Lindsey & Baker
[2007] FamCA 1037
•15 March 2007
FAMILY COURT OF AUSTRALIA
| LINDSAY & BAKER | [2007] FamCA 1037 |
| FAMILY LAW – PARENTING – Child sexual abuse allegations – Whether child faces an unacceptable risk of abuse by the father – Unwillingness of mother to facilitate time the child spends with the father. No level of risk ascertained – Child would benefit from a meaningful relationship with both parents – Unsupervised time with the father to be gradually introduced. |
| Re C and J (1996) FLC 92-697 F and F [2005] FamCA 394 |
| APPLICANT: | MS LINDSAY |
| RESPONDENT: | MR BAKER |
| FILE NUMBER: | BR | 11130 | of | 2003 |
| DATE DELIVERED: | 15th March 2007 |
| PLACE DELIVERED: | BRISBANE in CHAMBERS |
| JUDGMENT OF: | JUSTICE CARMODY |
| HEARING DATE: | 27 - 28 FEBRUARY 2007 |
REPRESENTATION
| APPLICANT: | IN PERSON |
| RESPONDENT: | IN PERSON |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr McGregor |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Carter Naughton Rice |
Orders
That all previous parenting orders be set aside.
That until further order, the child, B born … October 2002 live with the mother.
That the child spend time with the father at all reasonable time as agreed between the parties and in default of agreement as follows commencing 5 March 2007:
(a)(i) Until 31 May 2007 each alternate Saturday, commencing 3 March 2007 from 9.00 am to 5.00 pm
(ii)From 1 June 2007 to 31 August 2007, each alternate Saturday from 9.00 am to 5.00 pm and each Wednesday from 9.00 am to 5.00 pm
(iii)From 1 September 2007 to 31 December 2007, each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday and each Wednesday from 9.00 am to 5.00 pm
(iv)From 1 January 2008 to 31 March 2008, each alternate weekend from 5.00 pm Friday to 5.00 Sunday and each Wednesday from 9.00 am to 5.00 pm
(v)From 1 April 2008 and thereafter each alternate weekend from 5.00 pm Friday to 5.00 Wednesday and each other Wednesday from 9.00 am to Thursday 9.00 am
(vi)The provisions of this part of this order shall be suspended during school holiday periods commencing from the 2007/08 Christmas holiday period and shall thereafter resume as if the next weekend on which weekend time is to be spent was the first weekend following the holiday period.
(b) SPECIAL DAYS:
(i)The parent who has the care of B on the night prior to his birthday shall retain the child until 12.00 noon on his birthday. The other parent shall have B from 12.00 noon and, if B would not ordinarily be in the care of that parent, shall return the child at 5.00 pm.
(ii)If it is not otherwise a day when B is in her care, the mother will spend time with the child for four (4) hours, to be agreed, on the mother’s birthday, …
(iii)If it is not otherwise a day when B is in his care, the father will spend time with the child for four (4) hours, to be agreed, on the father’s birthday, …
(iv)In 2007 and each alternate year thereafter the father shall spend time with the child from noon 24 December until 12.00 noon Christmas Day and the mother shall spend time with the child from 12.00 noon Christmas Day until 12.00 noon 26 December. In 2008 and each alternate year thereafter the mother shall spend time with the child from noon 24 December until 12.00 noon Christmas Day and the father shall spend time with the child from 12.00 noon Christmas Day until 12.00 noon 26 December
(v)If it is not otherwise a day when B is in her care, the mother shall spend time with the child from 9.00 am to 5.00 pm on mother’s day
(vi)If it is not otherwise a day when B is in his care, the father will spend time with the child from 9.00 am to 5.00 pm on father’s day.
(c) HOLIDAYS
(i)In the 2007 June/July school holiday period for Queensland B shall live with the father for three consecutive days and two nights to be agreed between the parties and in default of agreement then from the second Monday of the holiday period to the second Wednesday of the holiday period and from 9.00 am on the first day to 5.00 pm on the third day
(ii)In the 2007 September/October school holiday period for Queensland B shall live with the father for four consecutive days and three nights to be agreed between the parties and in default of agreement then from the second Monday of the holiday period to the second Thursday of the holiday period and from 9.00 am on the first day to 5.00 pm on the third day
(iii)In the 2007/08 Christmas school holiday period for Queensland B shall live with the father for five days and four nights in every two week period to be agreed and in default of agreement then commencing on the first Monday after the school holiday period commences to the first Friday and thereafter in each alternate week of the holiday period and from 9.00 am on the first day of each period to 5.00 pm on the last day of such period
(iv)For each school holiday period thereafter, B shall live with the father for half of each such period being the first half of such holidays that commence in the 2008 calendar year and each alternate year thereafter and the second half in holiday periods which commence in the 2009 calendar year and each alternate year thereafter.
(d) CHANGEOVERS
(a)All changeovers shall be effected at the MacDonalds Restaurant at S.
That the parties have the parental responsibility for the child in accordance with the provisions of s61C of the Family Law Act 1975.
Each party keep the other informed as to his or her residential address, residential telephone number and, where applicable, work telephone number, e-mail address and facsimile transmission numbers as well as mobile telephone numbers and shall notify the other of any change therein within forty eight (48) hours
Each party shall be at liberty to obtain any information concerning the child’s schooling (which term shall include day care or child care/kindergarten/pre-school, prep and school) including but not limited to reports, photographs and newsletters and other correspondence. The party seeking the ‘information’ shall pay all costs incurred for the supply thereof
(a) Each party shall be entitled to any and all information from any medical practitioner or other health professional and/or hospital which the child attends for the purposes of treatment.
(b)Except in the case of a medical emergency the child shall attend on one (1) only medical practitioner or medical practice/group to be nominated by the mother.
The Independent Children’s’ Lawyer be discharged in (12) months at which time these orders are to become final.
The father and Independent Children's Lawyer have liberty to relist on the giving of 5 days written notice to the mother within the next 12 months but not otherwise.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Carmody delivered this day will for all publication and reporting purposes be referred to as Lindsay & Baker
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BR 11130 of 2003
| MS LINDSAY |
Applicant
And
| MR BAKER |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about which one of the parties their four year old son is to live with in the future and what arrangements are to be made for the child to spend time and communicate with the other. How parental responsibility is to be allocated between them is also in issue.
The parents’ relationship broke down in October 2002. The child has resided with the mother all his life and spent mainly supervised time with the father since separation.
Past attempts to introduce unsupervised time have failed due initially to welfare concerns arising out of the fathers admitted heroin addiction but that is now under control and the only current impediment to unrestricted contact is that the asserted risk of sexual related harm to the child based on alleged disclosures and behaviours the mother interprets as suggestive of abuse by the father.
The father denies any indecent conduct and contends that the child should be ordered to live with him as a safeguard against ongoing emotional abuse at the mother’s hands and to ensure that he receives the benefit of having a meaningful relationship with both parents.
On his case the mother is intrinsically contact averse, has a history of non-compliance with court orders and is bent on destroying what little relationship he has been able to establish with his son by wilfully misconstruing patently improbable statements and giving normal childish actions an unwarranted sinister connotation. He also claims that the mothers admitted encouragement of the child to repeat false allegations against him to others not only distresses the child but has the purpose or effect of exacerbating the rift that has developed between them.
Counsel for the Independent Child’s Lawyer dismisses the mothers “unacceptable risk” claims as verging on the fanciful and, in line with the family consultants report, proposes that increasing periods of unsupervised overnight time be gradually re-introduced over the next twelve (12) months so that by April next year the child will be spending each alternate weekend from Friday afternoon to Wednesday afternoon and each other Wednesday from 9.00am to Thursday 9.00am as well as designated special days and half school holidays.
He also recommends that I re-distribute s 61C parental responsibility in accordance with the presumption of equal shared parental responsibility in s 61DA.
Relevant History
The father had short day only contact once a week in the first nine (9) months or so of separation. He then had supervised contact at the C Interrelate Contact Centre under consent orders made 30 June 2004 pending the determination of his final application.
On 30 December 2004 he amended his final application for contact to add a claim for overnight on alternate weekends and mid-week every other week as well as half all NSW school holidays once the child started school.
Between September 2004 and February 2005 the father had a total of 24 hours of unsupervised contact.
Bell J made final orders on 20 October 2005 providing for the child to reside with the mother in Brisbane and to have time with the father alternating between a northern New South Wales coastal city and Brisbane every second Saturday unless and until the father himself moved to Brisbane when time spend was to include Wednesdays and Fridays and every other Sunday up to April 2007 and then further increase to alternate weekends and one night during the week.
The child allegedly commented about the size of his father’s penis after the first session of unsupervised contact on the 22 October 2005. The mother also says that he attempted to penetrate his own anus with a screwdriver.
The mother consulted Dr D and contacted SCAN on 1 November 2005 but no physical examination was conducted.
After the second unsupervised visit on 1 November 2005 the child complained of not having an enjoyable time and informed the mother that his bottom hurt. The mother says the child’s behaviour became increasingly difficult. He was tearful and demanding and constantly asking to be carried and breastfed for comfort. He later started to throw and break things.
After the contact on the weekend on the 27 December 2005 the child told his mother that “daddy likes to taste my poo poo”.
He repeated the allegation “in an angry tone” on New Years Day in 2006 informing the mother that the father had said he wouldn’t do it again but she noticed growing levels of anger being exhibited by the child towards her.
The father moved to Brisbane on 15 January 2006. Over the next two weeks he is unable to contact the mother to negotiate to see the child and on the 19 January 2006 she advises the L contact centre that the child will not be spending anymore time with the father “for the moment”.
On 4 February 2006 the mother telephoned the father to suspend unsupervised visits because of what the child had told her the father had done. He responded by instituting contravention proceedings. This provoked the mother to seek a variation of the 2005 final orders to replace unsupervised contact with limited supervised contact centre visits.
On the 9 February 2006 the child disclosed to his pre-school group leader at the T Child Care Centre that he had seen his father that day and he was angry because he “sucked my poo a long time ago”.
On 14 February 2006 the child disclosed to the mother’s daughter from a previous relationship, E, that his “daddy is naughty” and tells her that he “tastes my poo poo” and hits him. These statements were recorded by E on her mobile phone.
The child made much the same “disclosure” to the maternal grandmother and has mentioned it frequently since then.
The mother says that after seeing the father for the first time since December 2005 for the purposes of family interviews with the family consultant, Mr R, in June 2006 the child’s’ statements and behaviours became more sexualised and aggressive again.
Contact centre contact re-commenced on 17 July 2006 after the release of the family report.
The first two were uneventful but on the third visit viz., 8 July 2006, the facilitator overheard the child directly accuse the father of eating his poo. The father responded by asking what the child meant and who had told him that.
Further interim orders for unsupervised contact twice a week and on alternate Sundays were made on 24 November 2006. The mother was restrained from further investigating child sexual abuse allegations or making notifications to police or child safety officer without first advising the Independent Children’s Lawyer.
Despite the interim orders there were a maximum of seven visits for a total of six hours between the 29 November 2006 and 17 December 2006. There have been no unsupervised visits since then.
The father filed further contact contravention complaints on the 29 November 2006, 8 December 2006 and 24 January 2007.
Four facilitated visits took place at the W Children’s Contact Services in February 2007. The one scheduled for the 14 February 2007 was cancelled but it is not clear whether that it because of an appointment the father had with his solicitor or because of the mother’s concerns following the visit on the 9 February 2007. The facilitator reports that the father behaves appropriately and affectionately towards his son during contact and is mindful of his safety. The child was observed to separate without difficulty from his mother at each of the four visits. He was cheerful and talkative and appeared relaxed. The child appears to have interacted comfortably with his father once the visits got under way and although neither of them are very demonstrative, interact well together.
The same centre also reports calm and relaxed supervised visits with receptive and responsive interactions for supervised visits during the period 9 September 2006 to 18 November 2006. The father played actively with his son, showed affection appropriately and was observed to be child focused throughout visits.
The child generally appeared comfortable and happy to be in close proximity and was usually well behaved. No signs of distress were detected.
Mr R provided family reports in June 2006 and February 2007. He observed a good relationship and interaction between the child and the both parents (par 6.2-6.3) at family interviews on the first occasion. He concluded at par 8.1 that there was minimal risk of abuse by the father and increased contact with him would be beneficial for the child. He also thought that the mother would benefit from counselling in managing the child’s behaviour and that the father would benefit from participation in a parenting skills program.
During the second family interview on 14 February 2007, the father displayed positive parenting skills in managing awkward situations effectively but it is clear that the child was reticent and less comfortable with the father than he was during the first family session but he did not any display any dysfunctional or unusual behaviours and gradually became accustomed to being in the father’s presence.
The mother is assessed as appearing to have a good relationship with the child and a strong attachment with him. She is providing a satisfactory level of care and in his opinion it would probably not be in the best interests of the child to leave the mother to live with the father at this point. However, he notes that the conflict between the parents is likely to continue for as long as the sexual abuse allegations remain unresolved and is mindful of the fathers concerns about the perceived risk to the child’s well being of the ongoing allegations of abuse as well as the mother’s refusal to comply with court orders for unsupervised time.
Mr R finds it difficult to interpret the apparent deterioration in the interaction between the father and his son but says that it is not uncommon in situations of significant parental conflict.
The reporter was careful not to express any concluded view about the validity of the sexual abuse allegations or suspicions but noted at par 8.2.2 that:
Most of the behaviours and comments allegedly made by the child as reported by the mother to be indicators of sexual abuse (such as his seemingly obsessive behaviour related to comments about eating faeces, together with severe tantrums, and references to the penis size )are not necessarily indicators, or even strong indicators, of sexual abuse, and may be caused by variety of other factors.
Regardless of the outcome in relation to the sexual abuse concerns raised by the mother, it is recommended that the child continue to live with her and have supervised parenting time with the father if past abuse or future risk are found but otherwise unsupervised periods should be gradually introduced after several successful supervised sessions.
In his closing paragraph Mr R suggests a comprehensive psychological assessment of the child might be beneficial in identifying the causes of his disturbed behaviour and to help him through this difficult period of his life.
Parenting time and contacting principles
It is increasingly rare these days for contact between a parent and his or her child to be terminated or restricted by court order. The reasons for this are found in the objects stated in pars 60B(1)(a), (c) and (d), the underlying principles in subsection 60B(2)(a) and (b) and primary consideration (a) in subsection 60CC(2). It is – and should be – difficult to make a case that a child spend no or limited time at all with a parent.
Parental time will rarely be wholly negative. There will usually be some practical advantage in it for the child. There are exceptional cases where unsupervised face to face time with a parent may do more overall harm than good and it is necessary or appropriate to end it altogether. This might occur, for instance, where there is an unacceptable risk of neglect or physical harm, including sexual assault, where there is little chance of changing an implacable situation, where contact confuses or distresses the child, is perceived to be invalidating painful recollections, or causing emotional disturbance.
In 2000, the President of the Family Division of the Court of Appeal in England sought the advice of two eminent child psychiatrists about the risks and advantages of contact with the non-residential parent in cases involving allegations of domestic violence but the principles apply equally here.[1]
[1] C Sturge & D Glaser, ‘Contact and Domestic Violence – The Expert’s Report’, [2000] Fam Law 615
The report described the centrality of the child as all important and the promotion of his or her mental health as the key issue amid the tensions surrounding the adults in dispute. It explained that decisions about contact should be child-centred and related to the specific child in its present circumstances but acknowledged that the child’s needs will alter over different stages of development. The underlying purpose of the proposed contact they said must be overt and abundantly clear and have the potential for advantaging the child in some way.
The psychiatrists identified the different functions of contact as including: the sharing of information and knowledge; giving a sense of origin and identity which is important as a part of self-esteem; maintaining meaningful and beneficial relationships (or forming and building up relationships which have the potential for benefiting the child); reparation of broken or problematic relationships; opportunities for reality testing for the child – children need to balance reality versus fantasy and idealisation versus denigration; facilitating the assessment of the quality of the relationship or contact (most relevant where a return to a particular parent is being considered) and severing relationship, for example, goodbye meetings.
The report noted that where there is an absence of a bond between the child and the parent with whom he or she does not live the following needs to be taken into account: the age and developmental level of the child; the seeking of a clear and separate identity may lead to a greater interest in a little known biological parent by an adolescent child; the introduction of contact may, at the same time, because of the adolescent’s seeking of independence, and complications which undermine the “main” placement (for example, expressing a wish or leaving to live with the non-resident parent as an act of defiance towards the resident parent and his or her controls).
However, lack of such a bond is not in itself a sufficient reason to try to build a new relationship. There is a wealth of evidence about the adverse effects on a child of long term parental separation but different considerations may also come into play, such as other emotional investments of the child, for example, in a step-parent, and what the new relationship might add to the child’s life and well-being. In the event that there is no meaningful relationship between the child and the non-residential parent but solid opposition to contact from the resident parent, there would need to be a very good reason to embark on a plan of reinstating direct contact and building up a relationship that might be of little value or, worse still, positively harmful, such as in the case of an established history or persistent pattern of domestic violence or other abuse.
Supervised contact can be a means of maintaining direct personal relationships with both parents and to achieve the s 60B objects without exposing a child to relevant risks of harm.
As Fogarty and May JJ made clear in Re C and J[2]:
“The Court has the widest discretion to make whatever orders are appropriate in the best interests of the child by way of access or contact. Supervision is one option. … (but) … (is) not to be used routinely and by way of compromising cases…”
[2](1996) FLC 92-697 cf Marriage of Bieganski (1993) FLC 92-357; Koutalis and Bartlett (1994) FLC 92-478.
It may be better, as Kay J said in a separate judgment in the same case, to have supervised access under final orders than no access at all.[3]
[3] (1996) FLC 92-697 at 83,351 – 353.
However, supervised orders imply that the contact parent is dangerous and cannot be trusted without supervision. This is unfair on both parent and child if it is not really necessary to ensure safety.
The issue of past abuse.
The suspected sexual abuse was reported to the police on 1 January 2006.
The child was interviewed but made no disclosures or complaints about the father. The father denied any wrong doing under questioning.
After completing the interview and observing displayed behaviours by the child, investigating police concluded that no sexual related offences could be corroborated or substantiated. The conduct reported by the mother could have been explained as normal developmental curiosity. The police rejected the mother’s interpretation of the child’s statements and behaviours as pure conjecture and “perhaps unjustified”.
It is noted, however, that the Queensland Police Service re-activated their investigation after the child’s disclosure to his half-sister on the 21 March 2006.
The Department of Child Safety was also notified. It concluded that the information provided did not meet the definition of sexual abuse or indicate that the child is likely to have been sexually harmed by the father or anyone else.
According to departmental records the mother was sexually abused as a child herself.
In his dissenting judgment in K & B[4] Kay J warned of the ‘magnetising force’ of child abuse allegations and reminded trial judges how difficult it is for the accused party – usually the father – to prove that the alleged event did not occur (the so-called null hypothesis) because of the ever present possibility that it did.
[4] (1994) FLC 92-478 at 80,972.
Branding a father with the stigma of incestuous homosexual paedophilia is an extreme step and a conscious effort must be made not to be too uncritical or overly protective before taking it.
It is for this reason that the criminal law presumes innocence and requires the alleging party to displace that presumption by evidence that puts it beyond doubt. In a civil case, including family proceedings, the starting point is the assumption that fathers do not normally sexually abuse their children. That assumption will prevail unless the contrary is sufficiently and satisfactorily established.
Lord Nicholls discussed the standard of proof to be applied in parenting-type proceedings in Re: H & Ors[5]:
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.
[5] (1996) 1 All ER 1 at 16.
Thus, positive findings of sexual abuse against a parent are made only on the basis of firm satisfaction on clear and convincing evidence. It is uncommon for the combined weight of evidence to be strong enough to justify a probability finding of past abuse. Negative findings are also unusual but not as rare.
The relevant test is found in s 140 of the Evidence Act, 1995 (Cth). Sub-section (1) requires the case of the party with the persuasive onus to be proved on the balance of probabilities.[6] Sub-section (2) introduces notions of weight and variability into the forensic process including the nature of the proceeding, the seriousness of the allegation and the consequences. These matters relate to the quantum as opposed to the standard of proof required and are taken into account principally because as Lord Nicholls noted in Re: H & Ors the more serious an allegation is the less likely it is to occur and the stronger the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. [7]
[6]There is no obligation on the defending party to disprove abuse allegations: M and M (1996) FLC 92-695.
[7] 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.
When the law talks about the ‘balance of probabilities’ it means that the court has to be convinced that the alleged fact in issue is more likely than not.
In his famous dictum in Briginshaw v Briginshaw, [8] a divorce case involving alleged adultery, Dixon J refers to proof as being the feeling of actual persuasion of the occurrence of a disputed event or the existence of a contested fact. Inexact proofs, indefinite testimony, indirect inference or equivocal hypothesis will not do.
[8] (1938) 60 CLR 336 at 361-2. See also K v R (1997) 22 Fam LR 592 at 599, 602 - 603, cited with approval in Re: W (2004) FLC 92-478.
Civil proof, therefore, is not a simple matter of belief but of "reasonable satisfaction" following a reasonable search for the truth and evaluating the evidence adduced with regard to the matters mentioned in s140(2) and by Dixon J in Briginshaw [9] in the light of the parties' respective power to produce or capacity to contradict it. [10]
[9] See generally, A. Ligertwood, Australian Evidence, 4th Edition, Butterworths, 2004 at p. 82-83.
[10] Blatch v Archer (1774) 1 Cawp 63 at 65; 98 ER 969 at 970. See also Vetter v Lake Macquarie City Council (2001-2002) CLR 439 at 454[36]; Burke v LFOT Pty Ltd (2002) 187 ALR 612 at 647[134].
It is, of course, not necessary for each and every evidentiary fact to be proved on the balance of probabilities. In fact, it is quite wrong to consider each item of evidence separately and disregard the unlikely because, of course, one piece of evidence may resolve doubts about another. The evidence must be considered together at the end of the case.
It is the weight to be given to the united force and mutually reinforcing effect of all the circumstances put together that must be considered. In Chamberlain v The Queen(No. 2 ) [11] the celebrated ‘the dingo took my baby’ jury case, Gibbs CJ, Mason and Brennan JJ stated in that:
“…it follows from what we have said that (the jury) should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference … when the evidence is circumstancial, the jury, whether in a civil or criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances may raise a more probable inference in favour of what is alleged.’
[11] (1984) 153 CLR 521 at 535 – 9.
Substantiation of the abuse allegations against the father in this case turns entirely on the credibility and reliability of the reported disclosures.
Although admissible despite their hearsay character these indirect statements have to be closely examined and handled with extreme care because they are made by a very young child with unknown motives to a party whose interests conflict sharply with those of the suspected parent. They have been untested by cross-examination and are unsupported by any independent evidence logically capable of confirming the fact of abuse or identifying the father, who strenuously denies the allegation, as the culprit.
The child makes no disclosures to anyone other than his mother or close family members. An opportunity to complain to both the police and departmental officers was not taken advantage of. There is no medical corroboration and the reported behaviours are equally consistent with innocent explanations.
Taken literally, the so called disclosures describe inherently unlikely behaviour on the part of a father. They do not suggest defined sexual abuse as much as a gross form of indecency. Interpreted non-literally they are meaningless. The mother seems to think that the statements are code for some form of oral sex but the child apparently has an above average vocabulary and is quite capable of being more aptly descriptive if he was really trying to convey something more.
There is no suggestion that the father displays any worrying personality traits or other behaviours that might suggest or justify an inference that he has any paraphiliac tendencies. He has had little unsupervised time with the child and it is unlikely, in my view, that he would have used what limited opportunity he has had to abuse him especially in the context of intractable family litigation involving such a vigilant and suspicious mother who has already raised the spectre of sexual abuse as an issue in the proceedings and was clearly on the lookout for any sign of confirmation.
For the father to commit these gross acts of indecency in such circumstances would be stunningly brazen and ultimately counter-productive. He was plainly aware that he is under scrutiny and that any hint of abuse on contact may not only lead to permanent denial of access but criminal charges as well.
The child does not appear to display any odd behaviours at day-care or supervised contact when being observed by independent people including the family reporter.
It is unlikely that the mother manufactured the disclosures for her own purposes. Neither the father nor the Independent Child's Lawyer contends otherwise. Her responses are fully consistent with the genuine belief induced by what the child did and said. She may be overly sensitive and unduly receptive to any possibility of abuse because of her own traumatic experiences as a child and her self interest in the outcome of these proceedings.
I accept the submissions advanced by Counsel for the Independent Child’s Lawyer that no positive finding of past abuse can legitimately be made in this case because of the unsatisfactory and insufficient nature of the evidence adduced to support it.
The allegation, therefore, remains unproven. That, technically, is the end of the court's inquiry. Exonerating the accused party is not part of the adjudicative function of this court. This, understandably, is often seen by aggrieved and indignant fathers looking for a declaration of innocence and restoration of their reputation as highly unsatisfactory. That, however, is the way it is. Allegations made in court proceedings are either proven or not. Innocence is never really at issue and there is rarely enough evidence to sustain a valid negative finding but, I very much doubt that the father has done anything untoward.
The “unacceptable risk” question
While a positive finding of sexual abuse can decisively constitute an unacceptable risk the converse is not necessarily true and the failure to establish an allegation of sexual abuse to the Briginshaw standard does not decide the wider and ultimate issue of what parenting order, if any, is in the best interests of the child.
In resolving that issue the court must determine ‘whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk’. [12] The harmful psychological consequences of a fearful child having unsupervised contact with a person who has or may have or is believed by the other parent and/or the child to have abused the child also need to be brought into the balance in determining what parenting order will best advance the best interests of the child. On the other hand there is little purpose in perpetuating false beliefs just because they may currently be held by a parent or child.
[12] M v M (1998) 166 CLR 69 at 77.
The so-called unacceptable risk test has become the standard used by the Family Court to achieve a balance between the risk of detriment to a child from sexual abuse and other forms of harm and the possibility of benefit to the child of unrestricted contact. Under the High Court's formulation in M v M, where a court makes a finding of unacceptable risk it is a finding that continued contact might do more harm than good[13] or a conclusion that its perceived advantages are outweighed by the potential disadvantages. However, a finding of unacceptable risk in respect of unsupervised contact does not preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered. [14]
[13] The High Court recently re-affirmed the validity of this approach to predictive conclusions about future risks in the context of preventative detention provisions in the case of Fardon v Attorney-General (Qld) : (2004) 210 ALR 50 at 111.
[14] Bieganski and Bieganski (1993) FLC 79,778.
The relevant exercise is not a strictly legal one. It requires an assessment of the factors which might indicate the risk of any relevant harm to the child in the future.
Risks consist of chances and consequences. The more serious the consequences the higher the risk even if the odds of the happening of the relevant event are comparatively low. Conversely, it may be perfectly reasonable to take a risk on something in circumstances where, even though it is likely to occur, the consequences are comparatively insignificant and the potential benefits are worth it.
In N and S and the Separate Representative [15] the trial judge was unable to make a positive finding of past sexual abuse against the accused father because of competing innocent explanations and expert opinions to the contrary.
[15] (1996) FLC 92-655.
His Honour went on to hold that he ought not act as if an allegation were proven and deny contact unless were other proven facts which, independently of the conclusions on sexual abuse, lead to a determination that it would be an unacceptable risk to the child's welfare to allow contact. A majority of the Full Court agreed.
Kay and Hilton JJ appeared to approach the matter on the basis that it was a discretionary judgment and that the trial judge made findings open to him on the evidence.
In his dissenting judgment, Fogarty J analysed in detail the meaning and application of the term unacceptable risk. His Honour considered a number of cases in which efforts had been made to define the term with greater precision and concluded that:
There is a limit beyond which it can be of no use to endeavour to devise a precise expression to encapsulate a judgment which will ultimately depend on a great many factors. However, what can be asserted with confidence is that the welfare of the child requires that the term be carefully construed . . .
The term 'unacceptable risk' itself may be read as conveying the notion that a genuine risk is capable of being viewed as 'acceptable'. That could not be so ... ..[16]
[16] N and S and the Separate Representative (1996) FLC 92-655 at 82,713.
Fogarty J went on to consider appropriate questions for consideration as follows:[17]
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
[17] (1996) FLC 92-655 at 82,714.
An unacceptable risk, therefore, is not a determination about what an accused or suspected parent will do founded on a conviction about what he has done. Rather, it is an informed opinion or discretionary judgment based on the notion that it is better to be safe than sorry and gives priority to the child’s protective needs and the order required to meet them over the rights and wrongs of the parental dispute.
A finding of unacceptable risk is, at best, a prediction. The same body of evidence may produce two equally rational and reasonable but opposing conclusions, neither of which is either exactly right or wholly wrong.
This explains why the evidence which may be relevant and probative in relation to the question of an unacceptable risk of abuse occurring may not be permitted when deciding whether or not a specific incident of abuse has in fact occurred.
Neither the existence of the risk in the future nor alleged sexual misconduct in the past or other risk indicators have to be established as probabilities.[18] It is enough that either or both are merely possible. Thus, probable previous offending can sustain a possible risk in the future or, alternatively, possible past behaviour may support a probable future risk finding. In either case the risk can be legitimately characterised as an unacceptable one and justify the loss or limitation of contact.
[18] W and W (Abuse allegations: unacceptable risk) (2005) 34 Fam LR 129.
Although the assessment of future possibilities and risks is a familiar component of the judicial role in this jurisdiction, it is hard to reconcile this approach with ‘fundamental legal values and modes of thought’ [19] and traditional concepts of proof.
[19]Parkinson, P., Family Law and Parent-Child Contact: Assessing the Risk of Sexual Abuse (1999) MULR 15.
In Re H (Minors)(Sexual abuse : Standard of proof)[20] the House of Lords had to interpret s 31(2) of the Children Act, 1989 (UK), which allows the court to make a care order, inter alia, if it is satisfied that the child "is likely to suffer significant harm".
[20] (1996) 1 All ER 1.
The child protection agency which initiated the care proceedings relied on statements made by the eldest daughter that she had been sexually abused by her stepfather as evidence that three younger girls in the household were at similar risk. There was no other evidence. Related criminal charges had been dismissed.
The trial judge in the protection proceedings held he could not be satisfied to the requisite standard of proof that the stepfather had sexually abused his stepdaughter and declined to make a care order even though he thought there was a real possibility that her allegations were true.
A majority of the House of Lords decided that since the alleged sexual abuse had not been proven against the stepfather as a probability there was no evidential basis on which a court could form the view that the younger children were likely to suffer significant harm.
Lord Nicholls illustrated the need to make findings of likely future events based on proven facts by the following example:
If the issue before the court is with respect to the possibility of something happening in the future, such as whether the name under which foods are being sold is likely to deceive future buyers; to decide, the court must decide the relevant facts about how, why and to whom goods are presently being sold, and then reach a conclusion on the issue of whether the sale will deceive in the future.
In deciding the question of possible future harm, the court must, His Lordship said, act on rational inferences drawn from existing facts. An alleged but unproven fact is not a fact for this purpose.[21]
[21] See J. Roebuck, Comment (1996) 10 AJFL 263 at 267.
His Honour drew a distinction between those cases where the only predictor of likely future harm was alleged and unproven sexual misconduct in the past and gave examples of "a combination of profoundly worrying features affecting the care of the child within the family" that might establish a real possibility of future harm where allegations of past abuse had either not been made or were not proven. These included :
. . . the alleged perpetrator has a history of abuse; the history of members of the family; the state of relationships within a family; proposed changes within the membership of a family; parental attitudes; omissions which might not reasonably be expected; actual physical assaults; threats; abnormal behaviour by a child; unsatisfactory responses to complaints or allegations; and other facts which may seem minor or trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm . . . .[22]
[22] (1996) 1 All ER 1 at 21.
Nicholls LJ decided that the threshold for denying contact to an accused parent should be low enough to protect an alleged child victim from existing or future harm but the relevant facts needed to attain that threshold should be proven to a standard high enough to guarantee protection for innocent parents.
In Minister for Immigration and Ethnic Affairs v Pochi,[23] by contrast, the issue was whether a long term non citizen Australian resident with a minor drug conviction could be deported to his country of origin under migration laws in the national interest because of suspected involvement in large scale illicit drug trading. The decision under review was an administrative one. The decision maker therefore was not bound by the established rules of evidence but was constrained by the rules of procedural fairness.
[23] (1980) 31 ALR 666.
Two members of the Federal Court (Deane and Evatt JJ) held that as a matter of law conduct could not support a deportation order unless it was established to the civil standard. The majority ruled that suspected but unproved conduct should be excluded from the decision making process. However, Smithers J, in dissent, held suspected but unproven misconduct to be sufficient when making determinations about what was in Australia’s best interests and to the issue of community risk..
At 673 His Honour found there was nothing contrary to the principles of natural justice in placing a real suspicion based on proven facts into the scales and assessing its significance as part of that totality of the relevant matters bearing on the best interests and unacceptable risk issue. In his opinion, suspected but unproven misconduct was relevant to making deportation decisions because:
In the course of human affairs it is normal for persons to govern their conduct by reference to what they suspect, as well as to what they know. In other words to act on real suspicion on matters of importance is normal and rational. And of course this is conceded in the case of suspicion of conduct involving security and certain other kinds of community risks.
This approach is more consistent with the more recent decision in Minister for Immigration and Multicultural Affairs v Epiabaka [24] and with the comments of Kirby J in Wu Shan Liang. [25]
[24] (1998) 160 ACR 543.
[25] (1996) 185 CLR 259.
There is, as I have already concluded, no reasonable ground for believing that the father has sexually abused the child in the past and no other event or circumstance suggestive of an unacceptable risk of physical harm in allowing the child to have unsupervised time with the father is apparent to me. Nor am I persuaded that there is a real chance of emotional or psychological danger to the child as a result of having unsupervised time with the father.
However, even where there is no unacceptable risk of relevant harm supervised contact can still be ordered where, as here, a parent wrongly but implacably not unreasonably believes that sexual abuse has occurred. In S and P, [26] for instance, the Full Court found it appropriate for the trial Judge to have acted on the wife’s attitudes and concerns in considering whether or not ‘access’ would be to the ultimate benefit of the child. Strictly monitored time can act to prevent disruption to the parent/child relationship, while protecting the accused parent from further suspicion or accusation and at the same time allay the fears of the other parent.
[26] (1990) FLC 92-159.
The mother’s views are thus a factor that need to be brought into the balance in determining whether the overall welfare of the child will be best advanced by promoting unsupervised contact with the father. Without any expert evidence to assist as to the way in which the mother may be affected as to the manner in which the mother may be affected in her capacity to care for the child if contact is continued it would be inappropriate to draw a conclusion that she might be so overborne as to be unable to function adequately as principal parent.[27]
[27] F and F [2005] FamCA 394 at par 65.
But even if it was otherwise appropriate long term supervised contact would not serve any useful purpose here because of the mother’s deep dissatisfaction with the level of vigilance offered at the local contact centres and the non-availability of any other appropriate supervisor.
Residence and Parental Responsibility
The parents currently both have but do not share parental responsibility, but because there are no reasonable grounds for me to believe that the father has sexually abused or been violent towards his son, or is likely to be, the presumption of equal shared parental responsibility applies unless it is displaced by the balance of the best considerations.
This means that dividing parenting time equally between the parents should be positively considered or if that is not practicable or otherwise desirable then substantial and significant time would ordinarily be seen as a necessary requirement for building and maintaining meaningful relationships between children and their parents.
Whether they should actually be ordered to share it either equally (or even unequally) is a difficult question here because of the requirement in s65DAC that major long term issues be decided jointly in consultation. I have serious reservations whether these parties could co-operate sufficiently to make shared parental responsibility work in the interests of the child. Counsel for the Independent Child’s Lawyer thinks it can. It might in time but not yet.
The father says that the child should live with him but this is contrary to the recommendation of both the family reporter and Counsel for the Independent Children’s Lawyer. I do not think it would be in the best interests of the child to take him away from the primary carer of a lifetime and place him in the hands of a genuine and well meaning but inexperienced parent with whom he has had little to do and is unsure of and this stage of his development. I do not think he would be able to adjust to that transfer and that the risk of emotional harm outweighs any potential benefit in doing it.
The child would clearly benefit from having a meaningful relationship with his father. They currently don’t have one and they need to spend as much quality together as practicable in the circumstances. There are no protective needs limiting how much or what sort of time they spend together. Supervised contact may, however, be a necessary first step towards the reintroduction of normal overnight contact.
Both parents can adequately provide for all relevant needs of the child but the mother is clearly more experienced. The child is closely attached to the mother and obviously draws emotional comfort from her. The relationship he has with the father would need to be on much firmer ground before I will be confident that he could provide the same level of overall parenting and emotional support to the child. However, the mother has shown a tendency in the past to disregard or underestimate the child’s emotional and developmental needs and the benefit he would receive from building and strengthening a relationship with his father. It would be emotionally abusive for her in light of my findings to continue to allow the child to believe that his father posed a risk of abuse to him or that he has previously molested him. Counselling a child for emotional damage he has not suffered is likely to have a detrimental effect on this sort of emotional development and stability.
I am mindful of the father’s reasonable concerns that the mothers response to his so called disclosures and contact adverse attitude and past non-compliance but I think these things can be kept in check by less drastic means. She has promised to obey the orders I make and I think granting the father liberty to apply and retaining the services of the Independent Child’s Lawyer for the next 12 months or so will sufficiently protect his interests and the child’s rights in relation to contact. He also has the option of taking contravention proceedings even though - as he himself points out - this can sometimes be a long drawn out and ultimately ineffective procedure.
There is a serious question mark over the mother’s willingness and ability to encourage and facilitate a close and continuing relationship between the child and the father. Her past history suggests that she will struggle with this. Her attitude to contact is not entirely appropriate and is incompatible with her responsibility to encourage the establishment and maintenance of a meaningful relationship between the father and the child. I am willing at this stage to take her at her word that she will accept my findings on the sexual abuse question and comply with final orders even if she did not do so in respect of those made at interim proceedings. She did seem to me to be genuine when questioned about this and I believe her when she says that she has received strong advice which she accepts to comply.
If my faith in her proves to be misplaced then of course she runs the very real risk of a reversal of residence application against her succeeding in the future.
Having regard to the limited unsupervised time he has spent with his father since separation, the tenuous nature of the relationship and the damage done to the parental relationship by the sexual abuse allegations and non-compliance with contact orders I think the overall best interests of this child will be best promoted by the graduated and increasing levels of unsupervised time recommended by the family reporter and reflected in the proposed orders of the Independent Child’s Lawyer.
I propose, however, to leave parental responsibility to be governed by s61C in view of the ongoing parental conflict.
I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tim Carmody.
Associate:
Date: 15th March 2007
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Natural Justice
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Procedural Fairness
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Remedies
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Jurisdiction
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