J & B - [2005] FamCA 1154

[2005] FamCA 1154

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT BRISBANE Appeal No. NA 69 of 2003

File No. BRF 9948 of 1999

IN THE MATTER OF:

Appellant Father

- and -

Respondent Mother

REASONS FOR JUDGMENT

CORAM:  Finn, Holden and Warnick JJ
DATE OF HEARING:        1 October 2004
DATE OF JUDGMENT:     30 November 2005

APPEARANCES:

Mr Laurie of Counsel (instructed directly by the appellant father, PO Box 580 Nerang QLD 4211) appeared on behalf of the appellant.
Ms Hogan of Counsel (instructed by Legal Aid QLD, 44 Herschel Street, Brisbane QLD 4001) appeared on behalf of the respondent.

APPEAL SUMMARY

MATTER:  J v B
APPEAL NUMBER:  NA 69 of 2003
  (BRF 9948 of 1999)
CORAM:  Finn, Holden and Warnick JJ
DATE OF HEARING:   1 October 2004
DATE OF JUDGMENT:                 30 November 2005

CATCHWORDS:

FAMILY LAW – APPEAL – RESIDENCE and CONTACT – UNACCEPTABLE RISK – Before adjourning residence and contact proceedings on a part-heard basis, Jerrard J determined that the father did not present an unacceptable risk of abuse to the children – Jerrard J ordered that the children continue to reside with the mother on an interim basis and have unsupervised contact with the father – While the matter was adjourned part-heard Jerrard J retired – Lawrie J (“the trial Judge”) conducted the final hearing and found that the father did pose an unacceptable risk of abuse to the children and ordered that they reside with the mother and have supervised contact with the father – Whether the trial Judge erred in re-determining whether the father posed an unacceptable risk of abuse to the children when Jerrard J had already made findings on that question, and in circumstances where the evidence presented before her Honour had been prepared on the basis that that question was no longer in issue – Whether the father had been denied procedural fairness by the trial Judge in that he had approached the adjourned hearing on the basis that the question of unacceptable risk had already been determined – Whether the trial Judge’s decision was against the evidence and/or the weight of the evidence – Whether the trial Judge failed to give adequate reasons.

Legislation cited:

Family Law Act 1975 (Cth): s 68F(2)

Caselaw cited:

Bennett v Bennett (1991) FLC 92-191

Findlay and Boniface (unreported, [2000] FamCA 676)

A & J (1995) FLC 92-619

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Athens & Anor v Randwick City Council [2002] NSWCA 83

M and M (1988) FLC 91-979

Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192

V & R (unreported [2004] FamCA 1081)

TF & JF & Children’s Representative (2005) FLC 93-227

Appeal dismissed.

No order as to costs.

This is an appeal by the father against orders made on 8 August 2003 by Lawrie J which provided that the then five year old twin sons of the father’s relationship with the mother should reside with the mother and that they should have only supervised contact with the father.
In order to understand the issues which arise in this appeal, it is necessary first to refer to the history of this matter, and in particular to the somewhat unusual course of the litigation in this Court.

History

The twins (“WB” and “WJ”) were born in June 1998 at which time their parents were apparently living together. However the parents separated in January 1999, with the children remaining with the mother.
Consent orders were made on 2 December 1999 providing that the children should live with the mother and have contact with the father. Contact occurred until a notice alleging a risk of child abuse by the father was filed by the mother on 19 July 2001. Contact then ceased but resumed shortly afterwards on a supervised basis.

The proceedings before and findings of Jerrard J

On 27 November 2001 cross-applications for residence came before Jerrard J for hearing. Both parties were legally represented and the children were also represented. It was apparently clear to his Honour at the outset of the hearing that it could not be completed in the four days available. Accordingly he decided to determine at that stage only the issue of whether unsupervised contact between the boys and the father would present an unacceptable risk of abuse to them.
His Honour explained his approach in the following way at the commencement of his ex-tempore judgment delivered on 30 November 2001:
2.The trial before myself will of necessity be adjourned part heard later today to a date at some time in year 2002. The necessity for the adjournment is occasioned simply because of the number of issues that are raised in these proceedings between these two parents, and the fact that only three days or, as it transpires, only four days, were available this week in which to hear the parenting applications…
3.The four days of (sic) which the hearing has proceeded have at my direction focused upon one issue alone. That issue is whether or not unsupervised contact with the children and their father would present for the children an unacceptable risk that he would sexually abuse them, or in other ways deliberately abuse them. By other ways, I mean engage in behaviour such as demonstrating masturbation to them or supplying them with unprescribed drugs. That matter has taken up close to four days of hearing.
Shortly thereafter his Honour explained that it was the mother’s evidence:
6.… that she believes as a positive fact that the manner in which (the father has sexually abused both boys) has included the insertion of toys, including a toy horse, into the bottom of at least the child, [WB], and likewise the insertion of a toy fire engine into that child's anal passage. She believes that this has caused injury to that child and he has been injured in that fashion on more than one occasion by his father.
His Honour then traced in detail the history of the mother’s allegations beginning with complaints made in March 2000 by the mother about the children’s conduct after contact with the father and ended with the filing of the notice of risk of abuse on 19 July 2001.
His Honour summarised the evidence of professional witnesses in the following terms:
33.Returning now to some other evidence, the opinion of [Ms B] was that, from a psychological perspective, nothing that the children said or did in her presence and with their father gave her any cause to believe that the boys had been hurt physically by him, or in any other way by him. I add that [Dr C’s] opinion in a report was that there had not been any physical evidence to suggest any anal tearing or scarring, which she believed would be likely if there had been any repetitive penetration by an object hard or irregular in shape into the anus. Her evidence in the Court was to the effect that whilst the bleeding identified by the mother could occur from a fissure caused by constipation, if it occurred from external trauma, such as an object being inserted, she would expect that to have caused pain.
34.There have been examinations of both children already described herein by a number of doctors. [Dr D] has conducted about four anal examinations of these children; [Dr B] either one or two; on the evidence now, [Dr C] three, since she conducted one in November 2001 as well as those earlier in 2001 and in early 2000; and there has been one by [Dr M] on 6 July 2001. Altogether, on my count, the mother's evidence is that there have been either nine or 10 anal and genital examinations of the children. On none of those has there been any evidence of any trauma or injury to the children.
35.Finally, I add that in her most recent assessment of the father and the children in October of this year, [Ms B] considered that the boys interacted normally with their father, played very independently but cooperatively with him, exhibited absolutely no sign of resistance to him or apprehension of him, and behaved in an affectionate and relaxed way around him.
Then in relation to the mother’s evidence concerning blood in the children’s bowel motions and the father’s evidence of the children suffering from constipation, his Honour said:
36.I repeat that the mother's evidence is that she has a firm belief that the blood she had seen came from injuries which would cause pain, which did cause pain, which were inflicted more than once, and caused by the insertion of toys and perhaps a finger into the anuses of her children. As against that, there is no evidence of any injury ever having been detected on examination, and there have been either nine or 10. There has been no evidence of observations of any ongoing bleeding, as distinct from blood appearing on occasions on bowel motions, or on the children's nappies on occasions associated with bowel motions. I think that fact alone makes an explanation other than internal injury caused by external trauma much more likely. An alternative explanation is the condition of constipation, from which the father has sworn that the children suffered for a long time. That evidence of his was not challenged in cross-examination by the senior counsel instructed to appear for the mother.
37.I think the evidence establishes that the children have lived in a household, for at least the last two years, in which the mother has been stressed immensely with the burden of the responsibility of the sole parental care for these two children; and by their aggressive, demanding and extremely worrying behaviour, as understood by her. I think she has interpreted their behaviour through the prism of the fears she has that the father has engaged in sexually abusive conduct towards them. I think the children have lived in a home where their mother has believed for at least the last 18 months that the sore bottoms of which they have complained have been associated with the bleeding seen by her, or the blood seen by her, and with the father's contact with the children and, more importantly, with abuse of those children by their father.
His Honour’s ultimate conclusion was that the father did not present any unacceptable risk to the children. He expressed this conclusion in the following way:
38.I have seen and heard the father in the witness-box, and I did not think, from his manner of giving his evidence, that I should disbelieve his denials that he has engaged in sexual abuse in the gross form asserted by the mother. I think it is significant that the children are not described as being in any way fearful of their father, and I simply do not understand how he could have done what the mother believes he did without the children exhibiting, on assessment, conduct showing fear or apprehension of him.
39.In the circumstances, I am satisfied that the statements the children make about their father inserting toys into the anuses primarily of [WB] and, to a lesser extent, of [WJ], are statements that are explicable by, and very likely to reflect, beliefs of anal abuse of the children held by their mother. It is clear she has held a deep suspicion about that for close on a year and a half, and I think it is very likely that there is discussion about that in her household. She may well endeavour to keep those from the children, but it is almost impossible for her to do that. …
40.Weighing this all up, I say that I am more than satisfied on the evidence that the father has not inserted toys into the anal passages of either of his children. I think that the children's statements clearly made to their mother, to their father, their grandmother, to two separate doctors, and to their play-care centre, saying that he has, do not describe events which have actually happened to them in their lives. I think the fact that I am confident in that view also makes it very unlikely that the other statements made by the children and quoted herein described events which have actually happened to them in their lives; and accordingly I express my comfortable satisfaction that the evidence does not establish that the father has abused his children in any other ways suggested by what the children have said or what the mother has suspected or described about the children.
41.These include his supplying them with drugs, demonstrating masturbation to them, permitting or inviting the children to touch his penis, or having or simulating anal intercourse with the children. I am therefore satisfied that unsupervised contact would not expose the children to any unacceptable risk that the father would sexually abuse them, or abuse them with drugs or in other ways on unsupervised contact.
Having made those findings his Honour then heard an application by the father, which was supported by the children’s representative, for an interim residence order. Ultimately his Honour refused that application, essentially for the reasons that he considered that the father’s case for residence seemed “under-prepared” and that a change of residence for the children at that stage would have disastrous consequences for them. In the course of his ex-tempore reasons for refusing the father’s application for interim residence his Honour said:
45.There is clearly an ongoing risk of psychological abuse to the children whilst remaining in their mother's care, resulting from the simple fact that she has persisted for some time with an increasingly firm conviction that the children's difficult, demanding, wearying, incredibly stressful behaviour can be explained by the pleasantly simple explanation that their father has abused them. I am satisfied on the evidence that that explanation is not open, which means that there are a myriad of complex explanations as to why these children behave as they do. It is clear that their conduct has caused their mother great stress, and that she has searched for an explanation for it; and my judgment today did not give her one. I think the fact that she will continue in all likelihood to prefer the simple one which I consider to be wrong, does mean that these children are at risk of psychological abuse in her care. But the risk that undoubtedly exists for the children and which has for some time, and which results from that tragic but wrong belief, has to be weighed against other risks.
46.I am satisfied that an immediate change of the children's care now to their father, and supervised contact only with their mother as urged upon me, would have disastrous consequences for these children. They are used to her sole care, and listening to the tape-recording which is exhibit 4, in most circumstances she is extraordinarily patient and giving to them. I have yet to be satisfied that the father would be able to match that on a day after day, hour after hour, night after night basis with these children in the way that she has managed to.
47.Clearly they need at least a high level of constant care. I think that a change of residence, if necessary and if in the children's best interests, would be ordered by the Court, but that the traumatic consequences that would flow from that should be avoided until it becomes an order that is the only order that can be made in the best interests of the children. I am not satisfied on the evidence that that stage has been reached. Particularly I say that there is no clear evidence before me at the moment of the father's capacity to care for these children as a sole parent, and that that is a significant fact in deciding not to change residence at this stage.
48.Further, there is no evidence of a conclusive nature that the mother will be unable in the future to accept the decision of the Court and to allow the children to love their father and to have unsupervised regular contact with him. The children are entitled to have that, and it has not yet been demonstrated that the Court must make a decision that either the children only have a relationship with their father and live with him and have their mother absolutely abandon them on the one hand, or on the other only live with and have a relationship with their mother, and be allowed by her to force upon them an abandonment of their relationship with their father. I am satisfied that at the moment it has not come to that ghastly choice. It may, but that has not yet occurred.
Then before making orders for what he termed as “a graded reintroduction of the father and children’s unsupervised contact” and for the hearing of the parties’ applications to be adjourned “part heard to a date to be fixed”, his Honour said:
49.I need to make orders for contact. I propose to follow to some extent the suggestions made by Mr Page. I think that [the mother] deserves the opportunity to experience the children going for increasingly lengthy periods to their father's care, unsupervised. I think it would be an extraordinarily good idea if [the father] took great care to ensure that at all times either his mother or some other person was in his company when he had the children in his care. If [the father] was able to swear on oath, and call witnesses, on the resumed hearing that that had always been the position, he would have an extremely strong answer to make to the further assertions of sexual abuse, which is all likelihood will emerge between now and the resumption of the hearing. Simply as an intelligent forensic exercise it would be highly desirable that he is not alone with the children on unsupervised care. That would protect him from the allegations that will be made, and it will make clearer the order that is necessary for the children's best interests next time when the full issue of residence is considered.
Before the hearing before his Honour could be resumed, he retired from the Family Court.

The directions hearing before May J

The matter then came before May J for directions on 16 April 2003. In an ex-tempore judgment delivered that day her Honour explained that a pre-trial conference before a Registrar had established that a further hearing of the matter would take twelve days and that the Legal Aid Office was unable to fund the matter for that period of time. Her Honour then outlined an approach which was apparently agreed to by the legal representatives of both parties and of the children, and which involved an order for all parties to be provided with a copy of the transcript of the proceedings before Jerrard J. Her Honour explained the proposed approach in the following way:
8.… The purpose of such order (for the provision of the transcript) of course is to ensure that it is not necessary for there to be a rehearing of all of that evidence. In saying that, I would like to make it clear that the trial Judge is not bound by the conclusions on the facts made by Jerrard J, but would have that evidence before them from the transcripts. Submissions could be made about the evidence. Likewise, each of the parties could read as part of their list of documents any of the affidavits that were before Jerrard J but it would not be necessary other than to deal with the matter historically or to place present allegations in context to have cross-examination about the contents of each of those affidavits. For the trial Judge to properly understand what has happened it will of course be necessary for there to be some cross-examination, otherwise there would be an absurdity of the facts and allegations since November 2001 being dealt with in isolation.
9.The mother’s present position in resisting unsupervised contact must relate to facts that occurred before 30 November and the Court will have to make some assessment of it. However, to put the parties and the Court and the Legal Aid Office through a process whereby all that evidence is given all over again seems to be unsustainable and not necessary to make a determination of what is in the children’s best interests.
10.The appropriate approach it seems to me, allowing that the trial Judge may have some views about the extent to which cross-examination will be allowed and I do not wish to bind her in any way, is that orders be made in terms of pars 1, 3, 4 and 7 so it is clear that the mother’s evidence-in-chief would comprise really (sic) of the following:
·Her affidavits filed in the previous proceedings;
·Her evidence given in the previous proceedings; and
·Her evidence provided by way of affidavit filed in recent times.
The same is to be said of the father. The cross-examination then should be largely limited to the affidavits filed since November 2001 and any important matters from the past upon which there must be cross-examination to give the current situation some context. Otherwise I can see no reason why counsel and solicitors in each case could not refer Her Honour to the evidence that had been given in November 2001.

May J’s orders of 16 April 2003 included the following:
1.That the matter be set down for hearing as an 8 day trial, commencing at 10.00am on 2 June 2003.
…
3.That a copy of the transcript of the proceedings heard by the Honourable Justice Jerrard on 27, 28, 29 and 30 November 2001 be prepared and provided to each of the parties without charge.
4.That the MOTHER’s evidence-in-chief pertaining to her allegations of the FATHER having sexually abused the children [WB] and [WJ], both born 15 June 1998, at the trial in this action be restricted solely to events or evidence that have occurred since 30 November 2001.
5.That the FATHER’s evidence-in-chief be similarly restricted to events or evidence that have occurred since 30 November 2001.

The proceedings before and reasons of Lawrie J

In accordance with May J’s directions the hearing of the parties’ cross-applications for residence then commenced before Lawrie J on 2 June 2003. It continued over a period of 14 days finally concluding on 1 August 2003.
At the trial the father was represented by Ms Carew of Counsel, the mother appeared without legal representation, and Mr George of Counsel appeared on behalf of the children’s representative. The position of the children’s representative at the conclusion of the trial was that there should be a change of residence to the father, with no contact with the mother for a period of one month after the change of residence and then supervised contact for a period of at least six months.
On 8 August 2003 Lawrie J made orders providing that the children should continue to reside with the mother and that they should have supervised contact with the father. These are the orders which are the subject of the appeal.
Her Honour’s reasons for these orders were published on 20 May 2004.
Lawrie J commenced her reasons for judgment with a brief history of the matter in terms similar to paragraphs 3 and 4 of this judgment. She then referred to the parties’ applications and to the principles governing the determination of such applications.
Then having referred to the hearing before Jerrard J in November 2001 and to the fact that his Honour had retired from the Family Court before he was able to resume the hearing, her Honour explained the basis on which the hearing had proceeded before her in the following way:
16.The matter proceeded before me on the basis that the transcript of the previous hearing and the exhibits were evidence before me, and that it was accepted that His Honour’s findings were not binding. It may however be helpful in explaining the decision I have come to, to indicate where I have diverged from His Honour’s conclusions.
Then, apparently in order to indicate where she had “diverged from” Jerrard J’s findings, her Honour recorded that in his judgment his Honour had “made a finding that the children’s father did not present any unacceptable risk to them and that there was an ongoing risk of psychological abuse to the children while remaining in the mother’s care.” Her Honour then quoted from paragraphs 45 and 39 to 41 of his Honour’s judgment. (Those paragraphs are quoted above in paragraphs 11 and 12 of this judgment).
In quoting paragraph 45 of his Honour’s judgment, her Honour emphasised his Honour’s rejection of the mother’s case that the children’s difficult behaviour could be explained by the fact that the father had abused them, and in quoting paragraph 40 of his Honour’s judgment her Honour emphasised his Honour’s conclusion that the father had not inserted toys into the anal passages of either of the children and that the children’s statements that he had done so, did not describe events which had actually happened to them.
Her Honour then observed (in paragraph 19 of her judgment) that in examining the significance of the statements made by the then three year old children “in relation to the insertion of toys into their bottoms”, she would not evaluate these statements as she would those of an adult witness.
Her Honour further observed (in paragraph 20) that there was evidence to suggest that it was “unlikely that what the children said was literally true”. In this context her Honour referred to evidence given before Jerrard J by a paediatrician, Dr C, concerning the likely physical consequences of the insertion of such toys as the children had referred to and to the doctor’s evidence that she had not seen such physical consequences. Her Honour then observed:
24.It does not follow that if the insertion of particular foreign object nominated by the child is excluded when the child has made a complaint of something happening to their anus, that all insertions into the anus are excluded. The child may be wrong about what went in but accurate about the fact that they felt something go in. A lack of any physical traces of an insertion cannot be safely taken to eliminate the possibility of some actual intrusive anal experience having been the source of the child’s complaint. [Dr C] for example gave evidence that she would not normally expect tearing if a finger was inserted into the children’s anus, even without any lubrication.
25.Because the statement by the child of the insertion of a toy appeared to be inaccurate, His Honour appears to have considered that all their statements were not based on fact. Because of the children’s age it is necessary to consider whether their statements may be based on an actual experience which the child is doing his best to describe, but which, because of the limitations of the children at that age, they are not able to describe with the accuracy of a more mature witness.
Her Honour then proceeded (paragraphs 26 to 30) to discuss a number of possible situations of interference with a child’s anus which a child might not be able to accurately describe, and she concluded:
31.There is no doubt that the children have spoken about their father putting toys into their bottoms. I do not think after hearing the evidence that they have been prompted to do so by some other person such as the mother, or by being exposed to the situation happening to someone else such as another child. A matter involving such young children, and the possibility of the information that the children are trying to convey being “contaminated” inadvertently by the children being questioned as to what they mean, makes it impossible to know exactly what they are talking about. The more they are questioned the more the possibility of contamination, but I believe that the children have, for some reason, reported that their “bottoms “ are sore because their father put toys into them.
32.These complaints have occurred in a context of disturbed and sexualised behaviour. There has been anal bleeding.
33.This is not to say that I am comfortably satisfied and can make a finding that this intrusion of something into the children’s anuses has actually occurred, rather that I would not, as his Honour did, exclude as a real possibility, that the children’s descriptions do, however inaccurately, refer to something which has actually occurred to them.
34.There was no dispute that the children had had some anal bleeding. … The mother believed that this was consistent with the children’s (but most particularly [WB’s]) claim to her that things had been put in their bottoms. Medical evidence suggested that one thing which could cause anal bleeding was constipation.
Her Honour then referred to the fact that during cross-examination by the children’s representative before Jerrard J, the father had for the first time said that the children have a constipation problem. She then set out at some length (paragraphs 35 to 38) the father’s evidence given before Jerrard J in relation to the children’s alleged constipation, and she went on to explain why she was not prepared to accept (as Jerrard J had apparently been prepared to accept) that constipation was an explanation for the children’s anal bleeding:
42.[Dr C] said that constipation is generally a long standing pattern, although there can be acute reasons for constipation for example if the child is unwell with fevers or if they have a significant change in diet, but even then it would be expected to evolve over a number of days at least, maybe a week or more (n T.216) If the children were constipated with the father at the start of the weekend in the way in which he described it does not seem likely that they would never have been constipated with the mother before or after the contact.
43.The mother is described by various professionals who have been involved with her as a conscientious parent. Her physical care of the children and their diet has not been criticised and she was concerned about the children’s diet when with the father to send food with the children. She took the children to their general practitioner [Dr D] to consult him about the bleeding.
44.[Dr D], the general practitioner who (in a medical partnership has cared for the children, says that the mother, who in his experience has always been a concerned parent, never raised constipation as a problem from which the children suffer. If the children are crying on passing a motion as the father claimed before me, it is surprising that he did not seek medical assistance or even resort to the prune juice which he referred to before Justice Jerrard, but I find it difficult to believe that the mother would ignore such a situation. The doctor had palpated the abdomens of the children on his examinations and did not ever feel a hard motion in the abdomen of either child which he would have expected had the children suffered from constipation. He said: “Palpation rules out longstanding constipation”.
45.The only evidence for constipation is the evidence of the father given during his cross-examination by the Child’s Representative. His Honour appears to have accepted the father’s claim that the children were constipated, and that this was the explanation for the children’s anal bleeding. He says that “surprisingly” the mother seems to have denied that that condition existed. His Honour says: “I am satisfied from the evidence that it apparently did.”
46.After hearing the evidence of [Dr D] as to his examinations of the children and the absence of any hard motions and the evidence about the mother’s conscientious care of the children’s physical care, taken with the evidence of [Dr C] about the time taken for constipation to develop to the stage the husband claims to have observed, I have come to the conclusion that it is unlikely that the evidence of the father is correct as opposed to that of the mother.
47.I think it most likely that the children do not and did not suffer from constipation just as the mother has always maintained and that that was not the explanation for the bleeding.
Her Honour then went on to say in paragraphs 48 to 49 that she would “not exclude the possibility that (the children) had been exposed to their father masturbating”, and that it was also possible that they had had access to pornography at the father’s home.
Her Honour then turned to the psychiatric evidence which had been before her concerning the mother, and she concluded:
62.Thus two psychiatrists who have examined the mother, even after the finding of Justice Jerrard, and in the case of [Dr V] a pessimistic forecast of the mother’s behaviour at about that time, have both come to the conclusion that they cannot say that the mother has any psychiatric basis for her behaviour. The longer the time the psychiatrists have spent with the mother, the more positive they have become about her.
Her Honour next turned to the allegations in the case of the father and also of the children’s representative before her Honour that the mother had fabricated the allegations of abuse against the father either because of her extreme dislike of the father or because of her psychological problems. Her Honour’s conclusions in relation to these allegations were as follows:
68.In terms of her reporting what the children have said to her and done however my impression is that she has conscientiously tried to report what the children have said to her and what she has observed. Her evidence was consistent over a long period with a lot of different matters being discussed.
69.If in fact she did indeed know that the children had suffered from constipation which could explain any bleeding, and was fabricating evidence and putting words into the children’s mouths she would be taking an enormous risk to the point where her behaviour is almost irrational. She does not present as someone who is likely to do that. She is very conscious of the fact that there is a real risk of loosing the care of the children in such a situation, and this causes her great anxiety. She has no confidence that she will be believed where her evidence conflicts with the husband. If she is not motivated by some disorder, as the psychiatrists seem to indicate, then the reason for her adoption of her stance may well be that what she is reporting as to the children’s behaviour, statements, physical condition and health, is accurate, and that she is doing what she sees as her duty to do everything she can to protect the children from harm.
70.The father had said that the mother was making the claims because there was something wrong with her. This is not supported by the two psychiatrists. The mother has also impressed a number of other professionals who have dealt with her as intelligent and concerned about the children.
71.I am not satisfied that the mother is suffering from a psychological state which would cause her to put the satisfaction of her dislike of the father above the welfare of the children, to whom all who have seen her with them, have described her as being a conscientious and caring mother.
In the context of considering the genuineness of the mother’s belief that the children had been abused by the father, her Honour referred to the evidence of Dr D concerning his examination of the children which, it is important to note, took place subsequent to the hearing before Jerrard J:
92.[Dr D] presented as a careful witness. His internal examination took place after the interim hearing and such evidence was not before Justice Jerrard [Footnote: His Honour had recorded in paragraph 34 of his judgment that on none of the either nine or ten anal and genital examinations of the children had there been any evidence of any trauma or injury to the children]. He is the only doctor who undertook any investigation of the interior of the bowel of [WB], and he found on such examination a tear on lateral aspect which he described as a split, the cause of which could not be determined. (tear on the right side of the anus) split on the lining of the bowel. (sic)
93.He agreed that such a tear could be caused by constipation, but said that generally when there was a tear on defecation there will pain.
94.When he examined the anus of [WB] there was no resistance to the entry of the oroscope which he found unusual, and “It was my concern that he might be used to anal examination.” He was concerned at the lax anus. He was aware of the pitfalls of reading too much into it, and aware of the English cases where too much significance had been placed on it, and agreed that on its own it was not enough evidence, but he was concerned.
95.The fact that a careful Doctor did find some physical signs that could be consistent with what the children had told her, and that he also did express concern would also strengthen the mother’s belief that something was seriously wrong.
Also in the context of evaluating the mother’s concerns, her Honour referred to the evidence of Ms KM, a crisis care worker from the Department of Families. Having set out passages from Ms KM’s evidence, her Honour concluded:
99.I thought that [Ms KM] was a careful witness, and I have really come to the same conclusion that she did, namely that I cannot exclude the real possibility that something inappropriate has happened to the boys at the hands of the father, and that therefore supervision of their contact with their father is necessary as there is an unacceptable risk of abuse if it is unsupervised.
Her Honour then turned to the question of domestic violence and to the mother’s case that the father is “a controlling and abusive person”. After referring to the findings of a State Magistrate in domestic violence proceedings between the parties and to passages from the Family Report of a psychologist Ms B, her Honour concluded:
106.I believe that the children have been exposed to domestic violence and that they are exposed to derogatory comments about their mother by their father, and that this is a factor which would indicate that he would not be a suitable person to have the residence of the twins.
Then in relation to the mother’s claims that the father was untruthful, her Honour observed:
107.The mother says that the father is untruthful, and an experienced (and successful) liar. In the conversation which the father had secretly taped with her where she had no cause to believe what she said would be put before the court she also accuses him of being a liar.
108.There were several times when the impression created by the father’s evidence turned out to be unreliable on closer examination which lead me to treat his evidence with caution and to believe that there may be something in the mother’s claim.
Her Honour next referred to certain other aspects of the father’s evidence, and concluded:
121.After seeing and hearing the father there are some aspects of his evidence which suggest that he is at least a witness whose statements can give a misleading impression, and that care should accordingly be exercised.
Her Honour then added the following observations in relation to the father:
122.The father speaks of the distress and the interference with his relationship with the children which the accusations of sexual abuse have led to. This is often raised by parents who feel constrained to avoid touching their children because they are concerned at normal affectionate touching being misinterpreted. However in fact, despite the fact that there is another bedroom available at the home where the boys went on contact, the boys have continued to sleep in the same bedroom as the father, [WB], the child at the centre of the case in the same bed. This was despite the fact that the father’s mother believes they should be in their own bed, and despite the suggestion by Justice Jerrard that for his own protection the father should have third parties supervising the contact. The mother had also had some difficulty in getting the children to sleep in their own beds, that is not the issue on this matter, it is the making of the claim that the accusations have inhibited his interaction with the children when it appears that in fact it has not.
Finally, her Honour turned to the matters to which she was required to have regard under s 68F(2) of the Family Law Act and which were relevant in this case.
In relation to the children’s relationship with each parent, her Honour found:
125.… The mother has been the primary carer for the children and has the closest attachment to them. The father has been having contact with the children which has provided some enjoyment to the children. It is possible that there is an element of restraint in [WB’s] relationship with his father, but [WJ] says he misses his father if he does not see him.
As to the capacity of each parent to provide for the children’s needs her Honour made the following findings:
128.… I am satisfied that the mother has a good capacity to provide for the physical and intellectual needs of the children. She is described by the occupational therapist [Ms K] as follows: “She parents both boys very conscientiously and very sensitively. I could not criticise the way she parents them.”
129.I am not satisfied that the father has the capacity to provide for the physical needs of the children without assistance. He called a friend who does housekeeping for him who said that she would assist. He is in contact with his mother and with [J] who could also provide some assistance. He has shown a lack of forethought and concern for the children’s physical safety. One example is by rigging a piece of ”heavy duty chipboard” (this is how the father’s oldest son [J] described it: Dad put a piece of heavy duty chipboard, two children’s seats on tray, no belts, fully enclosed seat, had to be lifted in or out) with seats for the children across a ride on mower to give them rides. He ridiculed the mother’s statements of concern about this very dangerous arrangement. If a ride on mower falls over there is a great risk that the children might be cut by the blades. His exposure of the children to his hostility to the mother shows that he is not able to provide for the children’s emotional needs. His claim that the children cry when passing motions I do not accept, but if they did, the claim that he did not seek any medical assistance to deal with it shows an inappropriate attitude.
130.Although it was the mother’s psychological stability which was the focus of the child’s representative’s attention, the mother has not ever required psychiatric treatment. The father has had at least two periods in his life before this case when he has been referred for psychiatric treatment. One occasion was when a sister was killed, and another was over an unsuccessful relationship which overlapped with that with the mother. In the courtroom the father was labile, and it is reported that he has been tearful at the contact centre.

Similarly, in relation to the parent’s demonstrated attitude to the responsibilities of parenthood, her Honour found:
136.The twins are the only children of the mother. She has demonstrated a proper attitude to her responsibilities as a parent in ensuring the children receive proper physical care and support and has demonstrated considerable stoicism in seeking to protect the children as best she can where she is convinced that they need protection.
137.The father has two other children as well as the twins. The attitude to those children demonstrated by the father, particularly to [J], causes some concern. The father has not demonstrated a commitment to the financial support for the children one would have expected from someone who presents themselves as a self employed builder who would have the resources to be flexible in work hours so as to be available to the children and to appropriately support them.
In relation to the need to protect the children from abuse, her Honour made the following findings:
133.As indicated there is an unacceptable risk that the children have been and will be subjected to abuse, violence and other behaviour including inappropriate exposure to masturbation and pornography whilst in the care of the father, and that they have been exposed to abuse, ill treatment and violence of the father to the mother which has also caused them psychological harm which is evidenced by their extreme aggression to their mother.
134.There is also evidence that the mother’s actions in seeking assistance from various bodies for the children which I believe have been conscientious in their origins have now reached the point where they are in themselves causing psychological harm to the children. Supervision of contact would avoid the possibility of such actions continuing.
…
139.… Apart from the question of the domestic violence relating to herself which is raised by the mother, the twin’s half-brother’s mother also separated from the father in circumstances involving family violence orders.
Having made these findings in relation to the s 68F(2) matters, her Honour concluded:
141.In all of these circumstances I consider that the best interests of the children will be served by living with the mother and having supervised contact with the father.

The matters raised by the appeal

In his notice of appeal in addition to asserting in grounds one and two, respectively, that Lawrie J’s decision was “against the evidence and/or the weight of the evidence” and that her Honour had failed to give adequate reasons for her decision, the father also asserted that her Honour erred:
·in drawing inferences from the evidence which were not reasonably open on the evidence before her (ground three);
·in finding that the children had not suffered constipation where there was no other explanation for the alleged anal bleeding accepted by her Honour (ground four);
·in finding that it is unlikely that the father’s evidence was correct as opposed to that of the mother with respect to constipation, in reliance upon the father’s and mother’s answers to cross-examination and the evidence of Dr C where her Honour did not hear or observe that cross-examination or evidence and where such finding was in direct contradiction to the finding by the trial Judge who did (ground five);
·in including in the evidence before her, evidence given orally before Jerrard J while ignoring any findings of his Honour based upon the performances of the witnesses before him (ground six);
·in ignoring or giving little weight to the evidence of expert witnesses before her Honour including the updated Family Report on the basis that such evidence was premised or influenced by the finding of Jerrard J that the father had not abused his children and that he did not present an unacceptable risk to them (ground seven); and
·in proceeding to hear and determine the matter before her, after concluding that an unacceptable risk of abuse existed in the father’s care, where the evidence in the case including expert evidence had been prepared upon the basis of an interim determination by the Court that no such risk existed, especially where her Honour concluded that his Honour’s interim findings had an important impact on the way the litigation proceeded and that experts were told of or were made aware of his Honour’s finding and asked to proceed on that assumption and that it was possible that this has impacted on their opinions (ground eight).
Although in his written summary of argument Counsel for the appellant father addressed each ground of appeal individually, in his oral submissions he adopted a more global approach. The essential arguments contained in Counsel’s oral submissions were:
·that the unusual conduct of the matter had led to injustice to the father and the children, and a denial of procedural fairness to the father;
·that the father had come before Lawrie J believing that the sexual abuse allegations had been determined, but that her Honour had then effectively sat as an appellate court in relation to Jerrard J’s decision, in that she had drawn different inferences from the same evidence from those drawn by Jerrard J in circumstances where she had not seen and heard the witnesses;
·that her Honour had largely determined the case on the basis of her own re-evaluation of the evidence before Jerrard J rather than on the basis of the subsequent evidence prepared for the purpose of the new trial;
·that much of the subsequent expert evidence had been prepared on the basis that the father had been found not to have abused the children; and
·that her Honour’s reasons overall were inadequate.

The status of Jerrard J’s findings in the proceedings before Lawrie J

It will thus be seen that the primary point of the appeal is directed to Lawrie J’s departure from Jerrard J’s determination that the father posed no risk to the children. Put simply, it was the father’s case before us that he came to the hearing before Lawrie J on the understanding that the allegations that he had abused the children or that they would be at risk of abuse in his care had been disposed of in his favour.
While it has to be acknowledged that the course of these proceedings was somewhat unusual, we do not consider that there is any substance in the father’s complaints that he was denied procedural fairness, in the sense that he could be said to have been unaware that it would be open to Lawrie J to reach her own conclusion on the matter on which Jerrard J had reached a conclusion, being whether the father had abused the children, or that he posed an unacceptable risk of abuse to them. We take this view for the following reasons.
First we consider that it was made clear in the passages from the judgment of May J of 16 April 2003 which we quoted earlier (see paragraph 15 above) that the trial Judge would not, to use May J’s words, be “bound by the conclusions on the facts made by Jerrard J.”
That position was re-enforced by May J then saying that submissions could be made about the evidence (which had been before Jerrard J and would be before the trial Judge in transcript form). It is perhaps trite to say that there would be no purpose in permitting submissions to be made on the evidence, if it was intended that there was to be no departure from the findings already made on that evidence. It is important to note that there was no appeal against May J’s orders which were apparently made in the presence of the father’s solicitor.
While it is true that at an early stage in the hearing before Lawrie J, her Honour appeared to suggest that she was only to be concerned with events since Jerrard J’s judgment, Counsel for the children’s representative informed her Honour, albeit not in a precise way, that this was not so. The exchange in question is as follows (Transcript 02/06/03, p 4):
HER HONOUR: … Now, I thought that we were starting with his Honour’s judgment and only dealing with anything that had happened since.
[COUNSEL FOR THE CHILD REPRESENTATIVE]: In terms of the affidavit of evidence-in-chief for the material before your Honour, yes that’s right. But as your Honour may have noticed, I’ve read as part of our case the orders and reasons for judgment of May J. Before her Honour I made submissions in relation to the question of issue estoppel which her Honour declined. Clearly and on careful consideration, clearly her Honour was right. The matters before his Honour and his reasons and the transcript obviously need (sic) to be before your Honour. Clearly that forms part of the evidence before your Honour in the determination of today’s case. It will not be our submission to you that as at 31 (sic) November 2001 the father had not abused the children. That was his Honour’s finding on the evidence at the time, but that needs to be taken into account in an assessment of what the situation now is. So, it’s for that reason and that reason only that as part of the material before your Honour we felt it necessary to ensure that all of the material that was before Jerrard J is also before your Honour.
HER HONOUR: I see.
To the extent that there may have been some confusion at the outset of the trial before Lawrie J as to the approach to be adopted, and in particular to the status of Jerrard J’s findings, it is clear from the following passage from the written submissions provided to her Honour by Counsel for the father on the last day of the trial, that Counsel well appreciated that it would be open to her Honour to reach a different finding in relation to the unacceptable risk issue from that reached by Jerrard J:
41.The finding by Jerrard J was that up to November 2001 the father had not sexually abused the boys and there was no unacceptable risk that he would do. There is nothing in the evidence presented in this hearing that would call into question such a finding. …
The second sentence of the passage just quoted makes it clear that the father’s Counsel well understood that the case had proceeded on the basis that Lawrie J was not bound by the findings made by Jerrard J – although the father’s case before her Honour was that on the evidence (which of course included the affidavits which were before Jerrard J and a transcript of the oral evidence given before Jerrard J) the same finding should be made as had been made by Jerrard J.
Given his Counsel’s understanding of the position in relation to Jerrard J’s findings in the trial before Lawrie J (as reflected in Counsel’s submissions), there can be no substance in the husband’s claim before us that he was denied procedural fairness.
We think it relevant to observe at this point that the position for which the father contended in respect of the status of Jerrard J’s finding would have embedded and exacerbated in the proceedings before Lawrie J, the conceptual complexities inherent in the process followed by Jerrard J. In posing in paragraph 3 of his judgment (see paragraph 6 of this judgment) for determination the question “...whether or not unsupervised contact with the children and their father would present for the children an unacceptable risk that he would sexually abuse them, or in other ways deliberately abuse them...” when applications for residence were “...half heard at best”, his Honour set himself a task difficult enough when all the evidence about parenting issues is available: but one fraught with danger when treated as a preliminary issue.
As we will later discuss, the questions of sexual abuse and unacceptable risk are but part of an enquiry into the orders which serve the best interests of the child or children, and matters relevant to that, but not directly to the questions of abuse or risk, may nonetheless help reach answers to those questions. However, when Jerrard J determined the issue, as he himself said (at paragraph 44 of his judgment):
I think that there has not yet been an assessment of the kind I want to hear of the father’s capacity to care for these two young children in his sole care.

Lawrie J’s use of the evidence before Jerrard J

Turning then to consider the father’s complaints concerning Lawrie J’s treatment of the evidence it has to be recognised that her Honour's reasons are unusual in structure – fairly obviously we think, because of the unusual “structure” of the proceedings. It is clear from the exchange at the outset of the hearing between her Honour and Counsel for the children’s representative, quoted above, that, without objection, the reasons of Jerrard J were placed before her Honour. However, in view of the position that the findings of Jerrard J were not to bind her Honour, the use to be made of the reasons of Jerrard J would seem less clear. However, those reasons did contain a recount of evidence which might have conveniently been used by Lawrie J. As Jerrard J said (at paragraph 7) “there has been a good deal of evidence about that abuse, and I think I should record a good deal of it.”
As she explained, Lawrie J used the reasons of Jerrard J and her points of disagreement with his assessment of the evidence before him, to explain her own conclusions. However, the result of that approach is that her Honour has not, as more usually happens, herself recounted and analysed the evidence upon which she relies for her ultimate conclusion of unacceptable risk, but rather has discussed that evidence incidentally, sometimes indirectly and inferentially, when addressing the approach taken to it by Jerrard J. Nonetheless, we think, in the unusual circumstances of this case, that her Honour must be taken to have had regard to that evidence as support for her conclusions.
One of the complaints in the father’s case before us was that Lawrie J made her findings which were contrary to those made by Jerrard J on the basis of evidence given before his Honour, but without having seen and heard the witnesses give that evidence. It is of course true that her Honour did not see and hear the evidence given before Jerrard J. But it has to be remembered that her Honour did see and hear the father give other evidence before her. Indeed he was cross-examined for some 100 pages of transcript before her Honour and that cross-examination did cover (albeit briefly) the allegation of the insertion of toys into the children. It must also be remembered that her Honour reached her own somewhat adverse conclusions about the father, notably in paragraph 121 of her judgment.
We consider that there can be no substance in any complaint by the father that Lawrie J reached her conclusion on the basis of the same evidence which was before Jerrard J and in the absence of any significant new evidence. We take this view because as her Honour recorded in paragraphs 92 to 95 of her judgment (see paragraph 32 above) she had the evidence of Dr D who had undertaken an internal examination of WB after the hearing before Jerrard J and, unlike the witnesses before Jerrard J, had found some cause for concern and some support for what the children had told the mother. In our view this was significant new evidence, which provided substantial support for her Honour’s ultimate conclusion.

The new evidence before Lawrie J

With regard to the new evidence which was before Lawrie J we have some concerns that her Honour failed to deal with extensive material, which was mostly from the mother, and which related to alleged “disclosures” or like statements by the children, made after the hearing before Jerrard J, and concerning not only events that were the subject of the evidence before Jerrard J, but also numerous subsequent events.
Before Lawrie J the mother relied upon at least two affidavits in addition to her evidence that had been before Jerrard J. In her affidavit filed 31 October 2002, the mother referred to “the children’s contact with the Applicant following Interim Orders of Jerrard J of 30 November 2001”. She said:
10.In general both the children continue to exhibit extreme emotional distress and abnormal behaviour around contact periods. …
The mother then set out her observations of behaviour of the children surrounding contact visits. Much of the description was of what might be called sexualised behaviour.
There are annexed to the mother’s affidavit of 13 May 2003 notes which the mother made of the children’s behaviour and “disclosures”, dating from mid-September 2002 through to March 2003. In the recorded statements of the children there are several references to “misbehaviour” towards the children by J, the eldest son of the father.
During the hearing before Lawrie J, Counsel for the husband cross-examined the mother about the content of her affidavits filed 31 October 2002 and 13 May 2003. Counsel queried the mother’s interaction with the children at times that they allegedly made statements touching upon the issue of sexual abuse. The question of the involvement of the father’s other son, J, through allegations made by the children was also raised. Counsel challenged the mother about her inconsistent approaches to allegations of abuse made by the children, believing those involving the father, but not those referring to J.
Counsel for the children’s representative addressed the trial Judge extensively about matters raised by the mother in her affidavits of 31 October 2002 and 13 May 2003. Finally, he submitted (Transcript 1/08/03, p 896):
Your Honour, it’s the submission of the children’s representative that the boys have not been sexually abused by their father. Given the context of the escalating conflict between [the mother] and [the father], from the date of separation onwards, it is more likely – in our submission – that something innocent has occurred, such as the evidence that was before Jerrard J, of the application of cream to the bottom by the father, which the mother has misinterpreted. And then arising because of the extreme antipathy indeed one could be forgiven for using the word hatred, evidence by the mother and her family against [the father], that those allegations have become more and more exaggerated and more and more fanciful over the period since January 1999, when the parties separated.
Before us, the questions that arose from this extensive material, cross-examination upon it and the submissions in respect of it were whether the trial Judge needed to consider the evidence and issues raised and expose that consideration in her reasons. In his written submissions to us, Counsel for the father, argued:
6.The Learned Trial Judge made no findings in relation to those allegations particularly in circumstances where it had been submitted that the Wife had consciously or unconsciously misconstrued, manufactured or exaggerated allegations against the Husband and therefore the fresh diverse allegations made by the Wife in her Affidavit material were and ought to have been extremely relevant to any determination as to whether there was an unacceptable risk of child sexual abuse or whether having regard to the additional allegations it was more probably that the allegations were contrived or exaggerated.
It is not possible, in our view, to say that the trial Judge did not make some findings in respect of the material raised by the mother in her affidavits of October 2002 and May 2003. There are a number of paragraphs where it might be seen her Honour dealt with such material (which although quoted earlier, we here repeat):
31.There is no doubt that the children have spoken about their father putting toys into their bottoms. I do not think after hearing the evidence that they have been prompted to do so by some other person such as the mother, or by being exposed to the situation happening to someone else such as another child. A matter involving such young children, and the possibility of the information that the children are trying to convey being “contaminated” inadvertently by the children being questioned as to what they mean, makes it impossible to know exactly what they are talking about. The more they are questioned the more the possibility of contamination, but I believe that the children have, for some reason, reported that their “bottoms” are sore because their father put toys into them.
32.These complaints have occurred in a context of disturbed and sexualised behaviour. There has been anal bleeding.
33.This is not to say that I am comfortably satisfied and can make a finding that this intrusion of something into the children’s anuses has actually occurred, rather that I would not, as his Honour did, exclude as a real possibility, that the children’s descriptions do, however inaccurately, refer to something which has actually occurred to them.
…
45.The only evidence for constipation is the evidence of the father given during his cross-examination by the Child’s Representative. …
…
48.I would also not exclude the possibility that they have been exposed to their father masturbating and that they have attempted to describe that by saying that he punched himself in the genitals. The children’s description of their father “punching” his genitals may be an attempt by them to described seeing him masturbating by holding his erect penis in his fist and moving his fist quickly up and then down towards his body which to a child may appear as if he is punching himself in the genitals.
49.It is also possible that the children have had access to pornography at the father’s house where it is kept “on a fairly high shelf “in an unlocked cupboard which their elder brother says that they could climb up to.

Her Honour also dealt at length with the criticisms of the mother made on behalf of the father and the children’s representative, including the suggestion that she had in some way manufactured the allegations against the father. Ultimately, her Honour was able to rely on the evidence of psychiatrists, who could not say that the mother had any psychiatric basis “for her behaviour”. Because of the importance we attach to this matter, we set out at length, and in some instances repeat our earlier quotations of, her Honour’s observations:
63.The father and the child’s representative contend the mother is motivated by her intense dislike of the husband in making the allegations at the centre of this dispute and that she has put words into the children’s mouths. It is either deliberate behaviour arising from malice, or beyond her control because of psychological problems. A strong attack was mounted on the mother’s credit by both the father and the child’s representative claiming that she was so antipathetic towards the father that this had led her to make an untruthful allegation that the father had been abusing the child.
64.The mother says she believes that the father has been sexually abusing at least one of the twins, [WB], She says that she believes that because of what the children have told her, and from her observations of the children’s disturbed behaviour.
65.Many of the things she has observed have been observed by third parties. Some of these are members of her family and might be thought to be biased as a result, but the behavioural problems have been seen by independent third parties. The children have been significantly disturbed. They have made statements that directly say that their “bottoms” have had something happen to them when they have been in the company of their father. They have said that he puts toys in their bottoms.
…
67.In analysing her evidence it is necessary to separate the mother’s subjective opinions from her accuracy and truthfulness as a reporter of events. Any reporting, even of “objective” events may be subject to unintended error “Subjective” matters have an even greater opportunity for interpretation. It is clear from the history of the relationship that there has been a great deal of emotion which may well have impinged on the mother’s opinions of the father’s behaviour. She has also had counselling in relation to domestic violence, and analyses her past in that conceptual framework which leads to certain events being in her mind given certain significance that other’s might not give them.
68.In terms of her reporting what the children have said to her and done however my impression is that she has conscientiously tried to report what the children have said to her and what she has observed. Her evidence was consistent over a long period with a lot of different matters being discussed.
69.…If she is not motivated by some disorder, as the psychiatrists seem to indicate, then the reason for her adoption of her stance may well be that what she is reporting as to the children’s behaviour, statements, physical condition and health, is accurate, and that she is doing what she sees as her duty to do everything she can to protect the children from harm.
…
74.During the hearing before me the mother was very extensively cross-examined by both counsel for the father and counsel for the child’s representative, and herself had to cross-examine witnesses. Her demeanour during this lengthy process was very composed, although she did display emotion at one stage where she pointed out to counsel for the child’s representative, the same counsel who had asked the court to take the children from her care and supervise her contact with them during the adjournment period, the pressures she had been under. Justice Jerrard noted her great patience with the children in the tapes.
…
80.It is the mother’s case that there is a significant difference between the twins in what they have told her, and how they have behaved in relation to their father. She says that it is [WB] who has made the complaints and whose behaviour is the most disturbed. In exhibit 11 during the conversation the mother is having with the twins about “bottom checks” [WB] says “only on me” when the mother says “You told me that [the father] did a bottom check on both of you.”
81.There is other evidence which suggests that this is so. The tape recordings which the mother made of the children having telephone contact with the father shows that there is a resistance by [WB] to interaction with his father. In one of the taped conversations it is only [WJ] who will speak to the father. He is sent by the father to get [WB] to come to the phone to talk to him. He returns and says “I don’t know why but my brother doesn’t wish to talk to you.”
…
84.A strong attack was mounted on the mother’s credit by both the father and the child’s representative claiming that she was so antipathetic towards the father that this had led her to make an untruthful allegation that the father had been abusing the child. It was put to the wife that she interrogates the children, puts words into their mouth and gets cross if they don’t say what she wanted them to say.
85.There were tapes of the mother questioning the children. Exhibit 11 for example has the mother questioning [WB] saying:
“What on earth are you talking about [WB], I don’t understand any of it. Explain it to me darling. Come on explain it to me. Tell me the truth and explain it to me”
86.If finishes with the mother saying:
“[WB], [WB], Unless you tell Mummy the truth I can’t help you, sorry, Get dressed please.”
87.It is just as possible to interpret her behaviour as a well-meaning effort (but forensically unfortunate) to get material to prove what the children said to her spontaneously. It is not a picture of a mother “brainwashing” the children and getting cross when they do not comply. It is just as possible to see her final impatience accompanied by statements that if they can’t tell her what they said she cannot help them, as being the actions of a genuinely concerned mother who is trying to get evidence to prove to third parties what she has heard the children spontaneously say to her.
…
89.Any reporting, even of “objective” events may be subject to unintended error “Subjective” matters have an even greater opportunity for interpretation. It is clear from the history of the relationship that there has been a great deal of emotion which may well have impinged on the mother’s opinions of the father’s behaviour, however in terms of her reporting occurrences, what the children have actually said to her and done, my impression is that she has conscientiously tried to report what the children have said to her and what she has observed. The children have made disclosures to others than the mother and her family.
90.The mother is intelligent. If she was concocting a story which she would then coach the children to repeat, the nature of the allegation of the toys and the fire engine (which would be expected to leave traces) in particular would be a surprising choice. It is also difficult to see how, given the closeness of the identical twins, she could bring about the different behaviour of the twins which has been referred to above. To coach [WJ] for example to speak of his father not putting toys into “his” bottom when he was at [Dr D’s] surgery to fit an invented scenario of [WB] being the only child who was being abused; to coach [WB] to not want to see his father but not to have [WJ] affected by the same procedure seems to be unlikely.
In addition to the above paragraphs, as seen earlier, her Honour also dealt at some length with medical evidence, particularly the examination of Dr D performed after the decision of Jerrard J, and the evidence of a number of medical practitioners who had seen the mother.
Our examination of the relevant evidence and relevant passages from her Honour’s judgment has persuaded us that overall the complaint by the father that the trial Judge made no findings in relation to allegations subsequent to the decision of Jerrard J is not maintainable, although it is again true that her Honour has dealt with a great body of evidence by reference, sometimes tangential reference, in broadly expressed conclusions. While this manner of dealing with the evidence may leave a reader of the judgment wondering just how her Honour has viewed particular passages of the evidence, again it does not necessarily mean that the path of her Honour’s reasoning to her conclusion is not discernible or that she cannot be seen to have taken account of an important body of evidence. We will return shortly to the issue of the adequacy of her Honour’s reasons.
Finally, in relation to the evidence which was before her Honour, it was submitted in support of the father’s appeal that much of the expert evidence which was before her Honour had been prepared on the basis that the father had already been found by a Judge not to have abused the children. We consider that the submissions as to this point on behalf of the mother (at paragraph 20) to the effect that:
(a)no request to adjourn the hearing was made by Counsel for the father;
(b)the witnesses [Dr C], [Dr D], [W], [Ms B] and [Dr V] were cross-examined by Counsel for the father at the hearing before the trial Judge;
(c)any basis upon which the experts proceeded favoured the father and certainly was not adverse to his interests in any way.
have weight and that there is no merit in this argument for the father.

The adequacy of Lawrie J’s reasons

A further matter raised by the father’s grounds of appeal which was the subject of significant emphasis in his Counsel’s oral submissions to us, was the adequacy of Lawrie J’s reasons.
A trial Judge’s reasons for decision will be inadequate if the appeal court cannot ascertain the reasoning upon which the decision was based (see Bennett v Bennett (1991) FLC 92-191 and the authorities there referred to).
We earlier set out a relatively detailed analysis of the structure and content of her Honour’s reasons for judgment. In our view the path of reasoning which led her Honour to conclude that there would be an unacceptable risk of abuse to the children at the hands of the father unless their contact with him was supervised, is clear from that analysis.
Findings by her Honour relevant to the important question of unacceptable risk include:
33.This is not to say that I am comfortably satisfied and can make a finding that this intrusion of something into the children's anuses has actually occurred, rather that I would not, as his Honour did, exclude as a real possibility, that the children's descriptions do, however inaccurately, refer to something which has actually occurred to them.
34.There was no dispute that the children had had some anal bleeding....
...
47.I think it most likely that the children do not and did not suffer from constipation just as the mother has always maintained and that that was not the explanation for the bleeding.
48.I would also not exclude the possibility that they have been exposed to their father masturbating and that they have attempted to describe that by saying that he punched himself in the genitals....
49.It is also possible that the children have had access to pornography at the father's house where it is kept “on a fairly high shelf” in an unlocked cupboard which their elder brother says that they could climb up to.
As these and earlier quotations of her Honour’s reasons disclose, in addressing the issue of “sexual abuse”, her Honour considered questions of:
·the wife’s motivation;
·the husband’s explanation of constipation;
·the husband’s credit;
·indirectly, as discussed, the evidence of statements made by the children;
·medical evidence; and
·the evidence of Ms KM from the Department of Children’s Services.
In considering the sufficiency of her Honour’s reasons, it must be borne in mind in our view that the applications before her Honour related to parenting orders for residence and contact. The issue of sexual abuse was perhaps the most significant part of that investigation but not the only part. In Findlay and Boniface (unreported, [2000] FamCA 676) the Full Court of this Court said:
109.… Her Honour’s obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the relevant matters referred to in s 68F(2) of the Act, which of those proposals would be more likely to advance the child’s best interests, which she was required to regard as the paramount consideration. Her further obligation was to give adequate reasons to enable the parties, and any appellate court called upon to review her decision, to understand how she arrived at her decision and to demonstrate that in arriving at it she did indeed regard the child’s best interests as paramount and did consider the relevant matters arising under s 68F(2). …
Having regard to this statement by the Full Court and to the authorities we refer to below, we do not consider her Honour’s reasons to be inadequate:
It is important to guard against too zealous an application of the requirement to give reasons, particularly in circumstances where it is argued that inadequacy in the reasons lies in the failure to make findings of fact leading to a finding of a material or an ultimate fact: see Soulemezis per Mahoney JA.
(A & J (1995) FLC 92-619 at 82,232)
… A fact is found in a particular case if the Judge is satisfied that it is so.… The determination of facts is assumed to be objective. But it would be to misunderstand the basis of a decision, and in particular decisions in matters of assessment, weight and the like, to assume that decisions can always, or perhaps ordinarily, be justified by objective rather than subjective consideration. And, if such be true of the reasoning process, it is, in my opinion, a mistake to conclude that a Judge should or can set forth the reasoning process he has followed from one fact to another.
(Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 274, per Mahoney JA)
The touchstone of ability to understand why the decision was made does not call for reference to all the evidence in the case, or for resolution of all conflicts of fact. Nor does it call for explicit description of every step in a chain of reasoning; indeed, in the decision-making process there are often judgmental steps which can only be stated without elaboration…
(Athens & Anor v Randwick City Council [2002] NSWCA 83 at [16] per Giles JA)

The principles governing Lawrie J’s decision

It is understandable that the father may feel aggrieved and perplexed by the course of these proceedings.
However it has to be borne in mind that the fact that the Court cannot confidently make a finding that sexual abuse has occurred in a case where such an allegation is raised, will not in many cases be the end of the matter. In all cases involving the arrangements for a child’s future residence or contact with the parent with whom he or she does not live, the Court has to determine what arrangement is in the best interests of the child. In determining this question the Court will in many cases have to determine whether, even though the evidence does not support a finding that sexual abuse has occurred, there is nevertheless a risk of sexual abuse occurring if a residence, contact or unsupervised contact order is made in favour of a particular parent and whether any such risk is of such a magnitude that it can be said to be unacceptable.
This approach was laid down by the High Court in its decision in M and M (1988) FLC 91-979. At the commencement of her judgment in the present case Lawrie J quoted in part from that judgment of the High Court, and then went on to apply correctly, in our view, the principles or approach mandated by the High Court. It may be of assistance if we in turn set out the more salient and presently relevant passages from the High Court judgment (at 77,080-77,081):
The basic flaw in the appellant's argument is to identify the allegation of sexual abuse as the paramount issue for determination by the Court. In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to “regard the welfare of the child as the paramount consideration”… The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. …
… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters `reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC ¶91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In the present case Gun J. was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.

In the written submissions to us Counsel for the mother drew our attention to a significant body of evidence which supports her Honour’s conclusion that there was an unacceptable risk to the children if they were to have unsupervised contact with the father. Against the background of the observations of the High Court in M and M, we consider it useful to set out Counsel’s summary of that evidence (at paragraph 11 of the submissions):
(a)the mother’s evidence:
(i)as to the complaints made to her by the children over a period of time that the father had inserted an object into their bottoms;
(ii)as to the behaviours of the children she observed (and which had been observed by others);
(iii)that the children had not suffered from constipation;
(b)[Dr C’s] evidence:
(i)the statement that “[the father] had put cars in my bottom” was considered by her to be a fairly specific disclosure of sexual abuse;
(ii)whilst it is a not uncommon finding in children to have little tiny anal tears or fissures, this is normally in the context of passing large stool or firm stool;
(c)that of [Dr D] (the children’s treating medical practitioner) that:
(i)on an occasion when the child [WB] had complained to the mother of having a sore bottom and an examination had revealed that there were three small splits about 2-3 milimetres long radiating out from the anus (the splits meaning that the anus had been stretched enough that it’s actually torn the skin), the child said to him “[the father] did not put any toys in his bottom this time”
(ii)the children had never been presented to him by the mother with a complaint of constipation;
(iii)when the mother had mentioned to him that on times when [WB] has come home from his father the father had said that he was constipated, all his examinations of [WB’s] abdomen have never revealed any large amount of faeces in the bowel (this being able to be felt through the tummy);
(iv)that the possible causes of anal tears of which he was aware were: large hard bowel motions and insertion of foreign object;
(d)the father’s evidence that he continued, after the hearing in November 2001, to have the children sleep with him in a “mass” bed;
(e)the evidence of [Ms KM] from the Department of Families that;
(i)whilst she was unable to confirm or dismiss that sexual abuse of the children by the father had occurred, there were indicators and contra-indicators that sexual abuse may have occurred;
(ii)the indicators that something of the nature of sexual abuse may have occurred were that: the children made clear disclosures to a range of people and that they didn’t appear, obviously, to have been coached by the mother or any other person; they were anecdotally displaying sexualised behaviours that were inappropriate for their ages and what would (not) normally be expected of children of their ages;
(iii)her recommendation or outcome of the assessment was that she suggested supervision of contact to address any further risk of offending if sexual abuse was happening.

Conclusion

We are thus satisfied that, and contrary to the assertions contained in the father’s grounds of appeal, there was evidence to support her Honour’s conclusion that unsupervised contact with the father would pose an unacceptable risk to the children. We have also concluded for the reasons given earlier that it was open to her Honour both to rely on evidence given before Jerrard J and also to reach a different conclusion from that reached by his Honour. We have not been persuaded that her Honour failed to have regard to any relevant evidence, or failed to give adequate reasons for her decision, or that she otherwise erred in any way which would justify our interference with her discretionary decision. This case can perhaps be seen as providing a useful illustration of the principle that in residence and contact cases different Judges may reach different conclusions on the same evidence, without attracting appellate interference.

Authorities relied on by the father

While our judgment in this appeal was still reserved, the father who is now apparently acting for himself wrote to the Appeal Registrar saying among other things:
It has come to my attention that there have been a few decisions on appeal handed down recently which have dealt specifically with the issue of alleged sexual abuse of the children by the father.
These decisions include the following:-
1.Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192;
2.V & R being Court file number NA 21 of 2004 the Judgment for which was handed down on the 25^th of November, 2004;
3.TF & JF & Children’s Representative [(2005) FLC 93-227] being Court file number NA 665 (sic-semble 65) of 2004 the Judgment for which was handed down on the 24^th of May, 2005.
I ask that this letter be brought to the attention of the Full Court in dealing with my Appeal given that Judgment has not yet been handed down and these cases would seem to be relevant to my matter.
We understand that the legal representatives of the mother did not wish to put anything to the Court by way of response to this correspondence from the father.
Because the father has not drawn our attention to any particular passages in any of the three decisions to which he has referred us, it is difficult for us to comment to any great extent on the assistance which any of those decisions might provide to the father in the present case. However we are able to make the following observations.
The effect of the judgment in Re W is adequately summarised in paragraph 52 of that judgment where the Full Court said:
52. We trust it is abundantly clear from the matters discussed above that the trial Judge's positive finding that the husband abused G was unsafe and ought not be allowed to stand. At its highest the evidence ought properly have left the Court with a lingering concern that something untoward might have happened. This being so, it is necessary to remit the matter to a judge at first instance to determine what if any arrangements for supervised contact are appropriate for these children absent such a positive finding of abuse.
In the present case, Lawrie J made it clear in paragraph 33 of her judgment (see paragraphs 27 and 67 above) that she could not make a positive finding that the father had abused one or both of the children. Rather, as she also indicated in paragraph 33, and then said in paragraph 99 of her judgment she could “not exclude as a real possibility that something inappropriate had happened to the boys at the hands of the father.” She therefore concluded that supervision of their contact with the father was necessary “as there is an unacceptable risk of abuse if it is unsupervised.”
Thus, her Honour clearly had, in the words of the Full Court in Re W, “a lingering concern that something untoward might have happened,” which led her to conclude that supervised contact was the appropriate course as the Full Court suggested was appropriate in Re W. (Compare also the observations of the High Court in the two concluding paragraphs from its judgment in M and M quoted in paragraph 81 above).
In V & R (unreported, [2004] FamCA 1081) the trial Judge found that the children had been sexually abused but was unable to determine the identity of the perpetrator and made no finding implicating the father. Nevertheless, he ordered that there should be no contact between the father and the children. The Full Court set aside the trial Judge’s order, but ordered supervised contact pending a review of the contact arrangements after 12 months. The issue in V & R, being whether there should be supervised contact or no contact, was quite different to the issues in the present case. We therefore do not see that case as being of assistance to the father in this appeal.
In TF & JF & Children’s Representative (2005) FLC 93-227 the trial Judge found that there would be an unacceptable risk of sexual abuse if the children were to have unsupervised contact with the father and that there would be an unacceptable risk of emotional and psychological harm if the children were to have supervised contact with the father. Accordingly, the trial Judge ordered that there should be no contact. The Full Court set aside the orders which provided for no contact, and instead made orders for supervised contact. Again in that case, the issue was whether there should be supervised contact or no contact. That is not the issue in the present case, and thus again we see that case as being of no assistance to the father in this appeal.

Costs of the appeal

Although the respondent mother sought a costs order in her favour if the appeal was to be dismissed, we are not persuaded that in the unusual circumstances of this case, a costs order would be justified.

Orders

That the appeal be dismissed.
That there be no order as to costs.

I certify that the preceding 86 paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate