Eastley & Eastley
[2022] FedCFamC1A 101
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Eastley & Eastley [2022] FedCFamC1A 101
Appeal from: Eastley & Eastley [2021] FedCFamC1F 212 Appeal number(s): NAA 89 of 2021 File number(s): CAC 1729 of 2020 Judgment of: AUSTIN, WILLIAMS & HARPER JJ Date of judgment: 8 July 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Unacceptable Risk – Where the primary judge found the father posed an unacceptable risk of harm to the children and made orders providing for the mother to have sole parental responsibility for and residence of the children, with the children spending no time nor communicating with the father – Error of law – Where the primary judge was not obliged at law to settle nominated factual controversies – Inadequacy of reasons – Where the primary judge’s reasons are adequate as it can be discerned why the findings were made – Failure to make findings – Where there could be no error in abstaining from making a definitive factual finding when the evidence precludes it – Where it is well accepted that an accumulation of factors not individually proven on the balance of probabilities can still be enough to demonstrate the existence of an unacceptable risk – Mistake of fact – Where the father submitted the mere possibility of his sexual deviance was not enough to support the finding he poses an unacceptable risk of harm – Where the finding was open on the evidence – No error identified – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Athens v Randwick City Council [2002] NSWCA 83
Isles & Nelissen [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69; [1988] HCA 68
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170
Savage v Lunn [1998] NSWCA 203
Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125
U v U (2002) 211 CLR 238; [2002] HCA 36
Heydon, J.D, Cross on Evidence (LexisNexis Australia, 13th edition, 2021)
Number of paragraphs: 68 Date of hearing: 28 June 2022 Place: Heard in Sydney, delivered in Newcastle Counsel for the Appellant: Mr Kearney SC with Ms Carter Solicitor for the Appellant: Alliance Legal Counsel for the Respondent: Dr Smith with Ms Tiernan Solicitor for the Respondent: Dobinson Davey Clifford Simpson The Independent Children's Lawyer: Filed Submitting Notice 14 February 2022 ORDERS
NAA 89 of 2021
CAC 1729 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR EASTLEY
Appellant
AND: MS EASTLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, WILLIAMS & HARPER JJ
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant shall pay the respondent’s costs of and incidental to the appeal fixed in the sum of $41,555.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eastley & Eastley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, WILLIAMS & HARPER JJ:
By an Amended Notice of Appeal filed on 31 March 2022, the father appeals from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 19 November 2021 relating to the two children born to his relationship with the respondent mother.
The Independent Children‘s Lawyer (“the ICL”) filed a Submitting Notice, but the mother resisted the appeal.
For the reasons which follow, the appeal is dismissed with costs.
BACKGROUND
The parties commenced cohabitation in 2011, married in 2013 and finally separated in 2020.
The two children were born in 2017 and 2019. They were respectively aged four and two years at the time the trial concluded and the appealed orders were later pronounced.
At or about the time of separation, the mother formed the view the father had sexually abused the elder child and so withheld both children from him. The father commenced proceedings seeking parenting orders under Pt VII of the Family Law Act 1975 (Cth) a month later in August 2020.
In September 2020, the proceedings were transferred to the Family Court of Australia from the Federal Circuit Court of Australia (as the courts were then known). In December 2020, the primary judge made interim orders providing for the children to live with the mother and for only the younger child to spend supervised time with the father. However, those orders were only implemented for about six weeks. The mother ceased compliance when informed by the supervisor the father had experienced penile erection when with the younger child, which the father denied (at [6]). The father made no attempt to enforce the orders after January 2021.
As a consequence, the younger child spent no time with the father after January 2021 (at [7]), though the elder child spent no time with him after the marital separation in July 2020, other than when they were interviewed together by the single expert psychologist in November 2020 (at [5], [144] and [196]).
As identified by the primary judge (at [1], [8] and [23]), the two principal issues at trial were, first, whether the father presented an unacceptable risk of harm to the children, and secondly, in any event, whether the elder child would be at risk of emotional harm due to fear and trauma he would likely endure if he were to spend any time with the father.
The trial concluded in May 2021 and judgment was delivered in November 2021.
The orders provided for the mother to have sole parental responsibility for the children and for them to live with her (Orders 2 and 3). Even though it was common ground the children should continue to live with the mother (at [1] and [229]), curiously, the father still appeals from the residence order. The allocation of parental responsibility was always in dispute (at [14]–[17] and [230]), so his appeal from that order is at least understandable.
The orders directed that the children not spend any time nor communicate with the father and restrained him from approaching or contacting the children until they attain their majority (Orders 4 and 5). The father’s elimination from the children’s lives followed upon findings made by the primary judge that he poses an unacceptable risk of harm to them, which risk could not be satisfactorily ameliorated by any form of order (at [259]–[271]).
The primary judge found the unacceptable risk of harm comprised a “suite of risks” (at [259]), comprising the father’s “potential deviant interest” (at [253] and [260]), his “poor judgment and poor boundary setting” (at [261]), the elder child’s potential trauma from spending time with the father (at [262]), and the elder child’s likely adverse reaction if the younger child was to spend time with the father alone (at [263]).
More specifically, the finding of the father’s “potential deviant interest” was based on an aggregation of evidence concerning him touching the children in sexualised ways and by acting in sexualised ways in their presence, including: massaging the elder child’s testicles, which the father admitted (at [232]); making comments and engaging in conduct, described as sexualised, in the children’s presence, which the father also admitted (at [241] and [247]); the prospect he rubbed the younger child’s mons pubis when changing her nappy, an incident which the father said was misconstrued by the maternal grandmother as he only tickled her in an area proximate to her genitals (at [240]); and him experiencing an erection when spending supervised time with the younger child (at [252]–[253]), entailing the rejection of the father’s denial of the incident (at [70] and [250]).
THE APPEAL
Grounds 1 and 3 – errors of law
These two grounds allege the primary judge erred at law (not in fact) by determining the father posed an unacceptable risk of harm to the children, though the contention of error was particularised in different ways.
First, it was asserted the primary judge was obliged to make certain factual findings to settle contested evidence, but then failed to do so (Grounds 1.1, 1.2, 1.3, 3.1, 3.2 and 3.3).
Secondly, it was asserted the primary judge was obliged to determine the nature and magnitude of the risk of harm posed by the father to the children, but then failed to do so (Grounds 1.4 and 3.4).
As to the first species of complaint, the assertion the primary judge was obliged by law to settle certain nominated factual controversies is rejected. The parties’ evidence revealed a multitude of factual discrepancies, many of which were specifically addressed by the primary judge in the reasons for judgment, some without any positive or negative finding being made. Importantly though, the primary judge was not required by law to definitively resolve even the pivotal factual disputes when assessing the risk of harm within the wider context of the discretionary determination of the particular orders which would best promote the children’s interests.
In M v M (1988) 166 CLR 69, the High Court of Australia said this (at 76–77):
…[I]t 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 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.
…
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 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.
…
…[I]n 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) (Footnotes omitted)
These grounds, if accepted, would exhort the primary judge to act contrary to those principles. The primary judge did as the law required. His Honour made positive factual findings in respect of some material factual disputes when able to do so, but properly focussed upon the task of risk assessment. Neither the mother nor the ICL sought positive findings against the father. Instead, they sought a finding he poses an unacceptable risk of harm to the children.
The mother submitted this in her Case Outline document:
The Court is asked to determine whether or not, as contended by the mother, time between the children and the father would expose them to an unacceptable risk of harm.
…
It is submitted that the untested evidence establishes risk of a significant magnitude and no orders can properly be crafted to ameliorate the identified risk.
Then, in her later written submissions, the mother posed this as the ultimate issue:
Does the evidence support a finding of “unacceptable risk”?
In relation to the second species of complaint, the primary judge expressly determined the constituent variables of the risks of harm posed by the father to the children, concluded the magnitude of the risk was “unacceptable”, and found the risk could not be alleviated by imposing safeguards such as professional supervision or educational therapy for the father (at [259]–[271]). Whether or not those findings were open on the evidence is an entirely different question, but it cannot be competently contended the primary judge erred at law by failing to make the necessary findings required by law, so these grounds fail.
Ground 2 – inadequate reasons
This ground asserts the primary judge erred by failing to deliver adequate reasons for the finding that the father poses an unacceptable risk of harm to the children.
The father identified the alleged deficiency of reasons concerning such finding in his Summary of Argument in this way:
20.…[the finding] fails to evaluate the possibility of a future occurrence of any identified conduct and, further, fails to identify the risk said to arise to the children in any manner that bears any evident relationship to any anterior finding made.
We reject that submission. The possibility of the children’s sexual abuse by the father was plainly evident from the reasons for judgment. The primary judge did not need to “evaluate” or rate the possibility by any numerical standard, but rather only determine whether or not the risk was “unacceptable”, which his Honour duly did. The reasons explained how the finding of unacceptable risk flowed from an accumulation of facts and circumstances, including:
(a)the father’s “potential deviant interest” (at [253] and [260]), which finding in turn flowed from these underlying facts and circumstances:
(i)the father admitted massaging the elder child’s testicles;
(ii)the father admitted making comments and engaging in conduct, described as sexualised, in the children’s presence;
(iii)the possibility the father rubbed the younger child’s mons pubis in the manner alleged by the maternal grandmother, even though denied by him; and
(iv)the finding the father did experience an erection when spending time with the younger child under professional supervision, even though denied by him.
(b)the father’s “poor judgment and poor boundary setting”, even if he did not have a “deviant interest” (at [261]);
(c)the elder child’s potential trauma from spending time with the father (at [262]); and
(d)the elder child’s likely reaction to knowing the younger child was spending time with the father alone (at [263]).
The primary judge’s reasons for the finding of “unacceptable risk” are quite adequate as it can be discerned how and why his Honour made it. Demanding more of the primary judge would be descending to “an overly critical, or pernickety, analysis”, being an approach the High Court of Australia has deprecated (AMS v AIF (1999) 199 CLR 160 at 211; U v U (2002) 211 CLR 238 at 270). The father’s various other challenges to those findings are yet to be addressed, but this ground alleging insufficiency of reasons fails.
Grounds 7 and 8 – failing to make findings
Ground 7 complains the primary judge failed to make any factual finding about the “nappy changing allegations” and thereby erred.
The maternal grandmother gave evidence that, in July 2020, the father asked her to watch him change the younger child’s nappy, during which process he rubbed the younger child’s naked mons pubis from side to side with the heel of his hand and said “she likes it”. The father admitted he changed the younger child’s nappies, admitted the maternal grandmother may have witnessed him do so, and admitted he tickled the child on her legs and stomach close to her genitals, but denied doing as the maternal grandmother alleged and denied his derivation of any sexual gratification (at [47]–[48]).
In evaluating the competing evidence, the primary judge found there was good reason not to reject the evidence given by either the father or the maternal grandmother (at [243]–[245]) and ultimately concluded:
246.This leaves the massaging of the mons pubis as an open question, neither established nor rejected on the balance of probabilities. …
There could be no error in abstaining from making a definitive factual finding when the primary judge explained why he was not convinced on the balance of probabilities the incident occurred as the maternal grandmother alleged. However, the primary judge’s enduring suspicion the incident might have occurred as the maternal grandmother alleged was still legitimately available to take into account as part of the matrix of evidence upon which the finding of “unacceptable risk” was premised. It is well accepted that an accumulation of factors, not individually proven on the balance of probabilities, can still be enough to demonstrate the existence of an unacceptable risk of harm to children. Ground 7 fails.
Ground 8 is similar to Grounds 1.4 and 3.4 but, whereas those complaints were of the primary judge’s alleged erroneous failure to assess the nature and magnitude of risk posed by the father by reference to the evidence overall, this ground was more specific. It complains the primary judge erred by failing to determine the nature and magnitude of the risk of harm posed by the father to the children arising from three specific incidents, being the “massage incident”, the “rubbing incident” and the “erection incident”.
The first point to be made is that the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127–130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]).
The father submitted this in his Summary of Argument:
18.It is submitted firstly that it was incumbent the primary Judge to determine the occurrence, or otherwise, of the identified factual issues underlying the inferences considered to be left open from such undetermined facts. More particularly, it was incumbent upon His Honour to determine to the relevant [civil] standard [of proof]:
18.1whether the appellant's denial of sexual motivation in relation to the bath incident was to be accepted, including in all of the relevant circumstances;
18.2whether the appellant had engaged in conduct during the 'rubbing incident' as alleged or not; and,
18.3having found that the appellant had an erection during the relevant incident, whether such resulted from a relevant interest in the [younger child] and/or other children.
19.… Even if it is to be accepted that, in the immediate context, it is sufficient for a Court to conclude that it is no more than possible for an event to have occurred, then it is necessary for the Court to both so conclude and in so doing have regard to the particular evidence that leads to such a conclusion, including the nature and strength of the possibility and of the resulting conclusion. It is submitted that this has not occurred here.
(Footnotes omitted) (Bold emphasis added)
We do not accept the submissions. The primary judge relevantly determined no positive finding could be made with respect to whether or not the “rubbing incident” occurred as the maternal grandmother alleged, whether or not the “bath incident” was sexually motivated, or the cause of the “erection” incident. But his Honour was under no legal obligation to make positive or negative findings in relation to those three incidents.
We have already described the evidence and the finding concerning the “rubbing incident” (also referred to as the “nappy changing allegations”), which need not be repeated.
The “bath incident” (referred to as the “massage incident” in Ground 8) refers to an event when the father was bathing the elder child; then a baby. A video recording was tendered in evidence depicting the father massaging the elder child’s testicles while saying “You love that, don’t you?”. The mother was present and apparently took the video footage on that occasion, but the father admitted it happened more than once (at [43]–[44] and [232]). The father denied his derivation of sexual gratification from such conduct (at [45]). The primary judge was unable to conclude whether the father’s conduct was sexually motivated but, even if it was not, found it nevertheless “showed poor judgment and insight” (at [234]–[236]), which finding aligned with the opinions expressed by the adversarial expert psychologist (at [174]–[177] and [233]) and the single expert psychologist (at [214]).
The “erection incident” is the epithet given to an event in January 2021 while the younger child was spending professionally supervised time with the father at a water park with other children around. The supervisor observed the father experienced penile erection, which she formally reported (at [65]–[69]). The father denied he had an erection and contended the supervisor must have been mistaken (at [70] and [250]), but the primary judge accepted the supervisor’s evidence as being truthful and correct (at [251]–[252]). His Honour considered the evidence was “suggestive” of the father’s “deviant interest in children” when considered in conjunction with other evidence (at [253]), which finding aligned with the opinions expressed by the adversarial expert (at [180]–[181]) and the single expert (at [216]).
The suspicion of sexuality which attended those incidents gave rise to the material possibility of the father’s improper sexual interest in the children, or alternatively, demonstrated his “poor judgment and poor boundary setting”. As was open, once the totality of the evidence was assimilated, the primary judge found the risk of harm posed by the father to the children was unacceptable. His Honour need not have done more, as the father now asserts he should have, by making more intricate findings about the “nature and strength” of the possibility. The assessment of whether or not a risk is “unacceptable” is a judgmental step which does not easily admit of elaboration (Athens v Randwick City Council [2002] NSWCA 83 at [16]).
The father submitted the primary judge committed the error identified in Sahrawi & Hadrami (2018) FLC 93-857 at [50] by:
…construct[ing] a category of “fact” which is neither proven nor unproven but upon which the Court can act as if it has been proven – that is, that there is a risk that the non-accepted evidence might nonetheless be correct.
We reject the submission. The primary judge in Sahrawi & Hadrami erred by relying upon evidence already rejected for unreliability as the premise for hypothesising it might still be truthful and correct, which approach was incompatible. In this instance, none of the evidence adduced by or on behalf of the mother was rejected. It might not have been strong enough in some instances to support positive findings of fact against the father, but it was still regarded as reliable evidence, capable of supporting findings about prospective risks of harm. Ground 8 also fails.
Grounds 4, 5, 6, 9 and 10 – mistaken findings
These grounds all contend for mistaken findings of fact and may be conveniently summarised as follows:
(a)it was an error to find there was a “relevant possibility of deviance on the part of the [father]” (Ground 4.1);
(b)it was an error to find there was a “relevant possibility that the [father] might sexually touch or sexualise the children” (Ground 4.2);
(c)the findings in relation to the “massage incident” were erroneous because the primary judge misapprehended the evidence about the number of times it occurred (Ground 5.1) and failed to take into account the [mother’s] presence and involvement in the incident (Ground 5.2);
(d)the findings in relation to the “erection incident” were erroneous because the primary judge failed to have regard to the entirety of the evidence (Ground 6.1) and it did not demonstrate the father had a deviant interest in children (Ground 6.2);
(e)it was an error to find there were “development risks for the children” from having contact with the father (Ground 9.1);
(f)it was an error to find that the elder child’s relationship with the mother would be undermined by his contact with the father (Ground 9.2);
(g)it was an error to find “there were risks arising” if the children spend time with the father (Ground 9.3);
(h)it was an error to find “there was no proposal for therapy in relation to the [father]” (Ground 9.4);
(i)it was an error to find that contact between the children and the father would expose them to the risk of trauma (Ground 10.1); and
(j)it was an error to find the risk of trauma to the children could not be ameliorated by some form of conditional interaction with the father (Ground 10.2).
Grounds 4.1, 4.2 and 9.3 all concern related findings about the children’s exposure to the risk of sexual abuse (and hence harm) by reason of the father’s possible sexual deviance. The primary judge found the evidence did not establish the father’s deviant sexual interest on the balance of probabilities, but did find that, in aggregation, the evidence about the “bath incident”, the “nappy change incident” and the “erection incident” was:
253.…sufficiently suggestive of [the father’s] deviance to lead to a conclusion that the father presents a risk of harm to the children … leaving the position that the risk to the children is to be assessed against the prospect that the father’s behaviour was the product of deviant interest.
The primary judge re-iterated the finding in this way:
260.Each of the children face a risk connected to the father’s potential deviant interest. Such a risk persists even where the finding falls short of establishing deviance, as the matters that point to the conclusion of deviance raise the possibility of deviance as an explanation in a manner that is not negatived by other evidence. That possibility raises risk to the children that the father may deal with them in the future in a manner driven or motivated by such deviance. The risks flowing from such dealing covers a spectrum of behaviour, from a sexual touching of the children, to the sexualising of the children in a manner that compromises their development. These risks are unacceptable, outweighing significantly any potential benefit from time with the father whilst they remain extant.
The father’s submission was, in effect, that the mere possibility of his sexual deviance was not enough to support the finding he poses an unacceptable risk of harm to the children. We reject the submission. We see no reason to doubt the finding of unacceptable risk was open on the available evidence. The material possibility of the father’s sexual interest in the children was enough to support the finding, which need not have been demonstrated according to the civil standard of proof (Isles & Nelissen [2022] FedCFamC1A 97 at [6]–[7], [46]–[51] and [81]).
Grounds 5.1 and 5.2 concern the findings made about the “massage incident”, involving the father’s massage of the elder child’s testicles. The father’s complaints are that, first, the primary judge mistakenly found this form of conduct took place more than twice when he admitted it occurred only twice, and secondly, the mother was present when it first occurred in the bath and she was amused but not alarmed by the incident. However, neither of those considerations impugn the findings made. The father certainly massaged the elder child’s testicles on more than one occasion and there was certainly no genuine therapeutic or hygienic reason for it to be done. The primary judge could not find the incident in the bath was sexually motivated, but found at the very least it showed the father’s impaired insight. That the mother once imprudently acquiesced to the father’s conduct does not exclude the possibility of his sexual motivation nor mean his conduct was not similarly foolish. By the time of trial, the mother acknowledged such conduct was improper, but the father did not (at [187], [193] and [214]).
Grounds 6.1 and 6.2 concern the findings made about the “erection incident”. The father’s complaints are that, first, the primary judge failed to take into account the entirety of the evidence when finding the father had an erection, and secondly, the primary judge was mistaken to find the incident “demonstrated or was related to a deviant interest in children”.
As to the first complaint, the father submitted the finding was made in ignorance of the supervisor’s admission she saw no “inappropriate interaction” between the father and the younger child. The submission is rejected because the primary judge expressly acknowledged her concession when rationalising the evidence (at [67]).
As to the second complaint, the father submitted there was “no reasoning disclosed for the finding”, but that is a complaint about inadequacy of reasons which cannot be advanced in support of these grounds concerning allegedly mistaken fact-based findings. In any event, we accept it was open for the primary judge to find the father’s experience of an erection when playing with the younger child amongst other children, in combination with other curiously sexually ambiguous incidents, tended to suggest the father held a deviant sexual interest in children.
Ground 9.1 mounts an attack upon the primary judge’s finding expressed thus:
261.Sitting below that risk [of possible sexual deviance], and independent from risks flowing from deviance, are risks relating to poor judgment and poor boundary setting by the father. This carries with it developmental risks for the children, and undermines the capacity of the father to benefit the children by virtue of relationship with him.
In effect, his Honour concluded that, even if the father does not have a deviant sexual interest in the children, the evidence nonetheless established how his poor judgment and lack of insight into the inappropriate nature of his behaviour was itself problematic. It is necessary to advert to the evidence to help explain why that finding was made.
The father engaged the adversarial expert to provide expert opinion evidence about whether he posed any risk of sexual abuse (and hence harm) to the children but, following his decision to abandon reliance upon the adversarial expert, her report was tendered as an exhibit by the ICL and she was cross-examined (at [12] and [145]–[146]). The adversarial expert gave evidence to the effect that there were only two ways to construe the father’s behaviour: either he has a deviant sexual interest in children or he lacks insight and has impaired judgment (at [172]). She was ultimately unable to say which was more likely (at [184]), but considered the father’s behaviour to be “non-normative” and fell beyond what would be considered “acceptable” (at [174]–[175] and [182]). She opined the father’s poor judgment itself carried with it “development risks” for the children (at [188]).
The single expert also furnished a report and was cross-examined (at [144] and [195]), though his report was directed to broader considerations than the adversarial expert’s report. The single expert was invited in cross-examination to comment upon the father’s behaviour and he agreed it was “not normative” and “not appropriate” (at [214] and [216]). Even if the father’s behaviour was not overtly sexually motivated, the single expert explained how “loose sexual boundaries” were confusing for children and ran the risk of encouraging their sexualised behaviour (at [217]). He too considered such conduct posed “significant developmental risk” for the children and showed a deficit in the father’s parenting capacity (at [219]).
As can be seen from the synopsis of the expert evidence, the experts were largely in agreement and the primary judge’s finding (at [261]) aligned with their opinion evidence. It must follow that the father’s complaint the primary judge erred by finding there were “development risks for the children” rings hollow.
Ground 9.2 should be recited verbatim. It contends his Honour erred by finding that:
[T]here was any basis for, and in any event that there was, a finding that [the elder child’s] relationship with the [mother] would be undermined as a result of contact with the [father]
(Emphasis added)
We reject the proposition. The father did not identify where in the lengthy reasons for judgment the primary judge made any such a finding. The only similar reference we can find (at [262]) is confined to mention of the risk that the elder child’s relationship with the mother could be undermined, as opposed to being a positive finding it would be undermined. The ground therefore misstates his Honour’s reasons.
Ground 9.4 alleges the primary judge erred by finding no proposal was made for the father’s therapy, but the proposition is rejected because the finding was correct. The adversarial expert offered some ideas about different types of therapy the father could undertake (at [189]–[194]), but in the reasons for judgment the primary judge correctly recorded this:
264.… No party contemplated orders that provided for therapy for the father as identified by [the adversarial expert], therapy which on her description would necessitate further assessment of the father as to whether it has been effective. …
His Honour noted (at [14]) the orders sought by the parties and the ICL were annexed to the reasons for judgment. Perusal of those orders discloses nobody sought orders compelling the father to undertake any form of therapy designed to improve his parenting capacity, as distinct from orders requiring the family to participate in therapy to ease the parental communication and the elder child’s re-introduction to the father. In any event, even if orders requiring the father’s individual therapy had been proposed, it would not have advanced his cause. Stand-alone orders directing a party to engage in therapy which disconnected from parenting orders are likely to be beyond power (Oberlin & Infeld (2021) FLC 94-017).
Grounds 10.1 and 10.2 both concern the findings made about “trauma”, but it is necessary to correct an inaccuracy at the outset. The grounds allege, expressly and impliedly, the trauma findings were made in relation to the “children”, but in fact they were made only in relation to the elder child.
The single expert gave evidence, both in his report and orally, about the way in which the elder child’s presentation and reaction to the father was strongly suggestive of him suffering trauma (at [196]–[200]). The single expert hypothesised there were three plausible explanations for it, which were explored in cross-examination (at [201]–[202]). The single expert opined the trauma-like reaction was not likely due to “emotional contagion” (at [208]), which was the term artfully employed to describe the father’s theory of the mother’s intentional or inadvertent alienation of the elder child from him. The single expert considered it was most likely the elder child had been exposed by the father to some kind of trauma, but could not say of what type (at [211] and [220]).
In reliance upon that evidence, as was open, the primary judge made these findings:
255.A conclusion that the father has acted in a manner to traumatise [the elder child] prior to separation is reliant upon an inference drawn from [the elder child’s] presentation. [The elder child] presents as a child who has suffered trauma. There are, however, differential explanations flowing from alternative inferences.
…
258.On balance, being exposed to trauma of some form by the father, rather than emotional contagion, is the preferable explanation.
…
262.Further risks arise for [the elder child] that are not at present a feature for [the younger child]. Whilst [the younger child] appears to have enjoyed positive interactions with the father post separation, [the elder child’s] reaction to the father raises the prospect of repeated traumatisation for [the elder child] were he to spend time with the father. This carries with it risks associated with the undermining of [the elder child’s] relationship with the mother. Repeated exposure to trauma would be deleterious to [the elder child’s] wellbeing, and risk him being “broken”. Repeated trauma to [the elder child] also presents a risk that is unacceptable, outweighing benefits that he may gain from time with the father whilst such risks persist.
The single expert balanced the elder child’s competing interests in the father’s exclusion from and inclusion in his life (at [220]–[226]) but, as the single expert recommended, considered both children should be subject to identical orders and not treated differentially (at [227]). Significantly, neither party nor the ICL propounded orders, even as an alternative fall-back position, to treat the children differently.
Again, in reliance upon such expert evidence, the primary judge made these findings:
263.Risk also flows from the prospect of the children being subject to differing regimes in relation to the father. Were one child to spend time with the father, risks flow to the relationship between the children, and also, for [the elder child], from the prospect that he is aware that [the younger child] is spending time with the father and is subject to risk from the father.
…
269.However, even professional supervision is not sufficiently protective of [the elder child’s] wellbeing. [The elder child] faces the prospect that if he is to spend time with the father he may well be repeatedly traumatised. At present there cannot be a prediction that [the elder child] will cope with such trauma, or adapt to it, or get past it. It was conceded by [the single expert] that arrangements to spend time with [the elder child] would require review which was a step that no party pursued. Accordingly, even professional supervision carries serious prospects of harm to [the elder child] that are not dependent upon any persistent risk that the father would do harm to [the elder child].
…
271.… Even if [the younger child] was protected by indefinite supervision (a position not pursued by any party), the benefits to [the younger child] are limited, and countered by potential adverse effects of treating the two children differently.
The primary judge expressly considered whether any orders could be made which would enable the children to safely spend time together with the father so they could retain their relationships with him. His Honour rejected the idea of professional supervision on either a limited or permanent basis (at [264]–[271]). It followed that there was no safe option but to exclude the father from the children’s lives.
These grounds all fail.
DISPOSITION
The appeal is dismissed.
The mother sought her costs of the appeal in the event it was dismissed, which we consider she should have, over the father’s objection.
The appeal was wholly unsuccessful, despite the father’s motivation of grave concern about the effect of the orders to appeal from them, and his financial circumstances do not apparently militate against such an order. He expended some $110,000 on his own legal costs and disbursements in the appeal, which he must have the resources to pay. The mother sought costs in the sum of $41,555, the quantum of which the father did not dispute.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Williams & Harper. Associate:
Dated: 8 July 2022
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