Kam and CM

[2006] FamCA 381

[2006] FamCA 381

JFKAMCM

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT BRISBANE

Appeal No. NA 75 of 2004
File No. BRF 4482 of 1995

IN THE MATTER OF:

KAM

Appellant/Father

- and -

CM

Respondent/Mother

REASONS FOR JUDGMENT

BEFORE:  Finn, Coleman & May JJ
DATEOF HEARING:          5^th day of August 2005
DATE OF JUDGMENT:     22^nd day of May 2006

APPEARANCES:                 Dr Sayers of Counsel, (instructed by DA Family Lawyers, Level 8, 183 North Quay, Brisbane QLD 4003) appeared on behalf of the appellant father.

Mr McHugh of Counsel, (instructed by Graham & Associates, 2/14 Wellington Street, Acaia Ridge QLD 4110) appeared on behalf of the respondent mother.

Mr Slack of Counsel, (instructed by Legal Aid Commission QLD, 44 Herschel Street, Brisbane QLD 4000) appeared on behalf of the child.

Name of Appeal  KAM & CM

Appeal Number  NA 75/2004

Date of Appeal hearing  5^th day of August 2005

Date of Judgment  22^nd day of May 2006

Coram  Finn, Coleman, May JJ

Catchwords:   Appeal against orders for supervised contact.

Challenge to adequacy of trial Judge’s reasons with respect to allegations of sexual abuse and the welfare of the child – trial Judge obliged to evaluate evidence with respect to both the sexual abuse allegations and the impact of his findings in that regard within the context of s 68F(2) and to provide reasons for such findings – trial Judge erred in relying upon conclusions reached by the Department of Families with respect to sexual abuse, rather than determining the issue for himself as the “ultimate trier of fact” according to the standard discussed in M v M (1988) 166 CLR 69 and B v B [Access] (1986) FLC 91-758 – insufficient reasons given for a positive finding with respect to the allegations made against the father and also in relation to the appropriate standard of proof and whether it had been met - Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Sun Alliance Insurance Ltd v Massoud (1989) VR 8, Bennett v Bennett (1991) FLC 92-191, M v M (1988) 166 CLR 69, WK v SR (1997) FLC ¶92-787 followed.

Appeal allowed – retrial ordered
Costs certificates ordered

1. By Amended Notice of Appeal filed 20 December 2004 the father appealed against orders made by Bell J on 29 October 2004 in proceedings between himself and the mother with respect to a child of their former relationship KCM. 

2. The orders made by the trial Judge which are relevant for present purposes provided that the father have contact with the child each alternate weekend from 9am to 5pm on Saturday and on Sunday and, on the intervening weekend, from 9am to 5pm Sunday.  The orders required that “another adult is present, such adult to be approved by the child representative” during all contact periods. 

3. The father sought, in a “Further Amended Notice of Appeal” filed by leave on the hearing of the appeal, that there be a new trial of the proceedings with respect to residence and contact or in the alternative, that overnight weekend, school holiday and other contact be ordered on an unsupervised basis.  The mother resisted the father’s appeal and sought to maintain the trial Judge’s orders.  Counsel for the separate representative supported the mother’s resistance to the father’s appeal.

BACKGROUND FACTS

1. The mother was born in 1957 and the father in 1958.

2. The child the subject of the proceedings, KCM was born in 1997 and was the only child of the relationship. 

3. The parties lived in a de facto relationship from December 1993 and married in December 1995.  The parties separated in Feburary 1999.  Pursuant to a consent order made on 20 August 1999 the child had contact with the father every weekend and on three Wednesdays per month. 

4. In the Family Court at Brisbane, after a contested trial, orders for residence of the child were made on 10 October 2001 in favour of the mother, the father being granted contact from 3pm Friday to 5pm Sunday each alternate weekend, from 3pm Thursday to 5pm Friday each other week and for periods during school holidays and on other defined occasions. 

5. In January 2003 the father filed an application as a result of allegations he made relating to the conduct of a female associate of the mother’s son of a previous relationship, who was born in 1982.  The mother filed an application in February 2003 seeking that the father’s contact be limited to daytime contact, supervised by an adult person.  The mother’s application was motivated by disclosures allegedly made by the child to her in late January 2003. The mother’s case in this respect is encapsulated in the reports of Ms B, the author of four family reports. On or about 18 March 2003 as a result of the mother’s application, orders were made providing that the father’s contact take place in the presence of another adult.  Prior to those orders the father had had unsupervised contact since separation in 1999.

6. The application which came before the trial Judge for hearing in June and August 2004 was identified by his Honour (in paragraph 4 of his reasons) as an amended application filed by the father on 23 January 2004 for residence or alternatively contact or residence on a shared week and week about arrangement. 

TRIAL JUDGE’S REASONS

10.  Having identified the competing applications and recounted the background to which the Court has referred, his Honour referred to the competing allegations which gave rise to the applications each party presented before him.  His Honour concluded that there were “really only two points in this case” (Judgment, paragraph 27) and suggested that if he was “satisfied that the statements [by the child] were made, and that the statements either are true or are of sufficient cause to concern me about an unacceptable risk of some sexual misadventure befalling the child, then the matter is of very short compass” (Judgment, paragraph 27).  His Honour suggested that if the “statements are incorrect, it would open up a much wider investigation of these matters” because if “I am satisfied that the allegations were made and that as found by professionals … that it did take place then there could be no other order made than that the father have supervised contact for a further period” (Judgment, paragraph 28). 

11.  Having posed the question “[w]here does the evidence come from to support any concern demonstrated by the mother in relation to the father’s attitude to the child?” (Judgment, paragraph 31) his Honour said:

It appears as though there are two basic areas from which this came, one is the repetition by the mother of disclosures made by the child to her in January or February of 2003, and in particular the investigations carried out by the Department of Family Services and the evidence of Ms TPT, as well as Ms JKT. (Judgment, paragraph 32) 

12.  His Honour had listened to two tapes of interviews with the child by Ms TPT on 5 February 2003 and 9 March 2003 (Judgment, paragraph 33).  Reference was made to a report of Ms TPT dated 10 February 2003 recording:

The child is 5 years and stated the following, while she is at her Daddy’s house she bathed with him every day, Daddy allows her to play with his weewee.  She also stated that she and Daddy play games with her in the bath.  About 8 months ago the issue of the father bathing with the child was raised and at that time he indicated he understood and said this would stop. (Judgment, paragraph 42) 

13.  Having referred to this “brief précis of what the child said to the interviewers” the trial Judge recorded that it was:

… correct that the father had been bathing with the child some months before and that this matter was brought to his attention by the mother.  He states at that time that he was bathing in “togs” with the child but did in fact agree to cease such conduct. (Judgment, paragraph 43)

14.  His Honour then observed:

On the straight basis of that, what has been reported would be extremely difficult for me to come to a conclusion whether the child was either, 1) stating what in fact took place, 2) stating what had took place but exaggerating as a result of alleged couching [a clear misprint for “coaching”] by the mother, or 3) that is [sic] was totally incorrect. (Judgment, paragraph 44). 

15.  Further reference was then made to the tapes and to a question put by Ms TPT during the interview “to the effect that ‘did daddy have clothes on?’” to which the child replied “why would you have clothes on in a bath?” (Judgment, paragraph 45).  This “spontaneous reply to a question by Ms TPT” was said by his Honour to “carr[y] a great deal of weight” (Judgment, paragraph 46).  His Honour said:

It appears to me that what the child is saying is that in fact the father did bathe with her and did so without clothes on.  This in itself would be of some concern to the mother and to the Family Services Officers. (Judgment, paragraph 46) 

16.  Before his Honour there was no issue that “in fact the statements made by the child were not in fact made” (Judgment, paragraph 48).  No issue taken in this appeal relates to that matter.

17.  His Honour then recorded that:

The child’s statements would be of concern, should they be true.  As I have said, the spontaneity of the statement of the child that “why would you wear clothes in the bath?” to me indicates that she in fact is telling the truth as far as she possibly can. (Judgment, paragraph 49)

He concluded that this “leaves us with a father who bathes with his daughter without clothes on.  Why then should she be telling an untruth in relation to having no togs?”. 

18.  The trial Judge was thus prepared to “accept what the child has said, as being to the best of her recollection, that that’s what’s taken place now it’s for me to determine whether or not this type of conduct is inappropriate in all the circumstances” (Judgment, paragraph 51). 

19.  Reference was then made to the evidence of Dr W (a psychologist seen by the father), Ms TPT (the Department of Family Services officer) and Ms B (a psychologist engaged by the child representative) who:

… all make it quite clear that this type of conduct is totally inappropriate to any child of this age, and in particular in this case, to the child. (Judgment, paragraph 52) 

The evidence of those witnesses in relation to that matter was accepted by the trial Judge. 

20.  His Honour referred to a witness in the father’s case, Mr C, a psychologist who gave evidence that the father “met criteria to assess him as being at low risk of sexual offending” (Judgment, paragraph 57).  Reference was made to Mr C’s qualification that there was:

… sufficient endorsement of items to warrant a treatment intervention for the father in the areas of developing an understanding of intimacy, sexuality and attachment and a further understanding of the consequences of sexual abuse

and to his opinion that “psychotherapy in those areas will sufficiently and further reduce his low risk of sexual offending” (Judgment, paragraph 58). Mr C emphasised the words “low risk” of sexual offending. 

21.  Mr C recommended that overnight contact with the child be re-established “subsequent to successful completion of the treatment”, by which time Mr C did not consider that the father would be a risk to his child (Judgment, paragraph 59).

22.  The trial Judge referred to the “initial opinion” of Mr C and Dr W that the father’s “chance of offending sexually towards his daughter is in a very low category of about 0.5 percent” (Judgment, paragraph 65).  Dr W, in a letter of 21 October 2003 expressed the “professional judgment that the father does not require any more sessions” of counselling and had “demonstrated to me through oral examination that he has a good understanding” of issues associated with sexual abuse and inappropriate intimacy with children (Judgment, paragraph 66). 

23.  The trial Judge referred to the evidence of Ms B, the report writer, who said in her fourth report attached to her affidavit of 19 November 2003:

… the main concern which remains for me, is that the father did not seem to have accepted that there was ever any need for him to undergo treatment, and apparently saw it all as a means to gaining overnight contact with his daughter.  If this is the case then it probably indicates a lack of insight on his part, perhaps at the level of denial and the benefits of the intervention by Dr W could be considered dubious. (Judgment, paragraph 74)

24.  His Honour summarised Ms B’s concern to be that “he [the father] did not accept that something inappropriate had taken place between himself and his daughter” (Judgment, paragraph 75). 

25.  The trial Judge referred to the response of Dr W to the fact, of which Dr W had been unaware, that “the Department of Families … conducted an investigation and found that the father had inappropriately been touched by his daughter” (Judgment, paragraph 77).  Reference was made to Dr W’s evidence that if that was so it would:

… concern me greatly, I believe it inappropriate that the father have unsupervised contact with his daughter.  I would at this point feel that the benefit of treatment for sexual offending behaviour would be of limited value because if this information is correct, the father is clearly not acknowledging that he has sexually offended against his daughter, unless an offender is able to make that admission, treatment is likely to be ineffective. (Judgment, paragraph 79) 

Dr W reiterated when asked whether he would agree that it would be “unwise to grant unsupervised contact” to the father, “[a]bsolutely, if the content of that report is an accurate reflection of what has occurred between the father and his daughter” (Judgment, paragraph 80).

26.  The Assessment Detail document dated 19 March 2003 tendered by the child representative recorded that (exhibit 20) “the outcome of this assessment is recorded as substantiated sexual abuse of the child by her father”.

27.  His Honour suggested that the expert evidence established that:

… it is essential that where facts of sexually inappropriate behaviour have been proved to the required standard in this case, that it is essential the alleged offender recognises and takes responsibilities for his acts.  Nowhere has the father done that. (Judgment, paragraph 82) 

28.  The trial Judge recorded that:

The father has not acknowledged that any behaviour of his is inappropriate, he has at all times denied it, on some occasions categorically denying it, and on one other occasion indicating that he cannot recollect anything of that nature taking place. (Judgment, paragraph 84) 

29.  His Honour referred to the evidence of Ms B that the father and the child “have a close and loving relationship”.  He then discussed the possible risk associated with the father having unsupervised contact prior to his successfully completing what Ms B described as a “sexual offender treatment program” (Judgment, paragraph 86). 

30.  The trial Judge proceeded, “[ha]ving come to the conclusion that the allegations of the child are true”, to “consider what steps we can take to protect the child” (Judgment, paragraph 89).  He found it “clear on the evidence before me that the applicant father is in denial” (Judgment, paragraph 90) and having thus:

… found to the requisite standard that in fact the matters did take place as set out by the child and taking into consideration the experts, particularly Dr W and Ms B’s evidence, that the child’s contact with the father, and there must be contact, cannot be other than supervised. (Judgment, paragraph 91) 

ISSUE ON THE APPEAL – ADEQUACY OF THE TRIAL JUDGE’S REASONS

31.  The grounds of appeal which were ultimately argued were grounds 1, 4 and 11 of the Amended Notice of Appeal filed 20 December 2004.  At the commencement of his submissions, learned counsel for the father suggested that the appeal would “collapse” to an argument in relation to the adequacy of the trial Judge’s reasons for his decision.  The father’s case was that such reasons were inadequate. 

32.  The circumstances of this appeal and of the proceedings before the trial Judge render some consideration of the law relating to the adequacy of reasons for judgment.  In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 249, McHugh JA (as he then was) suggested that:

… without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as ‘a necessary incident of the judicial process’ because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.

33.  His Honour suggested that the requirement of reasons served at least three purposes, they being:

… to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future. (From Bennett and Bennett (1991) FLC 92-191 at 78,266 in which the Full Court (Nicholson CJ, Simpson and Finn JJ) followed Soulemezis v Dudley (Holdings) Pty Ltd)

34.  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." (Bennett v Bennett at 78,266)

35.  In Bennett v Bennett (1991) FLC 92-191 the Full Court of this Court suggested that “the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments”.

36.  The authorities make clear that the adequacy of reasons depends upon the circumstances of the case.  In M v M (1988) 166 CLR 69 the High Court said 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. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. 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 assess 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.  (at 76-77, footnotes omitted)

37.  In WK v SR (1997) FLC ¶92-787 the Full Court (Baker, Kay and Morgan JJ) said:

47.  In children's matters under Part VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.

48.  This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.

38.  The authorities to which we have referred leave little room for doubt that the trial Judge in this case was obliged to give clear reasons for his conclusions with respect to the allegations of sexual abuse made against the father and, as the High Court has made clear, to the broader issue of the welfare of the child.  Clearly, the trial Judge’s conclusions with respect to the allegations of sexual abuse in the circumstances of this case would have assumed considerable and potentially decisive significance for that purpose.

39. It is apparent from the evidence, but less immediately so from the trial Judge’s reasons, that the child’s allegations fell into three categories. In increasing order of potential significance, they were that the father had bathed with her (with or without “togs” on); that, in the course of such bathing the child had touched the father’s penis; and that, in the course of such bathing the father had encouraged the child to engage in such activities, the last mentioned allegation involving what the experts before his Honour described as “grooming” of a child by an adult for sexual purposes. It would be readily apparent that different inferences would be likely to be drawn depending upon the Court’s findings in relation to the various categories of allegation to which we have referred. In our view the trial Judge was obliged to make clear in the course of his reasons what he found to have been proved in relation to each category of allegation and the impact of such findings within the context of s 68F(2) of the Family Law Act 1975 (Cth).

40.  As recorded above, the grounds of appeal which were pursued on behalf of the father provided:

1.   The Trial Judge failed to adequately weigh the evidence of the child as to whether the father bathed naked with the child or take into consideration other available conclusions that may have been drawn from the child’s disclosures.

…

4.   The Trial Judge failed to consider adequately or at all the other available inferences that could have been drawn from the evidence of the child’s disclosures.

…

11.  The Trial Judge’s findings in relation to the child’s disclosures and the question whether there was an unacceptable risk were against the weight of the evidence.

SUBMISSIONS OF THE FATHER

41.  Learned counsel for the father argued the challenge to the adequacy of the trial Judge’s reasons by reference to a series of steps, the first of which entailed a consideration of the reasons the trial Judge gave for his decision.  Reference was made to the trial Judge’s statement that:

… the case comes down to this question.  Did the child make these allegations and are they true?  If they are true, would the child face an unacceptable risk of some sexual misadventure or sexual interference or inappropriate conduct by her father should unsupervised contact be given? (Judgment, paragraph 23) 

42.  The trial Judge had (paragraph 22) “listened in full” to the “audio tapes” in which the child made her allegations.  Whilst his Honour referred to the child’s allegation that “she had touched her father’s penis whilst in the bath”, he did not refer, prior to suggesting what the case “comes down to”, to the allegations which, if accepted, would amount to the more serious allegations of abuse. 

43.  Reference was made to the trial Judge’s statement that there were “really only two points” in the case which he then discussed (paragraphs 27 & 28).  It was submitted that the trial Judge’s failure to identify earlier (paragraph 23) anything other than the allegation that the child had touched the father’s penis whilst in the bath, also applied to his formulation of the “points” in the case in those later paragraphs. 

44.  Learned counsel for the father then referred to paragraphs 32 and 33 of the judgment as where the “evidence” came from to support the allegations against the father, and to his Honour’s identification of “two basic areas” from which such evidence was obtained.  Having referred to the tapes of interviews with the child by Ms TPT on 5 February 2003 and 9 March 2003, the trial Judge referred to the allegation of the child that the father “allows her to play with his weewee” and that “she and Daddy play games with her in the bath” (Judgment, paragraph 42). 

45.  It was submitted on behalf of the father that, as paragraphs 44-51 of the reasons for judgment confirmed, the child’s spontaneity in responding to the question “did daddy have clothes on?” with the words “why would you have clothes on in a bath?” was a matter upon which the trial Judge relied for his conclusion that “what the child has said, as being to the best of her recollection, that that’s what’s taken place” (Judgment, paragraph 51).  It was submitted that his Honour’s reasons make clear that he relied significantly upon the child’s spontaneity to determine what he had identified as “extremely difficult” issues to decide (Judgment, paragraph 44). 

46.  Whilst his Honour clearly recorded that he accepted the evidence of the witnesses, in particular of Dr W, Ms TPT and Ms B that “this type of conduct is totally inappropriate to any child of this age, and in particular in this case, to KCM” (Judgment, paragraph 52), it was submitted that the finding that the father had admitted bathing with the child without “togs” until mid 2002, was, without more, not significant.  It was submitted that no sufficient basis for finding that the husband had committed “this type of conduct” emerged from his reasons for judgment.

47.  The “second pillar”, as counsel for the father described it, of the trial Judge’s reasoning in relation to allegations of abuse was Dr W’s evidence of concern in the event of it having been established that the father had inappropriately been touched by his daughter.  It was submitted that, whilst there could be no suggestion that, if that allegation were made out, Dr W’s opinion would be other than acceptable, it was for his Honour to conclude, on the evidence, whether or not allegations of abuse had been established, rather than relying upon the conclusions reached by departmental officers.  It was thus submitted that whilst Dr W’s evidence could properly have the effect to which his Honour referred, it could only do so if, in the exercise of his judicial function, the trial Judge concluded that the allegations against the father had been established.  Reliance upon the findings of the Department of Families in relation to the allegations of abuse was submitted to have not been open to his Honour. 

48.  The “third pillar” upon which the trial Judge was submitted to have relied was the refusal or inability of the father to acknowledge his inappropriate conduct towards the child and seek an appropriate course of treatment or counselling as a consequence.  It was submitted on behalf of the father that, if it had been open to the trial Judge to find that the father had sexually abused the child in the ways she alleged, the inferences drawn by him in relation to the father’s “denial” would have been open to him but that, absent a proper foundation for a positive finding in relation to the allegations of sexual abuse, no such adverse inferences could be drawn. 

49.  It was thus submitted that the trial Judge had not anywhere in his judgment made clear what allegations he in fact found proved against the father and that, properly analysed, the only reason which emerged from the trial Judge’s judgment in relation to such positive finding was the “spontaneity” of the child when asked whether the father had clothes on in the bath. 

50.  Sensibly it was conceded on behalf of the father that, if the findings had been open to him, the trial Judge would have been entitled to accept the opinions of Dr W, Ms TPT and Ms B to which he referred, but that the task of determining the threshold issue of alleged sexual abuse at all times remained the function of the trial Judge and that the seriousness of the issue of sexual abuse obliged the trial Judge to provide more extensive reasons than he did.

51.  It was also submitted on behalf of the father that, although his Honour referred to the “required standard” of proof (paragraph 82), and “requisite standard” (paragraph 91), nowhere did the trial Judge in his reasons make clear what that standard was or provide adequate reasons for being satisfied that, whatever it was, the standard had been satisfied. 

52.  On behalf of the father it was further submitted that, although it could reasonably be inferred that the trial Judge did not accept the father’s denial of any inappropriate conduct towards the child, although he clearly realised that to have been the father’s case as is apparent from paragraph 84, nowhere in his judgment did the trial Judge give any reasons for rejecting the father’s explanations, nor did his reasons reveal any analysis of the father’s defence to the allegations.  It was thus submitted that the inadequate reasons in relation to the allegations themselves, combined with the failure to consider the father’s evidence, and to give reasons for the finding of impropriety constituted appealable error. 

53.  Complaint was also made in that context that the trial Judge had not, in his evaluation of the allegations of sexual abuse and the father’s denial of them, had regard to evidence given by the father in response to questions asked of him by the trial Judge.  Reliance was placed upon the following exchange:

HIS HONOUR: KAM, do you concede that at this stage it would be inappropriate for you to bathe with the child?---Oh, absolutely.

And you’ve had the opportunity of bathing with – notwithstanding her very limited contact, as you say, you say you’ve had the opportunity of bathing with the child but have not done so?---That’s correct – although, in an eight hour gap, sir, very seldom does she have a bath.

Yes, I appreciate that?---But if we go to a local pool, my mother and little girls – she likes them to have a shower to get the chlorine off her and anything else, but never have I had anything to do with that.

Yes?---Nor would I.

54.  There was no suggestion at trial that, in the period of approximately 12 months during which the father had exercised supervised contact with the child, the child had alleged any inappropriate conduct on his part, much less any conduct of the kind referred to in the early 2003 interviews with Ms TPT.  The father was not challenged in relation to the evidence referred to above.  It was not suggested to the father that he had at any time acted inappropriately towards the child in the post separation period.

SUBMISSIONS OF THE MOTHER

55.  On behalf of the mother considerable reliance was placed upon the “unchallenged” expert evidence.  A number of references to Ms B’s report filed 13 June 2000 were provided in support of the submission that there were a number of adverse “professional observations” about the father upon which the trial Judge was entitled to rely.  The references to Ms B’s first report (Outline of Argument, paragraph 4(a)) could not however have properly impacted upon the trial Judge’s determination of the probability or otherwise of the child’s allegations against the father being true. 

56.  Reference was made to Ms B’s second report but again those were not matters capable of impacting upon the probability or otherwise of the allegations of sexual abuse against the father having substance. 

57.  Reliance was placed upon Ms B’s third report in which Ms B had reiterated her earlier criticisms of the father and suggested that “[u]nless and until there is confidence that the child is not at risk of sexual abuse in her father’s care, then I believe his contact with her should be supervised”.  That opinion evidence could not be relied upon in relation to whether the child was “at risk of sexual abuse in her father’s case”.   

58.  Reliance was placed upon the evidence of Mr C with respect to the father’s personality profile.  In his evidence, Mr C had recorded a number of less than flattering observations of the father, none of which could properly have impacted upon the trial Judge’s determination of the probability or otherwise of the allegations against the father being established.

59. Acknowledging that the trial Judge’s reasons for concluding that the allegations of sexual impropriety against the father had been established could have been more extensive than they were, counsel for the mother submitted that the trial Judge had demonstrably and permissibly relied upon the evidence of Ms TPT and Ms B in support of his conclusion that the allegations against the father had been made out. Counsel for the mother referred to the provisions of s 80 of the Evidence Act 1995 (Cth) in support of his submission. That section provides:

Evidence of an opinion is not inadmissible only because it is about:

(a)    a fact in issue or an ultimate issue; or

(b) a matter of common knowledge.

60.  We would say at this point that we are not persuaded that the trial Judge sought to support his conclusions with respect to the allegations of sexual impropriety against the father by relying upon the evidence of the experts, but if we are mistaken in this regard, then such reliance was not justified.  There was an abundance of evidence before the trial Judge as to the implications of the father’s conduct if he found those allegations to have been established.  Objectively, only two people know what did or did not occur, the child and the father.  Whilst a number of the expert witnesses at trial may have been qualified to give evidence that the child’s presentation at interviews, conduct at that time or on other reported occasions was consistent with a child who had been exposed to behaviour of the kind alleged against the father, we have not been referred to any such evidence.  Whether or not the father had behaved in the manner alleged by the child was a question of fact to be determined by the trial Judge.  We have earlier considered the matters which emerge from his Honour’s reasons in that regard.

61.  Reliance was placed upon the father’s concessions that he had been “bathing with the child” “[a]t the end of 2001 / early 2002”.

62.  Reliance was placed on the father’s statements during his interview in which Ms B recorded him as having:

… absolutely denied there were sexual connotations to any such physical contact [the child touching his penis in the bath] which might have occurred.  He was not saying that she did not touch him, but did not think that she ever did and had no recollection of her touching him in this way. 

63.  Reliance was placed upon a number of passages in the report of Mr C, particularly as Mr C was a witness in the father’s case.  In such paragraphs Mr C recorded “contradictory” statements or explanations provided by the father “across the duration of two of the three interviews”, and concluded that the father’s “explanation of events is unreliable”. 

64.  Reliance was placed upon evidence, including that of the father, suggesting that, although no allegations of impropriety arose from his doing so, the father was having unsupervised contact subsequent to the making of orders for supervised contact, it being submitted that this provided further evidence of the unreliability of the father’s evidence. 

65.  It was accordingly submitted on behalf of the mother that the trial Judge had ample evidentiary foundation for rejecting the father’s denials of sexual impropriety with the child. 

66.  It was submitted that, whilst it is regrettable that the trial Judge had not provided more extensive reasons for judgment, a balanced reading of his judgment made clear that the father’s denials had been rejected and the child’s allegations of naked bathing, touching the father’s penis and playing games consistent with “grooming”, as the experts explained it, had clearly been established.  It was thus submitted that there could be no doubt that the trial Judge had found the father to have conducted himself in a way that clearly constituted an unacceptable risk and rendered supervised contact the only form of contact consistent with the child’s best interest.

SUBMISSIONS OF THE CHILD’S REPRESENTATIVE

67.  Counsel for the separate representative endorsed the contentions advanced on behalf of the mother and submitted that, there having been no doubt that the father had at times bathed with the child without clothes on, the only issue before his Honour had been whether the penis touching and “bath games” had occurred in the manner alleged by the child.  It was submitted that his Honour’s reasons revealed his awareness of the more serious allegations made by the child (paragraph 42) and that it could necessarily be inferred from the trial Judge’s reasons that he had both accepted the evidence of the child in respect of her allegations, and rejected the denials of the father in that regard.  It was submitted that the trial Judge’s reasons in that regard were encapsulated in paragraphs 29 – 44, to which we have earlier referred. 

68.  It was submitted that the father’s admissions in relation to the naked bathing with the child in the past clearly established that the opportunity for the inappropriate behaviour complained of by the child had existed.  The trial Judge, having heard the tape recordings of the child’s interviews, was thus entitled to give substantial weight to the child’s evidence, and did so, having made due allowance for the child’s statements being “in answer to some leading questions” (Judgment, paragraph 45).  These findings and the “difficulties” with the father’s explanations, combined to provide an ample foundation for the trial Judge’s conclusions with respect to the allegations of sexual abuse.

DISCUSSION

69. As we have suggested earlier, the trial Judge was in the circumstances of this case clearly obliged not only to carefully evaluate the evidence before him, both in relation to the allegations of sexual abuse and to the implications of his findings in that regard within the context of s 68F(2), but to provide an explanation of the reasons which led him to conclude as he did.

70.  His Honour clearly was aware of the child’s complaints.  He recorded those complaints (paragraph 42) in a manner which makes clear that he appreciated the complaints to be that the father was in the bath with the child at a time neither had any clothes on, that he had allowed the child to “play” with his penis in the bath on those occasions and had played “games” with the child, during the course of which the child was permitted or encouraged to play with the father’s penis.  His Honour heard the tape recordings in which the child made the complaints which find expression in the reports of Ms TPT.  The accuracy of the recordings therein contained and the trial Judge’s references to them were not challenged before us. 

71.  His Honour was entitled to give the child’s evidence very considerable weight in the circumstances of the case, particularly given that there was no suggestion that the child did not make the statements to which his Honour referred.

72.  To the extent that the trial Judge purported to rely upon conclusions reached by the Department of Families that the father had “inappropriately been touched by his daughter”, he could not properly do so.  As the authorities make clear, the task of determining the allegations of sexual abuse was that of his Honour, on the evidence before him.  Whilst, as the High Court made clear in M v M, his Honour’s task was not necessarily to reach a definitive conclusion with respect to allegations of sexual abuse, it was clearly to determine the issue for himself as the “ultimate trier of fact” (see Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 at 729) according to the standard discussed in M v M and B v B [Access] (1986) FLC 91-758.

73.  In our view, as was submitted on behalf of the father, although his Honour’s conclusions with respect to the consequences of finding that the father had acted in a sexually inappropriate manner with the child were undoubtedly as he suggested, the consequences of such conduct on the part of the father could not impact upon the probability or otherwise of the father having so acted.  That issue required determination on the evidence before the trial Judge.  So far as the allegations against the father are concerned, the only reasons recorded by the trial Judge able to be relied upon in support of the positive finding he made is the child’s “spontaneity” in relation to a topic which was not controversial in any event.  We agree with the submission on behalf of the mother and the separate representative that it cannot reasonably be suggested that, although he only expressly referred to the naked bathing, the trial Judge did other than accept the three categories of allegation which the child can be seen as having made. 

74.  Nowhere in his reasons did the trial Judge consider the father’s evidence nor provide any reasons for rejecting his assertions of innocence which, we accept it can clearly be inferred from the judgment his Honour did reject.  It has not been suggested that the father’s evidence rendered his defence so improbable as to permit the trial Judge to reject it without giving some indication of why he did.  It may well be that, as the child representative submitted, there was ample evidence before the trial Judge to justify rejection of the father’s denials of impropriety.  Regrettably, to the extent that such matters moved the trial Judge to that conclusion, they do not find expression in his judgment. 

75.  It ought not be thought, where the trial Judge clearly did not accept the father’s denials of impropriety, that insistence upon reasons is mere ‘nit-picking’ on the part of this Court.  We referred earlier in these reasons to the authorities in relation to allegations of sexual abuse and to the standard of proof applicable to them.  As was submitted on behalf of the father, whilst the trial Judge made reference to the standard of proof, nowhere does it emerge from his reasons what he regarded that standard to be in the circumstance of this case, nor did he provide reasons for concluding that such standard had been satisfied, or why he concluded that it had.  In our view these omissions amount to a fatal flaw in his Honour’s reasons for judgment.

76.  Within the context of his reasons being satisfied that the “requisite” or “required” standard of proof had been satisfied, the trial Judge nowhere referred to the credibility of the father.  Without suggesting that his Honour needed to refer specifically to the father’s credibility, in our view the unchallenged evidence of the father to which we have earlier referred in relation to not having bathed with the child in the year prior to the trial, and of accepting that so doing was inappropriate, and confirming that he would not in the future do so, required some consideration in his Honour’s reasons for finding as he did in relation to the issues of abuse and unacceptable risk.  Whilst the father’s denials of impropriety in the past may have been rejected by the trial Judge, this Court simply cannot know the trial Judge’s attitude to the father’s evidence in relation to the past year, or to the future. 

77.  Whilst it is regrettable, given the evidence to which we have been referred by counsel for the mother and the child, which may, had his Honour considered it, have led him to be satisfied that the serious allegations levelled against the father were established, in our view, the absence of reasons for his Honour’s conclusion in relation to the issue constitutes appealable error.  Whilst the evidence to which we have been referred may have had the consequences we have discussed, it cannot in our view be suggested that this would inevitably have been the case.  Nor can it be suggested that affirmative findings in relation to the most serious allegations of “grooming” might not have resulted had the trial Judge approached the issues in the manner suggested by the authorities to which we have referred.  That being so, the appeal should be upheld and a new trial ordered.  Whilst we have reached this conclusion with great reluctance, the weight of the authorities leads us to believe that we have no alternative than to allow the appeal. The trial Judge’s orders shall continue as interim orders.

COSTS

78.  At the conclusion of the hearing of the appeal, we received submissions in relation to the costs of the appeal.  In the event that the appeal was to succeed, all parties (including the child representative) sought certificates under the Federal Proceedings Costs Act 1981 in respect of the appeal and of any new trial ordered. We consider it appropriate to grant such certificates.

ORDERS

1.          That the appeal be allowed.

2.That the parties’ applications for residence and contact orders be remitted for rehearing by a Judge other than the Honourable Justice Bell.

3.That pending the rehearing referred to in Order 2 of these orders, the orders of 29 October 2004 remain in operation on an interim basis.

4.That the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.

5.That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.

6.That the Court grants to the child’s representative a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the child’s representative in respect of the costs incurred by the child’s representative in relation to the appeal.

7.That the Court grants to each party (including the child’s representative) a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

I certify that the preceding
78 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 19/05/06