Isles & Nelissen
[2022] FedCFamC1A 97
•1 July 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Isles & Nelissen [2022] FedCFamC1A 97
Appeal from: Isles & Nelissen [2021] FedCFamC1F 295 Appeal number(s): NAA 9 of 2022 File number(s): LNC 376 of 2017 Judgment of: ALSTERGREN CJ, MCCLELLAND DCJ, ALDRIDGE, AUSTIN & TREE JJ Date of judgment: 1 July 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Unacceptable risk – Standard of proof – Whether the primary judge erred at law by not applying s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) to a finding that the father posed an unacceptable risk of harm to the children – Where s 140 of the Evidence Act is reserved for the proof of facts and is not the measure by which an unacceptable risk of harm is assessed – Where the assessment of risk is a predictive exercise and risk is postulated from known historical facts and present circumstances, not requiring the proof of any possible harm as a probability – No error identified – Tendency evidence – Whether the primary judge erred by admitting and then relying upon certain evidence as tendency evidence and using such evidence to facilitate the finding of unacceptable risk – Where the father did not object to the admissibility of the evidence at trial – Where the tendency rule has no bearing on the assessment of risk – Where evidence which is relevant to and influential in that predictive inquiry is admissible – No error identified – Appeal dismissed – No order as to costs. Legislation: Evidence Act 1995 (Cth) Ch 3, Pts 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, ss 94, 97, 140
Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60CC, 60CG, 64, 69ZK, 69ZP, 69ZT
Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 25
Amador v Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222
Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198
Blann v Kenny (2021) 64 Fam LR 120; [2021] FamCAFC 161
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) 36 WAR 39; [2008] WASCA 28
CXZ v Children’s Guardian [2020] NSWCA 338
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Federal Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149; [2011] FCAFC 74
Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Maluka & Maluka (2011) FLC 93-464; [2011] FamCAFC 72
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139
Napier and Hepburn (2006) FLC 93-303; [2006] FamCA 1316
Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9
Nikolakis & Nikolakis [2010] FamCAFC 52
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152
Panayi v Deputy Commissioner of Taxation (2017) 319 FLR 228; [2017] NSWCA 93
Partington & Cade (No 2) (2009) FLC 93-422; [2009] FamCAFC 230
Potter and Potter (2007) FLC 93-326; [2007] FamCA 350
Re W (Sex abuse: standard of proof) (2004) FLC 93-192; [2004] FamCA 768
Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; [1994] HCA 4
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29
Simmons & Kingley (2014) FLC 93-581; [2014] FamCAFC 47
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
Stott & Holgar [2017] FamCAFC 152
Velkoski v R (2014) 45 VR 680; [2014] VSCA 121
W and W (Abuse allegations; unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892
WC v The Queen [2015] NSWCCA 52
WK v SR (1997) FLC 92-787; [1997] FamCA 57
Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283
Number of paragraphs: 113 Date of hearing: 15 June 2022 Place: Heard in Melbourne, delivered in Sydney Counsel for the Appellant: Mr Barns SC with Ms Ryan Solicitor for the Appellant: Jacobs Family Law Counsel for the First Respondent: Mr McKenna Solicitor for the First Respondent: Ogilvie Jennings Counsel for the Second Respondent: Mr Lee Solicitor for the Second Respondent: Secretary, Department of Communities Counsel for the Independent Children’s Lawyer: Mr Lewis Solicitor for the Independent Children’s Lawyer: David N Lewis ORDERS
NAA 9 of 2022
LNC 376 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ISLES
Appellant
AND: MS NELISSEN
First Respondent
DEPARTMENT OF COMMUNITIES
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALSTERGREN CJ, MCCLELLAND DCJ, ALDRIDGE, AUSTIN & TREE JJ
DATE OF ORDER:
1 JULY 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Isles & Nelissen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALSTERGREN CJ, MCCLELLAND DCJ, ALDRIDGE, AUSTIN & TREE JJ:
Long ago, in parenting proceedings characterised by one parent’s allegation that the other had sexually abused their child, the High Court of Australia (“the High Court”) emphasised the distinction between two very different things: on the one hand, proving alleged sexual abuse according to the civil standard of proof and, on the other, establishing the risk of the feared sexual abuse occurring in the future: (M v M (1988) 166 CLR 69).
In respect of the first issue, the High Court said (at 76):
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw.
(Footnote omitted)
The reference to Briginshaw v Briginshaw (1938) 60 CLR 336 was the endorsement of an earlier enunciation of the common law principle of the civil standard of proof, now enshrined within s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”).
In relation to the second question pertaining to risk, the High Court said (at 77–78):
… [T]he court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. … [T]he test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
But the High Court did not elaborate how the alleged risk of abuse would be established on the evidence before the Court.
In the years which have since elapsed, this Court has on occasions posited that the risk of such abuse (and hence the risk of consequent harm to the child) must be proven on the balance of probabilities according to the civil standard of proof, in just the same way as facts are proven. We consider that statement of principle to be incorrect and now state it to be so, fully recognising the caution which should attend any departure from earlier authoritative decisions (Nguyen v Nguyen (1990) 169 CLR 245 at 269).
M v M put beyond doubt the proposition that courts exercising jurisdiction under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) must protect children from credible risks of harm due to sexual abuse. Such risks, like all prospective events, are capable of classification in only one of three mutually exclusive categories: possibilities, probabilities, or certainties. Once it is accepted courts should (and do) react to dangers in the form of risks of harm which may merely be possibilities, it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]), but are instead postulated from known historical facts and present circumstances.
The present appeal presents an opportunity to clarify these principles and to state clearly and authoritatively, in the context of alleged child abuse in parenting proceedings under Pt VII of the Act, the distinction between fact finding and risk assessment.
An historical overview
More than 30 years have passed since M v M was decided and, in that time, the Full Court has consistently emphasised the distinction between positive findings of abuse and alternate findings of an unacceptable risk of harm. However, different threads of authority have emerged as to how a finding of unacceptable risk of harm is made. Without intending to be exhaustive, we shall refer to a selection of Full Court decisions to exemplify the point.
In N and S and the Separate Representative (1996) FLC 92-655, the trial judge found the allegations of the father’s sexual abuse of the subject child were not established on the balance of probabilities. Interim orders were made for the child to have supervised access with the father on a gradually increasing basis for six months. The mother’s appeal from the orders was dismissed by majority.
The decision has since become more notable for the dissent of Fogarty J than for the majority decision of Kay and Hilton JJ. The ultimate difference of opinion was the majority considered the trial judge additionally found there was no unacceptable risk of harm to the child, whereas Fogarty J concluded the trial judge failed to separately consider the ancillary issue of an unacceptable risk once he found the allegations of abuse were unproven.
Fogarty J stated it is necessary for a trial judge 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 (at 82,713–82,714) and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm (at 82,714). So much could hardly be controversial, but nothing was usefully said about the standard by which any finding of unacceptable risk is actually made.
In WK v SR (1997) FLC 92-787, the trial judge found, on the balance of probabilities, that the father had sexually molested the parties’ two children, describing it as “a strong case of sexual abuse”. The father appealed. The Full Court found the trial judge’s positive finding of sexual abuse was not open, as the evidence upon which the finding was based was insufficiently probative to satisfy the civil standard of proof. The proceedings were remitted for re-trial.
In dealing with the grounds of appeal, the Full Court said:
31.Although the unequivocal nature of ZH’s evidence was not shaken during cross-examination, and the father failed to seriously challenge her recollection of the events in question, any positive finding made by the trial Judge that the husband had sexually abused the child must have followed the application of the Briginshaw test at the strictest end of the spectrum.
…
46.It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. …
47.… Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
…
59.… Taken at its highest, it is evidence by way of inexact proof and indirect inference which is insufficient to satisfy the strict requirement of the civil standard when making a finding of sexual abuse, as set out in Briginshaw (supra), s140 of the Evidence Act (Cth) and stressed by the High Court in M and M (supra). In our opinion and for these reasons, the trial Judge’s positive finding that sexual abuse had occurred must be considered to have been unsafe.
…
99.… It is therefore impossible for us to say, assuming AR’s evidence to have been excluded, whether his Honour would have made a positive finding in relation to sexual abuse, or, in the alternative, a finding that there was either an unacceptable risk of abuse or no abuse. Accordingly, in our opinion, the appeal should be allowed and a new trial ordered.
(Emphasis added)
As can be seen, the Full Court confined its comments to the standard of proof to be applied when making positive factual findings of abuse – not findings about the existence of an unacceptable risk of harm.
In Re W (Sex abuse: standard of proof) (2004) FLC 93-192, the trial judge found the father probably did sexually abuse the child and made orders prohibiting any contact between them, because the benefit the child might receive from supervised contact was outweighed by the detriment. The father’s appeal was allowed because the positive finding of sexual abuse was unsound and the refusal to allow any supervised contact was dependent upon that finding. The Full Court held that if a trial judge finds it appropriate to make a positive finding that sexual abuse occurred, the finding needs to particularise, as far as possible, what form the abuse took (at [48]). The Full Court held the evidence, taken at its highest, could only have properly left the trial judge with suspicion that something untoward might have happened. The father’s application for his supervised contact with the child was remitted for re-hearing, given there was still an unacceptable risk of harm to the child if contact was not supervised.
In W and W (Abuse allegations; unacceptable risk) (2005) FLC 93-235, the trial judge found the child’s alleged sexual abuse by the father could not be proven on the balance of probabilities, but there was an unacceptable risk of the child being abused if she had unsupervised contact with him. Orders were therefore made for the child to have supervised contact with the father and, after the elapse of some time, an update report would be procured and the situation reviewed. The father’s appeal was dismissed.
Although the case name suggests something useful might be said about the standard by which a finding of unacceptable risk should be established, it was not. The Full Court repeated earlier pronouncements, saying the law is well settled as to the standard of proof required to make a positive finding of sexual abuse and that such a finding should not be made unless a trial judge is satisfied to the highest standard, on the balance of probabilities, the abuse occurred. It was furthermore observed, quite uncontroversially, that when sexual abuse allegations are raised it is necessary to consider two questions: whether abuse has been proven on the balance of probabilities and whether or not an unacceptable risk of abuse exists (at [111] and [162]).
In Napier and Hepburn (2006) FLC 93-303, the trial judge was unable to make a positive finding that the father had sexually abused the child, but concluded the child would be exposed to an unacceptable risk of such abuse if he was to have unsupervised contact with the father. Orders were consequently made for the child to have supervised contact with the father. His appeal was upheld because the trial judge’s reasons did not disclose what led him to conclude the child was at unacceptable risk of harm.
The Full Court observed that the rejection of allegations of sexual abuse as being groundless should not inevitably lead instead to a default finding of unacceptable risk (at [80]), and further, the evaluation of unacceptable risk entails consideration of both the magnitude of the harm which might befall the child if abused in the manner envisaged and the prospect of such abuse occurring (at [84], [91] and [114]).
In Potter and Potter (2007) FLC 93-326, the trial judge positively found the child had been sexually abused, but was unable to make a finding identifying the culprit as between the father and the maternal grandfather. The trial judge concluded the child would be exposed to an unacceptable risk of harm if she spent unsupervised time with father and so made orders for the child to have supervised contact with him and restrained the child’s unsupervised interaction with the maternal grandfather. The father’s appeal was allowed because, although the trial judge was encouraged to make a positive finding of abuse, the evidence did not enable any finding that the father presented an unacceptable risk of harm.
The Full Court endorsed the former statements in WK v SR and Re W (Sex Abuse: standard of proof) about the need to guard against inexact proofs, indefinite testimony and indirect inferences to positively find the occurrence of sexual abuse (at [82]–[85]) and the need to carefully particularise any positive findings of sexual abuse (at [104] and [131]).
Significantly though, the Full Court said this in relation to the establishment of unacceptable risk:
110.Notwithstanding that her Honour felt that there were two possible abusers, the father and the maternal grandfather, before she could make a finding to the appropriate evidentiary standard that there was an unacceptable risk of abuse by the father, she needed to assess the evidence and see whether it reached the standard required under s 140 of the Evidence Act. This test was whether on the balance of probabilities there would be an unacceptable risk of abuse to K by the father if contact was not supervised.
…
129.We consider that her Honour did not properly evaluate this evidence in making a finding on the balance of probabilities that the father posed an unacceptable risk of sexual abuse to the child in the event that she has unsupervised contact with him.
(Emphasis added)
So, for the first time, the Full Court stated that a finding of unacceptable risk must be proven on the balance of probabilities – but without citing any authority for the proposition and without any jurisprudential analysis of it.
In Johnson and Page (2007) FLC 93-344, the trial judge found no unacceptable risk of harm to the child was posed by the father and made orders for the child to spend unsupervised time with him. The mother’s appeal was allowed, but only in respect of an unrelated point. In that context, the Full Court said some confusing things about the standard of proof applied to findings of unacceptable risk.
The Full Court adopted (at [68] and [71]–[72]) the extra-curial commentary by the Hon John Fogarty AM in an academic paper published after retirement from judicial office to this effect:
68. …
3.Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4.The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5.The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6.The onus of proof in reaching that conclusion is the ordinary civil standard.
7.But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
(Emphasis added)
The Full Court then said this about the differential treatment of positive findings of abuse and findings of unacceptable risk:
73.We note that the trial Judge in paragraph 122 of his reasons referred to s 140 (2)(a)–(c), not to Briginshaw. We are satisfied in that paragraph of his reasons his Honour was summarising, in a general way, the principles set out in M and M and the standard of proof relevant to a positive finding of sexual abuse.
…
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. However, notwithstanding the language in paragraph 118, we are satisfied that the task his Honour actually undertook was to examine all of the relevant evidence in assessing present and future unacceptable risk.
76.Whilst we note the mother’s counsel’s submissions about Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192, it is important to note the issue to be determined on appeal in that case was whether the trial Judge (Nicholson CJ) had applied a correct standard in determining whether the father had actually abused the child, and the Full Court did not need to address the standard to be applied to a finding of unacceptable risk. Hence we reject counsel’s submission referred to in paragraph 60 above.
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.
(Emphasis added)
By endorsing the academic paper (at [68] and [71]–[72]), it would seem as though the Full Court was saying that an unacceptable risk of harm needs to be established according to the basal civil standard of proof found in s 140(1) of the Evidence Act, but that a positive finding of sexual abuse could only be made against the higher standard of satisfaction accommodated by s 140(2)(c) of the Evidence Act, which reflects the Briginshaw principle (at [73]–[77]).
No Full Court has since definitively gone as far as Potter and Potter and Johnson and Page.
In Partington & Cade (No.2) (2009) FLC 93-422, the trial judge found the children were at unacceptable risk of harm if they spent unsupervised time with the father, so orders were made for them to spend supervised time with him, which orders would be reviewed six months later. The mother’s appeal was allowed because the trial judge did not have “proper regard” or give “sufficient weight” to an aspect of the evidence, despite his otherwise “patently careful, diligent and substantially thorough approach” (at [14]).
The Full Court acknowledged that findings of unacceptable risk have an inherent imprecision (at [45]) and, importantly, said this:
57.In saying that Burr J ought have addressed the significance of the “possibility” that the father had sexually abused F, to an assessment of his parenting capacity, we are conscious that courts are used to dealing with facts, found according to a standard of proof, such as, the balance of probabilities. Whereas, we are saying that his Honour should have taken account of implications arising from, on his findings, a possibility rather than a probability. …
…
61.In our view, there is no reason that, in looking to the future, only “probabilities” (which in such a context are not “facts” even if so described) and not “possibilities” can be taken into account, though clearly the degree of likelihood may affect the weight given to any prediction, and the assessment of likelihood must be a reasoned one.
(Emphasis added)
These statements clearly depart from, but neither distinguish nor reproach, the observations earlier made in Potter and Potter and Johnson and Page.
In Nikolakis & Nikolakis [2010] FamCAFC 52, the mother conceded the father had not sexually abused the subject children, but alleged he posed an unacceptable risk of harm to them because of his “predatory sexual behaviour” towards other children. The trial judge found the father posed an unacceptable risk of harm and so orders were made enabling the mother to relocate with the children and for them to spend supervised time with the father on only four occasions each year. The father’s appeal was dismissed. The Full Court said:
41.The submissions advanced by the father under this ground raise questions about the evidence upon which her Honour made findings of unacceptable risk, how unacceptable risk is to be assessed and in particular those factors that might indicate a risk in the future rather than an evaluation of evidence suggesting sexual abuse may have occurred in the past. This ground raises the vexed question about reliance on past factors to indicate the risk of future abuse, and the standard of proof applicable to past factors where they have influenced the future finding of risk.
…
53.We do not see any error by her Honour in her consideration of the evidence that was before her, nor does the test require that the Court be in a position to make positive findings. In our view her Honour had some cogent evidence as a starting point for a consideration of whether the father posed an unacceptable risk to his own children if unsupervised time with them was granted.
…
95.Past abuse, and whether it can be established, is by no means the only evidence of risk, as this case demonstrates, but facts that might provide helpful guidance about potential harm and future risks might not carry much probative weight in determining whether abuse actually occurred. Evidence of sexual abuse of other children providing the basis for the finding of unacceptable risk to the children of the marriage was a feature in WK & SR (1997) FLC 92-787, where the Full Court found that one of the children’s older half-sister, whose evidence was of some abuse, was technically inadmissible on the abuse question and should not have been given any weight by the trial judge on that issue but the Full Court acknowledged it would have been clearly relevant when considering broader parenting issues. The question of whether there is an unacceptable risk has to be considered, as the High Court said in M & M (supra), having regard to all the circumstances and the child’s best interests. It is possible, despite positive findings of misconduct in the past, to find no unacceptable risk in the future. That may be because, for example, the children are older, have learned protective behaviours and that the Court can be satisfied that they are old enough to report any untoward behaviour to the other parent. In addition, people and circumstances change.
96.On the other hand, failure to establish an allegation in the past does not determine the wider issue of what parenting order, if any, is in the child’s best interests and thus the unacceptable risk inquiry involves a real and substantial consideration of whether or not particular facts raise an unacceptable risk (see Napier & Hepburn (supra) and N & S (1996) FLC 92-655 per Fogarty J at 82,713). In addition, there are many matters which the trial judge must consider. They include the situation where the allegations themselves are serious but the probative value of the evidence is slight (as was the case here). On the other hand, the evidence of something occurring may be strong but the nature of what occurred is less clear. All these matters have to be considered with all the other matters under section 60CC in each case in which the Court is to make a parenting order.
(Emphasis added)
Bant v Clayton (2015) 53 Fam LR 621 was an appeal concerning the alleged unacceptable risk of the father abducting and withholding the child from the mother, with deleterious emotional consequences for the child. In that context the majority said:
99.Although it is correct, as the father’s senior counsel submitted, that there must be a factual basis to his Honour’s findings, that does not prevent that factual basis comprising a rejection of the reliability of the evidence of the father, and in particular his evidence that he would abide by orders of the court. It also must not be overlooked that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk (Malec v J C Hutton Pty Ltd (1990) 169 CLR 638), as long as there is a proper basis for those “possibilities”.
…
107.As we have already said, in assessing whether there was an unacceptable risk it was not necessary for his Honour to positively find that the father was likely to act in the way identified; his Honour had to identify and assess the nature of the risk and the degree or magnitude of the risk (Deiter & Deiter [2011] FamCAFC 82, at [61]). There appears to be no challenge to his Honour’s identification of the nature of the risk, but otherwise in relation to the degree or magnitude of the risk.
(Emphasis in [99] added, but emphasis in [107] original)
Writing separately in the appeal, Tree J said:
171.Risk assessment involves determining firstly, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs. The weighing of those two considerations – even accepting they may be imprecisely expressed within parameters – will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract.
172.Whilst I agree that in assessing the prospect of future events occurring, possibilities may be taken into account, rather than the court needing to be satisfied that the future occurrence is more probable than not, if doing so, the court is not absolved from gauging, or at least attempting to gauge, the magnitude of the likelihood. A farfetched or remote possibility, even if the consequences should it eventuate be grave, may not be sufficient to establish an unacceptable risk; conversely a reasonable possibility may well do so. Plainly however the judicial reasoning underpinning the assessment of the likelihood of the event occurring must be adequately exposed.
(Emphasis added)
Oswald & Karrington (2016) FLC 93-726 was an appeal from parenting orders made in circumstances other than allegations of child sexual abuse, but the Full Court (per Ainslie-Wallace, Aldridge & Kent JJ) nonetheless relevantly said:
60.First, a finding expressed in terms of the balance of probabilities (ie “high risk”) is not the test to be applied in assessing future hypothetical events which may or may not occur. With respect to the assessment of future potential risk to children, the assessment requires identification of the nature and magnitude of the risk and whether or not the risk posed is unacceptable. …
(Emphasis added) (Footnotes omitted)
Summarising then, in Partington & Cade (No 2), Nikolakis & Nikolakis, Bant v Clayton, and Oswald & Karrington, the Full Court clearly emphasised how the possibility of abuse could be enough to vindicate a finding that an unacceptable risk of harm exists.
Stott & Holgar [2017] FamCAFC 152 was an appeal by the residential grandparent from orders allowing the children to spend time with the father, following a finding that he did not pose an unacceptable risk of harm to the children. In discussing the test applied to determine whether an “unacceptable risk” existed, the Full Court (per Thackray, Kent & Watts JJ at [34]–[38]) referred uncritically to a selection of the cases we have already extracted, including Potter and Potter and Johnson and Page, but did not refer to Partington & Cade (No 2), Nikolakis & Nikolakis, Bant v Clayton or Oswald & Karrington.
Sahrawi & Hadrami (2018) FLC 93-857 was an appeal by the father from parenting orders stemming from allegations of his violent conduct to secure sexual gratification from the mother. The plurality (per Ryan & Aldridge JJ) said:
20.The issues of violence and fabrication were therefore front and centre as matters requiring resolution. The father denied all the allegations made against him and called evidence from himself, his father and a number of others to rebut them.
…
39.It is a fundamental principle that a party who asserts facts bears the evidentiary onus or burden of proving them to the requisite standard. It is apparent that the mother failed to do so to the satisfaction of the primary judge. As the evidence adduced in support of the allegations was not accepted, it could not therefore continue to have a role to play in the fact-finding process.
40.As we will shortly demonstrate, the question of whether there is an unacceptable risk to a child still requires that there be actual evidence which at least gives rise to the conclusion that behaviour may have occurred or may occur.
…
47.The primary judge did, however, take the allegations into account and it is now necessary to consider his Honour’s use of the principles set out in M v M (1988) 166 CLR 69 (“M v M”). The father submitted that his Honour misused the “unacceptable risk” test set out therein as to whether the mother’s allegation made in the application for a protection visa and her allegations of family violence should be accepted or whether they had been fabricated.
…
50.In our opinion, M v M is not a case directed to the Court’s approach to finding facts as his Honour seems to have regarded it. However, by reference to that case his Honour seems to have constructed a category of “fact” which is neither proven nor unproven but upon which the Court can act as if it has been proven – that is, that there is a risk that the non-accepted evidence might nonetheless be correct. Rather, M v M was concerned with the approach to be taken where the Court was not satisfied that, in that case, allegations of past sexual abuse had been established but that “on the evidence there is a risk of sexual abuse occurring if custody or access be granted”.
…
53.The point is that the identification of a risk and its nature or magnitude and the likelihood of occurrence are important considerations. The focus is on the best interests of the child and how any risk to that child may be managed. The primary judge undertook none of these considerations. Instead, his Honour focussed on whether there had been an assault, found that he could not be certain that there had been, but found there was a risk that it could have occurred. In doing so, the primary judge was impermissibly applying the approach dealing with assessing whether there is an unacceptable risk of harm to the child to a finding of fact as to whether an assault had occurred. This is made clear by the conclusion at [109] which refers to “a risk of harm to the [mother]” (not, we also note, to the child).
(Emphasis added)
The plurality clearly differentiated the proof of asserted facts from the separate question of whether there is an unacceptable risk of harm, confirming the latter enquiry is still evidence-based, but affirming it need only give rise to the conclusion that certain alleged behaviour may have occurred in the past or may occur in the future.
That approach was confirmed by the Full Court in Bant & Clayton (2019) FLC 93-924 when considering another appeal from orders made on re-hearing following the earlier successful appeal, which orders were based on an assessment of risk posed by the father. In respect of the demonstration of unacceptable risk, the Full Court said:
40.The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. …
…
48.However, the assessment of the risk of an event occurring is a conclusion reached by reference to the facts and circumstances established by the evidence. …
…
51.The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
(Emphasis added)
At this point, the jurisprudential trail leads to the split decision in Fitzwater v Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”), in which the Full Court expressed contradictory opinions about the manner in which an unacceptable risk of harm is established.
In Fitzwater, one of the grounds of appeal was that 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 relation to that ground, the majority said:
73.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.
74.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.
Then, after referring approvingly to commentary in Johnson and Page, the majority continued:
78.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]).
79.Accepting that to be so, the Court must still be persuaded of a possibility of a risk of harm to the child.
80.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) FLC 93-924].
In drawing its conclusion at [74] the majority did not advert to the definition of “case of a party” which appears in the Dictionary to the Evidence Act. The term is defined as meaning “the facts in issue in respect of which the party bears the legal burden of proof” (emphasis added). This, in turn led to the reliance on Johnson and Page. The opinion of the majority was thus affected by error and carries no weight. Moreover, for clarity, neither Potter and Potter nor Johnson and Page should be regarded as accurately reflecting the law.
Further, we accept that Austin J did not say s 140 of the Evidence Act has no role to play in a case where an unacceptable risk of harm is alleged; only that the civil standard of proof is not the measure by which an unacceptable risk of harm is to be assessed. The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm.
The next relevant authority was Blann v Kenny (2021) 64 Fam LR 120 where the principal factual issue at trial was an allegation of child sexual abuse. The trial judge made no positive findings of abuse and found that no unacceptable risk of harm was established, so orders were made for the children to spend time with the father. In reaching that decision, the trial judge applied the law as described by Austin J in Fitzwater.
In the appeal, the appellant mother endorsed the legal principles applied by the trial judge and sought to impugn the decision for other reasons. Accordingly, to determine the appeal, it was unnecessary to address the conflict of authority in Fitzwater and so the Full Court unanimously said this:
83.On the question of how the existence and magnitude of a risk of future sexual abuse is assessed, the primary judge (at [22]) adopted the discussion by Austin J as the dissentient in Fitzwater v Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”).
84.The conduct of this appeal necessitates some limited consideration of Fitzwater because, not only did the primary judge cite and apply Austin J’s dissenting judgment (at [22] and [172]), the mother also relied upon the dissenting judgment in aid of her appeal. So, in effect, the primary judge and both parties sought to use the legal principles described in the dissenting judgment, though the parties were at odds over the result dictated by the synthesis of those principles with the evidence.
85.We acknowledge the majority in Fitzwater (as did the Full Court in Johnson and Page (2007) FLC 93-344 at [68] and [71]) seem to assert the question of whether or not an unacceptable risk of harm is posed to a child is determined by application of the civil standard of proof under s 140 of the Evidence Act 1995 (Cth) but, since that particular issue occupied no attention in the appeal, now is not the occasion to do anything other than record our doubts about the correctness of the proposition. That is because we doubt an asserted risk of harm is capable of characterisation as a fact in issue – as distinct from merely an issue in dispute – and the civil onus of proof only applies to the determination of facts; not forecasts or hypotheses. As the High Court of Australia has said, the approach is different in the case of possible eventualities, as predictions and assumptions about the future are not susceptible of scientific demonstration or proof (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; CDJ v VAJ at [151]).
86.Without purporting to reach any concluded view uninformed by argument on the point in the appeal, given the absence of any dispute over the primary judge’s reliance upon Austin J’s analysis in Fitzwater, we shall proceed on the basis there was no error in that regard.
(Emphasis added)
In Fitzwater, Austin J rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof, saying:
132.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.
133.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.
134.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).
135.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”)).
136. 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…
137.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.
138.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.
139.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.
140.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]).
141.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.
142.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.
We agree with and adopt that commentary as being a correct statement of the law.
The High Court has recently had occasion to say more in a similar vein about establishing future potentialities in civil litigation, albeit in the context of jurisdictional error. Although the decision was split, the majority said this in MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 (“MZAPC”):
38.… Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred — as distinct from what would have occurred — had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.
39.Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.
(Emphasis added) (Footnotes omitted)
The point being made, importantly for present purposes, was that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
The MZAPC majority cited Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 and Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 as authority for those propositions.
Application of the authoritative principles developed by the High Court about “unacceptable risk” is neither novel nor unique to this jurisdiction. Observations to similar effect of those we now endorse have been made in other jurisdictions in a child protection context – for example, the New South Wales Court of Appeal (CXZ v Children’s Guardian [2020] NSWCA 338 at [7], [22], [25], [28] and [44]–[57]) and the Western Australian Court of Appeal (Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) 36 WAR 39 at [1] and [83]–[87]).
Statutory provisions
It is trite but true to observe that the law is as the High Court states it to be, so the principles enunciated in M v M about “unacceptable risk” were woven into the fabric of family law in instances of alleged actual and prospective child sexual abuse. The Full Court later extended such principles to cases involving allegations of children being at risk of physical or emotional harm for other reasons (A v A (1998) FLC 92-800 at [3.14]–[3.15] and [3.24]).
However, courts exercising federal jurisdiction and wielding discretionary power in family law proceedings are constrained by the terms of the governing statute (Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 386, 390, 396, 403–407, 434–435 and 439; MRR v GR (2010) 240 CLR 461 at 464–466 and 468).
Specifically in respect of parenting proceedings, Pt VII of the Act is now drafted much more comprehensively and prescriptively than it was when M v M was decided. The phrase “unacceptable risk” did not then appear within the Act. At that point in time, courts were required by the Act (then s 64) to make parenting orders by reference only to the paramountcy principle, the child’s wishes and the desirability of avoiding further litigation. But now, s 60CG of the Act exhorts courts to avoid making orders which expose any person to an “unacceptable risk of family violence” and, when determining how children’s best interests will be advanced, s 60CC(2)(b) of the Act obliges courts to heed any need to protect children from physical or psychological harm through their subjection or exposure to “abuse”, “neglect” or “family violence”, for which purpose the terms “abuse” and “family violence” are very widely defined in ss 4(1) and 4AB of the Act respectively.
As the Full Court has previously counselled, the terms of the Act are of pre-eminent importance (Simmons & Kingley (2014) FLC 93-581 at [17]–[20]). The provisions of ss 60CC and 60CG of the Act are wide enough to embrace most, if not all, assertions of an “unacceptable risk” of harm to children and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act.
The appeal
The appellant father and respondent mother are the parents of four children. The eldest was aged 10 years at the time of judgment.
In April 2018, when the eldest child was nearly seven years of age, he alleged the father sexually assaulted him by penetrating his anus with a finger. There is no dispute the child actually made the allegation, because he made it in the presence of several adults and children, prompting the mother to challenge the father about the allegation at her home two days later on 20 April 2018, when he denied it. The father admits that, immediately following his confrontation with the allegation, he spoke separately to the child at a volume which could not be overheard by the mother, but there was a live factual dispute at trial about whether or not such conversation entailed his apology to the child and an assurance the abuse would not happen again.
The child was interviewed three times by police: first on 19 April 2018, when he made no disclosure of sexual abuse by the father; secondly on 20 April 2018, when he did repeat the earlier allegation of his digital penetration by the father; and thirdly in November 2018, when he confirmed the alleged apology to him by the father on 20 April 2018.
Following the child’s first two police interviews, the father was charged with the child’s rape, but the prosecution was later withdrawn by the State Director of Public Prosecutions in June 2019 due to the “lack of specificity” in the evidence.
The allegations against the father caused the mother to withhold all the children from him. She believed the eldest child’s allegations and concluded the father posed an unacceptable risk of harm to the children. The father, dissatisfied with that situation, commenced proceedings under Pt VII of the Act in July 2018, seeking orders in respect of the children. Interim orders were subsequently made for the children to spend supervised time with the father.
In September 2020, final consent orders were made for the children to live with the mother and to spend unsupervised time with the father following a period of graduated supervision, but those orders did not take effect. The designated representative of the State child welfare agency stepped in and commenced child welfare proceedings before a State magistrate, securing orders for the children to live with the mother and to spend only supervised time with the father. Those welfare orders gazumped the interim orders made under Pt VII of the Act (s 69ZK(2)).
The father commenced fresh proceedings under Pt VII of the Act, in response to which the child welfare agency agreed to participate as a party and abandon the welfare proceedings still pending before the State magistrate. The primary judge ultimately found the mother was induced to consent to the orders in September 2020, enabling the children to spend unsupervised time with the father, once she had been told by staff of the child welfare agency that they would never allow that to occur.
During the course of the litigation, the eldest child repeated his sexual abuse allegations against the father to third parties, including the single expert psychologist (at [87]–[88]), the Family Consultant (at [111]), and a paternal uncle (at [146]).
The trial before the primary judge began in February 2021 and ended in August 2021.
The central issue was the allegation that the father posed an unacceptable risk of harm to the children. The mother and the child welfare agency both contended that he did. The Independent Children’s Lawyer (“the ICL”) did not take sides. The father denied it, contending the mother had in some way, either deliberately or inadvertently, encouraged the eldest child to repeatedly make the false sexual abuse allegations against him.
The mother and the child welfare agency both submitted the primary judge should make a positive finding of sexual abuse against the father, but contended for an alternate finding that he posed an unacceptable risk of harm. The primary judge correctly understood the dichotomy, saying:
56.The fundamental tenant [sic] of the arguments of the mother and the second respondent is that the father has perpetrated sexual abuse on [the child] and that the Court should make a finding accordingly or that there is an unacceptable risk for the children being in the unsupervised care of the father because of his propensity for inappropriate sexual interest in children. These are extremely serious allegations with grave ramifications for the children and the parents depending upon the findings of this Court.
…
60.The primary position of the mother and the second respondent is that the Court make a finding of fact, on the balance of probabilities, that the father has sexually abused [the child] with consequent orders to attend to future risk. This would constitute a finding of fact based on the empirical evidence as, indeed, would be the task of the Court in respect of the father’s submissions that the mother has fabricated or opportunistically manipulated an otherwise innocent statement from [the child]. Put simply, this is an exercise of findings of fact. The notion of ‘an unacceptable risk,’ is, however, a predictive or prospective exercise for the Court in determining whether there is a ‘risk’ into the future; the magnitude of the that risk; and whether there are tools or circumstances to adequately mitigate that risk.
The primary judge also understood the way in which a positive finding of sexual abuse could only be made according to the civil standard of proof, but the situation was quite different when assessing the level of risk posed to the children, saying:
213.In respect of these serious allegations, the Court is asked to make positive findings that either the father has abused [the child] or that the mother has either made or manipulated a false allegation. Such findings may not be enabled by reason of the relatively high standard of proof. Nevertheless, and where the overall consideration for the Court is the best interests of children including their safety and welfare, the notion of the ‘unacceptable risk’ assumes critical consideration and an inability to make a positive finding does not impede a determination of unacceptable risk. Suffice to say that a conclusion of there being unacceptable risk may be had from the cumulative consideration of factors where each individually might not be proved to the requisite standard. As mentioned above, however, this is not to be a ‘default’ position by the Court but one requiring active and discrete consideration including as to the implications of a finding of unacceptable risk which will almost inevitably impact on the relationship between child and parent.
(Emphasis added)
The primary judge contrasted the evidence which would support a positive finding of abuse (at [235]–[246]) with the evidence which would not (at [247]–[260]). His Honour ultimately concluded no positive finding could be made, saying:
261.Ultimately I am not persuaded that I am able to make a positive finding that the father did sexually abuse [the child] as alleged where the onus sits with the respondents to the standard of on the balance of probabilities bearing in mind the gravity of the allegation and the consequences that flow. Whilst noting the context, consistency, and some coherent particularisations of [the child’s] statements, the issue of alternative plausible innocent explanation remains where there is a lack of specificity of time in the disclosures.
…
265.Consequently, I am unable to reach the required satisfaction on the balance of probabilities that the father perpetrated the act or acts of sexual abuse on [the child] as alleged.
The primary judge then went on to consider the quite separate question of whether the evidence was nonetheless sufficiently cogent to establish the father posed an unacceptable risk of harm to the children, saying:
267.My findings above are not, however, the end of my consideration. Ultimately, this Court’s focus is not on guilt or innocence but on the best interests of the children. The considerations and findings above are in respect of alleged past acts or behaviour. It remains for me to conduct a separate and predictive consideration as to risk where the focus is on the adjective ‘unacceptable’. In doing so, however, I again consider and weigh past and current evidence and facts including tendency evidence. I am able to reach a conclusion of unacceptable risk on a cumulative consideration but without the restriction of particular findings on the balance of probabilities. Rather, the consideration here is as to “possibilities” in a prospective sense. This is not to be considered as a ‘default consideration’ where a court is unable to make a positive finding of fact but one carried out discretely, separately and independently with the focus being on future risk rather than past fact.
(Emphasis added)
His Honour then found the father did pose an unacceptable risk of harm to the children and summarised the evidence upon which he relied to reach that conclusion (at [268]–[269]).
For that reason, the primary judge concluded the children should live with the mother and could spend only supervised time with the father, which his Honour explained as follows:
284.I am of the view that direct supervision of the children’s time with their father is necessary given their ages, their affectionate relationships with him, and their lack of understanding of the risks that I have found to exist. The experts Mr J and Ms AB appear to share this view. Consequently, the only options available to properly protect the children are by formal supervision. …
The primary judge pronounced judgment in December 2021.
The father appealed from all of the orders in January 2022 but, in March 2022, amended the grounds of appeal and then, in May 2022, abandoned all but Grounds 1, 4 and 7.
Ground 1 – standard of proof
This ground of appeal bears remarkable similarity to the first ground of appeal in Fitzwater and contends as follows:
1.The learned primary judge erred at law by not correctly applying section 140 of the Evidence Act 1995 (Cth) in finding that the Father presents as a risk to the children and that without the constraints of supervision, at least until they are of an age to selfprotect, makes such a risk unacceptable.
(As per the original)
In support of the ground, the father submitted this in his Amended Summary of Argument:
1.It is respectfully submitted that the learned trial judge failed to apply section 140 of the Evidence Act correctly in his finding that the [father] “does represent an unacceptable risk to these children of perpetrating sexual abuse should their time with him be other than supervised.”
…
3.… [the primary judge’s] view was that s140 does not apply in relation to a finding of unacceptable risk.
4.In making this finding, and in the discussion about what is required in determining the issue of unacceptable risk, the learned trial judge preferred the minority view (Austin J) in Fitzwater and Fitzwater (2019) 60 Fam LR 212 …
…
8.The majority view in Fitzwater on the issue of the question of proof and s140 diverged from that of Austin J. …
…
17.Section 140 of the Evidence Act demands a court must make a finding on the balance of probabilities that an unacceptable risk exists or does not exist. That approach is apparent from the majority judgment Fitzwater in both the wording of the section (as the majority referred to) and the approach in general taken by the majority.
…
19.In our respectful submission, even bearing in mind a Court’s paramount obligation to determine what is in a child’s best interests, the approach approved by the majority in Fitzwater is correct.
20.In this case, while the learned trial judge was correct to say that each of the factors that were taken into account in examining whether there was an unacceptable risk did not need to be proven on the balance of probabilities, he nonetheless still obliged to make an overarching finding on the balance of probabilities whether there was an unacceptable risk in the case.
(Bold emphasis added) (Footnotes omitted)
The ICL supported those submissions, but they were refuted by the mother and the child welfare agency, illustrating why the issue requires definitive resolution.
The submissions asserting the need to make any finding of “unacceptable risk” on the balance of probabilities according to the civil standard of proof are wrong and are rejected, as is the ground of appeal.
Correctly, the primary judge said this to distinguish positive findings of sexual abuse from findings of unacceptable risk of harm:
60.The primary position of the mother and the [child welfare agency] is that the Court make a finding of fact, on the balance of probabilities, that the father has sexually abused [the child] with consequent orders to attend to future risk. This would constitute a finding of fact based on the empirical evidence as, indeed, would be the task of the Court in respect of the father's submissions that the mother has fabricated or opportunistically manipulated an otherwise innocent statement from [the child]. Put simply, this is an exercise of findings of fact. The notion of ‘an unacceptable risk,’ is, however, a predictive or prospective exercise for the Court in determining whether there is a ‘risk’ into the future; the magnitude of the that risk; and whether there are tools or circumstances to adequately mitigate that risk.
…
65.The evidentiary fact-finding exercise is conducted to the standard of on the balance of probabilities pursuant to s 140 of the Evidence Act whereas the predictive consideration of unacceptable risk, not being limited to findings of past fact, looks more to “possibilities” …
(Emphasis added)
Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.
In this instance, the primary judge inferred the existence of an unacceptable risk of harm to the children from a combination of facts and circumstances, including: the elder child’s plausible but unproven allegations of sexual abuse by the father; the evidence of the father’s sexual interest in other adolescents; and evidence of the father’s interest in child exploitation material.
The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of “unacceptable risk” cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only possible but not probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent.
Grounds 4 and 7 – tendency evidence
These two grounds assert appealable error by the manner in which the primary judge dealt with “tendency evidence” at the trial. It is first submitted the primary judge erred by admitting and then relying upon certain parts of the evidence as tendency evidence (Ground 7). It is then submitted the primary judge erred by using such tendency evidence to facilitate the finding that the father poses an unacceptable risk of harm to the children after inconsistently accepting the father’s submission that such evidence lacked “significant probative value” (Ground 4).
In parenting proceedings conducted under Pt VII of the Act, ordinarily, large tranches of the Evidence Act do not apply (s 69ZT(1)). In such circumstances, all evidence is admissible, provided it is relevant and has some probative value.
But a court exercising jurisdiction under Pt VII of the Act always has the option of ordering that one or more of the excluded provisions of the Evidence Act should apply if certain conditions are met (s 69ZT(3)). The court may do so pursuant to an application made by a party or of its own volition (s 69ZP).
In exercising the power under s 69ZT(3) of the Act, the court is permitted to apply one, some, or all of the excluded parts of the Evidence Act to one, some, or all of the issues in the proceedings (Maluka & Maluka (2011) FLC 93-464 at [121]–[123]).
It would be quite uncommon to make an order in such broad terms that all excluded parts of the Evidence Act apply to all issues in the proceedings. More commonly, a court would apply the provisions of Pts 3.2 to 3.8 of the Evidence Act, which deal with the admissibility of evidence, to one specific factual controversy which is likely to be pivotal – such as an allegation of child sexual abuse. The Full Court has pronounced that s 69ZT(3) will likely be invoked when one party seeks a positive finding of criminal conduct (Amador v Amador (2010) 43 Fam LR 268 at [93]), which was the case at hand, since the mother and the child welfare agency both advocated for a positive finding that the father had sexually abused the eldest child.
The primary judge therefore determined well in advance of trial to invoke s 69ZT(3) and apply the rules of evidence in the parenting proceedings. As an aside, such an order is best made ahead of trial so the parties are able to prepare their trial affidavits in accordance with the applicable parts of the Evidence Act (Maluka & Maluka at [113]–[117]).
The procedural order, made on 24 November 2020, was expressed this way:
3.That pursuant to s.69ZT of the Family Law Act 1975 that the rules of evidence will apply at the trial of this matter.
As can be seen from the way in which the order is couched, it purports to apply all of the excluded parts of the Evidence Act to all of the issues in the proceedings. That may not be what his Honour actually intended, but it is the objective effect of the order.
Notwithstanding the breadth of the order, the father took no objection to the evidence adduced at trial. In the reasons for judgment, the primary judge summarised the evidence adduced in support of the contention that the father posed an unacceptable risk of harm to the children (at [69]) and then said this in relation to the admissibility of such evidence, the correctness of which was not challenged in the appeal:
70.Notably, whilst the father essentially denied the fact or impropriety of all allegations, the above evidence was given or adduced without objection as to its admissibility under the Rules of Evidence but where, in my view, it still falls for the Court to determine whether and to what extent such evidence may be relied upon or what weight be given in respect of each of the considerations of factual finding or unacceptable risk for the Court set out above.
(Emphasis added)
It is true the father opened the trial foreshadowing his objection to some parts of the evidence, but he ultimately did not do so. The primary judge signalled an intention to apply the rules of evidence and to take and deal with objections as the objectionable evidence arose. Nobody demurred. Thereafter, the father did not object to the evidence-in-chief led from the mother, the evidence-in-chief led from any other witness, or any exhibit tendered in evidence.
The father, not having taken any objection to the admissibility of such evidence before the primary judge when represented by counsel, cannot do so now in the appeal (Smits v Roach (2006) 227 CLR 423 at [46]; Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570 at [118]). While he was free to make final submissions arguing the lack of probative value possessed by such evidence, as he did and as the primary judge acknowledged (at [258] and [264]), it was then too late for him to dispute its admissibility.
The implied submission in the appeal, that the evidence designated as “tendency evidence” by the primary judge was inadmissible under Pt 3.6 of the Evidence Act and should not have been admitted at trial regardless of the failure to object to it, must be rejected. There is plenty of authority for the proposition that the admissibility rules within Ch 3 of the Evidence Act, which prescribe certain types of evidence to be “not admissible”, should be read to mean “not admissible over objection” (Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [149]; Federal Commissioner of Taxation v SNF (Australia) Pty Ltd (2011) 193 FCR 149 at [26]; WC v The Queen [2015] NSWCCA 52 at [20]; Panayi v Deputy Commissioner of Taxation (2017) 319 FLR 228 at [39]; cf Velkoski v R (2014) 45 VR 680 at [199]–[200]).
It must follow then that these grounds, which complain of the primary judge’s acceptance and use of some evidence as “tendency evidence” under Pt 3.6 of the Evidence Act, must fail.
Nonetheless, something may usefully be said more generally about the use of tendency evidence in similar circumstances.
Pt 3.6 of the Evidence Act regulates, in part, the admissibility and use of tendency evidence. The “tendency rule”, which applies to both civil and criminal proceedings, is relevantly defined in this way:
97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless--
(a)the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
If, pursuant to s 69ZT(3) of the Act, the tendency rule is ordered to apply in parenting proceedings then, provided the pre-conditions to admissibility under Pt 3.6 of the Evidence Act are met, the relevant evidence pertaining to a particular person’s “character, reputation or conduct” is available to help positively prove some other fact in issue – for example, that person’s alleged perpetration of child abuse. As an example, the proven tendency of the person to act in generally sexualised ways towards and in the company of children inferentially helps prove the person acted in a sexualised way with a particular child on a particular occasion.
So, in this instance, in deciding whether or not the allegations of the father’s sexual abuse of the eldest child were positively proven, besides the direct evidence and inferences ordinarily available on that issue, the primary judge took into account as tendency evidence allegations about the father’s apparent past sexual interest in adolescents and his alleged interest in child exploitation material (at [68] and [243]). Yet, even when taking that evidence into account, the primary judge found the father’s alleged sexual abuse of the eldest child still could not be proven to the civil standard of satisfaction. The father therefore suffered no prejudice, as no adverse positive finding against him followed from the admission and the reliance upon such evidence.
His Honour then turned to consider the separate question of whether or not the father posed an unacceptable risk of harm to the children, believing the evidence which he characterised as “tendency evidence” could also be taken into account in that alternate inquiry (at [13], [67], [69] and [85]), but in that respect his Honour was mistaken. The tendency rule has no work to do when assessing risk.
The real question was not one about the father’s tendency, but rather whether or not there was an unacceptable risk of harm to the children, which entails a forecast. It is not a fact capable of empirical proof. Any evidence which is relevant to and influential in that predictive inquiry is admissible and should be taken into account (presuming it survives any other applicable rules of evidence), regardless of whether it meets the definition of and the threshold requirements for admissibility under the tendency rule.
The evidence of the father’s apparent past sexual interest in adolescents and his alleged interest in child exploitation material was plainly relevant to and carried probative weight in deciding whether or not the children were exposed to an unacceptable risk of harm and, hence, was admissible.
Although the father may have disputed it, there was evidence adduced of his possession of child exploitation material on two different occasions, years apart in 2007 (at [188] and [192]) and in 2013 (at [231]). The father was prosecuted for the first possession but, in 2009, his conviction was quashed on appeal because it was not proven beyond reasonable doubt his possession was intentional (at [29], [68(b)] and [258]). However, the father’s acquittal was not tantamount to a declaration of innocence. It was an uncontroversial fact the child exploitation material was found on his computer so it is possible his possession of the material was intentional, even though the prosecution could not establish it to the criminal standard of proof. His alleged possession of such material in 2013 was apparently not the subject of any criminal prosecution.
Once the evidence was admitted, the primary judge was free to use it. The primary judge’s mischaracterisation of the evidence concerning the father’s alleged sexual interest in adolescents and child exploitation material as “tendency evidence” in that prospective inquiry was therefore of no moment.
Alternatively, even if the inquiry about the risk of harm posed by the father to the children was really one about his “tendency” to harm them, his “character, reputation, conduct or tendency” would then actually be the fact in issue. In those circumstances, Pt 3.6 of the Evidence Act would not then apply to restrict the admissibility of such evidence under s 97, since s 94(3) of the Evidence Act provides this caveat:
94 Application
…
(3) This Part does not apply to evidence of:
(a) the character, reputation or conduct of a person, or
(b) a tendency that a person has or had,
if that character, reputation, conduct or tendency is a fact in issue.
If the tendency rule did not apply, then the mischaracterised “tendency evidence” was admissible simply because it was relevant to and probative of the fact in issue.
In support of these grounds, the father sought to derive advantage from the commentary of the Full Court in WK v SR, but there was none to be had. Nothing said in WK v SR is contradictory. There, the appeal was allowed because the primary judge used evidence of the father’s alleged sexual abuse of one child as (what is now called) tendency evidence to positively find the father sexually abused two other children. The Full Court found error because the subject tendency evidence was insufficiently probative of the facts in issue to be admitted and relied upon for that purpose (at [51]–[59] and [98]). There was no question of the subject evidence being used in the guise of tendency evidence to demonstrate the existence of an unacceptable risk of harm to the children. The Full Court there acknowledged how the evidence which is relevant to and probative on the question of “unacceptable risk” may be considerably broader than the evidence which can sustain a positive finding of abuse (at [48] and [59]).
Disposition
The appeal fails for lack of merit.
The parties and the ICL were all recipients of grants of legal aid in the appeal. There should be no orders for costs.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Alstergren, Deputy Chief Justice McClelland, and Justices Aldridge, Austin & Tree. Associate:
Dated: 1 July 2022
Isles & Nelissen [2022] FedCFamC1A 97
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