Kings & Murray

[2009] FamCA 565

FAMILY COURT OF AUSTRALIA

KINGS & MURRAY [2009] FamCA 565

FAMILY LAW – CHILDREN – Allegation of child sexual abuse – Whether there is proof on the balance of probabilities that the alleged abuse on the part of the father against his daughter had occurred – Consideration of the seriousness of the allegation and its likelihood of occurring and the gravity of the consequences if the allegation is found to be true – Conflicting evidence between the reporting of the mother of particular words used by child and the father’s denial sworn on oath that the allegation is false – Evidence of the single expert witness psychiatrist indicated that it is unlikely that the abuse occurred.

FAMILY LAW – INTERPRETATION – COMMON LAW – Consideration of the decision of the High Court of Australia in M & M about the relevant standard of proof in matters involving allegations of child abuse – The Court must assess whether time spent between a party and a child would give rise to an “unacceptable risk” of child abuse – The “unacceptable risk” test does not create an additional standard of proof to the ordinary test of balance of probabilities – The “unacceptable risk” test is of little assistance to the Court in determining whether the something has occurred or not but only mandates that the Court must be acutely aware that such orders may expose a child to an unacceptable risk – The “unacceptable risk” test is contradictory in that it is almost impossible for a Court to make a finding that there would be an unacceptable risk for a child if the Court has not been able to make a positive finding that the abuse occurred on the balance of probabilities.

FAMILY LAW – EVIDENCE – Evidence of expert witness did not detail in a clear and elaborate manner how relevant conclusions that abuse is very unlikely to have occurred were reached.

FAMILY LAW – HELD – No positive or negative finding possible on the basis of the evidence that the abuse alleged against the father had occurred – Sole parental responsibility to remain with the mother, with appropriate consultation occurring between the parents regarding decisions about the child’s health and school matters – Time to be spent between the father and the child is outlined in the Judgment

Evidence Act 1995 (Cth) ss 140(1), 140(2), 141(1)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3), 60CC(4), 60CC(4A), 61DA(1), 61DA(2), 61DA(4), 64B(1), 64B(2)

B & B [1988] HCA 66
Briginshaw v Briginshaw [1938] 60 CLR 336
M & M [1988] 166 CLR 69
Makita(Australia) Pty Ltd vSprowles [2001] NSWCA 305

APPLICANT: Ms Kings

RESPONDENT: Mr Murray

INDEPENDENT CHILDREN’S LAWYER: Joseph Tallarita

FILE NUMBER: CAF 509 of 2006

DATE DELIVERED: 12 June 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 9 – 11 June 2009

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: In person

FOR THE INDEPENDENT CHILDREN’S

LAWYER:

Joseph Tallarita

Orders

1. …, born … August 2006 (“the child”), shall live primarily with her mother.

2. The mother has sole parental responsibility for the child, subject to the following orders:

   (a)The mother will authorise and direct any medical practitioner or health professional to whom the child is taken or with whom she consults to make available to the father, any details of the treatment that the child has received or any diagnosis or any result of the consultation.  I note that the father has not taken advantage of this order previously.

   (b)The mother will ensure that the father is advised promptly, and in any event within two days, of any treatment that the child has received.

   (c)The mother will advise the father promptly about any emergency treatment or urgent treatment undertaken for the child.

   (d)Each of the parents will keep the other informed of any medical event or injury occasioned to the child while she is with him or her.

   (e)Each of the parents will ensure that he or she advises the other parent of any treatment that the child is receiving; supply any medication that is necessary for the period that the child is with the other parent and ensure that she takes that medication when the child is with him or her.

   (f)The mother will consult with the father about the school the child will attend and pre-school the child will attend.

   (g)Each of the parties will engage in that consultation in good faith although if they are unable to agree, the mother’s opinion about which pre-school or which school the child will attend will prevail. 

First Phase: Time spent between the father and the child

1. The child will continue to spend two hours supervised time with the child per fortnight at the Centacare Contact Service at G, NSW, between 4.00 pm and 6.00 pm, or such other time as the parents agree. 

2. The father will meet the costs associated with this service.

3. Subject to Order 6 pertaining to the parties completing the ARCK program, this supervised time will continue for a further period of two months from the next occasion upon which the child and the father have time together.

4. The parties will complete the ARCK program in Canberra at Marymead Child & Family Centre.   If the ARCK program has not been completed within the time frame nominated by me in Order 5, the father will continue to engage in supervised time with the child as outlined in Order 3, until the parties have completed the program. 

5. Both parties must do all things necessary to effectuate their completion of the ARCK program. 

6. The parties are at liberty to file an application on 48 hours notice to this Court if either parent interferes with the completion of the ARCK program.  I note that it is not the case that anyone will derive advantage by serving to delay, or hurriedly push through, completion of the ARCK program.

Second Phase: Time spent between the father and the child

1. Following the supervised contact as outlined in the First Phase and the completion of the ARCK program by the parties, the child will spend each Saturday between 9.00 am and 1.00 pm with the father unsupervised. 

2. This unsupervised contact will continue for a period of six months.

3. Handovers between the mother and the father for the Saturday period will occur at the Centacare Contact Service at G, NSW.  The parties must do all things necessary to effectuate the handover immediately before and after the Saturday period occurs.

Third Phase: Time spent between the father and the child

1. Following the period of unsupervised time spent outlined in the Second Phase, the child will spend each Saturday between 9.00 am and 5.00 pm with the father unsupervised.

2. This unsupervised contact will continue for a period of three months.

3. Handovers between the mother and the father for the Saturday period will occur at the Centacare Contact Service at G, NSW.  The parties must do all things necessary to effectuate the handover immediately before and after the Saturday period occurs.

Fourth Phase: Time spent between the father and the child

1. Following the period of unsupervised time spent outlined in the Third Phase, the child will spend 5.00 pm Friday to 5.00 pm Saturday overnight on each alternate weekend with the father unsupervised.

2. This unsupervised contact will continue for a period of three months.

3. Handovers between the mother and the father for the Saturday period will occur at the Centacare Contact Service at G, NSW.  The parties must do all things necessary to effectuate the handover immediately before and after the overnight period occurs.

Fifth Phase: Time spent between the father and the child

1. Following the period of unsupervised time spent outlined in the Fourth Phase, the child will spend 5.00 pm Friday to 5.00 pm Sunday on each alternate weekend with the father unsupervised.

2. This unsupervised contact will continue thereafter.

3. Handovers between the mother and the father for the Saturday period will occur at the Centacare Contact Service at G, NSW.  The parties must do all things necessary to effectuate the handover immediately before and after the overnight period occurs.

Phone calls between the father and the child

1. The father is permitted to contact the child once by phone on Monday and Thursday each week between 5.00 pm and 6.00 pm.

2. If the phone call cannot be facilitated during the time outlined in Order 21 for whatever reason, the father may make an alternative phone call the following morning between 7.30 am and 8.30 am. 

3. The duration of the phone call will be between approximately three and five minutes, with five minutes being the maximum.

4. Noting that the father has done so previously, the father must not make any reference to any legal proceedings (including family law proceedings) to the child during these phone conversations and will ensure his communication with the child complied with Order 30 below.

5. The mother will make the child available during the relevant times above and will make available a mobile telephone provided by the father for the purposes of receiving such calls.  The father will be responsible for making the telephone initially available to the mother and will be responsible for all costs associated with that telephone so far as charges are concerned.  The mother is prohibited from making any other personal calls on that mobile telephone. 

The child’s birthday: … August

1. Subject to Order 27 and 28 below, the child will spend two hours with the father on her birthday.

2. In 2009, the time spent between the child and her father will occur at Centacare Contact Service at G NSW, at a time that can be facilitated by the Centre.  If the time cannot be facilitated by Centacare Contact Service, the time will be foregone. 

3. Should the child’s birthday coincide with unsupervised time spent between her and the father overnight, the mother will spend two hours with the child at her primary residence between the hours of 5.00 pm and 7.00 pm.

4. Each parent will cooperate with Centacare and facilitate, as far as practicable, the time that may be spent between the child and her father on her birthday. 

Communication by either parent with the child

1. Neither party will make any disparaging, rude or denigrating comment about the other party in the child’s presence.

Miscellaneous orders

1. I make no orders in relation to the time to be spent between the father and the child on Father’s Day, nor in relation to the time to be spent between the mother and the child on Mother’s Day. 

2. All parenting orders previously applying to this matter are discharged apart from the Orders made by me this day.

3. The matter is removed from the Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym Kings & Murray is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 509 of 2006

MS KINGS

Applicant

And

MR MURRAY

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this matter, it is important that I should indicate from the start the way in which I propose to deal with the judgment.  I do not propose to go back through the procedural history of the matter; this is well known to the parties.  It is a matter relating to the time that the child will spend or will not spend, as the case may be, with her father.  The orders that are sought are parenting orders within that definition under the Family Law Act1975 (Cth).[1] Accordingly, in accordance with s 60CA of the Family Law Act1975 (Cth), I must regard the best interests of the child as the paramount consideration in any parenting order that I might make.

   [1] Family Law Act 1975 (Cth) s 64B(1) & s 64B(2) refers.

Equal shared parental responsibility

1. Although it has not been a matter of contention before me in these proceedings, s 61DA of the Family Law Act1975 (Cth) mandates that I am to proceed in terms of making a parenting order on the presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for her.[2] There are a number of factors set out in s 61DA which indicate in what ways the presumption may be rebutted.[3]  In this particular matter, there is no reasonable prospect that the parents could logically have joint equal shared parental responsibility for the child.  Their antipathy to each other is such that it is not possible to contemplate that they will now, or at any time in the foreseeable future, ever get to a point where they can happily cooperate about making major decisions about her future.  Accordingly, in my opinion, the evidence quite clearly rebuts the presumption.  That, however, was not significantly a matter significantly in issue between the parties.

Conflict of best interests?

[2] Family Law Act 1975 (Cth) s 61DA(1).

[3] For example, if a child (or another child in the family) has been abused, or if there has been family violence: see Family Law Act 1975 (Cth) s 61DA(2)(a) & s 61DA(2)(b). The presumption is also rebutted if the Court is satisfied that there is evidence that it would not be in the child’s best interests for the child’s parents to have equal shared parental responsibility: see Family Law Act 1975 (Cth) s 61DA(4).

Primary considerations in determining the best interests of the child

1. The matters that are in issue are those matters that relate to the child’s best interests, and how the Court determines what is in a child's best interests is set out under the Act in s 60CC. Section 60CC(1) provides that in making a determination about what is (in this case the subject child’s) best interests, the Court must have regard to two primary considerations and to a number of other additional considerations. Those considerations must be undertaken in the context of the “Objects and Principles” under Part VII of the Family Law Act 1975 (Cth).[4] Relevantly, the primary considerations are contained in s 60CC(2) of the Family Law Act 1975 (Cth)):

   Primary Considerations

   [4] Family Law Act 1975 (Cth) s 60B refers.

   (2) The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. These two primary considerations are to some extent in contradiction of each other, in the sense that if it were found to be the case that the child required protection from being subjected to abuse, neglect or family violence, then it may be at the expense of the benefit to the child in having a meaningful relationship with the parent who is asserted to have carried out the abuse or neglect.

3. In this case, that is the nub of the dispute between the parties.  The parties have been involved in previous Court proceedings which resulted, after a contested hearing, in a judgment delivered by me in the middle of 2008.  Within a very short period, a further matter arose which has become the subject of these proceedings. This, in short form, is an allegation based on a so-called disclosure by the child that her father had sexually assaulted her by licking her genitals.  That is the principal issue that has been contested before me, but I emphasise that my consideration of this matter is not simply to determine whether or not that conduct occurred, but to make a decision in the light of the matters that I am obliged to take into account about what would be in the child’s best interests.

What finding could possibly be made?

1. In making a determination in these sorts of proceedings, I am in a situation where ordinarily the Court would be asked to make either a positive or negative finding about whether the conduct the subject of the allegation by the mother on behalf of the child actually occurred or not.  This is a Court in which findings of fact are made by a Judge not a jury.  In those circumstances I am the Judge of those facts. 

The standard of proof

1. There are, at law, two standards of proof in relation to the proving of matters before a Court.  In criminal matters, the standard of proof for the prosecution of a crime is establishing the defendant’s guilt beyond reasonable doubt.[5]  The civil standard, which is applicable to these proceedings, is that a Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.[6] 

   [5] Evidence Act 1995 (Cth) s 141(1).

   [6] Evidence Act 1995 (Cth) s 140(1).

2. Proof on the balance of probabilities involves, among other things, a consideration of what is more likely to have occurred than not.  However, it has been well known for some time (and the Evidence Act1995 (Cth) provides for this[7]) that where what is being sought to be proved is a grave and serious matter, or put in more blunt terms, if what is sought to be proved might be a criminal action, then the Court must apply what has been loosely described in the past as the Briginshaw v Briginshaw[8] standard of proof.  In that decision, their Honours (Latham CJ, Rich, Starke, Dixon and McTiernan JJ) considered whether the matter required to be proved (which related to whether adultery on the part of one of the parties had occurred or not) was to be proved on the civil standard of proof or some other standard.  In his, judgment, his Honour, Dixon J,[9] in commenting about the difficulty in making decisions in civil cases, stated:[10]

   The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.  It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.

   [7] Evidence Act 1995 (Cth) s 140(2) refers.

   [8] Briginshaw v Briginshaw [1938] 60 CLR 336.

   [9] His Honour subsequently became Chief Justice of the High Court of Australia in 1952.

   [10] Briginshaw v Briginshaw [1938] 60 CLR 336, 361 (Dixon J).

3. That is, in part, the difficulty I face in the proceedings before me, and I will explain why below.  In addition, his Honour stated:[11]

   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.

   [11] Ibid 362.

The alleged incident: “Daddy licks”

1. The issue that brought this matter back before the Court arose because on 15 November 2008, when she returned from spending time with her father, the child said to her mother something to the effect of "Daddy licks" and pointed to the area of her genitals.  Upon examination, it was found that there was some redness there which initially the mother suggested was consistent with some sort of whisker rash or something of that sort, although there was no precise diagnosis.  Moreover, there is some difference between the evidence of the mother about the extent of the rash or the marking, or whatever it may have been, and that which was reported when she subsequently took the child to see a doctor.  However, the crucial part of the evidence at this point is the fact that the child said, and I accept this evidence from the mother, "Daddy licks" and pointed to her genital area.

2. It was put in the course of the proceedings and quite forcefully, that other comments made by the mother including earlier statements by the child, which involved reporting that she had been hurt by her father, were comments beyond the comprehension or ability of the child at her age. This opinion was the subject of evidence from Dr M who was the single expert. 

3. I can only be left with three possible conclusions in relation to the mother's reporting of these early incidents.  One is that, notwithstanding that it would not have been a comment that could be appropriately made by a child of this child’s age to make, the child said it. I do not accept that that was the case.  It is not consistent with other statements of the child or indeed from the telephone conversations that the mother recorded with the child between the child and her father.[12]  The second possibility is that the mother simply made up the earlier statements.  (They were beyond the child’s ability.) The third possibility was that the child said something else and the mother has now reported it in a way which is more elaborate than was originally said. 

   [12] Exhibit “M2” – this was an informal phone transcript that was prepared by the mother following a recording made of a conversation between the child and the father. The father was unaware that he was being recorded at that time.  The father consented, notwithstanding his concerns about fairness of being recorded “unawares”, to the “transcript” being admitted into evidence, with the qualification that all the parties noted that it was not a verbatim record of the words stated in that conversation. The parties agreed that the differences in the wording were not significant.  The parties, including the Independent Children’s Lawyer, listened to the tape in coming to that conclusion prior to their reaching agreement to have the transcript admitted into evidence.

1. Either of the second two possibilities is possible, although I think the third possibility is the more likely, that is, that the child said something and the mother has, to some extent embellished it.  It was urged upon me by the father at least that I should find that this was an example of the mother's being prepared to do anything to keep him out of the child’s life.  However, even if I were to find that the mother had been mistaken in her evidence, or perhaps even had embellished it or even possibly told a lie about it, that does not affect my assessment of the accuracy with which she has reported the specific allegation that occurred on 15 November 2008.

2. It is interesting because I come to that conclusion, not only on the basis of what was said, and its consistency with the child’s development and speech, but also on my impression of the mother’s demeanour in the witness box and my conclusion from observing her in the context of these proceedings, that on this matter at least, she was, in my opinion, telling the truth.

3. The importance of this is that it provides one piece of evidence in my consideration about what occurred.  It is one piece of evidence which is, if it were totally uncontradicted, would remain as the proof, on the balance of probabilities, that something occurred, subject to the qualifications to that finding raised by his Honour, Dixon J in Briginshaw v Briginshaw to which I have previously referred. 

4. However, that is not the only evidence.  There is evidence from the father, that says baldly and unqualifiedly that he did not lick her genitals and that he is not guilty of any offence of that sort against his daughter.  This is his sworn evidence before the Court and must be given such credit as such sworn evidence deserves.

The father’s credit

1. My difficulty is this.  In relation to any such offence as this, there are generally only two witnesses.  One is a child who is almost invariably incapable of giving coherent evidence and when the child's memory is unlikely to record all the relevant considerations.  The other is usually a male alleged perpetrator who rarely who would step forward and say, “Yes, I did what it is that I have been alleged to have done.” 

2. Accordingly, an assessment of the evidence has to be based upon what the child said, as his Honour, Dixon J said in Briginshaw v Briginshaw, considering “the inherent unlikelihood of an occurrence of a given description” actually occurring, and then making an assessment on the basis of the other person's evidence (whether or not it is properly believed or believable). 

3. It is necessarily, therefore, a difficult determination in almost every case.  Sometimes there are physical corroborating factors. It might be asserted in this case that the rash or the red mark, or whatever it was, is one of them.  However, no-one has been able to suggest what the cause of that mark actually was.  The father initially suggested the red mark may have been caused by the child riding her tricycle.  This proposition was contested by the mother on the basis that if she were riding a tricycle, that area of her genitals would not be subject to any chafing or rubbing or anything of the sort, and hence would not have produced a red mark.  I have seen video material presented by the father which shows the child both pedalling and also riding (to the extent that that is the appropriate word) on her tricycle with her feet on the ground, which may have had the effect of bringing her genital area in closer connexion with the seat of the tricycle.  However, it became clear in the course of evidence from the father that she was wearing a nappy at the time and this would not logically explain any red mark of the sort that was indicated.  I therefore reject as a possible explanation for the red mark that it was caused by her tricycle.

4. On the other hand, I have no other reasonable explanation for the mark.  It may have been caused by all sorts of things.  I understand the mother to suggest that nappy rashes for the child only occurred in relation to her buttocks and anal area.  In practical terms, I have no idea whether this mark was caused by nappy rash or something else.  In my opinion, the red mark is equivocal and in the circumstances does not assist me to come to any conclusion. 

5. Accordingly, I am left in determining this issue with two pieces of evidence; one of the reported statement of the child which I accept was made, and her actions associated with it, and the second, the denial, under oath, by the father.

6. I indicated to the father during the course of final submissions that I believe that on at least two issues he was telling lies before the Court.  The first of these related to his statements in previous proceedings which were put to him in cross-examination that his cross-dressing related only to his wearing of female undergarments because he found them more comfortable.  (I must hasten to add the father’s cross-dressing is irrelevant in practical terms to these proceedings at all but is relevant only on the question of credit.)  It is clear from the statements made in Dr M’s report and from the father’s comments in the witness box during the course of these proceedings that his previous statements made under oath to the Court about the extent of his cross‑dressing were untruthful.  He explained, and I accept, that the situation is acutely embarrassing for him, and I do not doubt that it is.  On the other hand, the fact that he is prepared to tell a lie in circumstances where something is embarrassing may make it even more appropriate to consider that he might tell a lie in circumstances where the consequences would be criminal.  I do not necessarily draw that conclusion, I merely comment that to say it is embarrassing does not provide an appropriate explanation.

7. The second matter which I am satisfied on the evidence before me in which the father was untruthful, related to the cutting of the child’s hair.  In this regard, I understand the father asserts that it was a “chunk” out of the child’s hair that was the “cutting”. I do not accept that that is so. That was not his first response.  That was that it may have happened while she was with him by her cutting her own hair.  I find that improbable.  He is a caring father.  I cannot imagine his allowing the child even to have, as he suggested, safety scissors by herself without his being present to watch her – and certainly to enabling her to cut a chunk out of her own hair.  In substance, I accept on this point, the evidence of the mother that the child went to see her father with her hair at a certain length and came back to the mother with it shorter – and that it had been cut and not cut by the child herself.  The father's answers in respect of this matter were unsatisfactory and I do not believe him.

8. However, if someone tells an untruth about one matter, does that necessarily mean he or she is telling an untruth about another matter? In this regard, I am not prepared to assume that simply because the father did tell lies about two matters before me that he therefore told a lie about the most important matter that was before me – whether or not he had engaged in sexual abuse of his daughter.  It is difficult for me to say with complete accuracy or precision, precisely why it is that I believe that on this very serious issue, the father is telling the truth but it is open on the evidence before me for me to accept that his statements about this are at least believable.  I do not find that his evidence is such that I would disregard it.  I am in part assisted to that conclusion by the evidence given by Dr M. I will consider that evidence below. 

9. If I were to weigh the evidence before me by considering whether or not it is more likely that something might have happened, I may have come to the conclusion something had occurred.  If I had any doubt about the father's veracity, I might conclude that the event had happened.  [This is mere mechanical weighing up of possibilities.]

10. Notwithstanding that this was not put to Dr M, I was concerned particularly by the fact that the child clearly understands what “licking” means.  The father drew attention to the fact that in the transcript of the conversations the child had with her father, she referred to a puppy dog “licking”.  Now, puppy dogs lick, they bark, they “woof”, they do all sorts of things, but they do not “blow raspberries.” 

11. One of the earlier explanations the father offered for what might have happened and what might have been misconstrued by the child was the fact that he was in the habit of (at that time) of “blowing raspberries” on her tummy.[13] Why I say this is significant is because of the fact that if the “raspberries” had been misconstrued by the child or misreported by the child as “licking down there”, then it seems improbable that she would have subsequently spoken about puppy dogs licking as opposed to something else.  I think she understands what licking is and accordingly I am concerned about the nature of the allegation that has been made.

    [13] I am unaware as to whether the father intends on continuing his habit of blowing raspberries, but it would be unwise for him to persist given the very serious nature of the allegations that have been brought against him in these proceedings.

The evidence of Dr M

1. That then was the state of the evidence.  That was difficult, because if one mechanically weighed the possibilities of something occurring “independently of any belief in its reality”, an approach that his Honour Dixon J warned against in Briginshawv Briginshaw, I may on those facts have come to the conclusion that something had occurred.  However, that is not the end of the matter.

2. There were the assessments conducted by Dr M of the father and the child and the mother and the child.  From those observations, Dr M concluded at least in his oral evidence, that he felt it was improbable, to the point that he was prepared to say that it did not occur, that there had been any sexual abuse of the sort that was possibly indicated by the child’s comments.

3. The terms of reference for consideration by Dr M included (by direct instruction from me) a request that he should give attention to the issue of whether the statements made by the child were age-appropriate, and in part Dr M did turn his attention to that fact.  He did so by commenting on the longer statements [as not consistent with the child’s age] by the child (as asserted by the mother at an earlier point).  I accept his evidence about those matters. 

4. I may feel a sense of some frustration that there was not a more detailed elaboration by the learned expert about how he came to the conclusions that he did. The New South Wales Supreme Court of Appeal decision of Makita (Australia) Pty Ltd vSprowles[14] sets out a prescription whereby experts ought properly to give evidence only in relation to their general area of expertise, only in relation to a specific matter about which they have specific expertise and that they should set out transparently, the process by which they arrive at the conclusions at which they do.

   [14] Makita(Australia) Pty Ltd vSprowles [2001] NSWCA 305 para [85] (Heydon JA – as he then was).

5. I feel in this matter that some of that process is not as clear in Dr M’s evidence or report as it might have been.  Nevertheless, I have no doubt that the learned expert has, in his consideration of the relationship between the child and her father in particular, and the child and her mother, concluded that those relationships were not consistent with the abuse that might have occurred in accordance with the evidence or with the disclosure by the child.

6. In the light of that evidence from Dr M, whose qualifications, experience and expertise were not in issue, it seems to me that I have to turn to what I must physically and forensically be satisfied about before I come to any conclusion. That is to return again to the words of his Honour Dixon J in Briginshaw v Briginshaw that I must “feel an actual persuasion of [the] occurrence” of the event that is alleged to have occurred.  I cannot simply find that something occurred as “a mere mechanical comparison of probabilities, independent of any belief in its reality.” 

7. In this matter, I cannot feel an actual persuasion on the basis of the evidence, as I have outlined and analysed it, that the event that is suggested has occurred.

8. Accordingly, I make no finding that the sexual abuse as asserted occurred. Equally, however, it seems to me that I am unable in the circumstances to make a positive finding that the sexual abuse did not occur.  I say that because while I may not feel a persuasion that the event has occurred, I equally do not feel a persuasion that the event did not occur, notwithstanding the evidence and for the reasons that I have articulated above.

Would there be an unacceptable risk of sexual abuse arising from time spent

between the father and the child?

1. The High Court of Australia in M & M,[15] (which was a parallel decision with B & B[16] decided at about the same time on a substantially similar issue), considered questions of child abuse in a number of different ways.

   [15] M & M [1988] 166 CLR 69.

   [16] B & B [1988] HCA 66.

2. Their Honours (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) suggested that:[17]

   In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is satisfied according to the civil standard of proof, with due regard to the fact that was mentioned in Briginshaw v Briginshaw…

   to which I have previously referred.  Their Honours also stated:[18]

   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 allegations as groundless.  Again in the nature of things, there will be very many cases … 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 of sexual abuse has actually taken place, unless it is impelled by the particular circumstances of the case to do so.

   [17] M & M [1988] 166 CLR 69, 76 (The Court).

   [18] Ibid 77.

3. I would have been impelled, if I were able to do so, to make that determination because it is the precise issue in these proceedings before the Court. Their Honours also stated:

   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 the 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 [a] child’s welfare.  The existence and magnitude of the risk of sexual abuse as with other risks of harm to the welfare of the 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 one of supervised contact.

4. Their Honours summarised the approach that should be taken in these matters by stating that:[19]

   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.[emphasis added]

   [19] Ibid 78.

5. In my opinion, their Honours, in formulating that test in M & M, did not formulate a third standard of proof.  Nor did they formulate an additional test in accordance with Briginshaw v Briginshaw, because they made reference to the standard of proof in civil proceedings.  I also do not believe that their Honours stated that if the Court is unable to be satisfied in those terms, that there is some lesser standard that is unacceptable risk. What their Honours did say, in my opinion, is that if there are to be orders made about a child, then the Court must be acutely conscious of the fact that such orders may, in some circumstances, expose a child to an unacceptable risk.  This, as a matter of logic, in my opinion, goes very close to being self-contradictory.  If the Court has been unable to make a determination about whether or not something has occurred, it seems difficult for the Court to then analyse how it can be said that there can be an unacceptable (or an acceptable) risk that that thing has occurred. 

6. In one sense, no risk that something like that has occurred could possibly be acceptable.  On the other hand, the possibility and the incongruity of something like that occurring, and the possible consequences for the child, are factors which may influence [a judge about] whether or not a risk is acceptable.

7. The following example is illustrative of the dilemma.  If one were to cross the road, there is a risk that one might be killed by a car hitting you. That risk would be significantly greater in crossing a busy five-lane highway in the middle of the day than it would be in crossing a country road in the middle of the night.  The consequent harm that would be caused to the person involved would be identical in both cases, but the overall circumstances in which the matter occurred would indicate that the risk would be less in one case than the other. 

8. Applying that sort of logic to this situation, I do not derive any significant assistance from the concept of unacceptable risk.  If, as I have suggested, I am unable conclusively to determine on the basis of the evidence before me whether something has happened or not, in my opinion, it seems to me that it is almost impossible for me then to say that there still might be a risk that it something may have happened and that therefore the child should spend no time with her father.  Nor could I alternatively conclude that there is no risk, because I have not been able to find it and that therefore there should be unqualified time spent between the father and the child.

9. In that sense, I do not find in this matter that there is an unacceptable risk to the child, because, in my opinion, to do so would be to dilute the non-finding that I have already made.

The “benefit of a meaningful relationship”?

1. Given those factors, I am then left with a consideration of the broader matters that I am to take into account under s 60CC of the Family Law Act 1975 (Cth) to determine what should be the appropriate orders for the child’s best interests. I return for a moment to the first of the primary considerations to which I have referred before, that is “the benefit to the child of having a meaningful relationship with both of the child's parents."[20]

   [20] Family Law Act 1975 (Cth) s 60CC(2)(a).

2. I am very tempted in these proceedings in which the animosity between the parents is as high as any I have seen in most cases that appear in this Court, to conclude that there is very little benefit to the child in having a meaningful relationship with both of her parents, if that means that she is to be exposed either directly or indirectly to the blatant and palpable hatred the parents bear towards each other. That factor, however, has been to some extent ameliorated by the evidence of the parties themselves, and particularly from the observations of Dr M, who suggested that there were advantages to the child, and I interpolate the word "benefit" (from s 60CC(2)(a)) to the child’s having a relationship with her father. In such circumstances, I accord to that consideration its primary value and consider the way in which that relationship might be pursued in the light of the other matters that are set out under s 60CC(3).

Additional considerations in determining the best interests of the child

1. Section 60CC(3) relevantly provides:

   (3) Additional considerations are:

   (a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)The nature of the relationship of the child with:

   (i)Each of the child’s parents; and

   (ii)Other persons (including any grandparent or other relative of the child);

   (c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)either of his or her parents; or

   (ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)the capacity of:

   (i)each of the child’s parents; and

   (ii)any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)any family violence involving the child or a member of the child’s family;

   (k)any family violence order that applies to the child or a member of the child’s family; if:

   (i)the order is a final order; or

   (ii)the making of the order was contested by a person;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)any other fact or circumstance that the court thinks is relevant.

2. I must also go on to consider s 60CC(4) & (4A):

   Without limiting [s 60CC(3)(c) and s 60CC(3)(j)], the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:

   (a)  has taken, or failed to take, the opportunity:

   (i)to participate in making decisions about major long‑term issues in relation to the child; and

   (ii)to spend time with the child; and

   (iii)to communicate with the child; and

   (b)  has facilitated, or failed to facilitate, the other parent:

   (iv)  participating in making decisions about major long‑term issues in relation to the child; and

   (v)spending time with the child; and

   (vi)communicating with the child; and

   (c)  has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

   (4A)  If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

3. The child is of an age where her views are not going to be a factor except to the extent that her happiness and contentedness is properly to be taken into account (at least to some extent.) The mother asserts that the child is not happy when she is with her father and that she is upset and unsettled afterwards. I am not certain to what extent that is caused by separation from the person with whom she has had a very close and primary attachment, and to what extent it is caused by other factors. (If indeed the upset to the child is as severe as the mother suggests.) I am not prepared to make any determination about her best interests based upon her happiness or otherwise in the context of s 60CC(3)(a).

4. The nature of the relationship of the child with each of her parents is at least, so far as her father is concerned, at the moment highly problematic. I am satisfied from the evidence of the father that he wishes to be a good father and that he wants to be involved in the child’s life.  His opportunities for doing so have been relatively restricted because of the continuing disputes between the parents and the orders of the Court which in some respects have limited his ability to develop that relationship.  I am satisfied on the other hand, that the relationship between the child and her mother, although it may be properly described, in my opinion, as being somewhat over-protective, is a very close one and there is no doubt in my mind that the mother is her primary attachment.  Her mother is the person in whom she seeks security, the person to whom she turns in relation to most matters relating to her daily wants.  That means, in the circumstances, that that relationship will always be likely to be stronger [than that with her father].

5. I am appalled by the attitude of each of the parents towards each other.  The third matter I am to take into account is the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent.  I do not think that either is capable of doing that.  Unfortunately, I do not think either parent will ever, reach a state where he or she is prepared to love their daughter more than they hate each other.  However, there is certain equivalence and symmetry in this, so I rather cynically suppose she has at least a balanced view of hatred from both parents.

6. The next matter is the likely effect of any changes in the child's circumstances including the likely effect on the child of any separation from any parent, or other relevant people.  I do not think there are any other relevant people in this matter to whom I should refer, but there is no doubt that if there were to be a substantial separation from her mother at the moment, it would have an adverse effect on the child.  That means, and this is acknowledged by both parents, that the movement of the time that the child spends with her father towards a more normal relationship will take some time.  That is also supported by the evidence of Dr M who set out a quite extensive program of time between the child and her father, clearly vastly more extensive than that sought by the father and less extensive than that that would ever be agreed to by the child’s mother.  I will return to this issue when making my orders.

7. There are practical difficulties and expenses about the time that the child spends with her father.  At the moment, these relate to the expenses of her having supervised time with her father at the Centrecare Contact Service in G, NSW.  This involves transportation difficulties for both parents, including the father apparently having had to ride his bike some 17 kilometres to attend in the past and his suggestion that he would collect the child on his bike and take her home.  At the same time, neither parent is engaged in remunerated employment at the present time.  That also means that these continued expenses will be a problem. 

8. Moreover, I draw attention in my consideration of these matters, to the fact that on a previous occasion I had ordered the parents to attend the Assisting Responsible Care for Kids (ARCK) program, which is a parenting orders program centred in Canberra through Marymead Child & Contact Centre.  The parents have not attended that program, and one of my orders will require the parents to attend before there is progression through one of the stages of the time that I propose to order. That will involve both parents some inconvenience and expense, however, I regard it as crucial to the proper development of the meaningful relationship between the child and her father, and the preservation of the meaningful relationship that she has with her mother.  I do not expect that at the end of that program the parents will have achieved what one would have hoped they might have been able to achieve – some form of working relationship for the benefit of the child.  However, I hope they will have at least got to the point of being able to cooperate in part on the matters arising from the orders that I make.  The orders I make will be as prescriptive as they can be, because I firmly believe that both parents will set out to find ways around them almost immediately.

9. I do not accept that each of the parents is incapable of looking after the physical needs of the child.  I am satisfied that both are capable of doing that, although there is no question about the fact that the mother is the more capable of the two at the present.  This is possibly because the father has not had the same opportunities as the mother.

10. The other matters that should be taken into account are the attitude of each of the parents to the child and to the responsibilities of parenthood, demonstrated by each of them.  I do not doubt that each of them loves the child, and I am firmly convinced that each of them believes that he or she has the child’s best interests in their heart.

11. I would ask them to consider the proposition that each of them has the child’s best interests in his or her heart at the moment.  Each of them is so consumed with their absolute and utter hatred of the other person that he or she cannot possibly have room for their daughter in their heart.  I find that very sad but that is the way it is.

12. There has been some issue of violence, but none that I think is relevant to these proceedings. I am tempted to almost laugh hollowly at the proposition that I should consider, in accordance with s 60CC(3)(l) of the Family Law Act 1975 (Cth) whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child. I say with some cynicism that I would be surprised if issues in relation to the child have been concluded before this Court, before I retire from the Bench in 2016 when the child will be 10 years old. However, leaving those matters to one side, it seems to me I should move towards finding what I can best do to establish the matters [about her welfare] that I have considered before.

13. The orders that I propose to make essentially follow a pattern that has been suggested by Dr M and developed by the parties in consultation with me during the course of submissions, and recommended by the Independent Children's Lawyer, whose assistance in this matter I have been very grateful for.

14. It was suggested by Dr M ([showing] his lack of appreciation of the nature of the relationship between the parties)[21] that it would be nice if they were able to simply drop the child off and pick her up.  I agree.  It would be really nice and it would be a wonderful message to the child.  It is not going to happen, and I suspect that when she is much, much older, there will still be handovers at a supervised contact centre.  This is a matter for the parties.  It is not a matter for me. They have decided this matter between them.  I do not ascribe blame.  I certainly do not ascribe blame to the mother, as suggested by the father, nor do I ascribe all of the blame to the father as is suggested by the mother.

    [21] and this is not criticism of him

15. Regarding telephone contact between the child and her father, I note the father’s submissions about landlines.  I do not believe it is appropriate that the parties should communicate in that way.  I believe that the best way in which the father can ensure that he receives the telephone calls, to which the child should be entitled under these orders, is that he is the one responsible for making the telephone available and ensuring that it is kept up to date so far as charges are concerned.

16. I propose to make no orders in accordance with the invitation made by the father, although in somewhat different circumstances about the child spending time with her father on Father's Day (and I might add with her mother on Mother's Day) if that should happen to coincide with a period of time which she would otherwise be spending with her father.  I also do not propose to make orders about her father's birthday.  It would be nice to think, that the parties could cooperate and substitute days to ensure that the child spends every Father's Day with her father and every Mother's Day with her mother.  However, any variation to the existing arrangements is almost certainly to be fraught with difficulty.  Accordingly, those advantages for the child must be foregone.

Conclusion

1. I accept that the decision I have made is unlikely to be satisfactory to either parent. I am deeply sorry that that is so. I have great sympathy for the child in these circumstances, and I wish that I could have made orders that would have made her life a lot easier than it is.  Nevertheless, it seems to me on the evidence I have before me, those are the conclusions to which I should come. 

I certify that the preceding sixty three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date:  30 June 2009