FAMILY COURT OF AUSTRALIA
| JOHNSON & PAGE | [2007] FamCA 1235 |
| FAMILY LAW - APPEAL – PARENTING ORDERS –ALLEGATIONS OF UNACCEPTABLE RISK OF SEXUAL ABUSE – ONUS AND STANDARD OF PROOF - Where trial Judge found no unacceptable risk of sexual abuse when ordering child spend unsupervised time with father - Whether trial Judge had applied correct legal principles in determining the question of unacceptable risk – Whether trial Judge erred in failing to give adequate reasons in determining the child would not be exposed to an unacceptable risk in the father’s care – Discussion of principles in M and M (1988) 166 CLR 69 – Whether s 140 of Evidence Act1995 (Cth) applies – Whether trial Judge applied excessively high test - Trial Judge applied correct standard and onus of proof where no finding of actual abuse was sought. FAMILY LAW - APPEAL – INJUNCTION RESTRAINING NON-PARTY – Injunction sought by independent children’s lawyer at conclusion of trial - Where mother’s new husband restrained from certain activities with the child - Where no allegations of abuse made against mother’s new husband - Consideration of exercise of discretion under s 68B – Whether adequate foundation for granting of injunction – Consideration of evidence required to dissolve injunction - Whether trial Judge’s discretion miscarried – Error by trial Judge established – Appeal allowed. FAMILY LAW - COSTS – Where parties applied for certificates under Federal Proceedings (Costs) Act 1981 (Cth) – Where mother’s appeal against trial Judge’s finding of no unacceptable risk was wholly unsuccessful – Mother ordered to pay two-thirds of father’s costs – Where independent children’s lawyer sought injunction - No order for independent children’s lawyer’s costs. |
| Evidence Act1995 (Cth) - Part 4.1, s 140, s 190 Bennett and Bennett (1991) FLC 92-191 Fogarty, J, ‘Unacceptable risk – A return to basics’, (2006) 20 Australian Journal of Family Law, 249 |
| APPELLANT: | Ms Johnson |
| RESPONDENT: | Mr Page |
| INDEPENDENT CHILDREN’S LAWYER: | Loders Lawyers |
| FILE NUMBER: | SYF | 4309 | of | 2002 |
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- Johnson & Page [2007] FamCA 1235
- Case
- [2007] FamCA 1235
- Decision Date
CaseChat Overview and Summary
The Full Court of the Family Court of Australia heard an appeal concerning parenting orders made by a trial judge. The primary dispute involved allegations of unacceptable risk of sexual abuse to a child when spending unsupervised time with the father. A secondary issue arose from an injunction sought by the independent children's lawyer at the conclusion of the trial, which restrained the mother's new husband from certain activities with the child, despite no allegations of abuse being made against him.
The court was required to determine whether the trial judge had applied the correct legal principles in assessing the question of unacceptable risk of sexual abuse. Specifically, the appeal questioned whether the trial judge erred in failing to provide adequate reasons for concluding that the child would not be exposed to an unacceptable risk in the father's care. Furthermore, the court considered whether the trial judge's discretion miscarried in granting an injunction against the mother's new husband, and if there was an adequate foundation for such an order. The court also addressed the application of section 140 of the *Evidence Act 1995* (Cth) and whether an excessively high test had been applied.
The Full Court clarified that the trial judge applied the correct standard and onus of proof, particularly as no finding of actual abuse was sought. The court emphasised that the notion of "unacceptable risk" requires a qualitative analysis, focusing on the potential magnitude of harm to the child, rather than a mere counting of factors favouring or opposing contact. The court reiterated that while a finding of sexual abuse on the balance of probabilities is powerful, its absence does not preclude a finding of unacceptable risk. The court found that the trial judge had erred in granting the injunction against the mother's new husband, as there was an insufficient foundation for its exercise of discretion, and allowed the appeal in relation to this aspect. The mother's appeal against the finding of no unacceptable risk was wholly unsuccessful.
Regarding costs, the mother was ordered to pay two-thirds of the father's costs, as her appeal on the unacceptable risk issue was unsuccessful. No order was made for the independent children's lawyer's costs.
The court was required to determine whether the trial judge had applied the correct legal principles in assessing the question of unacceptable risk of sexual abuse. Specifically, the appeal questioned whether the trial judge erred in failing to provide adequate reasons for concluding that the child would not be exposed to an unacceptable risk in the father's care. Furthermore, the court considered whether the trial judge's discretion miscarried in granting an injunction against the mother's new husband, and if there was an adequate foundation for such an order. The court also addressed the application of section 140 of the *Evidence Act 1995* (Cth) and whether an excessively high test had been applied.
The Full Court clarified that the trial judge applied the correct standard and onus of proof, particularly as no finding of actual abuse was sought. The court emphasised that the notion of "unacceptable risk" requires a qualitative analysis, focusing on the potential magnitude of harm to the child, rather than a mere counting of factors favouring or opposing contact. The court reiterated that while a finding of sexual abuse on the balance of probabilities is powerful, its absence does not preclude a finding of unacceptable risk. The court found that the trial judge had erred in granting the injunction against the mother's new husband, as there was an insufficient foundation for its exercise of discretion, and allowed the appeal in relation to this aspect. The mother's appeal against the finding of no unacceptable risk was wholly unsuccessful.
Regarding costs, the mother was ordered to pay two-thirds of the father's costs, as her appeal on the unacceptable risk issue was unsuccessful. No order was made for the independent children's lawyer's costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows: One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration. Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said: “Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area. Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘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’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.” If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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