Fitzwater & Fitzwater
[2019] FamCAFC 251
•17 December 2019
FAMILY COURT OF AUSTRALIA
| FITZWATER & FITZWATER | [2019] FamCAFC 251 |
| FAMILY LAW – APPEAL – PARENTING – Majority decision – Where the father appeals from orders made by a judge of the Family Court of Australia providing for the children to spend supervised time with him – Where the Independent Children’s Lawyer supported the father’s appeal – Where the trial judge made a finding that the father posed an unacceptable risk of harm to the children – Consideration of the application of s 140 of the Evidence Act 1995 (Cth) in proceedings where there is an allegation of an acceptable risk of harm – Whether the trial judge’s reasons for judgment are sufficient to meet the requirement identified in N and S and the Separate Representative (1996) FLC 92-655 – Where the trial judge did not weigh all of the evidence as a whole to determine the nature, extent and likelihood of the risk of sexual abuse to the children – Where the trial judge did not adequately give reasons for the finding of an unacceptable risk of harm to the children – Appeal allowed – Orders made by the trial judge set aside as on and from the date of the rehearing in the Family Court of Australia – No order as to costs. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60CA, 65AA, 69ZT, 69ZV |
| Baira v RHG Mortgage Corporation Ltd (2012) 297 ALR 416; [2012] NSWCA 387 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 |
| APPELLANT: | Mr Fitzwater |
| RESPONDENT: | Ms Fitzwater |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 11465 | of | 2016 |
| APPEAL NUMBER: | SOA | 79 | of | 2018 |
| DATE DELIVERED: | 17 December 2019 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland, Aldridge & Austin JJ |
| HEARING DATE: | 16 July 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 October 2018 |
| LOWER COURT MNC: | [2018] FamCA 1013 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dr Parker |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
The appeal be allowed.
Paragraphs (2)–(11) inclusive of the orders made by the trial judge be set aside as on and from the date of the first hearing before the judge who is to undertake the rehearing of the proceedings.
The proceedings be remitted to the Family Court of Australia for rehearing.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fitzwater & Fitzwater has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 79 of 2018
File Number: MLC 11465 of 2016
| Mr Fitzwater |
Appellant
And
| Ms Fitzwater |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Strickland & Aldridge JJ
The background to this appeal has been fully set out in the reasons of Austin J.
It is necessary to deal first with Ground 7 which asserts that the trial judge did not give adequate reasons for the finding of unacceptable risk of harm if the eldest child (“the child” or “X”) was to spend unsupervised time with the father. A challenge to reasons for judgment is a challenge to the integrity of the Court process and, if successful, requires a rehearing of the matter (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at 130).
It is to be recalled that the evidence was that the child made allegations on the following dates of being touched by the father:
·Mid 2015;
·June 2016; and
·November 2016.
Most of the allegations were made by the child to the mother but statements were also made to the maternal grandmother on 11, 17 and 22 November 2016. On 20 November 2016 the child told the maternal aunt that “Daddy did a bad things to me but I didn’t tell the Police” (at [121]).
The father’s principal challenge to the allegations at the hearing was that they were not genuine because the mother had fabricated them, the mother had coached the child or, somewhat confusingly, because the mother had actually believed or convinced herself that there was substance in the allegations. In other words, he put into issue the veracity of the mother’s account. It is not surprising, therefore, that the trial judge focussed on the reliability of the mother’s account in the reasons for judgment.
Her Honour’s reasons at [520] make it abundantly clear that her Honour accepted the mother’s evidence saying that “the allegations made by the mother are reasonably based and her belief in the veracity of them is genuinely held.”
This led her Honour to conclude two paragraphs later by saying:
523.However on the basis of the evidence of the mother, the maternal grandmother and [the maternal aunt] concerning the complaints about the father’s conduct made by [the child] over time and particularly the demonstration she provided to the mother I am satisfied that there is an unacceptable risk of [the child] being sexually abused in the unsupervised care of the father.
The point of Ground 7, as explained by the Independent Children’s Lawyer (“the ICL”) who supported the father’s appeal, is that the finding that the mother’s evidence should be accepted and that the child did make the statements to the mother as asserted by the mother, did not inexorably lead to a finding of unacceptable risk of harm if the child was to spend unsupervised time with the father. Rather, it was submitted that having made those findings, the Court was then required to consider, in the light of all of the evidence, what the child’s statements meant and whether they identified a risk of harm, the nature of that harm and the likelihood of harm occurring. The submission was that her Honour did not engage in this exercise at all and moved from the credit finding to which we have just referred, directly to the finding of unacceptable risk of sexual abuse.
The countervailing submission is that in the reasons for judgment leading to the passages at [520] and [523] the trial judge did indeed traverse all of the factors that would weigh against a finding that the child’s statements indicated a risk of sexual abuse.
The test for adequacy of reasons is well known. In Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267 the Full Court adopted the principles expounded in Sun Alliance Insurance Ltd v Massoud [1989] VR 8, saying:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.
(As per the original)
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, McColl JA with the concurrence of the other members of the Bench said:
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue… While a judge is not obliged to spell out every detail of the process of reasoning to a finding … it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties' cases… Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge “‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
The task, therefore, is to look at the trial judge’s reasons as a whole to determine whether her Honour did undertake the balancing or weighing exercise as to the implications of the child’s statements. It must be said that the length and structure of the reasons did not assist in this task.
In determining whether there is an unacceptable risk of sexual abuse or risk of harm to the child, the Court must “assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child’s welfare” and the “existence and magnitude of the risk of sexual abuse … is a fundamental matter to be taken into account” (M v M (1988) 166 CLR 69 (“M v M”) at 77).
This led Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 (“N and S”) at 82,713-82,714 to say:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
This passage was approved by the Full Court in Napier and Hepburn (2006) FLC 93-303 at 81,115 and Johnson and Page (2007) FLC 93-344 (“Johnson and Page”) at 81,888-81,889.
The present question is whether the trial judge’s reasons for judgment are sufficient to meet the requirement identified in N and S.
The ICL submitted that the reasons for judgment do not engage with the following facts in determining the nature of any risk of harm to the child:
·The possibility of an innocent explanation such as the application by the father of medicinal cream to the child’s genital area;
·The child’s contradictory comments;
·The absence of complaint by the child to anyone other than the mother, maternal grandmother and maternal aunt; and
·The evidence of the child’s treating therapist or the Family Consultant.
It will be convenient to deal with the last two points together.
Before turning to these issues, it is useful to record that the mother’s case was not confined to the statements made by the child. The mother also relied on the child’s behaviour and that of the child’s younger brother. It is plain that the trial judge did not accept the mother’s case on these points.
The mother gave extensive evidence of the child having severe and frequent tantrums and rages, particularly in 2016. Indeed, the seminal complaint was made by the child on 15 November 2016 when the child was angry, hysterical, aggressive and complaining of a nightmare. The suggestion was made that the child settled when in the sole care of the mother. This was coupled with what was described as a reluctance of the child to be alone with the father.
An inference could be drawn that the child’s tantrums were linked to the conduct of the father, yet the trial judge declined to do so, by saying:
438.I find that there are many reasonable alternative explanations for the child not wanting the mother to leave her at home alone with the father other than that she would be sexually abused by the father. On all the evidence the parents had difficulty communicating without argument. On the evidence of the family consultant [the child] is an intelligent child and was aware of the difficulties between the parents.
439.I accept the evidence of the mother and the maternal aunt… that [the child] was having a severe tantrum before the mother left to go to the movies on 12 August 2016 leaving the child at home in the care of the father. I find that the mother discussed what the child had told her with [the maternal aunt] who reassured her that the father did not “seem like the type of person” who would do anything like that and maybe the child had got it wrong or was mistaken. I accept the evidence of [the maternal aunt] that the mother had significant reservations about leaving the child alone with the father at that time. I do not draw an inference from the child’s tantrum that the father sexually abused [the child]. This evidence is relevant because of the nature of the discussions between the mother and [the maternal aunt].
The mother also relied on what was said to be sexualised behaviour of both the child and her younger brother. Her Honour recorded this issue as follows:
209.For example the mother deposed at paragraph 128 that on 23 August 2017 [the child] was kissing the mother on the mouth and that she was opening her mouth and licking her face. She described this as unusual behaviour for [the child]. She deposed to the following conversation:
I told [the child] “We show affection by a kiss on the cheek and we do not lick or kiss others on the mouth”. [The child] said “Do we kiss on the arm? No, do we kiss on the vagina? No”.
210.The mother described being surprised by the comments and that she did not know where they came from.
211.The maternal grandmother also deposed to [the child’s] behaviour which she claimed was sexualised. The maternal grandmother deposed to an incident in March 2017 in which [the child] asked to play the “honeymoon game” with her and when the maternal grandmother asked [the child] to show her the game [the child] “pulled the top of her dress down to her waist to expose her chest and her nipples. She started dancing around while holding the dress down to her waist”.
212.The mother also deposed to an incident on 25 October 2017 under the heading “THE CHILD’S SEXUALISED BEHAVIOUR, MOOD CHANGES AND UNUSUAL COMMENTS IN OCTOBER 2017” where she was preparing a bath for the children and she asked [the child] to undress and that [the child] removed all her clothes, was dancing around and that she then came up to the mother and straddled her knees facing her. She deposed that [the child] was naked and that she had never seen her do it before. The mother deposed that she asked [the child] if she had ever done that before and that [the child] said words to the effect “I sit on dad’s knee when he put my bather’s on”.
213.The mother also deposed that [the child] then refused to get in the bath with Y [the child’s younger brother] and that [the child] stated that Y has a penis and she does not like the smell of penis. She deposed that [the child] asked to wear her bathers in the bath and the mother agreed but that “she does not usually wear her bathers” in the bath with Y.
214.The maternal grandmother deposed that on 31 January 2018 [the child] was sitting on the couch “with her knees bent and her legs wide apart. She was holding the TV remote controller and she was forcefully rubbing the TV remove controller up and down on her vagina over the top of her pyjamas”. She deposed that the mother returned home shortly thereafter and that she told her about it privately.
215.The mother also deposed that on 17 February 2018 she was working on her computer at the kitchen table when the maternal grandmother called her name and that when she looked up from her computer “I saw [the child] masturbating with the TV remote controller on her vagina”. She described the child rubbing the TV remote controller on her vagina. She deposed that she “politely intervened” and said “[X] can you come over to me” and she said “why are you doing this?” and [the child] responded “I don’t know”. The maternal grandmother also deposed to the same incident in her affidavit filed 19 February 2018.
216.The maternal grandmother deposed that she has “observed [the child] masturbate on other occasions” and gave an example of recalling [the child] “touching and rubbing her vagina with her fingers for a minute or so while she was watching children’s programmes on the i-Phone”. She deposed that she did not say anything to intervene.
…
219.The mother deposed in her affidavit filed 19 February 2018 under the heading “Concerns about Y” to a number of behaviours regarding Y. In particular the mother deposed that on 9 and 10 December 2017 she observed Y inserting his fingers into his rectum at nappy change time. She deposed that on each of those nappy changes Y had returned from spending time with the father at his home. She also recalled that Y had engaged in this behaviour once before, but provided no date.
220.She deposed that “I was concerned about Y’s unusual behaviour. I am more vigilant now because of [the child’s] disclosures of digital penetration by her father”. The mother deposed to taking Y to the Suburb N Clinic and on medical advice of the doctor she took Y to the BB Hospital that night. She deposed that the medical examination of Y was “inconclusive” and that the doctor provided possible explanations for the behaviour as worms or constipation.
(Footnotes omitted)
This was said by the mother to be evidence supporting the child’s statements. Her Honour said:
459.I accept the submission of counsel for the father and the evidence of the family consultant that the mother “has a tendency to look at things through a sexualised lens.” The evidence of Ms K supported this view. However I find that this is not surprising given the statements made by [the child] over a period of time to the mother, the maternal grandmother and the maternal aunt… It is not surprising that the mother has reviewed historical events through a “sexual prism” after she became convinced that [the child] was telling the truth. It is not surprising that the mother has also become hypervigilant in hindsight concerning Y because she has a genuine belief about the statements made by [the child].
460.I accept the evidence of the father in cross-examination that it was reasonable for the mother to seek medical advice about Y’s behaviour when he began putting his fingers in his anus. Although the family consultant regarded the mother’s concern about this issue as a “red flag”, the family consultant agreed in cross-examination that the mother’s response was reasonable and that it was “an excellent sign” that the mother had taken the matter no further after being referred to the BB Hospital by her general practitioner.
As to the younger brother Y, her Honour did not refer to the fact that at the time of this alleged event, the father’s time with the children was supervised so that any untoward contact might be unlikely.
This led to the following conclusions:
463.I accept that [the child’s] behaviour historically has at times been challenging and that she has suffered from nightmares and severe tantrums on all the evidence. However I accept the evidence of the mother that [the child’s] behaviour has now improved. I accept the evidence of Ms K that both parents have a stable relationship with [the child] and that [the child] does not require any further counselling. For the sake of clarity, I have not inferred from this evidence that [the child] has been sexually abused. There are many alternative reasons including the deteriorating relationship between the parents for [the child’s] behaviour.
464.It was submitted by counsel for the father that the mother’s position that she is just recording in her affidavit her observations or that “something may have happened” is “nonsense”. I accept on the evidence of the family consultant that the detailed evidence about the mother’s observations of [the child’s] tantrums and “sexualised” behaviour was adduced by the mother as a basis for the Court to draw an inference that the father is responsible for [the child’s] tantrums because he has sexually abused her. However counsel for the mother appropriately did not make such a submission.
465.For the sake of clarity I do not draw that inference and I do not place any weight on this evidence about [the child’s] alleged “sexualised” behaviour or tantrums to draw any inference that she has been sexually abused by the father. The deterioration in the parent’s relationship during the marriage and the breakdown of their marriage in all likelihood has impacted on her behaviour. The family consultant noted that she was “struck by how burdened [the child] is by her parents’ separation”.
Thus, the trial judge did not accept that the behaviour of the children supported a finding that there was a risk of sexual abuse to the children.
We are quite unable to see where her Honour returned to these matters to weigh them in the balance when forming her ultimate conclusion as to the risk of sexual abuse to the child.
Was there an innocent explanation?
It was common ground that, at least until late 2015 or early 2016, the father applied Bepanthen cream to the child’s genital area. She had a well-documented history of vaginitis, the discomfort of which was relieved by the use of that ointment.
The trial judge recorded the evidence as follows:
155.The father deposed in his trial affidavit that the parties used “Bepanthen” cream to relieve [the child’s] vaginitis and erythema. The father deposed that when [the child] was a toddler, it was usually the mother, and occasionally him, who applied the cream. The father deposed that from around the time of Y’s birth that [the child] began asking for the cream and would apply it herself. The mother in her affidavit filed 28 February 2017 also deposed that she purchased the cream and taught [the child] how to apply it to the vagina when she was sore.
156.During cross-examination by counsel for the mother, the father agreed that there have been occasions when he has touched the genital area of [the child]. He also agreed that there is more than one interpretation of “daddy touched my privates”. When asked what are the other possible interpretations he stated “…I may have helped [the child] put cream…on her, but like around them times [sic] I don’t think so”. The father denied touching the [the child’s] vaginal region other than to put cream on her.
157.In her affidavit filed 24 April 2017 the mother, referring to the father’s affidavit filed 20 March 2017, agreed that the father may have applied nappy rash cream to [the child] when she was red as an infant. However she did not agree that the father regularly applied the cream to [the child] when she was three years of age. The mother deposed that she never saw the father use “Bepanthen” cream on [the child’s] genitals from the time she was toilet trained which was about February 2015. The mother deposed that when she confronted the father with the “disclosure” of 2015 that the father denied any wrongdoing and that the father “did not offer me any other explanation and he did not say that he applied nappy rash cream to [the child’s] genitals”.
Her Honour rejected this as a possible explanation in the following passage:
517.I have considered whether there are any other alternative explanations for the allegations made by [the child]. The father deposed to the child’s vaginitis and the fact that she was regularly treated with Bepanthen cream. However on his own evidence he did not treat [the child] with the cream after Y was born as she matured.
The younger brother Y was born in early 2016. Self-evidently, the use of the cream could be an explanation for all of the child’s statements except for those made in November 2016, assuming that each of the child’s statements referred to acts that had recently occurred.
However, the trial judge had also recorded statements made by the child to the Family Consultant about the use of the ointment. At [367] the following was extracted from paragraph 95 of the Family Report dated 12 May 2017:
… [The child] advised remembering that dad “… put cream on my front” specifying “… it only hurts when mum puts on cream, not daddy”. [The child] recalled it was “… about a minute” (not long) for dad “… to put on the cream”. She stated she was “… [w]orried dad would get into trouble because mummy doesn’t know he was putting cream on, I didn’t tell her” and expressing some awareness that her mother did not like her father assisting her.
The trial judge also recorded at [371] the following comments of the child which appeared in paragraph 101 of the Family Report dated 12 May 2017:
… She confirmed that if her father had ever touched her it occurred as part of a normal event assisting her and she demonstrated dabbing cream, and in contrast to allegations [the child] did not display any sexualised behaviour or report any pressure from fingers or digital penetration…
The trial judge did not refer to this evidence in the discussion of whether there was an innocent explanation for the touching.
The trial judge appears, however, to have discounted this evidence. Her Honour said:
421.I prefer and rely on what [the child] said to the mother historically when she was living with the father as opposed to [the child’s] statements to the family consultant about her memory of what she said to the mother in the past. The mother made contemporaneous notes in Exhibit B.
The Family Consultant also kept contemporaneous notes of what the child told her. The trial judge did not explain why the mother’s notes carried more weight than the Family Consultant’s notes, other than to perhaps suggest that the child’s memory might have been better when she spoke to the mother (at [421]).
Importantly, the trial judge does not contemplate the quite realistic possibility that both the mother and the Family Consultant accurately recorded what the child said and that the child spoke accurately to each of them, accepting that any differences in what the child said might be explained by her young age.
That consideration is, of course, informed by other issues in the case, including the child’s comments that she had lied about her father touching her, and that her mother had asked her to say that the father had touched her, and the evidence of the medical practitioners and expert witnesses. We will discuss them shortly.
However, we cannot see where her Honour brought those other relevant considerations into account in dealing with this issue. If a trial judge fails “to deal in a satisfactory way with substantial evidence necessary to be dealt with before the relevant finding could be made” a retrial may be ordered (Baira v RHG Mortgage Corporation Ltd (2012) 297 ALR 416 (“Baira v RHG Mortgage Corporation Ltd”) per Bathurst CJ at 457. “This is because in such a situation there has not been a determination of the case upon a consideration of the real strength of the body of evidence presented” (Baira v RHG Mortgage Corporation Ltd at 457).
Her Honour’s treatment of this important aspect of the case fell short of the real and substantial consideration required by the authorities that deal with the approach to claims of unacceptable risk of harm to which we have already referred.
The child’s contradictory comments
The child made a number of statements that cast a shadow over the accuracy or, at least, the meaning of the statements made by her.
These statements were:
·On 18 June 2016, the child told the mother “Daddy touched my privates”. A few moments later the child said “I lied” (at [70]–[71]);
·On 19 June 2016, in the presence of the father and the mother, the child said “daddy, mummy told me you touched my privates” (at [72]).
·On 22 November 2016, after the parties had separated, the child said to the mother “Mummy I lied about daddy touching my privates. Can daddy come home?” (at [132]).
·The Family Consultant recorded:
She advised that she was “… told by mummy to say something about daddy but it was a bit mean” and she reported she was reluctant to say what this was. She burst into sobs at this point and said “…mum makes things difficult with dad, she doesn’t want me to be with daddy or to be friends with daddy”.
(Family Report dated 12 May 2017, paragraph 98)
·The Family Consultant also recorded that the child said “mummy told me to say about daddy, to tell he touched my privates”, and that she was “upset mummy asked me to do that … and this is why I got so cross with mummy”. She asked the Family Consultant to “… tell mummy I don’t like it when she said that” (Family Report dated 12 May 2017, paragraph 101).
The trial judge appeared to deal with this evidence in two ways. Firstly, at [375] her Honour said:
In cross-examination by counsel for the mother, the family consultant agreed that relying on what [the child] said to her during the interview has its own difficulties given her age.
This of course, does not deal with the comments made to the mother and father. The trial judge also does not appear to consider that the same difficulties might attend the comments made by the child to the mother.
Secondly, her Honour said:
515.I have carefully considered the question of whether [the child] was lying. Significantly [the child] told her mother that she lied on one occasion in June 2016 before the parties separated and on another occasion after separation. On the occasion before separation in June 2016 the mother was unsure what to make of this. The child said she lied reacting to the mother’s question about whether she should no longer watch television with the father. On the occasion of 22 November 2016 the child was understandably missing her father and wanted to see him at [a fast food restaurant]. I accept that [the child] said to her mother in the presence of [the maternal aunt] words to the effect of “Mummy, daddy can come home, you just don’t go to the gym, ok deal ok?”. This part of the conversation was corroborated essentially by [the maternal aunt] who deposed that the child said “I want him to come home but only if you don’t go to the gym, you can’t leave me, I can only be with you and daddy, okay.” I accept the evidence of the mother, which did not assist her case, that [the child] also said on 22 November 2016 “mummy I lied about daddy touching my privates. Can daddy come home?” I have concluded that after separation [the child] wanted to see her father but did not want to be left alone with him.
It appears that the trial judge considered that at least on 22 November 2016 the child said that she had lied so as to enable the father to return home. Even if that is so, it is no explanation for the other occasions where the child made contradictory statements. The trial judge did not come to grips with these statements other than to set them out.
Further, the question as to whether the child was lying was not an apt consideration or not the only consideration. Lying is a deliberate untruth. Was the child lying when she said she was touched or when she said that her complaints were a lie? That was not considered by the trial judge.
But why was the only option a consideration of untruthfulness? Confusion, mistake and misunderstanding were also distinct possibilities, especially when the child is young and involved in the stressful time of her parents’ separation. These possibilities were not considered.
This leads to the next matter, which is the absence of complaint by the child to anyone other than the mother, maternal grandmother and maternal aunt.
The absence of complaints by the child to others
The child’s complaints were the subject of intensive investigation and she was also under the care of a number of treating medical practitioners. No relevant complaint was made by the child to any investigator or practitioner.
Dr S was the child’s general practitioner from October 2013 to the date of the trial. Dr S’s notes recorded persistent vaginitis throughout that period. The mother raised the issue of sexual abuse to the child by the father with Dr S on 24 November 2016. Dr S recorded no complaint being made by the child at any time. Over time, the child was referred by Dr S to a paediatrician and a dermatologist at BB Hospital for her symptoms and a suspected urinary tract infection.
Dr T is a paediatrician who saw the child between October 2014 and June 2017. Dr T was initially consulted about “toe walking and knock-knees” but on 22 June 2016 the mother asked Dr T to take a look at what the doctor described as a “mild inflammation” of the perineal area and genitalia (Annexure “ND-2” to the affidavit of Dr T filed 22 February 2018).
Dr T noted that the child had been sent to a dermatologist late in 2016. The child had also been examined by the director of the YY Paediatric Medical Service who informed Dr T that “there was not enough to justify a referral to forensic medical services” and that “inflammation in the genital area is a very non-specific finding in the absence of history that raises a suspicion” (Annexure “ND-2” to the affidavit of Dr T filed 22 February 2018).
The child was reviewed by Dr T on 22 March 2017 for “anxiety and behavioural difficulties with tantrums and oppositional behaviours” (Annexure “ND-2” to the affidavit of Dr T filed 22 February 2018) which were recorded to have improved in her subsequent consultations in June and October 2017.
In a report dated 21 February 2018, Dr T opined that:
[A]ll of [the child’s] presentations to the various medical practitioners related to symptoms involving the genitourinary tract including vaginal discomfort and itching and vaginal redness and also discomfort on passage of urine and burning on passage of urine.
(Annexure “ND-2” to the affidavit of Dr T filed 22 February 2018)
Dr T continued:
… Sexual abuse is an uncommon cause of urinary tract infections in this age group but may be explored in children presenting with recurring urinary tract infections if other organic pathology is ruled out.
…
… [M]ost practitioners would not be suspicious of sexual abuse in a child presenting with recurring vulvovaginitis or an isolated urinary tract infection in this age group.
(Annexure “ND-2” to the affidavit of Dr T filed 22 February 2018)
There was no medical support for the claims of sexual abuse, accepting of course, that its absence does not negate the possibility of it having occurred.
On 18 January 2017, orders were made for the child to undergo reportable therapeutic counselling. Ms K, an accredited mental health social worker carried out the counselling between 3 March 2017 and 10 May 2017. At [343] the trial judge recorded Ms K’s comments:
[The child] provided no information to indicate that she was concerned about her personal safety in either parent’s care. She gave no information to indicate she had concerns for spending time with her father currently and she looked forward to spending more time with him as an independent adult or in the near future should this be allowed. [The child] made no disclosure her father had sexually assaulted her or touched her genital area. Her affect when discussing this specific topic gave no indication she was avoiding the discussion, unable to raise a concern or fearful about making further disclosure. Given the above information the writer has no information to support [the mother’s] reports that [the father] sexually assaulted [the child].
[The father] in interview and with [the child] impressed as engaged in his relationship with [the child] and her younger brother. No concern was identified in his parental relationship with [the child] during individual interview or when he was observed spending time with [the child]. [The child] was observed to engage well with her father and [the father] interacted with her in a manner that supported her engagement in play and ability to undertake tasks.
(Annexure “B” to the affidavit of Ms K filed 20 June 2017, paragraphs 46–47)
Ms K agreed that it was “not a precise science” (Transcript 20 March 2018, p.744 line 6) and based on the information in her report she could not categorically tell the court that no sexual abuse had occurred (Transcript 20 March 2018, p.743 lines 43–44).
This lead to the following finding made by the trial judge:
516.I have carefully considered the submissions of counsel for the father and the evidence of the family consultant who highlighted the fact that [the child] has not made a complaint to any of the professionals. [The child] has been interviewed by numerous professionals at a later time after she made the complaints to the mother, maternal grandmother and [maternal aunt]. In assessing to whom the complaint was made by [the child], I have considered the credibility of the mother and the members of the maternal family who gave evidence. I have considered the possibility of collusion, innocent contamination and the conspiracy suggested by counsel for the father. I have concluded that there is no basis for collusion or fabrication and I accept the mother, the maternal grandmother and the maternal aunt… as credible and honest witnesses who did not embellish their accounts of what the child said. The child has made a number of complaints over a period of time to her mother and two other trusted maternal family members so it would not be surprising that the child would not feel comfortable or the need to complain to professionals at a later time. This is particularly so where the child has a good relationship with the father in other respects and loves him.
(Emphasis added)
The emphasised part of this paragraph is not supported by any expert evidence and appears to be little more than speculation.
We have already referred to the evidence of the Family Consultant. Not only was no complaint made to her, but the child actively spoke against the possibility of sexual abuse.
Thus, despite investigation by experienced professionals and abundant opportunity to complain of sexual abuse, the child did not. That, of course, does not establish that there was no abuse but it is a significant factor to be taken into account.
Conclusion
As can be seen, her Honour looked at aspects of the matters covered in the above discussion, although the reasons in respect to some of these aspects were inadequate, in that there was significant material that was not apparently taken into account.
However, in our opinion the particular error contended for by the ICL, in particular, has been established.
The trial judge found that the allegations made by the mother are reasonably based. This can only mean that the trial judge accepted that the child complained to the mother of the father touching her. That was the end of the consideration of the matter by the trial judge. Her Honour did not then turn her mind to the issue of what those complaints actually meant. Were they reflective of improper touching or were there other benign explanations?
It was here that the several considerations discussed above had a significant role to play, not just separately and not just in relation to the mother’s credit as they were taken by her Honour. Rather, each consideration bore on the others affecting the weight to be given to them as a whole.
This basket of considerations, as a whole, had to be the subject of real and substantial consideration so as to identify the risk of harm, if any, that was found to arise from the child’s statements. That, of course, involved a real consideration of what it was that the child was describing and whether she was describing something sinister or benign.
It follows, in our opinion, that despite the length of the trial judge’s reasons and some paragraphs dealing with important issues in part and seriatim, the trial judge ultimately did not weigh all of the evidence as a whole to determine the nature, extent and likelihood of the risk of sexual abuse. Simply finding that the child’s statements were made as described by the mother was insufficient.
It follows that the appeal must be allowed, and unfortunately, the matter remitted for rehearing. As to the order, save and except for paragraphs (1) and (12), all other paragraphs need to be set aside. However, in order to avoid a lacuna, they should not be set aside until the date of the first hearing before the judge who is to undertake the rehearing of the proceedings. At that time, putting in place interim orders will need to be considered.
Given that there is to be a rehearing, it is neither desirable nor necessary to deal with the remaining grounds of appeal, as would normally be done, as these issues will be enlivened in the rehearing (Kuru v New South Wales (2008) 236 CLR 1 at 6), however, save for Ground 1 which we shall address shortly, we agree generally with the conclusions of Austin J as to them.
Ground 1
The father submitted that the trial judge did not apply the relevant standard of proof.
We agree with Austin J that the finding of a possibility of a risk of sexual abuse in the future (and hence an unacceptable risk of harm to the child being found to exist) may properly be based upon a finding of a possibility that sexual abuse has occurred in the past.
We do not agree, however, that s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) has no role to play in a case where an unacceptable risk of harm is alleged. This section of the Evidence Act refers to the “case of a party” and not to each of the facts. It informs the Court, through s 140(2) of the Evidence Act, that the nature of the cause of action and the gravity of the allegations are relevant to the degree of satisfaction that the Court must hold to accept the proffered case. Thus, the nature of the allegations of the alleged sexual abuse are relevant to the finding that there was a possibility of such abuse.
This was accepted to be so in M v M at 77, when the High Court said:
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. But that is not the issue in this case.
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450, the High Court said:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
“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 …”
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading…
(Footnotes omitted)
This led the Full Court in Johnson and Page to say:
71.…We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
72.We also agree with [Fogarty J’s] view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
…
75.As we have already recorded, it is clear from the submissions at trial that his Honour was not being asked to determine whether, in accordance with s 140 of the Evidence Act, the father had actually perpetrated abuse on L, but rather having regard to all the circumstances, including the past assertions of sexual abuse, there was an unacceptable risk in the future to the child if she spent unsupervised time with the father. In conducting that assessment it was relevant for the trial Judge to examine and evaluate all of the factors, including past occurrences, which bore on the question of unacceptable risk…
…
77.We do not accept that the trial Judge rejected the mother’s position that there was an unacceptable risk because she had been required to satisfy an onus of proof applying an “excessively high test”. The onus of proof is not in doubt. It is the civil standard in accordance with s 140 of the Evidence Act. The evidence necessary to satisfy a finding of actual sexual abuse, as distinct from unacceptable risk, is accommodated by s 140(2)(c). The mother in this case, on her own counsel’s submission at trial, did not seek to have the trial Judge make findings she had satisfied such an onus in respect of actual sexual abuse of L by the father.
In cases such as the present, the focus is on the best interests of the child. Risks of events occurring which would be detrimental to the welfare of the child must be considered in framing the appropriate orders. It is to be borne in mind that applications for parenting orders “necessarily involve predictions and assumptions about the future which are not susceptible of scientific determination or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order” (CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at [151]).
Accepting that to be so, the Court must still be persuaded of a possibility of a risk of harm to the child.
Thus, a discussion about probability or possibility and where on the continuum a fact might sit are not to the point. Rather, as Fogarty J said in N and S at 82,713-82,714, the judge must consider the facts deeply and give “real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to give rise to an unacceptable risk of harm to the child.” That this is the correct approach was also recently confirmed by the Full Court in Bant & Clayton [2019] FamCAFC 198.
We consider that the trial judge was aware of how s 140 of the Evidence Act should be applied (see [59] and [501]–[506]) but failed to in fact apply it correctly.
Costs
As to costs, it is sufficient to say that no orders for costs were sought by the parties or the ICL and thus there should be no order as to costs.
Austin J
The father appeals against orders made on 18 October 2018 by a judge of the Family Court of Australia in respect of the parties’ two children, who were aged six and two years at the time of trial. The appeal was supported by the ICL, but resisted by the mother.
The appealed orders provide for the children to live with the mother and to only spend supervised time with the father. Parental responsibility for the children is vested exclusively in the mother.
Underlying those orders was the trial judge’s finding that the father posed an unacceptable risk of harm to the children through their subjection to sexual abuse, which was the principal contested issue at trial. The finding was consistent with the mother’s case, but was refuted by the father. The ICL ultimately supported the father on that particular issue.
The trial judge’s finding sprang from the evidence of statements made by the eldest child on multiple occasions over the course of nearly 18 months to the mother, the maternal grandmother, and the maternal aunt, implying her sexual molestation by the father, together with her physical demonstrations on some of those occasions of the way in which she alleged the father touched her genitals. The eldest child’s allegations were eventually reported in November 2016 for formal investigation by the authorities, but she did not thereafter repeat her allegations to the police, the Family Consultant appointed in the litigation, or the counsellor to whom she was taken for therapy.
The trial judge did not make any positive finding that the father sexually molested the eldest child, but did find the cogency of the evidence established the existence of an unacceptably high risk of the children’s subjection to sexual abuse by the father. That finding informed the decrees then made by the trial judge, since the children could not live with the father due to the risk he might sexually abuse them, the mother would find it “extremely difficult” (at [558]) to share parental responsibility for the children with the father due to her genuine belief he had already sexually abused the eldest child, and the risk of harm to the children from sexual abuse could not be alleviated by anything short of their permanent supervision when spending time with the father.
For the reasons which follow, in my view, the father’s appeal should be dismissed.
Background
The parties’ two children were born in 2012 and 2016. The eldest is a daughter and the youngest is a son.
From about mid-2015, the eldest child began making statements about the father touching her genitals. The comments were initially dismissed by the mother as being unreliable but, by November 2016, she was convinced the eldest child was truthfully reporting her sexual abuse by the father. On 18 November 2016, the mother instructed the father to leave the family home, which event marked their final separation. Only several days later, the mother commenced proceedings seeking relief under Part VII of the Family Law Act 1975 (Cth) (“the Act”).
All aspects of the children’s residence and the circumstances under which they might spend time with the non-residential parent were in contest. The trial ran over 12 days in March 2018 and judgment was pronounced in October 2018.
The pre-eminent issue at trial was whether the father posed a risk of harm to the children, given the eldest child’s revelations about his improper conduct with her. The eldest child’s allegations against the father were addressed by the trial judge in three categories: first, the disclosure she initially made to the mother in mid-2015; second, the disclosures she made to the mother and the father in June 2016; and third, the disclosures she made to the mother, the maternal grandmother, and the maternal aunt in November 2016.
Mid-2015
In about mid-2015, the eldest child told the mother:
Daddy touched my privates
The mother said she summoned the father and, together, they had a further conversation with the eldest child, during which the father said “that’s not happening” and he asked the eldest child why she was saying such a thing. The father, however, denied the conversation. He said the issue of the eldest child’s disclosure of sexual interference was not raised with him until 2016.
The trial judge accepted the mother’s version of those events (at [427]-[431], [508], [516]) and, in the appeal, there was no challenge to the validity of those factual findings so they must be accepted as being correct.
June 2016
On 18 June 2016, the mother enquired of the eldest child what she had done with the father the evening before when the mother went shopping. The eldest child replied they had watched the football from the couch and:
Daddy touched my privates
Following the revelation, and in response to the mother’s request for her to demonstrate, the child “patted the top of her genitals area, below her stomach, over her clothes”.
A few moments afterwards, the eldest child volunteered to the mother:
I lied
The next day, being 19 June 2016, the parties were both seated around a table with the eldest child. Unexpectedly, the eldest child said:
Daddy, Mummy told me you touched my privates
the father then said to the mother:
What are you saying to [the eldest child]?
The mother alleged that, in response, she then said to the eldest child:
No, [eldest child]. You said daddy touched your privates, then you said that you lied
The father neither admitted nor denied that the mother responded in that way. He said he could not remember if she responded.
The trial judge accepted the mother’s version of those events (at [432]-[438], [452], [508]-[509], [515]-[516]) and, in the appeal, there was no challenge to the validity of those factual findings so they must be accepted as being correct.
The mother also alleged the father confessed to her at that time how the eldest child had once divulged at her swimming classes that he touched her, which he found embarrassing. Although not expressly denied by the father, his denial is implied from his evidence that the parties did not discuss the eldest child’s comments any further that day. The trial judge did not make any finding to resolve that particular factual conflict in the evidence.
November 2016
During November 2016, the eldest child made a series of allegations about the father to the mother, the maternal grandmother, and the maternal aunt – either individually or collectively.
On 11 November 2016, while the maternal grandmother was caring for the eldest child, the eldest child said to her:
Nanny, Daddy touched my privates
The maternal grandmother invited the eldest child to confirm if it occurred accidentally, but the child insisted it was intentional.
On 14 November 2016, the mother left the eldest child in the father’s care for a few hours. The next day, being 15 November 2016, the eldest child was unsettled and when the mother went to apply ointment to the eldest child’s genitals she asked if everything was alright and the eldest child said:
No, Daddy touched my privates
The mother asked the eldest child to show her how and she demonstrated by patting the top of her genitals over her clothing.
They then had the following conversation:
Mother: How many times had it happened?
Child: I told you before, twice.
Mother: But you told me last time that you lied.
Child: I’m not lying, daddy is.
Mother: Are you sure?
Child: Yes. I just want it to stop….I told Nan.
The next evening, being 16 November 2016, the eldest child said in conversation with the mother:
daddy can’t touch my privates
and
…it hurt when daddy touched my privates
The mother asked the eldest child to demonstrate, so she propped her legs up on her bed rail, “put her finger near her vagina area and moved her finger up and down near her vagina” and then said:
He put his finger in and out of the hole….can daddy get into trouble?....Daddy told me you would be cross with me.
The next day, being 17 November 2016, the mother took the eldest child to the maternal grandmother’s home. The eldest child said to them both:
I want to talk about dad touching my privates.
The maternal grandmother had a slightly different recollection of the eldest child’s statement, but the mother made contemporaneous notes of the disclosure and the maternal grandmother did not. The mother also immediately telephoned the maternal aunt and told her the issue of sexual abuse had arisen again.
Later that same evening, when back at home, the eldest child experienced a nightmare and went to the parties’ bedroom. The mother alleged that, in the heat of the moment, she confronted the father over the “terrible things” the eldest child said he did to her, though the father denied he was confronted in that way.
The mother alleged that the next day, being 18 November 2016, the eldest child said to her:
Daddy calls my privates “platypus”
After some further conversation, the mother directly confronted the eldest child by asking her if she was telling the truth about the father “touching her privates”, to which the eldest child responded:
Yes
Later that day the mother attended counselling, telephoned the father and told him to leave the house and to go visit his family in the country, then went to the maternal aunt, to whom she related the eldest child’s disclosures and her request of the father to leave their house.
The next day, being 19 November 2016, the mother telephoned the Sexual Assault Crisis line to formally report the eldest child’s disclosures. Arrangements were made for the eldest child to be interviewed later that day, though she did not repeat her allegations against the father to the investigating officers.
Later that day, the eldest child said to the maternal aunt:
This is my Police teddy bear, I went to the Police today, Daddy touched my privates but I forgot to tell them
At breakfast the next day, being 20 November 2016, the eldest child said to the maternal aunt:
Daddy did a bad things to me but I didn’t tell the Police, I was a bit shy and I wanted mummy to tell them
The next day, being 21 November 2016, the maternal aunt and her partner took the eldest child out for lunch to a café and, during their conversation, the child revealed the father had done “really bad things to her”.
On 22 November 2016, the eldest child was in the company of the mother and the maternal aunt at a fast food restaurant. The father saw them and approached. The mother did not welcome his approach, but he spoke to them briefly and then departed. The eldest child then said to the mother in the maternal aunt’s presence, though the maternal aunt could not recall it:
Mummy I lied about daddy touching my privates. Can daddy come home?
Later that same day, the maternal grandmother was minding the children. The eldest child said to her:
Nanny Daddy touches my privates
The maternal grandmother asked if it occurred accidentally, but the child said it did not. When asked to demonstrate, the eldest child “grabbed the underside of her vagina with her hand and she clasped the area joining her vagina and anus”.
The trial judge accepted the mother’s version of the events at which she was present and, when she was not present, the separate versions given by the maternal grandmother and the maternal aunt (at [441]-[450], [508]-[516]). In the appeal, there was no challenge to the validity of those factual findings so they must be accepted as being correct.
Grounds of appeal
The father’s written Summary of Argument was prepared by his lawyers, but they later ceased to act for him and, when self-represented in the appeal, he did not orally elaborate the written submissions in any way. His written Summary of Argument contended the eight grounds of appeal could be conveniently grouped into four categories, but the nominated categories omitted any mention of two grounds and I elect to deal with them in a different way.
Standard of proof (Ground 1)
This ground asserted the trial judge:
…failed to apply the relevant standard of proof to her finding of unacceptable risk to the children in this case, either pursuant to Evidence Act 1995 s 140, at common law, or both.
In support of this contention it was submitted that, despite the trial judge’s recognition of s 140 of the Evidence Act in the reasons for judgment (at [59]), her Honour did not apply the provision correctly in assessing the evidence. This ground of appeal was underpinned by the father’s submission in the following terms:
…her Honour did not correctly apply the test set out in Section 140 of the Evidence Act when making such a grave finding of [unacceptable risk].
The terms of this ground of appeal and the submissions made in support of it reveal misapprehension about the issues the trial judge was asked to decide and the distinction between, on the one hand, making findings of basal facts and, on the other, using such facts to make predictive findings about any risk of harm posed to the children which inform the parenting orders needed to resolve the dispute.
The trial judge expressly recorded (at [32], [499], [550]) how the mother did not seek any positive factual finding that the father sexually abused the eldest child in the manner she reported. Incidentally, the mother’s disavowal of the need for any positive factual finding was entirely consistent with binding authority because, as the High Court said in M v M (at 76-77):
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child….
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 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)
Had the mother actually sought a positive finding against the father then, subject to the trial judge considering it necessary to do so, the fact finding exercise would have been dictated by the civil standard of proof. Again, as the High Court said in M v M (at 76-77):
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 for the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p 362…
Having eschewed the need for any positive factual finding that the father had sexually abused the eldest child, the mother’s case was instead that the evidence was still sufficiently persuasive to establish the risk of sexual abuse posed by the father to the children, and furthermore, that the magnitude of the risk was unacceptably high, such that it could only be attenuated by the imposition of the children’s permanent supervision when spending time with the father. The trial judge properly understood that to be the nature of the mother’s case, as is evident from the reasons for judgment (at [1], [31], [60], [497], [501]). Consequently, the mother and the trial judge were entirely focussed on what the evidence implied was the risk of harm to the children in the future; not what probably did or did not happen in the past.
In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).
The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
In Malec, Brennan and Dawson JJ said (at 639-640):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at 643):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).
Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
In the case at hand, the trial judge accepted as truthful and correct the evidence given by the maternal family members about the eldest child’s statements and demonstrations concerning the father’s conduct with her. It was open to do so.
However, that the child actually said and demonstrated such things did not necessarily mean her statements and demonstrations were truthful and accurate. For example, she may have been lying about what the father did, since she told the mother on two separate occasions she had lied about it. Alternatively, as the father intermittently tried to argue at trial, the eldest child’s statements and demonstrations might have been innocently explained by him applying ointment to her genitals. Therefore, the next question for the trial judge was whether the eldest child’s statements and demonstrations, as related by the maternal family members, in the context of other known facts and circumstances, were sufficiently persuasive to establish the unacceptably high risk (or chance) the children might be sexually abused by the father in the future, unless independently supervised. The mother said so, whereas the father and the ICL said not. The trial judge’s finding of the unacceptable risk therefore coincided with the mother’s case.
Whether the finding was open is an issue addressed by other grounds of appeal, but for present purposes, the challenge to the manner in which the trial judge applied s 140 of the Evidence Act to the facts to determine the central issue of unacceptable risk of harm should fail.
Asserted errors of fact (Ground 2)
This ground contended the trial judge erred “in fact and law” by finding the father posed an unacceptable risk of harm to the children, but the father’s submissions were confined to only two alleged errors of fact. No error of law was particularised.
The first alleged error was the finding that the mother told the eldest child to be truthful to the Family Consultant during their interview (at [372], [420]), but some context is needed to understand the submission about the alleged error. The Family Consultant reported in the Family Report that the eldest child revealed to her, following an interruption to their consultation for lunch, that the mother told her to tell the Family Consultant something about the father which was “a bit mean” and, more specifically, that he “touched [her] privates”, which revelation “gobsmacked” the Family Consultant. When later quizzed about the child’s revelation, the mother informed the Family Consultant she only told the child to tell the truth, which the Family Consultant interpreted to mean the mother exerted influence upon the child to repeat the allegations against the father and thereby demonstrated “inappropriate behaviour” by her (at [369]-[376]). The mother and Family Consultant were both cross-examined about the issue. The mother maintained she was unaware the eldest child’s interview had even commenced before the lunch break and the only thing she had said to the eldest child in advance was to “be truthful”.
As can be seen, the trial judge’s recitation of the mother’s evidence was accurate, but the trial judge’s acceptance that the mother did as she said was not dispositive of the issue. The trial judge’s critical finding on the issue was that it could not be inferred from what the eldest child told the Family Consultant that the mother “coached” the child to make false allegations against the father in her interview with the Family Consultant (at [419]-[420]).
Since that specific finding coincided with the mother’s evidence, which the trial judge accepted as truthful, it could not have been mistaken, even though there was other evidence to different effect. An appeal court should not interfere with a trial judge’s finding based on the evidence of a witness, perceived to be credible, if it was open and not glaringly improbable (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at 559). The finding was not glaringly improbable, not least because the mother’s evidence of what she told the child and the Family Consultant’s evidence of what the child said to her could both stand together compatibly. The child could have understood the story of the father “touch[ing] [her] privates” to be the truth, which is all the mother admonished her to tell.
The second alleged error was the trial judge’s comment (at [516]) that it would not be surprising for the eldest child to report her alleged sexual abuse to maternal family members, but then not feel comfortable reporting it to other independent persons such as police officers, the Family Consultant, or her counsellor.
As can be seen, this was not a factual finding at all because the trial judge did not determine, nor purport to determine, whether the eldest child either did or did not desist from reporting her allegations to independent authorities for a particular reason. It was no more than rumination about why the eldest child’s failure to report her allegations to the authorities was not such a compelling feature of the evidence as to necessarily imply the unreliability of her disclosures to the maternal family members, as the father had contended. The trial judge’s reasons in that respect were no more than her Honour’s transparent evaluation of the probative weight which should be reposed in the eldest child’s failure to report her allegations to independent authorities, which was intrinsic to the process of attributing weight to the various facts affecting the ultimate exercise of discretion.
In any event, the trial judge recorded how the Family Consultant agreed there was “no certainty” children will report their allegations to “objective sources” (at [390]) and that the nature of children’s disclosure of sexual abuse is “highly variable” (at [397]). Additionally, although not extracted in the reasons for judgment, the eldest child’s psychologist gave evidence in cross-examination conceding that it is not unusual for young children to either desist from making further disclosures or to recant disclosures already made. Therefore, the trial judge’s comment that it would not be surprising for the eldest child to refrain from making her disclosures outside the confines of the maternal family was quite consistent with the expert evidence given at the trial. The father’s written submission that the trial judge’s comment was “mere conjecture” and the ICL’s written submission that it was “speculative” should both be rejected.
Asserted failure to apply correct legal principles (Grounds 3, 4, 6 and 8)
In one form or another, these grounds were directed to the same single premise: the trial judge erred by finding the father posed an unacceptable risk of harm to the children through sexual abuse. The grounds contended that the finding was against the weight of evidence (Grounds 3 and 8), the trial judge misdirected herself (Ground 4), and the trial judge failed to assess the magnitude of the risk to the children separately and jointly (Ground 6).
Before analysing these grounds, it is instructive to review the findings made by the trial judge. Her Honour found the father posed an unacceptable risk of harm to the children and expressed it in the following terms:
523.However on the basis of the evidence of the mother, the maternal grandmother and [the maternal aunt] concerning the complaints about the father’s conduct made by [the eldest child] over time and particularly the demonstration she provided to the mother I am satisfied that there is an unacceptable risk of [the eldest child] being sexually abused in the unsupervised care of the father.
524.In considering the magnitude of the risk, I am satisfied that the risk is unacceptable having regard to the seriousness of the allegations, and the other matters I have found in answering the questions posed by Fogarty J in N [and] S.
…
563.On a number of occasions since mid-2015, [the eldest child] has raised with her mother, her maternal grandmother and her maternal aunt … her complaint that “Daddy touched my privates.” This is a difficult case because the complaint by the child has not been expansive and the father denies any inappropriate sexual conduct with the child. The child’s complaint has been consistent but she has at times said that she has lied and then at another time said “I am not lying, daddy is.” The mother’s account of the demonstration by the child accompanied by the words “he put his finger in and out of the hole” was compelling.
…
566.In considering the magnitude of the risk, I am satisfied that the risk is unacceptable having regard to the seriousness of the allegations, and the other matters I have found in answering the questions posed by Fogarty J in N [and] S.
567.I find that there is an unacceptable risk of [the eldest child] being sexually abused in the unsupervised care of the father. I am satisfied that it is in the best interests of both children to spend supervised time with the father. This is unfortunately the only realistic option here. On the evidence of the family consultant it is not in the best interests of the children to be split.
Several features of the evidence pointed towards both the truth and accuracy of the eldest child’s disclosures. The consistency of the eldest child’s descriptions, their accompaniment on some occasions by graphic demonstrations of how her genitals were manipulated, her complaint about her vagina being penetrated by the “in and out” motion of the father’s finger (which could not be innocently explained by his application of ointment to her vulva), the complaint she was “hurt” by it, and the lengthy period over which she repeated her disclosures were, in aggregation, powerful considerations.
Nevertheless, the evidence did not all point in the same direction. The father consistently maintained his denial of any impropriety and he could do no more than that. In addition, with the ICL’s support, the father relied upon other pieces of evidence which he contended detracted from any inference that he may have sexually abused the eldest child and militated against the trial judge’s finding of unacceptable risk of harm. In summary, those pieces of evidence were:
(a)The eldest child’s admission to the mother on two separate occasions that she lied about what the father had done.
(b)The eldest child enjoyed a close relationship with the father and wanted to spend more time with him.
(c)The lack of any medical evidence to verify any sexual assault.
(d)The mother’s suggestion to the Family Consultant that the eldest child’s vaginal thrush could be related to the father’s finger infection.
(e)The eldest child’s sufferance of vaginitis, which condition was occasionally treated by the application of ointment to her vulva by both parties, meaning the touch of her vulva was not necessarily sinister.
(f)The eldest child’s confession to the Family Consultant that her genitals only hurt when the mother applied cream to her vulva.
(g)The mother’s hypervigilance about the children’s subjection to sexual abuse.
(h)The Family Consultant’s evidence of how the eldest child denied anyone had hurt her or made her uncomfortable tended to be inconsistent with the truth of the eldest child’s reports of sexual abuse.
(i)The reliability of the eldest child’s reports was also impugned by the Family Consultant’s evidence that the language of the eldest child’s reports of sexual abuse did not evolve over the period of time during which they were made, as she would have expected.
(j)The eldest child’s psychologist gave evidence that she found no evidence of the eldest child’s sexual abuse.
It is necessary to address each of those considerations.
The eldest child admitted on two separate occasions to the mother that she lied about the father touching her genitals. The first occasion was on 18 June 2016 (at [71], [432]), but the trial judge noted the eldest child was present some 12 months before in mid-2015 to hear the father deny he touched her genitals when confronted by the mother (at [435], [515]), so her recant was not necessarily truthful because it may have been influenced by her knowledge of the father’s denial. The second occasion was on 22 November 2016 (at [132]), but the trial judge noted the mother had challenged the eldest child some days beforehand about her having said she lied once before and the eldest child then retorted it was the father and not her who was lying, and further, that the circumstances in which she recanted perhaps meant she was motivated to remove any obstacle blocking the father’s return to live in the family home so she could see more of him (at [93], [511], [515]). So again, those qualifications meant her admission of deceit was not necessarily reliable. Significantly, the Family Consultant agreed in cross-examination that the eldest child’s two admissions of deceit did not necessarily mean she had not been abused as she first reported (at [397]).
It is undoubtedly true that the eldest child adored the father and wanted to spend more time with him, but the father leapt to the conclusion that those facts tended to discount the prospect of his sexual abuse of her. The eldest child’s psychologist said in cross-examination that the sexual abuse of a child perpetrated by a family member did not destroy the “elements of closeness” in the relationship enjoyed by the child with that family member. In other words, an abused child may continue to love an abuser and wish to retain the relationship with that person, but still want the abuse to cease. Consequently, that the eldest child still loved the father and wanted to see more of him was not a factor which attracted the probative weight for which the father contended.
The lack of medical evidence to corroborate the eldest child’s sexual abuse bore no significance. The highest available interpretation of the eldest child’s allegations was that the father digitally penetrated her vagina. If that occurred, it would not necessarily have caused the eldest child to suffer any observable physical injury.
The father seemed convinced that the mother’s willingness to link the eldest child’s sufferance of vaginal thrush to his finger infection, which he described as a “bizarre suggestion” in his submissions, somehow compromised the integrity of the evidence, though he did not explain why. It did not affect the question of whether the eldest child made the alleged disclosures in the first place and it did not seem to affect the question of whether the eldest child’s disclosures were reliable. The issue arose in a quite innocuous way. The Family Consultant reported in the Family Report that, during their interview, the mother linked the eldest child’s thrush to the father’s persistent finger infection. When pressed about it during her cross-examination, the mother explained how the Family Consultant asked her to consider possible causes for the child’s vaginitis and she gave the Family Consultant some “options”, with the father’s finger infection being one option, but conceded she was not a doctor and did not know. Ideas floated by the mother in response to such an open question were simply idle speculation of no probative weight. Sensibly, the trial judge paid such evidence no heed.
There is no doubt the eldest child suffered from vaginal irritation. Medical evidence was given at trial on the topic, as was summarised by the trial judge (at [158]-[162], [317], [326]), in reliance upon which her Honour found the child was diagnosed with both vaginitis and thrush (at [461]), but expressly noted those diagnoses were not relied upon to reach the finding about the unacceptable risk of harm posed by the father (at [462], [518]). The child’s intermittent vaginal irritation was treated by the topical application of an ointment, applied by both parties from time to time. The father posited that the eldest child’s reports of him “touching her privates” could have been her reference to his application of ointment to her vulva, which would be entirely consistent with his proper parental care. However, the evidence of his therapeutic treatment did not align with the eldest child’s disclosures.
The father said he did not touch the eldest child’s genitals for any reason other than to apply ointment (at [156]). He told the Family Consultant he could not recall the last time he applied ointment to the eldest child’s genitals (at [380]) but, in his trial affidavit, as the trial judge recorded (at [155], [461], [517]), the father deposed the eldest child applied the ointment herself from about the time of the youngest child’s birth, which was in March 2016, well before the eldest child’s disclosures were made in June and November 2016. Then, in cross-examination, as the trial judge again recorded (at [156]), the father confirmed he did not help the eldest child to apply ointment to her vulva around the times of her reports about him touching her genitals in 2016. For her part, the mother said she never saw the father apply ointment to the eldest child’s genitals after she was toilet-trained as an infant in about February 2015 (at [157]). Therefore, the parties’ evidence was consistent about the father not touching the eldest child’s genitals for any therapeutic purpose after about March 2016. It must consequently follow that any treatment administered by the father to treat the eldest child’s vaginitis or thrush lost force as a reasonable explanation for the allegations of him touching the child’s genitals in June and November 2016.
In her consultation with the Family Consultant, the eldest child said her parents applied cream to her genitals, but it only hurt when the mother applied it (at [367]). The father considered that statement to be significant, but it is unclear why because it tends to detract from any submission that he inadvertently hurt the eldest child while he innocently applied ointment to her vulva and instead left open the prospect that any “hurt” he caused to her genitals, of which she complained, was due to him touching her on that part of her anatomy for some other reason. Given the father expressly disavowed touching the child’s genitals for any reason other than the topical application of ointment, the prospect he touched her genitals improperly tended to be enhanced by the eldest child’s statement, though the trial judge did not rely upon that inference.
There could be little doubt the mother was gradually drawn to her fervent belief in the eldest child’s sexual abuse by the father, as the trial judge found (at [225]-[232], [398]-[400]), which made her hyper-vigilant about the children’s safety in his care. The trial judge accepted the father’s submission that the mother tended to “look at things through a sexualised lens”, caused by her genuine belief in the eldest child’s allegations against the father (at [456]-[459], [476]-[481]). However, the honesty of the mother’s belief in the truth of the eldest child’s reports only tended to bolster the finding that the eldest child disclosed and demonstrated to the mother the father’s manipulation of her genitals, as the mother alleged. The honesty of her belief that it actually occurred in the manner the eldest child reported did not influence the trial judge’s objective assessment of the risk of harm posed by the father, because the mother’s honest belief could still have been mistaken.
The Family Consultant said in cross-examination that during her consultation with the eldest child, when she was specifically asked whether anyone had hurt her or done anything to make her uncomfortable, the eldest child denied it. Perhaps understandably, the father seized on that evidence as proof he had not sexually abused the eldest child. That could be true, but the proposition is not so uncomplicated for at least three reasons.
First, at another point during their conversation, the eldest child did tell the Family Consultant she was hurt by the mother, but not the father, when cream was applied to her genitals, so her bald denial of being hurt by anyone at any time did not hold true. In any event, the Family Consultant confirmed there was no certainty that children will report sexual abuse disclosures to “objective sources” and the nature of children’s disclosures of abuse is “highly variable” so the eldest child’s failure to report the allegations to the Family Consultant when she was asked elliptically about pain or discomfort tended not to take the issue any further.
Second, the eldest child told the Family Consultant she was worried she was responsible for the parental separation due to “something [she had] said”, and further, her worry was exacerbated by her worry she would “get into trouble if [she says] the wrong thing” (at [369]). It is therefore easy to imagine how she might have wished to avoid being drawn into any discussion by the Family Consultant about her former revelations of the father touching her genitals, because she was “acutely aware” it had caused trouble within the family (at [368]). That could explain why she was keen to impress the father did not hurt her when he applied cream to her genitals and she was worried the father would get into trouble for applying the cream to her (at [367]).
Third, even though the child denied being caused pain or discomfort by anyone, she still did admit to the Family Consultant that she once told the mother the father had “touched [her] privates” (at [367]). Her denial of pain or discomfort did not, therefore, necessarily mean the father did not improperly touch her genitals.
The father submitted in the appeal that the trial judge discounted the evidence of what the eldest child told the Family Consultant because of her young age, which he considered to be inconsistent with the trial judge’s remarks elsewhere about the parties’ mutual acceptance that the eldest child was “articulate and thoughtful” and “more mature than her years would suggest” (at [367] and [375]). His point was that, if the child’s disclosures to the maternal family members are accepted as correct, then so should the child’s statements to the Family Consultant. So stated, the argument flirts with logic, but his submission should be rejected because it misstates the trial judge’s reasons. Her Honour accepted as true the Family Consultant’s assessment of the eldest child’s relative maturity (at [367]), but also embraced the Family Consultant’s concession in cross-examination that literal reliance upon the child’s statements made during their consultation “has its own difficulties” (at [375], [420]). Her Honour accepted, on that point, the Family Consultant’s evidence in its entirety.
The Family Consultant said in cross-examination that she would have expected the language of the eldest child’s reports of sexual abuse to have evolved over the time during which they were made, which “raised concerns” for her (at [388]-[389]), implying the eldest child’s reports were more like a constantly rehearsed story than recollected reports of contemporaneous events. The father inferred such evidence meant the eldest child’s reports about him were not authentic, but the Family Consultant made other concessions which detracted from the inference he drew. She also said that: given the child’s age, she would not have expected “elaborated response[s]” from her; some change in the child’s language “may not occur”; and disclosures may not become more elaborated over time because the process is not necessarily consistent. The trial judge properly recorded those concessions in the reasons for judgment also (at [389], [397]), which balance out the portion of her evidence upon which the father selectively relied and, evidently, the trial judge took the whole of the Family Consultant’s evidence into account in that respect.
It was an integral component of the submissions made by the father and the ICL in the appeal that the trial judge rejected the Family Consultant’s evidence in so far as it related to the issue of unacceptable risk of harm, but their submissions are rejected. The trial judge referred to and took into account the Family Consultant’s evidence, rejecting it only when it clashed with the evidence of the eldest child’s psychologist (at [415], [424]) and with the mother’s evidence (at [429]) on discrete points of fact.
Significantly, the Family Consultant acknowledged it was not her place to make any determination about whether or not the father posed an unacceptable risk of harm to the children, which was exquisitely the province of the trial judge. She admitted the trial judge’s findings about the credibility of the evidence given by the maternal family members would be vitally important to the determination of the existence of risk, as an issue of fact rather than opinion (at [393], [525]), and she posited alternative recommendations about parenting orders for the children, depending upon the trial judge’s ultimate finding about the unacceptable risk of harm allegedly posed by the father (at [366]). In other words, while the Family Consultant pointed out aspects of the evidence which could conceivably bear upon the existence of risk in one way or another, as was proper, she left the determination to the trial judge.
The eldest child’s psychologist gave evidence that she had “no information to indicate that the father has acted inappropriately [towards the eldest child]”, as was acknowledged by the trial judge (at [341], [343]). The psychologist’s opinion evidence about the eldest child was, as she admitted, “largely based on play therapy” and did not admit of any conclusion about whether or not the eldest child had been sexually abused (at [344]), so the trial judge correctly reposed no weight in her evidence in so far as it might bear upon the question of unacceptable risk (at [527]). Nonetheless, the trial judge accepted the psychologist’s opinion evidence that the mother tended to “look at things through a sexualised lens” (at [459], [476]), which feature of the evidence has already been addressed in these reasons, and that she had supported the eldest child’s meaningful relationship with the father despite her belief in the abuse (at [475]).
Following that analysis, the countervailing considerations emphasised by the father were material, but it could not be reasonably said that they collectively carried such probative weight as to foreclose the trial judge’s finding made in reliance upon the other features of the evidence already addressed about the existence of the unacceptable risk of harm. The finding was rationally open.
Since the finding was open, then, notwithstanding it may have also been open to reach the opposite conclusion, the appeal against the probity of the finding must fail because that is the very essence of discretionary decisions in this jurisdiction.
None of the challenges to the weight reposed by the trial judge in various features of the evidence, either being too little or too much, are convincing. They certainly did not rise so high as to permit a conclusion that the failure to give adequate weight to relevant considerations really amounted to a failure to exercise the discretion entrusted to the court (Lovell v Lovell (1950) 81 CLR 513 at 519).
These grounds of appeal should fail.
Asserted failure to provide adequate reasons (Grounds 5 and 7)
All of the evidence, both for and against the finding of an unacceptable risk of harm posed by the father to the children, as discussed above, was canvassed in the trial judge’s reasons for judgment. Nonetheless, the father contended the trial judge failed to give adequate reasons for the ultimate finding (Grounds 5 and 7).
As already addressed under the former grounds, the trial judge accepted the maternal family members’ evidence about what the eldest child reported to them about the father. Once that finding was made, and given there is no challenge to it in the appeal, several features of such evidence pointed towards both the truth and accuracy of the eldest child’s disclosures upon which the trial judge then relied to find the father posed an unacceptable risk of harm to the children.
As already identified, those features were: the consistency of the eldest child’s descriptions, their accompaniment on some occasions by graphic demonstrations of how her genitals were manipulated, her complaint about her vagina being penetrated by the “in and out” motion of the father’s finger (which could not be innocently explained by his application of ointment to her vulva), the complaint she was “hurt” by it, the lengthy period over which her disclosures were repeatedly made, and the mother’s disinclination to jump to hasty conclusions. The probative weight of those features of the evidence was discussed by the trial judge satisfactorily in the reasons (at [430]-[431], [433], [435], [443]-[447], [452], [454], [481]-[482], [508]-[517], [523]-[524], [563], [566]-[567]). It could not be reasonably contended it was unclear why the trial judge reached the conclusion that the unacceptable risk of harm existed.
More specifically, the father asserted the trial judge failed to adequately explain the disinclination to repose more weight in other aspects of the evidence which he considered warranted greater weight, and in particular, the evidence given by the Family Consultant and the eldest child’s psychologist, the failure by the eldest child to report her allegations outside the maternal family, and the eldest child’s retraction of her allegations against the father.
Each one of those features of the evidence was addressed by the trial judge and adequate reasons were given for why her Honour found:
(a)The eldest child’s comments to the Family Consultant did not necessarily imply the mother “coached” her to make false allegations against the father (at [419]-[420]);
(b)The evidence of the eldest child’s psychologist was preferable to the Family Consultant’s evidence about the discussion between them over whether the eldest child had reported to the psychologist that the mother influenced her to make false allegations against the father (at [424]-[425]) and why the Family Consultant’s misunderstanding would likely have galvanised her adverse view about the mother (at [426]);
(c)The Family Consultant was probably mistaken about one factual aspect of her discussion with the mother (at [429]);
(d)The evidence given by the Family Consultant and the eldest child’s psychologist that the mother tended to “look at things through a sexualised lens” was correct, but was understandable given her honest belief in the father’s sexual abuse of the child (at [458]-[459], [476], [479]);
(e)Despite the mother’s honest belief in the eldest child’s sexual abuse by the father, she has promoted the children’s meaningful relationships with him, accepting the evidence given by the father, Family Consultant, and the eldest child’s psychologist’s evidence to that effect (at [475]);
(f)The eldest child’s failure to report her allegations outside the confines of the maternal family was not such a compelling feature of the case, as the Family Consultant agreed (at [390], [397], [516], [565]);
(g)The eldest child’s admission to the mother, on two occasions, of having lied about what she alleged the father had done was not a compelling feature of the case, as the Family Consultant agreed (at [397], [435], [511], [515]);
(h)The eldest child showed maturity beyond her years, but literal reliance upon her statements made in consultation with the Family Consultant “has its own difficulties”, just as the Family Consultant said (at [367], [375], [420]);
(i)The Family Consultant’s “concerns” about the lack of any evolution in the language used by the eldest child to complain about the father over time probably meant nothing because of countervailing concessions made by the Family Consultant (at [388]-[389], [397]);
(j)The Family Consultant was correct to acknowledge how the trial judge’s findings of fact and the parties’ reliability would influence whether the alleged unacceptable risk of harm was established (at [525]); and
(k)The opinion evidence of the eldest child’s psychologist had no bearing upon the existence of the alleged unacceptable risk of harm (at [344], [527]).
Even though the father may disagree with the reasons given by the trial judge, his complaint that her Honour failed to give adequate reasons should fail.
I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Austin JJ) delivered on 17 December 2019.
Associate:
Date: 17 December 2019
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