M v M; B v B

[1988] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A34 of 1988

B e t w e e n -

M

Appellant

and

M

Respondent

Office of the Registry

Adelaide No A31 of 1988

B e t w e e n -

B

Appellant

and

B

Respondent

M(2)

MASON CJ
BRENNAN J
DAWSON J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 OCTOBER 1988, AT 10.17AM,

Copyright in the High Court of Australia

C2Tl/l/RB 1 12/10/88

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

MISS J. EKIN-SMYTH. and MR D. W. MARTIN, for the

appellant, M, and for the proposed appellant, B

and I would think that both matters could be argued

together. They cover much the same issues - there

are some minor differences in Band if that is

convenient with the Court I will treat both matters as running

together. (instructed by,. Playfords anc1 }?a'..<.er O'Loughlin)

MASON CJ: Yes.	Is that agreeable to you, Mr Tilmouth?
MRS. TILMOUTH: Yes.	If the Court pleases, I appear with

my learned friend, MR R.A. RICHARDS, for the respondents

in both matters and I consent to that course of action.

(instructed by David,_Peacoc1< and R.J. Cole & Partners)

MASON CJ:	Yes, Mr Borick.
MR BORICK:	Your Honour, I hand up my outline of argument.

If the Court pleases, I would approach the matter

in five stages. The first is the submission that in fact both of these men have been denied access to their children on the basis of a lingering

doubt or, at best, a possibility and that that

is not a sufficient basis to suspend access.

If the Court agrees with that submission then

it would have to send the matter back to the

Family Court to deal with again and at that stage

the court would need to know what are the appropriate

tests, so I see that as the second stage.	Running
throughout it is the question of whether there	,..
is, in fact, a presumption in favour of the parent/ child relationship. I have indicated in my
outline of argument that the problem may well
be really an evidentiary one and the question
arises: are the ordinary and accepted rules of
evidence to be applied? And, finally, the issue
as to the appropriate venue for the resolution
of the issues, that being a ~atter re~erred

to in some of the recent South Australian cases
and, in particular, in these two. Turning to the first issue, that is, whether

or not in each instance the trial judge suspended

access because of a lingering doubt. May I take

you first to the judgment of Justice Gun in the

M matter at page 101 where His Honour said - it

is about the middle of the page:

(Continued on page 3)

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MR BORICK (continuing):

As I see it, my task is to evaluate

the evidence adduced and decide whether

or not I am satisfied on the balance of

probabilities that the husband has

sexually abused the child. If I am
satisfied that the husband did sexually
abuse the child, I would discharge the
order for access. '!f I am not satisfied

on the balance of probabilities that the

husband has sexually abused the child

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."

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

for access but also to consider the

husband's application for custody.

And, it isiey-submission that, looked at overall,

those remarks of His Honour's permeated his

judgment and, in fact, although nothing was

established, although all that existed was a

suspicion, if that, because that engendered in

the mind of the trial judge what he described

as a lingering doubt the husband was refused

access to his child.

Justice Nicholson, at page 107 of the transcript,

in the middle paragraph, referred to the test proposed

by the majority. He said:

I respectfully differ from their Honours, however, in their statement that if. a trial

judge considers, upon the balance of

probabilities, that the welfare of the child

may be endangered or there is a risk that the

child may be physically, sexually or

emotionally harmed if access were to occur,
then the Judge may on that basis alone,
suspend access.

(Continued on page 4)

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MR BORICK (continuing):

This, in my view, expresses the test much

too broadly. In the instant case the learned

trial judge was not satisfied on the balance

of probabilities that sexual abuse had

occurred. There were no other factors other

than the allegation of sexual abuse -

at the judgment of Chief Justice Nicholson in B. 1 s Can I just interpose one remark here - when you look

case, that probably is the major difference because,

at that point in his judgment he refers to the fact

that there were other factors and I will refer to those

later. Continuing on, His Honour said:

There were no other factors other than the

allegation of sexual abuse that could have

caused him to suspend access. He expressed

himself in terms of "lingering doubts" as to

whether abuse had occurred and concluded that

if he had such lingering doubts, 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.

In my opinion, it would be a ra~e case

indeed where an allegation of child sexual

abuse was made where a Judge would not be left

with such lingering doubts. Similarly, it

would be a rare case where the Judge would

conclude that there· was risk that sexual abuse

might occur during access even though he had

not been satisfied that the allegation had

been made out.

And His Honour then set out what he considered to be

the test suggesting that there should be a quantification of the

risk, a real or substantial risk must exist.and,

with respect, we adopt the judgment of the

Chief Justice as our argument and the dangers that

he refers to, namely, as soon as an allegation is

made, that there will always be a suspicion left,

it would mean there must always be a lingering doubt

which means the real risk of it will occur, and as

soon as the allegation is made a parent will be

separated from his or her child.

(Continuing on page 5)

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MR BORICK (continuing):  The majority, in their judgment,

described the test in this way - and it starts

at page 131. At the top of the page they refer

to the.fact that Justice Gun has:

observed that in an ordinary civil case it would

follow that as the wife's allegations of

sexual abuse had not been proved then her

application to suspend or discharge access

would be dismissed.

His Honour, however, concluded that the

case before him was not, to use his expression

"an ordinary civil case" because in his view

the paramount consideration was the welfare

of the child who was not a party to the

proceedings. His Honour then expressed the

view that he had a duty, having regard to the

interests of the child to make orders which,

as far as possible, eliminate the risk either

that the child may be sexually abused or that

opinion thus stated, his Honour found it necessary to discharge the order for access.

the welfare of the child may be endangered.

Their Honours there do not refer to the use of

the expression of a trial judge "lingering doubt"

but referred rather to the elimination of risk.

Their Honours then referred to the well-known

test in BRIGINSHAW, and at page 133 expressed the

opinion that they were:

of the view as a matter of general principle,
that in assessing whether or not there is

risk to a child if access were to occur or

risk that the welfare of a child could be

endangered in the event of access, the
ordinary civil standard of proof must be

applied.

(Continued on page 6)

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MR BORICK (continuing):

If a trial judge considers, upon the balance

of probabilities, that the welfare of a

child may be endangered or theie is a risk

that a child may be physically, sexually

or emotionally harmed if access were to

occur, then a trial judge may, in our view,

suspend access.

In the ca~e of B,'if I may take:You~ :Honours

to these passages dealing with lingering doubt,

in the judgment of Justice Burton, which appears

at page 933 of book 5. Your Honours, this

judgment was delivered on the ninth day of December

1987; the judgment in M was delivered on

23 September 1987,	approximately two months
before.

TOOHEY J:	Mr Borick, just before you leave the case of
M V M, how much difference is there between
the approach taken by the majority judges and
the approach taken by the.Chief Justice in
dissent? Both speak of the welfare of the child being at risk. Is the. only difference in the quantification of that risk, as suggested
by the Chief Justice?
MR BORICK:	As I see it, that is the fundamental difference.

His Honour the Chief Justice is saying there

must be a real or substantial risk and that

is an expression which appears in many of the

cases.

(Continued on page 7)

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TOOHEY J: But none of the members of the Full Court have

used the expression "lingering doubt" have they,

at least I do not think they have - not by way

of adoption?

MR BORICK:  Not in M V M they do not. They do not even

mention the expression "lingering doubt".

TOOHEY J:  I ask you those questions because at page 133

in the passage that you took us to, the majority

said that the :

balance of probabilities, that the	trial judge considers, upon the
welfare of a child may be endangered
or there is a risk -

and so on and then access may suspended. The

Chief Justice at page 109 speaks of the mere

possibility being insufficient:

There must be a real or substantial

· risk.

So in the end, it seems that that is the area

of disagreement i£ in fac~ it is really disagreement?

MR BORICK: In my submission, there is a real disagreement but

as I develop my submission in the case I will be

suggesting that our real problem is how is a

trial judge to define what amounts to a risk, whether

you call it a real and substantial risk or a risk.

Because_ depending upon the judge's point of view, he

or she may take the view that the expression of

opinion of a clinical psychologist has come to a

belief that the child has been sexually abused

is in itself sufficient to be a real risk, whereas

another judge might say, "No, I am not going to

regard that as a real risk and it - - -

TOOHEY J: But that is a matter of application of the test

to the facts, but in terms of formulating the test

the difference, at least in the case of M V M,

seems to be, in the Full Court, that the Chief Justice

would attach some qualifying adjective like "real"

or "substantial" but all members of tl:le court spoke

in terms of "risk".

MR BORICK:  Yes. I divided the area up into two issues. The

first is where there is an allegation of sexual

abuse, what is the standard of proof on that issue.

And that seems to be on the balance of

probabilities with possibly a BRIGI~SHAW overlay

·about it.

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M(2)

MR BORICK (continuing): Then,when you come to the second

issue, the test appears to be and is described

in different ways: a real or substantial risk

based on cogent evidence and other such expressions;

whether there is physical, moral or psychological

jeopardy of the child; a real possibility; a

compelling civil standard; a reasonable belief in
risk to the child; an element of risk; all these
expressions appear but, overall, the authorities

would tend to suggest that it is as the

Chief Justice says., it must be a real or substantial

risk and our submission is that that is a

fundamentally different test and far more

difficult to utilize against a person who has

been alleged to be a sexual abuser than just

a risk, as described by the majority and it is

a risk, not just of sexual abuse to the child

but of physical, social or emotional harm.	If you
could bring that down to a risk of emotional

harm then it would be extremely easy to see how many, many people will be deprived of access to

their children simply because there is a suggestion
of emotional harm, whatever that expression means,

but a risk of it. In our submission, the use of

the expression "real or substantial" does clearly

- or it was clearly distinguishable from just talking about a risk.

TOOHEY J: Well, if the majority in the case of M V M had

attached that qualification to the statement on

page 133, namely, that there is a real or substantial

risk that a child may be physically, sexually or

emotionally harmed, would you have any quarrel with

that statement?

MR BORICK:  At that stage, no. I would say that they are

saying exactly the same thing as the Chief Justice

is saying, "a real or substantial risk" but it

would certainly eliminate the possibility of a

lingering doubt coming under the head of a risk.

(Continued on page 9)

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M(2)

MR BORICK (continuing):  Perhaps I should have made this

point earlier in my answer to your questions.

The fact that the majority think that the test

indicate that they are accepting that a 11 lingering is satisfied by merely a risk would seem to

doubt" will amount to a risk, or a possibility, or

a suspicion will amount to a risk, whereas if they

had adopted the test proposed by the Chief Justice

they would have had to go back and look at a

lingering doubt, a suspicion, or a possibility

and say, "Now, does that fit within real and

substantial?" and, in our submission, the answer

would have to be no and the appeal would then

have been allowed.

BRENNAN J:  Is your proposition that unless the BRIGINSHAW

test is satisfied in terms of the evidence, the
substratum is not present for the finding of a

risk which requires the cancellation of access?

MR BORICK:	I propose to make that submission, yes.
BRENNAN J:	That regards the Court's jurisdiction very much

as a jurisdiction to resolve a contest between the

husband and wife, does it not?

MR BORICK:  No. Many other factors will come into play

in the issue of whether custody or access is granted

and evidence that is relevant to the issue of

whether or not sexual abuse has occurred may still
be relevant on the ultimate issue as to custody

or access, for example, sleeping conditions in the house, the impact upon the whole family of

what has occurred, and there are many references

in the case to that fact. But my submission is

limited to this, that if an allegation of serious
criminal misconduct is made in the course of a
custody or access dispute and it is not establishe~
then it ought to play no part, in itself, in the

issue as to who should have custody or access.

DAWSON J: 

Is there some ultimate issue which has to be

determined according to some standard of proof,
balance of probabilities or something else?

MR BORICK: 

Well, as to the first issue there is an allegation - - -

DAWSON J: 

No, I am asking is there an ultimate issue?

MR BORICK: 

The ultimate issue seems to be a real - well,

my submission is, a real or substantial risk.

DAWSON J:  No, that cannot be the ultimate issue. Ultimately

what is to be decided is whether custody is to be

awarded or not. Is there some issue that determines

that that one can identify?

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MR BORICK:  Well, at that point all of the matters involving

that family and that child will obviously have

to be taken into account, including the

circumstances of both parents, the· circumstances

of the children and - - -

DAWSON J: 

They do not have to be determined on the balance

of probabilities or any particular standard of
proof, do they?

MR BORICK: 

No.

DAWSON J: 

Well, is that not the answer?

MR BORICK: 

With respect, I would separate an allegation

of serious criminal misconduct.

DAWSON J:	Why?
MR BORICK:	Because of the very nature of .that allegation.

It is of such importance that if the allegation is made it is ma.de without real foundation. That is

going to affect the life of that family from then

on in a variety of ways, firstly, the impact upon

the mother and other relatives and the children

because of the fact that it is made and the consequence

of that sort of issue being brought to bear on a family, in my submission, are of such importance

that it ought to be dealt with differently to

the other issues involved in custody or access.

BRENNAN J:	How do you make that fit with the provisions of section 60D?
MR BORICK:	Because of the factors' ,.that I have just mentioned,

Your Honour, that the interests of the children

would, in my submission, be gravely affected if
an unsubstantiated allegation is allowed to persist

on the basis of inexact proof and indefinite testimony because if a father - in these two

cases - is removed from his child on the basis

of a possibility or a suspicion, that must then
live with that family for the rest of its - well,

certainly not necessarily for the rest of its time,

but it will certainly live with it and dominate it

for an important period of the life of the family.

(Continued on page 11)

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DAWSON J:  Is it really possible. to talk in terms of standards

of proof? Is it not really a discretionary

judgment which is given at the end, a number of

factors playing upon the exercise of discretion?

That does not necessarily gainsay what you have said, but I just would like to know what the problem was.

It is not like establishing a criminal offence, for instance, the process is quite different.

MR BORICK:	The process is obviously quite different.
DAWSON J:	It is not even like establishing negligence, the process is quite different.
MR BORICK:	I must come back to my submission that there has got to be the first stage. There must be some rule
by which judges assess an allegation of serious
criminal misconduct in a custody or access matter.
basis. It must be decided.  It just cannot be left on some sort of discretionary

BRENNAN J:  Why? A parent who has information that an uncle

may be sexually abusing a child does not conduct a

royal commission into it.

MR BORICK:  I am sorry, Your Honour ..

RENNAN J: It does not conduct a royal commission into it or

decide it by some set standard.	The parent forms a
view and decides what is in the child's welfare.	Why
does not the court do the same?

MR BORICK:  Because, to take Your Honour's example of a

suggestion that an uncle or the next-door neighbour
or the dirty old man over the street has - then, in

those circumstances the family can decide what to do.

But that surely must be distinguished from a bitter

and acrimonious custody access issue where, as can

happen in these matters, an allegation is made

mischievously for the sole purpose of influencing

the court.

BRENNAN J:  Why does not the court then adopt the role of the

prudent guardian and assess the extent of the risk?

MR BORICK:	Because of the enormous difficulty associated with the evidence that is presented in these cases. One
immediately sees a distinction between a case where
there is an allegation of direct sexual interference with a three- or four-year old child if, in fact, there is evidence clearly showing that the child has
been physically molested, and the same where the
child has been physically assaulted, if there are
bruises on the child.  In those cirucmstances, the
court has got a relatively easy task because it may be that it can just say, well, look, both parents
are to blame for what has happened to this small
child,  for whoever did it, without necessarily
finding who did it, and for the other parent in

C2T9/l/VH 11 12/10/88

letting it happen, because it is a most extraordinary

thing to happen. That Situationhas to be sharply

distinguished when the sole evidence is the

opinion of a psychologist, based on other people's

views, hearsay and speculative - what are called

scientific perceptions - they are not really
scientific, but speculative ideas about how children

think,behave and other such matters,including the

concept that is bandied around in these cases, that

children never lie when they are talking about

sexual matters or allegations of sexual abuse against

them. Of course, there is a statement often made

but no empirical evidence to support it whatsoever.

So, if one distinguishes between cases where

there is some clear - I will just use the word,

corroboration •....

but some clear proof of sexual, physical or emotional

abuse, as distinct to cases where there is no such

proof, then it is not possible, in my submission, to leave it at some discretionary level, to leave it with the court adopting the role of the protective

guardian; the court must decide the allegation.

The case is, as I have suggested, if it is established

that the allegation is made mischievously for an evil

purpose by say, the wife, against the husband to

suit her own purposes, then that ought to react

very strongly against her in the issue of custody.

(Continued on page 13)

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MR BORICK (continuing):  So those sorts of things have

to be decided. Once the allegation is there -

it is an allegation of serious criminal

misconduct - the value of the evidence that

is being led to support it must be assessed

and it must be assessed according to some legal

standard. That standard suggested by the cases

is on the balance of probabilities, or with

a BRIGINSHAW-type idea but, with respect, I

do not think it matters much.

DAWSON J:	But there was an issue in BRIGINSHAW, was there
not?  BRIGINSHAW was adultery, was it1
MR BORICK:	Yes ..
DAWSON J:	So that there was an issue.
MR BORICK:	But taking into account the gravity of the

circumstances.

DAWSON J:	Yes, but there was an issue in that case to
be determined?
MR BORICK:	Yes.
TOOHEY J:	Mr Borick, what I have difficulty about is this:
if there is an allegation of sexual interference
with a small child and having heard evidence, from whatever sources, the judge concludes that there has been such intereference but is unable to say who was responsible for it, or perhaps is unable to even conclude that there has been that sort of interference, but nevertheless remains highly
suspicious that there has been some such conduct, and let us say the father has been responsible, is it
not then open to the judge to go on to say, "Well,
I can't really conclude more than that my
suspicions are aroused, but I think that is enough in the circumstances not to put this child to a risk that I think is attendant upon the grant
of access."?
MR BORICK:	I think in what Your Honour has put to me there

would there be, on.the ,evidence, a real risk

established.

TOOHEY J:  Yes, but you seem to be building into the notion

of risk, as it were, a pre-condition to finding

that there is a risk,a finding that there has been

conduct attributable to the parent whose access

is denied.

MR BORICK:	Yes.
TOOHEY J:	But what I am putting to you is a situation in which the court does not feel able to reach a

C2Tl 0/1 / JM	13	12/10/88
M(2)

finding, either on the balance of probabilities,

or any other relevant test, but nevertheless

concludes that the evidence is such as to

suggest that there is a risk in this child

being - or rather, the particular parent being

given access to that child. It does not involve

findings other than the finding, if you like,

that there is a risk.

MR BORICK: Yes. Well, if - and, Your Honour is

just talkingabout.,. not emotional or physical risk

to the child, but sexual.

TOOHEY J: Well, I take that one because it is perhaps

more - it may be easier of determination.

Could I just put it to you another way?	You
seem to be saying on the one hand that the

Chief Justice's test is to be preferred, with

its notion of real, serious risk, but at the

same time to be suggesting that that conclusion

cannot be reached unless first there has been

a positive finding based on some relevant

standard of proof, that there has been actual

intereference with the child, or some other conduct

which would justify depriving the parent of access.

MR BORICK:  In such a difficult - I may be completely wrong

in my approach, but my submission to the Court

is that the court ought not to walk away from

making a decision once an allegation of serious

criminal misconduct and a serious criminal attack upon

a child is made. It ought to resolve it.

(Continued on page 15)

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MR BORICK (continuin~):  That does not mean if it resolves

it to a point where it says, "I cannot be satisfied

that the wife's allegation, or whoever it is who

makes the allegation, that the father has sexually

interfered with a child - I cannot be satisifed

of that", that does not mean it is totally eliminated

from the case. If at the end he comes to the

conclusion that there is still a risk to this

child and believes that there is a real possibility

the child has suffered some form of sexual attack
then he has got to look at the question first
of custody and he might decide in those circumstances
that neither parent should have custody because

both have put the child at risk because he does

not know who did it. He might have a situation,

for example, where both parents are blaming the

other and he cannot decide. That circumstance

might lead to a judge concluding: "Well, I am
not going to let these people have their children.
We will put them under the care and custody of
the State". If he decides to give it in those
circumstances to one of the parents, let us assume

the mother for ease of argument, he then has to

come to the next question of access.	Both these
cases, of course, are about access.	Now the risk
must be assessed in a different light.	Take ordinary

access in the home and he may well be satisfied,

although he has got this feeling of risk, that

the father can establish to his satisfaction that

there will be relatives, grandparents or other

people around - that might be a term and condition

of the access order - and he covers it in that

way and the risk will assume a different proportion

at access stage as distinct to custody stage.

Then at the next level there is the question

of supervised access. Surely there can. be no risk

at all if its an access that is supervised by

a Family Court counsellor. Some of the Canadian

cases suggest that supervised access should always

be allowed because supervised access is the way

to avoid the problem altogether because then the

court is not having to make a real decision, it

gets around it a 1 together.	I just pause there to remind
the	Court that the appeal, as I would submit it,

is against the finding of both trial judges based

on a lingering doubt to remove the father from

the child altogether·. Both cases are not simply

about a matter of affixing standards but that
to look at the issue as to whether or not both

of these parents have been denied access to their

child because of a suspicion or a lingering doubt

and irrespective of what the Full Court said, if that

is what has happened then this Court should interfere

and that is why in my preamble to my argument I say

that is the first issue - to look at the position

of both these parents.

C2Tll/l/AC 15 12/10/88

DAWSON J: Is not the real test whether there is sufficient

risk to justify the refusal of access or the granting

of access in a qualified way?

MR BORICK:  With respect, I would argue it is -

DAWSON J: In other words, whether there is sufficient risk

to say that the welfare of the child requires

~he refusal of access or the qualifying of access

1n some way.

MR BORICK:  But that will always raise the question with

different judges having different views about

what is a risk - - -

DAWSON J: If it is a discretionary judgment that is necessarily

so.

MR BORICK: I would submit that this Court should look at

the circumstances of these two cases where in

each instance a suspicion, and it can be no more

than that because they talk in terms of a lingering doubt - but that a suspicion has resulted in access

being denied altogether and I must keep coming

back to that. It is not as though we are dealing

with this problem at a custody level, we are dealing
with it at a position where both fathers are denied

their right to even see their child and goodness

knows when -

DAWSON J: It might be true in the individual case to say

there was not sufficient evidence for the judge

to come to the conclusion that there was a sufficient

risk to justif½ in order to ensure the welfare

of the child, the refusal of access. But that

is just a question of evidence.

(Continued on page 17)

C2Tll/2/AC 16 12/10/88

MR BORICK:  I would rely strongly upon the judgment of the

Chief Justice where he said, if a suspicion or

a lingering doubt is sufficient, then that is

always going to exist once an allegation is made

and that in almost every instance if these two
cases are followed the judges of the Family Court
will have to deny access. And that is the

significance of the - - -

MASON CJ: But that is not correct,is it? As I understand

reject. the 'lingering doubt"test? the majority1 as well as the Chief Justice, they

MR BORICK:	No, with respect, I do not -
MASON CJ:	If you look at page 44 of the B application,

half-way down the page:

Although, as Ms Pyke for the

husband correctly submitted, no

"lingering doubt" test exists in law.

Now is not that a clear rejection of the"lingering doubt"test?

MR BORICK:  No, Your Honour, because if you look at the

know precisely what they have in fact done with	judgment overall, it is extremely difficult to
the'lingering doubt' test, because at the end of the
day they are faced with the fact that the trial
judge resolved the question of access on a lingering
doubt. May I just take Your Honour - -

MASON CJ:  But if you look at the earlier passage on

page 44, line 4:

In his final analysis of the facts

the learned trial judge suspended

access for the following reasons:-

(a) The lingering doubt which

his Honour had as to whether or not the husband had molested the child.

And then there follows at the end of the five

doubt"test. And if you go over·on to page 45, you	listed matters, the rejection of the"lingering
see a statement that seems to accord very much with
Chief Justice Nicholson's view:

In the present case -

this is line 4 -

the tenor of his Honour's reasons

for judgment leads us to conclude

C2Tl2/l/SR	17	12/10/88
M(2)

that he determined as a matter of

practical reality, that there was a

risk to the child of sexual molestation.

Now if you take that as correctly reflecting the

view of the majority, there is no difference between

that approach and Chief Justice Nicholson's approach?

MR BORICK:	The issue arises as to what has happened then to the trial judge's lingering doubt. And may I
just take Your Honours back to two pages earlier
where the Court refers to the two standards of
proof.  The Court refers to BRIGINSHAW's case and
then says:

In our view, the finding as to whether a child has or has not been abused and the finding as to whether a

child will be at risk in the future if

access occurs, must be arrived at
following the application of the civil

standard of proof.

Now at that point Their !-Ionours are saying that both

issues, that is the issue as to whether or not
the allegation has been proved is to be decided
on the balance of probabilities and the issue
as to whether accesss should be granted is to

be resolved on the balance of probabilities.

(Continued on page 19)

C2Tl2/2/SR	18	12/10/88
M(2)

MR BORICK (continuing): Their Honours refer to the passage

Your Honour the Chief Justice has just put to me,

the final analysis, and one of the factors now

being brought into account on the balance of
probabilities' test is the question of the

lingering doubt and my submission is that if,

in fact, the lingering doubt still remains as a

keynote feature of the decision, on the balance

of probabilities on the question of access, then what Their Honours are really saying is that the

"lingering doubt'test posed by Justice Burton is
still well and truly alive even though they have

· said it does not exist in law, but it exists in

fact.

TOOHEY J:  Mr Borick - I am sorry, you finish what you were

going to say.

MR BORICK:	Yes, I was going to say they may have said it does not exist in law but, in my submission, it is well and truly existing in fact in what has
happened here.

TOOHEY J: Could I just take you back to the question I put

to you some time ago and put it, perhaps, in a

slightly different way. Start with a proposition,

I suppose, that in the ordinary case a parent

to whom custody has not been granted ought not

be denied access. If the parent to whom custody

has been granted makes an allegation against the

other parent serious enough to warrant withholding

access to that parent, whether it be by way of
sexual interference with the child or something

else, I am still not clear whether you are saying that the judge has, first, to arrive at some sort

of finding in relation to that allegation and, if
you are saying that, according to what standard

of proof, or whether you are accepting that it is

unnecessary for the judge to make any sort of

positive finding b.lt it is nevertheless, open to the judge to conclude, having regard to what he	or she has heard, that there is a risk attached	to granting custody to that parent at that
particular time.

MR BORICK: In my submission, the - - -

TOOHEY J:  Could I just, perhaps, add one rider to it. I

put to one side the sort of cases where it is

obvious that the allegation has been made mischievously

or entirely without foundation because that,

presumably, would be rejected out of hand anyhow.

MR BORICK:  But it is because of risks of that sort that

the issue just cannot be allowed to float. In my submission, it must be decided and that the proper test is the balance of probabilities but

I am not saying - - -

C2Tl3/l/SH 19 12/10/88

M(2)
TOOHEY J: Yes, but what must be decided? I still cannot

get clear what it is that you are saying the

judge must decide?

MR BORICK:  Whether or not an allegation of serious criminal

misconduct has been made out.

BRENNAN J: That means that the risk to the child that that

allegation was true must be borne by the child

because the court cannot give effect to it since

it must make a finding on some other standard.

MR BORICK:  I am, in my submission, sharply distinguishing

between the two issues, one as to where there has

been an allegation of this sort, as to the standard

of proof and, secondly, as to the standards

applicable to issues of custody and access and I

am not saying that evidence relevant to that first

issue cannot be brought back into play on the

second issue but they are two quite distinct

issues to be resolved.

BRENNAN J: Let me understand how it might be brought back

into play. If the risk to the child is a risk

that the allegation might be true, not that

something might happen, the allegation having

been proved, but the risk is that the allegation

might be true. Is your proposition that the cJurt

cannot act adversely to the party against whom the

allegation is made and that the risk must be borne

accordingly by the child?

(Continued on page 21)

C2Tl3/2/SH	20	12/10/88 · .
M(2)

MR BORICK:  I would think to use the terminology that the

risk might be there is higher than merely a

suspicion or a lingering doubt.

BRENNAN J:  Well, lingering doubt - I do not wish to

interrupt your response - but lingering doubt

covers, according to Mr Justice Gun in his definition

of the term, that he is not sure that he did not

do so.

MR BORICK:	Yes.
BRENNAN J:	In other words, anything from a very slight

misgiving to the deepest of suspicions falling

short of proof beyond the balance of probabilities?

MR BORICK:  No, I would not envisage that Justice Gun was

putting the bracket that wide. I would envisage he

is really saying that you do not have to quantify

it at all if there is a niggling doubt in the mind,

not even necessarily to the point that it might be

true but that, "I have a suspicion left in my mind",

or whatever expression he would use but not up to

the point of - - -

BRENNAN J:  Perhaps I should not have distracted you by

reference to that phrase. Let us take it that it

might be true, what do you say the judge should do

if having heard all the evidence he says, "It might

be true but I cannot be satisfied on the balance

of probabilities that it is."?

MR BORICK:  Following the approach that I started with, he

then will have.decided the issue on the balance of probabilities but he now brings it back into

play on the question of a risk.	He has got in his
mind the understanding that it might be true.	He
must then assess whether that is a real .and
substantial risk to the child such as to take
away access totally. Now, I must underline the
final w0rds because one can understand it might
be true justifying an order for supervised access

or very strict conditions associated with the

access, but not removing access altogether. That

is the fundamental problem facing this Court, that

here both men have lost access to the child

altogether because of a - I would take it at its

highest - it might be true.

BRENNAN J:  Well, then, coming back to Justice Toohey's

question to you.	You accept that the view of
acted on in the framing of an appropriate order?	a judge that the allegation might be true can be

MR BORICK:  Yes. I accept that, but not to deny access

altogether, which is what has happened here.

C2Tl4/l/MB	21	12/10/88
M(2)

TOOHEY J:  Sorry to interrupt you again, but is that the

appeal that was envisaged by the notice of appeal.

You see, the orders that you seek are that the

appeal be upheld, that the appellant be granted

access to the child - that is at page 142. Now,

what you appear to be saying is that not necessarily

that that result should ensue but that negatively

your client should not be withheld from access, but

that the appropriate order may be some sort of

supervised access or some conditional access?

MR BORICK:  If it is assumed, as Mr Justice Brennan has

put to me, it is a "might be true" situation, I

would suggest that if it goes back to the Family

Court that some sort of conditional access would

be appropriate.

TOOHEY J:  Was that put to the Full Court, that proposition?

(Continued on page 23)

C2Tl4/2/MB	22	12/10/88
M(2)

MR BORICK:  I think it was not argued, although the argument

really centred upon the expression "lingering doubt"

and then the judgment was reserved and I am not

sure, in my memory now, whether there was any detailed
discussion of what sort of supervised or conditional

access.

TOOHEY J:  It is just that the matter is being argued before

us on an access/no access basis, whereas you now

appear to be saying that, in all the circumstances,

an unqualified order for access is something to which

your client might not be entitled assuming that the

Court accepts what you say about the relevant approach.

In those circumstances, I wonder what it is that this

Court is being asked to do?

MR BORICK:  What, as I understand, we are putting to the Court,

firstly, that there has, in fact, been a decision

made here on the basis of ;a suspicion or lingering

doubt and that that was wrong.· What test this Court

directs should apply from there will no doubt affect

the issue of access if the matter is sent back to

the Family Court. It is what I would submit should

happen if the Court accepts the primary argument that,

in fact, access has here been denied on the basis of suspicion, and certainly not asking this Court to fix access in terms if, in fact, it accepts the

submission.

If I may, just to complete the survey of these

judgments	in both of these cases with respect to
the"lingering doubt"test.	May I take Your Honours to

what Mr Justice Burton actually decided, and it is
at page 933 of book 5. Sorry, it is page 17 of the

transcript Your Honours have. What His Honour

Justice Burton said was:

Notwithstanding my inability to make such a

finding there are a number of matters which

cause me considerable disquiet. I take my

duty in deciding this matter to place the

interest of the as the paramount consideration.

I consider this to mean that the Court should

not make an order which might place the child at
risk.	I do not consider that I should place

a child at risk of abuse simply because of the

inadequacy of the methods of investigation of

the complaint. I am of the opinion that if

after considering all the evidence I have some

lingering doubt whther or not the husband has

molested the child that it is my duty to err

on the side of caution and safeguard the child even if this appears to be unjust to a husband

who has not been proved to have molested the

child.

His Honour goes on to point out that - to say that

- access is not the right of the parent.

C2T15/l/VH	23/24	12/10/88
M(2)

MR BORICK (continuing): That means, in my :submission,

when His Honour talks about an order which

might place the child at risk and subsequently

referring to a lingering doubt, he means .that

a lingering doubt means might: that the

child might be at risk.

MASON CJ:	But he goes on to speak of appreciable risk, does he not, in the passage that he quotes from Mr Justice Nygh, which presumably is
the test that he applied? That appears at the foot of page 17, and the top of page 18.

MR BORICK:  Yes. As I read that passage of the judgment,

he moved on to say that:

I

access is not a right of a parent. It is

to be granted when it is shown to be of

value to the child and in its bests

interests.

He was there shifting more to rights and duties

as distinct to the standard applicable.

As I have referred to in my outline of

argument, there is_some, in my submission,
confusion'.as to this issue of whether access

is the right of a parent, or whether it is the right of the child. It is said that access is

not the right of a parent, Yet, on the other
hand, I would submit that looked at overall

the authorities would support a finding that there

must be a presumption that a parent is entitled to

see a child and to have access to a child unless

the parent ha~ by his or her conduc 4 conducted

himself in such a way that he has in affect destroyed

that right.	I tnink I have phrased it at page 7
of my argument in these terms.	I have indicated

on that page that the various rights of parents

and.children are not easily defined. For example,

it is said that access is not a right of a parent,

on the other hand there must be a presumption

unless they have acted in a way which makes	that a parent will be able to see their child
access clearly contrary to the child_ or their presence can be shown to be detrimental. I have suggested that that is the core of the
problem and that if that presumption does in
fact exist, it would be very difficult to set
it aside if all that exists is a suspicion, Therefore, in answer to Your Honour the
Chief Justice, my submission in relation to
what Justice Burton has said at page 17 is that
he is in effect saying overall that a suspicion
or lingering doubt is sufficient to rebut that
presumption, if it exists,. and our submission
is that it is not and that this Court ought
to say so . If this Gour t accepts that ·-

C2Tl 6/1 / JM	25	12/10/88
M(2)

submission, then it would be a matter for

this Court to indicate. to the judges of the

Family Gour½ and other judges, what are the

appropriate tests.

BRENNAN J:  What do you say about the third test which

the Chief Justice outlined, which he did not

adopt, namely, unacceptable risk?

MR BORICK:  Your Honour, the expression has been - whether

you call it real, or substantial, or unacceptable,

I .think probably means much the same thing;

unacceptable, or real and substantial.

(Continued on page 27)

C2T16/2/JM 26 12/10/88

M(2)
BRENNAN J: You would have no difficulties with unacceptable?

MR BORICK:  I am not sure where it is going to lead me

BRENNAN J: That is right, exactly.

MASON CJ:  I was going to say to you, if you have objections

to "sufficient risk", I would have thought it
would follow that you have objections to "unacceptable

risk"?

MR BORICK:  Yes, well I was a bit unguarded there, I was

thinking more in terms of real and substantial

as I came in here, but I would with regard to

"unacceptable 11 I think I would be inclined to ·put that

to one side and stick to what His Honour the

Chief Justice says, "it must be shown positively

to be a real or substantial risk", rather than

to use other expressions such as "unacceptable"

which is leading me to some confusion.

Your Honours, I have indicated in what I have

described as the preamble of the submission~ the
five stages of which I wanted to approach the
matter .. But my primary submissions, with

regard to both cases, are set out at the

submissions at page 1 and 2. That here access

was suspendP~ because of a lingering doubt and

and that. it_ is~ not entitled to happen. Secondly,

if it is established either the trial judge applied

the "lingering doubt" test or a suspicion or there

exists a possibility that he did, the appeal

should be allowed. I deal with possibilities

in paragraphs 3 and 4 and make the same submission. Paragraph 5 is that the trial judge is

obliged to resolve the issue. And paragraph 6,

if it :is established the trial judge did not resolve

the issue the appeal must be allowed.

GAUDRON J::  Do you still press ground 6, as it were?

MR BORICK:  Yes, in my submission, the first issue should be

resolved. It does not mean that some of the

evidence which is relevant to the resolution of

that does not come back into play, but at least

it should be resolved at trial so that judges

that are looking at the matter on appeal know preci~ely what it is that the trial judge has

brought into account in deciding the custody and

access.

GAUDRON J: That does not sit very comfortably with your

suggestion that if there were a risk that it

might be true that would be a matter taken into

consideration at the second stage. Once the matter is decided the only issue to be taken

C2Tl7/l/SR	27	12/10/88
M(2)

into account at the second stage is whether

there was or was not sexual abuse. There is no

other issue. You are forcing the determination of

an issue in circumstances where you seem to

concede that a quite different consideration

might be taken into account at the second stage?

:MR BORICK:  With respect, I do not think I am, because I

am distinguishing between a natural finding and

the evidence. If there is a finding, on the

balance of probabilities that sexual abuse has

occurred,that is obviously going to weigh - - -

GAUDRON J: That is obviously going to determine the matter,

full stop.

(Continued on page 29)

C2T17/2/SR	28	12/10/88
M(2)

MR BORICK:  One would think so, yes.

GAUDRON J: Yes.

MR BORICK:  And that is one of the reasons why it should

be resolved. If it is not established on the

balance of probabilities - take a specific issue,

that a father has put his penis into a three or

four-year-old child's vagina. If it is not established,

then it ought to disappear as a finding, or as

an issue, but there may well be other evidence

within that context, perhaps to the way the father

has allowed the child to behave around the house

and other matters of that sort, which have been

part and parcel of that issue within the case

which then come back to play on questions of custody

and access. All I am saying is that the finding

ought to be made.

GAUDRON J:	Does there come back into play the possibility that what the child said might have been true?
MR BORICK:	Not as to it having happened. In terms of an

allegation of truly serious criminal conduct other

than to -on the question of custody or access

which is going to be treated differently to the

issue of whether or not that particular allegation

has been established. I may be - - -

GAUDRON J:	I do not wish to detain you on this but I do say I do not - well, from my perspective there
is an inconsistency in what you say and your answer
has not resolved it.
MR BORICK:	I think the inconsistency is I am thinking -

my submissions are based upon an allegation,

a specific allegation of a very serious criminal

act. That ought to be resolved. There are going

to be other - - -

GAUDRON J: You go_ ,beyond that.- You say it rr.ust be. It must be

resolved and if not resolved then certain consequences follow.

MR BORICK:	Your Honour, but I think the difficulty is because I am distinguishing between the sorts of allegations
and that it is very difficult to make rules and
set standards with regard to all the various types
of allegations that can be raised in these cases.
Certainly with regard to specific serious allegations
of the sort that I have just mentioned, clearly
they ought to be resolved one way or the other
because of their importance.  Then that finding is
there.  The judge does not then bring into account
in his decision on custody or access that that
might have occurred - he has made the finding
that it did not, on the balance of probabilities.

C2Tl8/l/AC	29	12/10/88
M(2)

BRENNAN J:	Why do you separate out that kind of allegation?
MR BORICK:	I am sorry, Your Honour.
BRENNAN J:	Why do you separate out the serious criminal

allegations as requiring a specific finding?

What is the legal foundation for that in

proceedings of this kind: to treat findings of

those allegations differently from allegations

which otherwise reflect upon the suitability of

the parent to have custody or access?

MR BORICK:  I would submit that the more grave the allegation

then the more concerned the court should be to
strictly identify the issue and resolve it according

to whatever standards that this Court, I would

suggest, should set.

DAWSON J:  Do I understand you to be saying that the issue

should be resolved not necessarily because it
is going to have an effect on the outcome of custody

but in fairness to the person against whom the

allegation is made. That is what you are saying.

MR BORICK:  That is what I am saying, yes. And in addition - - -

DAWSON J:  And a finding against the person should not be made

unless it is established because it would be unfair
to the person to do so not because it necessarily
eliminates the question for the purposes of the

ultimate finding of access or qualified access.

(Continued on page 31)

C2T18/2/AC	30	12/10/88
M(2)

MR BORICK:  And then to turn that around the other side.

If the allegation is made and it is a very serious

misconduct but it is shown to mischievious and

done with an evil intent by the person who made

it - - -

DAWSON J:	And it should be found to be so?
MR BORICK:	Found to be so.
DAWSON J:	Yes, I understand that.
MR BORICK:	That, I think, is as far as I am taking it

but I certainly run into difficulties with the

next issue, as Justice Gaudron has pointed out to

me, on just how it comes back into play where

the judges having found, "Well, look, I think this

has happened on custody an.cf access but I think it- is

reconcilable" - -"in niy submission it is .. r.econcilable - ''because

the two issues are different~" First, to make

up your mind about whether it is established on the

balance of probabilities it did occur in fairness

to both sides; secondly, you have an entirely

different issue to decide now, that is, custody

or access. At the present stage in these cases

you look at the huge variety. - - -

DAWSON J:  Well, is it true to say that if the judge says,

"Well, I find on the balance of probabilities that

this did happen" - that as has already been·pointed

out, that may be an end to the matter.

MR BORICK:  Yes, I would think so.

DAWSON J:  It is a matter of ..... access, yes. On the

other hand the judge may say, "I am not prepared

to find on that evidence that this happened,

nevertheless there is a risk, a real risk, a

substantial, an appreciable risk, a sufficient risk,

to deny access, and you do not deny that second

step?

MR BORICK:  No, but I see the issues as being justisq totally

different.

DAWSON J:	Yes.
GAUDRON J:	It is not necessary then for there to be a

finding that it did not happen?

MR BORICK: No.	It is just there is the test on - - -
GAUDRON J:	Well, what do you complain about in these two

cases? In each case it was found that it was not

established that it did happen?

MR BORICK:  Yes. Well, in the M case, as I understand

His Honour Justice Gun, he is saying, "I am not

satisfied it did not happen" -

C2Tl9/l/W3

M(2) 31 12/10/88

GAUDRON J:  And he also said, "I am not satisfied that

it did."

MR BORICK:  Yes. But I think that could be analy.sed to

mean that he was not satisfied on the balance of

probabilities that that allegation had been

established. Then what His Honour did was to

bring it back into play by looking at the main evidence

which was led in support of the allegation, namely,

the opinion of Ms Fitzgerald, the clinical

psychologist. His Honour then said, "Well, I

must accept her evidence." Now, her evidence was,

firstly, that the child had been sexually abused

and that in her opinion it was the father who did

it. If His Honour - his use of the word "must"

meant that he is accepting not only what

Ms Fitzgerald's opinion was, but her opinion as

such that it was the father who had interfered .

with the child, then he seemed to me to be right

back at the beginning. He had actually made a

finding that the child in this case had been
sexually abused by the father, and it is difficult

to know what His Honour meant by the expression

"must" other than he - the alternative way of

looking at it is he was thereby taking into account

the fact that because the clinical psychologist

held the opinion then that, in itself, was sufficient

to raise in his mind this lingering doubt which

then led to a real risk.

That, in my submission, must be a very

dangerous precedent, that merely because a clinical

psychologist forms (a) a view a child has been

sexually abused, but then to go further, in my
submission, step outside her real area of expertise
and say, "Well, the father did it", and then that
becomes the basis for the, "well, it might have
occurred", one sees in that process the.evidence
being relevant in both senses, a decision being

made as to the first issue, but now being brought

back in a way which is, in my submission, quite

impermissible, which is why ~n my outline of

argument I do submit that the problem may well be

not so much of trying to fix tests in these cases

but that it really is an evidentiary problem.

(Continued on page 33)

C2Tl9/2/MB 32 12/10/88

MR BORICK (continuing):  How do you bring back into play

opinions of ·that sort or - and all the other

types of evidence that can exist in a case

like that and it is that problem which is

creating a great difficulty for the judges and, obviously, a great deal of difficulty for

me in putting the submission to this Court.

TOOHEY J:  Mr Borick, as you put that last submission and

as you seem to recognize yourself,that you are

not really attacking the test. You are saying
that there was no material upon which - or

insufficient material upon which the primary

judge could take the view that he took.

MR BORICK:  I think I am putting it a little further. I

think, as I understand His Honour Justice Gun's

reasons in the case of M V M that he is saying

that the suspicion or reasonable possibility or

risk exists because of the opinion of that clinical

psychologist. It is not his own opinion at all,

in a sense. It emanates from that particular

opinion and if that is the case,what would happen

in all of these cases when the clinical psychologist

comes along with their views then they are going

to deciding cases not the views of the judge and,

override, in a sense, the interests of justice.

in my submission, that is precisely what has

happened in the case of M.

BRENNAN J: But the judge said, "I am not sure that he did

so". He is expressing his own view - at page

101 the passage that you drew our attention to, he

is expressing his state of mind. It might be

based on the evidence of Miss Fitzgerald but it is

his state of mind that he is expressing, is he

not? It is his lingering doubts of which he

speaks.

MR BORICK:  He actually - I think at page 104, he refers

to ~!the aggregate effect of the evidence" at

the end of the paragraph there.

Indeed, the aggregate effect of the evidence

of the wife, Constable Anderson and Miss

Fitzgerald is such as to raise in my mind

the possibility that the child has been

sexually abused by the husband.

BRENNAN J: Well, there has been no abdication of judicial

function in favour of an automatic acceptance of

a witness' evidence.

MR BORICK:  In my submission, it goes very close to it because

of the doubt that must surround precisely what

His Honour meant when he said, "I must accept

C2T20/l/SH	33	12/10/88 -'.
M(2)

her evidence'~ bearing in mind that Miss Fitzgerald

came to the.opinion that it was the father who had

done this to this child or whatever it was that

was supposed to have happened to her. In my

submission that is unavoidable on the

overall consideration of His Honour's remarks

with relation to Miss Fitzgerald, in particular,

the expression:  · · ·

I believe that I must accept her evidence. Her evidence is that she is satisfied from

her many interviews of the child that the

child has been sexually abused and the

husband is the perpetrator.

It may not mean that - in fact, it probably cannot mean that he is, therefore, satisfied the husband

is the perpetrator because there would then be

no question of lingering doubts or anything.

TOOHEY J: Where is that passage, Mr Borick?

MR BORICK:  At the top of page 104, the end of the first

paragraph:

I believe that I must accept her evidence. Her evidence is that she is satisfied from

her many interviews of the child that the

child has been sexually abused and the

husband is the perpetrator.

I am inclined to the view that it does not mean

- it cannot mean,because of the overall nature

of the findings, that he is satisfied that that

is correct in the sense that - - -

MASON CJ:  No, because he goes on to qualify it in the next

paragraph.

(Continued on page 35)

C2T20/2/SH 34 12/10/88

MR B0RICK: Qualify, yes. But what it does mean is that

he is satisfied because she has held that view,

that is the prime reason why there is raised

in his mind the possibility, or the lingering

doubt or the risk, however described, which led

to total removal, which he himself describes as
a harsh result as does Justice Burton in the other
case - the very harsh result that the father does

not see the child at all.

BRENNAN J: Is the passage at the top of page 104 saying

any more than that for these two reasons, namely

Miss Fitzgerald's considerable experience and

the absence of anything to establish that there

was a defect in her method, . that for those two reasons I find her evidence credible. Not ultimately proving

it on the balance of probabilities but it is

credible evidence.

MR B0RICK: Credible in the sense that that is - I suppose

it is an honest view she has come to based upon

her experience.

BRENNAN J:  I am not rejecting her as a witness who is

unreliable but equally, of course, Miss Fitzgerald

could not prove it, all she could do was to give
the bases for the conclusion at which she arrived

as a matter of opinion.

MR B0RICK:  I would submit that it would be one thing for

His Honour to be satisfied and to refer to the satisfaction that the child had been sexually abused,bearing in mind her role as a clinical psychologist but entirely a different matter to

take the next step that the husband is the perpetrator
because there was a very lengthy cross-examination
of Miss Fitzgerald designed to show that, and

with respect suggest it cl.id show, she is primarily

a therapist and not her role to assess who did

it - so she sees her role as accepting that the child has been sexually abused and then sets about	assisting the child and the family from there.	It is the acceptance of the second half of her
view - the husband did it, which in my submission
creates the difficulty because in many of these
cases there is a lot of evidence called from other
psychologists who have different approaches and
different views to it as you see when you look at the cases and judges have, from time to time,
criticized various psychologists for the approach
that they have taken. But I am sure that
His Honour - he says so - was aware that this problem exists and to take her evidence to the
extent that he did may, in my submission, have
led to an injustice here particularly if the
possibility that the husband sexually abused this

C2T21/l/AC	35	12/10/88
M(2)

child arose out of the fact that Miss Fitzgerald

held that opinion. And I do not think I can take

my argument with respect to that passage any further

but I rely upon it in support of my submission. In my outline of argument I referred to -

this is at page 3 - His Honour Justice Gun's
treatment of Miss Fitzgerald as an excellent example

of the difficulty of how evidence and facts are

relevant to what I have called the first issue

to be brought back into account and my submission

is that there is a classic example of that difficulty.

At that point in the submission I also, without

taking Your Honours to it, but we refer you to

the expressions of opinion of Dr Gerrard in the

B case where he set out a number of reasons su_<33esting why

people should be regarded as sexual offenders

including the first being that most sexual offenders

in South Australia deny the offence and other

such reasons.	I mean you are just left with nowhere
to go from that point.	I think his second was

that the child has a loving relationship with

the father, that the man displays discriminatory

attitudes towards women and so on and I mention

that because it is typical of the standard of
the evidence in many of these cases and that that

has been referred to by judges, and I will come

to the references to the cases in a short time.

I then have set a passage out in my outline

referring to the definition of this overall problem

MASON CJ:	We have read that.
MR BORICK:	Yes, Your Honour.

(Continued on page 37)

C2T21/2/AC	36	12/10/88
M(2)

MR BORICK (continuing):  My final submission, just dealing

with the - finishing off the outline before I

refer back to the cases. is the appeal should

be allowed; the matters referred back to the

Family Court for reconsideration; that there should

be guidelines for the appropriate venue for

the resolutions of the allegations. I mention

that because both in M V M, and the other case,

there is a reference to the fact that the

Family Court is not the place to resolve such

issues, although, we say, not the place to resolve

issues as to guilt or innocence, which clearly

must be accepted, but also the fact that the

court is disturbed by the great deal of time

being taken up in resolving such allegations.

Part of the problem, in my submission, is

because there can be three different courts

involved: the Family Court, the criminal court,

or the children's court if there is an application

for custody by the minister. The family, and

particularly the child, can be subjected to the

investigative techniques of the police, the
investigative techniques of the social workers,

the investigative techniques of the psychologists

and psychiatrists. There have been cases where

they are running in all three courts at once,

with different standards of proof being applied

and incredible chaos and confusion. Although

the Family Court say that they ought not to

be resolved in that court, at the end of the

day it probably is the best court and it would

be very difficult to see how it can be avoided.

Therefore, the court has to grapple with the

problem and, as I have submitted, with the

assistance of this Court.

If I may just very briefly, Your Honours,

review the authorities, I would submit that the

very first time the "lingering doubt" test has

come into existence is in these,two cases. It

has never been referred to prior to September of

last year when Justice Gun, with respect, brought it

into existence.

As to the question of the appropriate test;

I would ask Your Honours to consider the case

of BROWN-TERRY, the Queensland decision.	In
fact, there are three Queensland decisions:

there is BROWN-TERRY, GALLAGHER a.rid TAYLOR V LYNDON.

BRENNAN J: What are the references, Mr Barick?

MR BORICK:  BROWN-TERRY is unreported and I would need to

hand a copy to Your Honours. That case, in

my submission, is important for a number of

reasons. There, His Honour referred to the issue of the role of the parent, on page 2:

C2T22/1/JM	37	12/10/88
M(2)

the best person to care for a child

is a parent.

He refers to: : :

Ideally ..... the benefit of two loving

and capable parents -

and other such matters, but, in my submission, there is support for my proposition there that

the presumption does exist that the parent has

a right to see his child. : , ·

Secondly, His Honour, on page 3, refers

to the importance of bearing in mind the

presumption of innocence when there is an

allegation of serious criminal misconduct.

(Continued on page 39)

C2T22/2/JM 38 12/10/88

M(2)

MR BORICK (continuing): It is also a case where His Honour

has criticized .the approach of the various members

of the Department of Community Welfare who

intervened in that matter. The other Queensland

case is the case of TAYLOR V LYNDON EX PARTE

PAUL GARNETT LYNDON, I think Your Honours have

a copy of. I refer to that case, partly for

its references in.both judgments to the

criticisms of the standards of the evidence. In

the judgment of Justice Thomas at page 8, and

His Honour says this:

It is impossible to give any precise

description of the point of balance

required in such proceedings

according to the BRINGSHAW scale.

It can however be said that such a

finding should only be made in

reliance on convincing evidence and
upon a firm satisfaction. A finding

made on suspicion alone, or on the

footing that it would be safer for
the child to be taken away from the

father in case the suspicion might

be true, would be quite wrong. We

have not yet reached the situation

where the traditional preferred role

of the parent has been displaced in

favour of arrangements made by the

State ..... and a finding that would

produce such a result ought not to
be made lightly.

Further down on page 9, His Honour referred to the fact that the:

evidence in this case goes no

further than creating serious

suspicion.

And I would clearly rely upon His Honour's remarks

in support of my submissions.

BRENNAN J: But that was a case, was it, where the contest

was between parental custody on the one hand and

state custody on the other?

MR BORICK:  Yes, Your Honour, but I would submit that the

passage that I have quoted,thoug~ is relevant

to that issue as well as to this because I would

think that the issue of S~ate taking a hand

in it would be applicable in all of these,

particularly if an allegation was made of very

serious criminal misconduct which the other
parent should have been aware of, or in cases of,

not necessarily sexual, but physical or emotional

abuse which the other parent should have been aware of.

C2T23/l/SR	39	12/10/88
M(2)

I would submit that His Honour's statement

that a finding made on suspicion alone is what

in fact has happened in both the present cases and

I do get support from what His Honour says in

relation to this matter.

(Continued on page 41)

C2T23/2/SR	40	12/10/88
M(2)

MR BORICK (continuing):  Your Honour, during the course

of the application for special leave,

Your Honour Justice Brennan asked me about the position in Canada and New Zealand and it would

appear that in both countries the same problems

are being encountered and similar sorts of answers

being given. One Canadian case goes close to

suggesting that where there is an allegation of
serious criminal misconduct then the person making
the allegation must prove it beyond a reasonable
doubt, and another authority suggests that it is
quite the reverse.-that because of the presumption
of innocence that where the allegation is made,

well, then, the party making the allegation must

prove it beyond reasonable doubt.

Alioost all of the Canadian recent cases are discussed

in an article which I thinK the Court has by

a Professor Bala of the faculty of law of

Queen's University. It is an article headed,

Allegations of Sexual Abuse in a Parental Custody

Dispute: Smokescreen or Fire? The author, I am

sorry, is the associate professor, the faculty
of law at Queen's University. Rather than take

Your Honours through that whole article now I would submit it is a very good overview of what has happened in Canada and most of the cases are

discussed, and out of it all emerges a recognition

that balance of probabilites and serious risk

are the two standards of proof applicable in that

country.

TOOHEY J:  Mr Borick, it may be that in these cases

witnesses are being allowed to roam beyond the areas of their expertise; some of the problems

may arise in that way. How was it that the

therapist was allowed to express a view as to

who might have been responsible for the.

interference with the-child? - or not might have

been, who was responsible?

MR BORICK:  That is what happened and, in fact, it is

happening in a great many cases.

TOOHEY J:	But was it the subject of objection?
MR BORICK:	I understand in M V M no specific objection.

There was cross-examination abo.ut it, tending to show that the psychologist could not go that

far, or should not have gone that far. In B's

case other evidence was called from other

psychologists to attack the views of the

psychologist who presented - or the doctors

rather. I think Dr Moody, who is a gynaecologist,

there expressed a view that the child had

suffered some widening of the vaginal opening -

not a large amount - and then it went on from

C2T24/l/MB	41	12/10/88
M(2)

there to say there is evidence on which the father

should be denied access. Now, that seem to be

well removed from the scope of a gynaecologist's opinion

because although she does not specifically say,

"From my findings I say the father did it", but
the combination of "There is something wrong with
this child" and therefore "take it away from the

father" meant the same thing. There is also

evidence in B, if I refer to Dr Gerrard's type

of evidence. That was attacked by Dr Le Page

in quite some detail but in the end result

His Honour discarded Dr Gerrard's evidence there.

I would submit that quite often in these

cases the psychologists and social workers working
for the Dapartment of CJrmnunity Welfare or for
rape crisis bodies, do·in one way or the other,
not only find that a child suffered some form
of abuse but go on to express views about who is
responsible, if not directly, but by the follow-up
suggestion that one party or the other - and usually

the father - should be not allowed access to the

child.

(Continued on page 43)

C2T24/2/MB	42	12/10/88
M(2)

TOOHEY J:  But that is not the basis of either appeal 1 is it?

The appeal in each case attacks the test

applied by the primary judge in deciding whether

access should be granted or refused. I do not

read either notice of appeal as inviting this

Court to go into the area of the evidence that was adduced and whether it was admissable or not?

MR BORICK:  It is in M V M, Your Honour.

TOOHEY J: Is it? Perhaps I said that because I was

looking at B V ~- But it comes in in M V 11.

MR BORICK:  Page 142.

TOOHEY J: Yes, I beg your pardon.

MR BORICK:	I will not repeat the submissions I have put and
rely upon in support of that ground. The

other Queensland case is GALLAGHER. This was

essentially an issue as to whether there should

be a protective supervision order which was

more limited in the care and protection sought

than an actual care and protection of the

Director-General in Queensland. Page 234,

in the judgment of the majority, the Court made

this comment:

The question now is whether the

order for supervision by the Director

was the correct one to make and

sufficient for the purpose in the light

of those findings and the evidence as a

whole. Removing children from the

custody of their parents is an action

so far-reaching in its legal consequences,

and potentially so devastating, in a

personal sense, to both parent and child,

that the need for it must be seen to-be

compelling.

And I would submit that although it is used in

a slightly different context, that the principle

expressed there remains the same. That firstly

there is this very strong presumption in favour
of the parent/child relationship and the right

of the parent and the child to see each other and - - -

TOOHEY J: Where are you reading from?

MR BORICK:  Page 234 in the judgement of the majority of the - - -

MASON CJ: You are reading from a report, are you, we have

only got the unreported judgment.

BRENNAN J: What is the reference to report, Mr Borick?

C2T25/l/SR	43	12/10/88
M(2)

:MR BORICK: It is 12 FamLR 225.

MASON CJ:  How far into the judgment is it, we might be

able to pick it up?

:MR BORICK: Almost towards the very end, Your Honours.

BRENNAN J: It is SRG V PGV, is that the one?

:MR BORICK:  Yes, Your Honour. The passage I have referred

to was at page 234 and it is cited for two

purposes. the importance of the presumption

of the parent/child relationshir and the fact

that it can only be interfered with by compelling

evidence.

(Continued on page 45)

C2T25/2/SR 44 12/10/88

MR BORICK (continuing): Without reading it, there is

also a reference in that case to the question

of the application of the strict rules of

hearsay and particularly at pages 231 and 233

but, particularly at 233 where Their Honours

indicate that although, generally, hearsay is

inadmissible as a madium of proof, in cases such

as this it can be used for the court to give

it such weight as it thinks fit.

The question of the disparity of judicial

opinion and the confusion between the issues,

I simply refer Your Honours to a New Zealand case

of DAY V DAY which I will need to hand up copies
to Your Honours. Turning to page 18 in that case,
Their Honours were there dealing with two other

New Zealand cases, GOOCH V GOOCH and the case of

BERRY. I hand those up to Your Honours.

GOOCH V GOOCH was the first of them. BERRY V

BERRY - the judge took the view that the standard
was a civil standard having regard to the seriousness

of the allegations but in the case of DAY, in

particular at page 18, the final word in

New Zealand is expressed there where His Honour says:

In my view that statement of principal

applies equally to the issue of sexual

abuse which I have been obliged to

consider in this case. Just as there is no onus on Mrs Day to establish that the

judgment in the Court below was wrong,

also in my view there is no onus on her
to satisfy me beyond reasonable doubt or

to a high standard on the balance of

probabilities that in fact the abuse she

alleges took place. Likewise simply

because I am not satisfied to that extent

does not mean that I should ignore the

real possibility that some interference or

abuse has occurred. To allow the rules

that usually apply in the normal adversary

situation to dominate to the extent that

the possibility of danger to Tamasin is

not guarded against, would in my view,

be to allow those rules to displace the

paramount consideration which of course

is the welfare of the child.

In looking at those New Zealand and Canadian

deci:s:Lon~, we suggest Your Honours will see that, even in cases where there has been a finding of

a real risk, access has still been given.	As to
the question of - - -

C2T26/l/SH 45 12/10/88

M(2)
GAUDRON J: But it would surely be a matter for the judge

at first instance as to what of the available

options was in the best interest of the children

once a decision had been made that there was a

real risk?

MR BORICK:  Yes.

GAUDRON J: Yes.

MR BORICK:  Yes, and -

GAUDRON J: And one of those options includes no access at

all.

MR BORICK:  That is right.

GAUDRON J: Yes.

MR BORICK:  And I submit that what these two cases are all

about is whether that can be removed merely on

suspicion or would not the presumption co-operate
to avoid that result occurring because of an
existence of a suspicion and that the authorities,

we would suggest, support me in that proposition.

GAUDRON J: Well, how do these propositions relate to the

two matters before this Court?

(Continued on page 47)

C2T26/2/SH	46	12/10/88
M(2)

MR BORICK:  I am sorry, Your Honour?

GAUDRON J: How do these propositions relate to the two

matters before this Cotlrt?.

MR BORICK:  I have referred to pa~ticularly the Queensland

cases which I rely upon to establish the

proposition that suspicion cannot amount to

a sufficient reason to take away access, on

even,rrhe possibility, as happened in these two

cases. The second reason for referring to these

cases is to show that the concept of lingering
doubt, or suspicion, or just a possibility,

appears really for the first time in these two

matters.

I also rely upon the dissenting judgment

of Mr Justice Williams in GALLAGHER's case to

support the proposition that there is a need

to make a finding, but there is a consideTiable

body of other Australian authority than IN THE MARRIAGE

OF G and IN THE MARRIAGE OF M, the Canadian

case of LEVEQUE, cb suggest it does not have

to be made.

Your Honours, I have just referred to the

Canadian case of LEVEQUE and I understand you

do not have copies of that, so I hand up copies

of the case of LEVEQUE. I will refer to that

case, it is a reference to a real risk, but

the case also :indicates that the Canadian view

is that, contrary to my submission, the issue

does not have -to be resolved.

Your Honours, there .has been another recent

decision of the Full Court of the Family Court
delivered on 22 September 1988, in the matter

of YATES. YATES was a case where there had

been an allegation of serious criminal misconduct.

It had been found to be - it was totally disproved and

quite some considerable criticism was made of

the sort of evidence that had been produced

by the Minister for Community Welfare at the

actual trial. The judgment which I am about

against the minister, in the course of which

to hand to Your Honours is a judgment of the

Their Honours criticize the type of evidence

which was led in YATES~ c~se~ YATES' case is

something of a cause celebre in South Australia

in that it took so long. But I will refer it

to Your Honours because of the final passage

which relates to the matters that Their Honours
were complaining about in both M V. Mand B's

case.

MASON CJ:  What page are we supposed to be looking at?

C2T27 /1 / JM	47	12/10/88
M(2)

MR BORICK: This is the last page of the judgment. I

just refer Your Honours to this passage:

Further, the case .was, as the learned trial

Judge commented, conducted along lines

bearing some similarity to a criminal trial

and occupied some 15 sitting days. In our

decisions in the cases of B .and M, delivered

8th :August 1988, we commented that this

Court is an inappropriate forum for the

trial of such allegations against

individuals which we consider to be the

province of either the er iminal courts

themselves or under appropriate child welfare

legislation, the court set up for that

purpose. This Court is concerned with .the

adjustment of rights between parties and

between the parties and their children and

we are concerned about the increasing tendency

to make it a forum for the trial of allegations

of this nature.

MASON CJ:	What are we to get out of that?
MR BORICK:	I have referred to that, Your Honour, because

of my final submission as to which court is~

the appropriate venue for this issue. The Family

Court is~rather tending in these three recent
decisions to suggest that .far too much time

is being taken up with all sorts of evidence

~ called one way or the other in these issues,

but really there can be no other appropriate
court to decide it once it is raised in the

issue of a custody or access dispute. It just

cannot be resolved in a criminal court with

a different standard of proof, or in a

children's court. With totally diffeEent

issues involved, it is inevitable that it must

be resolved in the Family Court and this Court

should, with respect, give some guidance to

the judges in dealing with these difficult

problems. (Continued on page 49)

C2T2 7/ 2/ JM	48	12/10/88
M(2)
MASON CJ:	Yes, thank you, Mr Borick.	Yes, Mr Tilmouth.

MR TILMOlITH:  If the Court pleases, I hand up the written

outline of submissions.

MASON CJ:  Thank you. Yes.

MR TILMOUTH:  If it pleases the Court, much of the ground

we propose to argue has apparently been cleared.

If the Court please I will deal with my

submissions on that basis. Firstly, if the Court pleases, there can be no doubt, in our submission, about the general standard of proof in civil

case in BRIGINSHAW. The references are in our

written submission and I do not dwell with them.

But the first and basic p~int, in our submission,

is the the kind of cases we have here are

materially different from the inter partes

situation and different considerations apply

including the consideration, the critical

consideration, of where the facts must first

be proved beyond balance before they can be put

into the scales as it were on the issue of

access or supervised access.

Our submission is that there is no rule

and there is no policy requirement, as it were,

that the only facts you can take into account

when it comes to access are facts you first

find as a first step proved on balance. In our

submission, that would render the Family Court

practically helpless in all but the clear cases -

and by "clear" we mean either cases which do not

got over the evidentiary threshold in the first place and there is no probative material at all

or, alternatively, those cases which are clearly

made out on balance which inevitably would lead

to a highly restrictive, if not a total prohibition,

on access.

Now, if the Court pleases,our submission is

that that general principle follows from two

basic reasons, firstly, the Act itself.

Your Honour Justice Brennan mentioned section 64 -

or 60D, in fact -.the paramountcy of the welfare

of the children has always been the rule. It

is a rule which is put there by Parliament
no less and in the end result the ultimate issue,
which Your Honour Justice Dawson mentioned at

one stage, is the issue of access, in which issue it inherently entails the paramount consideration of the welfare of the children.

Incidentally if the Court pleases, the provision is now section 60D but at material

times it was in section 64(l)(a), but the wording

is exactly the same. There was some rearrangement

C2T28/l/MB	49	12/10/88
M(2)

in amendments ~hich took effect on 1 April this
year. The second consideration which dictates

the general principle, in our submission, is the

case law authority which is built around the

House of Lords decision in RE K. Now, I do not

intend to read these authorities, if the Court

pleases.- the page numbers are on our list -

suffice it to say that RE K is a well-known

decision where, albeit in the context of guardianship-

type applications where the issues are between the

State, as Your Honour Justice Brennan put it in

the context of the Queensland cases, and the
parents in the interests of the children, the
general principle is nevertheless the same for

the purpose of the Family Court.

MASON CJ:  Mr Tilmouth, when you are preparing these outlines

of submission in future you might give us the

benefit of the full citation to the case.

MR TILMOUTH:	Yes, if the Court pleases.
MASON CJ:	Otherwise we have to read it with the list that

is prepared for the use of our tipstaff.

MR TILMOUTH:  Yes. I apologize for that omission, that was

my fault.	The references, of course, are on the
list of authorities.	I can give them now if the

Court wanted them for the purposes of the transcript.

MASON CJ:	No, there is no occasion to do that.
MR TILMOUTH:	Now, if the Court pleases, on that issue, that

principle was applied in REYNOLDS V REYNOLDS by Your Honour Justice Mason, as you then were, in a slightly different context. It was applied

by the Privy Council in McKEE, which is mentioned

there. It was applied in another context, or

cited with approval, by Your Honour Justice Brennan

in JV LIESCHKE.	It was cited by the
Queensland Full Court in the case of LYNDON, which

has been referred to by my learned friend earlier

this morning and, indeed, it was cited in the

New Zealand case of DAY V DAY in the same context

and in the specific context of a family case.

So, in our submission, there can be, without

going to the authorities in detail, there can

be no doubt about those general considerations,

if the Court pleases.

C2T28/2/MB	so	12/10/88
M(2)

MR TILMOUTH (continuing): It follows as a logical next step,

in our submission, that if the central issue is

that of the welfare of the children then the Court

is entitled to consider matters which it finds

probative or convincin& or some other tag is applied,

provided it is not rejected by the court out of

hand as inadmissible or irrelevant. Provided there

is probative material it may properly be considered

in the discretionary exercise as to orders for

access or restricted access and it may not fail

to be taken into account simply because it has

no case which requires the BRIGINSHAW onus to

not passed aliunde as it were some threshold

be applied at the first stage and, indeed, at

the second stage. In our submission, provided

the Court finds the material probative and relevant

it may weigh it in the total-balance.

TOOHEY J: If that is so, Mr Tilmouth, what is meant by

the opening sentence in paragraph 4 of your submission:

Accordingly, the task of the court is first

to determine the issues according to established

principle~, and then to consider on all

the evidence before it the welfare of the

child.

MR TILMOUTH: 

Yes. Perhaps there should be two comments

made about that. If the Court pleases, generally,
of course, the issues before the Family Court
will be determined according to the pleadings
and the issues as they are raised but that opening
paragraph should be qualified to the extent that
it is not necessarily the court's task to decide

finally whether abuse has been made out. It may

do so of course. In some cases, the YATES case

is one, where there was a positive finding that

it had not happened, but I accept the ~ualification

that it is not necessarily the task of the court

to say, "First of all, has it been proved on balance"

and so on. If the court finds that there is a

risk well then it goes on to decide what the magnitude
of the risk is, what are the consequences which

follow, whether there are any other factors.
We are not suggesting by that that the court

necessarily in all cases must first say, "Well,

my first step is to decide whether this has been

proved and then I will decided what to do after

that". In our submission, in effect, that would

be to detract from the real purpose of the Family

Court which is to decide the interests of the

children and not some fight strictly between the

parties per se.

C2T29/l/AC	51	12/10/88
M(2)

If the Court pleases on the central issue, being the welfare of the children, and in support of the principle - the second part of it at least

in paragraph 4, the authorities, in our submission,

are unanimous. The only authority to the contrary

was the decision of BERRY, the New Zealand case

referred to by my learned friend when he went

to the case of DAY V DAY. Otherwise, in our submission,

without reading them, the authorities are unanimous:

Justice Anderson in AV A, a single judge of the

Victorian Supreme Court; the Full Court of the
Family Court in M V. M; in England best exemplified,

in our submission, by the decision of Justice Sheldon in RE G in the Weekly Law Reports; the Chief J(:stice and

the ~ul! ·Court of a provincial court in Canada in L~VEQUE, 'which

has been referred to by my learned friend and

also, of course, the decision of DAY, also read

by my learned friend.

So, if the_Court plea~es, in our sul::mission, those basic

principles govern the way in which the Family Court

will resolve matters and governs the way in which

it determines issues before the court and not

in a way confined to strictly inter partes issues

or in the first place bearing a requirement that

there must be a proof of material on balance before

it can be considered in the weighing of_ the

discretion on access. They are not the accepted

principles in our submission at all.

Now, if they be accepted as the driving considerations, if the Court pleases, the question

then becomes what kind of risk is an appropriate

risk before it can be really considered of any

weight in the exercise of the considerations pertaining

to access. Now, if the Court pleases, a number

of adjectives have been used in this and they

have been mentioned by my learned friend and they

are summarized in paragraph 6 of our written submission.

But if the Court pleases, in our submission, there

is a danger in fastening too rigidly upon what

the Chief Justice says in the instant cases on	the words "real or substantial risk". In one
sense we would acknowledge, of course, that they
contain some safeguarding against perverse, weak
or malicious allegations of abuse and we would
accept in general terms there must be some threshold to weed out the unsubstantiated claims.

(Continued on page 53)

C2T29/2/AC	52	12/10/88
M(2)

MR TILMOUTH (continuing): But largely our submission is

that is taken care of in the first place by the

evidentiary onus. The mere making of the

allegation can never be anything else than, as it

were, a mere part, it is nothing prohibitve at all.

There must be relevant admissible and _probative

material in the first place. Assuming there is
a scintilla of probative material, to put it

at its lowest, then it is for the Court to weigh

that material, together with other factors, the

nature of the allegation and the nature of the

consequence, to decide whether or not there should

be an order for restricted access or no access

at all.

The inadequacy, in our submission, of the

real or substantial doubt test is that it ignores,

if the Court pleases, the consequences. And as
we suggested in paragraph 6, there might be a

very slight risk of a very major consequence. And

that may well be excluded when, in our submission,

it ought not be if the consequences are dire. Could

I use an example, it may not be perfect, but to

take it out of the context of sexual abuse or
child sexual abuse, which inherently would fall

within the range of at least serious consequences

if they are might out to some degree of satisfaction.

The imperfect analogy I would use is a case where this is a scintilla of evidence that one party

on an access occasion intends to take the children

and commit suicide with them. Now that allegation

might be raised by hearsay or it may have come

indirectly, it may be faint and the court would not
on any view of the facts be willing to find it a

positive intention on balance.

But, if the Court pleases, the dourt might,

however, think that it is a remote possibility.

It might be extremely remote. But surely,with

respect, the court cannot divorce the chance of

the risk from the consequences. Surely, in our

submission, the court is entitled to consider

whether those consequences are worth running - whether

the risk of those consequences ensuine is worth

running So to put some arithmetic on it, albeit

I realise that is flawed as well, assume, for example, that there was onl½ say,one in a five

hundred chance that the party taking the children

intended or would carry out the suicide which was

suggested. The court would be justified, however,

in saying, "Well, that is a remote risk, that is

an extremely remote risk, but nevertheless the

consequences are so dire that the court is still
justified in exercising a discretion to refuse

~~cess:' Now, as I say, if the Court pleases, that

might be a bad example, but it is put up to serve

C2T30/l/SR	53	12/10/88
M(2)

the purpose that it is wronS?. in our submission,
to look solely at the risk, whether it is.real or

substantial, one must also look at the consequences

which may ensue. The more serious the consequences

then surely the more justified the court is in

intervening, even though on a graduated scale the

risks in the first place might be quite slight.

So, if the Court pleases, in our submission

the inadequacies of the real substantial test are

measured in that way. They must be a product, a multiplier

as it were, of the risk as it is perceived, with the consequences. Hence, in our submission, the intrusion of the unacceptable risk. The unacceptable

risk, in our submission, caters for all considerations,

and particularly the risk itself, the magnitude

of the risk, that is the chances of it being fulfilled

together with the consequences which ensue from

them. So, in our submission, whilst conceding

there must be a threshold, as it were, something

more than just the mere scintilla of material, we

would suggest it would be wrong to too readily

fix a real or substanti.allabel to it because it is

incomplete, as it were for the reasons that we have

put forward. And, moreover, there is an inbuilt
safeguard of the preliminary step, in our submission,

already in the evidentiary onus. The unfounded

allegations will be excluded as a matter of

evidence, not as a matter of any potential weighing

of the risks. And, in our submission, as well,

judges - - -

BRENNAN J:  . I do not quite follow t"hat, Mr Tilmouth, would

you -

MR TILMOUTH:  If an allegation is unsubstantiated, Your,Honour,

because there is no probative material which

the court is willing to rely upon or accept, then
that allegation will be discarded, in our·

submission, because there is nothing· probative

before the court, the court could not find the

possibility or the prospect of the risk ensuing . (Continued on page 55)

C2T30/2/SR	54	12/10/88
M(2)

MR TILMOUTH (continuing): So that evidentiary burden

or onus is a safeguard in the first place from

the unfounded allegation and is, at least, a

part answer to the doubts that Chief Justice Nicholson

expressed that the mere allegation might well be enough to engender the consequential orders. In our submission, that is taken care as a matter

of evidence.

The other factor of relevance in our submission is the attitude of the parties and,

in general terms, the attitude of the parties has

always been regarded as relevant. For example,

one custodial parent genuinely holding the
conviction that the other parent has abused the

child,even though that abuse is unfounded or

unmade out, can be a factor which gives rise to

the court's discretion to incline against access

or incline against full access.

Likewise, the attitude of the child; if the

child thinks that the father may have been involved,

then that can be a factor. Now, the latter factor

was, in fact, taken into account in the case of

B here, as were other factors, the unsatisfactory

nature of the husband and so on. But in the case

of M, if the Court pleases, -if I could go to that,

it is clear that it was not just in M the

unsubstantiated allegation of abuse. Justice Gun,

in our submission, took into account these other

considerations. As has already been noted, at

pages 100 and 101, His Honour referred to the

case of N, the English decision of

Justice Swinton-Thomas and, at the top of 101,

the passage includes a reference to:

The damage that might be occasioned to

either or both of these two children by

removing them from the care of their

mother.

At page 103, His Honour considered the attitude

of the mother and said at line 2:

In spite of the unsatisfactory aspects of her evidence to which I have referred, I

am not prepared -

103, Your Honours -

to ~ay that she did not, after the

possibility had been brought to her attention,

form a genuine belief that the child may have

bcGU sexually abused by the husband. Nor am statements made by the child was manufactured.

C2T31/l/SH	55	12/10/88
M(2)

So, His Honour is really, clearly, after citing

and considering other factors going beyond mere
proof of the allegations and at page 104 and,

particularly, 105, he brings them together. In

the passage at 105 at the top, he says:

In my opinion, it is my duty in this case,

having regard to the interests of the child,
to make orders which, as far as may be

possible, eliminate the risk that the child may be sexually abused and that

the welfare of the child may be endangered.

And, in our submission, thus far he is properly taking into account relevant matters

To give effect to this opinion, it will

be necessary to discharge the order for

access. The harsh result of this will

be that the husband will be deprived of

access to his daughter. I have given

consideration to the suggestion of the

husband's counsel that I should make an

order that the husband have supervised

access. This proposal is clearly opposed

by Miss Fitzgerald.

whom His Honour accepted.

Having regard to all of the circumstances

of this case, including the attitude of the

parties towards and their relationship with

each other, I am unable to see that supervised
access would be of any benefit, either to the

husband, or the child. There is no doubt that

the wife could never accept that the child

would not be at risk if the husband had

access, whether or not that access was

supervised.

(Continued on page 57)

..

C2T31/2/SH	56	12/10/88
M(2)

MR TILMOUTH (continuing):  So, I make that point, if the

Court pleases, that His Honour's reasoning is

not simply confined strictly only to the issue

of the chances of abuse. He also took into

account the attitude of the mother in particular.

I mention that for another reason, because

Chief Justice Nicholson, at 107, said in the middle of that bottom paragraph, the fourth

line from that paragraph commencing at about

page 107, that:

There were no other factors other than

the allegation of sexual abuse that could

have causedhi.m to suspend access.

It is the fourth line in that last paragraph

on 107. If the Court ,pleases, with all respect to His Honour, that, with respect, is not quite

right. There was the attitude, as His Honour

found, of the parties. Of course, in the B case

there were clearly other factors which all three

judges accepted. ·

Now, if the Court pleases, dealing with the tag of lingering doubt used by Their Honours at

first instance, in our submission, that phraseology

was not meant by Their Honours as some kind of

term of art. It must be read in its context, and, in our submission, the statement "lingering doubt"

when read in context was really just a manner of

speaking, as it were.

If the Court pleases, in the matter of M, at 101,

Justice Gun, in a passage which I think has been

clearly alluded to, at about point 4, when he is

considering what his overriding duty is, said:

As I see it, my task is to evaluate the

evidence adduced and decide whether or not

I am satisfied on the balance of probabilities

that the husband has sexually abused the child.

If.I am satisified that the husband did
sexually·abuse the child, I would discharge
the order for acc~ss. "If I am not satisfied
on the balance of probabilities that the husband

has sexually abused the child 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

gerund that no risk or possible risk should

be taken which would endanger the welfare of

the child." If I am satisfied that the husband

BRENNAN J: What are the inverted commas doing there, do

you know?

C2T32/l/JM	57	12/10/88
M(2)

MR TILMOUTH:  I beg your pardon, Your Honour?

BRENNAN J: There seem to be inverted commas in the

copy.

MR TILMOUTH:  Yes. I am not sure if they have been added

in the process of photocopying. They are possibly, or probably not His Honour's, I

would think.

BRENNAN J:	But it is not a citation from some other authority?
MR TILMOUTH:	No, I do not think it is, Your Honour.

Certainly I cannot point to any reference

where it would be and my friend has suggested

that the concept of lingering doubt was born

in these two opinions.

But what I am submitting here, if the Court

pleases, is simply this: that His Honour is

dealing in general terms with the area of

fact finding falling below a balance, but where

there is some probative material and he

compendiously uses the phraseology "have lingering

doubts" to encompass that whole field. We

acknowledge that the words are perhaps unfortunate

but, in our submission, when properly read, they

were not meant by His Honour to quantify or to

qualify his actual fact findings in this case.

If the Court pleases, we submit that that is

clear when one goes further on in his reasons,

not only the passages I mentioned a moment ago

about his findings about the wife's attitude and

so on, but at page 104, which is really the

fact finding page, as it were - the passage at

page 101 is really the statement of general

principle - but in the fact finding section

of his judgment at 104 in the passage my

learned friend read, at the bottom of that long

paragraph in the middle of the page, His Honour	said specifically, and this the critical
fact finding:

(Continued on page 59)

C2T32/2/JM	58	12/10/88
M(2)

MR TILMOUTH (continuing):

Indeed, the aggregate effect of the evidence of the wife, Constable Anderson and

Miss Fitzgerald is such as to raise in my

mind the possibility that the child has

been sexually abused by the husband.

That is the fact finding, if the Court pleases.
"Lingering doubt" was not a fact finding, it

was a statement of principle which must be read

in context. His Honour has not, in our respectful

submission, as a matter of fact finding said,

"I have a lingering doubt". I know the two overlap

to a certain extent but his explicit fact finding

is possibility.

Once he found that possibility, if the Court

pleases, along with the composite fact finding

that he was not in a position to say that he

was satisfied on balance the child had been abused,

but immediately above that:

I do not consider that I am in a position

to say that the husband did not sexually

abuse the child. Indeed, the aggregate

·effect.; : .. possibility-:

So when; read·with t~e earlier section, His Hbnour

is specifically saying, "I find that it is possible

that the husband did sexually abuse the child". That is the critical passage, in my submission,

not the one at 101 which must be read as I have

mentioned anyway in context.

And as I have already mentioned, as well,

His Honour did not confine himself to that and

that alone. At 105 he went on to consider other

factors. Likewise, and even more strongly, in

the case of B VB, in our submission, because in

B VB, in our respectfuly submission, there was

stronger probative material, and that probative

material begins at page 10 in Justice Burton's

reasons,: His Honour specifically finds, at

page 10, in that second paragraph, both in the

opening and closing sentences:

Notwithstanding differences in

observations by Doctor Vimpani and

Doctor Moody I have formed the opinion that

Rebecca has suffered some form of sexual

interference.

And His Honour discusses the doctors - I leave

those two sentences and gp to the last one in

that paragraph:

C2T33/l/ND	59	12/10/88
M(2)

I find -

that is 11 I find", in my submission, "on balance 11 -

from the evidence of the two Doctors that

there is no plausible explanation for

Rebecca's physical condition apart fr~m

some external sexual interference.

(Continued on page 61)

C2T33/2/ND	60	12/10/88
M(2)

MR TILMOUTH (continuing):  Now, that is a very strong finding,

j_f the Court pleases, on any review of the test or

on any view of the onus. The only shortfall is

the link between the positive finding of abuse

and the husband. His Honour deals with that, however,

at pages 17 and 18. His Honour says in that paragraph

commencing about point 3 - perhaps I should read

the sentence above it:

The evidence is so flawed that I believe it would be unsafe to make a positive

finding against the husband.

So, in a sense, His Honour has probably actually

considered making a finding on balance but fallen
short of that because of the state of the evidence.

But His Honour then goes on and, properly, in our submission, according to the authorities:

Notwithstancling my inability to make such a finding, there are a number of matters which cause me considerable disquiet.. I

take my duty in deciding this matter to place
the interest of the children as a paramount

consideration.

Clearly, that is correct, if the Court pleases:

I consider this to mean that the Court should not make an order which might place the child

risk.

Again, we submit that is correct, if the Court pleases,

if the risk is serious, of course, which it undoubtedly

is in this case.

I do rct consider that I should place a child

at risk of abuse simply because of the
inadequacy of the methods of investigation

of the complaint.

And, could I pause there to suggest that that echoes

partly, perhaps, what fell from Your Honour

Justice Brennan this morning; that the failure to act,

other than on cases where there is positive material

on balance is to leave the children unguarded and

unprotected, in our submission. Our submission is

the policy of the A ct clearly is the protection of

the children in the welfare provision.

(Continued on page 62)

C2T34/l/VH	61	12/10/88
M(2)

MR TILMOUTH (continuing):  And as we submitted if the truth

of the matter were that the BRIGINSHAW onus applied

in the first step then the majority of cases,

we suggest,would fall outside the effective help
of the Family Court because we would suggest - it

is guesswork of course - that the majority of

cases would fall somewhere between probative

material or some risk and proof on balance. And

in any event if there is proof on balance of abuse
consequences seem to be inevitable, in our submission.
In any event I read on on page 17:

I am of the opinion that if after considering all the evidence I have some lingering doubt

whether or not the husband has molested

the child that it is my duty to err on the

side of caution and safeguard the child

even if this appears to be unjust to a husband

who has not been proved to have molested the child. However access is not a right

of a parent. It is to be granted when it

is shown to be of value to the child and

in its best interests.

Now, again, if the Court pleases, our point is

that although His Honour use the phraseology

"lingering doubt" it must be read in the context

in which it appears and in the context of his

findings. Now, he has made a finding that there

was abuse on balance. He has said that he is

not prepared to find the husband, on balance,

as the perpetrator but, in our submission, the

tag "some lingering doubt" nevertheless indicates

that His Honour had some degree of satisfaction

which he found convincing and probative not necessarily

meaning to indicate in the words "lingering doubt"

that although probative it was at the lower end

of the scale as it were. In our submission it

would be wrong to read His Honour in using the

expression "lingering doubt" as in some conscious

kind of way trying to grade the degree of the

probative material before him. And moreover, if the Court pleases, as

His Honour went on to consider, without reading

the material on page 18, other factors.

(Continued on page 63)

C2T35/l/AC 62 12/10/88

MR TILMOUTH (continuing): At page 18 line 2- that is the

unindented part - he referred to the husband's

"unconvincing explanations". In the second paragraph

on page 18, five lines from the bottom, His Honour

referred to one particular riart of the evidence

of his as;"quite inexplicable'. It related to whether

or not he could afford to buy a mattress for the

child R. His Honour found that quite inexplicable.,

That clearly is not just a throw-away finding, as

it were, it must raise real suspicion in His Honour's

mind about the husband's explanation for the child

having to sleep with him because he could not

afford a mattress ,and, in our submission, His Honour

was, in effect, saying that - certainly he is taking

it into account as a· factor.

On page 19 His Honour, at the bottom of that

first paragraph,also said:

Whatever the true situation was, the husband's

conduct in either event suggests some bizarre

sexual thinking on his part.

And he says:

Finally there are the damaging statements by

R which despite their suspect nature, when added to the physical findings and the

husband's unusual behaviour since separation

give rise to doubts whether she should be put

at risk by allowing access to be resumed.

In the circumstances of this case such

access would always be attended by suspicion

on the part of the wife and her advisers. R

has now acquired an attitude which is

antagonistic to the husband. Whether that

attitude is due to abuse of her by the husband

or has been implanted by contamination at

'therapy sessions' and by the wife cannot

definitely be ascertained. The fact remains

however that whether based on fact, fantasy

or indoctrination, Rat the present time believes her father has molested her. I do not believe that access under such
circumstances will be beneficial to either

party.

(Continued on page 64)

C2T36/l/MB	63	12/10/88
M(2)

MR TILMOUTH (continuing):  Now, the latter paragraph,

it is true, went on to consider additional

factors such as those I mentioned earlier but,

if the Court pleases, when one goes back to

consider the factors I have just mentioned in the

context of the finding of the lingering doubt,

in our submission the proper approach is to look

behind the form of the words "lingering doubt"

and look at the substance of what His Honour

found and the substance of what His Honour found

is as I have mentioned it, those various factors -
the finding that abuse took place, the unconvincing

nature of the husband in evidence and

explanations, bizarre sexual thinking, and the

other factors.

So even if this Court considered the merits,

as it were, on appeal, in our submission it is

important to look behind the form of words and

look at the substance of the primary fact findings.

Likewise, in our submission, in the case of M when one pieces together the actual primary

findings, in our submission they clearly meant
more than a lingering doubt and meant
a possibility.

If the Court please, I move on very quickly to consider the Full Court decision.

MASON CJ:  How long do you think the balance of your argument

will take, Mr Tilmouth?

MR TILMOUTH:	Only 15 more minutes, if the Court pleases.
MASON CJ:	I think we will adjourn at this stage and resume at 2. 15.

AT 12.46 PM LUNCHEON ADJOURNMENT

C2T37/l/HS	64	12/10/88
M(2)
UPON RESUMING AT 2.22 PM:

MASON CJ:	Yes, Mr Tilmouth.
MR TILMOUTH:	Your Honours, as to the Full Court itself,

in our submission, although the court was

divided in the result, that is in the

consequences, in truth we submit that it was not

sharply divided .on questions of principle,
firstly and obviously there was no suggestion

in any of the three judgments that there was

a threshold BRIGINSHAW test, as it were, and,

had to be some assessment of the risks.	secondly, all three judges were clear that there substantial, as the Court knows, and in our submission what the majority was saying was not
significantly different.

What they said is the same essentially in

both cases, but if I could take the Court to the

M appeal book at page 133 - and this is the same as

in the B matter - Their Honour~ after referring

to BRIGINSHAW, deal with the issue of onus and

clearly apply it at the risk or second stage,

in our submission. Their Honours said at page 133

after the indentation of BRIGINSHAW:

We are of the view as a matter of general

principle, that in assessing whether or

not there is risk to a child if access
were rooccur or risk that the welfare

of the child could be endangered in the

event of access, the ordinary civil

standard of proof must be applied. If

a trial judge considers, upon the balance

of probabilities, that the welfare of

a child may be endangered or there is

a risk that a child may be physically,

sexually or emotionally harmed if

access were to occur, then a trial judge

may, in our view, suspend access.

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.

That finding, in our view, was open to the learned

'trial judge on the evidence that was before

him and w~s based upon the application of the

correct standard of proof, and the Court will

remember that is the same wording as in

C2T38/1/HS	65	12/10/88
M(2)

the B appeal at page 45. Your Honour

the Chief Justice in fact referred to the words

"practical reality" in that very context.

So, secondly then, if the Court pleases, it is
clear that Their Honours, in so far as they were
divided or speaking about issues, were only talking
about the grading, as it were, of the risk, and

finally, if the Court pleases, however Their Honours

add in their conclusion segment in the M book at

page 137 to page 138, these words about the onus

of proof - at the bottom of page 137:

In the end result his Honour having considered all the evidence came to the conclusion for the reasons which he gave that access to the husband should be suspended. He perceived that if the child

were to have access to the father then in

such circumstances the child could be at

risk. In assessing such risk, his Honour,

in our view, applied the ordinary civil

standard, which was the correct test.

I just pause to refer to that last passage for

this reason, if the Court pleases - it might

conceivably be argued that that is a little
ambiguous in the sense that the court is not only

saying if the judge finds on balance there is a risk

that the risk might also have to be a probable

risk, and if that is what the court is saying,

that is where, with respect, we would disagree.

It is probably not saying that. We do not argue

that it is, but I did read that extra passage

just to point out that there may be an ambiguity

in what the Full Court is saying, and hence,

Your Honours, that is why in our paragraph 10 we

mentioned that literally speaking the

Chief Justice's test may have been, in fact, less demanding than the majority, but of course that only applies if that is read on page 138 as saying not only must a judge find on balance there is a

risk, but the risk must itself be a probable one.

We would submit clearly that is a contradiction

of terms and a doubling up the requirement, but as
I do say, we point out that passage to dispel

any ambiguity that may arise from it and to

mention that that is why the reference was made

in our written submission at paragraph 10 about

that.

C2T38/2/HS	66	12/10/88
M(2)

MR TILMOUTH (continuing):  So if the Court pleases, in

the end result we submit there is clearly no
threshold BRINGSHAW test at the first stage. At
the second stage, the probability or the onus

relates to an assessment of the risks and the

consequences and, in our submission, it is the
combination of those two things with which
the Court, in our respectful submission, should be

aguarded by simply adopting words like "real or

substantial". The risks and the consequences

are a multiplier of each other and it follows,

of course, in our submission, that the appeals

ought then to be dismissed, because essentially

the Full Court was not really at odds, in so far

as finding, as I mentioned at page 133 of the

M appeal book, it was a matter of practical reality,

they are the words also used by the Chief Justice,
"there was a risk which justified the orders".

Your Honours, can I add two things, very much by way of parenthesis on my learned friend's

submissions. The first is as to the Queensland

cases cited by him. Whilst, of course, in some
general way, in our submission, they are of some

use, they clearly are cases involving, as Your Honour

Justice Brennan pointed out, the intervention of

the State which involves different considerations

from the Family Court which has the jurisdiction

to consider inter-family matters. And it follows

that where the State is intervening, generally

speaking, the court looks for some greater degree

of satisfaction because it clearly is an order
or an intervention which is contrary to the
ordinary liberty of the subject and the integrity

of the family itself.

Secondly, my friend argued that there may be

a difference in the consequence where sexual abuse

is concerned between supervised and unsupervised

access. In our submission, there can be no

automatic rules, either at the evidentiary stage

or-at the consequential order stage, simply because	the case is one of sexual abuse. It must all depend
on the circumstances and, as Your Honour Justice Gaudron,
in particular said, it is a discretionary matter
where all the factors must be weighed in the end result. But in our submission it would be wrong
simply to make a special rule at any stage because the case happens to be one of sexual abuse; it is
a matter of evidence and the cogency of the evidence.

Finally, if the Court pleases, my learned

friend seized upon the word "must" in relation to

the acceptance of Ms Fitzgerald's evidence by

the learned trial judge in the end matter at

page 104. The Full Court found that that was

C2T39/l/SR	67	12/10/88
M(2)

really a turn of phrase and, in our submission,

properly regarded it is so. If the learned

trial judge regarded himself as bound by that

evidence he clearly would have gone on to find

positively there was sexual abuse. And, as I

think was pointed out in argument, that passage

is qualified at page 104 straight away by

His Honour. So in our submission His Honour

clearly did not regard himself as hamstrung, as

it were, by Fitzgerald's evidence and he clearly

regarded it with close scrutiny.

The other point I would make about it is

that His Honour made the point, in several passages

in the pages preceding that there was no other

evidence to contradict what Fitzgerald had said

or to criticize methodology and that therevms

nothing that he could inherently find himself in

the methodology which merited criticism. And,

in my submission, all His Honour is saying in

the terms he must accept her evidence, is he is

meaning_that on the way the case was argued, the way it was fashioned and the only evidence was

called in the end result . as an evidentiary matter,
there was no other alternative. It was the only

material before him which was not inherently

improbable or unlikely or suspect and there was

no other expert evidence to contradict it. And

that is all, in my submission, His Honour was

saying. He did not regard himself as somehow
otherwise bound to accept for wrong reasons.

So, if the Court pleases, in our submission, then the proper orders in each case are dismissal

of the appeal, which would, of course, result in

the original orders made at first instance still

continuing to apply. If the Court pleases.

MASON CJ: Yes, thank you, Mr Tilmouth. Yes, Mr Borick?

MR BORICK:  Your Honours, just very briefly. Mr Tilmouth

in his submission was tending to suggest that

in respect to the paramount interests of the child

that protection overrule everything - that is

inherent in his suicide claim or analogy. In
my submission, the rights of the parent and the

child to see each other are paramount in the

sort of example he gave. Thank you.

MASON CJ: Thank you, Mr Borick. The Court will consider

its decision in this matter and will now adjourn

until 10.15 am tomorrow.

AT 2.31 THE MATTER WAS ADJOURNED SINE DIE

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