third school term holidays in 2010 at times to be agreed and, failing agreement, from 10:00 am. on the first Saturday of the holiday period until 12:00 noon on the following Saturday;

   (j)commencing in the 2010/2011 long summer holidays, for one half of each school holiday period at times to be agreed and, failing agreement :

   (i)the second half of the 2010/2011 long summer holidays, and each alternate year thereafter;

   (ii)the first half of the 2011/2012 long summer holidays and each alternate year thereafter;

   (iii)the first half of all term school holidays which commence in 2012 and each alternate year thereafter; and

   (iv)the second half of all term school holidays which commence in 2011 and each alternate year thereafter;

(k)if N and L would not otherwise be with the wife on their birthday, for a period on the children’s birthday, at times to be agreed and, failing agreement :

(i)if the birthday falls on a school day, from the conclusion of the school day until 7:00 pm.;  and

(ii)if the birthday falls on a non-school day, from 10:00 am. until 2:00 pm.;

(l)if the children would not otherwise be with the wife on Mothers’ Day, from the conclusion of school on the preceding Friday until 5:00 pm. on Mothers’ Day;

(m)by telephone on each Tuesday and Friday on which the children are not with the wife, the wife to initiate the call and the husband to facilitate N and L taking it;

(n)at such other times as are agreed between the parties. 

1. That notwithstanding anything to the contrary in these orders and subject to any agreement to the contrary between the parties, if N and L would be with the wife on Fathers’ Day, they shall be returned to the husband at 10:00 am. on Fathers’ Day, in lieu of 5:00 pm.

1. That the husband encourage N and L to telephone the wife at reasonable times and facilitate such telephone calls.

1. That the wife be and is hereby restrained, by herself, her servants and agents from removing N and L from the husband’s possession or the possession of any person with whom he has placed them, save pursuant to these or subsequent orders or the husband’s specific agreement. 

1. That when N and L are with the wife pursuant to these or subsequent orders, or with the husband’s specific agreement, the husband be and is restrained by himself, his servants and agents from removing N or L from the wife’s possession or the possession of any person with whom she has placed them. 

1. That the mother’s time with N and L pursuant to paragraphs (4), (5)(a) to (e) and (k) hereof be spent in Albury/Wodonga or its environs. 

1. That subject to any agreement between the parties to the contrary, changeovers which do not occur at the conclusion of a school day take place :

   (a)outside Albury Police Station for time pursuant to paragraphs (4), (5)(a) to (e) and (k) hereof;  and otherwise

   (b)outside Seymour Police Station.

1. That the husband do all things reasonably necessary to ensure that his brother, Mr T Davidson, not attend a changeover or be in the vicinity of a changeover point during any changeover. 

1. That the parties use a communication book to inform each other of matters referrable to N and L’s welfare and the communication book accompany the children at changeovers. 

1. That the parties have equal shared parental responsibility for N and L save that the husband have sole parental responsibility for decisions relating to :

   (a)the children’s education;  and

   (b)the children’s health, including their psychological and emotional health.

1. That the wife be and is hereby restrained by herself, her servants or agents from taking or allowing any other person to take N or L for any medical examination or any therapeutic intervention by any medical practitioner, psychologist, social worker, counsellor or like professional which relates in any way to an allegation the children have been abused (sexually, physically or emotionally) by the husband or by any other person when in his care, save pursuant to a request from the husband, a protective worker employed by the Department of Human Services in Victoria or New South Wales or a member of a State or Territory police force. 

1. That the wife be and is hereby restrained by herself, her servants and agents, from taking N or L to a psychiatrist, psychologist, counsellor or like professional when they are with her, save with the written consent of the husband. 

1. That as soon as practicable the husband advise the wife of the name, address and telephone number of each medical practitioner, psychologist, social worker, counsellor or like professional consulted by N or L and authorise the professional to discuss the children’s presentation, treatment and prognosis with the wife  PROVIDED THAT  the husband alone shall be responsible for decisions relating to all treatment or other interventions undertaken by the professional. 

1. That if the wife takes N or L to a medical practitioner when they are spending time with her, she advise the father within 24 hours of the name, address and telephone number of the medical practitioner and authorise the medical practitioner to speak with the husband, and in the event no such authority is provided, paragraph (14) hereof shall stand as such authority and the husband be at liberty to provide a copy of these orders to the medical practitioner. 

1. That if N and L are to be enrolled at a school other than J Primary School, the husband provide to the wife in writing the name and address of the school at which they have been or are to be enrolled for the 2010 school year, by 22 February, 2010 and thereafter keep her advised of any change in the school at which either child is enrolled. 

1. That from the commencement of the second school term in 2010 the wife be at liberty to attend school events, activities and functions routinely attended by parents  PROVIDED THAT  the wife may not remove N or L from the school, or such other place at which the event, activity or function is held, save to spend time with the children pursuant to these orders or subsequent orders, or with the written agreement of the husband. 

1. That as soon as practicable the husband authorise the principal of each school attended by N and L to provide to the wife, at her request and her expense (if any), by ordinary mail, copies of :

   (a)each order form for school photos of the children;  and

   (b)each school report for the children. 

1. That as soon as practicable the husband provide a sealed copy of the orders made herein and a copy of the judgment to the principal of each school attended by N and L and, in the absolute discretion of the principal, the judgment may be provided by him or her to any teacher or other professional involved with N or L through the school.

1. That each of the husband and wife be and are hereby restrained by themselves, their servants and agents from:

   (a)discussing the evidence adduced in the proceedings or the judgment with N or L or in the presence or hearing of the children or allowing anyone else to do so;  and

   (b)denigrating the other or members of the other’s family in the presence of hearing of the children or allowing anyone else to do so. 

1. That until further order the husband and wife by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the children N and L both born in October, 2003 or either of them from the Commonwealth of Australia  AND IT IS FURTHER ORDERED  that the Australian Federal Police place the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until further order of the Court. 

1. That as soon as practicable the Registry Manager serve a sealed copy of these orders by facsimile and ordinary prepaid post upon the proper officer of the Australian Federal Police at Melbourne,  AND IT IS REQUESTED  that Australian Federal Police give force and effect to this order. 

1. That the independent children’s lawyer serve a sealed copy of these orders and the judgment on the Department of Human Services (Victoria) (“DHS”) and an employee of DHS or legal practitioner employed by DHS shall be at liberty to provide a copy of the orders and judgment to :

   (a)the Children’s Court, in the event an application is brought by DHS in that jurisdiction;

   (b)any member of a police force involved in an investigation of any subsequent report about N or L;  and

   (c)any medical practitioner, psychologist, social worker, counsellor or like professional to whom DHS refers N or L in the course of an investigation of any subsequent report about them. 

1. That each of the parties be at liberty to provide a copy of the judgment to any employee of DHS, member of a State or Territory police force or Children’s Court who, or which, is investigating or hearing a case involving any allegation of neglect or abuse of N or L. 

1. That a copy of the judgment be provided to Dr. K and he be at liberty to provide it to the Psychologists’ Registration Board or any other person or entity to whom a complaint against him has been made, or is made in the future, by the wife.

1. That a copy of the reasons for judgment be provided to Ms. V of the Australian Childhood Foundation.

1. That a copy of the judgment may be provided to the following people or entities, if requested :

   (a)Dr. Y;

   (b)Dr. O;

   (c)CAMHS;

   (d)Ms. R;

   (e)Dr. M;

   (f)Ms. J;

   (g)Dr. E;  and

   (g)Ms. B.

1. That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal or further order. 

1. That documents produced pursuant to subpoena herein, and documents and other items marked as exhibits, be returned to the person or entity who produced them :

   (a)at the expiration of one month hereof;  or

   (b)in the event a Notice of Appeal is filed, pursuant to orders made in the appeal proceedings. 

1. That all extant applications be otherwise dismissed.

1. That these proceedings be removed from the List of matters awaiting finalisation.

1. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym  DAVIDSON & DAVIDSON  is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Table of Contents

INTRODUCTION

PROPOSALS

Father

Mother
Independent Children’s Lawyer

EVIDENCE
ASSESSMENT OF WITNESSES

Father

Mother
Father’s family
Lay witnesses called by mother
Ms. C
Ms. R
Ms. V
Ms. J
Dr. E
Dr. K
Dr. M
Ms. B

LEGAL PRINCIPLES

CHRONOLOGY

Meeting, marriage and the birth of the children

Violence
First application filed :  28 May, 2004
Proceedings before Morgan J.
Children’s time with the father after Morgan J’s orders
Things unsaid in communication books
Suspension of contact
Mother attends on Dr. MJ :  February 2007
Application filed by the father :  28 February, 2007
Mother raises L’s sexualised behaviour :  March 2007
Mother and children attend on Ms. F, psychologist : March 2007
Children spend two short periods with the father :  April 2007
Mother alleges L discloses sexual abuse by paternal uncle :  25 April, 2007
The parties and children see Dr. K :  27 April, 2007
Final parenting orders :  3 May, 2007
Weeks after consent orders of 3 May, 2007
Mother renews allegation of abuse :  May 2007
A notification is made to DHS:  12 June, 2007
Police interview N and L :  13 June, 2007
Father agrees to forgo a contact visit :  14 June, 2007
Children interviewed by DHS workers for the first time :  26 June, 2007
Friends of the mother contact DHS :  27 June, 2007
Contact with the father resumes :  28 June, 2007
Ms. AM meets with the mother and children :  9 July, 2007
Children attend Dr. O, paediatrician :  10 July, 2007
Children interviewed by DHS workers a second time: 7 August, 2007
Children interviewed by DHS worker a third time: 4 September, 2007
DHS close file :  7 September, 2007
Children’s behaviour between June 2007 and September 2008
Psychological assessment of N by Ms. P :  September 2007
Speech pathology assessment by Ms. DS:  October 2007
N has first consultation with Dr. M :  2 November, 2007
N has second consultation with Dr. M :  7 December, 2007
N’s third consultation with Dr. M :  6 February, 2008
Ms. AB’s (Anglicare) final report to DHS :  26 February, 2008
Grandfather tells L he will cut out his tongue :  March 2008
Mother and L consult Dr. RN, psychologist :  9 September, 2008
Involvement with CAMHS : 9 September to 19 September, 2008.
DHS investigation : 12 June to 7 September, 2008
Another notification is made to DHS :  11 September, 2008
Father’s last contact with children :  26 September, 2008
Assessment of L by CAMHS :  1 October to 30 October, 2008
L and N disclose sexual abuse to mother :  11 October, 2008
Father files an application in this court :  20 October, 2008
Police interview N and L again :  21 October, 2008
VATE taped interviews with N and L :  21 October, 2008
Other meetings with the police :  October 2008
Mother makes police statement :  22 October, 2008
Police apply for intervention order on behalf of mother, L and N :  23 October, 2008.
N wakes up and announces he is no longer autistic :  28 October, 2008
Release of CAMHS report :  30 October, 2008
N’s fourth attendance on Dr. M :  30 October, 2008
Father files application and the case is referred to the Magellan list :  27 November 2008
Ms. V speaks with Ldg. S/C Z :  12 November, 2008
Children commence counselling with Ms. R :  21 November, 2008
Ms. R meets with mother :  3 December, 2008
L has second session with Ms. R :  5 December, 2008
L has third session with Ms. R :  12 December, 2008
Notification to DHS :  4 December, 2008
Protective workers’ first interviews with children :  18 December, 2008 and/or 2 January, 2009
Protective workers’ second interview with children :  13 January, 2009
DHS report provided to the court:  22 January, 2009
L has fourth session with Ms. R :  30 January, 2009
N has second session with Ms. R :  4 February, 2009
Mother and children temporarily relocated after fires :  February 2009
L has fifth session with Ms. R:  18 February, 2009
DHS draws a best interests plan :  26 February, 2009
Ms. R sees L and N together :  18 March, 2009
N’s fifth consultation with Dr. M :  24 March, 2009
L’s seventh session with Ms. R :  25 March, 2009
N’s fourth session with Ms. R :  1 April, 2009
L has his eighth session with Ms. R :  8 April, 2009
N has fifth session with Ms. R :  22 April, 2009
L has ninth session with Ms. R :  29 April, 2009
Ms. R visits children’s kindergarten :  13 May, 2009
N has sixth session with Ms. R :  13 May, 2009
L has tenth session with Ms. R :  20 May, 2009
N has seventh session with Ms. R :  27 May, 2009
Dr. E’s assessments released :  9 June, 2009
L has eleventh session with Ms. R :  18 June, 2009
ACF assessment :  June to August 2009
Ms. V meets with the mother :  June and July 2009
Ms. V makes home visit :  13 July, 2009
Ms. J becomes L and N’s pre-school teacher :  13 July, 2009
Ms. R sees L and N :  15 July, 2009
Ms. B meets with the parties and children :    July 2009
L has thirteenth session with Ms. R :  22 July, 2009
Children spend time with the father and mother with Ms. B :  12 August, 2009
Ms. R sees L and N together :  19 August, 2009
Ms. V has individual sessions with L and N :  August 2009
Ms. R sees N and L :  2 September, 2009
Mother attends pre-school to collect Fathers’ Day artwork :  2 September, 2009
Children’s behaviour after seeing father on 12 August, 2009
Mother takes L to beautician for eyebrow wax :  about September 2008
Ms. V speaks with Ms. J :  4 September, 2009
Mother attends assessment feedback session with Ms. V :  7 September, 2009

L’s first therapeutic counselling session with Ms. V :  14 September, 2009
Family report of Ms. B is released :  16 September, 2006
Mother has first therapeutic session with Ms. V :  18 September, 2009
L’s second counselling session with Ms. V :  21 September, 2009
Children have final session with Ms. R :  23 September, 2009
L’s third counselling session with Ms. V :  28 September, 2009
Anonymous letter shown to Ms. V :  28 September, 2009
Ms. V contacts DHS :  28 September, 2009
Mother has second counselling session with Ms. V :  30 September, 2009
ACF worker allocated to N :  approx. October 2009
Mother telephones Ms. C :  About October 2009
L attends pre-school wearing lipstick, blusher and eye shadow :  September or October 2009
Further sessions with Ms. V :  October 2009
Pre-school field officer observes children :  29 October, 2009
N’s sixth consultation with Dr. M :  4 October, 2009
Suspension of counselling and interviews :  November 2009

ALLEGATIONS OF SEXUAL ABUSE

Paternal uncle and the bouncy bouncy game
L and the incident with SU
The father, paternal uncle and the sticky green/yellow/pinky-purple wees
Father letting N suck his tongue
Grandmother hitting, pinching or “smashing” children
Grandfather and the threat to cut L’s tongue out
L’s cross-dressing and identification as a girl

PRIMARY CONSIDERATIONS
ADDITIONAL CONSIDERATIONS

(a)     any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

(b)     The nature of the relationship of the child with:
(i)     each of the child’s parents;  and
(ii)    other persons (including any grandparent or other relative of the child);

(c)     the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

(d)     The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :
(i)     either of his or her parents;  or
(ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e)     The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(f)      the capacity of :
(i)     each of the child’s parents;  and
(ii)    any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;

(g)     The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(i)     the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(j)      any family violence involving the child or a member of the child’s family;

(k)     Any family violence order that applies to the child or a member of the child’s family, if :
(i)     the order is a final order;  or
(ii)    the making of the order was contested by a person;

(l)     whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)     any other fact or circumstances that the court thinks is relevant;

CONCLUSION

PARENTAL RESPONSIBILITY

ORDERS

Annexure “A”
Annexure “B”
Annexure “C”

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 2243 of 2007

Mr Davidson

Husband

And

Ms Davidson

Wife

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties have twin sons, N and L, who turned six in October, 2009.  They separated in late May 2004 when the children were seven months old.  Of the intervening five and a half years, litigation has consumed about twenty-seven months. 

2. On three separate occasions the parties have sought orders pursuant to the Family Law Act 1975. The first round of litigation commenced with an application filed on 28 May, 2004 and concluded on 30 March, 2005 when final orders were made by Morgan J. after a four day trial. A second round of litigation commenced on 27 February, 2007 and concluded when final orders were made, by consent, on 3 May, 2007. The proceedings before me commenced on 20 October, 2008 and culminated in an eleven day trial in November 2009.

3. In the first set of proceedings the mother initially sought to relocate the children’s residence to the U.S.A. but amended that to an application to relocate their residence from the Albury/Wodonga area, where they were born and where the parties lived, to a Co-operative Community in central Victoria.  Issues of the father’s psychiatric health and parenting capacity, and family violence, were raised.  However, the question before the court was not whether the father should spend time with the twins but how that time should be structured, which was in turn dependant on the outcome of the mother’s relocation application.  Her Honour also determined financial applications. 

4. In the second round of proceedings the mother alleged that the children had been adversely affected by contact with their father and complained of inappropriate sexualised play, initiated by their paternal uncle. 

5. In this, the third set of proceedings, those allegations are maintained and it is further alleged that the father and his brother have sexually abused N and L;  that the father’s mother has physically abused N and L;  and that the father and his extended family have been emotionally abusive to N and L. 

6. On 21 October, 2008 N and L were interviewed by police and the interviews video recorded.  Towards the end of L’s interview the following exchange took place. 

   POLICE :. . . Is there anything else you can remember about when this – this happened at Dad’s?

   L :Well, after could I write what you’ve said on the . . .

   POLICE :You can write some things down in my book in a minute when you – when we’ve finished our talk.

   L :                 Yeah.

   POLICE :But we just need to tell everything when we’re having our talk on the tape and then you can write some other things down later on if you like.

   L :And then I have to take a – and I have to write something down on there so I can - - -

   POLICE :      Okay.

   L :                 Bring it.

   POLICE :      Alright.

   L :And then if I have to talk to another lady next time, then that’s going to be my piece of paper.

   POLICE :Okay.  So is there anything else you can remember about those times that we need to talk about today?

7. It is not surprising that L sought to pre-empt or forestall the experience of yet another lady asking him questions.  By then, he had been introduced to some thirteen women and two men since December 2004 who asked him questions or observed him.  He had been present when N met at least one other woman for assessment.  L was not given the piece of paper but he was questioned by a series of other ladies, as was N.  Police interviews on 21 October, 2008 and those that followed with at least one psychologist (who saw L sixteen times and N eleven times) and three protective workers (who, between them, met the boys twice) were at best inept and at worst dangerously partial;  the two things lacking in all of them were neutrality and an open-mind. 

PROPOSALS

1. At the conclusion of the trial each of the parties was asked to submit a detailed minute of the orders sought;  these are attached to this judgment as annexure “A”. 

Father

1. The father sought sole parental responsibility for N and L and that they live with him. 

2. When final submissions were made on 23 November, 2009 counsel cannot have contemplated judgment being delivered that day, having regard to the length and complexity of the trial.  The father’s proposals for the children’s time with their mother are summarised without reference to the impracticability of the proposed phasing-in regime. 

3. The father proposed that N and L spend no time with their mother for one month from the date of judgment.  Until they commenced school (which they will do in late January 2010) they should be with their mother from 9:00 am. until 5:00 pm. on both Saturday and Sunday in each third weekend.  From the commencement of school they should spend time with her on each third weekend, from 5:00 pm. Friday until 5:00 pm. Sunday.  In their first year of school in 2010, they should spend five days with the mother in each school term holiday and two weeks in the long summer vacation;  after that, the holidays should be evenly divided between the parents.  The father proposed that the children see their mother on their birthday, on Mothers’ Day and at other times as agreed and have telephone contact on Tuesday and Friday and at such other times as the father agreed.  Changeovers should be at Albury Police Station until the commencement of school and then at Seymour Police Station.

4. The father sought a number of injunctions which would restrain the mother from removing the children from his possession save pursuant to orders or with his agreement, from attending at a school attended by the children, save with his consent (although this was at odds with another order proposed, which would allow the mother to attend events, activities and functions routinely attended by parents at the school) and from taking the children for any medical examination or therapeutic intervention which relates in any way to an allegation that they have been sexually abused by the father or any other person while in his care, save pursuant to a request from a protective worker employed by DHS or a member of a police force. 

5. The father proposed enrolling the children at J Primary School, a school connected with a church the mother attended prior to leaving the area.  The school provides before and after school care.  The father is a professional and was employed by a company in Albury for eighteen years to August 2009.  Since then he has worked as a consultant with the same firm, working fewer hours but at a higher hourly rate. 

6. Until the father filed an amended application on 6 November, 2009, the father had not sought that the children live with him.  Thus, when the families saw Ms. B for the preparation of the family report in July and August 2009, she did not consider the impact on the children of a change in their residence.  Ms. B gave evidence about this aspect when cross-examined at the trial.

Mother

1. When the trial commenced, the mother’s application was for sole parental responsibility and that the father spend no time with N and L.  In final submissions her counsel conceded that the evidence then before the court would not allow it to be satisfied to the requisite standard that N or L had been sexually abused by the father or were at risk of sexual abuse by the father.  It was submitted that the court should make interim orders providing for equal shared parental responsibility and the children to live with the mother and that the parties should attend upon a counsellor or psychologist for a “therapeutic intervention process”.  At the conclusion of the intervention the case should be returned to the trial judge for further submissions or hearing.  As the form of “therapeutic intervention” was vital to counsel’s submission, the orders sought are recorded in full. 

   4.That the father and mother forthwith attend, as directed, upon an appropriately qualified counsellor or psychologist to be nominated by the Independent Children’s Lawyer for a therapeutic intervention directed to the following purposes:

   a)An assessment by the nominated counsellor /psychologist as to the capacity, willingness and ability of both parents to engage in an ongoing therapeutic process directed to building support for a parenting arrangement that would allow for a reintroduction of time between the children and the father and support and maintenance into the future of the father/child relationship.

   b)An assessment by the said counsellor of the efficacy of the therapeutic process to assist the parents to both understand and individually give effect to and maintain the changes considered necessary by the therapist to support the children to have an ongoing and meaningful relationship with both parents.

   c)Dependant upon the assessments made by the therapist as to points a) and b) above advice as to an intervention and support plan for the introduction of the children to the therapeutic process if recommended and/or the reintroduction of the children to the father and the availability of the therapist to be involved in the intervention and support plan and the duration of that intervention.

5.That for the purpose of giving effect to paragraph 4 the father and mother do all acts and things necessary to facilitate the process described herein without delay including but not limited to:

a) Attending upon a general practitioner to obtain any referral for themselves and the children as may be necessary to enable the parties to obtain government rebate that may assist in payment of the therapeutic intervention process.

b) Attending as and when directed by the therapist and if requested by the therapist making the children available to attend as part of the therapeutic intervention process.

c) Sharing equally the out of pocket cost of the therapeutic intervention process.

6.That the therapist be provided with a copy of the Family report of [Ms B] dated 16 September 2009 and a copy of Her Honour’s  Reasons for Judgement in this matter and the Independent Children’s Lawyer be at liberty to provide copies of any other document/report filed in this matter as may be requested by the therapist during the course of  that therapeutic intervention process.

7.That unless otherwise directed by the therapist and agreed by both parties the therapeutic intervention process described herein be limited to a period of three months from the date of the first appointment.

8.That the therapeutic intervention process described in paragraph 4 of this order be conducted on a reportable basis.

9.That upon the expiration of the period in paragraph 7 herein the Independent Children’s lawyer obtain a report as to the matters for assessment in that process as indicated in paragraph 4 herein and provide a copy to the parties and file a copy of the report with this Honourable Court.

10.That until further order the mother and father be restrained from continuing with any counselling of the children or either of them by any other person or commencing upon any course of counselling for the children or either of them.

11.That the further hearing of this matter be listed before Her Honour Justice Brown on a date to be advised upon the filing by the Independent Children’s lawyer of the report in accordance with paragraph 9 herein.

1. The mother proposed that the children attend H Primary School which, she said, catered to children with “development challenges” and “intellectual advances”.  Her “back-up plan” was a religious school in an outer eastern suburb of Melbourne, called ….  She spoke of them attending either H High School or B College, a fee paying school, for their secondary education.

Independent Children’s Lawyer

1. Counsel for the ICL submitted that the children should live with the father and he should have sole parental responsibility for them.  For a period of four weeks after judgment, the children should have no face-to-face contact with their mother but speak with her by telephone on three days a week.  There should then be a period of six months in which the mother should attend therapeutic counselling “to address the mother’s ability to accept the court orders and the finding of the court, and the impact of the behaviour of the mother towards the children arising from her perspective of the father” and spend time with the children no less than once a fortnight, supervised by an agreed supervisor or, failing agreement, a supervisor nominated by the ICL.  Thereafter the mother should spend unsupervised time but only during the day on Saturday and Sunday on two alternate weekends, followed by time with the children on each alternate weekend from the conclusion of school on Friday until 3:30 pm. on Sunday, half of school holidays and on special days. 

2. Counsel for the ICL proposed that the parties complete the intake process at Berry Street Contact Centre in Richmond and sought a number of orders designed to ensure the mother was consulted about major issues relating to the long term welfare of the children and restrained from taking the children to any medical practitioner or therapeutic professional without the written consent of the father, save for any medical emergency. 

EVIDENCE

1. Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses.  In what follows, statements of fact constitute findings of fact.  Passages quoted from documents before the court are reproduced verbatim;  grammatical or spelling errors (of which there are many) are neither noted nor corrected.  

2. The father relied on an affidavit filed by him on 4 November, 2009 (“his trial affidavit”) and affidavits sworn by the following people :

   ·    the paternal grandfather, filed 4 November, 2009;

   ·    the paternal grandmother, filed 4 November, 2009;

   ·    his brother, Mr T Davidson, filed 4 November, 2009;

   ·    the psychiatrist who assessed the parties in the course of litigation in 2007, Dr K, filed 29 June, 2009.

3. Each of the deponents was cross-examined.

4. The mother initially relied on an affidavit sworn by her and filed on 19 October, 2009 (“her trial affidavit”) and an affidavit of a paediatrician, Dr. M, filed 1 May, 2009.  Annexed to Dr. M’s affidavit is a report dated 24 March, 2009, in relation to N.  Subsequently four other reports by Dr. M were tendered, dated (respectively) 2 November, 2007, 7 December, 2007, 30 October, 2008 and 4 November, 2009. 

5. The mother’s case was opened on the basis she would call four witnesses who had not sworn affidavits.  The four witnesses were :

   ·    Ms. C, the DHS worker who undertook an investigation following a notification in early December 2008;

   ·    Leading Senior Constable Z, the Victoria Police member who interviewed the children and then conducted VATE interviews with them in October 2008;

   ·   Ms. R, a psychologist who worked with L and N between November 2008 and September 2009;  and

   ·    Ms. V, a social worker employed by the Australian Childhood Foundation (ACF), who conducted an assessment of both children in August and September 2009 and then worked with L between September and the trial.  

6. Ms. C was the author of a DHS report dated 22 January, 2009 which was admitted into evidence;  it was prepared pursuant to a request made by the court on 27 November, 2008.  Proofs of evidence of Ms. R and Ms. V were provided in the course of the trial.  Tendered as exhibit M-16 was a document Ms. R prepared, listing her consultations with the children.  Later evidence showed it to be incomplete.  The mother elected not to call Ldg. S/C Z.

7. Well after the father’s case closed, and after the mother had given evidence, counsel for the mother sought leave to rely on affidavits sworn by four people in the course of proceedings in 2007.  The application was made in the context of a dispute about the children’s behaviour during changeovers.  Leave was granted, over objection.  When the affidavits were read (the parties had been aware of their contents, as they had been filed in the earlier proceedings, but the court was not) it transpired that only one of them specifically related to the children’s behaviour at a changeover.  That was an affidavit sworn by Ms. W on 19 April, 2007 and filed on 26 April, 2007, relating to a changeover in August 2006. 

1. The other three deponents were :

   ·    Mr. D, a friend of the mother, who swore an affidavit on 10 April, 2007 (filed 16 April, 2007) in which he deposed to a conversation with L and N “late last year” (that is, 2006) in which L said his grandparents hurt him;

   ·    Ms. I, another friend of the mother (and a member of the Co-operative Community) who swore an affidavit on 5 April, 2007 (filed 12 April, 2007) in which she deposed to L’s increasing resistance to attending contact, his behaviour on return and his behaviour during a two week period beginning early February 2007;  and

   ·    Ms. A, another friend of the mother, who swore an affidavit on 11 April, 2007 (filed 16 April, 2007) in which she deposed to the challenging behaviours exhibited by both children from the time she met them (October 2005), their behaviour on their return from time with their father and their demeanour when she resumed contact with them (after a period in which she was not available) in early February 2007.

2. Neither the father nor the ICL sought to cross-examine Mr. D, Ms. I or Ms. A. 

3. The father was recalled to enable Ms. W’s account of the changeover in August 2006 to be put to him;  the paternal grandfather was also recalled.  At that time it was envisaged that Ms. W would be required for cross-examination.  In the light of her commitments, and of arrangements previously made for the attendance of experts required for cross-examination, Ms. W was to be called after Ms. B (the author of the family report) was cross-examined.  Having heard Ms. B’s evidence, the father and ICL elected not to cross-examine Ms. W. 

4. The ICL relied on an affidavit sworn by Dr. E and filed on 29 June, 2009.  Dr. E is a psychiatrist who assessed the parties in June 2009 and provided a report dated 9 June, 2009.  She also relied on the family report of Ms. B, dated 16 September, 2009 and the DHS report of Ms. C, to which I have referred.  With leave, the ICL called Ms. J, who has been L and N’s pre-school teacher since the commencement of the third term in 2009. 

5. Pursuant to a direction, counsel for the ICL prepared a list of medical and therapeutic interventions with the twins of which evidence was before the court.  It, too, is incomplete. 

6. VATE taped police interviews with N and L on 21 October, 2008 were played in the courtroom, prior to the calling of any witnesses.  Neither the mother nor father had previously viewed these interviews, which were tendered as the first exhibits of many. 

7. In all, the father tendered 33 exhibits, the mother 18 and the ICL 24.  While some of the tendered documents are short, many are not.  Amongst those 75 exhibits are numerous documents contained in material produced pursuant to subpoena;  these include documents contained in records of police, DHS, Anglicare, Counselling Service 1, Counselling Service 2 and the Australian Childhood Foundation (ACF).  By piecing together the information contained in the disparate records tendered, the court could map the individuals and agencies involved with the children, many of whom (it transpired) knew nothing of earlier work other professionals had undertaken with the children.

8. Many of the tendered documents will be referred to in this judgment.  Annexure “B” to the judgment is a spreadsheet which contains details of the names of professionals and organisations involved with the mother and children (and in a few cases, the father) and the dates of the various attendances.  Sources for the information are noted on the spreadsheet;  it is not suggested they are the only sources. 

9. The spreadsheet is a summary of an evidentiary framework, useful in a case in which so many experts gave evidence and so many documents were tendered, and which ran over eleven days.  As much relevant evidence is contained in tendered documents, rather than affidavits, I find it necessary to spell it out in more detail than may commonly occur.  Brief summaries could not do justice to the complex evidence. 

10. The provisions of Division 12A of the Family Law Act 1975 apply to the proceedings. As set out in s.69ZT(1), a number of provisions of the Evidence Act 1995 do not apply. These include the general rules about giving evidence, provisions which deal with documents and proof of contents of documents, and provisions which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and co-incidence, credibility and character. Section 69ZT(2) provides that the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying.

11. Section 69 of the Evidence Act 1995 provides exceptions to the hearsay rule relating to the admissibility of business records. As an exception to the hearsay rule, it is only triggered if the hearsay rule (contained in s.59) applies. It does not apply to these proceedings.

12. Many of the tendered documents contain notes of professional consultations with the mother, children and (less frequently) the father.  A number of authors of such notes were cross-examined;  others were not.  Where the author of a record of a conversation or observations of behaviour can be cross-examined, the record can be challenged and the court can make findings on the contested evidence in the usual way.  Where the author is not called to give evidence, the court must be mindful of the potential for errors in the record.  The fact that the record is challenged by a person who was a party to a recorded conversation or recorded observation does not mean the court cannot rely on the record but it must consider the weight to be given to it in the light of all the relevant evidence and mindful of the potential for error. 

13. On a number of occasions the mother disagreed with the content of notes taken by a professional and said (accurately) that she could not be responsible for “how people interpret and write in their records”.  As this judgment will record, disparate people noted similar accounts given by the mother at different times.  Any one of them or, indeed, all of them could have made an inaccurate record.  However, the probabilities of multiple people making the same or very similar inaccurate notes of their conversations with the mother are not high. 

14. Much of the evidence went to events which occurred some years ago.  In evidence were five communication books in which the parties noted matters referable to the children and their parenting in the periods N and L spent time with the father.  Noting something as fact in those circumstances does not render it true but the books do provide an insight into the way the parties perceived themselves and the children at the time the entries were made and are likely to be more reliable in that respect than accounts reconstructed many years later.

ASSESSMENT OF WITNESSES

Father

1. The father gave evidence in a calm and composed way;  only occasionally was he emotional.  The mother’s evidence was of the father putting his tongue into N’s mouth and allowing the child to suck on it when N was only a few days old.  The version of this incident which the father gave to Dr. K in April 2007 was inconsistent with the version he gave in these proceedings;  the latter involved an admission of such behaviour (albeit not as described by the mother) whereas he told Dr. K that he was playing with one of the boys’ tongues with his fingers and the mother told him it was disgusting.  Counsel for the mother submitted that this undermined his credit, and that he should not be believed on other facts in issue. 

2. The inaccurate and more anodyne account given to Dr. K shows that the father is capable of reconstructing an event to minimise his culpability;  the court needs to look at his evidence as a whole to determine whether that finding can be extrapolated to all or more of it. 

3. I am not satisfied it can.  In general I find the father to be an honest witness.  He candidly conceded that his father told L that he would cut his tongue out in about March 2008 and when this was raised by the mother in the communication book at the time, immediately admitted it, in contrast to his responses to entries in which the mother alleged that his mother had been abusive to the children.  There is no doubt the father reconstructs the past through a lens of frustration and distress but the court must find that it is a much less distorting lens than that used by the mother. 

Mother

1. The court must find that it can have no confidence in the mother’s capacity for objective recollection.  It can have no confidence in her capacity to give an accurate account of her own history, an accurate account of observed behaviour of the children or others, an accurate account of conversations with experts involved with the children or an accurate account of the children’s own statements.  When holes in her evidence were pointed out, the mother was swift to attribute responsibility to others or to pull new allegations or explanations from thin air.  Although it was her case that she only ever acted on the advice of experts when making the allegations of abuse, I am not satisfied that was the case. 

2. It is to be hoped every parent thinks his or her children are special but the sense the mother gave was of needing her children to be seen as exceptional and she saw behaviour which others might see as problematic (such as autism or cross-dressing) as demonstrating their particularity.  A benign but illuminating example of this is the answer the mother wrote on the document completed for the children’s referral to a pre-school officer in October 2009 which contains a question about “the language spoken at home” with the child who is to commence school.  In respect of L, the mother reported the languages spoken at home with him as “English, Spanish, Mandarin and Arabic”.  L may be having lessons in one or more of those languages and may have family or friends who speak one or more of them.  There is no evidence to suggest these are the languages used with him in the home.  He is a flamboyant and dramatic little boy and if he were multi-lingual it is inconceivable he would not have drawn attention to this with one of the many professionals with whom he spoke.

Father’s family

1. The members of the father’s family who gave evidence made no attempt to disguise their dislike of and hostility towards the mother.  In her judgment of 30 March, 2005 Morgan J. noted Mr. T Davidson’s “strong dislike” of the mother.  That can only have been exacerbated by the significant allegations of sexual abuse she has made against him since then.  Similarly, Mr. and Mrs. Davidson senior demonstrated no empathy for the mother who, from their perspective, successfully (albeit temporarily) severed their relationship with their son and, once it was re-established, attempted to sever their relationship with their grandchildren by making allegations of physical and emotional abuse against them.  Mr. and Mrs. Davidson senior did not present as sophisticated people but as straightforward and down to earth.  Mr. Davidson senior has retired from his earlier work in the transport industry.  I am satisfied they did their best to tell the truth and I place weight on their evidence. 

2. In particular, I accept the paternal grandmother’s evidence that she never dressed the paternal uncle in girls’ clothing, never told the mother that she did so and never “ranked” her children, preferring one over the other.  The paternal grandmother readily conceded that she had heard L call his father “[N’s] dad” on occasions and that L did not like the green face in the Wizard of Oz.  

3. The paternal grandfather’s evidence was of not recalling an occasion on which he told L that he would cut his tongue out if he said certain things again;  I am satisfied the paternal grandfather did make that comment, once, in about March 2008 but he may not recall it.  Referring to it in the communication book at the time, the father wrote that his father was sorry and it would not happen again;  he also wrote (this was his view, not a view expressed by the paternal grandfather) that it was conduct attributable to his father’s generation.  The mother herself described the paternal grandfather as “a fairly benign individual”.

4. The paternal uncle is a financial services officer who lives alone, close to his parents’ home and that of his brother.  He presented as candid and frank and I am satisfied he was an honest witness. 

Lay witnesses called by mother

1. None of the lay witnesses on whom the mother relied were required for cross-examination and their evidence is thus not contested.  None of it relates to events after April 2007. 

2. The mother’s evidence is of the children exhibiting extremely concerning behaviours, particularly during periods they saw their father after the second set of final orders were made on 3 May, 2007.  On occasions she deposed to witnesses to the behaviour;  an illustration is her evidence of L endeavouring to sexually assault a young man who was visiting the Co-operative Community in March 2007, behaviour observed (she swore) by others. 

3. Well into her case, counsel for the mother sought, and obtained over objection, leave to rely on additional witnesses.  No application was made to call a single person who could depose to the sort of behaviour the mother described to Ms. R and, to a lesser extent, to Ms. V.  On her own evidence the mother is no longer “beleaguered” as she was when she appeared before Morgan J. in March 2005;  her entries in the communication book are redolent of the rich social environment in which the children live at the Co-operative Community.  A friend, Ms. S (who lived in the Albury/Wodonga area and recently moved interstate) and a member of the Co-operative Community, Dr. I, both spoke to DHS workers in the course of an investigation in 2007 and Dr. I spoke to a worker again in 2008;  there is no evidence either swore an affidavit in the 2007 proceedings and no application was made to call them in these proceedings. 

4. Ms T, who the mother described as a close family friend, must have observed the boys on many occasions.  The mother’s evidence was of the children being sufficiently close to “…” (the then husband of Ms S) to want to send him Fathers’ Day cards and of him being the significant male figure in their lives. 

5. It is not suggested the mother had any obligation to call any particular witness.  But this is not a case where a parent and children live isolated lives and where extremely disturbed behaviour could go unobserved and unremarked by third parties.  None of the extreme behaviour deposed to by the mother has been observed by any of the professionals who have dealt with the children.  The absence of any such evidence is compelling. 

Ms. C

1. Ms. C qualified as a social worker in late 2007 and the investigation which followed the orders made by the court on 8 November, 2008 was the first assigned to her in which there were allegations of sexual abuse.  I do not doubt Ms. C did her best and relied on advice from those supervising her.  The report she prepared is thorough.

2. The court must find that Ms. C had little understanding of the complex dynamics of the case, the relevance of earlier notifications, the involvement of numerous professionals and the impact on children of being exposed to repeated interviews, leading questions and discussions about alleged abuse.  Ms. C had read no literature on the effects on children of multiple interviews.  Her response when asked about this made it clear she considered only multiple interviews by DHS workers, as she referred to the three interviews she and colleagues conducted with the children.  Asked what she had learnt in her training about questioning children, she said “that it can be quite traumatic for children to relive that experience and have to discuss that multiple times”;  an answer premised on the children having been abused and having an adverse experience to relive.

3. Equally concerning was Ms. C’s misunderstanding of the protocol which was signed between this court and DHS in 1995 and which has been reviewed a number of times since.  Recently amended to include the Federal Magistrates’ Court as a party, and to take account of legislative amendments which impact on proceedings in this court, the Federal Magistrates’ Court and the Children’s Court, the document has no legal standing but could be said to set out best practice to ensure that families who come to the attention of DHS are not exposed to serial litigation in State and Federal jurisdictions. 

4. On 27 November, 2008 a request was made to DHS to intervene in these proceedings.  By letter dated 22 January, 2009, Ms. C advised that DHS did not intend to intervene.  It elected not to bring an application in the Children’s Court, which was its obligation if it determined that the children’s right to be protected from the physical or emotional abuse alleged could not be guaranteed by allowing the dispute between the parents to proceed in this court. 

5. Ms. C was courteous at all times and her evidence supports a finding that the view she expressed was one expressed to her by those senior to her.  Put bluntly, it was this :  if the Family Court allows the father to have unsupervised time with N and L, DHS will reinvestigate and may bring a protection application in the Children’s Court. 

6. Ms. C’s evidence was that if the court made orders providing for unsupervised contact “we would be making another report to intake in relation to those concerns”.  She said she was aware of the protocol between DHS and this court and when asked what she understood about it, responded :

   I guess that – I know that we work separately, and that when orders are made, obviously, that stands from a Family Law Court.  However, if we have – have assessed that children are at risk of harm, when those orders are made, then we can make a new report to have that – those concerns re-investigated.  I guess, if there are concerns after that investigation, then we can issue a protection application.

7. Ms. C was not aware that the application of the father was that the children move to live with him.  She said :

   If they were ordered to live with him I guess I would have to express my concern to the intake team, but that would then have to be re-investigated.  I have no control over whether that then goes through and there’s an open case with the family, and whether that would be – whether a protection application would be issued.  That is for – that’s for our intake team to investigate and decide whether it’s furthered.

8. The first version of the protocol was contained in a Memorandum of Understanding made between the Family Court of Australia, the Children’s Court of Victoria and DHS on 19 April, 1995.  The agreement was underpinned by a number of central principles:  one was a recognition that multiple hearings, over prolonged periods of time, in separate jurisdictions, can be harmful to a child and should where possible be minimised;  and another “a recognition that the Children’s Court should not be utilised as a de-facto court of appeal from the Family Court”.

9. The Memorandum of Understanding noted that if DHS formed the view that the Family Court was the appropriate jurisdiction to decide matters of a protective nature, and chose not to become a party to the proceedings, it would be required to accept the orders of the court without the avenue of appeal, unless fresh concerns arose after judgment was given.  The Memorandum of Understanding noted :

   Provided no new protective concerns arise following Family Court proceedings, Human Services will not commence further proceedings in the Children’s Court, regardless of judgement. 

10. Later that year the Memorandum of Understanding was expanded (in respect of this court) in a protocol between DHS and the Family Court of Australia.  The Memorandum of Understanding signed earlier that year was repeated in paragraph 11.8 of the protocol. 

11. The 2009 version of the protocol included the Federal Magistrates’ Court as a party.  The original Memorandum of Understanding is Appendix I to that protocol.  Part 12 of the 2009 protocol deals with “Establishing the Appropriate Jurisdiction” and refers to and restates the contents of the Memorandum of Understanding signed in April 1995.

1. The court would not be concerned had Ms. C’s evidence been that any fresh allegation of abuse made after judgment was delivered would be investigated and that a protection application could issue.  That is the role of DHS.  However, what she had in mind was a reinvestigation of the allegations made to date, in the event DHS did not like the findings this court made about them, and the potential to relitigate those allegations as the foundation of DHS’ ongoing concerns.  That duplication is exactly what the protocol is designed to avoid. 

2. Ms. C is young and inexperienced.  The court is entitled to assume that those who supervise her are not.  The term “systems abuse” is one a court should use with care but what is proposed, if Ms. C’s evidence is accurate, would justify the expression. 

Ms. R

1. Ms. R is a psychologist.  She struggled to define her role with the children, a struggle I am satisfied arose from a reluctance to frankly acknowledge that her work was focused on eliciting disclosures of abuse, not on therapeutic intervention.  The court cannot find her an impressive witness.

Ms. V

1. In contrast, Ms. V, a social worker, presented as an intelligent, perceptive and insightful witness.  She, too, commenced work on the premise the children had been abused but her focus remained squarely on their well-being.  In stark contrast to Ms. R, she brought an empathetic objectivity to her work.  She was a very impressive witness. 

Ms. J

1. Ms. J is an experienced teacher and I have no hesitation in accepting her evidence of observations and conversations. 

Dr. E

1. Dr. E’s reports are coherent and logical.  He was not cross-examined at length and his oral evidence did not add much to those reports.  The mother alleged that he relied too much on Dr. K’s earlier family report, a submission I do not accept.  Dr. E read that report and, in particular, the analysis of the MMP1-2 profiles.  The fact he relied on them more than the body of Dr. K’s report is borne out by the fact that he did not repeat the mistake Dr. K made in his own report, and state that the mother’s scales for overt and covert defensiveness were elevated.  Dr. K conceded this mistake;  Dr. E referred only (as the MMP1-2 showed) to the elevations on the covert scale. 

2. I place weight on Dr. E’s evidence. 

Dr. K

1. Dr. K was cross-examined at some length.  He maintained an objective and professional demeanour, save when it was put to him that he had said words to the effect “come on, it wasn’t that bad” when the mother spoke about violence inflicted on her during the marriage. 

2. It was clear the allegation shocked Dr. K and he had to compose himself before replying that this was the most horrendous lie he had heard in years and that he would never say that to anyone, let alone a person who had been exposed to domestic violence.  I am satisfied he told the truth. 

3. On 20 September, 2007, almost six months after seeing Dr. K, the mother made a complaint to the Psychologists’ Registration Board of Victoria in which she alleged Dr. K had breached numerous sections of the Code of Behaviour for Psychologists.  Dr. K had not seen the letter of complaint but knew of its existence.  A number of the complaints raised by the mother are relevant to submissions as to Dr. K’s credit and expertise and accordingly must be considered.  Further, as the mother complained that subsequent professionals involved with the family, including Dr. O, Dr. E and Ms. B, relied too heavily on Dr. K’s opinion, the foundation for it needs to be assessed. 

4. The mother alleged that Dr. K dismissed evidence of the father’s violence and submitted that his reference to “likely mutual incidents” was indicative of a lack of knowledge of the long term effects of domestic violence on victims.  Dr. K conceded that his use of “likely mutual” was poorly worded, saying he might better have expressed it by saying that the pre-separation violence of the father was an aspect of a complex set of interactions, to which the mother contributed, albeit not necessarily by being physically violent towards the father.  His evidence, which I accept, was that the mother spoke in a way which made it difficult to obtain concrete details about the domestic violence she alleged.  I have no hesitation in accepting as true Dr. K’s denial of telling the mother “come on, it wasn’t that bad”.  I am satisfied the mother invented this conversation.  As will be seen, the mother attributed equally improbable statements to Dr. E and Ms. B, in what I am satisfied were intended as pre-emptive strikes against their credit.  Nor do I have any hesitation in accepting his denial of ever being a member of or connected in any way with the Blackshirts or any other such militant men’s group. 

5. The mother alleged Dr. K lacked expertise and qualifications which would allow him to recognise developmental delay or autism in young children. 

6. The mother told Dr. K that she was concerned N had Asperger’s syndrome, that she had suspected it for more than a year and that she had seen two psychologists about this issue.  In his assessment, Dr. K noted that while the boys were able to be engaged together, individual assessments were not possible.  Their behaviour was distinctive and different with L providing a picture of a more outgoing child and N being quite reserved and less verbal.  He said N presented as slightly less advanced developmentally and continued :

   The overall impression in the evaluation however is that [N] does not present with the behavioural signs and symptoms of a child with Asperger’s disorder or another autism spectrum disorder.  He presented as a relatively shy child, who may not be as developmentally advanced as [L].  Nevertheless, it may be appropriate that this issue is ruled out through a specific evaluation.

7. In his concluding statements in the report, Dr. K referred to this aspect again, noting :

   Additionally, in my view, it is unlikely that [N] has a specific developmental difficulty, and it likely represents an individual difference between himself and [L], and there is some relationship dynamics which may be exacerbating this.  Nevertheless I would suggest that if this continues to be an issue for both parents that this is fully investigated by clinicians at the Royal Child Hospital, Department of Child Psychiatry, where there should be an assessment. 

8. The mother was angry that in this paragraph Dr. K referred to an assessment if it were “an issue for both parents”, as she maintained that the father was obstructive in this respect.  It was open to Dr. K to form the opinion he expressed. 

9. In her letter of complaint to the Psychologists’ Registration Board, the mother alleged that this (that is, Dr. K’s assessment) forced her to seek the assistance of DHS :

   . . . who assisted [N] to obtain support, and he was subsequently diagnosed with autism spectrum disorder and has tested as “borderline sub normal intelligence”.

10. These are remarkable assertions.  DHS became involved because a notification was made alleging that L was displaying sexualised behaviour which the mother attributed to the father’s brother’s abuse of him and reference was made to N’s developmental progress.  The mother complained that the father refused to agree to an assessment of N.  I am not satisfied he did, as she alleged, but this was not Dr. K’s responsibility.

11. Second, I cannot say where the expression “borderline sub normal intelligence” came from;  it is certainly not to be found in any of the five reports from Dr. M.  It may be an inference drawn from a report prepared by a psychologist, Ms P, in September 2007, some months after Dr. K saw the family. 

12. When N saw Dr. O in July 2007 she reported a provisional diagnosis of mild autism spectrum disorder and mild global developmental delay.

13. Dr. M did not see N until 2 November, 2007, some month and a half after the mother made the complaint to the Psychologists’ Registration Board.  At the end of her first consultation with N Dr. M referred to “my working diagnosis of autism”;  the problem list at the head of her report listed, with a query against each, autism spectrum disorder, adjustment disorder and anxiety disorder associated with exposure to domestic violence. 

14. I will refer later in this judgment to the various consultations N had with Dr. M.  Suffice to say his presentation varied enormously, as did the behavioural symptoms the mother described, and by the time Dr. M prepared a report dated 30 October, 2008 she had resiled from her earlier provisional diagnosis of autism and significant developmental delay herself.  It is probable Dr. K placed significant weight on his own observations of N and a little less weight on the mother’s account, which, as can be seen in retrospect, was prudent. 

15. The mother then complained that the father had been observed to confer with his father while he was completing the MMP1-2 test in a coffee shop below Dr. K’s room.  Dr. K’s evidence was that it was not unusual for him to suggest a client complete the test at the coffee shop and he could not recall whether the father was accompanied by his father.  He readily conceded that if the father had been assisted, that would affect the reliability of the test results.  It was never put to either the father or the paternal grandfather that this occurred.  The mother’s evidence was of being told by a friend who accompanied her that she (the friend) observed the grandfather with the father;  the friend was not called or identified. 

16. The fact that the hearsay rules do not apply does not mean the court must suspend credulity and accept as true statements attributed in this way.  The court can place no weight at all on that allegation. 

17. The mother then complained that Dr. K allowed his personal bias to colour his interpretation of the MMP1-2 scores.  Dr. K frankly conceded that when he referred to aspects of those scores in a later part of the report, he made a mistake when he referred to a pattern of overt and covert defensiveness;  the MMP1-2 identified elevations only in the overt defensiveness scale of the mother. 

18. On rereading the relevant paragraph, it is more a question of wording than a mistake in the reporting of a result.  The paragraph reads :

    Her ‘L’ suggests no overt defensiveness, but her significant ‘K’ and ‘S’ scores indicate a high degree of subtle defensiveness.  In particular, her extremely elevated ‘S’ score suggests a sense and belief in her own superiority.  This pattern of overt and covert defensiveness fits with her presentation as described. 

19. A reader who understood the first sentence would read the last sentence as referring to a pattern in which the overt levels were not elevated and the covert levels were. 

20. Further, this mistake (if that is what it is) is apparent on the face of the report to anyone who reads the analysis of the MMP1-2 as well as the narrative that follows.  An illustration of this is contained in Dr. E’s report, prepared some two years after Dr. K’s.  After reading Dr. K’s report, and having looked at the MMP1-2 results, Dr. E accurately referred to the elevated covert defensiveness scales only;  he had acted on Dr. K’s analysis of the MMP1-2, not the subsequent narrative.  Save for this, Dr. K cogently defended his interpretation of the various scales.  As he noted, the MMP1-2 is not a test of personality, as the mother inferred, but a test of psychopathology.  His evidence was that when he wrote or spoke of the mother’s personality structure, his opinions were developed from his interview with her, not the MMP1-2 results

21. The mother then complained that Dr. K had been inappropriately influenced by the father’s opinion of the mother;  he relied too much on advice from the father, such as advice that the mother had fallings out with people and wanted to cut him off from his family.  Dr. K explained the basis for his hypotheses, which were not based solely on what he was told by the father but on the mother’s presentation, test results and responses, all of which he drew on in coming to professional conclusions and recommendations.  His evidence, which I accept, was that the elevations in the mother’s K and F scales made for a very unusual profile. 

22. The mother complained that Dr. K’s professional rooms did not afford her confidentiality;  she said she was worried that the father would be next door and found it difficult to be as forthcoming as she would have liked, as she felt intimidated by the prospect of him listening.  Dr. K’s evidence was that his consulting rooms are fairly soundproof.  I am satisfied this complaint was of no substance. 

23. The mother complained that Dr. K did not demonstrate respect for her dignity or independence.  She complained that he described her as clinical and detached, saying that if she presented in that way it was because he had told her to “stop being emotional and pull yourself together”.  Dr. K denied saying any such thing and I accept his denials.  In the complaint to the Psychologists’ Registration Board the mother relied on a couple of incidents in support of this allegation, neither of which bear consideration here. 

24. Finally, the mother complained that Dr. K had breached part 3.5 of the Code which relates to informing clients about fees and services.  She advised the Psychologists’ Registration Board that Dr. K had not informed her that she would have to pay $750 from her own pocket, which was not covered by Legal Aid and that she was caused distress and financial hardship on being advised of it.  This is a ludicrous complaint. 

25. On 26 March, 2007 the court ordered the preparation of a psychological assessment and family report by Ms. U.  The order was made by consent.  Ms. U was unavailable and it was agreed between the lawyers that Dr. K would undertake the work.  Dr. K’s evidence was that it was the mother’s then solicitor who rang him to see if he were available. 

26. The order of 26 March, 2007 provided that the cost of the reports be shared equally between the parties;  the mother was to request Victoria Legal Aid (VLA) to fund her share.  That order, too, was made by consent. 

27. If the mother were asked to contribute, the court must assume VLA either refused the request (if made) or provided only part of the sum.  It was for the mother to discuss funding issues with her lawyers rather than complain at being asked – as the order provided – to share the cost of employing a psychologist in private practice to prepare a report.

28. In sum, Dr. K can be criticised for inadvertently referring to an elevated scale for overt defensiveness and for poor word choices in a shorthand expression, “mutual violence”.  On the evidence before this court, none of the mother’s other complaints were substantiated. 

29. Dr. K presented as a perspicacious and astute expert and I place weight on his opinion. 

Dr. M

1. Dr. M was an impressive witness, swift to make an appropriate concession and experienced in her field.

Ms. B

1. Like Ms. C and Ms. V, Ms. B is a social worker.  She presented as an intelligent, thoughtful and balanced witness.  Her opinions rested on intellectual foundations and she has a rare ability to summarise and explicate.  Her evidence was illuminating.  As she did with Dr. K, the mother tried to discredit Ms. B to the court and to other professionals by alleging that she did not have an understanding of family violence, was biased towards the father because she found him to be “a nice man”, introduced the children to the father in August 2008 with no preparation or discussion with the mother and was overly reliant on Dr. K’s 2007 assessment.  I find no substance in those or any of the other criticisms the mother levelled against Ms. B. 

2. Findings which follow will flesh out these assessments of witnesses and the mother’s criticism of some of them.  What can be said at the outset is that the mother routinely attributed personal and professional failings to those who did not support the case she sought to make.  The court was able to make its own assessments of Dr. K, Dr. E and Ms. B.  I am satisfied the mother put words into the mouths of all three which they did not say, words she invented.  As the judgment will demonstrate, the mother censored the history she gave to other professionals of anything indicative of the father having a good relationship with L and N prior to or after their parents’ separation, exaggerated and distorted professional opinions to portray herself in a certain light and by refusing to authorise the release of Dr. K’s report to DHS workers involved in an investigation in late 2008/early 2009 compromised that investigation. 

LEGAL PRINCIPLES

1. The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children as follows :

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. The objects point the way to an optimum outcome. The first two are picked up in s.60CC(2) as the primary considerations when determining where children's best interests lie. The second is also reflected in the circumstances in which the presumption of equal shared parental responsibility is not to apply, those circumstances relating to findings about violence; see s.61DA(2).

3. When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.

4. There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply. 

5. If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and reasonably practicable (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests and reasonably practicable (s.65DAA(2)).

Table of other professionals involved with the family (where dates of consultations cannot be specified)
Date	Treating Practitioner	Org	Client	Comments	Source
Winter 2007	Unspecified	Counselling Service 1 Early Intervention	N	Pre-screens for autism	Mother's oral evidence
2008	Ms NR	Counselling Service 1	N/L	Early intervention service. By July 2009 N on "discharge list". L not a "client" but attended.	Oral evidence: mother, father, Ms J.
Early January 2009	Mr XY	Unspecified	Mother	Psychological counselling, concluding by September 2009	Ms Rs oral evidence

Annexure “C”

Hemiro & Sinla [2009] FamCA 181, [20]-[51]

1. I recently summarised the core principles in the determination of a case of alleged sexual abuse in Hartford and Ansilda [2009] FamCA 23, as follows :

   19 The core principles are those enunciated by the High Court in M and M (1988) 166 CLR 69. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) made it clear that the ultimate and paramount issue to be decided in proceedings for what are now called parenting orders is whether the making of the orders sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation of sexual abuse by the parent who seeks residence or time with a child does not alter the paramount and ultimate issue which the court has to determine. The High Court found (at 76) that although findings on the disputed allegation of sexual abuse will have an important, and sometimes a decisive, impact on the resolution of that issue,

   …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 partes 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) 162 CLR 447 at pp 450, 458, 462, 463-464.

Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child.  The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.  The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a context between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

20.In a joint judgment in B and B (1993) FLC 92-357 the Full Court (Fogarty, Baker and Purvis JJ) discussed the relevant principles, having regard to the High Court’s decision in M and M and at 79,778 said:

The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is 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.

The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’.  In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

21.In Re W (Sex abuse:  standard of proof) (2004) FLC 93-192 the Full Court (Kay, Holden and O’Ryan JJ) examined the principles applicable in cases involving difficult questions of sexual abuse where the only witnesses to the alleged abuse are the alleged perpetrator and the alleged victim, noting the particular difficulties where the victim is young and does not give any direct testimony that can be the subject of forensic testing.

22.The Full Court considered the relevance of the decision in WK v SR (1997) FLC 92 -787. In that case the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said, at 84,691:

26.     However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court's duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995(Cth), her evidence needed to be very carefully evaluated.

[…]

46.It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:

'140 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.  

(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:  

(a)the nature of the cause of action or defence; and  

(b)the nature of the subject matter of the proceeding; and

(c)the gravity of the matters alleged.'

47. In children's matters under Part VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.

48. This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.

The Full Court found that the trial judge had not paid attention to these views, and that unless the rigorous approach set out in WK v SR is taken, in circumstances where the often inevitable result of a positive finding of abuse is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and the child the disastrous effects of a positive finding that is reached in error.  The Full Court found that the termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort, noting (at 79,217-8):

The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial.  The truth does not always come out.  A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship.  The Court needs to remain conscious of this imperfection at all times.   

23.      The Full Court then referred with approval to the dissenting judgment of Kay J. in  K v B (1994) FLC 92-478 where his Honour said, at 80, 972:

In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.

In an article entitled 'Prediction, Prevention and Clinical Expertise in Child Custody Cases In Which Allegations of Child Sexual Abuse Have Been Made', appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:

'Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well,... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.' (emphasis in original)

The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place.

The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:

The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e. objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.

24.In Re W, the Full Court concluded its analysis of the relevant legal principles by remarking, at 79,218:

The lessons to be learned have not changed.  The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times.  The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.

25.As I have observed before, and with respect to the Full Court, one might as well say that the harm and injustice that flows to both parent and child from an erroneous negative finding is almost too horrible to contemplate, that harm including repeated sexual abuse of a child.  Nevertheless, I am bound by the exposition of principle in the judgment.

26.In W v W (Abuse allegations; unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) examined principles relevant to child sexual abuse cases with particular emphasis on what is meant by unacceptable risk, the potential cessation of a significant or meaningful parent/child relationship and the appropriateness or otherwise of supervised contact. As a starting point the Full Court referred to the significant detrimental harm to a child who is sexually abused, noting (at 79,906) the discussion by Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 where His Honour said, at 82,709:

The sexual abuse of a young child by a parent or care giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur.  Regrettably, the actuality is otherwise.

It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse.  Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development.  Its effects, both in the short and long term, can be devastating.

27.The Full Court also had regard to Fogarty J’s acknowledgement of the potential for false allegations.  Referring to Thomas J’s judgment in S v S [1993] NZFLR 657, Fogarty J said (at 82,711):

Courts must be aware that not all allegations of sexual abuse are true.  False allegations may be made either by parents acting in good faith, as a result of a misperception or information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings.  Ambiguous events often have an innocent explanation.

28.After considering a number of decisions in which the concept of unacceptable risk was considered, the Full Court in W v  W (Abuse allegations: unacceptable risk)concluded (at 79,910):

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 recognized 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. 

1. W v. W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 was delivered after Re W (Sex abuse: standard of proof) (2004) FLC 93-192 and made no reference to the null hypothesis advanced in the article quoted by Kay J. in his dissenting judgment in K v. B (1994) FLC 92-478, which was endorsed by the Full Court in Re W (Sex abuse: standard of proof).  Nor was there any reference to the article in Potter & Potter (2007) FLC 93-326 in which the Full Court endorsed the approach described in Re W (Sex abuse :  standard of proof) or in the earlier decision in Napier & Hepburn (2006) FLC 93-303 in which the Full Court considered the approach to determining whether the evidence establishes an unacceptable risk of abuse. It is timely to say something further about that article.

1. Neither Kay J in K v. B nor the Full Court in Re W (Sex abuse: standard of proof) named the authors of the article in question, nor was its sub-title stated.  The article is Prediction, Prevention and Clinical Expertise in Child Custody Cases in Which Allegations of Child Sexual Abuse Have Been Made :  III Studies of Expert Opinion Formation.  Its authors are Thomas M. Horner, Melvin J. Guyer and Neil M. Kalter.  Kay J. recorded it as appearing in Volume XXVI No.2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law).  The short reference for the article is 26 Fam.L.Q. 141 (1992-1993).

1. The article is the third in a series.  Part I, sub-titled Predictable Rates of Diagnostic Error in Relation to Various Clinical Decisionmaking Strategies, was published in 25 Fam.L.Q. 217 (1991);  Part II, sub-titled Prevalence Rates of Child Sexual Abuse and the Precision of “Tests” Constructed to Diagnose It, was published in 25 Fam.L.Q. 381 (1992).  The authors of the first two parts are Thomas M. Horner and Melvin J. Guyer. 

1. In the introduction to Part I the authors make clear their interest in the decision making processes that are generated under the mantle of expertise in cases of alleged child sexual abuse.  The introduction to Part II sets out its focus as the problems inherent in attempting to reach firm conclusions about allegations of sexual contact between young children and adults. Part III deals with the field and scope of clinical expertise in these cases. The same case study was used in the research referred to in all three parts.

1. The authors frankly state their concerns about the accuracy of expert evidence and uncritical reliance on it and draw conclusions based on the research to which Kay J referred.  Not all their assertions are attributable to their research; for example, in Part I they assert, at 251, that “(t)he contemporary preoccupation with child sexual abuse surely has many parallels with the preoccupations of other times, such as witchcraft and other heresies.”  While a footnote is provided (Child Abuse from Salem to Jordan: Therapists as Culprits, 9 AUGUSTUS 7(1986)) the authors go on to wonder how many people over the course of history have been “mortally persecuted for the alleged practice of witchcraft, but had indeed not practiced it” and maintain and flesh out the analogy in their concluding paragraph.  Part II continues where Part I left off, commencing with an aphorism attributed to Nietzsche: Convictions are the greater enemies of truth than lies.

1. Part III of the series, which is the article referred to by Kay J., continues the critique of the involvement of clinical experts in child sex abuse investigations.  As Kay J. observed, detailed case notes concerning the possible sexual abuse of a three year old child were provided to eight senior clinical psychologists, twenty-three graduate students undergoing clinical training in psychology and fifty members of staff of child guidance clinics, including social workers, clinical psychologists and psychiatrists.  In one phase of the study participants were able to question the evaluating clinician who presented the case study.  No participant met with the child who was the subject of the allegation or with any parent or family member of the child.  They were neither treating experts nor forensic experts;  the method involved the presentation of extensive clinical case material by the evaluating clinician in that case. 

1. Participants were advised that until the allegation was made the child’s parents maintained a good relationship and the child enjoyed a positive relationship with each parent.  When she was about 16 to 17 months old, the child began (on her mother’s account) to exhibit behaviours resembling ones referred to in certain media accounts as being associated with sexual abuse.  They included nightmares, an interest in and references to sexuality, occasional resistance to having her nappy changed, an emergent negativism, protests against separation from her mother and, once when having her nappy changed, the child saying “daddy hurt ‘gina”, which the mother construed to mean the father had molested the child.  The mother’s concerns moved to a strong suspicion when she discovered a hair in the child’s nappy which, she said, was the colour of the father’s hair, and she asserted, a pubic hair.  She did not save the hair.

1. An examining paediatrician discovered no physical evidence of sexual contact and in the course of police investigations the father underwent two polygraphic examinations, which concluded that he was being truthful when he denied any sexual misconduct towards his daughter.  The father acknowledged that his daughter had become avoidant of nappy changes and that he sometimes had to be firm with her during them.  He corroborated the mother’s observations of increased negativism and oppositionality.  He could not explain the hair in the nappy.

1. Neither police nor protective services investigations substantiated the mother’s suspicions and allegations.  Following her receipt of their negative findings, the mother contacted a clinic specialising in the diagnosis and treatment of child sexual abuse;  a therapist there stated that the child was being treated for (this is a direct quotation from the article) “trauma [sic] of possible [sic] sexual abuse”.  The evaluation team at the clinic never contacted the father but recommended a course of treatment to deal with the child’s behavioural problems, which were deemed symptomatic of “some kind of abuse”. 

1. The clinician who presented the case study to the participants in the research exercise had been requested by a court to complete another clinical evaluation of the allegation of abuse. 

1. The findings of the authors in Part III could be summarised in this way.

   ·    Expert evidence is highly imprecise and unreliable.  Even if some of the experts were “correct” in their opinions, the broad spectrum of opinions makes it very difficult to discern which of those are to be trusted.

   ·    Estimates of the likelihood of abuse did not necessarily match the recommendations made when asked about the contact the child should have with the allegedly abusing father.  In the authors’ words, the implication of this is that “. . .  an allegation taken alone . . . has a powerful determining effect far beyond any failure to substantiate it (p.165 (emphasis in original)).

   ·    Where an expert is confronted with ambiguous and conflicting evidence, he or she is rarely better placed than a court to assess the evidence. 

2. The section of the article quoted by Kay J. in K v. B at 80,972 commences one sentence into a paragraph. The first sentence of the quoted paragraph, which is omitted, states :

   Clinicians seem inherently averse to both the scientific standard of accepting the null hypothesis (and, correlatively, the legal standard of presuming innocence in the absence of incriminating proof) when adduced data are insufficient to make its rejection defensible.  (170)

1. The authors’ reference to the presumption of innocence is curious.  Insofar as the authors refer to the admission of expert evidence, it is to evidence adduced in civil proceedings, not criminal proceedings.  This is expressly acknowledged in their comparison, at 170, of the “clinical arena” with the “civil arena” and in the Introduction in Part I of the series.  In Australia, “the legal standard of presuming innocence in the absence of incriminating proof” has no role in civil proceedings and no role in the criminal standard of proof, which requires rather that the accused’s guilt must be established beyond reasonable doubt, to achieve which the elements (ingredients or ultimate facts) of the crime must be established by the evidence beyond reasonable doubt;  see Evidence Act 1995 (Cth) s.141; R v. Dickson [1983] 1 VR 227 at 235, Thompson v. The Queen (1989) 169 CLR 1 at 12. The presumption of innocence is a vital part of the criminal law but to say an accused person is entitled to the presumption of innocence is to say no more than that a person suspected of or charged with a crime shall be assumed innocent unless and until his or her guilt is proved, either by a plea of guilty or by a jury finding.

1. All three authors of the article hold positions at the University of Michigan in the State of Michigan.  The article quoted says nothing of the legal standard of proof (or, indeed, burden of proof) in that State however in Part I, at 250-251, the authors note that civil law generally accepts preponderance of evidence as the standard of proof that a party must meet to prevail in the judicial decision making forum while criminal culpability requires that the State meet the more stringent standard of proffering evidence of guilt beyond a reasonable doubt.  A footnote, numbered 43, notes :

   Certain questions brought before the courts require that the prevailing party meet a higher standard of proof than the usual civil standard. The determination of paternity, the termination of parental rights, and the civil commitment of the mentally ill, for example, all require the moving party to meet a clear and convincing standard of proof.

The authors may be working within a system in which the standard of proof in civil litigation is more variable than it is under Australian law and the court could not rule out constitutional ramifications in the United States.

1. While this court cannot know why the first sentence of the paragraph was omitted from the quotation in K v. B, it can say that its inclusion would have caused a legally qualified Australian reader to question the apparent analogy drawn between the null hypothesis and the presumption of innocence, its relevance to the arguments the authors sought to advance and the authors’ non-expert assumptions about the law. 

1. The authors refer to the null hypothesis as “the scientific standard” at 170, but say nothing more of it.  The expression was coined by Sir Ronald Fisher, an English geneticist and statistician, in 1935;  (see Fisher, R.A. (1966) The Design of Experiments, 8^th edition, Hafner: Edinburgh).  In statistics a null hypothesis is a concept which arises in the context of statistical hypothesis testing to describe in a formal way some aspect of the statistical behaviour of a set of data which is treated as valid unless the actual behaviour of the data contradicts this assumption.  Although a null hypothesis always occurs in conjunction with an alternative hypothesis it would be misleading to consider the alternative hypothesis as the negation of the null hypothesis.  Importantly, the absence of evidence against the null hypothesis does not establish its “truth”;  if the null hypothesis is not rejected there is no reason to change decisions or procedures predicated on its truth but it allows for the possibility of obtaining further data and then re-examining the same hypothesis.  In the article the authors appear to use it to mean an hypothesis that sexual abuse has not occurred.

1. Tellingly, a clause is omitted in the midst of the paragraph quoted by Kay J.  The first sentence of the quoted paragraph is reproduced below with the omitted words in bold :

   Unfortunately, the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draws the clinician – and perhaps even judges and jurors as well, although the safeguards against this happening seem to us stronger in the civil arena than in the clinical arena – away from what ought always to be the starting point of his or her evaluation enquiries, which is that the event did not (or very highly probably did not) occur. (170)

1. The omitted words, which qualify “perhaps even judges and jurors”, are consistent with the authors’ statements (at 162-163) that despite their view of the imperfection of expert evidence, “the findings do not mean, of course, that specialists in child mental health cannot be useful in the fact finding process, as they may offer modes and venues of communication that genuinely assist courts in fully weighing evidence”.  The authors describe the central problem faced by courts which use experts in cases of alleged child sexual abuse as being :

   . . . one of determining which of the diverse expert opinions one might solicit is veridical and which expert(s) among the many who present themselves as such in any given case can be expected and relied upon to exercise genuine expertise rather than simple ordinary judgment. (163)

1. The paragraph following that quoted by Kay J. is the concluding paragraph of the article, and is in these terms :

   Certainly, one important implication of our observations and findings is that for each and every individual clinician an immense burden exists to demonstrate convincingly to the courts to which they testify, and to society in general (neither statements to the effect that one has seen “hundreds of cases” nor presentations of thick resumes or curricula vitae being inherently convincing), the grounds on which s/he can be confidently expected to reason or predict beyond the capacity of the ordinary judge or juror when s/he is faced with the same information.  A further implication, of course, is that courts need to examine their experts beyond the customary scope (which is too often perfunctory) of voir dire, which in our opinion admits far more clinicians to the realm of privileged testimony than is justified by any reasoned appraisals that have been made of them as a class of specialists.  (170)

1. The authors of the article place much faith in the deductive capabilities of courts (as opposed to “clinical experts”) in drawing conclusions from conflicting and ambiguous evidence.  The authors do acknowledge the “pragmatic utility” in the admission of expert evidence, however unsatisfactory (166).  Their main point is that the court should be cautious when considering expert evidence;  as its sub-title makes clear, the article is about the formation of expert opinion, not determination of allegations by a court.  At 169, the authors make this clear when expressing this caution :

   Courts need to recognize, therefore, that the thought processes of most clinicians, whose modes and manners of discourse may in their aplomb and tones of unflinching conviction, appear to be authoritative, are by dint of training and practice historically rooted in the traditionally divergent, intuitive, and speculative thought processes of the clinical case conference, and not in the traditionally systematic, fact-weighing thought processes of legal discourse.  Caveat curia!

1. The authors refer to the problematic relationship between a low assessment of abuse and a “conservative” recommendation for contact.  An example given involved a risk assessment by participants falling between 0.001 and 0.25 (mean probability : 0.11) where despite this low likelihood of abuse, several experts expressed the opinion that contact between the father and child should be supervised as a caution.  That approach was criticised and attributed by the authors to “individual differences in tolerance for risk, as well as non-expert based views of parental rights”. 

1. As the article was not concerned with the court process, it did not take into account the potential for such a poor correlation between a clinician’s assessment of risk and his or her recommendation for contact to be tested in cross-examination and the contradiction exposed.  Nor did it take into account a court’s obligation to act according to law, rather than on personal views of “parental rights”. 

1. By quoting that part of Kay J’s earlier dissenting judgment which includes an edited quotation from the article, the Full Court in Re W (Sex abuse:standard of proof) cannot have meant to endorse an approach which would have the court take as its starting point a premise that the sexual abuse did not, or “very highly probably did not” occur, as that would be inconsistent with s.140 of the Evidence Act 1995 (Cth) and inconsistent with decades of jurisprudence about the standard of proof in civil cases, before and after the proclamation of the Evidence Act 1995. A revisiting of the article, and of the series of which it forms part, leads one to wonder whether it was considered in its entirety by Kay J in K v. B. As the Full Court itself made no reference to the article, save by quoting that part of K v. B which refers to it, there is no reason to infer that it considered the whole of the article, or the series.

1. On occasions, submissions made in this court suggest that some readers extrapolate from the first paragraph of the article quoted by Kay J. that the starting point of a judge’s evaluation should be the null hypothesis. The article does not support such a reading; nor does s.140 of the Evidence Act 1995 (Cth) or any of the other authorities to which I have referred.

1. While Dixon J.’s classic discussion in Briginshaw  v.  Briginshaw (1938) 60 CLR 336 at 361-363 of the operation of the civil standard of proof may appositely express the considerations which s.140(2) of the Evidence Act 1995 (Cth) requires a court to take into account, the correct approach (as recently observed by Branson J. (with whom French and Jacobson JJ. agreed) in Qantas Airways Ltd  v.  Gama (2008) 247 ALR 273, at para. 139 is that :

   . . . references to, for example, “the Briginshaw standard” or “the onerous Briginshaw test” . . . have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s.140 of the Evidence Act provides.

1. Similarly, in Johnson & Page (2007) FLC 93-344, at 81,891, the Full Court of this Court expressly agreed with the “view that reference to the Evidence Act, rather than Briginshaw, is appropriate”.

1. Section 140 is as follows :

   (1)      In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2)      Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account :

   (a)the nature of the cause of action or defence; and

   (b)the nature of the subject-matter of the proceeding;  and

   (c)      the gravity of the matters alleged.

2. The court is not in general required to exclude all reasonable hypotheses consistent with the non existence of a fact, or inconsistent with its existence, before the fact can be found.  However, all the circumstances must be considered together at the final stage of the reasoning process and where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved;  Palmer  v.  Dolman, [2005] NSWCA 631, IppJA at para 41.

1. In Westbus Pty. Ltd. (Administrators Appointed)  v.  Ishak [2006] NSWCA 198 at para 20, the Court of Appeal, citing a number of earlier authorities, observed that the standard of proof is not met if the circumstances appearing in evidence do not give rise to “a reasonable and definite inference”, but at most give rise to “conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture”.

1. In Kuligowski  v.  Metro Bus (2004) 220 CLR 363 at 385, the High Court, in a joint judgment, noted that disbelief of the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. Quoting Rhesa Shipping Co. SA  v.  Edmunds [1985] 1 WLR 948 at 955, the High Court endorsed the finding that in a particular case it may not be possible for the court to reach a conclusion either way and in those circumstances the court is not bound to do so but may take the third course of finding that the party on whom the burden of proof lies has failed to discharge it.

1. Thus in this case, as in every case, the court must assess the competing probabilities of facts in issue, whether directly in issue or to establish a fact from which a further inference is to be drawn.