KN and Child Representative & NN and JN

[2006] FamCA 611

[2006] FamCA 611

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No EA24 of 2005
AT CANBERRA  File No CAF341 of 2003
BETWEEN:

KN
Appellant Mother
- and -
Child Representative
Cross Appellant
- and -
NN and JN
Respondents

REASONS FOR JUDGMENT

CORAM:  Bryant CJ, Finn and Kay JJ
DATE OF HEARING:                 20 July 2005
DATE OF JUDGMENT:             17 July 2006

APPEARANCES:  Mr Gill of Counsel, instructed by Legal Aid Office, 4 Mort Street, Canberra, ACT 2600 appeared on behalf of the Appellant Wife.

Mr Nash of Counsel, instructed by Farrar Gesini & Dunn, Level 5, 17-21 University Avenue, Canberra, ACT 2601, appeared on behalf of the Child Representative Cross Appellant.

Ms Tonkin of Counsel, instructed by, O’Connor Harris & Co, Solicitors, PO Box 212, Civic Square, Canberra ACT 2608 appeared on behalf of the Respondents

KN AND CHILD REPRESENTATIVE AND NN AND JN
EA24 OF 2005
CORAM:  Bryant CJ, Finn and Kay JJ
DATE OF HEARING:         20 July 2005
DATE OF JUDGMENT:     17 July 2006

Catchwords:           CHILDREN – Residence – Evidence – Conclusions to be drawn from the available evidence - lack of adequate reasons – Award of residence to five year old child’s maternal grandparents instead of the child’s mother where there was a finding of “unacceptable risk” – Trial judge relied upon a combination of factors in determining that living with her mother presented an unacceptable risk to the child – Allegations that the child had been sexually abused by the mother’s de facto partner, would be exposed to violence between the mother and her partner, and previous suicide attempts of the mother – The trial Judge appeared to consider that none of the factors constituted an unacceptable risk in isolation but could amount to an unacceptable risk when aggregated – Unclear as to what aspects of mother’s household posed an unacceptable risk of sexual abuse – (Bryant CJ and Kay J) Based on the available evidence, the trial Judge ought to have concluded that he could not be satisfied that there was an unacceptable risk to the child of living with the mother and her partner  – (Finn J) It is not clear that the trial Judge was satisfied that the allegations supported a finding of unacceptable risk on the civil standard of proof, which is necessary if a decision is to be made wholly or in part on the basis of those allegations – Appeal allowed and remitted for retrial.

Bryant CJ and Kay J

1.      This is an appeal against residence and contact orders that were made by Faulks DCJ on 7 February 2005 concerning a child K born in October 1999.  Those orders provide that K should reside with her maternal grandparents who were to have the day to day and long term responsibility for her care, welfare and development.  They also make provision for K’s mother to have contact with her.

2.      At the hearing before Faulks J, K was separately represented.  Both the child’s mother and the child representative have each appealed against the orders made by Faulks J.  The mother seeks that the orders be set aside and that she be granted the residence of the child.  In the alternative she seeks an order that the matter be remitted for rehearing.  The child representative seeks an order that the matter be remitted for rehearing.

Background

3.      The appellant mother was born in 1979.  K was conceived early in 1999.  Her father, DW, has played no role in the child’s life and was not a party to the proceedings. 

4.      Early in her pregnancy the mother began a relationship with DP, which relationship has continued since mid-1999 save for a period of separation from October 2002 until late January or early February 2003. 

5.      K lived with her mother and DP from the time of her birth until late in 2002 when the mother was admitted to hospital where she was treated for psychosis and depression.  Since then K has been in the care of her maternal grandparents.  

6.      In January 2003 the grandparents commenced proceedings at the C Local Court where they obtained an interim residence order on an ex parte basis and an apprehended violence order that restrained DP from assaulting, molesting, harassing, threatening or otherwise interfering with them and K or from going within 50 metres of any premises where they may from time to time reside or work.

7.      The Family Law Act proceedings were subsequently transferred to the Family Court of Australia and the apprehended violence order was amended on 7 April 2004 to enable DP to arrange or exercise access to the child “as agreed in writing or as otherwise authorised by an order, or a registered parenting plan under the Family Law Act 1975”. The order was extended on 7 April 2004 for a period of 12 months.

8.      In January 2003, following her discharge from B Psychiatric Hospital, the mother resumed cohabitation with DP.  K remained living with her grandparents.

9.      Orders were made in March 2003 for K to continue to reside with the grandparents and to have contact with her mother supervised by them.  An order was made to facilitate the obtaining of an expert’s report.

10.     On 12 August 2003 the grandparents filed a Notice of Discontinuance of the proceedings.

11.     On 6 October 2003 the mother took the child with her to B for contact by agreement.  The next day the grandparents attended at the Q Police Station and complained that DP was in breach of the apprehended violence order in that he was in the presence of K.  DP was arrested on the strength of the complaint.  He was subsequently found guilty of the charge but it was dismissed without conviction.

12.     The grandparents recommenced proceedings seeking a residence order in their favour in November 2003.  They sought that K should have contact with her mother and that DP should be restrained from coming into contact with the child.

13.     In February 2004 the mother was admitted to Q Hospital after taking an overdose of Nurofen.  She was discharged after three days.

The hearing

14.     The competing residence applications came on for hearing on 2 December 2004.  The grandparents, the mother and DP all gave oral evidence and were cross-examined.  There was also cross-examination of Dr W, a child psychiatrist, who had prepared two expert reports to assist the Court.

15.     The grandparents had asserted that it was in K’s best interests that she remain residing with them.  They alleged that K had complained that DP had behaved in an inappropriate sexual manner towards her.  They further asserted that the relationship between the mother and DP was a violent one and in particular that DP had a violent disposition.  They further asserted that as a result of the mother’s psychiatric condition the child was at risk in her care.  They appeared to concede however that were it not for the presence of DP in the mother’s household, it would be appropriate that K live with her mother and that in any event it will eventually be appropriate that K should live with her mother.

16.     DP denied any inappropriate conduct towards K.  Both DP and the mother denied that there was any prolonged history of violence between them, although they each deposed that prior to the mother’s treatment in late 2002, in the course of her psychotic episodes she had on a few occasions attacked DP and he had been forced to defend himself.  There were two specific occasions where DP had damaged some property (one being a door at the grandparent’s home in October 2002 and the other being a window or windows on his car in about October 2003) which were the subject of some evidence at the trial.

17.     The evidence relating to the mother’s psychiatric health was given by Dr W who, although not her treating psychiatrist, had reached the conclusion in his interviews with the mother she showed no evidence at all of a recurrence of the severe mental illness which she developed in late 2002 nor did she appear to be in immediate need of psychiatric care.

The judgment

18.     After setting out some background Faulks DCJ said:

“15All the people involved were relatively simple folk.  I say this not disparagingly but rather to indicate that they were in the main fixed on the best interests of [K].  They were not tricky or devious people and although from time to time the evidence of each of them might be said to have been unsatisfactory, I did not form the impression that anyone was setting out deliberately to mislead the Court.  To the extent that there were discrepancies it was perhaps indicative of a lack of memory, a strong emotional involvement in the proceedings, a concern for [K] and the pressures of the Court proceedings themselves. 

16It became clear during the proceedings that the grandparents accepted that [K] would eventually live with the mother and that the mother is capable of caring for [K].  They remain convinced however that [K] has been sexually abused by [DP] and they are deeply concerned that if [K] were to live with her mother she would be exposed to further assaults by [DP].  I think it would be fair to say that they clearly loved [K]; loved their daughter; and have no time for [DP] at all. 

17For her part, the mother wanted desperately for [K] to return to her.  She had been extremely ill when she was admitted to [B Psychiatric Hospital].  Subsequent to her admission, when she asserted that she was well she had again attempted to commit suicide.[1]  This she stated was not indicative of any continuing depression on her part but rather of her deep unhappiness that [K] was not living with her.  Although she does not believe [K] has been molested by [DP], she was prepared to agree that she would not live with [DP] if this was in effect the price of the return of her daughter.”

[1] She had made attempts previously.

19.     His Honour then identified the issues, highlighting the central role that DP played in the grandparent’s case for wishing to retain K.  His Honour set out what he perceived to be the appropriate approach in dealing with cases involving allegations of sexual abuse with reference to the High Court decisions in B and B (1988) FLC 91-978and M and M (1988) FLC 91-979, and in the course of discussing the appropriate principles to be applied said that on the evidence he found it difficult to conclude that some abuse did not occur. He said:

“29.It is fair to say that all that was alleged to have occurred when it was alleged to have occurred could not have occurred.  However, the nature of the allegation, the precision of the child’s comments about what occurred and the notorious unreliability of children’s concepts of time leave me with an uneasiness about being convinced to the satisfactory level that nothing has occurred.”

20. His Honour made general reference to the task required of him in determining the case pursuant to provisions of ss 65E and 68F(2) of the Family Law Act 1975 and then turned his attention to the matters that he thought were significant.

21.     Under the heading “Positive finding about sexual abuse?” his Honour said that he could not positively find that sexual abuse had occurred.  He said that he was concerned that he had no expert evidence of the child’s ability to say that someone had “licked between my legs” or “licked her front bottom” if in fact such an event had not occurred.  He said that the nature of the allegation was a matter of concern and for that reason alone it was possible that the event had occurred.  He did comment, however, that

“[K]’s evidence has now been now so diverted or distracted (no doubt for the best of motives) that no accurate positive finding can properly be made”.

22.     His Honour then moved to give consideration to a submission that had been put on behalf of the grandmother that it was a combination of sexual abuse, the probability of violence and the probability of attempted suicides or threatened attempted suicides that posed a risk to returning the child to live with her mother. 

23.     His Honour said:

“37In conformity with the submissions of the child’s representative I agree that if I were only to have to take into consideration matters relating to sexual abuse I could not find that there would be an unacceptable risk to [K] in her living with her mother.  This is so if [DP] were not a part of the mother’s life.  In this regard while I accept the mother is prepared to do almost anything to get [K] back and this includes the rejection of [DP], his influence over her in the past has been strong and she has remained with him in circumstances where I am satisfied that they have a violent relationship and accordingly I am not convinced that she would be able to resist some resumption of her relationship with him. 

38In coming to these conclusions I do not want to be thought to have over looked the careful submissions by Mr Gill about the likelihood of [K]’s having said the things about the alleged assault that she did.  To a large extent I accept Mr Gill’s submission that the events could not have taken place in the time-frames asserted.  His careful juxta positioning of the allegations and the opportunities was helpful.  Nevertheless while the grandparents palpably disliked [DP] I am not convinced by any means that they have made up the allegations.  I think the best conclusion I can reasonably come to is that in some respects their evidence is confused or mistaken.  I am satisfied that [K] did say something and that at least initially her complaints were spontaneous.  However the process that I have reviewed above in relation to child abuse cases generally seems to have taken a hold in this matter and whatever the evidence (the complaint) might have been, it is now submerged in a sea of mis-remembrance and confusion.”

24.     It is perhaps appropriate at this stage to comment that we have some difficulty in understanding par 37.  We are not sure whether the sentence that reads:

“This is so if [DP] were not a part of the mother’s life”

was intended to read:

“This is so even if [DP] were a part of the mother’s life”. 

The submissions of the child representative that are referred to at the commencement of paragraph 37 were that the trial judge:

“could not be satisfied, on the evidence, that there is an unacceptable risk of abuse at the hands of [DP]”.

In light of that submission and his Honour’s subsequent findings about the likelihood of [DP] remaining an integral member of the mother’s household, the absence of any positive finding as to the risk of sexual abuse in [DP]’s presence otherwise leaves the paragraph internally inconsistent. 

25.     Having dealt with the issue of sexual abuse his Honour then dealt with other aspects of the mother’s proposals under three headings, being,

1.    Attitude of the mother;

2.    Suicide attempts;  and,

3.    Violence.

26.     In relation to the attitude of the mother his Honour appeared to be critical of the mother in regard to the manner in which she reacted to the assertions that the child was complaining that DP had interfered with her.  His Honour said:

“40…I am also impressed by this submission of Ms Tonkin that when the allegations were first made known to the mother she reassured herself that [DP] did not do anything.  This can only have meant in the circumstances that she asked [DP].  He denied it.  She accepted his denial. 

41This may have been an accurate conclusion.  However in the circumstances given the gravity of the allegations and their consequences I would have expected a different response and it indicates in part the attitude of the mother to parenting.  This attitude is not so severely inadequate as in itself to prevent [K]’s living with her mother but it is one further event in the over-all suite of concerns expressed by Ms Tonkin which I find to some extent compelling.”

27.     We must say that we find these paragraphs difficult to understand.  They do not reflect the evidence that was given in that the mother said that when the matters were first drawn to her attention she was aware that the Department of Community Services had already been called in to investigate.  She said rather poignantly:

“I wanted it cleared up for myself, that there was no room for error, that there could have possibly anything been done to [K]”. 

28.     Secondly, his Honour does not explain what the “different response” was that he expected of the witness and how her failure to have given that different response indicated an inappropriate attitude on behalf of the mother to her parenting obligations.  Given that it was a matter that his Honour found was “to some extent compelling” it appears to us it was a matter that required further expansion and explanation before his Honour was entitled to rely upon it as a relevant consideration in determining the outcome of the case.  We shall return to the issues surrounding the sexual abuse allegations shortly.

29.     Under the heading “Suicide attempts” his Honour indicated that he was particularly concerned about the mother’s most recent attempt (February 2004).  He accepted her evidence that it was precipitated by her great unhappiness that K was not with her.  He said:

“46I am deeply concerned that if as a result of a recurrence of an illness, or simply a calculated act the mother at some point in the future determines to commit suicide while [K] is with her and did so, the consequences as they may affect [K]’s development could well be severe.  It imposes a risk in relation to [K].  Whether or not it constitutes an unacceptable risk in itself is again doubtful but in combination with other matters it influences my decision.”

30.     His Honour then turned to the issue of violence, saying:

“47The mother accepted in evidence that [DP] had attended at her property and that there had been arguments.  The violence had included the breaking of a window and the kicking of a door.  Ms Tonkin submitted that there was a probability that if [K] were to be living with her mother and [DP] were around that [K] would be exposed to violence.  Even if I were to accept that the violence had in some respects been a sequence of mutual acts, (and I do not) the failure on the part of the mother to recognise the consequences for a young child in witnessing violent acts between her mother and some other person is a factor that must be weighed in combination with others in determining where to it would be best for [K] to live.”

31.     Before further examining this issue it might be appropriate that we comment that we are unclear as to why his Honour rejected the evidence of both the mother and DP that “the violence had in some respects been a sequence of mutual acts” and in rejecting that evidence what conclusion his Honour reached as to what the violence was and who was responsible for it. 

32.     We are further concerned as to understanding what his Honour meant when he referred to the failure on the part of the mother to recognise the consequences for K of observing violent acts between her mother and some other person.  Our attention was not drawn to any part of the cross-examination of the mother where this issue was examined, nor was there any evidence of violence that had occurred within the household in the presence of K other than the mother’s evidence that on three occasions in the course of her psychotic episodes she had grappled with DP.  That evidence hardly seems to be a basis upon which it was appropriate to reach the conclusion that the mother failed to recognise the consequences of her actions.

33.     Before reaching his conclusion as to the outcome of the proceedings his Honour turned to the evidence of DP noting that he had denied any alleged sexual assaults on K and that his denials were “untouched” in cross-examination.  He went on to say:

“48.…I am nevertheless satisfied that he is both capable of and may well in the future, return to acts of violence if he is frustrated in achieving his objectives.  I do not believe that violence will necessarily be directed to [K].  But nevertheless in conformity with Patsalou v. Patsalou (1995) FLC 92-580 the role-modelling associated with violent acts in the presence of a child may in itself constitute a basis for differentiation between two alternatives about where a child should live.”

34.     His Honour then concluded:

“49In summary, with extreme reluctance in the face of the recommendations of the child representative and the cogent and forceful submissions of Mr Gill on behalf of the mother, it seems to me that there would be an unacceptable risk for [K] to live with her mother at this time.  I will not reiterate the reasons I have set out above except to say that it is in large measure the combination of them which produces this conclusion for me.”

35.     In the course of his submissions Mr Nash on behalf of the child representative was particularly critical of his Honour in not identifying what it was that had led him to determine that there was an unacceptable risk for K to live with her mother at this time.  He particularly focused upon the phrase used by the trial judge that his Honour had reached that conclusion “in large measure” of the combination of the matters already referred to.  It was submitted that if those matters constituted “a large measure” then there were other matters in the mix to which reference had not been already made and which were obviously matters of concern to the trial judge.  The failure to identify them was said to be an error.

36.     We think this attack falls foul of the warning given by Kirby J in AMS v AIF (1999) 163 ALR 501, 24 Fam LR 756, FLC 92-852 at par 150 that an appellate Court should avoid a pernickety analysis of the reasons provided by a trial judge in searching for possible error. We perceive that counsel is reading more into the paragraph then his Honour intended. The matters that had been clearly identified by counsel on behalf of the grandparents were the matters that concerned his Honour, namely the issues of sexual abuse, violence and the potential for the mother to commit suicide.

37.     Finally the trial judge identified that the relationship between K and her mother was the primary relationship which he would have supported were it not for the conclusions he reached in relation to the risks involved in returning the child to the mother’s care. 

38.     His Honour then turned to deal with issues of contact without making any reference at all to issues that had been identified in relation to the grandparents’ attitude towards the mother and towards Court orders.

39.     In the course of addresses his Honour drew to the grandparents’ counsel’s attention matters that were troubling him about their evidence, describing them as “people who are trying to do their best for [K] but are falling short of that in fairly significant ways”.  The particular criticism was that they were letting K know about their hostile attitude towards DP and their expressed views that they would not co-operate with Court orders as to contact if they were of the view that they were not suitable for the child.

40.     His Honour indicated when describing the grandparents:

“52…They are country people with a relatively straight-forward approach to life.  Their commitment to their granddaughter is palpable.  They have a lack of imagination and are probably incapable of providing the ideal emotional and educational support that [K] requires.  However these are relative questions and I am not satisfied that their ability to support [K] in these respects is less then [K]’s mother.”

41.     He concluded his judgment by saying:

“53…There will come a point where [K] should properly be with her mother and her grandparents should realise this and act when that point arrives, and not fight it to the bitter end.”

The appeals

42.     Both the mother and the child representative sought to challenge the findings of the trial judge relating to sexual abuse and violence and the aggregation of those findings together with the mother’s history of suicide attempts that appeared to lead the trial judge to conclude that there was an unacceptable risk of harm to the child if the child resided in the mother’s household.  Additionally each of the appellants sought to rely upon the failure of the trial judge to make findings relating to the attitude of the respondent grandparents to the relationship of the child with her mother and to the likelihood that they would comply with Court orders.

Appellate principles

43.     The role of an appellate court in examining a judgment made in the exercise of discretion is well known (see House v the King (1936) 55 CLR 499). In summary, it is necessary to demonstrate there has been an error in approach or principle, a failure to take into account relevant circumstances, a taking into account of irrelevant circumstances, the making of findings of fact unsupported by the evidence, or the arrival at a result that was unreasonable or plainly unjust.

44.     The difficulty in an appellate court interfering in children’s cases is further highlighted by the matters discussed in the judgment of Stephen J in Gronow v Gronow (1979) 144 CLR 513 which emphasises that there is no uniquely correct answer in such cases.

45.     An appellate court is however:

“…obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons.  Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect.” (see Fox v Percy (2003) HCA 22 per Gleeson CJ, Gummow and Kirby JJ at paragraph 25).

46.     In order for us to determine whether individually or collectively the matters identified by the trial judge ought to have properly led his Honour to conclude that there was “an unacceptable risk for [K] to live with her mother at this time” it is appropriate that we examine the evidence relating to each of the matters relied upon by the trial judge.

Sexual abuse

47.     Each of the grandparents swore an affidavit in the proceedings and were cross-examined.  The grandmother deposed that in October 2002 the mother and K were living with her and her husband at their property at G.  In October 2002 the mother took an overdose of pills and was taken by ambulance to C Hospital.  She was subsequently admitted to B Psychiatric Hospital at O on 30 October 2002.  K then began to reside entirely in the care of her grandparents.

48.     The grandmother deposed in her affidavit:

“35.As soon as [K] moved in with us…I observed [K] touching herself in a manner which I felt was inappropriate for her age.  I spoke to [K] about this and she said words to the effect ‘why are you touching yourself like that, [K]?’  [K] responded with me: ‘[D] does that to me’.

36.On another occasions [K] was licking my face, arms, legs and touching my breast inappropriately.”

49.     Later in the same affidavit she said:

“60.On or about 13 October 2003 whilst I was bathing [K] said words to the effect:  ‘Nanny, [D] was in the shower with mummy and me and was touching our boobs’.  I made the following comments to [K] in reply: ‘That is very rude and [D] must not do that to you, [K]’. 

61.On or about Wednesday 15 October, 2003 I was putting on [K]’s night nappy when she said to me words to the effect:  ‘[D]’s smells my there Nanny”.  She was pointing to her vaginal area.  [K] went on to say ‘[D] licks my there Nanny’ (‘My’ is [K]’s word).

62.I was very shocked and said to [K] ‘Where was mummy when [D] did those rude things to you’.  [K] replied ‘Mummy was away’.

50.     Then at paragraph 64 she said:

“On or about 30 October 2003 whilst [NN], [K] and I were cleaning the [L] Street residence ready for sale [K] said words to the effect to me: ‘[D] came into my room with no clothes on’.  I replied to [K]: ‘That is very rude and he shouldn’t do that’.

51.     She further deposed that on 14 June 2004 after the child was returned to her following a period of time with her mother and DP:

“145.[K] took off her sweater as it was hot inside and she just had her undies, tights and singlet on.  I saw [K] put her hands in arms of the singlet and started massaging her little breasts.  I said ‘Best not to do that, [K]’.  [K] then said in reply: ‘[D] said if I do that my boobs will get big like mummy’s’.  I said ‘Well [D] is an idiot’.”

52.     In his affidavit the grandfather swore as follows:

“48.On 15 June 2004 [K] and I went to the village.  On the way home [K] said to me ‘[D] licked my front bottom, squeezed my boobs and then put cold water on my bottom.  I told him to stop and he said I won’t stop and he didn’t.’  I then said to [K], ‘Where was mummy’.  [K] said, ‘Mummy was at work and I hit [D], Poppy.  [D] told me not to tell Mummy or she would die’.”

53.     The matter was next touched upon in viva voce evidence of the grandmother where she said that in October 2002 whilst she was changing the child’s nappy the child said that she had been licked there.  The witness gave evidence that the Department of Community Services were involved with the family late in 2002 at her request because she was concerned with the child’s “touching of the nipples”. 

54.     The evidence given by the grandmother in the course of cross-examination by Mr Gill was most confusing both as to time and incident.  The transcript indicated that the witness appeared quite confused about when the issue of any interference with the child’s vagina was first raised.  Eventually she adopted the position that it was whilst the mother was in B Psychiatric Hospital but some time after the DOCS had been out to interview the child as a result of the complaint that arose from the child touching her nipples.  This first reference to DP “licking my there” appeared to be an event that occurs when the child is still in nappies late in 2002.

55.     The witness appeared to become confused about that incident and the evidence given by the grandfather as to the child’s complaint in the midst of 2004 that DP had licked her front bottom, her back bottom and poured cold water over her.

56.     The matter was further investigated at pages 299 through 308 of the transcript when she is pressed as to why she called in DOCS to investigate.  She said:

“Well, I think it was something that they needed to be aware of, in case something else – something more happened in the future.  I guess I wanted somebody that was of importance in the community to know that the event had taken place, and therefore if something else happened after that, they were aware of the first minor incident.

So you didn’t think it was sexual abuse but you called DOCS in case there was something else in the future that happened?  Have I got that straight?---I think DOCs needed---

Have I understood it correctly?---Yes, you have understood.

…

And you simply called them because of this nipple incident in August.  That is the reason why you asked them to come.  Is that right?---Yes.  And like I said, the other, with the touching of the vagina, there were – like, there has been more than once with that where she has said things about that.

Do you agree there is nothing in your affidavit about [D] licking her vagina in 2002, is there?---No.  Nothing – nothing---

Right.  That must be something that just slipped your mind somehow?---I haven’t got the licking of anything there, in that – that didn’t happen until further on.  That licking of that didn’t happen until later.”

57.     There is then some further confusion in the witness’ evidence relating to when the child may have complained to the grandmother about being licked.  The witness began to give evidence that that happened in October 2003.  It was then drawn to her attention that that evidence would be inconsistent with earlier evidence that she gave that the disclosure occurred when the mother was in B Psychiatric Hospital.  The witness agreed that the matter was not referred to all in her affidavit material.  She agreed that had the child made the complaint in October 2002 it would have been burned on her memory and unable to be washed out by the passage of time.  She was then unable to explain why it was that it was not referred to at all until the oral evidence was given in these proceedings.

58.     The grandfather was cross-examined about the disclosures that the child had made to him, saying:

“[K] said to me, ‘Poppy’, she said, ‘[D] licked me between the legs.’ And I said – she said, ‘[D] licked me between the legs and then he put cold water on my bottom.’  And I said, ‘Where was mummy?’   And she said that mummy was at work.  And I said that – I didn’t carry on with the conversation. 

Are you a hundred per cent sure that those are the words that she used?---Well, yes.”

59.     It was then pointed out that that was slightly different from the version that he had sworn to in his affidavit and he indicated that he preferred the affidavit version than the version he had just given orally.

60.     Dr W prepared two reports.  In the latter report he observed the child together with her mother and DP.  He noted that in the course of some play in his presence the child involved DP and

“…After about 15 minutes, her primary focus had shifted from her mother to [DP], then after a few more minutes, she was sharing her attention equally between the two of them and seemed quite settled.”

61.     Further in the report he proffered his opinion about the sexual abuse allegations raised by the grandparents.  He said:

“The allegations of sexual abuse by [DP] arising from things which [K] said to her grandfather initially on June 15^th 2004 are very difficult to evaluate.  I note that [K] has been interviewed on probably two and perhaps three occasions or maybe even more since then.  In particular, I understand that she was interviewed by the JRIT.  I have not had the opportunity to see this interview, but it may well be the freshest independent material available.

Although the alleged statements could be consistent with sexual abuse, it is my view that they do not necessarily point directly to this.  Particularly if it is the case that there may be some contamination of [K]’s behaviour in statements by the grandparents, then the meaning of these statements may be entirely different and are not necessarily sinister.

[K]’s behaviour with [DP] on this occasion and at my previous assessment neither confirms nor excludes the possibility of sexual abuse.  An issue for the Court in relation to this matter may be the grandparents general credibility and objectivity about their daughter and [DP] in particular…”

62.     The matter was not touched upon in the course of the cross-examination of Dr W.

63.     Aside from the evidence of DP, who denied any inappropriate sexual conduct towards the child, and the evidence of the mother who denied having ever witnessed any such conduct, the only other evidence relating to the sexual abuse allegations came in the form of two police reports. 

64.     There is report tendered dated 30 January 2004 that concerned an interview that had taken place by Joint Investigation & Review Team (JIRT) personal at the grandparents’ home at G on 11 November 2002.  The report contained the following:

“The grandmother stated that in August 2002 she was bathing the alleged victim when the child started touching her own nipples and vagina.  The grandmother said something to the effect of ‘Who does that to you?’  The child replied ‘[D] did it.’

An attempt was then made to interview the child however due to her young age a formal interview was not possible.  The child was spoken to informally but made no disclosure.  She did say she didn’t like [D] because he made her mother cry.  She had no other complaints.”

65.     A further report of 30 July 2004 was accompanied by a transcript of a record of interview of the child by one Detective Senior Constable [G].  The report said:

“Following the last access visit on 12-13/6/04 the victim disclosed to her grandfather that the POI had ‘licked my front bottom and back bottom’.  The grandparents then took the victim to their GP Dr [C] on THE 15/6/2004 where the victim repeated her disclosure.  An examination made by the Dr found no evidence of sexual assault.

The alleged victim was interviewed by JIRT on 28/6/2004.  She is bright and talkative for her age but was not able to demonstrate she would be a competent witness for criminal court in relation to truth and lies and often spoke to things that made little sense.

The victim did disclose that the POI had licked her on numerous parts of the body include her ‘bottom’.  She however stated that she was fully clothed at the time.  Investigating Police are unable to establish if any of the actions spoken of by the alleged victim are of a sexual nature.  The victim described a number of incidents of what seem to be temper related with the POI smashing things, tearing clothes on the line and slamming gates.  These incidents seem to be of more importance to the victim then the alleged ‘licking’.”

66.     A file note from DOCS was tendered bearing the date 10 August 2004.  The file note summarised the police interview and then said:

“At 2.42pm the interview was stopped without any disclosure or reason to substantiate the allegations, nor was it possible to assess that [K] was a risk of sexual abuse…”

Violence

67.     The grandparents’ case was that DP was a violent, aggressive person who had assaulted their daughter.  Whilst the evidence was fairly generalised there were several events focused upon in the course of the proceedings.

68.     The grandfather deposed that when the mother was admitted to C Hospital late in 2002 he was advised by a treating doctor that she had a large bruise on her stomach.  He said:

“When the doctor queried [KN] in front of me [KN] said ‘[D] kicked me in the stomach’.” 

69.     In October 2002 prior to the mother’s admission to hospital, the mother, DP and the child were living at a property in L Street, C.  On one occasion the grandfather said that he followed DP to the property where he saw “[D] kick the door down”.  He further deposed to an incident in November 2002 that ultimately resulted in the grant of the apprehended violence order.  At that stage the mother and child were living with the grandparents.  DP was seen sitting in his car outside their premises.  The grandfather was particularly concerned because he asserted that DP had telephoned his house on numerous occasions late in 2002 and when he refused to tell DP where the mother was DP had reacted by threatening “I’m going to burn your fucking house down” and “I’m going to shoot you”.  He said he was aware that DP owned a gun which he had used to shoot rabbits.

70.     Finally he deposed to a conversation he had with the mother in October 2003 in Canberra where he said “[KN] what happened to your windscreen and side window?”.  The mother replied “I said something to [D] and he didn’t like it so he smashed them both with his fist”.

71.     Both the mother and DP dealt with the allegations of violence in their evidence in chief and they were cross-examined about them.  The mother swore as follows:

“86.For about the twelve months prior to my admission, my relationship with [D] was not good.  I didn’t realise it at that time, but in hindsight I saw that I treated him very badly.  I was verbally and physically abusive towards him, frequently hitting him on the arms and the head when I was arguing with him about something.

87.[D] was not violent to me.  He would push me away from him if I were hitting him.  On one occasion when the argument was particularly bad and I was repeatedly hitting him on the head, [D] shoved me away from him with his foot.  That was just prior to our separation.

88.When I was at my parents and overdosed, my father saw the bruises on my stomach at the hospital.  He said, what happened?  I said [D] pushed me out of the way when I was hitting him.

89.When [D] and I first separated in October 2002 I locked him out of the house.  He came around to try and get some of his belongings like a fridge, and his fishing gear.  I screamed at him from the other side of the door and wouldn’t let him in.  [D] kicked the door down.  That was the worst it got between us.

90.From the time that [D]’s and my relationship recommenced in January or February 2003 there has been no violence between us.  This is another way that I know that the unhealthy dynamic that had existed in our relationship was an aspect of my illness rather than [D] because nothing like that happens now.  If the problem were with [D], it would still be happening.”

72.     She went on further in the affidavit to say:

“101.I am aware of the allegations my parents have against [D].  In particular, my parents allege that [D] has been violent towards me.  He has not.  [D] has never punched or hit me, however he has pushed me away from him when I have been hurting him.”

73.     In cross-examination the mother expanded upon her behaviour towards DP late in 2002.  She acknowledged that she assaulted DP in the presence of the child on one occasion and suggested it was behaviour that she had learned from watching her mother’s treatment of her father throughout her childhood.  The following cross-examination occurred:

“How many times would you have hit [D]?  This is all prior to October, 2002, ma’am isn’t it?  All prior to your admission to [B Psychiatric Hospital]?---Yes. 

How many times would you have hit [D]?---Probably three times. 

I thought you said it was regularly that you hit [D]?---Three times is regularly enough, isn’t it?

Three times over some two years, is that what you say?---Yes, pretty much, yes.

Three times over two years you hit [DP]?---Yes.

And [K] was there each time?---No. 

[K] was there once, she became very distressed.  You didn’t stop hitting [D] did you?---No.

And you didn’t attend to the baby, you continued to hit [D].  Isn’t that right?---Yes.

Until he responded such that he pushed you in the stomach?---Yes.

Causing you bruising?---Yes.”

74.     DP’s evidence was as follows:

“15.[KN]’s parents allege that I have been violent towards [KN].  I deny this.  [KN] and I used to argue quite a lot before we separated in October 2002.  We usually argued about my going away hunting and fishing.  When [KN] was really upset, she would sometimes physically lash out at me.  If she didn’t back off, I would sometimes push her away.”

75.     He said that in November 2002 when the mother was living with her parents and any attempts by him to make contact with her were rebuffed by the parents.

76.     After three attempts to make telephone contact with her he drove to the house and parked 30 metres from the gate but did not get out of the car.  He waited there for about 15 minutes and left. 

77.     In cross-examination he acknowledged that he had gone to the L Street property to get some “stuff out of the house”.  The mother refused to let him in so he said he kicked the door once, not trying to get into the house but just to make a point that he was there.  He admitted that he did not turn his mind to whether [K] was inside the house at the time. 

78.     He acknowledged that in about 2000 there were two occasions when the mother had telephoned her own father to come and provide her with some assistance.  Those phone calls could possibly have occurred in the course of an argument that he was having with the mother.

79.     He was also asked about the broken windscreen.  At p 485 of the Appeal Book the following appears:

“Did you and [KN] have an argument this year where you smashed the windscreen?---Yes.

What was the argument about?---Spending too much time with my friends.

You spending too much time with your friends?---Yes.

When was that argument?---Late one afternoon when she picked me up from my mate’s house.  One late night, after work.

Yes.  When in time, month will do.  Mid year or last year or---?---Late last year.

Was it before or after October?---After, I think.  Maybe before, I’m not quite sure when the date was.

Was [K] there at the time?---No.”

80.     Dr W’s evidence was that the mother had said that until January 2003 she had treated DP very badly:

“…She yelled at him and she hit him…

[DP] had only ever stopped her from hitting him…he had bruised her stomach, but it had occurred when he put his foot up to push her away because she was hitting him on the head…”

81.     Dr W reported that DP told him that he had never hit KN “…although if she has been cranky towards him, he has had to restrain her”.

82.     He said that DP presented as a well-dressed, serious, earnest young man.  He observed no evidence of impulsiveness or irritability.  He said in his first report that K seemed to relate to DP in an affectionate and fearless way.  He said:

“There was nothing in [DP]’s demeanour or behaviour when I saw him or in [K]’s reaction to him which would provide support to the grandparents’ allegations, although this does not exclude at least some of them…”

83.     In his second report he noted:

“[DP] presented initially as rather tense and self-conscious, but he visibly relaxed over the course of the assessment and was very co-operative.  I observed no inappropriate behaviour.  There was no evidence of impulsiveness, irritability, aggressiveness or restlessness.  There was no evidence that he was under the influence of drugs.”

Suicide attempts

84.     The third issue relied upon by the trial judge as constituting the basis of his finding that there was an unacceptable risk to the child being returned to the mother’s care were her suicide attempts.  Dr W expressed the view that the mother showed no evidence at all of a recurrence of the severe mental illness that she developed in late 2002.  Her subsequent overdose of Nurofen in early 2004 was said to be as a result of stress and did not represent a recurrence of the psychosis.  He said that it was not clear that her psychiatric health significantly impaired her capacity to care for K after that event. 

85.     The circumstances surrounding the February 2004 overdose were explained by the mother to have been brought on by her desperation in her inability to regain care of her daughter and the apparent loss of her legal aid which had come by her parents drawing to the attention of those providing the legal aid that she was in fact in paid employment.

86.     In cross-examination Dr W said that it was unlikely that the mother would have a recurrence of severe mental illness.  He said that the return of K to her mother’s care would be very positive in terms of the mother’s mental health. 

87.     The conclusions drawn by the trial judge in relation to each of the three areas are referred to above.  As already indicated there is some confusion as to what was the finding in relation to sexual abuse contained in par 37 of the judgment.

88.     We have carefully reviewed all of the evidence relating to the allegations of sexual abuse and weighed them in light of the trial judge’s assessment that none of the parties were setting out to deliberately mislead the Court.  We conclude that the only finding that was reasonably open to the trial judge in the circumstances was that the Court could not be satisfied that there was any likelihood of the child being at risk of inappropriate sexual conduct living in the mother’s household in the presence of DP. 

89.     The precise complaints were not identified by the trial judge.  In the course of discussion with counsel his Honour referred to them in their most sinister interpretation as the child disclosing that DP had licked her on her vulva.  This interpretation of events would be at odds with the evidence of the interview between the child and the police in which the child indicated that she was fully clothed at all times when whatever it was that she was describing had occurred.  Her initial words of complaint to the grandfather were accompanied by a description of them occurring while the mother was at work.  There was unchallenged evidence before the trial judge that the mother was not at work at the time that the child was said to be interfered with by DP.  There were DP’s unchallenged denials.  There was the general assessment of the police and the Department of Community Services that the child was an unreliable witness, and there was the unabated antagonism of the grandparents towards DP, identified at a number of places in the evidence, but more particularly in the evidence of Dr W.  Finally there was the opinion of Dr W to the effect that:

““The allegations of sexual abuse by [DP] arising from things which [K] said to her grandfather initially on June 15^th 2004 are very difficult to evaluate.  I note that [K] has been interviewed on probably two and perhaps three occasions or maybe even more since then.  In particular, I understand that she was interviewed by the JIRT.  I have not had the opportunity to see this interview, but it may well be the freshest independent material available.

Although the alleged statements could be consistent with sexual abuse, it is my view that they do not necessarily point directly to this.  Particularly if it is the case that there may be some contamination of [K]’s behaviour and statements by the grandparents, then the meaning of these statements may be entirely different and are not necessarily sinister.

[K]’s behaviour with [DP] on this occasion and at my previous assessment neither confirms nor excludes the possibility of sexual abuse.  An issue for the Court in relation to this matter may be the grandparents general credibility and objectivity about their daughter and [DP] in particular…”

90.     The acknowledged discrepancies in the evidence as to when various things were alleged to have occurred, the quite different description of the behaviour proffered by the child to the police, the lack of specificity in the allegations and the attitude of the grandparents to DP ought have led the trial judge to comfortably conclude that he could not be satisfied of an unacceptable risk of sexual abuse occurring should the child be returned to the mother’s care with DP being an integral member of the household.  Indeed, as already discussed, we think that was his Honour’s finding when he said:

“In conformity with the submissions of the child’s representative I agree that if I were only to have to take into consideration matters relating to sexual abuse I could not find that there would be an unacceptable risk to [K] in her living with her mother.”

91.     In M and M (1988) 166 CLR 69; 82 ALR 577; 12 Fam LR 606; [1988] FLC 91-979 the High Court said that it is unnecessary for a trial judge to make positive findings in relation to the occurrence of alleged sexual abuse. The Court was concerned to make an order that would, in the opinion of the Court, best promote and protect the interests of the child. The High Court said that if a positive finding of sexual abuse was well founded then that finding would have a decisive impact on any order to be made with respect to the child. The High Court went on to say:

“… there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access… 25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A v. A (1976) VR 298, at p 300), ‘an element of risk’ or ‘an appreciable risk’ (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), ‘a real possibility’ (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”

92.     Although his Honour was in the minority as to the outcome of the appeal in N v S (1995) 19 Fam LR 837, we find the discussion by Fogarty J on the issue of ascertaining whether an unacceptable risk is present in any one case usefully encapsulates the matters that ought to be considered before reaching such a conclusion. As his Honour said at 859 (emphasis added):

“One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.

Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here.

At 670 his Honour said:

Qualifying words such as “unacceptable”, “real”, “serious” or “appreciable” are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.

In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:

It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not “any degree of risk” which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are “unacceptable, real, serious or appreciable”. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.

In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.

Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.

In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?

This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.

In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party.

As Thomas J said at 670:

In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.

Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.

In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:

It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.

If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question.

An example of this is Thomas J’s approach at 681-2:

I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.

This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”

93.     In our view it is clear that if we approach the task applying those principles and ask the questions suggested by Fogarty J, the Court could not properly be satisfied that the matters complained of raise any real concern that the child is at risk of being sexually abused by DP when living in the mother’s household.

94.     The violence relied upon by the trial judge as constituting a second element in his finding that there would be an unacceptable risk in allowing K to live with her mother do not, in our view enable, support such a finding. 

95. The task of the trial judge in evaluating evidence of violence and determining the relevance of that evidence to the outcome of a children’s case was usefully examined by Chisholm J in JG v BG (1994) FLC 92-515, 18 Fam LR 255. His Honour said at 81,316

“Determining when family violence is relevant to children’s welfare

The authorities, then, require the court to make a judgment about the relevance of family violence to the welfare of the children. In what circumstances is family violence relevant to children’s welfare? Its relevance may be more obvious in some situations than in others. Where the violence is directed at the children themselves, it is obviously and directly relevant to their welfare. Section 64(1)(va) quoted above, expressly requires the court have regard to the need to protect the child from abuse and ill treatment. Similarly, when the violence is committed in the presence of children, it will obviously have the potential to frighten and distress them.

I do not think it can be said as a matter of law that other forms of family violence are incapable of being relevant to the welfare of the children. Violence occurring between household members, even though occurring away from the children, may have the potential to cause them distress and harm, for example where it affects the parenting of the custodial parent. Similarly, threats of violence may have an impact on the welfare of children. The nature and extent of such harm must of course be assessed in the light of the evidence and findings in each case. In some cases, the court may be assisted by expert evidence on the impact of violence on the children. Violence may take many forms and have a quite different significance in different cases. It might be, for example, a single outburst, out of character, caused by a stressful situation, for which the violent persons feels immediately regretful and apologetic. It might be the result of mental instability or disease. It might stem from a person’s inability to control his or her temper. It might represent a deliberate pattern of conduct through which the violent person exercises a position of dominance and power over the other. It might be associated with a particular situation, and be unlikely to be repeated in different situations, or it might be a recurrent pattern of behaviour occurring in many situations. The violent person may deny the violence, or seek to justify it, or alternatively might accept responsibility for it and be willing to take appropriate measures to prevent it happening again.

These and many other aspects of violence may be highly relevant to the court in its task of attempting to determine the relevance of the violence to the children’s welfare. The court’s ability to make this determination will of course depend on the evidence available to it. Violence associated with a pattern of dominance, for example, may be particularly serious. For children to grow up in a climate of a potentially violent and dominating relationship between their parents seems to me to be an unacceptable model of family relationships, and would be very likely to create a situation of stress and fear that may well be damaging over a period. It is quite wrong, in my opinion, to assume that violence can be relevant only if it is directed at the children or takes place in their presence. It is equally wrong to assume that violent behaviour will necessarily be repeated, or to assume too readily that it will harm children, or to give it excessive importance; it is of course only one factor relevant to the assessment of what the child’s welfare requires, and it will be more important in some cases than in others.”

96.     As we have already indicated, it is not abundantly clear what his Honour’s findings as to violence were.  There is no doubt that there was evidence of physical conflict between DP and the mother prior to her hospitalisation late in 2002.  Both DP and the mother sought to explain that conduct in terms of the mother’s psychotic behaviour.  Apart from the incident involving the damage to the door in 2002 and to the car windows in October 2003, there was no further evidence of any violence conduct by either the mother or DP.  Dr W’s opinion was that DP had exhibited no evidence of impulsiveness or irritability. 

97.     Whilst any outburst of temper that leads to serious damage to property is regrettable, the description of two events in six years, namely the breaking of the door and the breaking of car window ought not have led the trial judge to a conclusion that there was an unacceptable risk to the child in being placed in her mother’s care by reason of DP’s inability to control his own temper.

98.     Our assessment of the evidence of violence contained in the appeal books which includes Dr W’s opinion and comments on the relationship between K and DP, would not lead us to a conclusion that there was any serious risk to K’s welfare by allowing the child to return to her mother’s household.  We of course have not seen the parties nor DP, nor have we had the ability to make our own assessment of them from their demeanour when giving evidence.  The impressions gained by the judge conducting a retrial may lead to a different conclusion on this issue.

99.     Further because of the finding of his Honour that there would be an unacceptable risk for K to live with her mother at this time being “in large measure” the combination of the allegations of sexual abuse, violence by DP and the mother’s risk of suicide, we do not know exactly what weight his Honour placed on the violence on its own. 

100.   The final matter that seemed to be relied upon by counsel for the grandparents, and given significant emphasis by the trial judge involved the trial judge’s findings in relation to the risk of the mother attempting suicide and the effect that any such attempt might have on the welfare of the child.  His Honour expressed deep concern that if the mother committed suicide while K was with her the consequences upon K could be quite severe. 

101.   Whilst we do not seek to cavil at such an observation, the difficulty in this case is that the evidence of Dr W was that it would be beneficial for the mother’s health if the child was with her.  There was a greater risk of the mother falling into depression if she did not have the care of the child and it was the risk of that depression that might lead to a further attempt at suicide.

Conclusion

102.   Whilst there may be circumstances in which the cumulative effect of a series of potential risks might be said to amount to an appropriate basis for choosing one claimant for residence over and above another, our analysis of the matters in this case that were said to constitute such circumstances lead us firmly to the conclusion that the result reached by the trial judge is unsafe and the judgment cannot stand.  That is particularly so given his Honour’s comment that taken alone, he would not have found an unacceptable risk of sexual abuse, a conclusion with which we agree.

103. The judge’s obligation is to identify and evaluate the issues that relevantly will determine the outcome of the proceedings. In residence cases this is done by reference to the criteria set out in ss 60B and 68F(2) under the shadow of s 65E, namely the requirement that the Court make an order that is in the best interests of the child. On a rehearing of the matter no doubt the trial judge will be able to give consideration to the myriad of competing interests in determining how K’s short and long term interests are best to be served. This will require an evaluation of the competing households, bearing firmly in mind that one household contains a parent who has the primary bond with the child and whom it has been conceded will be a caring and loving caregiver to the child. The issues surrounding the sexual abuse allegations are unlikely to be usefully revisited.

104.   We have not discussed the validity of the appellants’ complaint that the trial judge failed to give apparent consideration to the shortcomings of the grandparents’ attitudes towards their daughter and the effect that this may have upon K. This discussion has been rendered unnecessary because we are allowing the appeal on other grounds.  Suffice it to say that the focus of the case at first instance seemed to be on a search for disqualifying features in the mother’s proposals rather than an evaluation of the competing households.  We would anticipate that upon a retrial any matters detrimental to the development of an appropriate relationship between K would be given appropriate attention.

105.   We asked each member of counsel what the appropriate outcome to this appeal would be if we were to allow the appeal.  Whilst the mother sought an order that the child be placed in her care, both the child representative and the grandparents each submitted that it would be appropriate that the matter be remitted for rehearing.  In particular, the grandparents’ counsel indicated that they wish to call further evidence of events that have occurred since the trial took place.

106.   Whilst it would be desirable to avoid a rehearing of the matter if at all possible, and whilst on the evidence led at trial the outcome may be predictable, given that we have not seen the parties nor had our own opportunity to evaluate the risks involved to the child in returning the child to her mother’s home, or for that matter staying in the grandparents’ home, and the possibility of fresh evidence about events that have occurred since the hearing, we reluctantly come to the conclusion that the retrial is the only viable option.

Finn J

107.   On 7 February 2005, Faulks DCJ made orders to the effect that a child “K” (who was born in October 1999) should continue to live with her maternal grandparents with whom she had, according to his Honour, “principally been living since October 2002”, and that she should have contact with her mother every third weekend from Friday evening to Sunday evening.  His Honour’s orders also provided that the mother should ensure that the child not be left alone with a DP, with whom again according to his Honour, the mother had since May 1999 had a relationship (albeit somewhat intermittent).

The mother’s appeal

108.   The mother, who had sought at trial that the child should live with her, now appeals against his Honour’s orders.

109.   The essential complaint in the mother’s appeal is that in arriving at his conclusion (in paragraph 49 of his judgment) that “there would be an unacceptable risk for [K] to live with her mother at this time”, his Honour had erroneously aggregated a series of “non-unacceptable risks” into one overall unacceptable risk. 

110.   The risks or concerns which the grandparents had raised about the child moving to live with the mother, and none of which, according to the mother’s Counsel, were found by his Honour to amount to an unacceptable risk, related to allegations that the child had been sexually abused by DP, allegations that the child would be exposed to physical violence between the mother and DP, and the mother’s “potential” to commit suicide. 

The child representative’s appeal

111.   The child representative, who had at trial ultimately supported the mother’s case for residence, also appeals against his Honour’s orders.

112.   The broad grounds of the child representative’s appeal are:

·     that his Honour was mistaken as to the evidence in relation to the past violence between the mother and DP;

·     that having found that there was not an unacceptable risk of sexual abuse of the child by DP, his Honour was in error in taking that matter into account in determining that there would be an unacceptable risk to the child if she lived with the mother; and

·     that his Honour had failed to take into account the grandparent’s attitude to Court orders for contact.

The allegations of sexual abuse and the trial judge’s overall approach

113.   Notwithstanding that before us both the appellant mother and the child representative proceeded on the basis that his Honour had found that there was no unacceptable risk of sexual abuse of the child by DP, I am far from persuaded that this was in fact his Honour’s finding.  Indeed it is the uncertainty as to what exactly his Honour’s finding was in relation to the issue of risk of sexual abuse of the child, that makes it necessary for these appeals to be allowed.

114.   Whether or not his Honour made a finding of unacceptable risk of sexual abuse, it seems clear that he aggregated his concerns about the sexual abuse allegations with his other concerns regarding violence between the mother and DP and also regarding the risk that the mother might commit suicide while the child was with her, and thus reached an overall conclusion that there would be an unacceptable risk to the child if she were to live with the mother.

115.   After having set out the history of this case, his Honour identified the allegations of sexual abuse of the child by DP as a contact issue in the case, saying:

“18.One of the central issues was whether or not [DP] had sexually assaulted [K].  A finding that he had done so would in these circumstances have precluded him from having any contact with [K].  It would not necessarily have precluded an order for residence in favour of the mother.  If [DP] were not on the scene, the grandparents accepted that [K’s] mother could properly look after her. … 

19.Notwithstanding this straight-forward approach from the grandparents themselves their counsel properly asserted that even if I were unable to find that there had been sexual abuse, I could properly be concerned that there was an unacceptable risk to [K] in being with her mother because of her mother’s potential to commit suicide and because of the exposure she may have when with her mother to physical violence between herself and [DP].”

116.   I mention here that I find it somewhat strange that his Honour did not in the last paragraph, particularly given what followed in his judgment, identify the possibility of a finding of unacceptable risk of sexual abuse of the child by DP if she was to live with the mother (as opposed to the finding that there had in fact been abuse).  Then also somewhat strangely his Honour observed:

“22.This was not a case in which a finding of sexual abuse will or should determine the final proceedings.  [K’s] relationship with each of the parties is at some level fraught with complications.  Any determination I make in these proceedings may not necessarily represent what will or should be what will happen for [K’s] living arrangements until she becomes an adult.”

117.   Immediately following that paragraph, his Honour went on to make some general observations about the difficulty of determining child abuse cases.  He noted that the High Court decisions in B and B (1988) FLC 91-978 and M and M (1988) FLC 91-979 establish that, in his Honour’s words (paragraph 25):

“… the primary duty of a judge in the Family Court is not to make a determination about whether or not child abuse occurred, but to determine whether there is an unacceptable risk that the child might be harmed if an order of one sort or another might be made.”

118.   Towards the end of those observations, his Honour returned to the present case saying:

“29.… In this matter it was suggested to me by [Counsel] who represented the mother, that I could conclude that there was no satisfactory evidence that the abuse had occurred.  This conclusion he suggested I could arrive at by a careful analysis of the allegations and particularly in relation to some of them, the fact that [DP] was not in fact able to have carried out the alleged acts at that time.  However, such a detailed analysis of time-frames particularly in relation to the evidence of young children frequently is difficult and while [Counsel for the grandparents] accepted that I could not make a finding that the child sexual abuse did occur, in my opinion, it is equally difficult for me to conclude that some abuse did not occur.  It is fair to say that all that was alleged to have occurred when it was alleged to have occurred could not have occurred.  However, the nature of the allegation, the precision of the child’s comments about what occurred and the notorious unreliability of children’s concepts of time leave me with an uneasiness about being convinced to the satisfactory level that nothing has occurred.”

119.   Then, after referring to the best interests of the child as the paramount consideration in the making of parenting orders, his Honour continued:

“33.Ultimately [Counsel for the grandparents] correctly, in my opinion, did not press that I should make a finding that sexual abuse had occurred as such.  She did however somewhat equivocally submit (T p 13 at ln 34) that:

‘in the combination of sexual abuse, the probability of violence and the probability of attempted suicides or threatened attempted suicides, there is a risk to the child in returning to live with the mother’.

34.During the course of addresses I agreed (T p 24 ln 31) that on the evidence I could not positively find that sexual abuse had occurred.  I was nevertheless left with concerns that I had no expert evidence about the question of whether a child of [K’s] age would have been likely to have said to anyone that someone had ‘licked between my legs’ (see discussion at Tp17 at lns 20-28) or ‘licked her front bottom’ (alleged initial allegation, from respondent grandfather’s affidavit; see discussion at T p 17 at ln 24) or something similar if in fact such an event had not occurred.  The nature of the allegation itself is a matter of concern and for that reason alone it is possible that the event occurred.  My strong impression of the grandparents was that it was unlikely that particular sexual activity (To the extent that such activity with a little child can ever be asserted to be sexual) would have been within their lexicon of probable scenarios if they were determined to make something up (I put this to counsel t p 25 ln 32).  It is in this context a sad fact that [K’s] evidence has now been so diverted or distracted (no doubt for the best of motives) that no accurate positive finding can properly be made. 

35.That means that to the extent that [Counsel’s] submissions could be said to seek that the combination of parts produced a positive whole her submission must be rejected.  However to the extent that she asserts that the combination of events as set out in my reasons above constituted an unacceptable risk then in this grey twilight identified by the High Court (‘unacceptable risk’) I am obliged to look closely.

36.As I pointed out in Parker v. Swift (unreported, Faulks J, 13 August 1997, CA 1323/1996) the determination of unacceptable risk in such cases depends in part upon the inherent improbability (or otherwise) of the allegation, the gravity of the allegation, the risk to the child if such conduct were to be repeated and a sensible consideration of the whole situation in the context of the evidence the parties and the age, maturity and self-preservation qualities of the child.”

120.   It seems to me that in paragraphs 29 and 34, his Honour can be seen as having reached a similar position to that reached by the trial judge in M and M and which was described by the High Court in the following way (at 77,081):

“In the present case Gun J. was not satisfied that the husband had not sexually abused the child. We take that to mean that his Honour was not so satisfied according to the civil onus. On this footing his Honour was unable to exclude the possibility that the husband had so abused the child. His Honour obviously concluded that there existed an unacceptable risk that the child would be exposed to sexual abuse if the husband were awarded custody or access.”

121.   However, with respect to his Honour, his reasoning and conclusions became more difficult to follow when he went then immediately went on to say:

“37.In conformity with the submissions of the child’s representative I agree that if I were only to have to take into consideration matters relating to sexual abuse I could not find that there would be an unacceptable risk to [K] in her living with her mother.  This is so if [DP] were not a part of the mother’s life.  In this regard while I accept the mother is prepared to do almost anything to get [K] back and this includes the rejection of [DP], his influence over her in the past has been strong and she has remained with him in circumstances where I am satisfied that they have a violent relationship and accordingly I am not convinced that she would be able to resist some resumption of her relationship with him.”

122.   As I have indicated, this is a somewhat difficult paragraph to understand.  The first and second sentences appear to say (perhaps somewhat self-evidently) that if DP was not part of the mother’s life, there would be no unacceptable risk to the child.  But the fact that his Honour then goes on to say that he is not convinced that the mother could resist resuming a relationship with DP, would seem to indicate that his Honour considered that there would be an unacceptable risk of sexual abuse to the child if she live with the mother because of the presence of DP.  His Honour returned again to his concern that DP might become part of the mother’s life when he said:

“40... Indeed the mother in this case asserted that she would choose [K] over [DP] (T p 16 ln 4).  For the reasons I have set out above I am not entirely certain that I could be confident about that …”

123.   Any attempt to establish his Honour’s ultimate conclusion about whether or not there existed an unacceptable risk of sexual abuse to the child if DP was part of the mother’s life is made more difficult by the fact that, early in his judgment when recording his impressions of the parties, his Honour said (at paragraph 15) that he “did not form the impression that anyone was setting out deliberately to mislead the Court”.  It can be assumed that his Honour intended to include DP in that statement because towards the end of his judgment following his discussions of the sexual abuse allegations, the allegations of violence between the mother and DP and the mother’s attempted suicides, his Honour said:

“48.I mentioned earlier that [DP] had denied that he had carried out any of the alleged sexual assaults on [K].  His evidence about this matter was straight-forward and (in the words that counsel loved to employ), ‘untouched’ in cross-examination.  I am nevertheless satisfied that he is both capable of and may well in the future, return to acts of violence if he is frustrated in achieving his objectives.  I do not believe that violence will necessarily be directed to [K].  But nevertheless in conformity with Patsalou v. Patsalou ((1995) FLC ¶92-580) the role-modelling associated with violent acts in the presence of a child may in itself constitute a basis for differentiation between two alternatives about where a child should live.”

124.   The opening sentences of this paragraph when coupled with the earlier statement in paragraph 15 about the credibility of all concerned would suggest that his Honour accepted DP’s denials of any inappropriate conduct towards the child.  However, it is difficult to be confident of that conclusion, given that his Honour then moved immediately to the separate issue of the likelihood of DP’s committing acts of violence in the future.

125.   Again as I have already indicated, I cannot be confident as to exactly what his Honour’s conclusion was as to whether or not there was an unacceptable risk of sexual abuse if the child lived with the mother and DP was involved in the mother’s life.  His Honour appears to have completed his consideration of the sexual abuse allegations with the following observations in paragraphs 38 & 39:

“38.In coming to these conclusions I do not want to be thought to have over looked the careful submissions by [Counsel for the mother] about the likelihood of K’s having said the things about the alleged assault that she did [Footnote omitted].  To a large extent I accept [Counsel’s] submission that the events could not have taken place in the time-frames asserted.  His careful juxta positioning of the allegations and the opportunities was helpful.  Nevertheless while the grandparents palpably disliked [DP] I am not convinced by any means that they have made up the allegations.  I think the best conclusion I can reasonably come to is that in some respects their evidence is confused or mistaken.  I am satisfied that K did say something and that at least initially her complaints were spontaneous.  However the process that I have reviewed above in relation to child abuse cases generally seems to have taken a hold in this matter and whatever the evidence (the complaint) might have been, it is now submerged in a sea of mis-remembrance and confusion.

39.[Counsel] skilfully turned this sort of reasoning into a negative factor for K’s remaining with her grandparents.  He suggested that it was likely that if the allegations were not true or even if they had been in part made up, K would be encouraged by her grandparents to continue those allegations in the future.  I do not accept this.  I do accept that the grandparents were deeply concerned for K’s wellbeing.  I suspect also that my finding that there would be no unacceptable risk for K in living with her mother would be rejected by them.  I do not however doubt their goodwill or their commitment to K’s best interests.”

126.   Again his Honour’s reference in that last paragraph to his finding “that there would be no unacceptable risk for (K) in living with her mother” is confusing given his overall conclusion ultimately reached in paragraph 49 of his judgment that “there would be an unacceptable risk for the child if she lived with the mother”. It may be that in paragraph 39 his Honour was saying that he had not made a finding of unacceptable risk of sexual abuse.  But, in my view, it is far from clear whether or not he made that finding.

127.   It might be argued that it is of no consequence whether or not his Honour concluded that there was an unacceptable risk of sexual abuse in this case for the reason that he went on to conclude that the risks of the child being exposed to violence in the mother’s household (again apparently if DP was present) and of the mother committing suicide – although apparently not “unacceptable” in themselves – would in combination amount to an unacceptable risk.  His Honour expressed this conclusion in the following way:

“49.In summary, with extreme reluctance in the face of the recommendations of the child representative and the cogent and forceful submissions of [Counsel] on behalf of the mother, it seems to me that there would be an unacceptable risk for K to live with her mother at this time.  I will not reiterate the reasons I have set out above except to say that it is in large measure the combination of them which produces this conclusion for me.”

128.   However, in my opinion, the statement from the High Court in M and M earlier cited makes it clear that a finding of unacceptable risk has to be made according to the civil standard.  Thus if a Court is confronted with allegations of abuse, it must at least satisfy itself that the allegations support a finding of unacceptable risk according to the civil standard, if a decision is to be made wholly or in part on the basis of those allegations.  In other words, unless in this case his Honour was able to satisfy himself that the allegations of abuse supported a finding (according to the ordinary civil standard) of unacceptable risk, he could not rely on the allegations to support his decision.  The problem as I identified it earlier, is that it is not clear whether or not his Honour made that finding.

The issue of violence and risk of suicide

129.   His Honour’s findings regarding violence between the mother and DP were limited to the following, apart from the passage in paragraph 48 just quoted:

“47.The mother accepted in evidence that [DP] had attended at her property and that there had been arguments.  The violence had included the breaking of a window and the kicking of a door.  [Counsel for the grandparents] submitted that (T p 11 at ln 2) there was a probability that if [K] were to be living with her mother and [DP] were around that [K] would be exposed to violence.  Even if I were to accept that the violence had in some respects been a sequence of mutual acts, (and I do not) the failure on the part of the mother to recognise the consequences for a young child in witnessing violent acts between her mother and some other person is a factor that must be weighed in combination with others in determining where to it would be best for [K] to live.”

130.   The evidence which was before his Honour concerning incidents of violence involving DP or involving DP and the mother is set out at length in the judgment of the Chief Justice and Kay J and I need not repeat it.

131.   I need only say that I agree with the submissions of the child representative to the effect that his Honour appears to have failed to have regard to the evidence of the mother and DP that the incidents of violence between them had occurred when the mother was suffering from mental illness and it had been necessary for DP to restrain her or defend himself.  I also agree with the submission of the child representative that there was no evidence to support his Honour’s conclusion in the last sentence of paragraph 47 to the effect that the mother did not recognise the consequences of a young child witnessing violent acts. 

132.   Thus his Honour’s ultimate decision could not be supported on the basis of his conclusions concerning the issue of violence.

133.   For my part I consider that his Honour was entitled to reach the conclusion that there could be a risk to the child given the mother’s history in relation to suicide attempts.  However as it seems clear from the following paragraph that his Honour regarded this risk as only one of a number of risks and not itself an unacceptable risk, his decision could not be supported on that basis alone.  His Honour’s conclusion about this particular matter was:

“46.I am deeply concerned that if as a result of a recurrence of an illness, or simply a calculated act the mother at some point in the future determines to commit suicide while K is with her and did so, the consequences as they may affect K’s development could well be severe.  It imposes a risk in relation to K.  Whether or not it constitutes an unacceptable risk in itself is again doubtful but in combination with other matters it influences my decision.”

Conclusion

134.   For these reasons therefore I consider that the appeal must be allowed and a new trial ordered.

Orders

1.          The appeal be allowed.

2.          The orders made by Faulks DCJ on 7 February 2005 be set aside, save that orders 1 to 5 shall operate until further order.  The parties are at liberty to apply to a judge at first instance to have those varied at any time prior to the retrial of the applications.

3.        The matter be remitted for rehearing before a judge at the Canberra Registry other than Faulks DCJ.

4. The Court grants to the appellants costs certificates 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 appellants in respect of the costs incurred by the appellants in relation to the appeal.

5. The Court grants to the respondents and 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 respondents in respect of the costs incurred by the respondents in relation to the appeal.

6.        That the Court grants to the parties and the child representative a further certificate pursuant to the provisions of s.8 of the said Act being a certificate stating that in the opinion of the Court it would be appropriate for the Attorney General to authorise a payment under that Act to the parties and the child representative in respect of such part as the Attorney General considers appropriate of any costs incurred by the parties and the child representative in relation to the new trial granted by these orders.

I certify that the 134 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate