H & K
[2001] FamCA 687
•19 July 2001
[2001] FamCA 687
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No NA2 of 2001
AT BRISBANE File No BR11765 of 1999
BETWEEN:
MR H
Appellant Father
- and -
MS K
Respondent Mother
CHILD REPRESENTATIVE
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: NICHOLSON CJ, KAY & MULLANE JJ
DATE OF HEARING: 31 May 2001
DATE OF JUDGMENT: 19 July 2001
APPEARANCES: Mr Jordan, Solicitor, instructed by Harrington Batts, Solicitors, 239 George Street, Brisbane, Qld 4000, appeared on behalf of the Appellant Father.
Mr Cooper of Counsel, appeared on behalf of the Respondent Mother (128 Kamarin Street, Manly West Qld 4179).
Mr Slack of Counsel, instructed by Legal Aid Queensland, 44 Herschel Street, Brisbane Qld 4000, appeared on behalf of the Child Representative.
H and K
NA 2 of 2001
Coram: Nicholson CJ, Kay and Mullane JJ
Date of hearing: 31 May 2001
Date of judgment: 19 July 2001
CONTACT- orders made that father have continual supervised contact with child- very unlikely that abuse occurred- mother’s anxiety over unsupervised contact
The parties met in 1994 and began a relationship, however they never cohabited. Their daughter was born in 1996, and the relationship ended about six months after the child’s birth.
The father had a reasonable degree of contact with the child in her first three years of life. In early 1999, the child made statements suggesting that she had been sexually abused.
The Queensland Police and the Department of Families, Youth and Community Care carried out investigations. The mother stopped all contact between the father and the child from early 1999 until by agreement supervised contact commencing in late 1999. Initially supervised contact took place at a contact centre, and since mid 2000 at the home of a mutual family friend.
Before the trial Judge, the father sought orders for Saturday contact, to become alternate weekend contact by four months from the date of the orders and alternate overnight weekend contact three months thereafter. The mother opposed any contact at all.
His Honour found that the statements made by the child that suggested sexual abuse had occurred had little evidential value. There was conflicting evidence as to whom the perpetrator was and what the child had said about what happened. The trial Judge thought that in the circumstances it was wise not to have charged the father with abusing the child.
The trial Judge’s own impression on seeing and hearing the father was a favourable one, and he found that it was very unlikely that the father intentionally acted abusively towards the child. His Honour concluded that there was at most a very slight risk of inappropriate conduct on unsupervised contact and quite possibly no risk at all.
His Honour thought that if contact changed from supervised to unsupervised it would cause the mother intense stress which may impact on her caregiving ability. In addition, an order for unsupervised contact may eventually damage the child’s relationship with her father because of the overwhelming anxiety that would precede and follow contact occasions.
The trial Judge ordered that the father have on-going supervised contact with the child, and removed all applications from the Pending Cases List.
On appeal, the father argued that the trial Judge had erred by finding that a change from supervised to unsupervised contact would cause the mother and the child distress; that his Honour failed to give weight to the submission that the trial process would be a cathartic experience for the mother; and that his Honour erred in elevating the mother’s parental anxiety above the other s 68F(2) factors.
Held: in allowing the appeal in part
(per Nicholson CJ, Kay and Mullane JJ)
The predictions made by the trial Judge as to the likely effect of unsupervised contact upon the mother, and the transmission of the mother's anxieties to the child were clearly open to him. The material relied upon by the appellant did not provide a firm basis for interfering with those findings.
The difficulty with the appellant’s argument that the trial Judge should have stood the matter down, so as to enable the mother to absorb his Honour's findings that no abuse had taken place, was that no application was ever made to the trial Judge to do so. Nor was any application ever made to have his Honour make interim orders only, and to adjourn the matter for further consideration after some experimentation with unsupervised contact had taken place. Therefore there was no error by the trial Judge.
Although the bases for the mother’s anxiety were found to be unsound in this case, because she firmly believed that sexual abuse has taken place, the reality of those anxieties was something his Honour was well able to take into account.
The open-ended nature of the supervision order was somewhat unsatisfactory. The orders left the parties with no mechanism for moving forward. In order to overcome any problems created by Rice v Asplund (1979) FLC 90-725 the orders were amended to grant liberty to apply to vary the orders. It was also ordered that a further welfare report be prepared in 12 months time with a view to either party then bringing an application upon presentation of the report if the parties were unable to otherwise resolve their differences.
APPEAL ALLOWED IN PART
NO COSTS ORDER
NOT REPORTABLE
This is an appeal from orders made by the trial Judge on 8 December 2000 whereby his Honour ordered that the appellant father’s contact with his daughter be supervised. The father seeks that the supervised contact gradually give way to unsupervised contact.
Background
The father was born in 1966 and the mother was born in 1966. The parties met in 1994 and began a relationship, however they never cohabited. Their daughter X was born in 1996, and the relationship finally ended about six months after X’s birth.
The mother is an educator, who was completing post graduate studies at the time of the trial. The father is also an educator, …
The father had a reasonable degree of contact with X in her first three years of life. For some period after her birth he cared for her for one to two days a week while the mother was at work.
In early 1999, X made statements suggesting that she had been sexually abused. The Queensland Police and the Department of Families, Youth and Community Care (“the Department”) carried out investigations. The mother stopped all contact between the father and X from early 1999 until by agreement supervised contact commenced in late 1999. Initially supervised contact took place at the B Contact Centre, and since mid 2000 has taken place at the home of Ms C, a mutual family friend. On 23 December 1999 and 8 March 2000, a Registrar ordered that supervised contact should continue.
Judgment of the trial Judge
At the trial before the trial Judge, the father sought orders for Saturday contact moving to become alternate weekend (each day) contact after four months and alternate overnight weekend contact three months thereafter. The mother opposed any contact at all.
His Honour found that two matters dominated the evidence in this case.
The first was the mother’s certainty that the father had abused the child, and her understandable opposition to further contact between the child and the father. His Honour noted that the mother expressed a “less rational view” that X did not know of the mother’s hostility to the father and her opposition to the father having contact with X.
The other matter was X’s expressed dislike and wariness of her father, her knowledge of the dislike her mother had for her father and the ambivalent feelings that the child experienced as a result.
His Honour found that statements made by X that suggested sexual abuse had occurred probably had little evidentiary value against the father. The mother’s evidence was that when X was about three years old, the mother began to teach X protective behaviours. This included informing X that no-one was allowed to touch her genital area unless it was for medical purposes. In early 1999 the mother tested X’s recall of what she had been taught, to which X unexpectedly replied words to the effect of “Daddy […] puts his finger inside me like this”, and then proceeded to demonstrate by lifting up her dress.
There was conflicting evidence as to who X had identified as the perpetrator, because she called her mother’s former de-facto partner “Daddy” as well as Mr H. The maternal grandmother, who was present on this day, gave evidence that the mother asked X whether it was "the Daddy who lived in the [D region]" (a description X used for the mother's former de facto husband) and X answered "yes".
Following the statements made by X in early 1999, the mother contacted the police. The trial Judge viewed a tape of the police interview, and said that:
“...[X]’s speech at that time was not clear, she was hard to focus (sic) and readily distracted herself, responded to leading questions, was very responsive to the mood of her adult questioners, and quite clearly nominated [Mr E] [the mother’s former de-facto partner] as her ‘Daddy’…I thought her answers in that interview were unequivocally about Mr. [E], and not the father.”
In June 2000 the mother notified the Department, which resulted in further police interviews with X. His Honour noted that on this occasion X identified Mr H as the perpetrator, and that she “was a little more explicit in her descriptions on that occasion, which was at least 16 months after the last unsupervised contact.”
After that interview, Police Officer F told the mother that he believed her complaint, and only needed one more piece of information before laying a charge. He later swore that he had been “a bit rash” in saying that, and that his intention had been to console the mother who appeared distressed that “no-one believed her.” The trial Judge said that:
“…in the circumstances...it was a wise decision not to charge the father [with abusing [X]], but Officer [F]’s confident statement to the mother…has given the mother rational grounds for believing that the Police share her firm view that the father did abuse [X]”.
His Honour found that although between March 1999 and July 2000, X had made statements to some people indicative of sexual abuse of her by her father, “the context in which they were made seems to me very much to reflect the anxiety the mother had about the father’s dealings with [X].” He noted further that:
“…the fact that [X] did not unequivocally identify her father when interviewed in [early] 1999, and unequivocally did in [mid] 2000, identifying at that latter time more explicitly abusive behaviour than she had in [early] 1999, makes it very dangerous to treat what was said to those investigating the mother's concerns in either [early] 1999 or [mid] 2000 as evidence in any way implicating the father."
The trial Judge referred to the difficulty that the father faced, because his own evidence in cross-examination tended to exclude any innocent conduct as an explanation for X’s statements. In addition his Honour referred to the “showering incidents”, where the father and X had showered together because they were hot and also because the father thought it was important that X understood “what a man looks like”. His Honour found “that the content and presentation of his evidence about the showering incidents did not help his case.”
However, his Honour stated that his own impression on seeing and hearing the father was a favourable one, and that it was very unlikely that the father intentionally acted abusively towards X. The trial Judge concluded:
“…there is at most a very slight risk of inappropriate conduct on unsupervised contact, and quite possibly no risk at all."
and later:
"'I think the level of risk that the father would sexually abuse [X] is so low that, by itself, it would be an acceptable risk."
With regard to s 68F(2)(a) his Honour found that X was confused by the very negative message she received from her mother about her father and the more positive experiences she personally had with her father on contact.
With regard to s 68F(2)(c) his Honour thought that if contact changed from supervised to unsupervised it would cause the mother intense stress, because she believed the father has abused X. His Honour accepted the view of the court counsellor that X “is acutely aware that her mother is very anxious about her seeing her father.”
His Honour thought that an order for unsupervised contact would eventually damage X’s relationship with her father because of the overwhelming anxiety that would precede and follow contact occasions. In addition his Honour found that X needed to be protected from the risk of psychological harm she may suffer from unsupervised contact as a result of the mother’s anxiety, which may impact adversely on the mother’s caregiving ability.
The trial Judge concluded that there was considerable merit in the submissions of the Child Representative that orders be made for supervised contact. His Honour found that this would protect the father from further allegations of abuse, and would reduce the mother’s stress in relation to contact. His Honour also accepted the submission of the Child Representative that there be no order that the child receive therapeutic counselling.
His Honour then made the following orders:
“1)That the child [X] born [...] 1996 live with the MOTHER.
(2) That unless otherwise agreed between the parties:
(a)the child have contact with the FATHER on the Saturday of each alternate weekend for a period of 6 hours, such period unless otherwise agreed to be from 10.00 am to 4.00 pm;
(b)such contact is to occur under the supervision of [MS C] or other supervisor or place of agreed supervision, with the FATHER to be solely responsible for all costs of such contact;
(c)the MOTHER is to make the child available for telephone contact with the FATHER each Wednesday or other agreed week-day at 6.00 pm or other agreed time, with the FATHER to initiate that telephone contact, and the MOTHER to supply the FATHER with a telephone number on which this ordered telephone contact can be had with the child;
(d)the FATHER to have the like telephone contact at the like time on Christmas Day, the FATHER's birthday, Father's Day, and the child's birthday.
(3)That each parent be responsible for the child's day to day care, welfare and development while the child is in that parent's care, and otherwise each parent has parental responsibility as provided for by Section 61C of the Family Law Act 1975.
(4)That all applications be removed from the Pending Cases List.”
Grounds of Appeal
The father’s appeal concerns only the contact orders contained in Order 2. His grounds of appeal as set out in the Amended Notice of Appeal filed on 30 May 2001 are as follows:
“1. The learned trial Judge erred in finding in fact that:
§ if contact changed from supervised to unsupervised this would cause the mother intense distress;
§ an order for unsupervised contact would eventually, and ultimately, damage [X]’s relationship with her father because of the overwhelming anxiety that would precede and follow contact occasions;
§ the mother’s concern means that this (supervised contact) is the only variety of contact which [X] would be allowed to enjoy;
§ unsupervised contact would of itself cause avoidable psychological harm to [X], by reason of the mother’s understandable stress about the very fact of unsupervised contact
2.The learned trial Judge erred in failing to give any, or in the alternative any sufficient, weight to the evidence that:
§ The mother would obey an order for unsupervised contact;
§ The mother would promote such contact;
§ [X]’s contact with her father had improved significantly since it left the [B] Contact Centre;
§ That contact could progress, with appropriate safeguards and reviews, to unsupervised contact
3.The learned trial Judge erred in failing to give any, or in the alternative any sufficient, weight to the submissions made by the appellant’s solicitor that the trial process would be a cathartic experience for the mother.
4.The learned trial Judge erred in failing to give any weight, or any sufficient, weight to the submissions made by the appellant’s solicitor that the mother’s belief that the father sexually abused [X] might be altered by a finding by the learned trial Judge that the father did not pose an unacceptable risk to [X] in having contact with her.
5.The learned trial Judge earned (sic) in law in elevating the mother’s parental anxiety issue above the other s68(F)(2) factors.”
The father now seeks that the existing contact orders be set aside and that supervised contact give way to unsupervised contact.
The Appeal
The first and second grounds argued challenge the findings that appear in the following extracts from his Honour's judgment (emphasis added):
"39.I think that if contact changed from supervised to unsupervised this would cause the mother intense stress. She believes the father has abused [X], and that belief has rational support from the statements admittedly made to her by Police Officer [F] [i]n [mid] 2000. No responsible parent could ignore them, no matter what Police Officer [F] later said. While the mother disagreed in cross-examination that [X] was presently aware of the mother's own anxiety about [X]’s contact with the father, I think the mother is in error there, and I accept [...]’s [the court counsellor] view (first report, para. 65) that [X] ‘is acutely aware that her mother is very anxious about her seeing her father’.
40.I think increasing the level of anxiety the mother would understandably feel would make supervised contact a much more anxiety-provoking occasion for [X]. I think it would be likely to be preceded by advice and warnings intended to be protective, and which would make it even more difficult for [X] to enjoy the contact occasions. The mother's affidavit evidence is replete with descriptions of [X]’s anxious and difficult behaviour both before and after contact occasions, which evidence I regard as demonstrating just how much the mother's anxiety affects [X]. I think an order for unsupervised contact would eventually, and ultimately, damage [X]’s relationship with her father because of the overwhelming anxiety that would precede and follow contact occasions.
…
47.In the result, I am satisfied that there is considerable merit in the helpful submissions made by Mr. Slack for the Child Representative, who urged the Court to make final orders for supervised contact. Those submissions included the sensible one that supervised contact would protect the father against any further allegations of abuse, and in any event I consider that the mother's concern means that this is the only variety of contact which [X] would be allowed to enjoy. I think the level of risk that the father would sexually abuse [X] is so low that, by itself, it would be an acceptable risk; but the unsupervised contact circumstances in which any such abuse could occur would themselves have already caused avoidable psychological harm to [X], by reason of the mother's understandable stress about the very fact of such unsupervised contact."
In support of a submission that none of these four highlighted findings were open on the evidence, our attention was drawn to the mother's evidence in cross examination that she would obey an order for unsupervised contact. When asked however if she would promote such contact she said:
"I would actually - if it was unsupervised, I would ensure that [X] had more protective behaviour lessons from someone in a professional capacity. That's what I would do."
Reliance was also placed on the evidence of the court counsellor who had prepared two family reports. It was submitted that the court counsellor’s evidence disclosed that contact could progress, with appropriate safeguards and reviews, to unsupervised contact.
In fact the court counsellor’s evidence was much more cautious. In response to counsel's suggestion that the child could be left alone with the father during periods of otherwise supervised contact the court counsellor replied:
"...I would see that that would need to occur possibly over a longer period than my understanding is that you are proposing at this point in time. I would see that [X] still is developing her relationship with her father, and I can't remember the last date on which I actually reviewed contact. However, I haven't reviewed for some time, and so I'm not aware of how her relationship or how comfortable. I know that she was very comfortable in that environment when I was there.
Yes?---I would see it developing, possibly, at a more slower rate than you possibly are putting to me at this point in time- - -
Okay?--- - - - and maybe that would be with Ms [C] maybe just going into another room or something like that, where she's not actually leaving the residence where, if [X] showed any signs of distress or anxiety, that she would actually be available to allay that distress and anxiety, and she would be on hand to do that, before anything like that occurred.
Okay. And then working on a graduated path thereafter?---Depending on, as I say, the - in my opinion, and again, it's only my opinion - there would need to be some sort of assessment as to how that was progressing - - -
Yes. Okay?--- - - - and how comfortable the child was."
We do not accept that the court counsellor’s evidence supports the submission. She is extremely guarded about the likely success of introducing unsupervised contact. She talks of it being trialed in the context of the child undergoing therapy but remains cautious as to it being viable.
The trial Judge had a significant advantage in this case of being able to evaluate the strength of the mother's feelings. The mother's apparent concession in cross examination was but one part of the totality of her evidence. The predictions he made as to the likely effect of unsupervised contact upon the mother and the transmission of the mother's anxieties to the child were clearly open to him. The material relied upon by the appellant does not provide a firm basis for interfering with those findings.
The third and fourth grounds suggest that the trial Judge should have effectively predicted that the mother's anxieties would change by reason of his Honour's findings that abuse had not taken place. They presuppose that the judicial process would somehow disabuse the mother of her mistaken beliefs and that this would reflect itself in a more relaxed attitude to unsupervised contact taking place.
In R v B (1996) FLC 92-658; 19 Fam LR 714 the mother of a small girl had alleged that the father had sexually abused the child. The trial Judge (Kay J) rejected the allegations. His Honour made a provisional order for residence in favour of the wife in order to determine whether she would accept the findings, adjourning the matter for a further twelve months. By majority, the Full Court dismissed an appeal by the father from the trial Judge's refusal to grant him residence once the wife's allegations were found to be without substance and in circumstance where contact might be problematic. In W v W [2001] FamCA 216 the trial Judge rejected the mother's allegations of sexual abuse and granted the father residence without considering whether or not to make an order similar to that made by Kay J in R v B.
Kay J (with whom Nicholson CJ and O'Ryan J agreed on this issue, but not on the final outcome) said in W v W (supra)
"273. What both Mr Ackman and Mr Hooper urged was that this Court should find that his Honour erred in concluding in the circumstances that the wife was unlikely to be able to move from her position of belief in her daughter's allegations, at least in the short or medium term. They both submitted that the only way to comfortably reach a finding in respect of that matter would have been to enable the wife to demonstrate her capacity to come to grips with the reality of the finding, once the finding had been made. It was submitted that in all fairness the trial Judge should have announced his finding and then adjourned the matter for several weeks or months to enable further evidence to be put before the Court as to the effect of the finding upon the relationship between the children and their father and upon the capacity of the mother to dissuade the child [T] from her unfounded beliefs. Such course had been taken by me in R and B, which is reported on appeal at (1996) FLC 92-658. In that case, I found that the mother of two young girls aged 5 and 4 was:
· 'thoroughly and absolutely convinced that their father had sexually interfered with them and that nothing anybody would say to her about the issue could change her mind.'
· 'so fixated with her hatred of the husband that she is causing the children significant emotional disturbance and is likely to cause significant emotional disturbance.'
Notwithstanding those findings, I found that the children were bonded closely to their mother and appeared to be functioning in their contact with the outside world. A social worker had given evidence that there was a significant risk of long term harm if the little girls were removed from their mother's care. In the circumstances, I concluded that the welfare of the children would best be served if they could remain in their mother's care and develop a meaningful relationship with their father. To that extent I adjourned the case for 12 months, made orders for liberal contact in favour of the father and imposed a number of conditions, including the requirement that the wife attend upon a psychiatrist or therapist for the purpose of undergoing a course of therapy to enable her to best promote access as an enjoyable experience for the children and to adjust to the reality that the children are to have a permanent and ongoing relationship with their father.
274. The majority of the Full Court in R and B (Baker and Chisholm JJ) concluded that there had been no errors by the trial Judge and dismissed the appeal. Nicholson CJ concluded that I had erred in finding that the husband had no 'instinctive insight' into raising the children. Further, that it was not open to me to find that the husband, who was living in a rural community, lacked necessary services to assist him in raising the children. The Chief Justice would have remitted the matter for rehearing.
275. In my view, the decision in R and B is an example of the manner in which a trial Judge may make orders for further adjournment of an otherwise completed trial if the trial Judge concludes that is what the welfare of the children dictates. It is not authority for the proposition that the Court must or should make such orders.
276. In this case, nobody asked the trial Judge to make such an order. The mother's case was firmly that the children were at risk of abuse in the father's care, and at best she would examine her position if the trial Judge found otherwise, if the husband 'was to show appropriate respect and treat the children in a dignified and neutral manner' and, if she was advised to do so by various professionals.
277. In my view, it was clearly open in this case for the trial Judge to make his own evaluation as to the likelihood of the mother changing her position in light of his Honour's findings."
In W v W Nicholson CJ and O'Ryan J also said that they thought that such an order might have been preferable to the one made by the trial Judge, but they agreed with Kay J that this was a discretionary matter for his Honour.
The difficulty faced by the appellant in this case is that no application was ever made to the trial Judge to stand the matter down to enable the mother to absorb and consider his Honour's findings so as to allow his Honour to determine whether her attitude might change in light of such findings. Nor was any application ever made to have his Honour make interim orders only, and to adjourn the matter for further consideration after some experimentation with unsupervised contact had taken place.
Absent such applications, we do not see that his Honour fell into any appealable error by failing to take the initiative himself to make such orders.
The fifth ground asserts that the learned trial Judge erred in elevating the mother’s parental anxiety above the other s 68F(2) factors. Counsel for the appellant submitted that we should write a "guidelines" judgment delineating when it might be appropriate for a trial judge to allow the residence parent's anxieties to effectively dictate outcome in a contact case. We understand the law in this area to be fairly settled.
The making or refusal of a contact order is an exercise of a statutory discretion. It is governed by the provisions of ss 60B, 65E and 68F of the Family Law Act 1975. In R v C (Judgment delivered 25 June 1993) the Full Court said:
"30. It is established that in considering the factors in s64(1), in particular the nature of the relationship of the child with each of the parents (s64(1)(bb)(i)), the custodial parent's caregiving capacity (s64(1)(v)) and 'the need to protect the child from abuse, ill treatment, or exposure or subjection to behaviour which psychologically harms the child' (s64(1)(va)), an appropriate consideration is the custodial parent's belief that the child or children have been sexually abused whilst on access and the effect of that belief on them as the primary caregiver. The majority of the Full Court in B and B (1988) noted at p 76,924 that the criteria in s64(1) do not constitute an exhaustive list of matters to be taken into account in proceedings concerning children. In this regard, the Court considered that the trial Judge should always recognise:
'That any benefit to the child in access taking place should not be outweighed by disadvantages for the child, including a risk that the child's relationship with the custodial parent might be undermined by the conduct of the non-custodial parent during access periods.'
Thus the majority found that the trial Judge had appropriately considered the attitude of the wife towards access and her belief that the child had been sexually abused by the husband as one of the reasons for suspending access.
31. Similarly, in the case of S and P (1990) FLC 92-159 the Full Court of this Court found it appropriate that the trial Judge had had regard to the wife's attitudes and concerns in considering whether or not access would be to the ultimate benefit of the child. Specifically, the Full Court, under the heading 'Other matters taken into account by the trial Judge to justify his decision to suspend access' at page 78,109, quoted the trial Judge's findings that the wife would not trust the husband in his care of the child, would not accept any finding exonerating the husband, and as a result of her conviction of his guilt, would continue to be in a state of tension and anxiety should he have access to the child. The trial Judge therefore concluded: 'This means that she will be an anxious parent and this will impair her mothering capability.' The Full Court in B and B (1993) at page 79,780 stated:
'It is not unreasonable for the court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children's protection. As primary caregiver, anxiety about the children's exposure to potential harm is likely to impact adversely on that parent's ability to care for the children.'
…
32… In upholding children's right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact adversely on that parent's caregiving ability.
33. In taking into account the belief of the custodial parent of abuse by the non-custodial parent of the children and the effect of such belief on that parent as primary caregiver of the children, and consequent harm to the children, a subjective test is employed. However, it must be shown that such belief on the part of the custodial parent is genuinely held. Where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt."
R v C has been applied in several Full Court decisions as being a correct statement of principle (See Irvin v Irvine (1995) FLC 92-624; 19 Fam LR 374, Re Andrew (1996) FLC 92-692; 20 Fam LR 538; A v A (1998) FLC 92-800; 22 Fam LR 756).
Although the bases for the mother’s anxiety have been found to be unsound in this case, because she firmly believed that sexual abuse has taken place, the reality of those anxieties was something his Honour was well able to take into account.
The circumstances in which an appellate court can intervene in the exercise of such a discretion are well known (See House v R (1936) 55 CLR 499 at 505; Lovell v Lovell (1950) 81 CLR 513 at 519; Gronow v Gronow (1979) 144 CLR 513). In the absence of an error in approach or principle, the failure to take into account relevant circumstances, or the taking into account of irrelevant circumstances, the challenge must be that the orders fell outside a reasonable exercise of discretion, that is, that the orders were "unreasonable or plainly unjust”. No such error has been demonstrated in this case, nor can it be said that the result is plainly unjust.
A sunset clause
Whilst it was not a matter raised directly by any of the grounds of appeal, during the hearing we canvassed with the parties our concern that the orders were expressed to be final and provided no internal mechanism for review, nor did they seem to encourage an eventual relaxation of the supervision requirements. Counsel for the Child Representative, whilst otherwise opposing the appeal, submitted that the child's welfare would best be advanced if the orders of the trial Judge were seen to effectively be only interim orders. It was further submitted that at the very least there ought to have been an express reservation of liberty to apply for other contact orders after the passage of a suitable period of time.
We think there is merit in that approach. An application of the principles discussed in Rice v Asplund (1979) FLC 90-725; 6 Fam LR 570 would normally require that before a parenting order could be relitigated it would be necessary to demonstrate a change in circumstances. Given the finding that there was no unacceptable risk of abuse and given that it might be hoped that the reasons for restricting contact by the imposition of supervision would abate, we are of the view that X’s interests will best be served by an order being made that would provide an expedient way of returning to the matter, without the father having to show a change in circumstances.
Section 94(2) of the Family Law Act 1975 empowers the Full Court, upon the hearing of an appeal, to vary the decree or decision the subject of the appeal and make such decree or decision as, in the opinion of the Court, ought to have been made in the first instance. In this appeal we are of the view that the orders ought be amended to grant liberty to apply, and also to order that a further welfare report be prepared with a view to either party then bringing an application upon presentation of the report if the parties are unable to otherwise resolve their differences.
There will be no order as to costs to flow in these circumstances.
Orders
The formal orders of the Court are:
The appeal be allowed in part.
The orders made by the trial Judge on 8 December 2000 be varied by adding the following:-
“5. That liberty to apply to vary these orders be reserved.
6. That the orders be supervised for a period of 12 months by a welfare officer or court counsellor to be nominated by the Director of Counselling at the Brisbane Registry, such supervision to be on a reportable basis. The supervisor is requested to prepare a report to be made available to the parties by April 2002. Without limiting the matters upon which the supervisor might deem it appropriate to report, such report should detail the nature of the relationship then existing between [X] and her father, the desirability of continuing to maintain a regime of supervised contact, and whether moving from such a regime will advance the welfare of the child.”
I certify that the 44 preceding
paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.
Associate
51
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