Krach & Krach
[2009] FamCA 507
•5 June 2009
FAMILY COURT OF AUSTRALIA
| KRACH & KRACH | [2009] FamCA 507 |
| FAMILY LAW – CHILD ABUSE – Sexual abuse – unsubstantiated allegation against the father – finding of no unacceptable risk FAMILY LAW – CHILDREN – With whom a child lives and spends time with – best interests of a child – meaningful relationship – finding that the mother will not permit the children to have a meaningful relationship with the father where this is imperative for the emotional well being of the children – orders made for children to live with father and spend time with mother on a supervised basis for an initial time period FAMILY LAW – EVIDENCE – Documentary evidence – business records – non application of Evidence Act 1995 (Cth) |
| Evidence Act 1995 (Cth) s 69 Family Law Act 1975 (Cth) ss 4, 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 60CC(4), 60CC(4A), 60CD, 61B, 62(G), 65DA, 65DA(1), 65DA(2), 65DA(3), 65DA(4), 65DAC(3), 65L, 68F(2) (repealed), 68LA, 69ZT Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| D and D [2005] FamCA 356 H & W (1995) FLC 92-598 Hemiro and Sinla [2009] FamCA 181 R & R: Children's Wishes (2000) FLC 93-000 Re Dellow's Will Trusts, Lloyd's Bank Ltd v Institute of Cancer Research (1964) 1 All ER 771 Re: H & Ors (1996) 1 All ER 1, 16. |
| APPLICANT: | Mr Krach |
| RESPONDENT: | Ms Krach |
| INDEPENDENT CHILDREN’S LAWYER: | Robert Halliday & Associates |
| FILE NUMBER: | MLF | 2897 | of | 2008 |
| DATE DELIVERED: | 5 June 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATES: | February 19, 20, 23-26 March 2, 3, April 27-30 and May 1,4-8,, 25, 26, 28 and 29 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr B Kiernan |
| SOLICITOR FOR THE APPLICANT: | Hall & Wilcox |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER | Mr J Williams |
| INDEPENDENT CHILDREN’S LAWYER | Robert Halliday & Associates |
Orders
IT IS ORDERED:
That the mother and the father share long term responsibility for changes to the living arrangements of the children L born … August 2000 and S born … November 2001 (“the children”) insofar as such arrangements will make it significantly more difficult for the children to spend time with a parent. Otherwise, the father have sole parental responsibility for all other major long term issues concerning the care, welfare and development of the children including the education and health of the children.
That the children live with the father.
That the mother and the father forthwith do all acts and things necessary to secure acceptance of the family into the non-fee paying program for fully supervised spend time visits conducted by GordonCare at … with the first visit to be available to the family, if possible, 14 days hence.
That the children spend time with the mother on a fully supervised basis as follows:-
a) By agreement with the father, on one day of the weekend commencing 19 June 2009 for a period of two hours;
b) Commencing on 3 July, 2009 for two hours on Friday or Saturday or Sunday each week for a period of six months.
At the expiration of the time spent pursuant to paragraph 4 of this Order, the mother spend time with the children, unsupervised, from 9.00 am to 5.00 pm each Sunday, for a period of three months.
At the expiration of the time spent pursuant to paragraph 5 of this Order, the mother spend time with the children, unsupervised, from after school each Friday until 5.00 pm Sunday each alternate weekend for twelve months and for the same days and times on the weekend of Mother’s Day.
At the expiration of the time spent pursuant to paragraph 6 of this Order, the mother spend time with the children, unsupervised, as follows:-
a) From after school each Friday until 5.00 pm Sunday each alternate weekend and for the same days and times on the weekend of Mother’s Day;
b) For one half of the school term holidays as agreed and in default of agreement the first half in 2010 and each alternate year thereafter and for the second half in 2011 and each alternate year thereafter;
c) For the first half of the long summer school vacation in 2010/11 and each alternate long summer school vacation thereafter;
d) For the second half of the long summer school vacation in 2011/2012 and each alternate long summer school vacation thereafter;
e) For the purpose of school term vacations, the first half commences at the conclusion of school and concludes at 5.00 p.m. on the second Sunday of the school term vacation and the second half of the school term vacation commences at 5.00 p.m. on the second Saturday of the school term vacation and concludes at 5.00 p.m. on the third Sunday of the school terms vacation;
f) For the purpose of the long summer school vacation, the first half commences from 10.00 a.m. on the first day of the holidays and concludes at 5.00 p.m. on the day which represents the mid-point of the vacation regardless of the provision for the children to celebrate Christmas with each parent and the second half of the long summer school vacation commenced at 10.00 a.m. on the day which is mid-way through the vacation and concludes at 5.00 p.m. on the third clear day before the commencement of school;
g) For the purpose of school term vacations and the long summer school vacation the applicable dates and times are those which are gazetted by the school attended by L from time to time.
The mother spend time with the children for the purpose of celebrating Christmas in 2009/10 and each alternate year thereafter, from 3.00 p.m. on 24 December to 3.00 p.m. on 26 December.
The mother’s time be suspended:-
a) over Christmas in 2010/11 and each alternate year thereafter from 3.00 p.m. on 24 December to 3.00 p.m. on 26 December;
b) on the weekend of Father’s Day.
That for the avoidance of doubt, the time provided for in paragraphs 4, 5, and 6 of this Order continue through school terms holidays and the long summer school vacation.
That for the avoidance of doubt, the time provided for in paragraph 7(a) of this Order be suspended during school terms holidays and the long summer school vacation and recommence after school starts as if such holiday time had not occurred.
That the father do all acts and things necessary to direct the proper officer of each school attended by the girls to provide to the mother (at her expense) all school reports and notices provided to parents and to the authorise and direct that the mother can attend all functions, events and parent teacher nights that parents are normally invited to attend.
That a family consultant nominated by the Manager of Child Dispute Services (“the family consultant”) explain the effect of this Order to the children immediately upon the court rising in terms likely to be understood by the girls and in such circumstances as the family consultant in her absolute discretion considers appropriate.
Upon compliance by the family consultant with the preceding paragraph of this Order, the father is entitled to collect the children from the child care room and take them from court, he being the parent with whom the children are to live.
That for the purpose of the father deciding whether the time provided for in paragraph 4(a) will take place, he discuss the matter with the family consultant in the week commencing 15 June 2009 and the family consultant is requested to discuss the matter with the mother and make known to the father what recommendation (if any) he/she considers is in the best interests of the children.
If the mother wishes to provide any personal effects of the children (or either of them) to the children, the mother make arrangements to deliver same to the family consultant or such place as the family consultant directs.
That each party keep each other informed of:-
a) their current address and telephone numbers; and
b) any significant health issues involving the children.
That the mother be and is hereby restrained from causing, permitting or suffering the children to be spoken to about allegations of sexual abuse.
That for the purposes of these orders changeover occur at GordonCare or at school where applicable.
That the mother be and is hereby restrained from causing permitting or suffering the children, or either of them, to be assessed or treated by a counsellor, or psychologist, or like professional, without the prior written consent of the father.
That the independent children’s lawyer is requested to provide a copy of this Order and my reasons to the following persons:-
a) The principal of O Primary School under cover of a letter which states that the reasons are provided for his reference and that he is requested to exercise discretion and have regard to the interests of the children when disclosing the reasons (or part thereof) to any other person;
b) Ms B;
c) Ms T;
d) The proper officer of Department of Human Services;
e) The proper officer of GordonCare or such other contact centre as accepts the family
f) Ms P
and for that purpose, I direct that my Associate provide the independent children’s lawyer with an adequate number of copies as soon as practicable.
That for the avoidance of doubt, the father and mother are each at liberty to provide a copy of this Order and my reasons to any psychologist, medical practitioner, social scientist or like professional who they consult.
That the order requesting the appointment of an independent children’s lawyer be and is hereby discharged with effect from 29 June 2009 provided that, if a notice of appeal is lodged, this order be of no effect and the independent children’s lawyer remain appointed in the proceeding.
That, subject to me being reasonably available, any parenting or child application filed in this matter within the next 12 months be listed for mention before me as soon as practicable.
That any party wishing to make an application as to costs, including the reserved costs of Ms P, file and serve a written submission to that effect by not later than 27 June 2009 and then await directions to issue from my Chambers as to the time in which further documentation and responses are required to be filed and served.
That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel.
IT IS NOTED that publication of this judgment under the pseudonym Krach & Krach is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: MLF 2897 of 2008
| MR KRACH |
Applicant
And
| MS KRACH |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the children L born in August 2000 and S born in November 2001. The mother and the father each seek orders that the children live with them on the basis, inter alia, that the other parent poses a risk of physical or psychological harm.
The mother’s position is that the father has sexually abused both children, as early as 2005 when she alleges that the father kissed S on her lips with an open mouth. She alleges the father touched each of his daughters in a manner constituting sexual abuse. As to S, the mother alleges the father touched her labia in August 2006. As to L, the mother alleges that the father touched her labia and inserted his finger into her vagina when she was in her Prep year at school in 2006, although no statement indicative of this alleged abuse was made by L until April 2008. The mother further alleges that the father exposed the girls to inappropriate behaviour such as seeing both he and his wife naked and seeing the father’s wife insert a tampon. She alleges the children are smacked and subjected to conflict and denigration of her in the father’s home. The mother’s case is that the girls are at risk of further abuse by the father and, as a consequence, there should be no orders entitling him to spend time with the children on an ongoing basis. However, if there has to be any time between the father and the girls, it should be ‘minimal’, supervised at a contact centre, and directed to being phased out entirely. The mother sought clarification of what to do if the children (or either of them) opposed spending time with the father. She sought an order that, if either child says that they do not wish to spend time with the father at a contact centre, then she should not have to produce them. Come what may, the mother wants to be relieved of any obligation to communicate with the husband’s wife, K, and seeks an order that any parenting matters be discussed only between herself and the father.
The father’s case is that he denies the allegations of impropriety and claims that the mother’s allegations are another endeavour to remove him from the girls’ lives. He says that the mother has been eroding and undermining his relationship with the girls since 2005 to the point that the girls will not be able to have a meaningful relationship with him unless they live primarily with him and his wife, at which point he countenances that the girls could see the mother frequently, although subject to an initial moratorium period of a month and then under supervision at a contact centre for six months. After that, the girls can spend a weekend day with the mother for three months and then each alternate weekend from Friday through to Monday and one half of school holidays. On my calculation and assuming that the mother were to avail herself of the gradual increase in time spent, the children would be spending one day a weekend with the mother by December 2009 and then alternate weekends and half the school holidays by December 2010. The exception would be overnight time to celebrate Christmas in 2009. The father seeks injunctive relief to prevent the mother discussing sexual abuse allegations with the girls and from taking the girls to counsellors, therapists or like social scientists and from taking the children back to E Farm which was the venue of some ‘animal assisted therapy’ which the girls attended on the recommendation of Ms P.
Pursuant to an order made on 4 June 2008, Mr Robert Halliday, solicitor, was appointed as the ICL for L and S within the meaning of Division 10 of Part VII of the Act. His role is to form an independent view, based on available evidence, of what is in the best interests of L and S and then act in these proceedings in what he believes those best interests to be.[1] Mr Halliday is not a legal representative retained by the girls and he is not bound by any instructions from them.[2] The role of the ICL is to deal impartially with the parties, ensure that any views expressed by L and/or S are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The ICL is also under a specific duty to take steps to minimise for the children the trauma associated with proceedings[3] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[4]
[1] s 68LA(2) Family Law Act 1975 (Cth).
[2] s 68LA(4) Family Law Act 1975 (Cth).
[3] s 68LA(5)(d) Family Law Act 1975 (Cth).
[4] s 68LA(5)(e) Family Law Act 1975 (Cth).
At the trial, Mr Williams of counsel appeared for the ICL. The mother was critical of Mr Williams for, amongst other things, advising her that he (and inferentially the ICL), did not accept that the girls had been sexually abused by the father or at all. Mr Williams’ presentation of the matter is entirely consistent with my expectation that an ICL communicate any preliminary view to the parties as and when they can. The ICL is a party and nothing more. I note that on several occasions Mr Halliday attended Court to instruct, in particular when his counsel was cross examining the mother. I am aware that restrictions on legal aid funding meant that he did so with little or no prosect of being remunerated for those attendances. In this case, I am satisfied that the girls’ interests have been well served by the ICL and, through him, his counsel.
The ICL supports the outcome contended for by the father. In fact, the orders the father seeks were drawn by the ICL.[5] Counsel for the independent children’s lawyer submits that the evidence supports me making the following findings in this case:-
a)That the father has not sexually abused either child or in any way conducted himself inappropriately towards either of the children. That is a positive finding that there has been no sexual abuse or sexually inappropriate conduct as opposed to a finding that there is no unacceptable risk of same into the future;
b)That the children have been, and will continue to be subjected to, psychological abuse in the care of the mother.
c)That, if the children remain in the care of the mother, they will have no opportunity to develop or to enjoy a meaningful relationship with the father;
d)That the father and the stepmother have the capacity to provide a suitable environment in which the children can flourish if they live with them full time;
e)That the mother has a delusional belief that the father has sexually abused the children.
f)That, if the children remain in the primary care of the mother, they will be further damaged psychologically and that there is a strong likelihood that such damage will escalate;
g)That the mother’s time with the children should be supervised for a significant period to prevent a continuation of the psychological harm to which she has subjected the children;
h)That, on a day to day basis and other than the psychological harm referred to above, the physical needs of the children have been met by the mother to an adequate degree.
[5] Exhibit “ICL 18”
With the exception of the finding described as (e) above, the father submitted that all of the findings contended for by the independent children’s lawyer should be made. In lieu of a finding as to the mother having a delusional belief, the father contends that the mother does not genuinely believe that the children have been sexually abused but has been driven to make false allegations of sexual abuse to the effect out of a fear of being rejected by the children and/or a fear of abandonment. It was submitted by the father’s counsel that the evidence supports the proposition that the mother has a deep and abiding insecurity about her identity as a mother. This insecurity may, or may not, be overlaid by psychiatric or psychological issues, and has led the mother allege falsely that the father has sexually abused the girls and, in particular, to knowingly manufacture, distort and shape statements by the children in an endeavour to substantiate the false allegations and to deny the father a meaningful relationship with the children.
Given the paramountcy attached to the children’s best interests in my determination of this case, there is not much of a distinction between the case for the independent children’s lawyer and the case for the father. I am more concerned about the impact and prospective impact on the children of the parents’ behaviours rather than to know what drives the behaviours. It may be different if either party recognised deficiencies in his or her parenting style or behaviour and asked me to accept that, once treated, the behaviour could change. However, neither party does.
If I find that unsupervised time between the father and the children carries with it an unacceptable risk that the children (or either of them) will be sexually abused, I will have decided that the risk of the children being harmed by the father or in his care outweighs the benefits to the children of spending time with the father.
The independent children’s lawyer submitted that the issue of whether L and S have been sexually abused by the father permeates every aspect of the case and, accordingly, should be determined by me first. Clearly that is correct. If I find that the girls spending time with the father carries with it an unacceptable risk of sexual abuse, then that would bear significantly on my assessment of the benefit to the girls of having a meaningful relationship with the father.
By the same token counsel for the independent children’s lawyer stressed that sexual abuse is not the only issue. The independent children’s lawyer submitted that, quite apart from making the sexual abuse allegations, the mother is opposed to L and S having a meaningful relationship with the father. It was submitted that, provided that I can be satisfied that the father does not constitute an unacceptable risk to the children (and the independent children’s lawyer says I should be so satisfied), I should make orders that the children reside with the father and spend time with the mother on the basis that the father is the only parent who will permit the girls to have a meaningful relationship with both of their parents. However, it was also submitted on behalf of the independent children’s lawyer that the mother’s unreasonably held belief that the father has acted in a sexually inappropriate manner with the girls carries adverse implications for the girls, the consequence of which is that the children should be removed from the mother’s primary care as a matter of urgency. The independent children’s lawyer relies on the evidence of the family consultant to the effect that, if the girls are left in the care of the mother for more than another month, their psychological wellbeing will be jeopardised. Specifically, the family consultant deposed that a delay in removing the children from the mother’s care creates a potential for the escalation of the allegations against the father and the reinforcement of him as a dangerous person. This would ultimately compound the difficulty for the father and stepmother were a change of residence to take place.
I asked each party to provide details of the orders which they would seek be made on three scenarios. They did so,[6] although each slightly amended his or her position by the time the case was concluded. I recognise that the provision of this information in no way detracts from that party’s case. It is merely to permit me to know what his/her preferred outcome would be in the event that my findings do or do not support the case for which he/she contends. It was agreed between the parties[7] that the parents would share responsibility for major long term decisions affecting changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent. The practical effect of this is that if the parent with whom the children primarily reside wishes to move away by any significant distance, that parent would require the prior consent of the other parent or an order of the court enabling the children’s residence to be moved.
[6] The mother’s outcomes on three scenarios were tendered as Exhibit “W1” and then altered in discussion during the mother’s final submission on 29 May 2009
[7] Discussion during mother’s final submission on 29 May 2009
If I make a positive finding against the father of unacceptable risk:-
a)This is the outcome for which the mother contends and which I have described in paragraph 2 of these reasons.
b)The ICL seeks that the children live with the mother, she have sole parental responsibility, the father continue having supervised time at a contact centre (probably two hours a fortnight), and be able to forward cards and presents to the children on birthdays and Christmas.
c)The father seeks order in line with the position of the independent children’s lawyer except that he would want shared parental responsibility.
If I am not satisfied that the father poses any unacceptable risk to the children and determine that it is still in the best interests of the children that they remain living with the mother:-
a)The father seeks equal shared parental responsibility, that the girls spend time with the father on a gradually increasing basis culminating in each alternate weekend, from after school on Friday to the commencement of school on Monday, each Wednesday, by phone each other Sunday, and half of all school holidays and special occasions. He further seeks that there be a prohibition against the mother suspending the father’s time because of disclosures made by the children in relation to the father or from taking the children to counsellors or generally exposing them to her beliefs that they have been or will be abused by him.
b)The mother seeks that the father should spend time with the father on alternate weekends, from Friday after school to Sunday night, midweek, by telephone midweek, and on school holidays and special occasions. She sought an order prohibiting the father and/or the stepmother from being involved in the day to day school life of the girls and that they only be entitled to attend certain specified events, such as father’s day activities, separate school interviews, occasional school assemblies, sports days and school concerts on seven days notice in writing to her and with her consent. Neither of them is to go to the school to read to the children. The mother sought orders which would prescribe the consequences of the children not wanting to spend time with the father (which is that they not be forced to attend). The mother seeks orders that, any time that the father spends with the girls or they live with him must be in the company of a person over the age of 18 years and the stepmother is to attend to or assist the girls with all toileting, bathing and like hygiene.
c)The independent children’s lawyer seeks the same orders as the husband as this scenario. The ICL also seeks that the parties keep each other advised of their contact details and addresses, medical issues concerning the girls, the father be able to attend school functions and changeovers be conducted at a neutral location or by the father’s wife if it must be to or from the mother’s home.
If I am not satisfied as to unacceptable risk and I am satisfied that the best interests of the girls require that they live primarily with the father:-
a)This is the outcome for which the father and the ICL contend and which I have described in paragraphs 3 and 7 of these reasons.
a)The mother seeks that the children spend time with her for three out of each four weekends and one half of all school holidays, (with a week being calculated from 1.00 p.m. Sunday to 1.00 p.m. Sunday), that there be telephone communication once a week between 6.30 p.m. and 7.00 p.m.. If the father is not able to take leave from his work so as to be able to stay at home with the children during the half of the school holidays which is to be spent with him, the time that the mother can spend with the children be enlarged by the holiday time during which the father has to work. The mother does not accept that a moratorium period of one month or time being supervised by a contact centre, as sought by the other parties, are appropriate. However, if there has to be any recognition of a settling in period for the girls, she says that maximum ought to be one month during which her time with the girls could be weekly at a contact centre. Notwithstanding that the care of the children would rest primarily with the father, the mother seeks orders that any time that the father not be permitted to be alone with the girls and that he can only care for the girls the company of a person over the age of 18 years. Again she seeks an order to the effect that the stepmother is to attend to or assist the girls with all toileting, bathing and like hygiene.
Evidence
At the trial the applicant father relied upon his affidavits sworn on 28 March 2008 and 11 February 2009 and the affidavits of his wife, the stepmother, also sworn on 28 March 2008 and 11 February 2009.
At the trial the respondent mother relied upon her affidavits sworn on 12 May 2008, 30 April 2008, 13 August 2008 and 11 December 2008. A Notice of Risk of Child Abuse was filed by the mother on 14 May 2008 and adopted as part of her evidence. By consent, the mother tendered eleven letters which are character references.[8] The character references are written by friends and acquaintances of the mother, largely from her church community. They make very favourable comments as to the mother’s character and parenting skills.[9] I have read and considered them but do not accept that they are relevant to the core issues of the matter, being whether the children have been sexually abused by the father and to what extent each of the parties are able to facilitate a relationship between the children and the other parent.
[8] Exhbit “W9”
[9] Exhibit “W9”.
As part of the protocol attaching to Magellan cases, the Department of Human Services prepared a report dated 7 July 2008. It summarised the Department’s involvement with the family from the first investigation in January 2003, which concerned the impact on the mother’s parental functioning of alleged depression, abuse of prescribed medication and excessive consumption of alcohol, to the allegations of sexual abuse of the girls raised by the mother against the father in August 2006 which are ongoing. The report concluded[10]:-
It is the assessment of the Department of Human Services that both parents continue to expose the children to their conflict although they have continually claimed that they have prioritised the children’s best interests at all times.
As far as the sexual abuse allegations are concerned there has been no disclosures to SOCAU of Child protection workers although there has apparently been a report written by the children’s psychologist containing a disclosure of sexual abuse.
[10] DHS Report dated 7 July 2008, page 8
No party sought to cross examine the author of the DHS report or any of the relevant protective workers. I accept that evidence as being unchallenged. The psychologist to which DHS referred is Ms P.
The ICL secured the production at Court of documents from M Community Centre and the South Eastern Centre Against Sexual Assault (‘SECASA’). The mother objected to the release of the documents on the basis that the records related to counselling which she has received personally and not to any counselling or assessment of the children. I released the documents for inspection and copying subject to certain conditions for reasons which I delivered at the time. I incorporate those reasons into this judgment.
The parties extracted documents from bundles of documents and things produced on subpoenae which, together with some other materials, were compiled into a Court Book.[11] The contents of the Court Book was not tendered as evidence in totality although it was conceded that all were in admissible form if they were sought to be tendered. Witnesses were regularly referred to documents from the Court Book. Insofar as some contents were put into evidence, they were separately marked as exhibits.
[11] Exhibit “C1”
There were numerous other exhibits.
These are proceedings to which the provision of Division 12A of Part VII of the Act apply. Section 69ZT excludes from these proceedings various divisions and chapters of the Evidence Act 1995 which deal with general rules about giving evidence[12], cross examination[13], documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. That means that the rules of evidence in relation to the admissibility of business records do not apply to this case.
[12] With the exception of ss.26, 30, 36
[13] with the exception of s 41 relating to improper questions
Section 69ZT(3) provides that in exceptional circumstances and having regard to various matters such as the importance and nature and subject of evidence, probative weight and natural justice, I can decide that certain excluded provisions of the Evidence Act 1995 should operate in the proceedings. I did not, and was not asked to, make any such order.
Section 69ZT(2) of the Act provides that the court can give such weight (if any) as it thinks fit to evidence which is admitted as a consequence of the non-application of provisions of the Evidence Act 1995. I will do so.
In exercising my discretion to accord weight to documentary evidence, I am guided by principles which apply to business records under the Evidence Act even though I am not bound by those rules or statutory provisions. The philosophy underlying Section 69 of the Evidence Act is that records of things seen or heard or perceived are likely to be accurate when they are made by an independent person, in the course of a business or enterprise in which they are involved and are required to make records for the information of others and when the author has no interest in the outcome of the proceedings or could not have foreseen the proceedings at the time of making the record. Under the rules of evidence, documents brought into existence in those circumstances are admissible as evidence notwithstanding they are not proved or the maker may not be available for the evidence to be tested. The philosophy accords with common sense.
There are a number of documents which, in respect of proceedings to which Division 12A Part VII does not apply, would be business records. There are other documents produced by DHS which, whilst not business records due to the charter of the Department to make and take protection applications in respect of children at risk, were produced under the same conditions as business records. Many of these documents were produced on subpoenae in this proceeding, some of were incorporated into the Court Book and then made exhibits in the proceedings. There are a number of instances in these reasons where the evidence of a party or a witness conflicts with the contents of an official record and I prefer the latter. Unless I express a contrary reason for doing so, the reason for which I prefer the official record is that it was produced by an independent person, in the course of a business or enterprise for which they were expected to record events and perceptions accurately and were made when the author had no interest in the outcome of the proceedings.
Summary of sexual abuse allegations
Broadly speaking, the mother’s allegations against the father fall into five categories. In discussion, the mother clarified that the references to a child’s vagina or ‘minnie’ are actually references to a child’s labia majora or outer labia and not to her vagina which is an internal organ.[14]
[14] Exhibit “C5”, para 3.
First, there are the acts or omissions to which the mother takes objection because, if true, they are potentially undermining of the girls’ relationship with her. The mother alleges that:-
a)On 19 June 2005 the girls reported to her that the father and his wife, the stepmother, had directed them to call the mother by her first name and to call the father’s wife “mummy”;
b)On 2 October 2006 “[L] aged 6 disclosed to [the mother] that she wished her step-mum didn’t have her period so that she could get pregnant and have a baby.”
c)On no specific date “both girls are exposed to adult themes and being told what a period is by [the stepmother] as [L] has told me on several occasions she knows when [the stepmother] has her period has seen her change pads and hears the wrappers in the toilet.”
Second, that the father and his wife have conducted themselves in an overtly sexual or immodest manner in front of the children. The mother alleges that:-
a)On 10 October 2006 both girls saw the father’s wife, the stepmother, disrobe down to a G-string and then naked get into the shower with the father.
b)On 8 April 2008 “Both girls told me that they have seen [the stepmother] the father’s wife insert a tampon whilst clothed in front of the girls in her en suite. [S] stated that she has seen [the stepmother] do this whilst she was fully naked on a different occasion.”
c)On no date specified “both girls have stated to me that they have been in the shower with their father separately and together and together and separately with [the stepmother].”
Third, that the father has touched the S inappropriately. The mother alleges that:-
a)On 20 October 2005 S “disclosed to [the mother] that her father kisses her with an open mouth.”
b)On 7 August 2006 S said that her dad had been tickling her Minnie in the bath for 2 hours whilst being alone with him.
c)On 5 September 2006 S told a SECASA worker, Ms C, “that her father had tickled her Minnie”.
d)On 28 September 2006 “[S] made further disclosures to [the mother] that her father tickled her minnie (vagina) on the toilet.” And “[S] was fully toilet trained and began regressing wetting the bed constantly throughout the day and night prior to her disclosure and afterwards I noticed after her disclosure she began aggressively masturbating.”
e)On 9 October 2006 S told the mother that “her bad secret about daddy tickling her Minnie has gone to heaven with jesus!”
f)On 10 October 2006 “[S] disclosed she has a bad secret daddy tickling her Minnie 4-5 times on the toilet separate occasions.”
g)On 25 May 2007 S stated to the mother that the father had kissed her on the lips with an open mouth. “She said its been in my head for ages. She said she didn’t remember when it was but its been in my head a long time.”
h)On 24 October 2007 S confirmed by nodding her head statements made by the mother in front of Ms P that her father tickled her minnie and gave her sloppy kisses with an open mouth. S repeated these statements independently of her mother at a later session and used precisely the same words as the mother had used.
Fourth, that the father has touched L inappropriately. The mother alleges that:-
(a)On 29 April 2008 L told the mother that “her father whilst bathing her alone slid his pinky finger up and down her Minnie (vagina) for one minute.” The mother records that L “thinks that she was 5 or 6 years old (in prep)” which, I calculate to be in 2006. It is further alleged that this statement was repeated to SOCAU on 1 May 2008 and to Ms P, psychologist, on 7 May 2008.[15]
(b)On 22 February 2009, L had a conversation with Mr H where she stated that her father had touched her vagina. She wrote a note to Mr H which stated ‘he slid his pinckey (sic) up my vagina.’[16]
(c)On 2 March 2009, the sixth day of the trial, the mother informed the court that the previous Saturday, 28 February 2009, L had told her that she did not want to go to Gordoncare each week “because of what daddy's done to my vagina." and "I'm mad and I don't like what he's done to my vagina." and "It hurt my vagina inside." The mother stated that L said that she had “dried herself and then she went to the toilet because she was - because her bottom was hurting and she said that she noticed that it was bleeding when she was doing wee and that there was blood on the toilet paper.” The mother confirmed that L was describing the abuse which had allegedly occurred when she was in Prep in 2006 and in respect of which she first made any statements on 28 April 2008. However, the mother stated that this was the first time that L had described her father touching the inside of her vagina, rather than her labia majora.
[15] Allegations approved by the mother as per Exhibit “C5”, dated 3 March 2009.
[16] Exhibit “ICL 12”.
Fifth, that the father failed or neglected to abide an undertaking which he gave to DHS in relation to safe and appropriate care of the children. The mother alleges that on 1 and 17 September 2006 both girls told the mother that the father had bathed them in breach of an undertaking that he had given to DHS that, whilst the girls were in his care, only the father could assist the girls in the bath or in the lavatory and then only with the stepmother present.
Following the mother’s statement on 2 March 2009, orders were made to support L’s school principal, Mr Y, taking L to a SOCAU interview and the mother collecting L at the conclusion of the interview. The interview was videoed and the VATE is Exhibit “ICL25” At the interview L stated that the father had scratched her vagina (which I take to be her outer labia) with a jagged fingernail which made her sore, that she did not say anything to the father but she asked to get out of the bath, did so and saw and smelt drips of blood when she used the toilet. L calculated that the incident occurred on 27 February of the year she was in Preparatory Grade (2006).
All parties took the opportunity to view the VATE recording, in Court, prior to the recommencement of the case on 27 April 2009.
Standard of proof
In assessing the evidence, I apply the balance of probabilities as the standard of proof. The practical application of the balance of probabilities was discussed by Lord Nicholls in Re: H & Ors[17]. Relevantly, His Lordship stated:
Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.
[17] (1996) 1 All ER 1, 16.
As was observed by Carmody J in D and D [2005] FamCA 356, the more serious the allegation, the more cogent the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. [18] The balance of probability standard takes account of the instinctive judicial feeling that even in civil proceedings a court should be surer before finding serious allegations proved than when deciding less serious or trivial matters. There are degrees of probability but, when the law talks about "the balance of probabilities", it envisages a degree of probability to the point that a court can be satisfied that the alleged fact in issue is more likely than not. There has to be something more than mere conjecture or suspicion. A proposition is proved on the balance of probabilities in a circumstantial case when the combined weight or preponderance of the totality of the available evidence favours it as the most likely explanation. The more information consistent with one of a number of competing hypotheses, the more probable that explanation becomes. I agree with those observations.
[18] Re Dellow's Will Trusts, Lloyd's Bank Ltd v Institute of Cancer Research (1964) 1 All ER 771 at 773 per Ungoed-Thomas J.
In these reasons, statements of fact constitute findings of fact.
Credit and Impression of Witnesses
Expert Witnesses
The ICL obtained expert evidence from:-
a)Dr D, psychiatrist, of his assessment of the mother following the appointment on 21 January 2009, which is annexed to an affidavit sworn by him on 12 February 2009;
b)Dr K, clinical and forensic psychologist, of his psychosexual assessment of the father following their appointment on 18 August 2008, which is annexed to his affidavit sworn on 27 October 2008.
By agreement further documentation was provided by the ICL to Dr D after the case commenced. Both experts were required for cross examination.
The ICL was responsible for arranging the attendance of Dr D and Dr K at Court for cross examination but the witnesses were treated as witnesses of the Court and the ICL was entitled to, and did, cross examine them.
Dr K, clinical and forensic psychologist, conducted a psychosexual assessment of the father and produced a report dated 28 August 2008. Dr K had access to, inter alia, the affidavits of the parties and the stepmother filed before that date and to the mother’s Notice of Risk of Child Abuse.[19]
[19] Dr K, Psychosexual Report, 28 August 2008, pg 2.
Dr K found no obvious presence of mental health problems in the father. The results of a Sexual Offender Needs Assessment Rating (SONAR) indicated ‘no evidence of risks which would indicate the father has any predisposition towards sexual offending.’[20] His conclusions were as follows:
There is no evidence that [the father] has any propensity to sexually offend, and in contrast, presents as a well balanced individual, who has his children’s best interests at heart.
[The father] is in a stable and long-term relationship. His partner, [the stepmother], was also interviewed regarding these issues. There is a high level of consistency in the explanations that the father and his partner provided regarding the allegations.
Overviewing this case shows a not uncommon pattern in Family Court disputes with conflict and bitterness between the parents at the end of the relationship, a pattern of reduction in contact between the children and the non-residential parent, the re-partnership of the non-residential parent, escalating allegations from the residential to the non-residential parent starting with less serious allegations and moving up to more serious allegations.
I should comment that it is important to note that the pattern of the residential parent making the allegations regarding sexual abuse against the non-residential parent also often correlates with the residential parent having had a history of sexual abuse. In this case, I have commented on the nature of the report by the clinician involved with the mother. Several concerns relate to this issue, including the lack of independence of the clinician, and the fact that non-standardised methods of evaluation of the children around these issues was undertaken.
In summary, there is no evidence based on material that I have read or any aspect of the results of this evaluation which indicate that the father, [Mr Krach], should have anything but appropriate and normal contact with his daughters at present and in the future.[21]
[20] Dr K, Psychosexual Report, 28 August 2008, pg 9.
[21] Dr K, Psychosexual Report, 28 August 2008, pg 15.
Dr K’s report commented on the interview techniques of Ms P with regards to S, highlighting that it appeared that much of the psychologist’s information had been drawn from the mother. For example, the interview where S first ‘disclosed’ her father’s actions was conducted with the mother present, where S:
agreed to confirm or deny when her mother was telling the counsellor some facts. It was clear that this is not a standard interview which is designed to obtain information about sexual abuse. Rather, certain pieces of information were put forward to the child to agree or disagree to, and in this case, it would appear that the mother was present. Interestingly, the child also used the same words that the mother used.[22]
[22] Dr K, Psychosexual Report, 28 August 2008, pg 4.
Dr K gave further evidence about Ms P’s interview techniques. He stated that the mother’s presence, the use of leading questions and the absence of comment as to whether the child had been coached or influenced was non-standard. He stated that a typical interview would involve the psychologist talking to the child alone about normal aspects of the child’s life, including school and siblings, and their relationships with their family members. A psychologist would generally not raise the issue of sexual abuse on any level. The appropriate course is that issues of touch and play are raised as part of normal interview process, for example, by asking the child how normal touch occurs in the course of sleeping or showering. Dr K’s evidence, which I accept, was that, at no time should a child be asked leading questions.
Dr K deposed that as a child’s memory, particularly up to the age of five, is very suggestible, children will remember a variety of things which may or may not be correct. A child is more likely to adopt a false belief that something has occurred if it has been introduced by an authority figure, such as a parent. Further, Dr K expressed the opinion that, if the child has stated something on one occasion, it is common that the child will repeat it. It is also difficult for children to retract to a particular person things they have already said in front of that person. I accept Dr K’s evidence.
Dr K conceded that it is possible for an interview technique to be flawed, but for what a child says ultimately to be true. However, one would then need to look to other factors, such as whether the particular child has made similar statements to a variety of different people (in this case, not in the presence of the mother) and whether the child has displayed the symptoms of having been sexually abused. These symptoms may include excessive interest in sexuality, inappropriate behaviours, and the child appearing distressed or disturbed, particularly over a period of contact, where this has been confirmed by a variety of different people.
Dr K explained that age inappropriate sexualised behaviour could include an overt and unusual interest in the child’s own genitals or those of others, or inappropriate knowledge of sexuality. He was asked whether a four year old child ‘flicking her hair’, ‘acting prissy,’ wanting to take a doll’s clothes off or cutting off a doll’s hair or arms would constitute disturbed or distressed behaviour. Dr K expressed that this would not be of concern unless a child had aggressive fantasies or play on a regular basis, though that in itself would not be a clear sign of sexual abuse. He noted that it was important to rule out that a child had not been exposed to this kind of behaviour otherwise, such as through an older sibling, a parent or through television. He also stated that it was unusual for children who have been sexually abused to have been required to play out coquettish behaviour because coquettish role playing is not commonly a feature of the abuse. Dr K stated that a greater concern would be if a child was masturbating themselves or other children inappropriately.
With regards to the incident described by Ms P as S inappropriately wiping the genitals of a baby boy doll, Dr K opined that it was quite common for children to do a variety of things with dolls, particularly if a doll has genitals. He added that ‘doll play is certainly one of the least valid forms of assessment, and tends not to be used early on in evaluations, because of what certain actions may mean.’[23]
[23] Transcript of Proceedings, 6 May 2009, pg 3.
Dr K was provided with the mother’s description of S’s ‘aggressive masturbation’, where the mother assumed she was masturbating because she could hear the doona moving, S huffing and puffing and sweating with her legs thrashing and her bottom moving up and down. It was his opinion that it would be unusual for a pre-pubescent child to display this sort of behaviour, and that he had concerns about whether the mother has provided the court with an accurate description. He stated that if it was accurate he would expect a high level of disturbance in the child, which had been observed by a variety of different people, representative of compulsive masturbation, such as the child masturbating in a variety of locations such as school and child care.
The mother cross examined Dr K about the incident of S kissing her with an open mouth when she was almost four years old with a ‘sexual look on her face,’ subsequently claiming her father kisses her like that. Dr K responded that it was not uncommon for children under six to behave in ways which might be considered sexual and to justify their actions when they feel scolded or embarrassed, in particular with reference to a person who is an authority figure but is not present in the household (ie. the other parent).
Dr K was asked to express an opinion about L’s statements that the father has touched her labia being made almost two years after S’s initial statements. He opined that although it was common for children not to disclose instances of abuse, he would be sceptical if a child had had the opportunity to talk about it several years before, especially when it was apparent that they had been believed, but had not done so. It must be said that L had more than adequate opportunity to talk about being abused. For instance, L was allegedly sexually abused by the father in the bath in February 2006. L had 24 sessions, each of one hour duration, with Ms P between 7 August 2006 and 5 December 2007 without making any statement which was indicative of sexual abuse. L was aware that S had told the mother in October 2005 that the father kissed her on the lips with an open mouth. L contradicted S’s allegations in that regard but, I am satisfied, was aware that the mother accepted them. It is likely that L knew that in October/November 2007 L made statements to Ms P which Ms P thought were indicative of S being sexually abused at the hands of the father. It was not until after the father instituted these proceedings and a break from Ms P of some four months that L allegedly made any statement.
I accept all of what I have described as Dr K’s evidence thus far as I do evidence to which I will come later when I discuss the particular statements allegedly made and the circumstances of them.
Dr K gave evidence that it was very unusual for a child who has been sexually abused to change the description of the event dramatically. In this case, L allegedly said for the first time in April 2008 that her father touched her labia about two years previously (when she was 6 years old and in Prep). Almost a year later, in the midst of this trial, she allegedly said to the mother that the father had put his pinkie finger inside her vagina as well as scratching her and causing her to drip with blood when she used the toilet. Dr K’s evidence was that, in a situation where a child feels some expectation to talk, embellishment is not unusual. I am satisfied that the mother placed the girls under intense pressure to make statements and to believe that the father had sexually abused them. She denies having done so. I accept that the pressure may not have been applied consciously but I have no doubt that it was applied.
I accept Dr K’s opinion that the ability of children of six years of age to remember fine details is quite poor, but that core issues are usually remembered. He said that it was unusual for children to remember more detail later on. However, he was sceptical that in March 2009 L would have stated for the first time that she recalled being cut by her father’s jagged finger nail. Dr K’s opinion was that he would expect that a child in L’s position would have remembered initially a palpable detail such as drops of blood.
Dr K doubted that the children would be traumatised through hearing their step mother open sanitary napkin wrappers in the lavatory. He accepted that the girls may well have a fascination with their stepmother. He said that it was quite possible that the children may have looked around the stepmother’s bathroom and seen tampons or sanitary pads, but of most relevance would be the context of the children’s motivation or obligation to report these events to their mother, and whether there had been some expectation placed on the children to report back the minute detail of the stepmother’s life. Having heard the evidence, I am satisfied that Dr K’s views are correct.
Dr K was an impressive witness. I place weight on his evidence insofar as it was based on his personal assessment of the father and the extent to which he gave evidence about what constitutes appropriate methods of investigation of child sexual abuse.
Dr D interviewed the mother on 21 January 2009. Dr D had access to the mother’s affidavits (filed before this date) and Notice of Risk of Child Abuse and medical letter from Dr M dated 22 April 2003. Dr D was later provided with additional information by the ICL, including reports of psychiatrists who had diagnosed the mother in 2002 and 2003, Dr O and Dr M, the mother’s diary and subpoenaed documents from M Community Centre and SECASA.[24] During proceedings, Dr D was also given details about the two instances of sexual abuse of the mother.
[24] Transcript of Proceedings, 6 May 2009, pg 3.
Dr D’s report sets out the mother’s history and notes the mother’s dependency issues in relationships. It concludes that there are no indicators of psychiatric illness in the mother, although counselling may be helpful in ‘bolstering her parenting strengths.’ Regarding her parenting, Dr D’s report notes:
[The mother] has been a victim of sexual abuse. Her own experiences may have heightened her sensitivity to interpreting aspects of her daughter’s behaviour as being a product of sexual abuse. [The mother] reports that her daughters have made direct and specific disclosures. Without appropriate independent enquiry and investigation such complex matters can not be clarified.
The letter of Ms [P] raised concerns that aspects of [the mother’s] past may have negatively influenced her parenting style. An independent parenting assessment may delineate aspects of Ms [P’s] concerns.[25]
[25] Psychiatric Report by Dr D, dated 5 February 2009, annexed to his Affidavit sworn 12 February 2009, pg 8.
Dr D gave evidence that at the time he conducted the assessment there was a distinct absence of information and clear omissions of critical information from the mother’s account, particularly psychiatric history, which is critical for the formulation of a professional opinion. For example, page 5 of his report records that the mother told him that ‘[s]ince separating from [the father] in 2002 she reported to experience an improvement in her mental state. She denied experiencing any depressive symptoms since 2002.’ In contrast, the examination notes of Dr O and Dr M confirmed that the mother had contact with two psychiatrists and had undergone treatment for depression in 2002 and 2003 and that there were significant concerns about her level of alcohol consumption.
In final submissions, counsel for the ICL listed a range of matters of which the mother should have informed Dr D. This included:-
a.the mother’s treatment by Dr O, who diagnosed her with bipolar disorder with hypomanic symptoms,[26];
b.her involvement with Dr M, who diagnosed her with ‘borderline personality disorder as evidenced by significant difficulty in forming and having a relationship, abuse of substances and impulsivity.’[27];
c.the incident of aggravated burglary and assault in June 2003 which led her to consult with Ms A, psychologist, who diagnosed her with post-traumatic stress disorder and depression,[28] and treated her for 32 counselling sessions;
d.her extensive counselling with SECASA, where the mother attended over 70 or 80 sessions from 2006 to date.
[26] Letter from Dr O to Dr S, dated 6 December 2002, Court Book pg 254.
[27] Exhibit “ICL 21.”
[28] Exhibit “ICL 7.”
The ICL submitted that the mother’s omissions constituted a deliberate attempt to mislead Dr D in an effort to further her case by obtaining a favourable psychiatric report. In cross examination of Dr D by the mother on the issue of pertinent matters which the mother failed to disclose to Dr D as part of her history, the mother stated “I’ve grown – I am not the same person I was back then. I am no longer affected by these things now.” In final submissions the mother stated that she had not been aware of the precise contents of the reports from earlier psychiatrists. I have difficulty with accepting what the mother says in this regard. Even if the mother was not aware of the precise diagnoses, she must have been aware that she had some condition for which she was prescribed medication. The mother now seeks to rationalise having been selective with information provided to Dr D by saying that she has “changed”, did not benefit from the intervention of the psychiatrists and has found a more suitable practitioner in her SECASA counsellor, Ms B. These are not judgment calls which the mother is qualified to make. I am satisfied that the mother purposefully concealed from Dr D relevant facts from her personal history and did so in the hope that Dr D would prepare a more favourable report of her mental health than she suspected might, otherwise, be the case.
Although Dr D was reluctant to draw definitive conclusions as to the potential diagnoses of the mother without further assessment, he stated that:
[t]he first thing which has obviously been highlighted by another psychiatrist is whether this dysfunction that’s apparent fits into the realm of a personality disorder, and it certainly is very suggestive of that, particularly in relation to apparent patterns of interpersonal difficulty. It’s hard to elicit the particular qualities of that, but there’s certainly a pattern it seems of interpersonal difficulty. There’s also an apparent issues in terms of [the mother’s] cognitions in the way she’s interpreting and understanding her inner self and her experiences with other people. There’s also the issue of whether in fact the intensity and apparent obsessional sort of nature to her beliefs constitutes a delusional belief system, and therefore whether a delusional disorder is an appropriate diagnoses as well. There are strong suggestions in fact that it may constitute that diagnoses based on the fixation, if you like, preoccupation and intensity of belief that it does seem to have developed into a core belief system that’s very rigid. It’s inflexible, it is apparently quite dominating to [the mother’s] thoughts and beliefs, and based on her diary entries, it seems to have driven her whole world really in the way she’s experienced things. So that in itself is alarming, in fact that these beliefs may relate to delusional beliefs as opposed to beliefs based on factual information.
MR WILLIAMS: That, doctor, is not I’d suggest to you a simple diagnosis, as it were?--- No. I think this presents as an extremely complex problem in fact, that we’ve got a combination of apparent personality dysfunction combined with an additional possible primary psychiatric disorder, and delusional disorders by nature are often very, very difficult to manage largely because the individual themselves often has very limited insight, if negligible insight, as they often do with their own personality style as well. So it does present as a considerable challenge in terms of management if the individual lacks insight and has a – if they’re unwilling to seek appropriate help to manage that problem.[29]
[29] Transcript of Proceedings, 6 May 2009, pg 7-8.
With respect to the mother’s diary, Dr D notes that there is an extraordinary level of detail pertaining to the allegations of sexual abuse, and that it is written in a ‘very intense and somewhat obsessional sort of way.’[30] I agree that it is an unusual document. The fact that the court reproduced it for the parties and witnesses in colour lends more impact than a black and white copy could convey. However, my concerns about the diary are less than those of Dr D and are tempered by the mother’s evidence that she was trying to record every detail relevant to the sexual abuse of her daughters so as to be able to give as accurate an account as possible in the context of proceedings. It was not intended to be a record of daily events or general family life. I regard Dr D’s perspective as being sound but I prefer, and adopt, the description of the diary provided by the family consultant who opined “it is important to look at this matter in its totality and the diary is one component that formulates a picture of what is going on for the children within this environment. The diary entries is one piece to the puzzle, gives some indication to me of the environment in which they’re living whereby these issues, the acrimony, are just alive[31]”And later on, “It does provide some assistance in gaining some understanding about what has actually happened and assist in drawing a picture of what it might have been like for the children.[32]” That said, the diary stands as evidence that the mother’s discussions with the children about sexual abuse were frequent and often gruelling in the extreme. My impression is that the children saw no way out of a troublesome situation or perceived no other way to make their mother happy than to make statements to the effect that they had been sexually and emotionally abused by the father. I am also satisfied that the mother has no insight into this dynamic.
[30] Transcript of Proceedings, 6 May 2009, pg 6.
[31] Transcript of Proceedings, 8 May 2009, page 62, line 11
[32] Transcript of Proceedings, 8 May 2009, page 62, line 32
Dr D described a delusional disorder as follows:
It's a finite diagnosis, and basically it connotates that the individual has a core belief system which is delusional, that being it's a fixed false belief, and that otherwise their functioning can be quite normal, but in respect to the delusion, it can drive their behaviour and their functioning in a specific manner, which I guess is what we're speculating here with [the mother], that her behaviour is being driven by her beliefs but otherwise she can present relatively normally as opposed to a more disturbed psychotic disorder, and it's in the umbrella of psychotic disorders, such as schizophrenia where the individual may have an array of other symptoms, and more generalised disturbance in their functioning. So delusional disorders often the individuals can go about their day‑to‑day reasonably well. They can still work and function generally quite well, but because of their beliefs, it does drive their behaviour in a way that can cause a level of dysfunction, if that's clear.[33]
[33] Transcript of Proceedings, 6 May 2009, pg 11.
According to Dr D, the effects of the mother’s mental health problems on the children could be ‘incredibly damaging’, particularly having regard to the potential and opportunities for the mother’s delusional beliefs to be impressed upon her young daughters. He adverted to the danger of a folie a deux, where:
the other party develops the same belief system independently, and its not questioned, and it’s sort of held in sometimes the same intensity as the person who holds the primary belief, and that would be more possible, given the impressionability of young children who don’t have the capacity to necessarily develop independent thought, but they would obviously be very reliant on beliefs that are shared with them or impressed upon them by their caregivers.[34]
More generally, Dr D described the danger of the children not being able to develop their own views and form a positive and secure attachment to their father because their relationship ‘is being eroded by the underlying beliefs that the father is a dangerous individual.’[35] I accept that this is a real danger for the children.
[34] Transcript of Proceedings, 6 May 2009, pg 15.
[35] Transcript of Proceedings, 6 May 2009, pg 15-16.
It was Dr D’s opinion that if the children are to be moved to the father’s primary care, the father and his wife would likely require professional assistance in managing the children. He did not suggest that the children would need to be seen by further professionals but he considered that the father and the stepmother were likely to be in need of some expert assistance and guidance to assist them in dealing with the girls’ false beliefs.
With regards to the children’s future relationship with their mother, Dr D stated that it was important that there be some confidence that the children would not be re-exposed to her erroneous beliefs in the future. He added that:
The thing with a delusional disorder is that unlike schizophrenia, the person can possibly function quite well if they can somewhat separate the encapsulated delusional belief system. So they may well be able to carry out parenting duties quite effectively if they are not caught up in their beliefs. Now, the question will be whether [the mother] has that capacity to sort of separate itself in the interests of the children to participate in appropriate activities and care of the children without having to continually expose the children to her concerns.[36]
[36] Transcript of Proceedings, 6 May 2009, pg 17.
Dr D stated that in order to cease exposing the children to her beliefs, the mother would require some insight into the falsity of her beliefs. He conceded that hypothetically a person may have the capacity to change their behaviour whilst maintaining the same beliefs for fear of adverse consequences. However, he stated that he did not have sufficient information to formulate an opinion as to whether the mother would have that capacity.
Dr D stated in cross examination that, in his opinion and based on the information provided to him, the mother’s actions were likely generated by mental illness rather than malice or inherent dishonesty. Nonetheless, he said that there was a strong possibility that the mother had influenced the children to make statements regarding events which did not occur, through introducing them to a belief of which they developed their own interpretation, eventually leading them to volunteer information of their own accord. He highlighted the potential for such a situation to create a vicious cycle, where the children have made comments which reinforce the mother’s false belief. I accept that opinion of Dr D whilst it falls short on a diagnosis it is a sound hypothesis. What Dr D describes in practical terms accords with my observation of the mother both in her evidence and in the presentation of her own case. She is unable to identify the enormous pressure which she has placed on the girls and permitted other people, such as her friend Mr H and the children’s psychologist Ms P, to place on the girls to make statements indicative of sexual abuse. The mother then seizes on any statements which the girls make in those harmful scenarios as corroborative of her allegations.
Upon being cross examined by the mother, Dr D conceded that his conclusions were limited in that he had interviewed the mother only on one occasion, had received further information post-interview and had not had the benefit of re-assessing the mother. That is correct. For that reason I do not regard Dr D as having made a diagnosis of the mother as suffering from a mental illness.
I do not have before me sufficient evidence to make a finding that the mother suffers from a delusional or personality disorder or other mental illness. However, I take Dr D’s expert opinion into account and place some weight on it. I regard Dr D’s views as interesting observations and plausible explanations for the mother’s behaviour. At the end of the day, however, it is the behaviour of the mother that is a significant factor in this case and not some condition which may drive or explain that behaviour.
The independent children’s lawyer arranged for the attendance at court of Ms P, psychologist, who was also treated as a witness of the court although her evidence was relied upon by the mother.
Ms P wrote a report for each of the children dated 24 April 2008. She clarified that she had written the reports knowing that they would be relied upon by the mother in these parenting proceedings and the she intended to include all material which she considered was relevant to the issue of how much (if any) time the girls should spend with the father.
Ms P states that she saw the children in her capacity as a psychological counsellor from August 2006 to December 2007, and again from April 2008. As at April 2008, she had seen L over twenty four sessions and S over twenty three sessions.
With regards to S, Ms P reported that she had been referred to counselling by her GP due to her ‘separation anxiety and adjustment disorder which was manifested by anger, aggression, self-harm and bed-wetting behaviours as well as low self-esteem and anxiety.’[37] S presented to the psychologist as friendly and approachable but prone to tantrums and frustration, especially when unable to accomplish a task. Ms P describes her scrap book as being ‘filled with pictures of disasters, harmed bodies and disturbed, angry and/or scared people, which indicates possible traumatic experiences she went or still is going through.’[38]
[37] Exhibit “ICL 8”, Court Book pg 215.
[38] Exhibit “ICL 8”, Court Book pg 216.
After twenty-two sessions with Ms P, S eventually made a ‘verbal disclosure’ to the psychologist. The ‘disclosure’ and the lead up to it are described in the report as follows:
Gradually, after gaining my trust as well as being encouraged and consistently supported by her mum to reveal some information about her dad’s behaviour, she commenced disclosing to me her secrets using different means. Once she drew a picture of a girl in a spa and the dad who is watching her with a smile and later drying her and putting cream all over her body. The identities of people in the picture were changed by [S] several times – being herself and her dad and also being me – the counsellor and my dad. Another time while playing with a baby boy doll she was wiping his genitals for a while spreading his legs apart and when noticed me observing her actions, instantly changing the object of a play, appearing embarrassed of being caught playing inappropriately.
Eventually she verbally disclosed facts about her dad’s behaviour towards her.
Firstly she agreed to confirm or deny when her mum was telling me some facts, which she confirmed by nodding and answering “Yes” to my question: “Was it what he did?”
Later she managed to repeat those words directly to me while sharing with me the facts she does not like about her father. She used exactly the same words which I heard from [the mother], which she initially heard from [S] on several occasions. The words were “Daddy’s tickling my minnie” and “daddy giving me sloppy kisses with the open mouth.”
Based on this disclosure [the mother] contacted DHS and SECASA.
The psychologist concluded that S’s safety was at risk by contact with their father, and that her ability to model positive relationships, in particular with males, may be compromised by a continuing relationship with the father.
Ms P gave evidence and was cross examined on the event of S’s verbal ‘disclosure’ on 24 October 2007. The psychologist confirmed that the mother was in the room whilst this took place, and that the mother took an active role in relaying the statements which S had allegedly reported to her. The psychologist then asked S to confirm if that was what her father had done by nodding her head. She denied that this was an interrogation of the child or that the child was led. She clarified that the reference to S later repeating the same words used by the mother occurred at a separate session where the mother was not present. Her interpretation was that, by S using the same words as the mother, S was confirming the truth of what the mother had said. Clearly, S was led. The technique was entirely contrary to anything like what Dr K gave evidence constitutes acceptable interview techniques in a suspected sexual abuse. I am satisfied that Ms P’s interviews of S in October 2007 were flawed, unprofessional and probably harmful to S. Ms P’s only explanation for why she employed this technique was that the mother had asked her to conduct the session in that manner because she had already discussed the matter with S who had agreed to participate in this way.
With regards to S’s inappropriate play with a baby boy doll, Ms P gave evidence that the doll was amongst other toys in her room from which S could chose. The doll had dark-coloured skin, was naked and had buttocks and male genitalia. She conceded that it was unusual for dolls to have genitals, and that it was the only doll in her consulting room with genitals. She gave evidence that she observed S ‘masturbating’ the doll with a tissue for a long period of time, which she initially estimated as five minutes but when asked to demonstrate precisely what she observed S so, she changed her estimate to three minutes. I am not satisfied that Ms P’s interpretation of S’s behaviour is either accurate or properly informed. I do not accept her interpretation. I will deal with this further in my discussion of the evidence given by Mr N, family consultant, who observed Ms P give evidence in this respect.
The psychologist was cross examined with regards to the comment in her report dated 24 April 2008 that S’s scrap book was filled with images indicative of trauma. She deposed that S chose the pictures out from a table full of a variety of pictures, and that the images she selected were not ones normally chosen by most children. Mr N perused the scrap book and gave evidence that in his professional opinion he did not believe the scrap book to indicate trauma in the child. I have examined the scrap book , which includes pictures of lipstick and mobile phone advertisements, a burnt building, a woman smiling and embracing a man with a head injury, a mother standing over a child with a cheeky smile and a couple caressing a kitten, and I agree with Mr N. Again, I am not satisfied Ms P’s opinion is one that is substantiated or reasonably based.
An exemplification of Ms P’s dubious professional standards is evidenced by her purport to cite authority for her firm belief that the children had been sexually abused. The authority was a booklet from inside a case for a DVD produced by a Queensland organisation, Bravehearts Incorporated. She quoted words to the effect that in 98 per cent of all cases where child abuse had been alleged, it was found to be substantiated.
With regards to L, Ms P reported that she had been referred to counselling by her school and then her GP, due to separation anxiety and adjustment disorder, the symptoms of which included ‘poor concentration, anger, aggression, oppositional and attention seeking behaviour.’[39] According to the psychologist, L presented as a ‘troubled, deeply conflicted and emotionally ambivalent girl, demonstrating some neurotic and dissociated behaviours, at least on an emotional level.’[40] She was prone to mood swings, use of inappropriate language, disengagement from interaction, destroying her own art works, a fixation with her body and posing and a preoccupation with sweets. The psychologist recorded L’s fear of robbers and being put in jail, and information provided to her by the mother that L has ‘a tendency to lie, argue and has problems with asserting herself with the father and [the stepmother], difficulties in open communication and sharing her feelings and facts of her school time and time spent at dad’s.’[41]
[39] Exhibit “ICL 8”, Court Book pg 211.
[40] Exhibit “ICL 8”, Court Book pg 212.
[41] Exhibit “ICL 8”, Court Book pg 212.
Ms P came to similar conclusions regarding L. Her report stated that L’s safety was at risk by contact with her father, and that her ability to form positive relationships, in particular with males, may be compromised.
26. However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court's duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995(Cth), her evidence needed to be very carefully evaluated.
[…]
46.It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:
'140 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.'
47. In children's matters under Part VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
48. This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.
The Full Court found that the trial judge had not paid attention to these views, and that unless the rigorous approach set out in WK v SR is taken, in circumstances where the often inevitable result of a positive finding of abuse is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and the child the disastrous effects of a positive finding that is reached in error. The Full Court found that the termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort, noting (at 79,217-8):
The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times.
23. The Full Court then referred with approval to the dissenting judgment of Kay J in K v B (1994) FLC 92-478 where his Honour said, at 80, 972:
In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.
In an article entitled 'Prediction, Prevention and Clinical Expertise in Child Custody Cases In Which Allegations of Child Sexual Abuse Have Been Made', appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
'Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well,... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.' (emphasis in original)
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place.
The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e. objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.
24.In Re W, the Full Court concluded its analysis of the relevant legal principles by remarking, at 79,218:
The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.
25.As I have observed before, and with respect to the Full Court, one might as well say that the harm and injustice that flows to both parent and child from an erroneous negative finding is almost too horrible to contemplate, that harm including repeated sexual abuse of a child. Nevertheless, I am bound by the exposition of principle in the judgment.
26.In W v W (Abuse allegations; unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) examined principles relevant to child sexual abuse cases with particular emphasis on what is meant by unacceptable risk, the potential cessation of a significant or meaningful parent/child relationship and the appropriateness or otherwise of supervised contact. As a starting point the Full Court referred to the significant detrimental harm to a child who is sexually abused, noting (at 79,906) the discussion by Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 where His Honour said, at 82,709:
The sexual abuse of a young child by a parent or care giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long term, can be devastating.
27.The Full Court also had regard to Fogarty J’s acknowledgement of the potential for false allegations. Referring to Thomas J’s judgment in S v S [1993] NZFLR 657, Fogarty J said (at 82,711):
Courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception or information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.
28.After considering a number of decisions in which the concept of unacceptable risk was considered, the Full Court in W v W(Abuse allegations: unacceptablerisk)concluded (at 79,910):
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognized the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty.
W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 was delivered after Re W (Sex abuse: standard of proof) (2004) FLC 93-192 and made no reference to the null hypothesis advanced in the article quoted by Kay J in his dissenting judgment in K v B (1994) FLC 92-478, which was endorsed by the Full Court in Re W (Sex abuse: standard of proof). Nor was there any reference to the article in Potter & Potter (2007) FLC 93-326 in which the Full Court endorsed the approach described in Re W (Sex abuse : standard of proof) or in the earlier decision in Napier & Hepburn (2006) FLC 93-303 in which the Full Court considered the approach to determining whether the evidence establishes an unacceptable risk of abuse. It is timely to say something further about that article.
Neither Kay J in K v B nor the Full Court in Re W (Sex abuse: standard of proof) named the authors of the article in question, nor was its sub-title stated. The article is Prediction, Prevention and Clinical Expertise in Child Custody Cases in Which Allegations of Child Sexual Abuse Have Been Made : III Studies of Expert Opinion Formation. Its authors are Thomas M. Horner, Melvin J. Guyer and Neil M. Kalter. Kay J recorded it as appearing in Volume XXVI No.2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law). The short reference for the article is 26 Fam.L.Q. 141 (1992-1993).
The article is the third in a series. Part I, sub-titled Predictable Rates of Diagnostic Error in Relation to Various Clinical Decisionmaking Strategies, was published in 25 Fam.L.Q. 217 (1991); Part II, sub-titled Prevalence Rates of Child Sexual Abuse and the Precision of “Tests” Constructed to Diagnose It, was published in 25 Fam.L.Q. 381 (1992). The authors of the first two parts are Thomas M. Horner and Melvin J. Guyer.
In the introduction to Part I the authors make clear their interest in the decision making processes that are generated under the mantle of expertise in cases of alleged child sexual abuse. The introduction to Part II sets out its focus as the problems inherent in attempting to reach firm conclusions about allegations of sexual contact between young children and adults. Part III deals with the field and scope of clinical expertise in these cases. The same case study was used in the research referred to in all three parts.
The authors frankly state their concerns about the accuracy of expert evidence and uncritical reliance on it and draw conclusions based on the research to which Kay J referred. Not all their assertions are attributable to their research; for example, in Part I they assert, at 251, that “(t)he contemporary preoccupation with child sexual abuse surely has many parallels with the preoccupations of other times, such as witchcraft and other heresies.” While a footnote is provided (Child Abuse from Salem to Jordan: Therapists as Culprits, 9 AUGUSTUS 7(1986)) the authors go on to wonder how many people over the course of history have been “mortally persecuted for the alleged practice of witchcraft, but had indeed not practiced it” and maintain and flesh out the analogy in their concluding paragraph. Part II continues where Part I left off, commencing with an aphorism attributed to Nietzsche: Convictions are the greater enemies of truth than lies.
Part III of the series, which is the article referred to by Kay J, continues the critique of the involvement of clinical experts in child sex abuse investigations. As Kay J observed, detailed case notes concerning the possible sexual abuse of a three year old child were provided to eight senior clinical psychologists, twenty-three graduate students undergoing clinical training in psychology and fifty members of staff of child guidance clinics, including social workers, clinical psychologists and psychiatrists. In one phase of the study participants were able to question the evaluating clinician who presented the case study. No participant met with the child who was the subject of the allegation or with any parent or family member of the child. They were neither treating experts nor forensic experts; the method involved the presentation of extensive clinical case material by the evaluating clinician in that case.
Participants were advised that until the allegation was made the child’s parents maintained a good relationship and the child enjoyed a positive relationship with each parent. When she was about 16 to 17 months old, the child began (on her mother’s account) to exhibit behaviours resembling ones referred to in certain media accounts as being associated with sexual abuse. They included nightmares, an interest in and references to sexuality, occasional resistance to having her nappy changed, an emergent negativism, protests against separation from her mother and, once when having her nappy changed, the child saying “daddy hurt ‘gina”, which the mother construed to mean the father had molested the child. The mother’s concerns moved to a strong suspicion when she discovered a hair in the child’s nappy which, she said, was the colour of the father’s hair, and she asserted, a pubic hair. She did not save the hair.
An examining paediatrician discovered no physical evidence of sexual contact and in the course of police investigations the father underwent two polygraphic examinations, which concluded that he was being truthful when he denied any sexual misconduct towards his daughter. The father acknowledged that his daughter had become avoidant of nappy changes and that he sometimes had to be firm with her during them. He corroborated the mother’s observations of increased negativism and oppositionality. He could not explain the hair in the nappy.
Neither police nor protective services investigations substantiated the mother’s suspicions and allegations. Following her receipt of their negative findings, the mother contacted a clinic specialising in the diagnosis and treatment of child sexual abuse; a therapist there stated that the child was being treated for (this is a direct quotation from the article) “trauma [sic] of possible [sic] sexual abuse”. The evaluation team at the clinic never contacted the father but recommended a course of treatment to deal with the child’s behavioural problems, which were deemed symptomatic of “some kind of abuse”.
The clinician who presented the case study to the participants in the research exercise had been requested by a court to complete another clinical evaluation of the allegation of abuse.
The findings of the authors in Part III could be summarised in this way.
· Expert evidence is highly imprecise and unreliable. Even if some of the experts were “correct” in their opinions, the broad spectrum of opinions makes it very difficult to discern which of those are to be trusted.
· Estimates of the likelihood of abuse did not necessarily match the recommendations made when asked about the contact the child should have with the allegedly abusing father. In the authors’ words, the implication of this is that “. . . an allegation taken alone . . . has a powerful determining effect far beyond any failure to substantiate it (p.165 (emphasis in original)).
· Where an expert is confronted with ambiguous and conflicting evidence, he or she is rarely better placed than a court to assess the evidence.
The section of the article quoted by Kay J in K v B at 80,972 commences one sentence into a paragraph. The first sentence of the quoted paragraph, which is omitted, states :
Clinicians seem inherently averse to both the scientific standard of accepting the null hypothesis (and, correlatively, the legal standard of presuming innocence in the absence of incriminating proof) when adduced data are insufficient to make its rejection defensible. (170)
The authors’ reference to the presumption of innocence is curious. Insofar as the authors refer to the admission of expert evidence, it is to evidence adduced in civil proceedings, not criminal proceedings. This is expressly acknowledged in their comparison, at 170, of the “clinical arena” with the “civil arena” and in the Introduction in Part I of the series. In Australia, “the legal standard of presuming innocence in the absence of incriminating proof” has no role in civil proceedings and no role in the criminal standard of proof, which requires rather that the accused’s guilt must be established beyond reasonable doubt, to achieve which the elements (ingredients or ultimate facts) of the crime must be established by the evidence beyond reasonable doubt; see Evidence Act1995 (Cth) s.141; R v Dickson [1983] 1 VR 227 at 235, Thompson v The Queen (1989) 169 CLR 1 at 12. The presumption of innocence is a vital part of the criminal law but to say an accused person is entitled to the presumption of innocence is to say no more than that a person suspected of or charged with a crime shall be assumed innocent unless and until his or her guilt is proved, either by a plea of guilty or by a jury finding.
All three authors of the article hold positions at the University of Michigan in the State of Michigan. The article quoted says nothing of the legal standard of proof (or, indeed, burden of proof) in that State however in Part I, at 250-251, the authors note that civil law generally accepts preponderance of evidence as the standard of proof that a party must meet to prevail in the judicial decision making forum while criminal culpability requires that the State meet the more stringent standard of proffering evidence of guilt beyond a reasonable doubt. A footnote, numbered 43, notes :
Certain questions brought before the courts require that the prevailing party meet a higher standard of proof than the usual civil standard. The determination of paternity, the termination of parental rights, and the civil commitment of the mentally ill, for example, all require the moving party to meet a clear and convincing standard of proof.
The authors may be working within a system in which the standard of proof in civil litigation is more variable than it is under Australian law and the court could not rule out constitutional ramifications in the United States.
While this court cannot know why the first sentence of the paragraph was omitted from the quotation in K v B, it can say that its inclusion would have caused a legally qualified Australian reader to question the apparent analogy drawn between the null hypothesis and the presumption of innocence, its relevance to the arguments the authors sought to advance and the authors’ non-expert assumptions about the law.
The authors refer to the null hypothesis as “the scientific standard” at 170, but say nothing more of it. The expression was coined by Sir Ronald Fisher, an English geneticist and statistician, in 1935; (see Fisher, R.A. (1966) The Design of Experiments, 8th edition, Hafner: Edinburgh). In statistics a null hypothesis is a concept which arises in the context of statistical hypothesis testing to describe in a formal way some aspect of the statistical behaviour of a set of data which is treated as valid unless the actual behaviour of the data contradicts this assumption. Although a null hypothesis always occurs in conjunction with an alternative hypothesis it would be misleading to consider the alternative hypothesis as the negation of the null hypothesis. Importantly, the absence of evidence against the null hypothesis does not establish its “truth”; if the null hypothesis is not rejected there is no reason to change decisions or procedures predicated on its truth but it allows for the possibility of obtaining further data and then re-examining the same hypothesis. In the article the authors appear to use it to mean an hypothesis that sexual abuse has not occurred.
Tellingly, a clause is omitted in the midst of the paragraph quoted by Kay J The first sentence of the quoted paragraph is reproduced below with the omitted words in bold :
Unfortunately, the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draws the clinician – and perhaps even judges and jurors as well, although the safeguards against this happening seem to us stronger in the civil arena than in the clinical arena – away from what ought always to be the starting point of his or her evaluation enquiries, which is that the event did not (or very highly probably did not) occur. (170)
The omitted words, which qualify “perhaps even judges and jurors”, are consistent with the authors’ statements (at 162-163) that despite their view of the imperfection of expert evidence, “the findings do not mean, of course, that specialists in child mental health cannot be useful in the fact finding process, as they may offer modes and venues of communication that genuinely assist courts in fully weighing evidence”. The authors describe the central problem faced by courts which use experts in cases of alleged child sexual abuse as being :
. . . one of determining which of the diverse expert opinions one might solicit is veridical and which expert(s) among the many who present themselves as such in any given case can be expected and relied upon to exercise genuine expertise rather than simple ordinary judgment. (163)
The paragraph following that quoted by Kay J is the concluding paragraph of the article, and is in these terms :
Certainly, one important implication of our observations and findings is that for each and every individual clinician an immense burden exists to demonstrate convincingly to the courts to which they testify, and to society in general (neither statements to the effect that one has seen “hundreds of cases” nor presentations of thick resumes or curricula vitae being inherently convincing), the grounds on which s/he can be confidently expected to reason or predict beyond the capacity of the ordinary judge or juror when s/he is faced with the same information. A further implication, of course, is that courts need to examine their experts beyond the customary scope (which is too often perfunctory) of voir dire, which in our opinion admits far more clinicians to the realm of privileged testimony than is justified by any reasoned appraisals that have been made of them as a class of specialists. (170)
The authors of the article place much faith in the deductive capabilities of courts (as opposed to “clinical experts”) in drawing conclusions from conflicting and ambiguous evidence. The authors do acknowledge the “pragmatic utility” in the admission of expert evidence, however unsatisfactory (166). Their main point is that the court should be cautious when considering expert evidence; as its sub-title makes clear, the article is about the formation of expert opinion, not determination of allegations by a court. At 169, the authors make this clear when expressing this caution :
Courts need to recognize, therefore, that the thought processes of most clinicians, whose modes and manners of discourse may in their aplomb and tones of unflinching conviction, appear to be authoritative, are by dint of training and practice historically rooted in the traditionally divergent, intuitive, and speculative thought processes of the clinical case conference, and not in the traditionally systematic, fact-weighing thought processes of legal discourse. Caveat curia!
The authors refer to the problematic relationship between a low assessment of abuse and a “conservative” recommendation for contact. An example given involved a risk assessment by participants falling between 0.001 and 0.25 (mean probability : 0.11) where despite this low likelihood of abuse, several experts expressed the opinion that contact between the father and child should be supervised as a caution. That approach was criticised and attributed by the authors to “individual differences in tolerance for risk, as well as non-expert based views of parental rights”.
As the article was not concerned with the court process, it did not take into account the potential for such a poor correlation between a clinician’s assessment of risk and his or her recommendation for contact to be tested in cross-examination and the contradiction exposed. Nor did it take into account a court’s obligation to act according to law, rather than on personal views of “parental rights”.
By quoting that part of Kay J’s earlier dissenting judgment which includes an edited quotation from the article, the Full Court in Re W (Sex abuse:standard of proof) cannot have meant to endorse an approach which would have the court take as its starting point a premise that the sexual abuse did not, or “very highly probably did not” occur, as that would be inconsistent with s.140 of the Evidence Act 1995 (Cth) and inconsistent with decades of jurisprudence about the standard of proof in civil cases, before and after the proclamation of the Evidence Act 1995. A revisiting of the article, and of the series of which it forms part, leads one to wonder whether it was considered in its entirety by Kay J in K v B. As the Full Court itself made no reference to the article, save by quoting that part of K v B which refers to it, there is no reason to infer that it considered the whole of the article, or the series.
On occasions, submissions made in this court suggest that some readers extrapolate from the first paragraph of the article quoted by Kay J that the starting point of a judge’s evaluation should be the null hypothesis. The article does not support such a reading; nor does s.140 of the Evidence Act 1995 (Cth) or any of the other authorities to which I have referred.
While Dixon J’s classic discussion in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 of the operation of the civil standard of proof may appositely express the considerations which s 140(2) of the Evidence Act1995 (Cth) requires a court to take into account, the correct approach (as recently observed by Branson J (with whom French and Jacobson JJ agreed) in Qantas Airways Ltd v Gama (2008) 247 ALR 273, at para. 139 is that :
. . . references to, for example, “the Briginshaw standard” or “the onerous Briginshaw test” . . . have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s.140 of the Evidence Act provides.
Similarly, in Johnson & Page (2007) FLC 93-344, at 81,891, the Full Court of this Court expressly agreed with the “view that reference to the Evidence Act, rather than Briginshaw, is appropriate”.
Section 140 is as follows :
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account :
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The court is not in general required to exclude all reasonable hypotheses consistent with the non existence of a fact, or inconsistent with its existence, before the fact can be found. However, all the circumstances must be considered together at the final stage of the reasoning process and where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved; Palmer v Dolman, [2005] NSWCA 631, Ipp JA at para 41.
In Westbus Pty. Ltd. (Administrators Appointed) v Ishak [2006] NSWCA 198 at para 20, the Court of Appeal, citing a number of earlier authorities, observed that the standard of proof is not met if the circumstances appearing in evidence do not give rise to “a reasonable and definite inference”, but at most give rise to “conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture”.
In Kuligowski v Metro Bus (2004) 220 CLR 363 at 385, the High Court, in a joint judgment, noted that disbelief of the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. Quoting Rhesa Shipping Co. SA v Edmunds [1985] 1 WLR 948 at 955, the High Court endorsed the finding that in a particular case it may not be possible for the court to reach a conclusion either way and in those circumstances the court is not bound to do so but may take the third course of finding that the party on whom the burden of proof lies has failed to discharge it.
Thus in this case, as in every case, the court must assess the competing probabilities of facts in issue, whether directly in issue or to establish a fact from which a further inference is to be drawn.
The father’s outcomes on three scenarios were tendered as “H2”
The ICL’s outcomes on three scenarios were tendered as “ICL1”
Key Legal Topics
Areas of Law
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Family Law
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Evidence
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Statutory Interpretation
Legal Concepts
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Procedural Fairness
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Remedies
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Standing
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Statutory Construction
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