K v B

[1994] HCATrans 464

_i/,;t. ~~~

TN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A23 of 1994

B e t w e e n -

K

Applicant

and

~

Respondent

Application for special leave

to appeal

MASON CJ

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Copyright in the High Court of Australia 26/8/94

AT ADELAIDE ON FRIDAY, 26 AUGUST 1994, AT 11.13 AM

MR K.V. BORICK: If the Court please, I appear with my

learned friend, MR J.D. EDWARDSON, for the

applicant. (instructed by Susan Jacqueline Davies)

MR R.A. RICHARDS: If the Court pleases, I appear for the

respondent. (instructed by Gun & Davey)

MS M.T. PYKE: If it please the Court, I appear for the

separate representative. (instructed by Legal

Services Commission)

MASON CJ:  Yes, Mr Barick.

MR BORICK: If the Court pleases, the argument for the

applicant is that the wider balancing test referred

to in Mand Mand described as the nunacceptable

risk test'' is still creating some confusion. That

is demonstrated by two main features of this case.

The first is the conclusion, itself, that where all

that existed in the end was the possibility of some

sexual abuse having occurred in the past has meant

that the applicant will never see his children

again. That has got to be contrasted with what

happened in Band B, where there was a finding that

the sexual abuse occurred but, nevertheless, the

court said in that circumstance that there may be a

time in the future when the individual there could

go back to the court and present other evidence so

that he could again see his children. Here you

have a finding -

TOOHEY J:	Why do you say the test is causing confusion?
MR BORICK:	Yes, and I am saying that -

TOOHEY J:  I know you said it. I asked you why you said it.

MR BORICK:	I am saying, firstly, because of the conclusion here that an individual has lost the right to,
basically, ever see his children again because there never will be an acceptable supervisor found,
according to the views of the Full Court. That
very fact in itself, we put at the forefront of our
submission.

The second reason why we say there is

demonstrable confusion arises from the fact that

two supervisors were put forward by the applicant

and if Your Honours turn to page 87 of the

transcript in the judgment of Justice Kay, trial judge said in argument that from his

perspective, the nproposed supervisors were

adequate". I have that passage if Your Honours

would like to see it, ·but for time being that is

what His Honour did say in the course of argument.

26/8/94

Then when he came to consider the question of

supervised access, he said that:

neither party has been able to advance a

supervisor who is acceptable to the other.

In our submission, that is wrong; that it was for

the court to decide whether the supervisor was

adequate or not, and that it was not for that

decision to be made purely on the basis of what the

wife thought. His Honour Justice Kay said at

page 87:

In my view that is not the appropriate or

determinative test for the appointment of a

supervisor.

TOOHEY J:  Can I just come back to my earlier question,

because I do not understand at the moment what the

proposition is? Is it that Mand M needs

reconsideration, or that it was wrongly applied in

this case? Or that there are some aspects that are

not covered by the Court's decision in Mand M?

MR BORICK:  Both, Your Honour. We do suggest that Mand M

needs reconsideration because of what happened in sort of test, let alone a wider balancing test.
this case but, in addition, we say that His Honour

What he did was, he made a finding that - - -

MASON CJ: Before you get to that, you say that Mand M

needs reconsideration?

MR BORICK:	Yes, Your Honour.
MASON CJ:	What principle are you contending for, instead of

the principle as enunciated in Mand M?

MR BORICK:  The principal contention is this: that in

Mand M when Your Honours refer to the wider

balancing test and that in itself is clear enough -

that all the factors have to be taken into

account - Your Honours then went on to say there

had been a number of attempts to describe that

balancing test, and various expressions had been

used. One of them was the unacceptable risk test.

It is our submission that that is where the

Full Court, in this case, has fallen into

error where there is difficulty arising in that

when this Court said in Mand M that the wider

balancing test is to be described as the

unacceptable risk test, as I understood it, Your

Honours were not saying that therefore was the

test, the unacceptable risk test, and what in fact

is happening, and in our submission did happen in

this case, that instead of the wider balancing test

26/8/94

being brought into operation, all His Honour did

was to, first of all, make a finding that there had

not been, on the balance of probabilities, any

sexual abuse established. He then said,

"reluctantly" - and I underline that word in his

judgment - "reluctantly, I refuse unsupervised

access because of an unacceptable risk." Accepting

that for the moment, when he then turned to

supervised access, His Honour never, ever made any

finding at all in relation to any sort of risk.

All His Honour did, was to, in a sense, impose his

own view that he had formed that it was not in the

interest of the child.

TOOHEY J:  I understand that, but put that way it does not

seem to involve any reconsideration of Mand M.	It
is an argument that it was not correctly applied.

MR BORICK:  I am basing this application for special leave

on the two grounds, one, it is our submission that Mand M should be reconsidered for the reason that I have advanced, that the expression used in this

Court that the description has, in effect,

overtaken what the real test is. But, secondly,

this application for special leave - and I am

obliged to put the case in this way - that the very

result that an individual will never see his

children again, and I say that because of the
observation by the majority of the Full Court that
it would be extremely difficult ever to find a

supervisor acceptable to the wife is, as

Justice Kay described in his dissenting judgment,

harsh and, in my submission, His Honour was correct

when he said that such a result does bring the law

into disrepute. This Court, in looking at the

situation of the conclusion, of the final result of
what happened here, and in looking at the sort of
bizarre situation, that he finds two acceptable
supervisors but the supervisors are not, in the

end, accepted, because they do not believe that the

accused had sexually abused the children.

First of all, the trial judge was not able to

find that that did happen. It seems harsh, indeed,

that he is denied even supervised access to his children until he can find supervisors that are

prepared to come along and say, "We are going to

believe that he committed some sort of abuse,

because that is what the wife wants us to believe",

before he can see his children.

TOOHEY J: That puts the focus of the application very much

on whether there should have been an order for

access, or an order for supervised access.

26/8/94

MR BORICK: There no question of that, Your Honour, that I

am obliged to put the focus on it. but I submit

that the result - - -

TOOHEY J: That is to say no more or no less than to

identify just, really, what the application is

about.

MR BORICK:  Could I take Your Honours to the written

argument that has been advanced by counsel for the

separate representative? I do this in two parts of

that argument and take Your Honours back to Mand M

to, perhaps again, try to demonstrate the confusion

which I say exists.

In paragraph 4.2 the argument goes this way:

In deciding whether it is in the best interest

of the child that access should be granted M

and M does not require the application of a

wider balancing test but an acceptance of

whether there is an unacceptable risk of

sexual abuse.

Then, when you go to paragraph 4.6, the

argument proceeds:

No confusion has been demonstrated.	The
allegation of sexual abuse was not

"unsubstantiated". Implicit in the finding of
the Trial Judge and the majority of the

existence of an unacceptable risk of sexual

abuse was a balancing process.

That, on the face of it, would seem to show an

inconsistency but I would suggest what has happened

is that when this Court, in Mand M, said that the

best way to describe this test is the unacceptable

risk test, that that has caused this, in effect,
two-way submission, because the counsel for the

separate representative is picking up the fact that

because it is described as that, then the argument

is Mand M does not require the application of a

wider balancing test. That, in my submission, adds

weight to the argument that I have advanced to the

Court this morning that the confusion that I have

referred to, a misunderstanding of what this Court meant in Mand M still does exist. I do not think

I can put it any higher or stronger than that.

But I do rely, as I said at the outset, on the

issue relating to the conclusion, the harshness of
it, and the bizarre result relating to the

supervisor.

The other point. that I would make to the Court

is - and it has been described in the summary of

argument - that unless the proper balancing test is

26/8/94

used, the determination of access will depend on whether the trial judge personally considers the

relationship between the accused parent and the

child to be secondary to the relationship between

the accusing parent and the child. That led to the
use of the expression that the mere raising of the

allegation makes the accuser, in the eyes of the

law, the more important parent, and the person

accused the less important a parent. What I meant

by that is that immediately the allegation is made

and if it is unsubstantiated, nevertheless, it

rests on the book, so to speak, it ~sin the

balance, but instead of the Court approaching the
balancing task on the basis that each parent's
rights are still the same and should be accorded

the same justice within that balancing approach,

because one person has made an allegation and there

is a lurking suspicion still around about it, that

parent's rights receive far greater consideration,

as they did in this case, than the other parent.

We submit that that in itself is worthy of further

consideration by this Court.

MASON CJ:	I really do not understand what the problem is. If you look at page 78 of Mand M, what is put in
the balance is clearly indicated.
MR BORICK:	I am sorry, Your Honour, page 78?
MASON CJ::	Page 78 of Mand M, 166 CLR.  What is said:

In devising these tests -

that is the various descriptions that are given

and, in particular, the "unacceptable risk" test

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 from

parental access.

the test is best expressed by saying that a

To achieve a proper balance,

court will not grant custody or access if that custody of access would expose the child to an unacceptable risk of sexual abuse.

I do not see any difficulty with the test.

TOOHEY J: In fact, if you go to the foot of page 77, the

Court took into account the magnitude of the risk may be less if supervised access is involved, but

that would depend upon the circumstances of the

case and the child's likely reaction to the parent.

MR BORICK:  I will not repeat ·the arguments, but may I just

take the Court at page 32 of the transcript to what

6   26/8/94

really happened in this case though? You are

looking at a wide balancing test and you are

looking at the issue of assessment of magnitude of

risk, you will find that line 21 His Honour said

having dealt with unsupervised access: '

The next question to be considered is

whether the husband should have supervised

access. I do not consider that supervised

access would be of any benefit to the child.

There is no balancing in that. It is just a

straightforward statement. He said:

I doubt very much that it would be of much

benefit to the husband.

Again, a bold statement with no basis for -

MASON CJ:  But he is just looking at one side of the

balance and he is saying, in effect, "We have

established that there is a risk of some kind and I

do not see that there is going to be any benefit by

granting access.

MR BORICK: With respect, Your Honour, he never established

a risk in relation to supervised access. The trial

judge said that he reluctantly would not give - and

that is on the previous page at line SO -

reluctantly came to the conclusion "I would not let

this man have unsupervised access because of a

risk." Then, instead of looking at the magnitude

of the risk or even considering the question of

risk when it came to supervised access, it never

gets a mention.

TOOHEY J:  Your argument really is, I take it, that there

was no finding that supervised access presented an

unacceptable risk?

MR BORICK:  That is right, yes. Nor was was there any

balancing process just never came into play on that	attempt to look at the magnitude of it and that the	important issue of supervised access which would
have meant that this individual would have had a
chance of maintaining a relationship with his
child.

MASON CJ:  You have a point there but that is not a point

that goes to the correctness of the principle

enunciated in Mand M.

MR BORICK:  I am sorry if I have not made my position clear.

I am not suggesting that what was said in Mand M

is wrong or incorrect in any way. What I am saying

is that what makes this case important is that the

Full Court of the Family Court - demonstrated by

26/8/94

the judgment and in the argument of the respondent

and the separate representative - have not

understood it. They have become confused - - -

MASON CJ:	I would like to make this clear, for my part: that is not because the principle in Mand Mis
confusing at all, it is just because people do not
apply it.
MR BORICK:	Yes, Your Honour, do not apply it correctly and

I have attempted to identify the problem by the

fact that the wider balancing test got described as

something and the courts did not go back to look at

what Your Honour said in Mand M.

Your Honours, I had a glass in front of me

yesterday. I am not sure whether the two lights

means I am finished or - - -

McHUGH J:	No, you have five minutes.
MASON CJ:	You may be on the ropes but not out, yet.
McHUGH J:	The red light is for 10.
MR BORICK:	In any event, Your Honours, I do not think that

I can pitch my case any further.

McHUGH J: Can I ask you this question: it seems to me, at

the moment, subject to hearing the respondents, that there are some problems with the reasoning both of the trial judge and the Full Court on this

question of supervised access, in particular at

page 32 where the judge says:

Neither party has been able to advance a supervisor who is acceptable to the other.

It seems to me there are some real problems about

that. But then the judge goes on to say:

It is my view, in any event, that the best

thing for the child in this case would be to
terminate access altogether.

Is that not a finding that makes this an unsuitable
vehicle to determine these questions of

unsupervised access, or questions of principle,

because what the judge seems to be saying is, "Even

if there is no unacceptable risk with supervised

access nevertheless the best thing for the child in

this case would be to terminate access

altogether."? In other words, the judge seems to

have taken the view that supervised access is not

in the best interests of the child.

26/8/94

MR BORICK:  I have two answers to Your Honour on that: the

first is that that is, in my respectful submission,

not a finding. He simply states a subjective view;

the second thing is that if he had in fact made the

proper objective assessment bringing into account

all the facts, that view would not have been

arrived at. His Honour seemed to think that,

"Well, because I've said that the father cannot

have unsupervised access'', without giving any
reason why, he says, "I've come to this view".

There has to be, with great respect, more to the depriving of a father of any access to his child, a

far greater explanation for why that view is come

to, so that an appellate court can look at it more

closely.	Those are my answers to Your Honour's
question.

The other matter to which I would draw your

attention, in the argument for the respondent, at page 3, 3.5.1, the respondent says that the trial

judge accepted "the evidence of the experts,

Dr Tucker and Dr Brock". I would invite

Your Honours to go to those pages of the judgment.

I will not take you through it but say, quite

specifically, that His Honour did not accept the

evidence of Dr Tucker and Dr Brock or Dr McColl.

He simply said, "This is what the three of them

said", and he did not make any finding.

That also have to brought into the balancing process because, in Mand M itself, the trial judge

had accepted one of the experts, a Dr Fitzgerald.

So that distinguishes it again.

McHUGH J:	Time is up now, Mr Borick.
MASON CJ:	Mr Richards.

MR RICHARDS: If the Court pleases. It is our argument in

response that the applicant's argument assumes that	the determining factor in deciding whether or not
there should be an order for supervised access is
the risk of sexual abuse is, in fact, neither the
law nor is it matched by the facts situation in the
instant case.

The law, as Your Honours have, with respect,

correctly indicated, is clearly and precisely set

out in the High Court decision in Mand Mand the
relevant passages, I suggest, are highlighted in
the decision of the majority, commencing on page 53

of the application book and I would like to take

Your Honours to what I say are the key passages.

At page 53, at about line 60, the Court states

what the fundamental test is in relation to access

26/8/94

and, clearly, there can be no dispute about this,

as follows:

The Court is concerned to make such an order

for custody or access which will in the
opinion of the Court best promote and protect
the interests of the child. In deciding what

order it should make the Court will give very

great weight to the importance of maintaining

parental ties, not so much because parents

have a right to custody or access, but because

it is prima facie in a child's interests to

maintain the filial relationship with both

parents.

On page 54, line 10, this Court goes on to say

that:

the resolution of an allegation of sexual abuse against a parent is subservient and

ancillary to the Court's determination of what

is in the best interests of the child.

MASON CJ: All this is fairly elementary.

MR RICHARDS: It is, Your Honour, but what I wanted to get

to was that the trial judge and the Full Court

quite clearly, in the instant case, properly

applied the principle and that the issue of

supervised access was specifically dealt with in a

manner which is consistent with the decision in

Mand M.

TOOHEY J:  Is that right when you look at page 32,

Mr Richards?

MR RICHARDS: Is Your Honour referring to what - - -

TOOHEY J:  The way in which the primary judge appears to

have approached the matter is to arrive at a

finding of unacceptable risk and then gone on to

say, "Well, in those circumstances, should the

husband have had supervised access?".

MR RICHARDS: That is what he did.

TOOHEY J:  In other words, he does not approach it in terms

of whether unacceptable risk or whether the risk is
unacceptable if access is supervised but he tends
to look at unacceptable risk divorced from the

question of access and then, in effect, said,

"Well, I don't think that supervised access would

be of any benefit to the child".

MR RICHARDS: In my submission, Your Honour, the initial

application of the unacceptable risk test has a

primary function, namely that it effectively knocks

10   26/8/94

out the appropriateness of an unsupervised access

order. The supervision aspect is then the

secondary consideration and it is my submission - and I say that is supported by Mand M - that, in

this case, the finding that sexual abuse may have

occurred, or that there was an unacceptable risk

that it may occur in the future, was not in any way

the sole basis or the major basis for the
determination against an order for supervised

access. There were a whole host of other factors

which were taken into account and which are not

summarized, on page 32 of the application book,

but which I can taken Your Honours to.

McHUGH J:	Do not worry about what a judge has not referred to, but which he might have referred to.	What
about the reasons he did give:

Neither party has been able to advance a supervisor who was acceptable to the other.

Is that a proper ground for refusing supervised

access?

MR RICHARDS:  It is, Your Honour, if it is looked at in the

wider context. There is a history in this case, as

His Honour the trial judge found, that supervision, both by persons nominated by the applicant and by

the respondent - by the husband and the wife - had

been unsuccessful and there was a history of

interlocutory applications and disputes in relation

to that subject-matter. Further, the evidence

which His Honour accepted from the respondent was

that throughout those periods of supervised access

prior to the trial there was a history of the child

misbehaving in significant and serious ways, to the

extent that His Honour's finding is justified.

McHUGH J: But the supervised access was with the wife, was

it not?

MR RICHARDS:	Not in every instance, Your Honour, no. There were other supervisors at earlier stages. There
was a Mr Mangos and the applicant's either
girlfriend or de facto wife then, I am not sure
which. There were disputes in interlocutory
proceedings before the Judicial Registrar in the
Family Court and before another judge - at least
two different judges in the Family Court on that
score, and there are consistent complaints from the respondent as to the negative effects of supervised access on the child.

McHUGH J: Yes, I know. If the judge had spelt that out I

would have no problems with the point you are
making but the judge does not spell it out. Then,

11   26/8/94

at 65 and 66, the Full Court talks about - at 66,

that:

the respondent, in our opinion, is entitled to

be apprehensive during any access which the

appellant may exercise to Joel, supervised by

Mr George Koutalis or Ms Markwell.

Again, if the finding was that she was entitled to be apprehensive because it has some deleterious effect on the child you would be on safe ground but

that is not the message that comes across from

either of these judgments.

MR RICHARDS: All I can say to that with respect to

Your Honour's comment is that there was clear

evidence before the trial judge that the

supervisory function had not worked. I would also

say to Your Honour in response to that that it was

not inappropriate for either the trial judge or the
majority in the Full Court to take account of the
trial judge's finding that the respondent, the
wife, would be so distressed and anxious if access

occurred, whether supervised or otherwise, that

this alone would be likely to have an adverse

effect on her relationship with the child and on

the child's welfare generally, that that was a

factor mitigating against supervised access.	So
that is a particular finding that bears on
supervision regardless of any criticism.

McHUGH J:  I have no problem with that line of argument but

my problem is it has never been spelt out by these

judges and therefore you are asking us for a leap of faith; you are asking us to conclude that that

was their reasoning, although the judges have not

expressed it in the way that you put it.

MR RICHARDS:  I say to Your Honour in relation to that that

you can find the basis for His Honour's reasoning

in the findings that appear throughout his judgment

in relation to the effects on the child directly,
and I can take you to those if you want me to.	The

other thing in relation to that, Your Honour - and

I would be inclined to agree and concede that the

majority in the Full Court in making the statements
they did about His Honour's findings about the

supervisors, went beyond what I think it is

reasonable to argue His Honour had in his mind at

the time. The argument that they attribute in the

majority to the trial judge is, I would be inclined

to agree, beyond what is reasonably able to be

drawn from what His Honour said either in his

findings or in the so-called bald statements of
conclusion on page 3~.

12   26/8/94

I accept, Your Honours, that that is the

essence of the argument and if that is all

Your Honours require then I propose not to take it

any further.

MASON CJ:	Yes, thank you, Mr Richards.	Yes, Ms Pyke.
MS PYKE:	May it please the Court.	Mr Richards has, in

fact, addressed many of the matters that I would

have addressed, in any event, and I do not propose

to repeat those. Perhaps just several points to

emphasize. I think whilst Your Honours clearly are

quite concerned, perhaps, at the lack of reasoning

in the judgment of His Honour Justice Gun and,

perhaps, indeed, in the Full Court, it is my

submission that you have to look at the reasons for

judgment as a totality and, in essence, see whether

in those reasons for judgments there are sufficient

bases for the conclusion to have been drawn.

MASON CJ: But you do expect specific findings on relevant

and important issues. The difficulty is that it is

difficult to extract findings from the judgment of the trial judge, and also from the judgment of the Full Court on matters that are being discussed in

argument.

MS PYKE:  I would not disagree with that. I think that

perhaps it is unfortunate that perhaps there were

not more specific findings. What I am saying to

Your Honours is that if you look at what His Honour

Justice Gun adverted to in his reasons for

judgment, which clearly he must have taken into

account on both the issue of sexual abuse

itself - he looked at all the expert evidence. In

essence, he looked at the pros and cons, and to get

to a point that my friend made earlier for the

applicant, I was not trying to suggest that there

is no balancing that needs to be done. What I was

simply saying was that on the Mand M test, in

essence, by concluding there is an unacceptable

risk there is a process that has been gone through,

in essence, a balancing process to reach that

conclusion of unacceptable risk, and that is what

His Honour Justice Gun did. If we look at Mand M

where, in fact, the judgment said that, "In

devising these tests 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 from parental

access. It has evolved and we have concluded that

the test is unacceptable risk".

That is exactly.what His Honour Justice Gun

did, the trial judge. He went through the expert

evidence; he referred to the evidence that might

13   26/8/94

perhaps have been in favour, if I might put it that

way, of the applicant; he basically found that the

evidence went from "there has been sexual abuse" to

"it is possible, if not probable, that there has

been sexual abuse" to the fact that "there has not

been sexual abuse". I might comment that the

majority were, in fact, quite "scathing" - may be

too strong a word - about the finding of the

expert, Ms McColl who, in fact, had found there had

not been sexual abuse.

McHUGH J:  I think that is an area that it might not be of

benefit to you to be exploring. After all, the

trial judge saw Ms McColl; the Full Court did not,

and it might be thought that their comments on her

evidence were not in accordance with the principles

laid down for reviewing fact findings. But

speaking for myself, Mr Borick did not make much

progress on Mand M.	It was the second limb
that - - -

MS PYKE:  Yes, and my argument in relation to that is that

whether the trial judge or, indeed, the majority

perhaps should have expressed their reasoning with

greater clarity, when one looks at, in particular,

the judgment of the trial judge, he has taken into
account the views of the expert that access would

be beneficial, and I refer to that in my summary of argument at point 3.1.2. His Honour clearly had in

mind - and I will not read those passages out -

particular views that the child was bonded to his father; there could be benefits to the child f~om

access, but he then went on - and this is refe~red

to at point 3.3 on page 4 of my summary - the

mother who, indeed, had supervised access - and I

agree with what my friend, Mr Richards, said for
the respondent, that this matter had a whole

history.

There had been supervisors who had been found

to be unsatisfactory and access had not been

working, and almost as a point of last resort

access was then supervised by the mother. At

page 18 line 45 to page 19 line 45 there is a long

series of complaints, if I can put it that way, by

the mother as to the effects upon the child of

access ranging from his behaviours to the father's

conduct in attempting to persuade the child that he

had not abused the child; his denigration of the

wife - I am summarizing here - the child's repeated

comments that "Daddy says he hates you". Those

sorts of behaviours during supervised access, I say

to Your Honours, are clearly quite unacceptable.

His Honour accepted in general principles that the

mother was a witness of credit. He accepted her as

being accurate in the way in which she gave her

history of what the child said.

14   26/8/94

So I say to Your Honours that if one actually

looks at what His Honour has taken into account, he

has looked at the benefits to the child for access,

but he has also looked at, quite clearly, the

substantial detriments to the child by way of

supervised access in particular.

Of course, there has been authority other than

Mand Mon the point, and that is the case of

Band B which very clearly dealt with the issue of

supervised access, and that is referred to on my
list of authorities. That is a judgment of the
Full Court of the Family Court, and effectively, in

Band B, the Full Court itself has expressed its concern about supervisors being persons connected with the family and, in particular, in

circumstances where they do not believe that sexual

abuse had taken place.

McHUGH J:  What is the relevance of this statement that they

did not believe it had taken place? Does it mean
that they would not carry out their obligations to

supervise access?

MS PYKE: If I can read from, perhaps, Band B,

(1993) FLC 92-357 at page 79,781. The Full Court,

under the heading "Who should supervise access?",

quotes some literature and it goes on to say this,

at about point 2 in the first column:

Family and friends are not neutral but will

usually, as is the case here, have an opinion

as to whether any harm has occurred or whether

any risk exists. They may therefore believe

that close monitoring of the children is

unnecessary. In a practical sense they cannot

always be present and may fail to respond

protectively to complaints of abuse or

distress by the children. Supervisors must be
available to the children for safety and

children's behalf if an issue of protection

support and be prepared to intervene on the

arises during the visit. It is, in our

opinion, unrealistic to expect a supervisor to
undertake those responsibilities on a regular

weekly or fortnightly basis for an indefinite

period.

Then it goes on to say this:

For the above reasons it is in most cases

undesirable for friends or family of the
access parent to supervise children during

access periods in circumstances where either

abuse has been found to have occurred or there

is an unacceptable risk of abuse occurring.

15   26/8/94

In essence, it is the combination of being related

to and not believing that cause concern. That is

what, with respect, the majority were, I think,

adverting to when they were suggesting that the

mother - - -

McHUGH J:  I appreciate that, but I must say, speaking for

myself, I do not think it should be a matter of

labels, it should depend upon the particular

individual. If people will give undertakings that

they will supervise the access and they appear to
be respectable and responsible people then I do not

see why it should make any difference whether it is

a brother or a sister or the local bishop. It is a

question of whether the person is fit to do it.

But that is by the way.

MS PYKE:  That is a factor, but supervised access did not

stand or fall on the supervisors. It was

implicit - in looking at his judgment it was a

balancing process by the trial judge of the

benefits and detriments, and what he has basically

said in the end is, "Look, I just do not think any

access is appropriate for this child". The other

issue that perhaps - and it is adverted to in

Band B -

MASON CJ: But why was that so, because the relationship of

hostility between the parents was such that it

would be a mistake in the interests of the child to

allow any access to take place?

MS PYKE:  I think that was one factor. With respect to my

friend for the applicant, I think it is very hard

to pick out a phrase in a judgment like this and

say, "That is the reason". I think that one has to

look at the entirety of the judgment, and the

evidence referred to in the judgment, to really

look at the reason that the order was made. That

was one of the reasons. There was hostility

between the parties; there was the difficulties

that the child suffered before, during and after

the supervised access by the mother; there were the

mother's concerns that the father had sexually

abused the child - her concerns.

MASON CJ:  Yes, but the antagonism between the parents was

relevant to the best interests of the child in the

sense that it was creating a traumatic situation that accentuated any psychological problems that

the child had.

MS PYKE: That is precisely right.

MASON CJ:  Is that the reason ·why it was considered that

access should be terminated?

16   26/8/94

MS PYKE:  Your Honour, I think it was one of the reasons. I

do not think that we can pluck a reason but that

certainly was one of the reasons.

MASON CJ:	It just goes to show how unsatisfactory it is to consider a case when judges do not make the
necessary findings and specify the matters that led
them to a conclusion.

MS PYKE:  Yes, I accept what Your Honour says. I would

simply conclude by saying that on all of the

evidence as referred to in the judgment, whether it

was drawn together, if I can put it that way, in

the conclusion, this is a case where His Honour's
decision was correct, whether he has drawn it

together correctly or not I suppose is something

for Your Honours.

MASON CJ:  Yes, thank you. Yes, Mr Borick.

MR BORICK:  I do not believe there is anything I can

usefully add in reply, Your Honour.

MASON CJ:  In the view of the Court, this case is not a

suitable vehicle for the determination of any

question of general principle.	The application for
special leave for appeal is therefore refused.	The

refusal of special leave is not to be necessarily

taken as an endorsement of all the steps in the
reasoning which led the courts below to the
conclusion that supervised access should not be

ordered.

MS PYKE: Costs, Your Honour?

MASON CJ:  The Court considers that this is not a case in

which an order for costs ought to be made.

MR RICHARDS:	I take it that Your Honours would include the respondent's application in that reasoning?
MASON CJ: Yes.

AT 11.59 AM THE MATTER WAS ADJOURNED SINE DIE

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