M v M

[1988] HCATrans 191

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A29 of 1988

B e t w e e n -

M

Applicant

and

M

Respondent

Application for special

leave to appeal

MASON CJ
WILSON J

BRENNAN J

AlTll/1/RB 1 26/8/88

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 26 AUGUST 1988,AT 2.00 PM

Copyright in the High Court of Australia

MR K. BORICK: If the Court pleases, I appear with

MR D.W. MARTIN, for the applicant. (instructed

by Playfords)

MR E.P. MULLIGHAN, QC: If the Court pleases, I appear with

MR R.A. RICHARDS, for the respondent. (instructed

by David Peacock)

MR D. HAINES:  May it please the Court, I wish to obtain leave

to appear for the child's representative.

(instructed by Legal Services Connnission of South

Australia)

MASON CJ:  Now, Mr Borick and Mr Mullighan, do you have anything

to say to the Court about the application for leave

to represent the child?

MR BORICK:	I have no objection to Mr Haines representing the child in this Court.
MASON CJ:	Mr Mullighan?
MR MULLIGHAN:	I have nothing to say.

MASON CJ: The application is granted. Yes.

MR BORICK:  Your Honours, in this matter, on 27 January 1987,

discharge of access and a supporting affidavit alleged that she believed that the child, A, the five-year child of the marriage, had been sexually

the respondent wife filed an application in the

abused by the husband.

P.ASON CJ:  Yes, well now, Mr Borick, we have read the papers.

We are familiar with the controversy and the question

that you seek to agitate. You could assist us, I

think, by innnediately addressing the question,what is the difference in terms of law between what the

majority say in the Full Court and the Chief Justice	says? Is there a real difference between the
expressions that are used, ie 'real doubt' and "doubt"
and if there is such a difference what does that
entail?

MR BORICK:  Thank you, Your Honour. Firstly, there is a

real difference because the test posed by the

majority of the Full Court comes to this: that

if the trial judge has a lingering doubt, to use
the trial judge's words, the child may be subject

to risk of some sort of sexual, emotional or

physical abuse, then that will be in itself

sufficient to suspend access,even supervised

access.

Now, Chief Justice Nicholson says that there

must be a real risk and, clearly, in my submission,

AlTll/2/SH 2 26/8/88

there is a fundamental difference between a

decision on access based upon the consideration

of a real risk that the child - particularly

when you look at supervised access - a real

risk that the child will suffer some form of

emotional or physical or sexual abuse. In

addition, as Chief Justice Nicholson points out and

which I rely upon, on the test posed by the

majority, as soon as an allegation is made, then

it would be very difficult to irradicate all risk

or all possibility of risk or lingering doubt in

the mind of the judge and that in those circumstances

once the allegation is made, be it of physical,

sexual or - and I stress - emotional, then there

is a real risk that the harsh result which the

trial judge referred to which occurred in this

case, namely, deprivation of access to his child,

will occur in many, many other cases.

BRENNAN J:  Mr Borick, in this case, a majority in the Full

Court approached it on the basis that there was a

risk which the trial judge perceived in allowing
access to the child. Now, do you quibble with

that proposition as a proposition of law?

MR BORICK:  Yes. I think, as I read the judgment of the

trial judge, he was not saying that there was a

risk necessarily. He was saying he had a lingering

doubt that there may be a risk and, for that reason,

and that - - -

BRENNAN J: Well, he had a lingering doubt as to whether or

not the assaults had taken place or the interference
had taken place but the Full Court's formulation of

the proposition, as I read it, at the end of their

judgment at pages97 to 98, is that the trial judge found that there was a risk to the child. Now, is

there anything wrong with that as a proposition of

law?

MR BORICK: If, upon the balance of probabilities, a trial

judge does conclude that there is a risk to the

child, then that is still not sufficient to suspend

access to the child and I would quibble with it.

There must be, as Chief Justice Nicholson points

out, a real risk - - -

BRENNAN J: A real risk.

MR BORICK:	A real risk of some - - -
BRENNAN J:	As distinct from a risk.
MR BORICK:	A risk, yes.
BRENNAN J:	So, it is a question of degree.
AlTll/3/SH	26/8/88

MR BORICK:  But a very important question of degree.

BRENNAN J: That may be so but it is a question of degree.

MR BORICK:  A questicnof degree, yes. I think

Chief Justice Nicholson, himself, says that but

his use of the word - it must be quantified in

some way or other and his way of quantifying it

is by using that expression, a "real" or

"substantial" risk and then, particularly, as I

have indicated before in relation to even

supervised access, because, as a practicality,

how could there be any real risk to a child when

there is someone there to supervise the visit by

the father to the child.

BRENNAN J:  That may be a matter of the way in which a

discretion should be exercised but we are here

question that you seek to agitate is whether,	involved in the discretionary judgment and the
in the exercise of the discretion, it is sufficient
to exercise it against access because there is a
risk as distinct from whether there is a real risk.

MR BORICK:  Yes, that is the question that is put to this

Court as being worthy of consideration by this

Court and why special - - -

BRENNAN J:  Now, I do not doubt that it is a most important

question but I do raise the question of whether it

is a question of law or whether it is a question as

to the way in which, in the sound, practical,

prudential exercise of a discretion, the Court

should exercise it.

MR BORICK:  In my submission, it is a question of law because

there is such a fundamental difference between a judge

approaching it on the basis as he did in this case, "I am not satisfied that the sexual abuse took place but I have this lingering doubt in my mind" and the

danger, if this judgment stands, is that judges in

the Family Court from now on who have this lingering

doubt, as there almost always will because once the

allegation is made, it is very difficult to get rid

of, then they will regard that doubt as being

sufficient to satisfy the test posed by the majority;

that is, on the balance of probabilities, is there a

risk that the child may suffer some sort of difficulty

as a result of access. It is the combination of the

two which leads to that position. It leads to, in

this particular case, a particularly harsh result

but it will be repeated and repeated.

In addition, Your Honours, could I just - - -

WILSON J: Before you go on, I am just not clear whether, at

page 98, Their Honours are altogether consistent.

AlTll/4/SH 4 26/8/88

The first two lines, they seem to be reporting the

view of the perception of the trial judge in terms

of a possibility. In other words, that:

In such circumstances -

that is, in the case of access -

the child could be at risk.

Is that any more than envisaging a possibility of

child abuse?

MR BORICK:  It is a possibility or it just may be - - -

WILSON J: Yes.

MR BORICK: And if you test - - -

WILSON J:  It does not seem to go as far as they go later on

the page in saying:

The learned trial judge came to the conclusion

that there -

was -

a risk.

Is there a difference between those two formulations?

MR BORICK:  I think there is because you have got a double

possibility. First you have got it on the balance

of probabilities and then it .may be that some sort

of sexual or emotional abuse has taken place and

that it may be a possibility. Therefore, at that

point, the access must be suspended.

WILSON J: Yes.

MR BORICK:

At page - and, again, these judgments have been

put in the transcript twice but at page 52 of the

transcript in the judgment of the majority, the

majority had stated the test and then they said:

His Honour concluded as a matter of

practical reality, that unless the order

for access was discharged, there existed

a risk that the child may be sexually abused

and that her welfare may thereby be endangered.

I would challenge that statement that:

His Honour concluded as a matter of practical

reality.

They are not words His Honour the trial judge used.

AlTll/5/SH 5 26/8/88

What His Honour based his finding on was this

lingering doubt and the practicalities, in my

submission, did not really enter into it.

Another matter to which I would draw the

attention of the Court, there has been a recent

decision of the Queensland Supreme Court, a
decision of Mr Justice Dowsett, as yet unreported,

delivered on 5 May 1988, where he was considering

a question of custody of a young child. An

allegation of sexual abuse was raised. His Honour

held that he was not satisfied that the alleged

sexual misconduct occurred. He said:

It is not possible to know with absolute

certainty either way, but on the evidence

before I am not satisfied on balance -

but still proceeded to allow access and, in my

submission, that case which is in the matter of

KENNETH GEORGE BROWN-TERRY, there is a conflict

between the Queensland Supreme Court and the

Family Court and I rely upon that conclict in

support of this application for special leave.

I have indicated the use of the expression

"emotional harm" and if the very broad test proposed

by the majority is correct and is to be applied, it
would follow that once an allegation of emotional
harm - and that could be framed in so many different

ways - but once it is raised and if the Court finds

that that risk to the child may possibly exist,
then an individual, a parent, can be denied access

to his or her child and - - -

MASON CJ:	Mr Borick, this question, of course, must have arisen
in other jurisdictions outside Australia. What has

been the approach taken elsewhere. I know there is

discussions of the position in England in the

judgment.

MR BORICK: In England, the position is, as I understand the

authorities and as Chief Justice Nicholson has

referred to them, it is a substantial risk. It is

a very similar test to that applied - - -

MASON CJ: Which he applies.

MR BORICK:  The Chief Justice, yes.

BRENNAN J: Is there anything in Canada or in New Zealand, do

you know?

MR BORICK:  I have not looked at the Canadian or New Zealand

decisions on this topic. I think in England, of

course, there is still an ongoing debate in relation

AlTll/6/SH 6 26/8/88

to the whole issue but I - the short answer,

I do not know the answer to that question,

Your Honour.

BRENNAN J:	Yes.
MR BORICK:	But the issue is of such great significance to

all Australian families and also because the number

of allegations of sexual abuse are rife at the moment,

there will certainly be many more if this judgment

stands and special leave should be granted to enable

this Court to say what is the test and to resolve
what is a clear conflict in the Family Court.

I would ask Your Honours to note that the Full Court of the Family Court reserved judgment for

something like five months.

MASON CJ:  It does not necessarily mean that it is a poor

judgment though, Mr Borick.

MR BORICK:  No. I think it does mean, Your Honour, that there

was - - -

MASON CJ:  The more time you spend on the judgment, the better

it gets, presumably.

MR BORICK:  I think it does mean this: that there is in the

Family Court a deep division between the judges

across Australia as to what is the proper test to

be applied in this - - -

MASON CJ:  Well, we can only go on this judgment. We can only

go on the evidence and what is said in judgment.

MR BORICK:  Yes. I cannot put my position in any other way.

That is the application for special leave and that is the basis for it.

MASON CJ:  No.

MR BORICK:  I would perhaps just conclude by pointing out that Justice Gunn did refer to it as a harsh result and would invite Your Honours to, in this circumstance,

to look at the plight of this father where there

has been no finding against him as to sexual abuse

at all and a very weak case but because a trial

judge, one judge, had a lingering doubt, he has not seen his child for something like 15 months

now.

MASON CJ: Yes. Mr Haines, who are you supporting in this

particular - - -

MR HAINES:  I will be supporting Mr Mullighan, if Your Honour

pleases.

AlTll/7/SH 7 26/8/88

MASON CJ: 

Yes. Mr Mullighan?

MR MULLIGHAN: 

Your Honour, if the Court pleases, in our

submission, there is no conflict of authority
or uncertainty in the law. Therefore, it is not

a matter which requires the granting of special

leave.

The judgments in the cases, when properly

understood, do not manifest an error of principle

or in approach or a divergence of judicial opinion.

We submit this: that both the trial judge and all

of the judges in the Full Court properly identified
the onus of proof and the standard of proof; that

they properly identified this issue, that the issue

was not so much whether a party has been guilty of

impropriety but what is the appropriate order to

make in the best interests of the child,given the

particular principles in the FAMILY LAW ACT in

section 43(c),the need to protect the rights of

children and to promote their welfare and in

section 60(d) to have regard to the welfare of the

child as the paramount consideration.

I put my argument as briefly as I can. What

the trial judge did was to adopt an approach	which
is at page 20 of the appeal book and what he	had
to do and said he had to do was:

To evaluate the evidence adduced and decide

whether or not ..... on the balance of

probabilities that the husband has sexually

abused the child.

And if he was so satisfied:

I would discharge the order for access.

He then went on to say that:

If I am not satisfied on the balance of

probabilities that the husband sexually

abused the child -

And I quote:

But I am not sure that he did not do so, in other words if I have lingering doubts, it

is my view that I should discharge the order

for access on the ground that no risk or

possible risk should be taken which would

endanger the welfare of the child.

And lastly:

If I am satisfied that the husband did not sexually abuse the child it would be necessary

AlTll/8/SH 8 26/8/88

not only to confirm the order for access
but also to consider the husband's application

for custody.

What His Honour correctly addressed to himself was

the issue of the nature of the proceedings, that is,

what is the best order that can be made in the

circumstances of the case for the child and, in

our submission, leaving aside for the moment the

words "lingering doubt" which have assumed some

importance in the mind of Chief Justice Nicholson,

His Honour's approach was neither remarkable nor

in error.

It is important, in our submission, in the context of the case to bear in mind that His Honour

was fundamentally exercising a discretion and what

he did then was to make certain findings or come

to certain conclusions. He decided that he could

not find the allegation proved to the required

standard. He found that, on the aggregate of the

evidence - this is at page 23 - that it was such

as to raise in his mind:

The possibility that the child has been

sexually abused by the husband.

So there was a, if you like, finding that he had

made that there was a possibility that the child

had been sexually abused by the husband. It was

not so much a matter of "a lingering doubt" but,

after reviewing all of the evidence for the reasons

which he sets out, a finding of a possibility.

BRENNAN J: Well, it is really coming back to the tests which he posited at page 20, it is not, and that is that

he was not sure that he did not do so.

MR MULLIGHAN:  Yes.

BRENNAN J: And, for you to retain the order as it presently

stands, you must support that criterion.

MR MULLIGHAN:  Yes.

BRENNAN J: And you seek to do so, I hope.

MR MULLIGHAN:  Yes, I do, Your Honour, because, in a sense,

what he has done is to find and categorize the

circumstances of the apprehended risk,that to

allow access in these circumstances could not

promote the welfare of the child in view of the

finding that he had made that the allegations

may possibly have occurred and that is what is

meant by the expression "may be at risk".

AlTll/9/SH 9 26/8/88

WILSON J:  But you would recognize, would you not, that

that is clearly a different test to that propounded

by Chief Justice Nicholson?

MR MULLIGHAN: Well, with rP-spect, Your Honour, I would contend

that it is not; that what the Chief Justice is

saying is that, in effect, if the finding cannot be

made that it occurred to the required standard,

there may be circumstances on the evidence where a

child can be at risk. All he is saying is that

there should be a quantification of that risk and
the risk must be a real one or a substantial one

or some other expression. I invite Your Honours to

this conclusion: that when you consider the

trial judge's judgment, and the way in which the majority has dealt with it, that really the approach of the trial judge has been the same as

is articulated by the Chief Justice. There is not

any substantial difference in principle at all.

In other words, nobody is saying that is you cannot find the allegation proved to the required

standard, that is the end of the matter. Nobody suggests that. There must then be an evaluation

or, first of all, an assessment of whether there is

a risk and then an evaluation of that risk which,

we would contend is the plain common sense of the

matter.

Your Honours, the trial judge seems to, at least, have taken into account these matters. First

of all, he made a finding - this is at page 23 - that

Miss Fitzgerald was an experienced trained psychologist

with considerable experience in this area and who had

had much contact with the child, many interviews· with

the child, and that she was satisfied that the child

had been sexually abused and that the husband was

the perpetrator and there was no challenge, as

His Honour points, to her method of work and

although he correctly points out that that does not

lead him to the same finding, it is a fact that he

has found upo.n which he bases an assessment of

risk and the second thing, of course, is that

His Honour was aware of the nature of the sexual

abuse which is described briefly at pages 17 and 18
of the transcript which can be said to be abuse of

a gross or serious kind and, therefore, there must

always be the need to protect the child from such

conduct.

So, His Honour, which the majority has accepted,

has proceeded on the basis that, first of all, he
has made the finding that it could have occurred

or possibly occurred. Secondly, that an experienced

professional is satisfied that it occurred and,

thirdly, that it is very serious conduct.

AlTll/10/SH 10 26/8/88

BRENNAN J:  When you say he had made a finding that it could

have occurred, that is really another way of saying

that His Honour expressed his own state of mind.

It is not a finding of any fact that occurred

anteriorly, is it?

MR MULLIGHAN:  Perhaps not, Your Honour, but it has to be

contrasted with the situation of him being satisfied

that it could not have occurred. That it not only

did not occurred, but could not have occurred.

BRENNAN J: Yes. Well, now, going back again to his criterion

on page 20, his hypothesis is, ·"Unless I can be

satisfied of the negative, there should be no

access".

MR MULLIGHAN:  Well, in my submission, that really is not what he

is saying. What he is saying is that, after reviewing

all the evidence in the case; no doubt, seeing the
parties, taking into account the evidence of the
witnesses, his conclusions are such that there is a
risk, not just necessarily relating to his finding

or his inability to find sexual abuse, and that

must be, in our submission, a proper approach when

exercising such an importantjurisdiction about a

young child.

WILSON J: The difficulty is, is it not though, that he

contemplates the mere possibility of a risk as

sufficient, and others·, and as Chief Justice Nicholson

propounds, a real or substantial risk. Surely there

is a difference between those two standards.

MR MULLIGHAN:  There is a difference between those concepts

but, in my submission, that is not what the trial judge did and the Chief Justice has, with respect

to him, incorrectly stated what Mr Justice Gunn
said. What Mr Justice Gunn said is there is a

possibility that this occurred, not that there is a possibility that the child is at risk. Bearing

in mind that there is a possibility that it occurred,

and the other matters that I have mentioned, he then

concluded, as the majority says, on the balance of

probabilities that the child was at risk.

WILSON J: Well, he seems to be quite positive on page 20,

before he goes on with the further examination of

the evidence, that he:

Should discharge the order for access on

the ground that no risk or possible risk

should be taken which would endanger the

welfare of the child.

MR MULLIGHAN:  But towards the end of the judgment, Your Honour,

it seems clear that he has - page 23, at the bottom

and page 24 - concluded that there is a risk and

AlTll/11/SH 11 26/8/88

that it is his duty, as far as possible, to

eliminate it.

WILSON J: Yes, I may have placed too much reliance on

page 20.

MR MULLIGHAN:  So, in short, what we say is that the primary

principles as to standard of proof and as to

assessment of a risk have been correctly stated

and there is no real difference between what any

of Their Honours are saying on those two matters.

Now, just perhaps if I could put a few

submissions to Your Honours in relation to the

judgment of the Chief Justice. He says that the

risk must be quantified and must be substantial

or real. In our submission, it cannot be said

that the trial judge has not done that; that he

has not, first of all, identified the risk or

quantified it and assessed it and has not found it

to be substantial or real because of the reasons

that I have previously mentioned, his finding that

it may have occurred or possibly occurred, his

acceptance of the opinion of the experienced

person and the very nature of the abuse itself.

Secondly, the Chief Justice says, at page 28:

Similarly, in my view, the mere

possibility that the granting of an access

order will expose a child to sexual abuse, is not sufficient to warrant the discharge of an access order and must be qualified.

There must be a real or substantial risk -

et cetera. What His Honour has found and what the

majority said he had done was to reach the conclusion

that there was a risk on the balance of probabilities.

So there is a difference between the one particular

assessment or finding that the abuse possibly occurred

and the step of determining that there was a risk and

the second of those matters was found by the

appropriate standard and there was abundant evidence

for that purpose.

In our submission, the argument that unless

this matter is considered by the High Court there

will be undertainty in the Family Court and in other

Tll	courts exercising similar jurisdictions is untenable.
The questions of principle have::been properly articulated. Each case must be decided on its facts and each judge making a decision must exercise his
discretion properly on those facts. There is,
unless he has mistaken principle which is not
demonstrated here, no basis in our submission for a review by this Court and Chief Justice Nicholson's

AlT12/l/SH 12 26/8/88

observation that in every case there will be a

lingering doubt or some form of risk, in our

respectful submission, is not correct because

each case - that question of risk or question

of the extent of doubt must be determined in

each case as a factual question and it does

not follow that if the majority judgment stands

that there will be some particular problem arising

in cases of this nature.	They were the matters
that I wished to put.

MASON CJ: Yes, thank you, Mr Mullighan. Yes, Mr Haines.

MR HAINES: I have nothing further to add to what my friend,

Mr Mullighan, has opened, if Your Honour

pleases.

MASON CJ: Yes. Yes, Mr Borick.

MR BORICK:  Your Honour, what Mr Justice Gunn was really

doing was exercising his duty in such a way that

he should have, as he said at page 24 -

MASON CJ:	We need not trouble you further, Mr Barick.
MR BORICK:	Thank you.
MASON CJ:	The Court will grant special to appeal in this

matter.

AT 2.32 PM THE MATTER WAS ADJOURNED SINE DIE

AlT12/2/SH 13 26/8/88