Eastley and Eastley (No. 2)
[2020] FamCA 997
•1 December 2020
FAMILY COURT OF AUSTRALIA
Eastley & Eastley (No. 2) [2020] FamCA 997
File number(s): CAC 1729 of 2020 Judgment of: GILL J Date of judgment: 1 December 2020 Catchwords: FAMILY LAW – CHILDREN – exercise of the discretion to apply the opinion rule in child related proceedings – interim arrangements for children pending completion of report by single expert – expedited trial – no interim dispute about children living with the mother – where children have not spent any time with the father since shortly after separation – whether father presents unacceptable risk of harm to the children – risks of sexual assault or trauma associated with exposure to the father – risk that children will be unnecessarily deprived of relationship with the father – where the evidence is incomplete and untested – where the same risks do not apply to the same extent to both children – where the risks to one child are nullified by supervised time Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2)(b), 60CC(2A), 60CC(3)(b), 60CC(3)(f), 60CC(3)(j), 61DA(2), 65DAA,
Evidence Act 1995 (Cth) 69ZN, 69ZT(1), 69ZT(3), 69ZT(3)(b), 76, 77, 79, Division 12A
Cases cited: Amador & Amador (2009) 43 Fam LR 268
Baker v R (2004) 210 ALR 1
Johnson & Page [2007] FamCA 1235
Jollie & Dysart [2014] FamCAFC 149
M v M (1988) 166 CLR 69
Maluka and Maluka (2012) 47 Fam LR 272
Marsden & Winch (No 3) (2007) FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
N & S and the Separate Representative (1996) FLC 92-655
Phillips & Hansford [2019] FamCAFC 165
Sahrawi & Hadrami [2018] FamCAFC 170
SS & AH [2010] FamCAFC 13
Number of paragraphs: 129 Date of hearing: 19 November 2020 Place: Canberra Counsel for the Applicant: Ms M Davis Solicitor for the Applicant: Alliance Legal Services Solicitor for the Respondent: Dobinson Davy Clifford Simpson Solicitor for the Independent Children's Lawyer: Legal Aid, ACT ORDERS
CAC 1729 of 2020 BETWEEN: MR EASTLEY
Applicant
AND: MS EASTLEY
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
1 DECEMBER 2020
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The children X (born … 2017) and Y (born …2019) (the children) shall live with the mother.
2.Y shall spend time with the father supervised at the expense of the father by either B Contact Centre or D Contact Centre from 9.00 am to 11.00 am each Tuesday, Thursday and Saturday.
3.The parties are at liberty to vary the times of, duration, and frequency of Y’s time with the father, by agreement in writing.
4.It is noted that the orders in relation to the parties pursuant to the Family Violence Act 2016 (ACT) make specific provision for contact between the parties in relation to facilitating contact handover and these orders do not vary the operation of the Family Violence Order.
5.Expedition is granted to this matter and it is listed for trial to commence on … 2021.
6.The matter is listed for trial directions at 9 am on 10 December 2020 at which time the parties will be heard as to the terms of the orders to apply the opinion rule to particular aspects of the trial.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eastley & Eastley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
These proceedings concern the interim arrangements for the children of the relationship, X (born … 2017) and Y (born … 2019) pending the completion of a report by the single expert, Mr C (with interviews scheduled to take place on 1 December 2020), and pending what will be an expedited trial anticipated to take place in the first half of 2021.
In the interim, there is no dispute about the children living with the mother, they having lived with her since separation in July 2020. They have not spent any time with the father since shortly after separation. The dispute is whether either child should spend any time with the father, the father is presently seeking supervised time. Although the mother seeks sole parental responsibility for the children, this was not a matter addressed by the parties during the interim hearing, as the focus of the parties was on whether the children would spend time with the father.
The key issue for consideration is whether the father presents unacceptable risks of harm to the children, specifically risks of sexual assault, or trauma associated with being exposed to the father.
An initial contest arose as to whether the application for supervised time should be adjourned to be considered following the release of the expert’s report, anticipated as likely to occur after Christmas. The report may throw greater light on the matter. The current absence of the report will call for careful awareness of the limitations on the current interim proceedings. However, the absence of the report is not such as to warrant the delay of all consideration of the children’s time with the father, where they have not seen him for about five months, and where the issue of time can, if necessary be revisited on the release of the report.
The nature of interim proceedings, consideration of best interests and the approach to risk
In interim proceedings, the Court is limited, by the nature of the proceedings themselves, in the manner of consideration of the factual matters that underpin a decision as to what is in a child’s best interests. As outlined in SS & AH [2010] FamCAFC 13 at [81], it is necessary to:
keep in mind the statements in Goode and Goode that at an interim hearing it is important to identify the agreed/uncontested facts and that consideration of the s 60CC factors is likely to be limited, given that there may be little uncontested evidence on which findings can be made.
As stated at [100] of SS & AH, despite this limitation:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
The paramount consideration in determining what order should be made is, pursuant to s 60CA, the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA.
In order to determine what is in a child’s best interests, the Court is required to consider the s 60CC considerations to the extent that they arise in a case. In Phillips & Hansford [2019] FamCAFC 165 at [43], Strickland, Ainslie-Wallace and Aldridge JJ explained that the considerations in s 60CC are “not a mantra to be recited in every case”. Rather, their Honours said that “[o]nly those that are in issue in the proceedings require detailed consideration”.
The Full Court noted in Jollie & Dysart [2014] FamCAFC 149 at [49] and [50] that:
What the Act mandates is a “consideration“ — a mental process of analysis — that has proper regard to such of the enumerated matters as are judged to be relevant to the particular circumstances of the child involved…
…Yet, neither s 60CC nor any other section or Part of the Act requires a judge’s reasons to deal seriatim with each of the s 60CC considerations. Indeed, doing so can sometimes obfuscate the matters which are judged, properly, to be central to the ultimate determination of a child’s best interests and the orders which best meet them.
As with the objects and principles, the s 60CC considerations may point in conflicting directions, and toward different outcomes. It is their synthesis that determines best interest.
The two primary considerations focus, respectively, upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations, that is, protecting the children from abuse, neglect or family violence.
In Marsden & Winch (No 3) (2007) FamCA 1364 at [78], Warnick and Thackray JJ observed in relation to both the interplay between the considerations, that a primary judge is:
of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.
However, they also noted at [77] that:
It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
The primary considerations, described as the “twin pillars” upon which the considerations rest by Brown J in Mazorski v Albright (2007) 37 Fam LR 518, frequently subsume a number of the additional considerations. For example, the additional consideration at s 60CC(3)(j) which concerns family violence involving a child or member of the child’s family will often form a part of the primary consideration relating to the need to protect a child from family violence. Similarly, and noting Warnick and Thackray JJ’s analysis in Marsden & Winch (No 3), that the Act places focus, not on meaningful relationship as an end in itself, but rather in terms of the benefits to a particular child of meaningful relationship with a particular parent, the nature of the child’s relationships (s 60CC(3)(b)) and parenting capacity (s 60CC(3)(f)) will often comprise a part of this consideration.
In this case, the parties appropriately concentrated on the significance of the two primary considerations as determinative of the interim proceedings.
Consideration of risk of harm forms one of the two primary considerations, s 60CC(2)(b). The consideration is of:
The need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) directs the Court, in determining the best interests of a child, as follows:
In applying the considerations set out in subsection (2), the court is to give greater weight to the considerations set out in paragraph (2)(b).
Of all of the considerations that bear upon a child’s best interests, the statute recognises the relative importance of the protection of children from such harm, and gives emphasis to this as a consideration. Issues of the consideration of risk arise on the making of assertions or allegations that, if made out, point to the potential of harm to a child.
The general approach in dealing with allegations is that set out by the Full Court in Sahrawi & Hadrami [2018] FamCAFC 170 where at [39] Ryan and Aldridge JJ stated as follows:
It is a fundamental principle that a party who asserts facts bears the evidentiary onus or burden of proving them to the requisite standard. It is apparent that the mother failed to do so to the satisfaction of the primary judge. As the evidence adduced in support of the allegations was not accepted, it could not therefore continue to have a role to play in the fact-finding process.
This reflects the approach generally applied in litigation (See Alternative facts in the Courts, The Honourable Justice Stephen Gaegler AC, ALJ 93/7) but is subject, in cases involving assessing whether a child is at unacceptable risk of harm, to the approach taken by the High Court in the seminal case of M v M (1988) 166 CLR 69 where it was said:
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression… 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. [emphasis added]
Noting that the objective of the judicial process is to make orders that best promote and protect the interests of the child, the High Court went on to observe at [19] that:
The basic flaw in the appellant’s argument is to identify the allegation of sexual abuse as the paramount issue for determination by the court. In proceedings under Pt VII… the court is enjoined to “regard the welfare of the child as the paramount consideration”. ... The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.
The consequence of this was said by the Court at [21] to justify a deviation from the usual approach in litigation:
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 wide-ranging discretion to decide what is in the child’s best interest cannot be qualified by requiring the court to try the case as if it were no more than a contest 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.
This approach was further explained by the Full Court in Johnson & Page [2007] FamCA 1235:
the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
Further, in Johnson v Page, the Full Court emphasised the non-binary approach, in terms of fact finding, to the question of unacceptable risk, saying:
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. (emphasis added)
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.
In N & S and the Separate Representative (1996) FLC 92-655, Fogarty J observed (as approved in Johnson v Page) that the assessment of unacceptable risk is a qualitative analysis, not merely evaluating the risk of the abuse occurring, but also involving assessment of the magnitude of harm to which the risk relates.
The question of unacceptable risk is not resolved by the mere conclusion that the allegations as to the underlying facts pointing to risk have not been established on the balance of probabilities. In Johnson & Page the Full Court approved the extra curial writing of the Honourable John Fogarty AM, where he (in part) said:
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
In N & S, consistently with the article quoted above, Fogarty J explained:
There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.
That is, it is the overarching conclusion of unacceptable risk that is to be established on the balance of probabilities.
The approach to assessing such a risk in the absence of positive findings of abuse was addressed in N & S, again as confirmed by Johnson v Page, adopting and expanding upon comments made by the New Zealand Court of Appeal:
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“….
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.”
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
The question remains whether, on the evidence as a whole, there is an unacceptable risk, a question that incorporates both the risk of an event occurring, and the risk of harm associated with such an occurrence. That analysis involves an examination of the factual matters put forward as salient to those questions.
The issues and evidence in this case
As already noted, the key issues in this case relate to allegations that the father has sexually assaulted the children, whether there is an unacceptable risk of harm in exposing the children to him, and the consequences to the children of their sudden and ongoing separation from the father.
These are matters that fall within the primary considerations, as they relate to risk of harm and the benefits of meaningful relationship with the father.
The evidence in relation to risk
The mother relied upon a suite of matters as being indicative of risk posed by the father. Each was the subject of criticism by the father including, but not limited to, the concern that the matters had only been considered by the mother through a lens focussed upon the explanation of sexual abuse, rather than being assessed neutrally.
It should be observed that the mother also describes conduct on the part of the father during the relationship that, if established, could fit the description of family violence, as threatening, controlling and coercive. The parties are currently litigating in relation to a family violence order in the Magistrates Court of the Australian Capital Territory. This aspect of the case was not the subject of focus during the interim hearing. Such an approach was understandable given the narrow issues in dispute at the interim hearing insofar as they relate to whether or not supervised time should take place. The mother also raised issues relating to the father’s capacity, which again were properly not the focus of proceedings that concern whether or not limited supervised time should occur.
Incidents
It is helpful to set out a number of the matters relied upon by the parties, even if not in an exhaustive manner at this interim stage of the proceedings.
Although the father agrees that a number of the incidents that the mother alleges occurred, where he does, he denies the sexualised connotation attributed to such by the mother.
The mother describes that from February 2020, X started to take his clothes off, and to play with his penis. She says that from April 2020, X exhibited poor sleep, regression in toileting and tantrums. She experienced difficulties in leaving X, X screaming and begging to go with the mother. The father accepts that X would take his clothes off and play with his penis. The father also accepts that X has trouble sleeping, describing that he would, on occasion, co-sleep with X.
The mother also describes Y, from April 2020 experiencing a decline in her sleeping patterns, and reluctance to go to the father.
Unlike with X, the mother says that she has not been concerned about Y’s behaviour since separation, saying that she appears to be thriving.
However, the mother’s mother reports that on 11 July 2020 (shortly prior to the separation of the parties on 27 July 2020) that she observed an interaction between the father and Y. The maternal grandmother says as follows at [7]:
Later that night (11 July 2020) I was assisting Mr Eastley with the kids while Ms Eastley was at a sports class. Mr Eastley called me into Y's room so he could show me how he changed her nappy. When I entered the room, Mr Eastley was standing over Y with a fresh nappy open underneath her. Before closing the fresh nappy, Mr Eastley placed the heel of his hand on Y's vagina (mans) and moved his palm side to side and said "She likes it". Before I could comment, X came into the room.
While the father agrees that he changed Y’s nappy that evening, and that he probably tickled Y and had his hand near her vagina, he denies the maternal grandmother’s description and allegation. The maternal grandmother did not report this to the mother until some time post separation
The central matters relied upon by the mother commenced immediately before the separation of the parties.
On Sunday 26 July 2020, the mother describes that the father said to X “daddy came in and fixed your covers last night because mummy hadn’t done it properly,” presumably reported by the mother as it indicated that the father had been in X’s bedroom the previous evening.
A little later X became extremely distressed at the prospect of being left behind (with the father) when the mother took Y to swimming. The father accepts that this occurred, describing it as a tantrum. During the day the mother observed X to be upset and clingy. The father said that later in the day X was his normal, happy self. X said to the mother that he was scared of the father, while the mother said that she reassured X that he did not need to be scared of the father. X also said that he did not like the father. The father accepts that in July 2020 the mother told him that X had said that he was scared of the father.
Later that evening the mother and children played on the floor, and were filmed by the father. The father subsequently kissed Y on the lips, saying “oh look she closed her eyes and really went for it.” The father then squeezed X’s buttocks saying that he loved X’s “little tight arse.” The mother says that the father’s conduct toward Y and X was not isolated. The father accepts that he kisses the children on the lips. The father also accepts that he would have made the sort of comments the mother alleges, describing such comments as joking.
The mother says that at about 12.30 am she observed the father to leave the parties’ bedroom. The mother said that she was concerned, X not having made any noise, and that she observed the father to go into X’s room and get into the bed with X. The father agrees that he did so, asserting that he had heard X call out to him. When the father got into X’s bed the mother says that she heard X call out for her, and the father say “daddy’s here.” The mother remained in close proximity to the bedroom throughout the night due to her suspicion in relation to the father, satisfying herself that the father and X appeared to be asleep. She does not suggest that anything untoward was perpetrated by the father upon X during the evening, although the next morning the mother was distressed about the father having spent the evening in the bed, calling 1800 RESPECT and relating the events to them, and later to her mother.
The mother decided to separate from the father that day, having been considering such for some time.
The mother says that during the day (Monday) X was behaving in an uncharacteristic manner. She took X to day care (with Y), but uncharacteristically X became highly upset and unwilling to attend childcare, saying that he wanted “mummy.”
Subsequently the mother entered the childcare facility with X and Y, telling a childcare worker (Ms E, whose file note is contained in ICL 1) of her suspicion that the father was sexually abusing the children. This conversation occurred in the presence of the children, although the mother asserts that it was whispered and in “subtle language” so that X (on her lap) could not hear.
The mother made further contact with 1800 RESPECT and was connected with a counsellor, who she spoke to of her concerns. The counsellor recommended attending upon the G Health Service (GHS), a specialised service based at the F Hospital, for X to have a physical assessment, which the mother did, the details of which, and the ensuing involvement of the Australian Federal Police (the AFP) are set out below.
Later that evening the mother spoke to the father, saying that she had an obligation to keep X safe.
That evening X complained to the mother of a sore “bottie” and “willy.”
The following day (Tuesday) X again appeared distressed to the mother. The mother attended a playground in Suburb H with X and Y so that they could spend time with the father. She reports that X was sobbing and distressed on the attendance of the father. After about five minutes the father conceded that X was too distressed, and that the mother should take the children back to her parents’ house.
That evening X said to the mother that his father “tickles my bottom in a circle” and “tickles my willy and I don’t like it” and that he tells the father to stop and that he does not like it. The mother also says that X described his father as Mr T, and that the father has poo on his hands and should wash his hands but that he does not. The father accepts that he tickles X, and is referred to by X, when he does so, as Mr T. He accepts that he tickles X all over his body, including inside his thighs, but denies tickling X’s penis.
On the Wednesday the mother said that X behaved in a manner that she regarded as “overtly sexual.” She describes X taking his clothes off, posing sexually, lying on his back with a pillow under his hips, panting heavily. X described this as doing his yoga and stretches. She described that X touched his genital area, and that he mimicked a “sultry look.”
On the Friday the mother says that X was distressed at the prospect of his bottom being wiped following a poo, complaining on further occasions through August of a sore bottom.
The mother says that on 1 August 2020 X stroked his genitals. She also described him as pretending to be a kitten, meowing and sucking the metal end of a curtain drawstring. The father accepts that X pretends to be a kitten, describing that X will lick things when he is being a kitten.
The mother says that on 2 August 2020 X said that he did not like the father’s kisses “all over my cheek and mouth.” Later, when the mother was cleaning X’s bottom, the mother said that “we don’t touch each other’s botty unless you have done a poo.” X replied “But daddy does, daddy eats my botty.”
On 7 and 10 August 2020, the mother says that X complained about the father kissing him on the lips.
On 8 August 2020, X told the mother that the father said that X’s “botty can’t make noise to wake Y up.”
The mother says that on 9 August 2020, X asked to snuggle under the blankets with the mother, touching his genitals and touching the mother’s breasts inappropriately.
The mother describes that since separation X has needed constant reassurance that he is safe, saying on occasion that he is sad.
On 5 September, X, in reference to the father, said that “J broke the body safety rules,” and again on 21 September that daddy had broken the body safety rules and daddy had kissed him on the lips. The father says that he has never heard X refer either to J, or to the father as J.
On 22 October, officers from CYPS attended on the mother as part of a risk of harm assessment process. They discussed with the mother her concerns as to sexual harm of the children by the father. Sub-optimally, they did this in the presence of the children (see the CYPS notes at Exhibit ICL 1). During this attendance, they raised with X the possibility of spending time with the father. X was described as dropping to the floor at this suggestion, lying on his stomach and covering his face. This was interpreted as a distressed reaction by X.
Without reciting every aspect described by the mother as to X’s conduct, the mother says that on 3 November X, amongst other comments, described the father as “horrible”, “he needs to go in the bin” and “we don’t belong with daddy anymore.”
The mother describes that on 11 November 2020, X said that he was worried because “daddy smacks me when no-one is there,” that the father had left Y outside as part of time out, that the father gets “very mad” at X. X said that the father wee’d on the floor and computer and on X, and that “I get mad when daddy takes my clothes away, and then rips them and then he wants to make a monster costume.”
The mother says that on 14 November 2020, X described J (a name he uses for the father) “broke my heart when he put things in my mouth”.
On 15 November 2020, the mother reports X saying “daddy’s monster cream, it’s stinky, the monster cream – daddy puts it in my mouth, at night time, when I’m sleeping.”
The mother recounts various other comments made by X indicating that he felt safer with the mother than the father.
The medical examination and investigation
X was examined at GHS. A report of the assessment of the Unit of 26 August 2020 was produced at Exhibit ICL 1. The opinion offered at page 9 of the report was as follows:
1. Genital examination (on 27th July 2020) revealed the presence of a swollen anal orifice, significant erythema and multiple abrasions as described above. These are extremely significant and abnormal findings. These are indicative of significant friction and pressure (blunt force trauma).
2. The events of inappropriate sexual contact reported by X (lines 171-175, line 178, lines 238- 240, lines 264-267) is extremely concerning. It is extremely important to ensure X's safety in the household.
3. X is showing significant sexualised behaviour (lines 184-186, lines 205-210 and lines 248-267) which is not appropriate for his developmental age and raises questions about what he has been subjected/ exposed to. This sexualised behaviour is harmful, dangerous, violative and is highly concerning for abuse and warrants immediate intervention. It is widely accepted that such concerning sexualised behaviour in children is only the 'tip of the iceberg' and that it masks deeper emotional distress.
4. X presents as a highly emotionally distressed young boy - he is showing overt distress (cowering) in non-threatening situations, extreme anxiety when his mother is unavailable, overly sensitive to sound, reluctance to leave the first floor of the house. It is widely accepted that prolonged unresolved emotional distress can disrupt a child's cognitive and psychological development.
The various behaviours and incidents relied upon by the doctor in forming her opinion are largely set out above.
In relation to the examination, the report was silent as to the forms of blunt force trauma that might be responsible for the injuries. However, records produced from the AFP (also produced at Exhibit ICL 1), who were present for the examination and conducted further investigation, note that at the time of the examination the doctors had assessed that the injuries were caused by an object either entering or exiting the anus, and that faeces could not be ruled out as the cause.
The AFP records indicate that X was interviewed with the assistance of the intermediary program, with no disclosure being made, and that a forensic examination had not revealed the presence of semen, but merely a mixed DNA sample which was assessed as consistent with non-suspicious contact.
CYPS has also become involved, forming the view that the sexual abuse, and risk of sexual and other harm to X and Y has been substantiated. Without suggesting that it formed the totality of the reasoning of the author of the CYPS report (contained at Exhibit ICL 1), particular emphasis was placed upon the physical findings of GHS as establishing that sexual abuse had occurred, along with emphasis upon X’s apparent distress at the motion of spending time with the father.
It should be recognised that findings by third parties as to whether abuse or risk is substantiated are not determinative of such matters for the Court. Such findings are persuasive only to the extent that they accord with the court’s assessment of both the underlying matters relied upon by such an agency, and the reasoning process adopted by the agency.
The risk issues
As identified, in interim proceedings, the Court is not in a position to make or to rely upon definitive determinations as to contested matters. At the same time, in assessing the best interests of a child, the Court is still obliged to engage in the process of weighing:
the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected
The evidence led in these proceedings raises the issue of risk of sexual abuse, but the nature of the proceedings does not permit the resolution of that issue. Similarly, the issues of the risk of traumatisation of the children are raised, but again without the capacity to resolve the issue.
These are the two matters raised in opposition to the father’s application for supervised time.
The cases presented by the parties point to polarised results being available at trial. On acceptance of the mother’s case, it could be anticipated that findings would be made of actual abuse having taken place. On acceptance of the father’s case, there has been no such abuse, and the children have been unnecessarily deprived of their relationship with him, to their detriment.
The contest between those cases cannot be resolved at present, particularly where the evidence is incomplete as well as untested. It may be observed that, whether ultimately accepted or not, the criticisms made of the mother’s case are coherent, meaning that the probabilities of the mother’s claims are not absolute. Similarly, the evidence led for the mother presents a coherent case to establish risk, likewise meaning that the probabilities of the father’s claims are also not absolute.
It may be expected that, if the father does present a risk of sexual harm to the children that the consequences to the children of exposure to that risk are grave. The proposal made by the father, insofar as it provides for professional supervision, rather than supervision by a relative, presents an effective protection from sexual abuse in the interim.
However, the risk is not simply of sexual abuse occurring, but of the consequences of the mere exposure of each of the children to the father. Very different factual bases were presented in relation to each of the children by the mother in relation to this aspect.
The mother’s evidence, supported by the observation of the CYPS officers, and the maternal grandmother, is of a degree of distress on X’s part in relation to his father, or in relation to the prospect of seeing his father. The question legitimately arises as to the causes of X’s reactions, and whether it is because of the concerns of the adults around him, or the product of the sudden separation from the father, or as suggested by the mother, the product of abuse. There may also be other, as yet unidentified explanations.
The notion that Y would be traumatised by exposure to the father is not supported by similar evidence. The mother has expressed a lack of concern at Y’s behaviour post separation, and Y is not described as behaving, or reacting in the same manner as X. Even on an interim basis, the issues arising from mere exposure for Y do not arise in the degree suggested for X.
The benefit issues
The hiatus in the time that the children spend with the father, following separation, means that, if there are benefits of meaningful relationship with the father, the children are missing them. If the mother is correct in her description of coercive and controlling behaviour by the father then serious questions will emerge as to the degree of benefits the children may have in meaningful relationship. If the father is correct in his depictions of an intimate, enjoyable relationship with the children, then the benefits of meaningful relationship may be significant. The parties paint different pictures of the father’s parenting and interaction with the children, and those picture are unable to be resolved at present.
However, there are aspects of each of their cases that point to significant involvement in the children’s lives until separation, for example in the shared arrangements seen to be in place whereby it was expected that the father would care for X while Y and the mother were swimming, and where the father took on responsibility in relation to aspects of X’s sleep arrangements. These point to an inference that there was, during the relationship, some acceptance of the benefits of meaningful relationship with the father.
The interim conclusion
There is no neutral conclusion available on an interim basis, in the sense that while orders for the father to spend no time with the children may be perceived as protective against risk, at the same time such orders run the risk of removing relationship that is legitimately for the benefit of the children.
Further, the mere fact of supervision does not necessarily deal with the suite of risks raised, as was observed in M v M:
The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. [emphasis added]
At the same time, the court, in determining the question of best interests is required to weigh both the risks and benefits in a balance. Again as was said in M v M:
In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In striking that balance, it is important to bear in mind the primacy of the consideration relating to the protection of a child from physical or psychological harm arising from abuse at s 60CC(2)(b).
The balance is to be struck differently for X and Y as the evidence speaks differently to the circumstances of each.
In X’s case, while the risk of sexual harm is nullified by professional supervision, the risk of traumatising him by exposing him to the father outweighs the potential benefits of spending time with the father. This is an interim determination, made on contingencies rather than ultimate findings, and without the benefit of evidence from the single expert, which may speak further both to benefits or to risks of traumatising.
In Y’s case, the risk of sexual harm is nullified by supervised time. She does not present in the manner of X as to traumatisation, and in her case the potential benefits of meaningful relationship outweigh the risks associated with trauma.
While it was suggested that differentiation between the children could be problematic, particularly in relation to the impact on X of Y seeing the father, two observations may be made. Firstly, the Act points to the determination of each individual child’s best interests. Secondly, accepting that an impact on X may also impact Y, it is in the mother’s hands as to what information she gives X about Y seeing her father. She may ameliorate such an effect.
While the father sought orders that would see supervision undertaken by either a list of persons, or professionally, the nature of the risks identified point to professional supervision only. Previous case law has pointed to the desirability of professional supervision in cases of serious risk. Although such is likely to present a less comfortable arrangement than time supervised by a relative or friend, the added neutrality and security of such points to it as a better short term arrangement.
The frequency proposed by the father is of three visits, each of short duration, each week. No particular practicalities were identified as undermining such an arrangement, and it gives Y the benefit of frequent and regular time with the father.
While the mother sought an order for sole parental responsibility, this was not a matter directly addressed by the parties in the interim proceedings. The nature of the allegations and the evidential basis put forward for them presents reasonable grounds to believe that the father has engaged in abuse of a child or family violence. This is not the same as concluding that such have occurred, but merely, the assessment that the as yet untested evidence, if accepted, establishes reasonable grounds for such a belief. By virtue of the operation of s 61DA(2) the presumption in favour of equally shared parental responsibility is thereby displaced.
However, in the absence of submissions directly bearing upon the point, it has not been established that an order for sole parental responsibility to be vested in the mother as the primary carer is in the children’s best interests. Accordingly no such order will be made at this point.
Expedition
This matter, as outlined above, involves serious issues of sexual abuse and risk to be resolved at the final hearing of the matter. Those serious issues, and the current hiatus in the time X has with the father and potential compromise of that relationship justify expedition of the matter within the list.
The parties are conducting interviews with the single expert for the preparation of a report, allowing a prompt hearing of the matter.
Trial time is available to hear the matter in the week commencing … 2021.
The opinion rule
The parties were asked whether the opinion rule, as provided for by s 76 of the Evidence Act 1995 (Cth) ought to be applied to the trial of this matter. The opinion rule is disapplied by the operation of s 69ZT(1) of the Act, subject to the Court exercising the discretion at s 69ZT(3) to apply the provision to an issue in the proceedings. Section 69ZT is in the following terms:
(1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2) 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 because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a)the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii)the nature of the subject matter of the proceedings; and
(iii)the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5) Subsection (1) does not revive the operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
Section 69ZT sits within Division 12A, which sets out at s 69ZN the Principles that the Court is to apply in relation to child related proceedings. Those Principles are as follows:
(1) The court must give effect to the principles in this section:
(a)in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b)in making other decisions about the conduct of child-related proceedings. Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b)the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
The parties were at odds over whether the Court should exercise the discretion to apply the opinion rule, the father supporting and the mother resisting its application, and each providing written submissions addressing the issue.
In resisting the application of the rule, the mother’s primary argument was that the powers of the Court to control the proceedings and to determine how evidence will be used and the weight to be assigned to the evidence provides sufficient protection for the parties, whilst adhering to the Principles. She correctly identified that to apply the provision the Court must conclude that the circumstances are exceptional and in considering whether to apply the provision, must take into account the Principles and the matters set out at s 69ZT(3)(b).
The mother argues that the proceedings should not be considered to be exceptional, noting the prevalence of allegations of sexual abuse and family violence before the Court, noting, for example, the creation of the Magellan List as speaking to the commonality of such issues.
The mother’s use of Callinan J’s explanation of “exceptional” in Baker v R (2004) 210 ALR 1 should be accepted:
We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
Two further observations need to be made about exceptionality.
The first is that the presence of any unusual feature in a case does not necessarily make the circumstances relevantly exceptional. For example, an unusual feature related to the identity of the parties, or the parties’ occupations, would be unlikely to be relevantly exceptional as to speak to the exercise of the discretion at s 69ZT(3). The exceptionality is to be an exceptionality related to the subject matter of the controversy.
The second observation relates to the prevalence argument. It is true that almost every child related case before this Registry of the Family Court of Australia features allegations of sexual or other family violence. However, that fact does not answer the question of exceptionality.
Where exceptionality is grounded in the unusual nature of the issues in a case, that unusualness requires assessment across the jurisdiction that the provision relates to, whether the jurisdiction relates to children, bail or sentencing. While all courts exercising the Family Law Act jurisdiction will encounter cases involving family violence or sexual abuse, and that such forms a part of the regular and difficult diet of the Federal Circuit Court, the work of the trial division of the Family Court in relation to children’s matters is the trial work of the superior court of record of the jurisdiction. The result of such is, as recognised in the protocol as to transfer between the courts, that it is generally the worst, or most complex cases that fall to be determined by the trial division. The prevalence of sexual abuse and family violence allegations in the Family Court does not deny them the characteristic of exceptionality. A reasonable argument may be mounted that many of the cases tried by the Family Court, which numerically form a small proportion of the cases heard by the high volume Federal Circuit Court, are generally to be regarded as exceptional, as they deal with matters falling under the criteria identified in the transfer protocol below:
If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court of Australia (“FCoA”), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Circuit Court (“FCC”).
1. International child abduction.
2. International relocation
3. Disputes as to whether a case should be heard in Australia.
4. Special medical procedures (of the type such as gender reassignment and sterilisation).
5. Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.
6. Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.
7. Complex questions of jurisdiction or law.
8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.
That is not to suggest that all cases before the Family Court, or cases involving the potential of particular outcomes, or cases involving particular subject matter automatically attract the exercise of the discretion, as was determined in cases such as Maluka and Maluka (2012) 47 Fam LR 272. It is merely that the argument as to prevalence within this Court does not answer the question of exceptionality within the exercise of the jurisdiction.
The father raised a number of matters to establish exceptionality, and to support the exercise of the discretion. Those matters have been identified at an interim stage of the proceedings, as the matter progresses to an expedited final hearing, and so occur in a context where the cases pursued by each of the parties have not been nailed down. For example, the mother has not identified whether she will ultimately pursue a case to establish that the father has sexually assaulted X.
This, however, does not negate the fact that already the mother has raised, as an issue of importance, the question of whether X has been subjected to a sexual assault. Whether what is ultimately pursued is a finding that such occurred, or merely, absent such finding, that there is an unacceptable risk of sexual harm to X, the proposition that X has been injured in a manner attributable to sexual abuse remains a potentially important factual consideration. Similarly, risks relating to trauma from exposure to the father, in the context of potential traumatisation of X by the father, remain potentially important factual considerations. The seriousness of these issues brings the matter within the description of exceptional as a threshold matter.
Once the threshold of exceptionality has been met, the question of the exercise of the discretion remains. The father points to the importance of the seriousness of the allegations as informing the exercise of the discretion. The nature of the allegation (as it currently, implicitly, stands) meets the description, sits within the description in [93] of Amador & Amador (2009) 43 Fam LR 268 of cases pointing toward the exercise of the discretion to apply the excluded rules of evidence:
An allegation of rape is an allegation of a serious criminal offence. Trial judges will, in most circumstances where allegations of serious criminal offences are made, choose to have all the provisions of the Evidence Act apply to the determination of the issue, as provided for in s 69ZT(3). Her Honour was required to apply the civil standard of proof, as set out in s 140 of the Evidence Act, when making any finding.
However, the exercise of the discretion to direct the application of the opinion rule falls to be determined, not on mere reference to a description as given in Amador, but on application of the statutory considerations, in particular the Principles and the matters contained at s 69ZT(3).
At least in relation to the issues of whether X has been sexually abused, or in relation to trauma flowing from that or from exposure to the father as a result of such, in considering Principle 1, the application of the opinion rule does not change the impact of the conduct of the proceedings upon X. In terms of X’s needs, the application of the opinion rule is of assistance in meeting X’s need to have orders that reflect his best interests, for reasons identified below.
In considering Principle 2, such a direction or decision to apply the opinion rule controls and manages the reception of evidence in order to restrict the scope of the material to that which can be considered to hold probative value.
In considering Principle 3, the making of the direction supports the objective of safeguarding X from violence, and does not expose anyone to an increased risk of exposure.
In considering Principle 4, it is difficult to anticipate that the direction would impact one way or another, save for its potential to assist the parties to focus upon that which is probative in considering X’s interests.
In considering Principle 5, criticism may be made that applying the opinion rule increases the level of legal technicality.
In examining the discretionary considerations identified at s 69ZT(3)(b), both the aetiology of the injuries observed proximate to X’s anus, and the potential for X to be traumatised by exposure to someone who has traumatised him in such a matter, are matters, at least on the current iteration of the case, of great importance in considering issues of unacceptable risk and best interests. The nature of those subjects are such that they can only be addressed in a manner attracting probative weight by the application of specialised knowledge based on a person’s training, study or experience, as expressed by s 79 of the Evidence Act. Should such evidence be adduced other than in the above manner, it will lack any significant capacity to prove the matters for which it is led. Establishing the requirement, prior to the preparation of the trial material, that an opinion will require the support of specialised knowledge ensures that a determination as to best interests is addressed on the basis of appropriate evidential material.
While the observation may be made that the relevance rule may exclude material not based on specialised knowledge, the requirement to reject pursuant to the relevance rule, in rudimentary terms, is that, on the assumption that the evidence will be accepted, it has no capacity to prove the matter.
In contrast, where the subject matter of the direction relates to contentions that, by their nature require specialised knowledge to answer, the opinion rule, and the relevant exceptions, provide a rational and coherent framework for the adducing of evidence that has an appropriate capacity to answer that subject matter.
In such cases, the direction has the benefit that the parties are aware of the terms of the framework for admission, testing and subsequent use of the evidence, in a manner that assists in preparing a case that can probatively answer the issue raised by them. The direction also has the benefit of removing the dross of material that is not grounded in specialised knowledge from the body of evidence that the parties and the Court must assess. The advantages of the removal of material that has negligible probative value from a case generally, and more particularly as it relates to an area of expertise is difficult to overstate.
While s 69ZT(3)(b) also refers to powers in respect of adjournment and the like, such issues are more likely to arise is where the direction is not given prior to the preparation of trial material. Here, the direction, if given, is with ample notice to the parties as they formulate the evidence for their cases.
Lest it be thought that a direction applying the opinion rule automatically cuts a parent out from proffering an opinion in relation to the particular matters, it ought to be appreciated that s 77 of the Evidence Act would have operation, and that s 79 of the Evidence Act provides for specialised knowledge to be established by experience. Whether the parents have a relevant specialised knowledge would be a matter for them to establish.
Consideration must also be given to the scope of any direction to apply the opinion rule. Section 69ZT(3) describes the application of the rules of evidence in relation “to an issue in the proceedings.” As identified by the mother, the general application of Division 12A provides protections on the reception of evidence that may otherwise not be admitted pursuant to the Evidence Act, particularly in assigning weight. While the benefits of applying the opinion rule in relation to the aetiology of X’s injuries, and as to the trauma effects of exposure to someone who has acted in a manner to injure him call for the application of the opinion rule, benefits of a similar degree are not apparent in relation to other, as yet unspecified issues that may arise.
Accordingly, orders will be made to apply the opinion rule to the identified issues of aetiology of injury and issues of trauma arising from exposure to a person who has perpetrated sexual abuse. Prior to the making of those orders, the parties will be called upon as to the terms of such orders, and as to the making of trial directions and the suitability of the allocation of the trial date.
I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 1 December 2020
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