Farina and Farina
[2012] FMCAfam 666
•20 June 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FARINA & FARINA | [2012] FMCAfam 666 |
| FAMILY LAW – Parenting – interim orders – whether unacceptable risk of abuse if supervised contact is continued – application for suspension of supervised contact dismissed. |
| Family Law Act 1975, ss.60B, 60D, 64(1), 69ZT(3), 69ZV, 100A Law Reform Act 1995 |
| A. v. A. (1976) V.R. 298 B and B [Access] (1986) FLC 91-758 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 Brown and Pedersen (1992) FLC ¶92-271 cf. J. v. Lieschke (1987) 162 C.L.R. 447 G. (a minor) (1987) 1 W.L.R. 1461 Goode & Goode (2006) FLC 93-286 K v B Leveque v. Leveque (1983) 54 B.C.L.R. 164 M and M (1987) FLC ¶91-830 at pp.76,240-76,242; (1987) 11 Fam. L.R. 765 McKee v. McKee (1951) A.C. 352 N and S and the Separate Representative (1996) FLC 92-655 Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, FLC 93-192 Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; S v S [1993] NZFLR 657 TF and JF and Children’s Representative [2005] FamCA 394 V and V [2004] FamCA 1081 Vasser & Taylor-Black [2007] FamCA 547 W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129 WK v SR (1997) FLC 92-787, 22 FamLR 592 |
| Applicant: | MR FARINA |
| Respondent: | MS FARINA |
| File Number: | SYC 981 of 2012 |
| Judgment of: | Altobelli FM |
| Hearing date: | 19 June 2012 |
| Date of Last Submission: | 19 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 June 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Greenaway |
| Solicitors for the Applicant: | Walker Kissane & Plummer Solicitors |
| Counsel for the Respondent: | Ms Coulton |
| Solicitors for the Respondent: | Robyn Sexton & Associates |
ORDERS
The Interim Orders sought in the Mother’s amended Response filed 2 April 2012 be dismissed.
The matter otherwise be stood over to 20 August 2012 at 9am.
IT IS NOTED that publication of this judgment under the pseudonym Farina & Farina is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 981 of 2012
| MR FARINA |
Applicant
And
| MS FARINA |
Respondent
REASONS FOR JUDGMENT
Introduction
I provide the following oral reasons in the matter of Farina. This case is about two children, twins [X] and [Y] who are both five years old. The issue before the Court on an interim basis is whether there is an unacceptable risk of abuse arising out of the children having contact with the father, be that supervised or unsupervised.
The applicant father is 37 years old. He is a [occupation omitted]. The respondent mother is 36 years old. She is a [occupation omitted]. They married in 2003 and separated in September 2010. The matter first came before the Court on 2 April 2012 with the presenting issue being contact. The father wanted to regularise this by orders that included overnight contact. The mother responded by saying there should be no contact at all as the children had made disclosures about sexual abuse or inappropriate conduct. On that first date I appointed an Independent Children’s Lawyer and stood the matter over to 11 May 2012 for interim hearing.
On 11 May the parties, with the assistance of the Independent Children’s Lawyer, negotiated consent orders providing for the father to have supervised time with the children weekly on alternating Saturdays and Sundays. It seems common ground that this supervised contact took place only once on 19 May 2012. On 11 May the matter was set down for hearing before me on 17 to 19 December and orders were made appointing a Part 15 expert. On 1 June 2012 the mother filed an amended response seeking, in effect, the suspension of all contact. This is the issue that came before me on 19 June 2012.
The mother’s proposal is that all contact cease, at least until Dr K provides his report. In this regard interviews are to be held on 13 July, which is about four weeks hence. Of course his report might take longer. The father’s proposal is that there be no change to the existing arrangements and the Independent Children’s Lawyer supports the father’s proposal in this regard.
The applicable law governing this application is, of course, Part VII of the Family Law Act. The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some assistance and guidance as to how to deal with these cases and the applicable law.
A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). 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 fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
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: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a 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.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“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.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR (1997) FLC 92-787, 22 FamLR 592 the Full Court emphasised the standard of proof that applies in these cases at para.47:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, FLC 93-192, in referring to WK v SR the Full Court observed at paras.18 and 19:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38 and 39:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.
45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
It is frequently the case that allegations of sexual abuse are raised in interim proceedings. Wherever possible it is important for the evidence of the protagonists, usually but not always parents, to be tested by cross-examination in some limited fashion. This enables the Court to form an impression, albeit only an impression, about the veracity of the claims made and of the character of the parents. Notwithstanding this, a Court should be wary about making findings of credit after only an abbreviated hearing.
Often it will not be possible to test the evidence in interim proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings:
At paragraph 5 of her written submissions counsel for the independent children’s lawyer, having earlier referred to the test set out in M and M (supra) namely, “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”, submitted:
When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent. In order to weigh the competing risks, the court should analyse what the risk is. To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk. (paragraph 5).
It should also be remembered that Division 12A of Part VII of the Act applies as much to proceedings involving these serious allegations as it does to other child-related proceedings. In each case consideration needs to be given as to whether s.69ZT(3) should be invoked, thus reinstating the application of certain provisions of the Evidence Act 1995, in whole or in part, as regards an issue in the proceedings. The Court needs to give consideration to this, whether or not it is raised by the parties, but the Court also needs to have regard to the need to protect the child from harm, as well as protect the rights of those against whom serious allegations are directed. The Court must also not lose sight of the fact that even though s.100A of the Act has been repealed thus potentially excluding evidence of disclosures made by children if s.69ZT(3) is invoked, s.69ZV seems to be intended to, in effect, reinstate s.100A.
The evidence before me consisted of several affidavits filed on behalf of the mother and some supporting witnesses. There are also affidavits filed on behalf of the father and his supporting witnesses. Documents were produced on subpoena including by the childcare providers, pre-school and also by New South Wales Police.
The mother’s central argument is that the continued and repeated disclosures that the children are making is causing them emotional harm and that the contact with the father is, in effect, re-traumatising the children because of past abuse they have suffered or may have suffered. Inferentially the argument is that the cessation of contact – at least for the time being – will relieve the stress that the children are suffering. The concern is that the children continue to make disclosures and undertake sexualised behaviours despite the fact that supervised contact has been ordered and has taken place once. On this basis, given the continuation of the disclosures and sexualised behaviour, the best outcome for the children is to suspend all contact. There is some suggestion in the mother’s case that the children were further abused during that one contact visit.
The father's case is that, in effect, the concerns expressed by the mother have already been addressed by way of the current order for supervised contact and that there is no evidence to link the further disclosures and sexualised behaviours to the fact of contact with the father. The father’s counsel points to flaws in the mother’s case, which, whilst these will be much more pertinent at a final hearing, nonetheless, are significant in assessing the risk to the children in the present context. For example, he points to the JIRT interview process, which he says led to no further action and which revealed that the mother had recorded a conversation with the children about the disclosures in which she was clearly asking questions in a way that suggested to the children the answers they should give.
The father’s counsel raises the hypothesis that the children’s disclosures are attention-seeking behaviours. The father’s case is that pending the report preparation process and the final hearing the children and the father should be entitled to maintain a relationship with each other in a normal home environment because to change this sends the message to the children that he has done something wrong in circumstances where this has not been established and in a context where the children are, in any event, already adequately protected by supervision.
The Independent Children’s Lawyer submits that this case is a least worst option scenario rather than an ideal best interest scenario. Any risk of re-traumatisation needs to be balanced against the adverse impacts on the children’s relationship with the father if no unacceptable risk is found to exist, especially in the present context where it is submitted that their time with the father being supervised is already safe. She points out that a supervised contact centre would not be available for several months and in any event there seems general acceptance of the current supervisors by all concerned. The Independent Children’s Lawyer favours the maintenance of the status quo with the option of reversing these orders once Dr K’s report is available.
The decision that the Court has to make even on an interim basis does invite a detailed consideration of the available evidence before the Court. I provide the following brief chronology of the relevant facts, most of which are drawn from the mother’s own affidavit evidence, but also from documents produced on subpoena by [C] Pre-School Centre, as well as the New South Wales Police.
The chronology starts from mid 2009. The children are about 18 months old. The mother deposes to [Y] becoming aggressive and starting head butting and [X] rocking her body in her cot repeatedly saying, “Whoa, whoa.” In February 2010 the mother sees the father with his laptop open to a young girl nude virgin site. In June/July 2010 the mother observes the father on his laptop viewing a site containing images of human penises. In August 2010 the mother observed certain things about [X] and she says:
I noticed that her genital region was moving in a pulsating motion.
She goes on to say that this went on for almost two minutes and that this occurred after a period when [X] had been in her father’s care. On 4 September 2010 the mother deposes to observing [Y] masturbating whilst in the father’s care. The mother asserts that throughout 2011 she noticed [Y] masturbating excessively when he came back from visits to the father on weekends. On 25 September 2010 the parties separated and the mother deposes to contact commencing, including overnight contact, until the end of November and thereafter daytime contact. Between December 2011 and January 2012 the mother deposes to observing [X] engaging in sexualised behaviour. On 19 January 2012 the mother observes [Y] masturbating and records [X]’s disclosure that: “Daddy touches my wee wee.”
On 8 February 2012 the mother submits an application to the pre-school, namely [C] Pre-School centre. On 22 February 2012 there is a file note of a discussion between the mother and a member of the staff there in which the mother discloses to the [C] Pre-School Centre her concerns. I will come back to this.
22 February also happens to be the date of the filing of the father’s application. The next relevant date in the chronology is 29 February 2012 which is the date of service on the mother of the father’s application. On 2 March 2012 the mother deposes that at bed time [Y] exposed his penis and said that, “This is what daddy and [first name omitted] do.” On 3 March 2012 the mother deposes to [X] saying that, “Daddy touches my wee wee, my bottom, tickles my bottom and cuts my bottom with a knife.” On 3 March the mother gave a statement to the New South Wales Police.
On 22 March the JIRT interviews were held. [Y] was found not to have made a disclosure. [X] was found to have said that the father touches her wee wee and bottom, but the context of the report of the interview is ambivalent and suggests that the touching in question could be related to toileting. On 2 April 2012 there is the first Court date. 17 May 2012 the mother deposes to [X] soiling her underpants at pre-school. On 11 May 2012 there is the second Court date on which the consent orders were made. On 18 May 2012 the mother deposes that [X] wetting her pants at pre-school.
On 21 May 2012 there are further disclosures deposed to by the mother but it would not be fair to categorise these disclosures as spontaneous. On that day the children are taken to a hospital. On 23 May the mother observed [Y]’s sexualised behaviour. On 25 May, the mother deposes to [X] disclosing about daddy touching her bottom and [X] makes a disclosure at preschool. On 27 May, [X] makes a further disclosure, so too on 28 May. On 29 May 2012, [Y] makes a disclosure, again on the 30th, and on 30 May, [Y] was observed to undertake sexualised behaviour at the preschool.
This is not a complete chronology but it is, I think, the relevant period for present purposes. Let me discuss the implications of the chronology. Firstly, I want to emphasise that the purpose of this discussion is not to make findings. The present exercise is a risk assessment exercise and the discussion that follows informs the balancing of risk in this case. It does not foreshadow or anticipate, in any way, the future conduct of this case or the expert evidence that will be led. When one studies the chronology, the first thing that appears on close scrutiny is that, by the mother’s own account and despite the concerns based on incidents that happened between mid 2009 and September 2010, she agreed to overnight contact between October and November 2010.
The documents produced by the [C] Pre-School Centre provides an insight into the mother’s concerns as at 8 February 2012, when the mother signed enrolment forms for the children. It is instructive to see what she told the childcare centre staff. For example, in the application form, she is asked this question:
Is there any other health information staff should be aware of?
And she says, “No,” and leaves it blank.
There is another question:
Is there any other information you consider important for us to know?
The mother’s response here is as follows:
Please do not give any information to father without authorisation.
Now, as at 8 February 2012 and notwithstanding the mother’s evidence about what she had observed in the children from mid 2009 through to that date - and one need only refer to the chronology to see this - when she is given the opportunity in response to direct questions that, on any reasonable interpretation, invited disclosure about these events, the mother said nothing. One must not forget that the mother is, herself, a [occupation omitted]. If she was worried about the events preceding 8 February 2012 relating to the children and as deposed in her affidavit, she does not consider it worth telling those charged with the responsibility for the care of the children.
The first reference to any concern at all is in a telephone conversation that is recorded on 22 February 2012 with a member of the preschool’s staff. I will read on to the record that telephone attendant’s note:
22 February 2012, conversation with Ms A. Checked re [X]’s stuttering. Mum hesitant to refer yet due to circumstances of separation. [Ms Farina] disclosed abuse suffered in relationship and issues re pornography and possibility this was done in front of [Y], who has also exhibited behaviour. Has been reported to DOCS two times and case closed. Mum seeking legal advice re access and asked to advise if any strange or concerning behaviour.
There are many questions that need answering in relation to this file note and I dare say it will be the subject of cross-examination at the final hearing. However, what is significant in the present context is that the mother makes no reference at all to [X], other than in the context of stuttering and again when one has regard to the chronology, which is largely based on the mother’s own evidence, that does seem strange in the circumstances.
The next significant event in the chronology is the date of service of the father’s application. It should be recalled that this application was filed on 22 February and then served on 29 February. Looking at facts purely from a chronological perspective, this event seems to trigger a number of significant events. On 3 March, for example, [X] makes a number of disclosures. The mother goes to the police for the first time and makes a statement. Part of the police record is significant here and I will briefly read part of it on to the record. This is an extract from the police statement:
Some time in the evening of Saturday 3 March 2012, Ms Farina and her mother, Ms M, decided to ask both of her children some questions about what they do with their father while they are with him on Saturdays. Ms Farina recorded their questions and her children’s answers on her mobile phone. During the conversation, [X] disclosed that her father touches her on the bottom and vagina and she also states that her father touches her brother on the penis. As a result of these comments, Ms Farina contacted the police to attend her house, so she could report the matter. Later that same day, police attended Ms Farina’s address and she supplied police with the abovementioned information. Police were also shown the abovementioned recorded conversation between Ms Farina, Ms M and [X]. Although, [X] does reveal the abovementioned information, police observed that Ms Farina and Ms M used leading questions to receive those answers. Police conveyed Ms Farina back to [omitted] Police Station to further discuss the matter with her away from her children. While at the police station, the [station omitted] detectives spoke to Ms Farina about the matter and they advised her to not speak to her children about the matter any further and definitely do not have any more interviews with them.
The significance of this event is to understand it in context of certain events that happened on 21 May 2012 deposed to in the mother’s affidavit. On one interpretation, on 21 May, the mother did the very thing that the police said she should not do on 3 March and that is to discuss these matters with the children. One need only have regard to the mother’s version of what transpired on 21 May in her affidavit. Putting that aside, in any event, the statement to the police leads to a JIRT interview on 22 March, where at best, [X]’s disclosures may be regarded as ambiguous and as referable to appropriate touching in the context of toileting as it could be referable to inappropriate touching.
The fact is that there was a significant escalation as regards the children’s disclosures, which seem to coincide with the mother being served with the father’s application to this Court. In assessing the risk to these children the Court must have regard to this as one relevant factor. What, on the evidence, occurred between 29 February when the mother became aware of the father’s application and 3 March when the mother gave a statement to police? Another way of asking this question is to say: What happened between 8 February, when the mother’s concerns about these matters were so low that she didn’t even mention this to those charged with the responsibility of caring for the children at preschool and 3 March when she gives a detailed statement to the police? What caused the mother to go from no concern on 8 February to clearly a great concern on 3 March 2012?
She says that on 2 March [Y] exposed his penis and said, “This is what [first name omitted] and daddy do.” If this is construed as sexualised behaviour, on the mother’s own evidence - and again, one must have regard to the chronology - there is nothing new. If the mother was concerned about the explicit reference to the father by [Y] then this too is not new in the sense that [X]’s disclosure on 19 January 2012 also refers to daddy. Thus, on one view what happened on 2 March is an unlikely precipitator of significant change in the mother’s concerns. If the disclosures on 3 March 2012 are what caused the dramatic increase in the mother’s concerns then one must take into account the police statements and the comments that they make about the mother interviewing and recording the children. At this point, I make the observation that the mother does not depose to recording this interview in her affidavit and one is left to discover this by looking at the police records.
One must understand the distress that these events caused the mother and other members of the family. With the benefit of hindsight and some critical but objective retrospective on events one must also ask whether the mother was selectively interpreting ambiguous events in a way that sheeted home responsibility to the father as a perpetrator of abuse without for one moment exploring other hypotheses. Did the mother reality test what these children were saying? For example, if [X] is saying that daddy cuts her bottom with a knife - an assertion which is easily dismissed by reference to the absence of physical evidence in this regard - has the mother considered the possibility that the rest of what [X] is saying may also be untrue? Did the mother consider the alternate hypothesis such as the police did? For example, when [X] says, “Daddy touches me,” that this might be an appropriate touching in the context of toileting.
Thus, when one conducts a critical, objective retrospective of these events, one forms the impression that the mother’s interpretation of these disclosures have not been reality tested and she has not considered alternate hypotheses and that the commencement by the father of these proceedings is somehow related to the escalation in her reaction to these disclosures. I wish to make it very clear that I’m not being critical about how the mother reacted at the time. I am sure that it was most distressing. I do urge her and those who advise her, however, to keep an open mind about the possibility that abuse either did not occur or was not perpetrated by the father and that these disclosures are being caused by some as yet unexplained phenomena. However, I do not rule out the possibility that abuse has occurred and that the father was the perpetrator. My mind is open to other possibilities and that is the way it should be.
When I ask the question, “Does the evidence before me warrant the complete suspension of contact at least pending Dr K's report as proposed by the mother?” the answer is, “It does not.” The fact of the disclosures being made by these children and their sexualised conduct is clearly of concern but I am not satisfied that on the evidence the risk of re-traumatisation to these children as a result of having supervised contact with their father is greater than the risk to them of losing their relationship with their father through no contact and in the difficult circumstances of this case. This issue can and will be revisited once
Dr K’s report is available.
I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of Altobelli FM.
Date: 4 July 2012
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