Johnson & Page
[2007] FamCA 1235
•18 October 2007
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 |
| APPEAL NUMBER: | EA | 8 | of | 2007 |
| DATE DELIVERED: | 18 October 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | May, Boland, Stevenson JJ |
| HEARING DATE: | 4 May 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 December 2006 |
| LOWER COURT MNC: | [2006] FamCA 1386 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bell with Ms Leis |
| SOLICITOR FOR THE APPELLANT: | The Argyle Partnership |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | Kydon Segal Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Dura |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Loders Lawyers |
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Johnson & Page.
Orders
That the appeal be allowed in part.
That Order 10 of the orders made by the Honourable Justice Rose on 22 December 2006 be discharged.
That the mother pay two-thirds of the father’s costs of the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
That there be no order for the payment of the independent children’s lawyer’s costs of the appeal.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 8 of 2007
File Number: SYF 4309 of 2002
| Ms Johnson |
Appellant
And
| Mr Page |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the mother against a number of parenting orders made under Part VII of the Family Law Act 1975 (Cth) (“the Act”) by Rose J on 22 December 2006 in respect of the parties’ only child L. L was aged six years at the date of the hearing before the trial Judge. The father resisted the mother’s appeal.
At trial the mother sought orders that the father spend no time with the child on the basis that unsupervised time with the father exposed the child to an unacceptable risk of sexual abuse. The trial Judge found no unacceptable risk of abuse, and made orders for a gradually increasing regime of time for the child to spend with the father during school terms, commencing with four supervised periods of day only contact each alternate weekend, and by Term 2 2007, for unsupervised alternate weekend time, as well as school holiday periods and other special occasions.
Before the trial Judge, the independent children’s lawyer proposed orders for the father to spend unsupervised time with L, and that the mother be restrained from permitting her husband, Mr B from carrying out certain activities such as bathing, showering or assisting with toileting and dressing the child.
After the making of the orders, an application by the mother was made to the trial Judge who, on 15 March 2007, expedited the appeal and stayed the relevant parenting orders the subject of the appeal so far as those orders provided for unsupervised time by the father with the child.
Before us the mother did not rely on the grounds set out in her Notice of Appeal, but rather sought leave (which was granted unopposed) to rely on the grounds of appeal set out in her pre-argument statement. The mother also relied on her pre-argument statement in lieu of a summary of argument.
The mother’s appeal focused on three areas of challenge to the trial Judge’s orders. The mother’s counsel asserted the trial Judge:
· had not applied correct legal principles in determining the question of unacceptable risk;
· had failed to give adequate reasons in determining the child would not be exposed to an unacceptable risk in the father’s care; and
· had granted an injunction against the mother restraining Mr B’s conduct without proper foundation.
Notwithstanding the mother’s counsel asserted lack of adequate reasons by the trial Judge, he submitted that we should be able to re-exercise the discretion and make orders for the father to spend supervised time with the child, and also discharge the injunction. In the alternate, he submitted in the event we found the trial Judge’s reasons inadequate, that there would regrettably need to be a retrial.
Both the father and the independent children’s lawyer submitted no error had been made by the trial Judge, and that the trial Judge’s reasons, when read as a whole, were adequate.
Background history
The relevant background to this matter is set out in the trial Judge’s reasons and is not controversial.
The parties cohabited for two short periods, namely from October to December 1999 and May 2000 until November of that year.
At the date of the trial the mother was aged 40 years and engaged in home duties. The father was aged 37 years and was self-employed as a mortgage broker. He was in an intimate relationship with Ms D although they were not cohabiting on a full time basis.
L was born in September 2000 and was only aged one and a half months when the parties separated. She lived primarily with the mother after separation.
The mother and Mr B commenced cohabitation in January 2004. They married in July 2004. There is one child of that marriage, A, who was born in November 2004.
At the date of the hearing the father was living on a temporary basis with his parents, and brother and sister in law in the Eastern suburbs. He owned a home unit which was leased, but which he planned to re-occupy.
The mother, Mr B, L and A lived on the lower North Shore.
Interim orders concerning L were made in the Local Court, Family Matters on 26 July 2002. Those orders were suspended by a Registrar of the Court on 27 September 2002, and a regime of daytime contact (as it was then described in the legislation prior to the enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amending Act”)) on a two week-end out of three cycle, as well as one and a half hours mid week contact each Wednesday, was ordered.
On 5 March 2003 final orders were made by consent in similar terms to the interim orders. The final orders further provided however, on L attaining three years, that the father have contact with her each alternate weekend, each Wednesday morning for one and a half hours and for part of Greek Easter. The orders further provided for more extensive contact on L attaining the age of five years.
In 2005, or as noted by the trial Judge, perhaps earlier, L complained to the mother on return from contact visits to the father that she had a “sore front bottom”. The child had suffered from and was treated for vaginal infections.
On 22 October 2004 the mother took L to Dr G, a general practitioner. On examination of L he found “no sign of trauma”.
On 21 November 2005 the father, accompanied by his brother, attended at the mother’s home. There had been a prior arrangement that the father would have holiday contact with L on the Gold Coast, Queensland. At that time the mother asserted the child did not want to travel with the father. Mr B told the father it was the mother’s view L should not be compelled to travel with him. The father then physically assaulted Mr B, and was restrained by his brother. The mother and L were present in the home when the father arrived. The father took the child for a short period, but then returned her to the mother. L was crying and said she would go on the holiday. The mother subsequently arranged to accompany the child to the Gold Coast for the holiday period.
On 22 November 2005 an interim apprehended violence order was made against the father in the Local Court, North Sydney for the protection of the mother and Mr B. Subsequently, the father pleaded guilty to a charge of common assault arising out of the incident.
While on holiday on the Gold Coast, after returning from the father’s hotel room, the mother asserted the child was behaving in a precocious manner. In response to a question from the mother about whether the father had touched her, the child made a repeated jabbing motion towards her lap. Later the mother reported the child said the father had pinched her “gently all over and sometimes he pinches my bottom”. On the last day of the holiday, the mother said the child reported the father had been touching her and demonstrated by putting her hand down the back of the mother’s pants and pushing her finger into the mother’s bottom.
On the mother’s return from the Gold Coast, she arranged an appointment with Dr G. Before the appointment L allegedly demonstrated to the mother what the father had done to her by pulling her buttocks apart whilst bending forward saying “[h]e put his penis there.” The child was asserted to have said he engaged in similar behaviour on previous occasions. Dr G referred L to the Child Sexual Unit at Royal North Shore Hospital, and made a notification to the Department of Community Services (“DoCS”)
On 2 December 2005 L was interviewed by the Joint Investigation Response Team (“JIRT”). L was reported as making further disclosures, but in different terms to the previous disclosures. L was recorded as having said the father “‘sticks sharp knives, pointy sticks’ and penis in her vagina in public.” The JIRT report (“Magellan Report”) also contained the following:
[L] stated that her father touches her vagina with his hands and he does it because he wants everyone to laugh at her. According to [L] her father ‘he ripped my bottom apart’ and ‘he turned me around and then showed it to everybody’.
[L] stated that during their trip to Queensland her father touched her vagina with his penis wherever he took her during the day and night. (Magellan Report page 2)
The father denied the allegations reported by L.
On 9 December 2005 a Registrar suspended the father’s contact orders.
On 23 December 2005 interim orders were made in favour of the father for contact on two days each week for dates between December 2005 to February 2006 inclusive. This contact was to be supervised by the father’s brother and sister in law or his parents. Associate Professor Quadrio was appointed as the child expert for the purpose of preparing a report.
The trial Judge’s reasons for judgment
His Honour commenced his reasons by setting out the parties’ competing applications, the historical background, and the earlier orders in the proceedings. He thereafter referred to relevant legal principles under the Act in determining a parenting case, and clearly set out the manner in which he intended to deal with disputed items of fact (paragraph 43). His Honour thereafter considered the evidence relevant to the factors identified in s 60CC(3).
It is unnecessary for us to set out in detail the totality of his Honour’s findings in respect of each factor under s 60CC(3) where these findings are not relevant to the grounds of appeal.
In dealing with the nature of the relationship of the child with each of the parties and other persons his Honour said:
I accept Professor Quadrio’s evidence unless otherwise stated. Her evidence was generally professional and well-considered. (paragraph 48)
The trial Judge then went on to make findings about the child’s relationship with each of the parties. His Honour said:
49.There is no issue that the child has a loving relationship with each of the parties. Although, so far as the father is concerned there are inherent complexities in that relationship. Exhibit 1 contains Professor Quadrio’s conclusion that:
“[L] has a complex relationship with her father. Predominantly, she seems to have a very warm and affectionate bond with him but there is also some guardedness.”
50.I accept Professor Quadrio’s evidence in that regard and make findings accordingly. However, Professor Quadrio then proceeded to express the view that the “guardedness” to which she made reference:
“…could be as a result of some experience of inappropriate touching or equally could be the result of her having been coached to believe that some abuse took place.”
51.Professor Quadrio then expressed her impression “that [L’s] disclosures were not authentic and were probably related to some form of coaching”. That “impression” will be reviewed by me in the context of my findings on the evidence on the subject of whether there is an unacceptable risk of the child being sexually abused by the father having regard to past allegations and disclosures that were made. (paragraphs 49, 50 and 51)
In dealing with the child’s relationship with the paternal family, the trial Judge referred to Associate Professor Quadrio’s evidence, which was that L had “an important attachment to all the paternal family and they are very loving and appropriate with her and appear highly invested in her welfare.” His Honour accepted Associate Professor Quadrio’s evidence, “subject to the evidence of the mother that [the husband’s brother] may have made statements to or in the hearing of the child which could be taken as a means of undermining the child’s relationship with the mother perhaps in the context of the distressing disclosures of alleged abuse by the father of the child.” (paragraph 54)
In dealing with “the willingness and ability of each of the parties to facilitate and encourage a close and continuing relationship between the child and the other party” (paragraph 55), the trial Judge found the mother had demonstrated a “willingness and ability to facilitate and encourage the relationship” noting that her attitude had changed “once there had been a number of disclosures made to her by the child which could be interpreted as the father having sexually abused the child.”
The trial Judge was complimentary of the mother’s conduct in facilitating contact after the incident on 21 November 2005, noting that
...The mother’s actions of proceeding to accompany the child for the holiday with the father to Queensland, at expense to her, demonstrated a willingness and encouragement to facilitate time to be spent with the father that perhaps not many other parents in her situation would have shown, including the father. (paragraph 56)
In considering the likely effect of any change in the child’s circumstances, including the likely effect on the child of separation from the mother or any other person with whom she had been living, the trial Judge found that L was primarily attached to the mother. He also found a potential change in her circumstances would be if she spent periods of time with the father on an unsupervised basis, “...as well as for lengthier periods of time...” (paragraph 59) than those provided in the orders of 24 February 2006.
His Honour then said:
The assessment of the likely effect of [sic] the child in those circumstances will in the context of these proceedings largely, if not entirely depend upon my subsequent findings in respect of the allegation of unacceptable risk of child abuse by the father. (Paragraph 60)
Under the heading “Family violence and family violence orders” the trial Judge set out in paragraphs 71 to 110 the evidence relating to the incident on 21 November 2005 when the father assaulted Mr B. However, the matters discussed under this heading primarily relate to L’s asserted disclosures. We have already set out under “Background” an outline of some of the child’s disclosures referred to in the trial Judge’s reasons.
The trial Judge noted, after the allegations reported by the mother whilst she was on holiday with L on the Gold Coast, that the following day the child spent time with the father and on her return she was upset and said to the mother, “well he touched me again.” (Paragraph 86)
The trial Judge referred to Exhibit 9, the “Magellan Report” which concluded:
the Department of Community Services is unable to substantiate risk of sexual harm/injury on [L]. Therefore the Department does not have grounds to consider taking further action at this time and do not propose to intervene in Family Court proceedings. (paragraph 90)
His Honour then said:
91Critical evidence reaching conclusions as to whether or not there is an unacceptable risk of child abuse by the father has been the evidence of Professor Quadrio, a well qualified child expert and of substantial experience.
92.That evidence has been particularly important in view of the nature of the disclosures alleged to have been made by the child, especially during and subsequent to the Queensland holiday in November 2005, the child being an intelligent and articulate young girl, and the obvious distress that has been experienced by the mother in particular, not to mention all other relevant adults.
Thereafter the trial Judge set out material contained in Associate Professor Quadrio’s report, which he noted was not departed from by Associate Professor Quadrio during the course of her oral evidence.
The trial Judge then set out Associate Professor Quadrio’s conclusions in her report in relation to “the disclosures, their content and the manner in which they were given” as follows:
Given that [L] is an intelligent and extremely articulate child, the disclosures made during this assessment were inconsistent and at times made little sense, for example, knives and forks in her bottom. [original emphasis](paragraph 94)
The trial Judge further noted:
95.Professor Quadrio noted the very warm and affectionate bond with the father “but there is also some guardedness”. Professor Quadrio noted that it may be as a result of inappropriate touching but alternatively due to the child having been coached to believe that abuse actually occurred.
96.Professor Quadrio’s conclusion, although inferentially not an analytical one due to her phrase “it was my impression” was in the following terms:
“That [L’s] disclosures were not authentic and were probably related to some form of coaching.”[original emphasis]
97.Professor Quadrio raised as an issue whether or not the mother has had “over-stated concerns” regarding sexual abuse of the child and has tried to alienate the child from the father.
The trial Judge made findings that the mother had been “a sincere and truthful witness” and also made findings that she had not “...either coached the child or sought to alienate her from the father...” (paragraph 99)
The trial Judge then set out Associate Professor Quadrio’s opinion in relation to the allegations which was in the following terms:
The disclosures made to this assessor were not in keeping with her developmental abilities. She would be capable of identifying sexual abuse more accurately than she did. She made very explicit disclosures during this assessment but given her developmental capacity and excellent expressive language and intelligence it was surprising that there were bizarre allegations such as having knives and forks stuck in her bottom. [L] said this without emotion. These statements were tossed at the interviewer in a very casual way without appropriate affect. (paragraph 102)
His Honour then discussed Associate Professor Quadrio’s evidence relating to psychiatric treatment undertaken by Mr B concluding:
The evidence of Professor Quadrio and [Mr B] has not left me in any doubt that [Mr B] loves the child, that there is a loving relationship between them, and he is concerned for the child’s welfare. [Mr B] has been seeking appropriate medical advice and assistance in trying to overcome his emotional issues. (paragraph 107)
In dealing with the issue of L’s disclosure, which Associate Professor Quadrio had described as “rather bizarre”, about the father having stuck sharp objects such as knives and forks in her bottom, his Honour concluded that it was
a quantum leap to progress from the latter disturbing episode to in effect link [Mr B] with some form of child sexual abuse or otherwise an activity that has led to the child’s reference to “knives and forks in her bottom”. (Paragraph 108)
His Honour concluded:
...Indeed, other than raising “the question”, no evidence of any substance was given by Professor Quadrio to substantiate that possible linkage, nor was there other reliable evidence upon which I could make such a serious finding. (paragraph 108)
In his consideration of the issue of unacceptable risk of child sexual abuse by the father, the trial Judge referred to the “test” set out by the High Court in M and M (1988) 166 CLR 69 at 78; (1988) FLC 91-979 at 77,081. His Honour also referred to the analysis of cases dealing with unacceptable risk in a paper published by the Honourable John Fogarty A.M. (‘Unacceptable risk – A return to basics’, (2006) 20 Australian Journal of Family Law, 249).
As will become apparent later in our discussion, the essential challenge to his Honour’s reasons for judgment was directed to his treatment of the topic “unacceptable risk”. Accordingly, we think it important to set out in full the paragraphs of his Honour’s judgment the subject of criticism by the mother’s counsel. At paragraph 118 his Honour said:
With regard to one of the primary factual issues, namely whether or not there has been [our emphasis] an unacceptable risk of child sexual abuse by the father, the High Court has held in M v M that, inter alia, in reference to tests for defining risks:
“the courts have endeavoured, in their efforts to protect the child’s paramount interest, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child of parental access. To achieve a proper balance, the test is best expressed that a court would not grant custody or access to a parent if that custody or access will expose the child to an unacceptable risk of sexual abuse.” (Footnotes omitted).
His Honour summarised the task of a trial Judge in a case involving allegations of sexual abuse in paragraph 121 of his reasons saying, “Essentially, the trial judge has to determine whether or not there is a risk of child sexual abuse and if so whether that risk is unacceptable.” His Honour set out his conclusions in respect of unacceptable risk as follows:
122.I have concluded that a risk does exist but I am not satisfied there is an unacceptable risk. In approaching these difficult matters I must bear in mind the gravity of the allegations as such that I should be cautious in being satisfied on the balance of probabilities that the allegations have been established in view of s140(2)(a)-(c) of the Evidence Act 1995 (Cth).
123.As I have accepted the evidence of the mother that the statements in the nature of disclosures were made by the child, particularly the disclosure concerning touching during the November 2005 Queensland holiday, I find that the “risk” has been established. It is then a question of interpretation of the “risk” in the light of the balance of evidence in the face of the father’s denial for me to then conclude as to whether or not the “risk” is “unacceptable”.
124.I have accepted the evidence of Professor Quadrio regarding the level of intelligence and articulation of the child and that fortunately she is a child who has developed well. The child’s progress at school has been good. There is no evidence of disturbing behaviour. The child has a loving relationship with the parties and other relevant adults.
125.I have accepted Professor Quadrio’s conclusions that the disclosure by the child in terms of “knives and forks” to which earlier reference has been made and do not require reiteration are bizarre and not capable of rational explanation other than that the father has acted in that fashion, or the mother has coached or alienated the child, or that on some unexplained basis there is a linkage with [Mr B] concerning mental health issues and related actions that he has taken.
126.I accept Professor Quadrio’s evidence that there is nothing of substance in terms of the father’s conduct that somehow or other can be linked to the child’s description to which I have referred.
127.I have made findings that on the balance of probabilities the mother has not engaged in coaching or alienating conduct and [Mr B] cannot be held responsible for the strange and unexplained descriptions given by the child of alleged physical abuse.
128.Consequently, I find that the issue of “unacceptable risk” in terms of possible abuse by the father of the child has not been established on the balance of probabilities.
129.The evidence of the mother, which I accept, is that the child appeared to be settling down more in terms of supervised periods of time that have been spent by her with the father as well as members of his extended family. The mother spoke complimentary [sic] about the father’s sister-in-law and also his brother, with some reservation about him being sufficiently objective in carrying out a supervisory role. The latter is understandable.
130.However, there is no doubt that members of the paternal family love the child and enjoy her spending time with all of them. It is not credible to contemplate that any of them would permit something untoward or harmful taking place so far as the child’s safety and health are concerned.
Thereafter his Honour set out the orders he proposed to make in order that L should maintain a meaningful relationship with each of the parties. His Honour found it was appropriate to make a non-denigration order affecting both parties.
His Honour then turned to the injunction sought in the independent children’s lawyer’s minute of order affecting Mr B. His Honour said:
I have reluctantly determined that an injunction will be granted restraining the mother from permitting [Mr B] from engaging in certain activities with the child which might otherwise be part of a normal household which includes a small child. That should not be seen as criticism of [Mr B], but rather the reflection of a need to remove anxiety which the parties or either of them, may have due to [Mr B’s] past history of emotional issues, as well as a means of protecting him from any further insinuations or allegations. (paragraph 138)
In his Honour’s reasons, he said that the mother could have liberty to apply for further orders for the purpose of seeking to set aside, vary, or suspend the injunction.
Grounds of appeal
The mother’s eight amended grounds of appeal are set out in her counsel’s written submissions. Those grounds are as follows:
1.His Honour erred in failing to conduct a sufficient or any assessment of unacceptable risk of abuse, having made a finding of risk.
2.Further or alternately, his Honour erred as to the process required for determination of unacceptability of risk and the weighing and evaluation of evidence required for same.
3.His Honour erred in imposing on the mother an incorrect and excessive evidential burden to establish the risk was unacceptable or sufficiently so as to require contact to be supervised.
4.His Honour erred in being guided or unduly affected by a restrictive interpretation of Professor Quadrio’s Report to the effect that his discretion manifestly miscarried.
5.His Honour failed to weigh adequately the evidence of the parties and the expert and his Honour’s placement of undue weight on aspects of Professor Quadrio’s report and not others amounted to a failure of discretion and a failure to undertake the necessary task of evaluation of the unacceptability of the risk.
6.His Honour failed to adequately evaluate the risk or give adequate reasons including those that would make plain the manner in which his Honour proceeded from a finding of risk and an apparent exclusion of other relevant causes to an assessment that resulted in virtually no safeguards for the child.
7.His Honour’s discretion miscarried in granting an injunction restraining the mother’s partner engaging in certain activities.
8.The failure to find unacceptability of risk was against the evidence and weight of evidence.
Before us, the mother’s counsel noted the overlap between a number of the grounds, and argued the grounds in essentially the three areas identified by us in our introductory remarks. We find it convenient to deal with the grounds in these three broad areas.
Asserted failure to apply correct legal principles to the question of unacceptable risk (Grounds 1, 2, 3, 4 and 5)
The oral and written submissions
Counsel for the mother in his written submissions supporting grounds 1, 2 and 3 submitted that whilst the trial Judge had referred to the principles espoused by the High Court in M and M he had not followed those principles. Counsel submitted:
The distillation in paragraph 121 of the Reasons wrongly limits the necessary enquiry. If this submission does not find favour, (perhaps on the basis that paragraph 121 is merely prefatory or shorthand) then his Honour’s reasoning process is best found in paragraph 122.
It is necessary to observe that a finding of risk was made. Nevertheless, there does not appear to be any process of reasoning whereby the trial judge has actually weighed the material in support of the proposition that, having found the risk, it was either acceptable (and that of itself required clarification) or that for some identifiable reason it was not. It is unclear how it was assessed. For reasons agitated later the context does not suggest the risk was minimal or so minimal (if it was assessed) that it did not require any form of supervision even in the short term and particularly for a 5 year old girl who would not have the support of a sibling or any sympathetic person (subject to the observations made about relatives) likely to report to the mother. Experience indicates that affection others have for a child is not adequate protection particularly if they are aware the court has expressly discharged the requirement for supervision. (submissions, pp 2-3)
In support of amended ground 3 (that his Honour erred as to the process required for determination of unacceptability of risk and the weighing and evaluation of evidence required for same) counsel for the mother in his written submissions said
Paragraph 122 of the Reasons, supra confuses the exercise of the protection of a minor with the burden of proof sufficient for findings or with some other litigious process, possibly a civil action against the father for example although it is not conceded that even then Briginshaw would necessarily be imported. (submissions, p 3)
…
It is submitted that it must follow that it was necessary to clarify the risk so ascertained and weigh it in accordance with the guidance of the High Court and consider ways in which the risks could be minimised. The only circumstances in which it may be considered that this was weighed at trial if it was weighed at all was ultimately an analysis of whether or not, in the context of Briginshaw (clearly cited as an authority rendering the appellant’s task harder at trial), the mother established on the balance of probabilities certain propositions concerning the father. Perhaps this was related to whether certain findings could be positively made. (submissions, p 3)
This required the mother to establish at least on the balance of probabilities or more likely a higher test of balance of probabilities in the Briginshaw sense and in any event an excessively high test, actual wrongdoing by the respondent, thus misapplying the guidance of the High Court of Australia in M v M (1988) 166 CLR 69 at 78; FLC 91-979 at 77,081; 82 ALR 577. This also involved a misapplication of Evidence Act (Cth). (submissions, p 4)
…
It remains open that unacceptability was or would have been established on something less than a Briginshaw standard. Separate and additional to the Briginshaw issue is that whatever the standard ought to have been or even if his Honour was correct in that respect, the process of reasoning about making a finding does not resolve the ascertainment of unacceptability. (submissions, pp 4-5)
In his oral submissions to us, counsel for the mother confirmed the nub of his argument as follows:
MAY J: Mr Bell, just so that I can really understand this argument, your submission is that where his Honour said, in paragraph 128, that he found that:
the issue of unacceptable risk, in terms of possible abuse by the father of the child, has not been established on the balance of probabilities.
was an error. That’s your submission, isn’t it?
MR BELL:Yes, your Honour.
MAY J: Your submission is, as I understand it, that the error is that his Honour ought not to have applied the balance of probabilities test in making conclusions about unacceptable risk. Is that your - - -
MR BELL:Balance of probabilities, guarded by Briginshaw.
MAY J:Yes.
MR BELL: His Honour should not have elevated his task to this: “I find a risk. Is it unacceptable? I cannot conclude it is unacceptable unless it is established on the Briginshaw standard.”
MAY J: Yes, which we all understand to mean the balance of probabilities.
MR BELL: But Briginshaw takes into account the gravity of the allegation.
(transcript 4 May 2007 pp 6-7)
The mother’s counsel further submitted that the wording of paragraph 122 of the trial Judge’s reasons appeared to
import the Briginshaw notion as an impediment to the “proof” of unacceptability. It is submitted that it is not required by M v M and that for example with respect Re W 32 Fam LR 249 [semble Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192; (2004) 32 Fam LR 249] is wrong. [Footnotes omitted] (submissions p9)
Neither counsel for the father, or the independent children’s lawyer, directly addressed the issues raised by counsel for the mother in their written or oral submissions. Each emphasised, in their respective views, the nature of the challenge in this appeal was a challenge against a discretionary judgment, that the trial judge had followed correct principles, (see House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716) and the appeal should be dismissed. The father’s counsel submitted the trial Judge had “exercised the appropriate standard of proof”. (father’s submissions, paragraph 3.2 page 2)
Relevant legal principles
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard 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.
Discussion
We think it important to note that before the trial Judge counsel then appearing for the mother in his submissions rejected the proposition that it was necessary for the trial Judge to make a finding that the father had sexually abused the child, but rather he should make a finding that there was an unacceptable risk he could do so in the future. (Transcript 4 August 2006, p 412)
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
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]
Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter [2007] FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1 The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3 Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4 The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5 The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6 The onus of proof in reaching that conclusion is the ordinary civil standard.
7 But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary.
Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s 140 of the Evidence Act1995 (Cth) (“the Evidence Act”). Section 140 provides as follows:
Section 140
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
We think it useful at this point of our discussion to refer to the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 in discussing standard of proof
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …”
There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading. [footnotes omitted]
Although determined prior to the introduction of the Evidence Act the principles referred to by their Honours have been applied in decisions after the introduction of the Evidence Act (see Palmer v Dolman [2005] NSWCA 361. See also Odgers, S, Uniform Evidence Law, 7th ed, Lawbook Co., Sydney, 2006, at 673-674.)
We generally agree with Mr. Fogarty’s seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
We also agree with Mr Fogarty’s view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.
We note that the trial Judge in paragraph 122 of his reasons referred to s 140 (2)(a)–(c), not to Briginshaw. We are satisfied in that paragraph of his reasons his Honour was summarising, in a general way, the principles set out in M and M and the standard of proof relevant to a positive finding of sexual abuse.
We accept that some confusion may have arisen in this case because of the language used in paragraph 118 of his Honour’s reasons for judgment. For convenience, we repeat paragraph 118:
With regard to one of the primary factual issues, namely whether or not there has been an unacceptable risk of child sexual abuse by the father, the High Court has held in M v M that, inter alia, in reference to tests for defining risks:
“the courts have endeavoured, in their efforts to protect the child’s paramount interest, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child of parental access. To achieve a proper balance, the test is best expressed that a court would not grant custody or access to a parent if that custody or access will expose the child to an unacceptable risk of sexual abuse.” [Footnote omitted] [our emphasis]
As we have already recorded, it is clear from the submissions at trial that his Honour was not being asked to determine whether, in accordance with s 140 of the Evidence Act, the father had actually perpetrated abuse on L, but rather having regard to all the circumstances, including the past assertions of sexual abuse, there was an unacceptable risk in the future to the child if she spent unsupervised time with the father. In conducting that assessment it was relevant for the trial Judge to examine and evaluate all of the factors, including past occurrences, which bore on the question of unacceptable risk. However, notwithstanding the language in paragraph 118, we are satisfied that the task his Honour actually undertook was to examine all of the relevant evidence in assessing present and future unacceptable risk.
Whilst we note the mother’s counsel’s submissions about Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192, it is important to note the issue to be determined on appeal in that case was whether the trial Judge (Nicholson CJ) had applied a correct standard in determining whether the father had actually abused the child, and the Full Court did not need to address the standard to be applied to a finding of unacceptable risk. Hence we reject counsel’s submission referred to in paragraph 60 above.
We do not accept that the trial Judge rejected the mother’s position that there was an unacceptable risk because she had been required to satisfy an onus of proof applying an “excessively high test”. The onus of proof is not in doubt. It is the civil standard in accordance with s 140 of the Evidence Act. The evidence necessary to satisfy a finding of actual sexual abuse, as distinct from unacceptable risk, is accommodated by s 140(2)(c). The mother in this case, on her own counsel’s submission at trial, did not seek to have the trial Judge make findings she had satisfied such an onus in respect of actual sexual abuse of L by the father.
Before leaving this challenge to his Honour’s reasons, we now consider the mother’s counsel’s submissions on a number of sections of the Act and the Evidence Act. Reference was made by the mother's counsel to the effect of Division 12A inserted by the amending Act, vis-a-vis the provisions of the Evidence Act and in particular s 140 of the latter Act.
The mother's counsel submitted the trial Judge's reasoning should have included:
(vii)Whether in the process of consideration of s 140 of the Evidence Act his Honour did or did not consider the implications if any of s190 (1) of the Evidence Act and/or its notation that “matters related to child related proceedings (within the meaning of s69ZM of the Family Law Act 1975) [sic] dealt with by that Act.”
(viii)Whether or not the analysis of s140 was intended to convey any implications for s69ZV of the Family Law Act or for any reason played any part of [sic] the weight of evidence received.
(ix)Whether his Honour’s consideration of s 140 was guided by s72 of the Evidence Act concerning representations made by the child. (Appellant’s submissions page 9)
He also submitted:
…that this is a fundamental error and inconsistent with the guidance of M v M, which imported no such burden. It is added that s140 (2) (a)-(c) of the Evidence Act 1995 (Cth) imports no such requirement either. Further it follows even if unintended that on the reasoning s140 has been interpreted to override of [sic] limit s190 despite at least in its practical application if not in terms the manner in which objections were dealt with. Likewise in practical terms it imports an unintended gloss on s692V [semble s 69ZV]. (submissions page 4)
This case was heard after the introduction of Division 12A to the Act. An examination of the transcript reveals that the trial Judge did not take objections to affidavit material, and referred to Division 12A in his discussion with counsel. The trial was otherwise conducted in the same format as trials prior to the introduction of Division 12A as the case had been prepared for hearing prior to the introduction of procedures adopted for hearing of cases under the Less Adversarial Trial procedure now applied in children’s cases. His Honour did not indicate during the course of the hearing that he intended to apply s 69ZT(3).
To properly consider counsel's submissions it is necessary we set out s 69 ZM, s 69ZT and s 69ZV:
Section 69ZM
(1) This Division applies to proceedings that are wholly under this Part.
(2) This Division also applies to proceedings that are partly under this Part:
(a) to the extent that they are proceedings under this Part; and
(b) if the parties to the proceedings consent--to the extent that they are not proceedings under this Part.
(3) This Division also applies to any other proceedings between the parties that involve the court exercising jurisdiction under this Act and that arise from the breakdown of the parties' marital relationship, if the parties to the proceedings consent.
(4) Proceedings to which this Division applies are child‑related proceedings.
(5) Consent given for the purposes of paragraph (2)(b) or subsection (3) must be:
(a) free from coercion; and
(b) given in the form prescribed by the applicable Rules of Court.
(6) A party to proceedings may, with the leave of the court, revoke a consent given for the purposes of paragraph (2)(b) or subsection (3).
Section 69ZT
(1) These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5) Subsection (1) does not revive the operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
Section 69ZV
(1) This section applies if the court applies the law against hearsay under subsection 69ZT(2) to child‑related proceedings.
(2) Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible in the proceedings solely because of the law against hearsay.
(3) The court may give such weight (if any) as it thinks fit to evidence admitted under subsection (2).
(4) This section applies despite any other Act or rule of law.
(5) In this section:
“child” means a person under 18.
“representation” includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.
In cases where there is evidence that a child has been sexually abused and one party is asking for a positive finding, it is likely that a Judge will determine that it is appropriate to apply s69ZT(3) in which case there would be submissions required from the parties and a clear determination to that effect.
We do not accept that in this case the trial Judge gave inappropriate weight to any aspect of the evidence before him, rather his reasons read as a whole disclose that he gave careful weight to all relevant evidence, including the statements of L.
Although raised by counsel for the mother in his written submissions, we do not see any relevance in his reference to s 190 of the Evidence Act. However, s 140 of the Evidence Act remains relevant, that section being contained in Part 4.1 of the Evidence Act, and not excluded in child related proceedings by s 69ZT(1) of the Act.
Conclusion – onus of proof, standard of proof
We are satisfied his Honour correctly recorded the appropriate onus of proof which the mother bore. We are also satisfied that the trial Judge did not incorrectly elevate the standard of proof required to support a finding of unacceptable risk and that the grounds directed to incorrect or excessive evidential burden accordingly are not established.
Asserted failure to provide adequate reasons
Intermingled with the mother’s assertion that the trial Judge was in error in requiring an onus of proof of unacceptable risk to the Briginshaw standard, was the submission that the trial Judge had failed to give adequate reasons as to why he found no unacceptable risk of sexual abuse if the father spent unsupervised time with the child, or to discuss how “risk” to the child, which he found existed, could be minimised.
The necessity to provide adequate reasons is not in doubt. In Bennett and Bennett (1991) FLC 92-191 the Full Court considered that the test as to the adequacy of reasons propounded by Gray J in the passage appearing hereunder was a useful one and one which applies to discretionary judgments. The Court observed at 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
His Honour set out in detail the evidence relevant to the sexual abuse allegations (paragraphs 71-73, 84-90) as well as the relevant evidence of Associate Professor Quadrio (paragraphs 91-109). It is not submitted that the trial Judge’s recording of the relevant evidence of alleged sexual abuse failed to include any relevant material. It is however submitted that the child’s statement about “knives and forks” was misrepresented by Associate Professor Quadrio in the opinion section of her report, needed to be put in context, and assessed and compared with L’s other disclosures to her mother.
In Associate Professor Quadrio’s report she recorded that the mother reported a conversation with L when, after asking her a question, “L answered: ‘Nothing, because I don’t want to make you angry, he sticks sharp things in my bottom, it feels like knives and sticks and pencils’. L said it was ‘from behind so she didn’t see and she pretends she doesn’t know. Her description was patchy”.
Associate Professor Quadrio recorded her interview with L as follows:
…[h]owever she could think of lots of times when she was angry and volunteered: ‘When my dad used to stick sharp stuff into my bottom and having to go to places all the time like this and asked questions’. She has been asked ‘180 questions’.
Asked, when did daddy do that, [L] said: ‘When I went to visit daddy he did it, he still does it. Not when people are around like you’. What are the sharp things? ‘Like knives and forks and a stick, it was a stick from a tree, he had to pull parts off the tree’. Where did it happen? ‘At his house’. Was [C] there? ‘Mostly and mostly not’. Was [U] there? ‘Dad was awfully mean to [U], he said he would kill her if she went near me. This is the truth. He got angry with her and he broke up with her. She was nice, kind, except she was sad because my dad said he would kill her if she did something to me’. Like what? ‘If she saw me again. He was really angry with her but my mum saw so she told me don’t get cranky with me, I don’t be naughty’.
Associate Professor Quadrio set out her opinions on the allegations in her report as follows:
…
[L] is an extremely intelligent and very articulate child who is developing well. The disclosures she made to this assessor were not in keeping with her developmental abilities. She would be capable of identifying sexual abuse more accurately than she did. She made very explicit disclosures during this assessment but given her developmental capacity and excellent expressive language and intelligence it was surprising that there were bizarre allegations such as having knives and forks stuck in her bottom. [L] said this without emotion; these statements were tossed at the interviewer in a very casual way without appropriate affect. The impression was that [L] has either been coached to make these disclosures or, if there were some basis at the beginning, that she has very limited recollection of what actually happened and perhaps has been encouraged over time to elaborate her experience.
Initially I formed the view that this is an intelligent child who is complying with expectations that she make a disclosure but who does not bother to make this with any precision because she has little basis in direct experience. She would know the difference between a finger or a penis and a knife and a fork. Later when information from [Dr D] was available, it was of great concern to learn that [Mr B] has cut his penis with a knife and this raises the question of whether [L’s] mentioning a knife is in some way related to the stepfather’s sexual pathology.
We accept that there was a discrepancy in Associate Professor Quadrio’s report from her recording of L’s assertion to her that the sharp thing “was like knives and forks” and her conclusions on the allegations raised by L when she recorded “bizarre allegations such as having knives and forks stuck in her bottom”. However, L’s disclosure recorded in the Magellan Report (which was supplied to Associate Professor Quadrio) was that the father ‘sticks sharp knives, pointy sticks’ in her vagina.
Associate Professor Quadrio was asked during the course of her oral evidence by the trial Judge to clarify a number of aspects of her report including the opinions expressed on page 34 of her report which omitted the word “like”. (Transcript 3 August, 2006 pp 343 – 354). It is clear from the questions asked by the trial Judge and Associate Professor Quadrio’s oral evidence that there was no confusion about what the child actually said, and that Associate Professor Quadrio confirmed that the “description of knives and forks” was considered by her to be “bizarre” in the circumstances of the case.
Having regard to Fogarty J’s consideration in N and S of the types of questions which may be posed by a trial Judge dealing with unacceptable risk, as well as Warnick J’s discussion in Napier v Hepburn which we have set out at paragraph 67, it may have been useful for the trial Judge to have dealt with the all of the specific allegations. However in paragraph 91-93 of his reasons his Honour referred to the disclosures, and ultimately accepted the expert opinion of Associate Professor Quadrio about the nature of the disclosures.
We reject the submission of the mother’s counsel that the trial Judge failed to weigh the evidence of unacceptable risk. Reading the judgment as a whole we are satisfied that his Honour
·Did not (and was not requested by the mother’s counsel to make) a finding that the father had perpetrated sexual abuse on the child
·Found that the child had made statements implicating the father which evidence supported his finding there was “a risk”
·Examined whether the risk was “unacceptable” and found it was not by
- accepting Associate Professor Quadrio’s opinion’s about the child’s development which was inconsistent with sexual abuse having occurred
- accepting Associate Professor Quadrio’s opinion that the disclosures made by the child to her were not in keeping with her developmental abilities
- accepting Associate Professor Quadrio’s opinion that the child had been over questioned
- rejecting Associate Professor Quadrio’s possible explanation for the child’s behaviour being attributable to the mother
- finding no link between the child’s statement (“bizarre allegations such as having knives and forks stuck in her bottom”) and Mr B’s behaviour in cutting his penis with a knife.
- but accepting Associate Professor Quadrio’s opinion that the disclosure by the child “in terms of knives and forks” was “bizarre” and there was nothing of substance in the father’s conduct which could be linked to that statement
- accepting the paternal family were concerned for the child’s welfare
Conclusions – asserted lack of adequate reasons
We are satisfied that from his Honour’s findings summarised above, the trial Judge’s determination that L would not be exposed to an unacceptable risk spending unsupervised time with the father was open to him on his assessment of the evidence.
In summary, we are satisfied that his Honour was not in error in his application of the principles stated in M and M and that his reasons for his ultimate conclusion that the child would not be exposed to an unacceptable risk are adequate.
Asserted insufficient foundation for the injunction granted
In his response to the mother’s application, the father sought the following order:
6.The Mother is restrained as follows:
(a)from leaving [L] alone with [Mr B] at any time;
(b)from leaving [L] in the care of third parties whereby the mother is aware that [Mr B] would come into contact with [L] in an unsupervised situation;
(c)from permitting [Mr B] to be in any way involved with the dressing/ undressing, bathing, showering, or toileting of [L] irrespective of the Mother being present at the time.
At the request of the father, an undertaking was given by the mother in May 2006 on a “without prejudice basis” that, pending further order, she would ensure that [Mr B] was not involved with activities such as dressing and toileting L.
At the conclusion of the trial, counsel for the independent children’s lawyer provided a short minute of orders sought by the independent children’s lawyer. It became Exhibit 10 before the trial Judge. A copy was handed to us at the hearing. The independent children’s lawyer sought an injunction which was more prescriptive than the injunction ultimately made by the trial Judge which was:
10.That until further order the mother is restrained from permitting [Mr B] from engaging in any of the following activities with the child:
(a)bathing or showering with the child or assisting her with those activities;
(b)dressing or undressing the child;
(c)in any way assisting with the toileting of the child.
His Honour also made Order 12 in the following terms:
Liberty to apply for orders setting aside varying or suspending any of the parenting orders made this day upon three (3) days’ written notice being given.
During his oral submissions counsel for the mother urged the trial Judge not to grant the injunction sought as it would pose some very difficult constraints in the mother’s family situation, and could put the mother in “jeopardy of contravention”. He also submitted the trial Judge should take into account that the mother had acted responsibly and would do so in the future. (transcript 4 August, 2006 page 417)
In his written submissions, counsel for the mother submitted that in circumstances where there were no adverse findings made against the mother or Mr B, his Honour’s discretion in granting the injunction had miscarried.
In his written submissions on the appeal counsel for the father submitted “This appears to be a challenge to his Honour’s finding that it was appropriate to restrain [Mr B] from engaging in certain activities. It is submitted that there was sufficient evidence to ground such injunctive order.” [our emphasis]
In his written submissions counsel for the independent children’s lawyer also referred, incorrectly, to the injunction “made against the mother’s husband, [Mr B]” being sought by the independent children’s lawyer. He also submitted:
It is submitted that there was no error in the learned trial judge’s reasoning for the granting of such an order in circumstances where there has been granted a liberty to the mother to use the liberty provided for in Order 12 of the Orders to apply for orders setting aside, varying or suspending the injunction upon presentation of appropriate evidence. (paragraph 139 of the reasons – Appeal Book 1 page 51) (ICL submissions paragraph 32, p4) [original emphasis]
Relevant legal principles
It is appropriate before considering this ground of appeal that we set out s 68B of the Act. It provides as follows:
Section 68B
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
As will also become relevant from our remarks below, we set out s 64B(1) and (2) which defines a parenting order:
Section 64B
(1) A parenting order is:
(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h) the process to be used for resolving disputes about the terms or operation of the order;
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
Note: Paragraph (f)--a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.
The principles to be applied in considering whether it is appropriate to grant an injunction are well known. There is little guidance, however, to be found in the case law referring specifically to general principles to be applied under s 68B (cf s 114). The power to be exercised is a discretionary power only to be exercised in an appropriate case.
Discussion
At paragraph 106 of his reasons, the trial Judge recorded evidence volunteered by Mr B of L behaving in a sexualised way whilst bathing with him. His Honour also recorded the mother’s evidence that Mr B had engaged in viewing adult pornography on his computer, and sent pictures of himself naked to a woman in Singapore. He was also noted to have “wanted the mother to engage in heightened sexual activity”. The trial Judge found that Mr B had been seeking “appropriate medical advice and assistance in trying to overcome his emotional issues.” (paragraph 107)
We have already set out the trial Judge’s reasons for granting the injunction sought. For convenience, we repeat those reasons:
I have reluctantly determined that an injunction will be granted restraining the mother from permitting [Mr B] from engaging in certain activities with the child which might otherwise be part of a normal household which includes a small child. That should not be seen as criticism of [Mr B], but rather the reflection of a need to remove anxiety which the parties or either of them, may have due to [Mr B’s] past history of emotional issues, as well as a means of protecting him from any further insinuations or allegations. (paragraph 138)
We do not accept the submission that the mother supported the granting of the injunction. Rather, her counsel at trial noted the evidence about both the father and Mr B was “of a similar type and nature”, and if the trial Judge made “certain findings” he could impose “that sort of joint restraint”. (transcript 9 February 2007 p 417)
Counsel for the father submitted before us that the granting of the injunction was within the reasonable exercise of his Honour’s discretion, and had the effect of relieving anxieties of the father.
We raised with counsel for the father during the hearing what type of evidence the mother could call to seek to have the injunction dissolved. Counsel submitted that the mother could submit evidence that Mr B was continuing to attend his psychiatrist. He submitted it was, on balance, more prudent to have the order than not.
The trial Judge made no adverse findings about Mr B being associated with the sexual abuse allegations made by L. His Honour noted the injunction was not to be seen as a criticism of Mr B.
The injunction has the effect of imposing on the mother, who the trial Judge accepted demonstrated appropriate parenting capacity, restrictions which preclude assistance to her in what may be regarded as normal aspects of care by a step-parent of a relatively young child such as assisting a child with dressing, bathing, showering or toileting.
Where there was no adverse findings or criticism of Mr B, who is a part of the mother’s household, we are not satisfied that the balance of convenience properly assessed, having due regard to the best interests of the child, favoured the granting of the injunction.
We also query, notwithstanding the trial Judge provided in Order 12 for a mechanism to apply to the Court to re-list the matter in respect of parenting orders, the utility of Order 12. First we query whether this injunction could properly be categorised as a parenting order as defined in s 64B(1) and (2), a point not addressed before us. Secondly, we perceive such a procedure, if available, as a consequence of Order 12, cast a significant evidential burden on the mother, and will involve the parties in ongoing proceedings and costs (see Saad and Saad (1993) FLC 92-332 at 79,520).
We further note that although part of his Honour's reasoning was to protect Mr B “from any further insinuations or allegations”, neither the mother nor Mr B sought an order which could provide such protection. The effect of the order, although directed to the mother, in effect restrains a non party to the proceedings, and is an unusual occurrence.
Whilst we are cognisant that the granting of an injunction under s 68B involves the exercise of discretion, which discretion should only be subject of appellate inference in accordance with well known principles, we find his Honour’s discretion in this case did miscarry, in that he failed to give appropriate weight to the mother’s parenting capacity, his finding that he had no criticism to make of Mr B, and to the benefits to L of being assisted by a loving step-parent in normal day to day activities, but rather focused on the father’s anxiety. Accordingly we find ground 7 is established.
We have already discussed the trial Judge’s findings that the mother has appropriate parenting capacity. There are no adverse findings by the trial Judge against Mr B. Mr B is married to the mother, father of their young child and is part of her household. The independent children’s lawyer had sought an injunction restraining the mother from allowing Mr B to be involved in activities such as assisting with bathing, showering, toileting because Mr B had been engaged in behaviour during depressive episodes for which he had received appropriate psychiatric assistance. The trial Judge found Mr B had been seeking appropriate medical advice, “that he loves the child, that there is a loving relationship between them, and he is concerned for the child’s welfare” (at paragraph 107). We are satisfied that the father’s and the independent children’s lawyer’s application for an injunction in the terms of the response and the minute of order should be dismissed.
We note in the orders made by the trial Judge on 15 March, 2006 he did not grant a stay of Orders 3(a),(b),(c), (d),(e),(f) and (h) pending the determination of this appeal. There is no appeal against his Honour’s orders of 15 March 2006. In those circumstances the parties may, to avoid further costs, file a consent order agreeing to the lifting of the stay, or make application to the trial Judge for the stay to be lifted.
Costs
At the conclusion of the appeal we sought submissions from the parties and the independent children’s lawyer in respect of costs. We note that the trial Judge reserved the costs of the stay application before him to the Full Court. Counsel for the mother submitted that if the appeal was allowed, or allowed in part, there should be certificates granted under the Federal Proceedings (Costs) Act 1981 (Cth) for each of the parties. He further submitted that in the event the mother’s appeal was unsuccessful that each party should pay their own costs of the appeal.
Counsel for the father sought that in the event we found error by the trial Judge we should grant certificates, but if the appeal was unsuccessful in whole or part the father sought an order that the mother pay his costs.
Counsel for the independent children’s lawyer also supported the granting of certificates in the event the appeal succeeded in whole or part, and if the appeal was dismissed, that the mother pay the independent children’s lawyer’s costs in the sum of $3,602.00.
As counsel for the mother made very clear throughout his submissions, the major focus of the mother’s appeal was her challenge to the trial Judge’s finding that L was not exposed to an unacceptable risk in the event she spent unsupervised time with the father. The majority of the submissions and argument before us were directed to this aspect of the mother’s appeal. She has been wholly unsuccessful in that challenge. In these circumstances we consider it appropriate the mother should pay two-thirds of the father’s costs of and incidental to the appeal and the stay application.
We do not think it appropriate to make an order for either party to pay the independent children's lawyers costs as sought in light of our determination that the injunction sought by the independent children's lawyer was inappropriate and unwarranted. Whilst not the major focus of the appeal, the independent children's lawyer continued unsuccessfully to support the injunction on the appeal.
I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court of the Family Court of Australia
Associate:
Date: 18 October 2007
193
8
21