LUSK & PAISLEY
[2015] FCCA 2631
•27 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LUSK & PAISLEY | [2015] FCCA 2631 |
| Catchwords: FAMILY LAW – Parenting – future care arrangements – objection to subpoena – discussion of protected confidences – allegations of sexual abuse – consideration of unacceptable risk. |
| Legislation: Family Law Act 1975, ss.60CA, 69ZN, 69ZR, 69ZT, 69ZV, 69ZW Children and Young Persons (Care and Protection) Act 1998, s.248 |
| Jones & Dunkel (1959) 101 CLR 298 Deacon & Castle [2013] FCCA 691 M & M (1987) FLC 91 – 830 Briginshaw v Briginshaw (1938) 60 CLR 336 B & B (1986) FLC 91 – 758 Amador & Amador (2009) 43 Fam LR 268 Other Articles Cited: Hon. John Fogarty A.M., “Unacceptable Risk – A Return to Basics”, (2006) Australian Journal of Family Law, 20 AJFL 249 |
| Applicant: | MS LUSK |
| Respondent: | MR PAISLEY |
| File Number: | AYC 148 of 2015 |
| Judgment of: | Judge Harman |
| Hearing date: | 27 August 2015 |
| Date of Last Submission: | 27 August 2015 |
| Delivered at: | Parramatta |
| Delivered on: | 27 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Martinovic |
| Solicitors for the Applicant: | Grasso Searles & Romano |
| Counsel for the Respondent: | Mr Baume |
| Solicitors for the Respondent: | Belbridge Hague |
| Counsel for the Independent Children’s Lawyer: | Ms Stolier |
| Solicitors for the Independent Children’s Lawyer: | Louise Coady Family Lawyer |
ORDERS
Leave is granted to the legal representatives for the parties to inspect material produced on subpoena by:
(a)The New South Wales Police Service;
(b)(omitted) Hospital.
Pursuant to s.248 of the Children and Young Persons (Care and Protection) Act 1998 the Director General of the Department of Family and Community Services (Community Services) is requested to provide to this Court within two (2) hours after receipt by them of this request a Personal History Summary relating to the following child/ren:
(a)X born (omitted) 2009;
(b)Y born (omitted) 2012;
or any of them.
Neither party nor the Independent Children’s Lawyer shall cause any subpoena or further subpoena to be served upon the Department of Family and Community Services without the Court’s leave.
I find that there is no unacceptable risk established with respect to the children X born (omitted) 2009 and Y born (omitted) 2012 as at today’s date.
Pursuant to section 62G of the Family Law Act 1975 a report is to be prepared for the Court by a Family Consultant nominated by the Manager Child Dispute Services in accordance with Exhibit X attached hereto.
Trial directions are made in accordance with Exhibit Y attached hereto.
EXHIBIT X
FAMILY REPORT
Pursuant to section 62G of the Family Law Act 1975, a report be prepared for the Court by a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia.
The Report writer is requested to consider and comment upon the following:
(a)The nature of the relationship of the child/ren with each of the child/ren's parents; and other persons (including any grandparent, partner of a parent or other relative of the child/ren or other person’s living within either parent’s household;
(b)The likely effect of any changes in the child/ren 's circumstances, including the likely effect on the child/ren of any separation from either of his or her parents or any other child/ren, or other person (including any grandparent or other relative of the child/ren or member of either parent’s household), with whom he or she has been living or spending time on a regular basis, noting that since February 2014 the children have lived apart and both parties agree that this is disadvantageous to them and they each seek that the children both live with them and the mother seeks to relocate with the children to Queensland;
(c)The practical difficulty and expense of a child/ren spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child/ren's right to maintain personal relations and direct contact with both parents on a regular basis and, if so, what arrangements might be made to seek to address such affects;
(d)The capacity of each of the child/ren’s parents and any other person (including any grandparent or other relative of the child/ren or member of the parent’s household) to provide for the needs of the child/ren, including physical, emotional and intellectual needs;
(e)The attitude to the child/ren, and to the responsibilities of parenthood, demonstrated by each of the child/ren's parents and/or members of a parents household or other care givers;
(f)The parents' current and future capacity to communicate with each other and resolve difficulties that might and with respect to same:
(i)any specific course, program or counselling service that might be of assistance in supporting, encouraging and/or assisting the parents (jointly and/or severally) in addressing any such difficulties as are apparent; and
(ii)the impact upon future parenting arrangements (including the allocation of parental responsibility) of such apparent difficulties (if not addressed) and/or upon the child/ren;
(g)Such other matters as the Report Writer considers relevant.
The Report Writer is requested to identify and provide appropriate citations for any social science literature that has been referred to and/or relied upon in expressing opinions within the report.
The Family Consultant is requested to complete the report not less than 4 weeks before the adjourned date.
The parties shall attend all appointments with the Family Consultant and shall ensure that any other member of their household or other relative (as the Report Writer may request) as well as the subject child/ren attend all appointments with the Family Consultant, as requested by the Family Consultant.
The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to the parties and/or the Independent Children’s Lawyer.
EXHIBIT Y
TRIAL DIRECTIONS
The matter is listed for Final Hearing before Judge Harman at 10.00am on 15-16 August 2016 and to continue until completion.
In the event that either/any party (or the Independent Children’s Lawyer) requires the report writer for cross examination then written notice of that fact is to be given to the report writer/the Director of Family Consultancy services upon receipt of the Family Report and in the event that the report writer is not available on the allocated dates then upon that fact becoming apparent to a party or the Independent Children’s Lawyer they shall cause the proceedings to be relisted and absent notice within 21 days of today’s date the report will be admitted without challenge.
Direct the Applicant to file and serve all Affidavit material on which she intends to rely at trial no later than close of business on 6 May 2016.
Direct the Respondent to file and serve all Affidavit material on which he intends to rely at trial no later than close of business on 1 July 2016.
Direct the Applicant, should she consider it necessary or appropriate, to file an Affidavit by her and only her answering any material in reply to the Respondent’s Affidavits which has not already been addressed in her evidence in chief no later than close of business on 22 July 2016 and in the event that evidence is to be called in reply it shall be by filing such Affidavit and not otherwise.
The Court notes that the Applicant would propose calling evidence from herself plus two.
The Court notes that the Respondent would propose calling evidence from himself plus one.
The parties are to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Circuit Court Regulations 2000 or as otherwise directed by the Registry Manager.
Direct each party and the Independent Children’s Lawyer to file a Case Outline directly by email to my Associate no later than close of business 12 August 2016, such Case Outline to incorporate:
(a)The material that is relied upon by that party or the Independent Children’s Lawyer, being one Affidavit per witness together with any Affidavit in reply;
(b)The material from which tender is to be made in that party or Independent Children’s Lawyer’s case and unless entirely impracticable copies of all documents proposed to be tendered shall be served with the case outline;
(c)A chronology of events.
Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.
Leave is granted to the parties in the event that the matter is resolved and Terms of Settlement prepared and signed to forward those Terms to my chambers for the purpose of orders being made in Chambers and hearing dates vacated.
Any further subpoena for the production of documents shall be filed and served and so as to require production of material to the Court not less than 21 days prior to the allocated hearing dates and the party issuing same shall ensure that all necessary steps are taken to have obtained leave to inspect material expeditiously and all parties shall ensure that they have inspected material and tabulated same (in the event that tender or cross examination on those documents is proposed) prior to the hearing (as no time will be made available for inspection of that material prior to the hearing commencing).
In the event that the matter is resolved or in the event that either the above filing directions are not fully complied with by the dates fixed and/or the matter will not be able to proceed or be contained within the allocated hearing time, then the parties and the Independent Children’s Lawyer are to forthwith relist the proceedings on 7 days’ notice in accordance with Federal Circuit Court protocols, so that appropriate Orders can be made to either ensure that the matter proceeds within the time allocated or vacate the hearing dates and make such further directions as necessary.
IT IS NOTED that publication of this judgment under the pseudonym Lusk & Paisley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
AYC 148 of 2015
| MS LUSK |
Applicant
And
| MR PAISLEY |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving future care arrangements for two young children X born (omitted) 2009 and Y born (omitted) 2012.
X has recently had her sixth birthday. Y will shortly have her fourth birthday.
The parties to the proceedings are the children’s parents, being their mother, Ms Lusk, who is the Applicant and their father, Mr Paisley, who is the Respondent.
The interests of these two young children are independently represented.
There are a number of concerning aspects to this matter. The number of issues of concern have increased as the matter has progressed. That, of course, is not how litigation is intended to operate, particularly in a jurisdiction that is sometimes referred to as “therapeutic”. Litigation is intended, particularly by reference to the section 69ZN principles contained in the Family Law Act 1975, to clarify and resolve issues as the matter progresses. Sadly, that is not the case with these proceedings.
The matter has been on foot for only a brief period, having been commenced by an Initiating Application filed 10 April 2015. In the subsequent period the parties have engaged with or had the benefit of significant resources including Family Consultancy services, the appointment of an Independent Children’s Lawyer, the issue of a myriad of subpoena, Orders made pursuant to section 69ZW of the Act and requests for information made to the Department of Family and Community Services NSW pursuant to section 248 of the Children and Young Persons (Care and Protection) Act 1998. The resources that the matter will consume, both public and private, will continue to grow and are potentially substantial.
When the proceedings were commenced there was already a significant and concerning aspect of the matter. These two young children, (at the time that the matter was commenced, aged five and three), were separated. That is one of the few agreed facts. The Child Dispute Conference Memorandum describes that sibling separation as “serious and complex”.
For a considerable period of time these two young children have lived separately from each other and from their other parent. The children may now be very accustomed to these arrangements. At some future point the children may well suffer a considerable loss if and when they move to live with their sibling and, for one of them, with a parent with whom they are unfamiliar, leaving a parent with whom they are familiar. Each parent seeks Orders that it be so.
It is opined by the Family Consultant that it would be critical for the children to spend regular weekly time with each other. Recommendations are also made that further inquiries be made and information obtained and the proceedings expedited.
Expedition has been somewhat impeded by recent developments, particularly events which have occurred in June and July of 2015 commencing, in fact, on the day of the Child Dispute Conference.
The proceedings are today listed for Final Hearing with respect to one discrete aspect of the evidence – to determine whether the evidence establishes that there is an unacceptable risk of harm to the children.
On 5 August 2015 the matter came before the Court in a duty list. In the preceding days material had been filed by the mother alleging that the youngest child Y had been sexually abused by her father. The matter remained before the Court for the entire day and was not concluded until nearly 6:00pm. At the conclusion of that day an Order was made as follows:
I declare that I am satisfied pursuant to section 69ZT(3) of the Family Law Act 1975 that the provisions of the Evidence Act 1995 otherwise excluded by section 69ZT(1) of the Family Law Act 1975 should and will apply to all and any evidence relating to any allegation of suggested abuse of the children or either of them.
The proceedings were adjourned to today for a hearing to be conducted between Parramatta, Brisbane and Albury Registries by video. The hearing was to deal solely with the allegations of sexual abuse and a determination of whether Y was exposed to an unacceptable risk in the care of her father.
The Order listing the matter for trial on that discrete issue was made by reference to section 69ZR of the Family Law Act 1975. That provision permits the Court at any time after the proceedings have commenced, to make findings of fact and final Orders with respect to one or more specific aspects of the proceedings. It is on that basis the proceedings, having now raised allegations of unacceptable risk of harm, allegations of sexual abuse of the younger child Y, that the matter has been listed expeditiously today. The matter will now continue to a further Final Hearing of all remaining issues as quickly as the matter can be made ready and accommodated.
The decision to list a single issue for hearing rather than the totality of judiciable controversy was also influenced by the real potential for these two children to have been isolated from each other for a significant period, up to two years, absent such a determination of the issue of unacceptable risk. The address of the issue of unacceptable risk as a discrete issue also allows the remainder of issues and evidence relating to those issues to be more confined or streamlined.
In the event that a finding of unacceptable risk were made, and it is conceded by the mother’s Counsel at the close of evidence that such a finding is not available to the Court, attention would have been needed as to whether X was also at risk and whether she needed to be removed from her father’s care. If a finding were made that no unacceptable risk was established, as it will be, then it would be important to ensure that the children are continuing to see each other, living separately as they do from each other. That arrangement apparently came into being with the agreement of the parents, at least at the time that the arrangement came into place.
Evidence considered
In dealing with the proceedings today, I have read and considered the following documents:
a)The Initiating Application, filed 10 April 2015;
b)The Response filed by the father, 10 June 2015;
c)The Affidavit of Ms Lusk, sworn or affirmed 1 August 2015 and filed 3 August 2015. It would appear that Affidavit has never been served upon the father or his attorneys. It was provided to them by the Independent Children’s Lawyer on 5 August 2015, being the day that the matter was last before the Court;
d)The Affidavit of Ms V, the maternal grandmother. With respect to that Affidavit – and noting the declaration that has been made as to the applicability of all rules of evidence in relation to the issue of sexual abuse – paragraphs 2 to 7 inclusive of that Affidavit would not be permitted. They offend the rules of evidence in a number of ways, not only as to form but content. That leaves paragraphs 1 and 8 deposing very little other than the relationship between the deponent and the mother and the fact that they speak to each other on the telephone on a near daily basis;
e)The Affidavit of the father sworn or affirmed 5 August 2015 and filed in Court that day. It would appear the Affidavit was prepared in anticipation that an Application would be made to the Court by the mother for interim Orders protective of the children or, at least, the child Y, in light of the contents of the mother’s Affidavit, which the father had become aware of on the morning of that Court event;
f)The Notice of Risk filed by the father, 10 June 2015;
g)The Notice of Risk filed by the mother on a date that is not apparent from the document, but certainly on or before 15 June 2015;
h)A Notice of Risk filed by the mother 4 August 2015.
There are also a number of Exhibits in the proceedings, comprising:
a)Exhibit A, the Child Dispute Conference Memorandum to which I have already referred;
b)Exhibit M1, material from the (omitted) Hospital;
c)Exhibit M2, material from (omitted) Hospital;
d)Exhibit M3, further material from (omitted) Hospital;
e)Exhibit M4, further material from (omitted) Hospital;
f)Exhibit M5, further documents produced by (omitted) Hospital but relating specifically to a report made to the Department of Family and Community Services NSW;
g)Exhibit M6, another document from (omitted) Hospital;
h)Exhibit M7, documents from the (omitted) Sexual Assault Service. An objection had been raised by that service to production of the material or at least to leave being granted for it’s inspection. I will touch upon that shortly;
i)Exhibit M8, material from New South Wales Police;
j)Exhibit C, a Person History report from the Department of Family and Community Services NSW. That report relates to both children.
Subpoena to the Department of Family and Community Services NSW
Allegations of sexual abuse were first raised with the Department of Family and Community Services NSW with respect to the children on 14 June 2015, being the day upon or the day following the presentation of young Y to (omitted) Hospital.
There is no outstanding investigation by the Department.
The Person History Document produced with respect to Y concludes on 13 August 2015 with “Child/young person is not in need of care and protection”. It is unclear, as material has not been produced in response to a subpoena served upon the Department, served some time after 10 August 2015, as to the basis upon which that determination was made by the relevant Departmental officer. I am satisfied that absent that Departmental material that I am able to proceed with the matter.
An Application for an adjournment had been made seeking adjournment pending production of material by the Department of Family and Community Services NSW, which would illuminate the bases upon which the assessment was made that Y was not in need of care and protection.
The basis upon which Departmental officers have determined not to proceed further with their investigation does not assist me in making a finding of fact as to whether this Court is satisfied that an unacceptable risk is established. The reports to the Department by (omitted) Hospital, (omitted) Hospital and the Police are all before the Court, having been produced by the agencies who made those reports (through such production one can infer their consent to the disclosure of the reporter and thus no breach of the relevant provisions of the Children and Young Persons (Care and Protection) Act 1998 occurs through identifying them as reporters).
Each of the parties have been required for cross-examination. I have received submissions from the Independent Children’s Lawyer and Counsel for the mother. I have not called upon Counsel for the father to make submissions as it was conceded by Counsel in closing the mother’s case that “...the Court could not be satisfied that there is a prima facie case that would establish an unacceptable risk”. Notwithstanding that concession, it is of some importance that the issue be addressed, albeit as briefly as I can.
Objection to subpoena
I propose firstly to deal with the evidential issue, the objection that was raised by the (omitted) Sexual Assault Service.
That objection was raised in somewhat broad and general terms. It had sought to rely upon two specific portions of legislation to support the exclusion of the material.
Firstly, the agency relied upon section 126B of the New South Wales Evidence Act 1995, providing for the exclusion of evidence of protected confidences. Protected confidences are defined in that legislation.
The provisions of section 126B of the Evidence Act 1995 (NSW) apply to and are intended to address concerns as to the production of sexual assault counselling records.[1] The exclusion of evidence of protected confidences is discretionary.
[1] For an excellent discussion of the bases for the provision see Anne Cossins, Ruth Pilkington, “Balancing the Scales: The case for the inadmissibility of counselling records in sexual assault trails”, UNSW Law Journal Volume 19(2) pages 222-267
I am satisfied that the service has standing to raise the objection that they have. In taking submissions from that service, they having been contacted for that purpose, it would appear that the objection was not pressed with any great vigour. It is, as they have described, a “standard objection” taken with respect to the production of their documents.
I make clear that I have some great sympathy for such services who seek to provide clinical service in a context whereby they cannot provide to their clients, their patients, those with whom they engage, any guaranteed confidentiality.
The purpose of the section 126B exception is serious and the provision should be given due regard. However, in this case I am conscious of a number of factors that permit admission (without the need to consider applicability of the NSW Act in Federal proceedings or other such matters).
Firstly, the records do not actually relate to the provision of sexual assault counselling and do not contain protected confidences within the definition of the NSW Act. The documents, at best, relate to the referrals that had been made to that service, the inquiries that they have made, and ultimately their determination that absent a disclosure by the child that counselling should not occur. Thus, it is clear that there are no documents which would fall within the category of protected confidences. That is an issue that I will need to return to briefly as regards the second basis upon which the objection was raised.
Secondly, these proceedings relate to the best interests of the child, a child who is three years of age. Certainly, the child could not give informed consent or engage in any realistic dialogue regarding the implications of release of the information. The persons who could do so are the child’s parents. Inferentially, if nothing else, one can accept that the mother provides her consent. Certainly the father has been silent on the issue. That is not a criticism of him, he has not been asked.
Thirdly, I am satisfied that by the terms of the provision, discretionary as it is, contained within the New South Wales rather than Commonwealth Evidence Act 1995, that I would exercise my discretion to permit the admission of the material. The child’s best interests are paramount in these proceedings, section 60CA of the Family Law Act 1975 makes that clear. Accordingly, the Court should have all relevant and available evidence, particularly when addressing a matter of such significance as the alleged sexual assault of a child by a parent. That is all the more so when the records and their admission potentially assist the alleged victim rather than further injure them (being the basis of the protection). On that basis, that limb of the objection was dismissed.
The second limb of the objection was based upon the provisions of the Criminal Procedure Act 1986 (NSW). Put bluntly, they simply cannot apply to these proceedings. These are not criminal proceedings. Leaving that issue aside for one moment, I accept that if I am wrong with respect to the above (although, without intending arrogance, I do not see how I could be, these are civil proceedings and New South Wales Criminal Procedure legislation could not apply to them) the protected confidences which arise, as defined in section 296 of the Criminal Procedure Act 1986 (NSW), are not made out. The provisions that apply to such protected confidences and their exclusion (see sections 297, 298, and 299B) relate to proceedings in which a criminal prosecution is occurring with respect to a sexual assault. This is not a criminal prosecution.
Even leaving aside that these are civil proceedings, I am satisfied that the child’s best interests, as the paramount consideration, would obviate against the subpoena being set aside (as section 227 allows and permits), or inspection being limited, (as 228 permits). The material is not, as was otherwise alluded to, “sensitive information” within the terms of the Criminal Procedure Act 1986 (NSW), (see section 281B). If it is sensitive then it is material that these parents, with parental responsibility and in the case of the father seeking to meet and respond to an allegation, are entitled to see.
Thus, the material is admissible, and the parties have had access to it. Indeed, the records have been tendered in their entirety.
Also relevant to this determination are the general discretions to exclude evidence under the Commonwealth Evidence Act 1995 and sections 135 and 136. Whilst they were not specifically argued, I am not satisfied that any finding could be made that the evidence is unfairly prejudicial, misleading or confusing or would cause or result in an undue waste of time. Indeed, the documents go to the heart of the matter and have been of great assistance and without them the matter could not be safely determined.
I am satisfied by reference to section 55 of the Evidence Act 1995 (Cth) that the evidence is relevant, therefore it is prima facie admissible.
Other allegations
The fundamental gravamen of this determination relates to the risk that is alleged by Ms Lusk of sexual abuse, or suggested sexual abuse, of Y. There are also a number of other complaints or allegations with respect to the father’s care of Y, including her having received what would appear to be relatively serious burns to her bottom on one occasion. Those burns occurred immediately prior to a Court event and immediately prior to the allegations of abuse.
There is some controversy as to the number of burns to the young lasses bottom, the father suggesting two and the mother four. Whether there were two or four burns is an issue in dispute but need not trouble me.
What I need be concerned about in relation to the burns is only one very limited issue. To the extent that issues of credit are in dispute in these proceedings, I am conscious that the father’s version of events with respect to those burns and how they were occasioned is corroborated by the child in the statements she is recorded as having made in the various Exhibits.
The father’s version of events as set out in his Affidavit is that the child had had a bath and had come from the bathroom nude and unclad whilst the father and her sibling X were standing in a different part of the house near a fireplace. The door of the fireplace or stove was open. The child, the father suggests, has come running to her father, grabbed him by the leg and swung around. As she did so, her backside touched the glass of the fireplace door (see paragraph 4(a) of his Affidavit).
That is exactly what the child described to the hospital staff, where she was examined, as the cause of the injury.
The father describes that he applied a cold pack to the area. The burn had not blistered by the time the child was returned the next day, coincidentally a day when these parties were before the Court in Albury. The child passed into the mother’s care at Court. During the day the mother suggests that she took the child to the toilet, the child showed the mother her bottom and the mother was “horrified” by the injury she observed, having been told by the father that it was two small burns.
The child was ultimately taken to the chemist by her maternal grandparents and the mother’s partner and cream provided and applied. The next day the burns were worse and blistered and the child was then taken to a general practitioner, who prescribed a course of antibiotics. Cream continued to be applied for some little time. As indicated, there is no issue in the evidence between these parties that both parties have applied cream to the child’s bottom to treat her burns, and appropriately so.
A second injury is complained of, being a suggested cigarette burn to the child’s face or lip.
The mother suggests that the child had told the mother that she had bumped into the father’s cigarette whilst he was holding it and burnt herself. The mother indicated during her cross-examination that she specifically asked the child if that was how the injury had occurred, or whether it might be possible that it had occurred by somebody else scratching her or causing the injury. The child is suggested to have responded, “No”.
Again, the child is clear in her statements to hospital staff as to how she said that injury occurred. Y suggests that she was scratched by a friend to her lip area.
Again, I need not make any finding as to which version is correct save to observe two things.
Firstly, the child’s version as given to the Doctor upon whom she attended at the hospital is entirely consistent with and corroborative of the father’s evidence.
Secondly, the staff of the hospital, whilst they are not available to be tested as to the opinion they express, suggest in their notes and in response to the mother’s insistence that the child was burned with a cigarette (notwithstanding Y’s version):
Although the facial lesion is not classic for a cigarette burn, this mechanism is possible.
The sexual abuse allegations
The real issue in dispute is whether the child Y has been sexually assaulted. The mother’s evidence in that regard is contained in her Notice of Risk and in her Affidavit.
In her Notice of Risk, the mother alleges:
The child ‘Y’ has made disclosures to the Applicant and others on two separate occasions that she has been sexually abused by the Respondent whilst in his care.
I pause to observe that, to the extent that it is suggested that “disclosures” have been made, two issues of concern arise.
Firstly, the child has made statements. They have become disclosures in the mother’s mind, and thus described by her as disclosures. The child’s statements are admissible as an exception to the hearsay rule, (see section 69ZV of the Family Law Act 1975) as to proof of the statement but not its contents.
Secondly, to the extent it is it suggested that disclosures have been made “to others” no such evidence is before this Court.
Indeed, the only evidence available is that no such disclosure has been made by Y save to the mother. A Jones & Dunkel (1959) 101 CLR 298 inference is available and, I am satisfied, should be drawn in that regard. The mother has not sought to advance evidence from any other person suggesting that they have heard the child make the statement that the mother alleges.
From the Exhibits tendered it would appear that the child has not, in fact, made a statement to any other person. I will come to that shortly.
The mother otherwise alleges in her Notice of Risk:
There is a very significant risk of this abuse re-occurring whilst the child is in the care of the Respondent.
There is the potential that the other Child to these proceedings, X, [a child who lives full time with the father] may also be at serious risk of such abuse.
That is, at the very least, curious in that the Department of Family and Community Services NSW, as indicated, has closed their file with respect to not only Y but X. Whilst the Department have closed their file with respect to Y, and there being no basis to indicate why that is so, it is certainly possible that it is because they understood that Y lived permanently with the mother and was not seeing the father. That, of itself, cannot be determined from the document produced, but it is offered in the mother’s evidence.
What is again curious is that Y has not been withheld by the mother. Y has been provided to the father, following said alleged disclosures, and the Department nor the Police and hospitals whose records are before the Court, have not been led to believe that it was otherwise.
What has also arisen from the father’s cross-examination, and it has only arisen in recent times, (and accordingly I am not critical of him for not containing it in his Affidavit, it occurred after it was sworn having been prepared on a matter of a few hours notice), is that he has recently been interviewed by the Police, he having contacted the Police.
Concerningly, though, X has also been interviewed by the Police. It is not suggested anything has ever occurred with respect to X. The transcript or ERIS recording of that interview are not available. Whether X was interviewed to seek to corroborate statements alleged to have been made by the mother to the Police or whether to ensure that she did not hold concerns of her own, or have matters to disclose, is unclear. Again, it must be noted that Y has never made a statement to any person other than the mother (as she alleges) that she has been in any way dealt with inappropriately by the father. But it is another interview of one of these two children, X being six years of age.
The mother also alleges risk on the basis that “the father may suffer from bipolar”. There is nothing whatsoever in the mother’s evidence to suggest the basis for her belief, which would appear to be as high as it can be put that either the father suffers from bipolar (which is not a risk to the child by and of itself) or how such a diagnosis might represent a risk to the child.
The mother also alleges that the father has abused drugs in the past. The mother states that she has concerns that this behaviour may continue. Presumably the mother intends that the seriousness of the allegations would deem the father to lack the capacity to appropriately care for the children.
Ultimately, the allegations regarding the father’s suggested diagnosis and past unspecified drug use were not pursued.
The mother’s evidence
The mother’s Affidavit evidence in relation to the suggested sexual abuse of the children commences at paragraph 4 of the Affidavit. Therein, she advises that on 13 July 2015, upon the child having returned from the father, that the child had gone to the toilet and whilst the mother was trying to wipe her bottom the child was saying “...it was really hurting”. The mother deposes that she noticed that the child’s bottom was very red.
There would not appear to be any issue on the evidence that this was so. The child’s bottom is conceded to have been red and sore.
The mother says that she asked the child why it was sore, and the child replied that “daddy had played with it and its very sore”. The mother then suggests that the following occurred:
I immediately contacted my solicitors and took Y to the hospital to have her assessed but Y wouldn’t cooperate with the doctors very well for them to look at it. JIRT was also involved.
On the 14th July we then had an interview with a police officer constable Mr R. Y did not open up very much though which was not helpful. [Indeed, Y did not open up at all.] They then sent us to (omitted) Hospital to see Dr C to have some further tests done but as Y was not cooperating she could only get 2 swabs done, 1 for DNA and the other for infection. Both results came back clear.
I was very concerned about the safety and health of both of my children and I tried to speak to Y to ask about what she had meant by “daddy playing with her bottom”.
On the 21st July I had called to speak to X and found out she had been burnt by the fire place in Mr Paisley’s home as well, she burnt her hand and I was told she burnt it by touching the top of the fire place.
The mother does not seek to imply culpability on the father’s part, for X’s burnt hand accepting it as an accident.
The mother’s evidence continues, at paragraph 9:
On the 27th July 2015 Y was returned home to me by her father. She was fine to start with, but then we were laying watching Dora the Explorer and Y started saying her tongue hurts. I then asked why it hurt and if she had bitten it but her answer was that dad hurt her tongue with his finger. When asked how he hurt her with his [said] finger, she would not answer me.
I then began to ask her about her weekend with her father and sisters [the father having an elder child, 11 years of age, who also spends time with him] and what they had done, she told me the fun things like that they played and went to (omitted) to a kids place down there and then started saying that dad had “played with her bum”. I asked her how he had played with it and slightly tickled the outside of her bottom and asked if he did this or was it inside and she corrected me by saying it was her “front bottom”, pointing to her fanny, I then asked her if it was to wipe it after she had gone to the toilet or was it just outside of her pants he accidentally tickled her there or was it inside, her reply was “inside and daddy put something in there”.
The mother then deposes that she contacted DoCS, JIRT, and a Police officer about this. The people had all previously interviewed the child. The child was again interviewed.
The mother’s evidence concludes:
I am very concerned with respect to the disclosures made by Y and feel powerless to help her. I do not want the father to initiate Contravention proceedings for withholding the children…
I make clear that there are no Orders in place with respect to the children and Contravention proceedings would not have been possible, although the mother may have been under an illusion that it was. Why that would be so when she has been legally represented throughout by the same attorneys and the mother deposes to have spoken to them and taken advice is unclear.
The mother then concludes her evidence:
I feel I must act protectively and not expose Y, and potentially X, to sexual abuse. Y is not the type of child to make up stories, nor has she had any exposure to sexualised behaviours. I cannot simply ignore what I have been told, and consequently I have spoken with the Department of Communities in (omitted). The matter is currently under investigation.
The “matter” may have been under investigation at the date of the mother’s Affidavit. Certainly, by 27 July 2015 with respect to X, the case was closed and, with respect to Y, 13 August 2015.
The evidence from the hospitals to which this child has been presented, two of them, is before the Court, together with evidence with respect to the Police investigations, Y having been interviewed now twice and X once.
The New South Wales Police have not obtained any disclosure from the child. That is most clearly and succinctly stated in a record, 4 August 2015, from the (omitted) Sexual Assault Service. It indicates, they having contacted JIRT to chase up “where the matter was at”, as follows:
Y has been JIRT interviewed twice, following two separate JRU referrals concerning disclosures she has made to Ms Lusk, her mother. Y did not make any disclosures of sexual assault during her two JIRT interviews. During her first interview she did report that her father had put cream on the burns on her bottom (these have been reviewed at a medical examination by CARHU [a sexual assault service]. The report of sexual assault has not been substantiated at either interview. [As a consequence – thankfully – the service determined – and appropriately so – not to proceed with the provision of sexual assault counselling to the child].
New South Wales Police records corroborate that no disclosure has been made. The reports made to and received by the Police are in the same terms as the mother’s evidence.
The Department has provided two documents the first a letter 14 August 2015, provided after service of the mother’s second Notice of Risk. The Department, at that point, indicated that they had recorded the information but nothing further was intended.
The second document is a Person History Document produced on the day of Hearing. That report makes clear that the Department’s files are closed, although the basis for their closure is unclear. That, in relation to Y, leaves open the possibility that it is on the basis that the child is with the mother and the Department may have been under the belief that the father was not to spend time with the child. It does not explain why the file would be closed with respect to X, if the Department held any concern, as the mother expresses in her material she understood them to do, when she did and does live in the father’s full-time care.
The material from (omitted) Hospital and (omitted) Hospital otherwise makes clear that this young girl, Y, has never made a disclosure to any of the Doctors or hospital staff upon whom she has attended. In fact, when questioned, Y has spoken and given a clear version of events.
(omitted) Hospital
The records produced on 13 July 2015 certainly confirm that Y was reluctant to let staff look at her bottom, although a very brief external examination was undertaken. They observed healing burns to her bottom relating to the accidental burns referred to above. There was also a burn on her left buttock, which was observed. Photos of the burns, as of 16 June 2015, were shown to staff. They have not been produced in evidence before the Court.
The following is otherwise related as to the basis of presentation:
Y was in the care of her father over the weekend and returned into her mother’s care at 12:00 today. Her mother noticed a mark on her face under the lower lip. Y explained this by saying one of her friends scratched her. Later, when she was alone with her mother, she said that her father burnt her with a cigarette.
At 18.30, she went to the toilet to do a bowel motion and said that her bottom was sore. When her mother asked why it was sore, she replied, “Daddy done it”. When her mother asked how he made it sore, she replied, “Daddy played with it”.
There is then reference to other concerns, being the burns to the child’s bottom from being burnt on the fireplace. The child’s presentation to a general practitioner for those burns is recorded. Concerns are also raised that X, the elder of the two children:
Has started masturbating (using her hand) and has become more secretive about this.
That allegation was not pressed as an issue of concern as regards suggested abuse.
It was reported by the mother that Y had become more clingy and usually wants to sleep with her mother after returning from a visit to her father. I draw no conclusion from that.
In other portions of the Exhibits, the mother suggests that this clinginess had been occurring for some time and it had not initially “caused any suspicion” on the mother’s part. Although, in light of what is referred to as the child’s suggested disclosure, it then began to cause some greater concern to the mother.
(omitted) Hospital consultation discussions are reported as follows:
...[the child’s bottom] may be simply due to poor hygiene or Streptococcus infection which can have this appearance. However, the words Y has used are concerning.
I pause at that point to note that “...the words Y has used” are as reported by the mother not as stated by the child to hospital staff. The words that Y is suggested by the mother to have used are also not consistent throughout the various reports.
The hospital record continues:
...the buttock burns are concerning as they would have been very painful and I would have expected a parent to present her for medical treatment soon after it occurred.
Again, the burns occurred on a Sunday night. On Monday morning the father had to leave home, as it were, at the crack of dawn to travel to Albury for Court. The father, thus, had no opportunity to present the child to a Doctor. He does give evidence that he attended to the child with first aid.
Again the hospital record continues:
...although the facial lesion is not classic for a cigarette burn, this mechanism is possible.
X’s masturbation could be normal exploratory behaviour or could be self-soothing behaviour. However, the context would need to be investigated further.
The mother, in her material, suggests that it is behaviour that the child is encouraged in or has learnt from her elder sibling, the father’s 11 year old child. There is no evidence at all which would support a finding by this Court that it is so.
(omitted) Hospital
The material produced by (omitted) Hospital is more extensive.
At the time that the child was presented to the (omitted) Hospital on 13 July 2015, it was suggested by the mother that the child had stated to the mother that the father had played with her bottom.
By 14 July 2015 and when the child was presented to (omitted) Hospital, it is suggested that the child had reported to staff “...that her dad had tickled her on the bottom and when asked if dad hurt it, she stated, “No, just tickled””.
The child spoke directly about her father putting cream on her bottom to make her burns better. She stated that her dad had burnt her on the lip, although again, the child has given two very inconsistent versions with respect to that.
The subtle change in that which is reported of the child is somewhat important. The mother’s suggestion, when the child was presented to the (omitted) Hospital, is that the child had stated to her that the father had played with her bottom and had made it sore. During her cross-examination, it had been specifically put to the mother whether the child had drawn the causal connection as to the father playing with her bottom being the cause of soreness. It was conceded that the child had not done so. It may be that it was simply inferred by the mother that this was the cause of the redness and soreness.
(omitted) Hospital notes are the only clear indication of any “disclosure” made by the child. The notes from (omitted) Hospital are entirely consistent with the notes from the (omitted) Sexual Assault Service.
(omitted) Hospital notes suggest that at 2:40pm on 14 July 2015 – and after being physically examined for the second time in 24 hours – that the child was interviewed by a Detective Mr R, a JIRT worker, Ms M and in mum’s presence.
It is suggested that during that interview Y made limited disclosures including that “...she burnt her bottom on the fire after she got out of the bath and was not wearing any pants”. Again, exactly corroborative of the father’s evidence.
When asked about her “sore bum”, she stated that her dad “tickled her on the bottom”. When asked if dad hurt it, she stated, “No, just tickled”.
The balance of that interview is already recorded above.
What is concerning, with respect to those events, is that the child’s version of events is subtly but importantly different to that which the mother suggests that the child stated to her. The mother, during cross-examination, conceded that a portion of that, which was suggested and attributed to the child, was in fact something assumed by the mother being the causal connection between touching and soreness.
I do not suggest that a “Triangle waist shirt” line of cross-examination gives any great illumination of the issue. More important than slight differences in the mother’s evidence is the reality that there are two different versions - the mother’s and the child’s when directly questioned.
But the inconsistency between the mother’s versions and between the versions of the mother and the child are notable. One version suggests culpability of the father in causing harm to the child, although in cross-examination it is conceded that the child did not make that assertion. The second suggests that the child when directly questioned, in the mother’s presence, disavowed any causal connection between her sore bottom and the father.
It was put to the mother during cross-examination, albeit with respect to a separate aspect of the child’s presenting injuries, that the mother was “selective” in her memory. That related, in fact, to that which had been opined about the injury to the child’s lip, possibly, although inconsistent with usual expectation of a cigarette burn, possibly as the child had described, an injury occasioned harmlessly and inadvertently by a friend.
The mother’s recollection of that which had been opined by staff at the (omitted) Hospital on 13 July 2015, recalled only the possibility that it was consistent with a cigarette burn, not the possibility if not probability that the child’s description that it was caused by a friend was true.
On that basis, I am conscious of the mother’s evidence, unshaken during cross-examination, that she genuinely believes that the father has sexually abused this child, not only on the 13 July’s presentation but on the 27 July 2015. On 27 July 2015 whilst it is suggested that disclosures were made, the child was not presented to a medical practitioner, only to the Police.
This little girl, in the space of two weeks, has been medically examined at two hospitals, interviewed by a number of people, including on two occasions Police and JIRT officers, and her sister, X, has now also been interviewed by Police.
The clear indication from the medical records, in relation to the first of two suggested presentations of the child, is that there were entirely innocent explanations possible and equally probable to any allegation or suggestion of abuse. The highest the medical examination evidence goes is that whilst it is possible that the child has been abused it is also equally possible that it is due to poor hygiene (and I do not suggest the culpability of either parent in that regard), such that the child had developed a nasty rash. Indeed, it is suggested, at one point in time by the (omitted) staff, that the child should have some cream, such as that used for nappy rash, to treat her red and sore bottom.
The mother has never raised these allegations with the father. She has certainly raised them with the Police, JIRT and hospitals but not the father. She has had attorneys at all times. She was in a position to instruct them to do so on her behalf. They have not.
It is certainly indicated, on the mother’s behalf by her Counsel, that correspondence had been forwarded to the Independent Children’s Lawyer seeking their input into the action that the mother should take in response to these allegations. To that extent, such requests are inappropriate.
The Independent Children’s Lawyer represents the child’s interests. They are certainly interested in allegations, interested in the evidence which might support them and the impact that the allegations, if supported by evidence and demonstrated to be true, would have upon the child. It is not the role of the Independent Children’s Lawyer to give advice to parties as to how they proceed. That is the role of the lawyer retained by the party.
The father is only aware of the allegations or only first became aware of them as a consequence of being provided by the Independent Children’s Lawyer with the material forwarded to them, including the mother’s Affidavit.
What is also concerning in relation to, particularly, the first hospital presentation is that the mother’s genuine and strident view that the father has sexually abused the child is resistant to dissuasion. The mother’s Counsel had indicated in opening her case that the mother was, by presenting the child for examination, seeking to ascertain whether the child had been abused as she was concerned that the child might have been. During her cross-examination, no such concern, doubt or disbelief was expressed at all. Ms Lusk was very clear - in her view the child has been sexually abused by the father.
The mother has continued to provide the child to the father. The mother has not taken any action to ask this Court to make any protective Order. The mother has not sought any Order with respect to X, who continues to live full-time with the father, notwithstanding that her Notice of Risk suggests that she holds fears also for that child. The mother suggests that those concerns are added to by her concerns that the child is now, as she describes it, masturbating. As the hospital suggests, most probably, this might be as a consequence of some self-soothing or other perfectly innocent exploration of her person.
The records that are produced would, to the “reasonable mind of the man on the 470 bus”, as it were, be sufficient to dissuade that person that the child has been abused or such as might, at least, raise a very serious and significant question that there might be some other plausible and perfectly innocent explanation.
What is missing entirely from the mother’s evidence is any suggestion as to what has operated in her mind. What past experience of the father she has had, what knowledge of the father she possesses or what particular context of that, which she suggests the child has said to her, has operated in her mind to interpret the child’s statements to her as a disclosure of abuse. Irrespective of which version is preferred (the child is suggested to have said that “daddy played with her bottom” or “daddy tickled her bottom”) it is unclear how that was received by the mother as being suggestive of abuse.
That is all the more so with respect to the second allegation arising at the end of July 2015. Then the child is suggested to have stated to the mother that her dad had “played with her bum”, essentially the same allegation as on the previous occasion. On that occasion, however, the mother then began to ask the child, as the mother described in her evidence and as the Independent Children’s Lawyer then adopted in their questioning, “Did daddy put anything inside you?”, and the like. The child responded in the affirmative and it is unclear whether it is intended to suggest that the child was agreeing that something had been inserted in her bottom, her vagina or otherwise.
The weight that can be attached to anything that the child had said at that point in time, when she had so clearly been led, had suggestive questions put to her and had not volunteered anything which on its face, unless the mother held some other information to predispose her to such a view, would be indicative of the child’s statement being disclosure of abuse, is nil.
That is particularly so in the context whereby it is agreed that the child had stated to (omitted) Hospital staff, the JIRT officer and the Police in the mother’s presence that the father had been putting cream on the burns on the child's bottom. A perfectly innocent explanation for touching the child’s bottom was available but rejected, it would seem, out of hand by the mother.
The father has consistently denied the allegations. During his cross examination the father revealed what might, perhaps, be described as a degree of hyper-vigilance with respect to the possibility of such allegations being made. I do not infer therefrom any culpability on the father’s part, purely that he has, as a consequence of things that he has seen and heard, formed the view and, as he has described, based on his knowledge and understanding of the mother, with whom he lived for some nine years, concern that allegations might be made.
What is remarkable about the first allegation – the child’s burnt bottom on the fireplace – is that the father, consistent with that which he asserted in the witness box, had initially bathed the child, but left her in the bath alone. Ordinarily, one might expect the father would be criticised for having done so. It does, however, give some context to his evidence that he was concerned to not place himself in a position where something might be perceived or suggested of him.
The unacceptable risk test makes clear that the Court should not proceed to a positive finding unless it is available and necessary. I am not satisfied that I need make such a finding.
I otherwise incorporate herein the relevant portions of my earlier decision in Deacon & Castle [2013] FCCA 691 summarising my understanding of the unacceptable risk test, commencing at paragraph 454. That is not to suggest a preference for my interpretation or recitation of such test, purely to ensure consistency between Judgments delivered by me. It is not the role of a first instance Trial Court to make law, but simply to apply it, as promulgated by the Full Court and High Court of Australia.
Unacceptable risk
454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgment at paragraphs 62 and 63 and 65-68 (inclusive) as follows:
“Relevant legal principles”
The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M.
Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (1976) V.R. 298 at p. 300), “an element of risk” or “an appreciable risk” (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam L.R. 765 at pp. 770 and 771 respectively), “a real possibility” (B and B [Access] (1986) FLC 91-758 at p. 75,545), a “real risk” (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
455. And:
456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:
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 recognised 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. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows:
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk. [Full Court’s emphasis]
458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said:
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)
459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
(a) The decisive issue is and always remains the best interests of that child.
(b) All other issues are subservient.
(c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
(d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
(e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
(f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
(g) The onus of proof in reaching that conclusion is the ordinary civil standard.
(h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary”
There must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture
At the conclusion of that inserted above, I have referred to what might be described as a checklist of sorts devised by the Honourable Judge Fogarty in an extrajudicial paper, “Unacceptable Risk – A Return to Basics”, where in his Honour refers to M & M and the line of authorities otherwise discussed above and suggests the following considerations which I will touch upon (using the same descriptors and paragraph lettering) as regards the evidence in this case:
a)“The decisive issue is and always remains the best interests of the child”. Neither party suggests otherwise. Indeed, the Independent Children’s Lawyer at the conclusion of evidence similarly concedes and urges the Court to find that there is simply no sufficient evidence to support a finding of unacceptable risk.
b)“All other issues are subservient”. So noted.
c)“The nature of the risk is best expressed by the term “unacceptable risk”. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable”. I make clear no abuse of a child is acceptable. It is an issue of what is alleged, whether there are alternate explanations, how likely it is that which occurred, to the extent that there is agreement or evidence, is abusive and the evidence which might support a finding of abuse, irrespective of whether such a finding is made.
In this case, the best evidence I have – without suggesting that children are responsible for their own protection – are the words of the child when interviewed. Her limited “disclosure” is that the father applied cream to her bottom. She made that “disclosure” in the mother’s presence, and yet the mother’s resistance to dissuasion that the father has abused the child is, in those circumstances, certainly strident if not extraordinary.
(omitted) Hospital staff had similarly opined that there were perfectly innocent explanations. Those innocent explanations would appear to have been dismissed and, certainly, from the line of cross-examination undertaken by Mr Paisley's Counsel, at least on one occasion selectively remembered.
What is alleged is that the father has touched the child's bottom. What has made it an allegation of abuse is the mother’s interpretation of what the child has said.
What has made it an allegation of abuse on the second occasion is the mother’s leading and suggestive statement to the child asking whether the father had inserted anything inside her, with which statement she is suggested to have agreed. The child has simply never repeated those statements to any other person. That does not mean that there may not be cases where the child fails to make a disclosure to a relevant investigating body and risk is apprehended. This is not one such case.
In this case the child has made disclosures, as described in the (omitted) Hospital records, which are entirely innocent and, when asked whether she had been hurt by her father, was very clear that she had not.
I am also conscious that I must have regard to the nature of the risk by reference to the mother’s actions. She has never raised it with the father, notwithstanding she had attorneys. She has never withheld the child. She has never sought to remove X. One would think that her actions would speak more loudly than her words.
In relation to the second allegation, by far the more serious, the suggestion of some form of vaginal penetration of the child, the child has not been presented to a Doctor – taken immediately to the Police to be reinterviewed, but no medical treatment sought. Certainly, the mother gives a cogent and plausible explanation that the child was so resistant on the two prior occasions that hospital staff had sought to examine the child – including, at the (omitted) Hospital, specialised sexual assault teams – that she felt that the child would be traumatised and need to be anesthetised for the examination to proceed.
Whenever examination has occurred, there has been no physical evidence. Again, that is not to suggest physical evidence is necessary. However, the mother asserts that there is evidence available, but it is not presented. Particularly in the nature of others to whom disclosures are suggested to have been made, that is simply not so.
The fact that the child has continued to be provided, that the child has made no disclosure to any person other than the mother, who has interpreted the child’s statement as a disclosure of abuse – even though there are very innocent explanations available and, in fact, advanced to the mother not only by hospital staff but the child herself – that no action has been taken with respect to X and no attempt to raise any Application in this Court in response to the suggested concern – noting that there is no Application in a Case – I am simply not satisfied that I could find that the child has been abused, although that is not a positive finding, simply an observation – as would appear, conceded – that there is no prima facie case that it is so and, thus, that there is no unacceptable risk.
It is urged upon me by the Independent Children’s Lawyer that the mother’s evidence is not compelling. Certainly, it is unclear and unhelpful in many ways. The child is guided, if not led, and suggestive as to the answers that she would provide to her mother, at least on the second occasion. I am consistently concerned that there is simply nothing in the mother’s evidence which gives any explanation as to why, when the child has said that her father played with her bottom or tickled her bottom – the child stating that she was tickled – that the mother has assumed and taken the additional step to connect that as being something from which the father has derived sexual gratification or has in any way been typified as sexually abusive, particularly when clearly there was a basis for the father to be touching the child’s bottom - the very burns which are not in issue.
The child is also very young, easily guided, and her verbal skills would appear to be far from well-developed, as the Independent Children’s Lawyer has observed. However, they are sufficiently well-developed for her to express very clearly when interviewed by the Police that her father has not hurt her and has done nothing more than tickle her and apply cream to her bottom, something for which the father was criticised as to the way that he has handled the child’s burns in any event.
I am also conscious of Full Court authorities such as Amador & Amador (2009) 43 Fam LR 268, which makes clear, consistent with Briginshaw v Briginshaw [1938] HCA 34 and section 140 of the Evidence Act 1995, that I must be satisfied on the civil standard appropriate to the subject matter of the proceedings and the consequence of the finding as to the evidence which would support a finding of unacceptable risk. I am simply not.
The fact that the father has now been interviewed by Police as well, (unfortunately, so has X), and that no action has followed gives some further limited support. The fact that those statements are not before the Court, does not concern me. The father is clear that he has denied any wrongdoing at any time.
In returning to the factors identified by Fogarty J the following is apparent:
d)Whether past abuse of a child is alleged: where past abuse is alleged, it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Again, the Court is reminded that the Briginshaw v Briginshaw civil standard, section 140 of the Evidence Act 1995 (Cth), applies. I am satisfied that is addressed above;
e)The circumstance, if it be so, that the allegation of past abuse is not proved does not impede reliance upon those circumstances in determining whether there is an unacceptable risk. I accept that is so. However, I am not satisfied that there is, as is conceded, a prima facie case establishing abuse and I am not satisfied that there is an unacceptable risk;
f)The concentration should normally be upon the question whether there is an unacceptable risk. It is my intention to do so. Whilst I am satisfied that the evidence would permit a finding that the child has not been abused I need not make such a finding. I need only be satisfied that the child is not likely to have been abused past or future. I am so satisfied;
g)The onus of proof is the usual ordinary civil standard. It had been submitted that, purely because the Police had not been able to arrive at a point where they were satisfied they would be successful in a criminal prosecution that I should not place weight upon the absence of charge. I wholeheartedly accept that submission. I place no weight whatsoever upon findings made by other investigative authorities, including the Department of Family and Community Services NSW. It is why I am not concerned as to the absence of documents which demonstrate why the Department has closed their file with respect to Y. What I must be concerned about are the reports that are made and the evidence that is relied upon with respect to them and the evidence produced as a consequence of the investigation. I am, in fact, more concerned that Y has been presented and physically examined on at least two occasions and that she has been interviewed on at least two occasions, in a circumstance which would no doubt be confronting and upsetting for her, than I am as to the words that have left her mouth. The only actual statements by the child, notwithstanding the mother’s leading and suggestive questioning of her, is that her father has tickled her and applied cream to her burns. She is clear he has not hurt her. Why those statements by Y are the basis for such concern that the mother, fully aware of the child’s statements having been present during the interview – that she still holds the view that the child has been sexually abused, I do not understand.
h)The components which go to make up the conclusion need not be established on the balance of probabilities. The Court may reach a conclusion of unacceptable risk from an accumulation of factors. Even if I take into account all of the factors that the mother has referred to, the child’s accidental burns, including X’s accidental burning of her hand – something which no doubt she will now not repeat – as well as the allegations of the statements made by the child to the mother but not repeated to any other person, I am not satisfied an unacceptable risk is made out.
As his Honour has concluded, there must be actual evidence which, at the very least, gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture. I am satisfied it is far more than mere conjecture that the child has unequivocally rejected that she has been hurt by her father. Again, that is not to suggest that it is for the child to protect herself by speaking out.
But all the child has ever said to the mother, at least before she is led and suggestive questions put to her with which she has simply agreed, is that her father has “touched her bottom”. Why, as I have laboured, the mother has in her mind interpreted that statement as sinister, has discounted all other possible, plausible, rational and innocent explanations even when they have been advanced to her by specialist sexual assault teams, the Police and by the child herself, is completely absent the evidence.
For those reasons, I am simply not satisfied that a finding of fact that there is an unacceptable risk established with respect to either child could be made.
The matter will now need to progress in such fashion as the parties determine and as would appear necessary and I will today make directions to move the matter towards Trial if that is what the parties desire.
I certify that the preceding one hundred and forty-seven (147) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 30 September 2015
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