Marsden & Winch (No. 3)
[2007] FamCA 1364
•21 November 2007
FAMILY COURT OF AUSTRALIA
| MARSDEN AND WINCH (No. 3) | [2007] FamCA 1364 |
| FAMILY LAW - APPEAL – From decision of Family Court judge – CHILDREN – With whom a child spends time – where order that child not spend time with father – whether findings open to trial Judge – whether trial Judge failed to apply Part VII of the Family Law Act 1975 – whether trial Judge failed to give adequate reasons for not implementing recommendations of expert – no appealable error – appeal dismissed FAMILY LAW - APPEAL – From decision of Family Court judge – PROPERTY SETTLEMENT – inadequate reasons given in relation to s 75(2) adjustment – discretion re‑exercised – no orders made FAMILY LAW - APPEAL – COSTS – whether an application for a stay is an indulgence – cross‑appeal allowed – discretion re‑exercised – each party to bear their own costs FAMILY LAW - APPEAL – COSTS – trial Judge considered prior applications – trial Judge took into account irrelevant considerations – appeal allowed – discretion re‑exercised – each party to bear their own costs |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) s 60CC, s 61DA, s 75(2), s 93A(2), s 100B, s 117 Family Law Rules 2004 r 15.49, r 22.12 |
| Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Bennett and Bennett (1991) FLC 92-191 Bhattacharya v Director-General of Department of Education & Training [2000] NSWCA 74 Briginshaw and Briginshaw (1938) 60 CLR 336 Chamberlain v R. (No 2) (1984) 153 CLR 521 Clauson and Clauson (1995) FLC 92-595 Collins & Collins (1990) FLC 92-149 Council of The Law Society of New South Wales v A Solicitor [2002] NSWCA 62 Fox v Percy (2003) 214 CLR 118 Goode and Goode (2006) FLC 93-286 Helton v Allen (1940) 63 CLR 691 J & J (1994) FLC 92-476 Johnson v Johnson (1997) FLC 92-764 Lovell and Lovell (1950) 81 CLR 513 M and M (1988) FLC 91-979 Marion’s case (1992) 175 CLR 218 McWilliam v Penthouse Publications Ltd [2001] NSWCA 237 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Northern Territory v GPAO (1999) 196 CLR 553 Palmer v Dolman [2005] NSWCA 361 Penhall-Jones v State of NSW [2007] FCA 925 Re C & J (1996) FLC 92-697 Re F: Litigants in person guidelines (2001) FLC 93‑072 Re JRL; ex parte CJL (1986) 161 CLR 342 Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 Reg v Gyngall [1893] 2 QB 232 Rejfek v McElroy (1965) 112 CLR 517 Transport Industries v Longmuir [1997] 1 VR 125 Trustees of the Property of John Daniel Cummins v Cummins (2006) 224 ALR 280 WK v SR (1997) FLC 92-787 |
| APPELLANT: | Mr Marsden |
| RESPONDENT: | Ms Winch |
| FILE NUMBER: | CAF | 65 | of | 2004 |
| FIRST APPEAL NUMBER: | EA | 94 | of | 2006 |
| SECOND APPEAL NUMBER: | EA | 125 | of | 2006 |
| THIRD APPEAL NUMBER: | EA | 110 | of | 2007 |
| DATE DELIVERED: | 21 November 2007 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Warnick, Thackray and Le Poer Trench JJ |
| HEARING DATE: | 3 October 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 August 2006 22 November 2006 |
| LOWER COURT MNC: | [2006] FamCA 715 [2006] FamCA 1414 [2007] FamCA 1003 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Self represented |
| SOLICITOR FOR THE APPELLANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | Mr Nash |
| SOLICITOR FOR THE RESPONDENT: | McGuinness Eley |
Orders
That the appeal in proceedings EA94/2006 be dismissed.
That the appeal in proceedings EA125/2006 be dismissed.
That the cross-appeal in proceedings EA125/2006 be allowed in part.
That order 4 of the orders made by the Honourable Deputy Chief Justice Faulks on 22 November 2006 be set aside.
That each party bear their own costs in relation to the Form 2 Application filed by the husband, [Mr Marsden], on 30 October 2006 and the Form 2A Response filed by the wife, [Ms Winch], on 20 November 2006.
That the appeal in proceedings EA110/2007 be allowed in part.
That order 3 of the orders made by the Honourable Deputy Chief Justice Faulks on 21 August 2007 be set aside.
That each party bear their own costs in relation to the Form 2 Application filed by the husband on 17 July 2007 and the Form 1A Response filed by the wife on 9 August 2007.
That the wife file and serve any submissions in relation to costs relating to the appeals and cross-appeal within fourteen (14) days of receipt of these reasons for judgment.
That the husband file and serve any submissions in response thereto within a further fourteen (14) days.
That the wife file and serve any submissions in reply within a further seven (7) days.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 94 of 2006; EA 125 of 2006; EA 110 of 2007
File Number: CAF 65 of 2004
| Mr Marsden |
Appellant
And
| Ms Winch |
Respondent
REASONS FOR JUDGMENT
Warnick and Thackray JJ
Introduction
We are required to determine three appeals and a cross-appeal against orders made by Faulks DCJ in proceedings between Mr [Marsden] (“the husband”) and Ms [Winch] (“the wife”).
On 4 August 2006, his Honour made orders concerning the parties’ daughter, [Stephanie], and division of their property. The orders relating to [Stephanie] provided that she live with the wife and have no direct contact with the husband. On 1 September 2006, the husband appealed against both sets of orders (“the first appeal”).
The husband applied for a stay of some of the property and parenting orders. At the same time, he sought an order for supervised contact pending the hearing of the first appeal. On 22 November 2006, Faulks DCJ granted a stay and made an order permitting two hours of supervised contact each fortnight at the Canberra Changeover and Contact Centre (“Marymead”). His Honour also ordered the husband to pay the wife’s costs of the application.
On 4 December 2006, the wife appealed against the supervised contact order (“the second appeal”). On 20 December 2006, the husband filed a cross‑appeal, in which he challenged the order for costs and his Honour’s failure to make other orders sought at the time he applied for the stay.
In May 2007, Marymead suspended the contact visits. The husband then filed an application seeking reinstatement of contact, either at Marymead or at other nominated agencies. The wife filed a response, seeking the discharge of the contact order. On 21 August 2007, Faulks DCJ dismissed both the application and the response, but ordered the husband to pay two-thirds of the wife’s costs. On 17 September 2007, the husband appealed against the order dismissing his application and the order for costs (“the third appeal”).
We heard argument on the three appeals and the cross-appeal in October 2007. The husband, who was self-represented, and counsel for the wife agreed it was unnecessary to consider the merits of the second and third appeals, save insofar as they related to the orders for costs. Our primary focus will therefore be on the first appeal. At the conclusion of our consideration of that appeal, we will return to the costs issues arising in the other appeals.
Background
Faulks DCJ did not deem it necessary to make many findings concerning the history of the parties’ relationship. He did not, for example, record the date of the marriage or separation, presumably since these and many other relevant matters were not the subject of controversy. To the extent that his Honour did make findings of fact, these were not challenged, save concerning the “[swimming pool] incident”.
We will record here sufficient of the relevant history to provide context to our discussion. We will refer in greater detail to other factual matters when considering the grounds of appeal. It will be unnecessary to record many matters relevant to financial issues, since the husband abandoned all but one discrete aspect of the property appeal.
At the time of trial, the wife was a [public servant] aged 44 years and the husband was a 51 year old pensioner. The wife is an Australian citizen and the husband holds dual Australian and [foreign] citizenship.
The parties met in Australia and were married in 1984. They then lived in the [foreign country] for 10 years before taking up residence in Australia. There was only one child of the marriage, [Stephanie], who was born in March 2002. [Stephanie] was four years of age at the time of trial.
The husband sustained a knee injury in 1985 and has subsequently required surgery on numerous occasions. He was injured again in an accident in 1992. These injuries did not prevent the husband from pursuing his passion for [a physical sport], a sport in which he has had considerable success, both in Australia and overseas.
Upon their return to Australia in 1994, the parties settled initially in [New South Wales]. After a period travelling around Australia, they ended up in [another State] between 1997 and 2002. Whilst living in [the other State] the husband was convicted on three occasions of indecent exposure (twice in 2000 and once in 2002). There was no evidence he had ever previously been convicted of such offences, although he had been the subject of complaints to police since the 1980s.
The husband acknowledges he had developed a compulsive propensity to masturbate during his late adolescence and had satisfied this urge throughout most of his adult life. He also acknowledges that, from time to time, he has derived sexual gratification by exposing himself in public. He claims that the objects of his behaviour were always athletic looking women and that it was only ever by accident that he was observed by younger girls. He claims his behaviour was at its worst when living in [the other State] and that he ceased to engage in such activity soon after [Stephanie] was born.
In 2001, the husband travelled to the [foreign country] for the [sport] season. During his time there, the husband stayed with his sister, who was hosting a visit by a friend and her 14 year old daughter, [Catherine]. The husband became “fond” of [Catherine] and developed a relationship with her which he accepted at trial was “inappropriate”. Later in his visit to the [foreign country], the husband went to stay with [Catherine] and her mother in their own home. The visit was abruptly terminated when [Catherine’s] mother experienced what the husband claims was a psychotic episode, during which she called the police and accused the husband of molesting [Catherine].
The husband returned to the [foreign country] for the [sporting event] in February 2002, notwithstanding that the wife was shortly due to give birth. During his two week visit, the husband spent a few nights staying in the home in which [Catherine] was then living. Upon his return to Australia, he remained in contact with [Catherine]; carried her photograph in his wallet; and kept a pair of her underpants “stashed…away in a secret spot”, together with a card and jewellery, which he had proposed to send to her – until they were discovered by the wife.
The parties separated in June 2003, when the wife and [Stephanie] moved from [the country town] (where the parties were then residing) to Canberra. The husband followed, initially taking up residence in a motel. Within a few weeks, the husband again left Australia, this time to follow [a sporting event]. He stayed away for five months, returning to Australia in November 2003, but not resuming residence in Canberra until the middle of December 2003.
The wife commenced proceedings in December 2003, seeking an order that any contact between the husband and [Stephanie] be supervised. In January 2004, the husband was granted supervised contact at Marymead. These visits did not commence until March 2004. After only four visits the husband returned to the [foreign country] in May 2004.
The contact orders were suspended on 3 May 2004, just before the husband’s departure from Australia. An order was made at the same time permitting the husband to send gifts and correspondence to [Stephanie] whilst he was overseas. A few days later, an order was also made allowing the husband telephone contact with [Stephanie].
The husband did not return to Australia until the middle of January 2005. Upon his return, he did not have the benefit of any orders permitting contact or communication with [Stephanie]. The order for supervised contact had been suspended and the other orders allowing communication applied only for the period he was overseas. The parties did, however, reach agreement for the telephone contact to continue.
The proceedings were reactivated and an order was made for [a psychiatrist] to be appointed as Single Expert to carry out an evaluation of the family. [The psychiatrist’s] report was published in May 2005. He recommended the recommencement of the supervised contact visits.
On 14 September 2005, interim orders were made for the husband to have contact with [Stephanie] for two hours a fortnight at Marymead. The centre was unable to facilitate the visits until November 2005. By this time, some 18 months had passed since the husband had completed the last of the four visits he had enjoyed with [Stephanie] prior to his departure for [Europe] shortly after the separation.
The wife had obtained a restraining order after the husband’s return to Australia in December 2003. The husband was convicted of a number of breaches of the order, which was extended for a further year in 2005. The husband spent six weeks in custody from June to August 2005, after being charged with a further breach. He was found guilty and sentenced to the time he had already spent in custody.
After his return to Australia in 2004, the husband purchased a campervan in which he has since lived in and around Canberra. On a hot day in January 2006, a friend of the wife saw the husband sitting in his campervan, backed up against the wire fence surrounding the [swimming pool]. She observed that the door of the vehicle was ajar and she also observed behaviour which led her to conclude that the husband was masturbating in public. She reported her suspicions to the police but no action was taken.
The husband continued to enjoy supervised contact visits with [Stephanie] until the trial commenced in April 2006. After five days of hearing, the proceedings were adjourned until late May 2006. After a further five days of hearing the matter was again postponed until July 2006, when the trial was finally completed after a further three days of hearing.
The parenting orders
Faulks DCJ delivered judgment in August 2006 and made the following orders.
1.[Ms Winch], will have sole parental responsibility for the child [Stephanie], born [on Stephanie’s date of birth].
2. [Stephanie] will live with her mother.
3. [Stephanie] will not spend time with her father [Mr Marsden].
4.[Mr Marsden] may send to [Stephanie] written communication in the form of letters or e-mails.
(a)To enable this communication to occur the mother will provide and continue to provide to the father at all times a current address, which may be a PO Box.
(b)The mother may read any such communications before giving them to [Stephanie].
(c)If the mother believes that the communications are intended more as communication with her rather than [Stephanie], the mother may decline to give the communications to [Stephanie].
5.The father will provide and continue to provide to the mother at all times a current address at which he can receive communications from the mother about [Stephanie].
6.The mother will provide to the father written reports at not less than six monthly intervals about [Stephanie’s] progress and about any major events which occur in [Stephanie’s] life, including but not limited to, school reports, photographs and sporting achievements.
7.The mother will also communicate with the father in circumstances where [Stephanie] is seriously ill or requires hospitalisation.
8.The father may send gifts to [Stephanie] on her birthday and for Christmas and the mother will pass on such gifts to [Stephanie].
Reasons for parenting orders
Faulks DCJ commenced his judgment by dealing with matters he described as “controversial or significant”. One matter to which he paid particular attention was the long list of incidents raised by the wife concerning the husband’s voyeurism. His Honour noted the husband’s responses, which usually contained an admission that there had been an incident, but carried with it an innocent explanation. His Honour found the husband’s explanations to be “self-absolving”, “unconvincing” and “evasive”.
His Honour noted that the husband had conceded he had a history of “paraphilia”. (As the term is not in common usage, we should record that “paraphilia” encompasses a variety of sexual behaviours that are considered deviant or abnormal.) His Honour observed that the incidents described by the wife appeared to be “consistent with the condition of paraphilia” and that “the husband’s denial of the nature of his involvement in the incidents is to that extent less believable and again to that extent reinforces the existence and duration of the conditions”.
His Honour made clear he did not find that the husband had ever physically interfered with any person and, in particular, there was no suggestion that the husband had engaged in deviant activity either in the presence of, or directed towards, [Stephanie].
His Honour referred to the husband’s claim that his “interest is in athletic young women rather than adolescent or young girls”, but said he did not consider this was entirely accurate. In particular, his Honour referred to the husband’s involvement with the young girl, [Catherine]. His Honour rejected the husband’s assertion that this relationship was of a “mentoring or paternal nature”. He observed that during the course of the trial “the husband to some extent claimed to have finally comprehended the inappropriate nature of his relationship and adjusted his stance somewhat about it”. His Honour noted that this included the husband’s acknowledgment that he had stolen a pair of [Catherine’s] underpants and had “used them for some form of sexual stimulation”.
Although his Honour did not accept that the husband’s interest was only in “young women”, he found that the husband “does not have a particular interest in adolescent or young girls” (underlining in the original).
His Honour then recorded details relating to the restraining orders obtained by the wife and the breaches of those orders. He found that “while the father is not physically violent, he has an obsessive relationship with the mother” and observed that even during the trial it was apparent that the husband “had difficulty in accepting that his relationship with the mother was over”. He referred to correspondence sent by the husband to the wife and [Stephanie] which he described as “long and rambling and age-inappropriate letters [which] reflected on his part a determination to pursue a relationship with the mother which by any reasonable standards had long ago ceased to have any prospect of continuing”.
His Honour found that whilst the husband’s actions towards the wife might not pose any physical danger to her, they constituted oppressive conduct which was distressing to the wife and which he considered was likely to continue if the opportunity existed.
His Honour next set out his view of the relevant provisions of the Family Law Act 1975 (“the Act”) and the legal principles relevant to the issues concerning [Stephanie]. We will consider this part of his judgment in detail when discussing the first of the husband’s grounds of appeal.
His Honour then returned to consider the husband’s history of “public indecent exposure and public masturbation”. His Honour noted that whilst the husband conceded he had engaged in such activity in the past, he had drawn attention to the fact that he had no convictions in recent times and had submitted there was no reliable evidence that the behaviour was continuing.
His Honour observed that the expert evidence did not support the proposition that the husband’s deviant tendencies would necessarily lead to any form of direct sexual activity with any other person. His Honour concluded that the evidence did not support a finding that there was “an unacceptable risk” that the husband would sexually interfere with [Stephanie]. However, as his Honour said, this was not the end of the matter.
Firstly, his Honour noted that if the husband were to persist with his “anti-social and probably criminal behaviour” he ran the risk of police intervention. He continued :
48.… If such intervention occurred while [Stephanie] was with him this would at the very minimum be acutely embarrassing for her. It may because of the poor relationship between the father and the mother, leave her at least temporarily in a situation where she is not properly cared for if the mother were in such circumstances unable to be contacted.
His Honour next expressed his concern that it was “feasible/possible that the father could engage in such activities with, or in the presence of friends that [Stephanie] may have to stay when she is with her father”. In this regard, he noted that the husband had, “on occasions shown little discrimination about where he conducts his activities”.
His Honour moved on to consider the likelihood of the husband continuing to engage in his deviant behaviour. He said:
49.… If there were evidence that the father is having treatment and if there were evidence from an expert about paraphilia about the effect of such treatment and the likely prognosis, I could feel a little more comfortable about the future.
His Honour then noted that the Single Expert, [the psychiatrist], had recommended the husband be seen by an expert in paraphilia. He recorded that the husband had not taken up the recommendation and noted there was accordingly no evidence from an expert in paraphilia about the likelihood of the husband’s condition resolving. He noted that whilst [the psychiatrist] had disclaimed particular expertise in the diagnosis or treatment of paraphilia he had stressed there would be no “cure” unless the husband was receiving treatment.
His Honour then went on to note that if –
… the father’s paraphilia manifested itself either in the presence of [Stephanie] or her friends this would be acutely embarrassing for [Stephanie] and may bring about criminal charges against the father and may, in any event, severely affect his relationship with her.
His Honour accepted the proposition that he could not “simply conclude from past events that a specific activity will continue”. He said his acceptance of this proposition therefore required “a careful consideration of the [swimming pool] incident”. Before commencing his discussion of that incident, his Honour saw fit to repeat his finding that the husband’s denials concerning his involvement in deviant activity were “unconvincing”. We will later set out in full his Honour’s treatment of the [swimming pool] incident. It is sufficient to record here that he concluded that the husband had indeed been masturbating outside the [swimming pool], just a few months before the trial commenced.
His Honour then concluded:
56.Given the numbers of times in the past when such activities have occurred it is not fanciful or unreasonable to be concerned that the activities might occur in the future. This is particularly so when the father appears to remain convinced that he does not require treatment.
His Honour went on to say that his concerns about the husband engaging in paraphilic activity in the future were reinforced by the fact that he had not been fully frank about his behaviour when seeking out professional assistance in the past. He found the husband’s tendency not to tell “the full story” to be “particularly worrying” in the context of assessing his assurance that the behaviour was not continuing.
His Honour then returned to consideration of the husband’s relationship with [Catherine]. He said he was “seriously concerned” about this, even if he could be persuaded that the husband’s past paraphilic conduct ought not preclude him from spending time with [Stephanie]. He observed that whilst the relationship with [Catherine] had occurred between 2001 and 2002, the husband had persisted up until trial with the view that there was nothing wrong it. As his Honour said, “there was something wrong with that relationship. She was at the relevant time 14 years old. He was 47 or 48 years old”.
Whilst his Honour said he was reasonably satisfied there was no physical aspect to the husband’s relationship with [Catherine], there was “quite clearly a sexualised aspect to it to the extent that he stole her under-clothes and kept them”. He also found that the letter and gift, which the husband proposed to send to [Catherine], were “totally inappropriate”. He concluded that the relationship “was of a romantic nature, was of a partly sexualised nature and was totally inappropriate” and was inconsistent with the husband’s assertion that he was interested only in “young athletic women not in young girls”.
His Honour then made a variety of observations, which are so central to his ultimate decision that they must be repeated in full:
61.These factors suggest that there are aspects of the father’s condition even after all the therapy he has undergone which he himself has not yet come to grips with. Moreover his inability apparently to be open with his therapists gives concern either about his own insight or alternatively his honesty in this area. In either direction his interest and concern in girls of this age even though perhaps at this point only apparently manifested through one girl of this age is of great concern.
62.This would not in itself of course leave me to conclude that he must necessarily be of danger to his own daughter. However it would leave me with a very serious concern that he may either directly or indirectly show interest in friends of his daughter at a later point and the consequences of his doing so at their most extreme do not need to be further canvassed. I cannot and do not find that there is a probability or even an unacceptable risk that the father would interfere with any of [Stephanie’s] friends – let alone [Stephanie]. I do accept however that it is possible and for the reasons I have just mentioned in my opinion more likely than not that without treatment the father may engage in exhibitionism with young friends of [Stephanie]. The test is not “unacceptable risk”. However all relationships depend to some extent on balancing the predictable benefits against the possible or likely detriments. The balance itself must in part depend on the magnitude of the advantage and the potential consequences if the possible detriment should occur. There are advantages for [Stephanie] in having a relationship with a loving and caring father but I do not find that those advantages outweigh the detriment to her if the father should revert [to] or possibly continue with his past behaviour.
His Honour then observed that none of the matters to which he had referred would preclude [Stephanie] spending time with the husband “supervised by a vigilant and appropriate supervisor”. His Honour recorded that contact had been supervised up to that point and that from the husband’s point of view “this has been a satisfactory (but severely limited) experience”. His Honour continued:
64.The mother reports some disturbed behaviour from [Stephanie] in and about “contact” but it would appear that at the very least the visits have been neutral. The circumstances as the father complains are inevitably artificial. The father is limited in the scope of his activities with [Stephanie]. There is no opportunity for [Stephanie] to have normal living time with her father. There has been some controversy about the payment for the service. The father’s lack of employment has not assisted.
65.Notwithstanding all of those drawbacks if I am to place as a very high priority the maintaining of some form of relationship between [Stephanie] and her father it would have to be said that supervised contact may present an opportunity for doing this.
His Honour then recorded, with regret, that there were factors which would militate against even supervised contact. He went on to describe those factors.
The first was the husband’s intention to return to the [foreign country] to continue with his [business activities]. His Honour was unable to determine how long he might be away, but found “that months are likely to be involved rather than shorter periods”. He found that the husband had “clearly given no thought to the fact that this activity would necessarily separate him from [Stephanie] …” He also found that the husband had not indicated “whether he wanted to return to see [Stephanie] in Australia during this development phase or perhaps even more importantly whether he would be able to either financially or physically”.
The next factor his Honour took into account was the husband’s plans to have further medical treatment in the [foreign country]. He noted that the husband had not “given any indication about what he saw would happen with [Stephanie] while he was undergoing this treatment in the [foreign country] …” He went on to note that the husband’s [business activities] and medical treatment could not occur simultaneously and would therefore “represent separate periods in which the time that [Stephanie] could spend with her father physically even in a supervised way would be extremely limited if not suspended”.
His Honour did note that many parents are separated from their children (for example whilst on military service) and observed that “this does not mean that the children cannot continue to have a relationship with an absent parent”. In the present case, however, he observed that the husband was choosing to undertake the activities which would take him away from Australia and that “at the very least they demonstrate … a lack of understanding about how the things that he wants to do may impinge upon things that may be best for his daughter”. His Honour concluded:
73.Importantly in the context of a consideration of supervised contact the restricted relationship between [Stephanie] and her father would be impacted by such absences. This at least calls into question the efficacy of such supervised arrangements if even that limited physical interaction will be suspended or circumscribed by the activities of the father.
The next factor his Honour considered relevant to supervised contact was what he described as the husband’s “almost obsessional relationship with the mother” which he found had “led to conduct which might in some respects be thought to be close to stalking”. He went on to describe how the husband had used [Stephanie] in a “totally inappropriate” way in trying to assist him to resume a relationship with the wife. His Honour concluded that the husband “has no ability to understand that he is in fact using his own daughter in furtherance of what he sees as a legitimate objective of reconstituting his relationship with the mother”.
His Honour then turned to the impact that contact between the husband and [Stephanie] would have on the wife. He said:
77.The father complained (with some justification) that the mother had shown some degree of obsession herself in her physical examinations of [Stephanie’s] genitals and body when she returned from time with her father. This was an excessive response but illustrates the effect contact has had on the mother and could have. That in turn may have vicariously unfortunate effects on [Stephanie]. It would not be reasonable to abandon time that a child spends with one parent because the other parent responds to that time unreasonably or irrationally. However when the other parent’s conduct has been responsible for the concerns of the parent (even if those concerns may not be a proportionate response) it is reasonable to at least take that consequence into account.
In considering the possibility of ordering supervised contact, his Honour also took account of the way in which the husband had misused the order allowing him written contact with [Stephanie]. He noted that “part of the evidence before me is a quite extraordinary letter written by the father in a rambling scientific and pseudoscientific analysis of the world, philosophy and other factors well beyond the remotest comprehension of a child of [Stephanie’s] age”. His Honour concluded that “the correspondence such as is in evidence before me suggests that this is but another attempt on the part of the father to communicate with the mother purportedly through communicating with the daughter”.
His Honour then said:
81.This leads me back to the question of supervised contact. Communications with a child about her father visiting her are not things which would ordinarily excite the concern of those who are supervising. That in this context makes the supervised contact even more problematic.
The second sentence of this paragraph is somewhat cryptic but, in context, it is clear his Honour was concerned that the husband might speak with [Stephanie] during supervised visits in a way that might appear innocuous to the supervisor but would, in fact, have a deleterious impact on the wife, who would be likely to hear from [Stephanie] what was said during the visits.
His Honour concluded his discussion concerning the possibility of ordering supervised contact by saying:
82.On balance it seems to me that the supervised contact does not provide any benefit for [Stephanie]. This is a conclusion I reach with a great deal of reluctance and with significant sadness. I do not believe however that it is appropriate that in all of the circumstances of this matter [Stephanie] have even a limited and potentially difficult sort of relationship with her father.
His Honour then turned to consider means by which the husband might continue a relationship with [Stephanie] but without having face to face contact. He indicated that he had “deliberated hard” about whether he should prohibit any written contact because of the husband’s past misuse of such contact. He concluded that he should “place a measure of trust” in the wife because of the way she had co-operated in trying to maintain a relationship between [Stephanie] and the husband, notwithstanding “extreme provocation”. He therefore determined that the husband could write to [Stephanie], but only on the basis that the wife could decide whether the correspondence was passed on. He also determined that the husband should be permitted to send Christmas and birthday cards and gifts.
Having announced his intentions about the orders to be made, his Honour then discussed a number of matters by reference to specific portions of the legislation. It will be convenient to refer to this aspect of his judgment when we discuss the first of the grounds of appeal.
Grounds of appeal – parenting orders
The husband advanced the following nine grounds of appeal in challenging the parenting orders:
1.That the trial judge erred in applying or failing to apply the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
2.That his Honour’s dismissal of the father’s application for further evidence from an appropriately qualified expert was a denial of procedural fairness.
3.That his Honour misapplied the dicta in M v M (1988) 166 CLR 69; 82 ALR 577; 12 Fam LR 606; (1988) FLC 91-979.
4.That his Honour failed to give any or adequate reasons for his failure to implement the recommendations of the expert.
5.His Honour’s finding that there was no benefit to the child in supervised contact was not open to him on the evidence.
6.That having regard to the provisions of section 140 of the Evidence Act his Honour’s finding about the “[swimming pool] incident” were not open to the Court.
7.That his Honour erred in reaching a conclusion about the nature of the appellant’s relationship with [Catherine] in circumstances where he improperly applied the provisions of section 100B of the Act.
8.That his Honour erred in failing to permit the father to cross-examine about the attitude of the wife’s family to him.
9.That having regard to the fresh evidence the findings of the trial judge concerning likelihood of relapse, possibility of the father engaging in inappropriate conduct in the presence of the child, possibility of the father engaging in inappropriate conduct in respect of the child’s friends/acquaintances is not open.
Ground 1
The first ground was expressed in vague terms; however, the husband’s Summary of Argument referred to two matters which, it was submitted, constituted error by his Honour in applying Part VII of the Act.
The first related to his Honour’s decision to award the wife sole parental responsibility. It was asserted that his Honour “did not follow the statutory framework” in that there was no indication that he had either explicitly or implicitly considered the presumption of equal shared parental responsibility contained in s 61DA(1) of the Act.
Section 61DA relevantly provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
We will return shortly to consider the complaint concerning the way in which his Honour dealt (or failed to deal) with s 61DA.
The second error asserted in Ground 1 was that his Honour:
did not have regard to the hierarchy of considerations in section 60CC of the Act: primary and additional considerations and failed to address the importance of the primary consideration [sic].
The husband amplified this submission by asserting that it was not clear from his Honour’s reasons “what factor or factors combined to displace the primary consideration contained in s 60CC(2)(a)”.
The legislation, in fact, contains two primary considerations to be taken into account. Subsections 60CC(1) and (2), relevantly provide:
(1)... [I]n determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(3) then goes on to list a raft of “additional considerations” the court must consider in determining what is in a child’s best interests.
His Honour discussed the statutory provisions and relevant legal principles at paras 39 to 42 of his judgment. It is important we set out those paragraphs in full, since they indicate the legal framework within which his Honour reached his decision:
39.The child’s best interests are the paramount consideration for the Court in making a parenting order. The best interests of the child are guided by the Objects of the Family Law Act 1975 and the list of factors in s 60CC. The primary considerations are:
(2) (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There are also additional considerations which the Court must consider, including the nature of the relationship of the child with its parents, the capacity of the children to provide for the needs of the children, and the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
40.The importance to children of their having contact with both of their parents cannot be underestimated. This was the situation in this Court even prior to the enactment of the Family Law Amendment (Shared Parenting) Act 2006 which relevantly provides,
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child…
For example, in B v B [Access] Justice Gee stated,
Now it is clear that the welfare of the children is the paramount consideration. The real question in this case is whether making an order for access will promote the ongoing welfare of the children or whether it will undermine such stability as they already have. While it is desirable for children to maintain a meaningful relationship with both parents, something even more desirable when separated (see Cotton and Cotton (1983) FLC 91-330 and Keaton v Keaton P. 468 of 1986, an unreported decision of Rouke J. of 20 June 1986), that desirability only operates when there is a chance of a meaningful relationship which is beneficial to the child (see Cotton and Cotton, supra).
41.The desirability of contact was considered by Justice Nygh in Cotton (supra) where his Honour stated that,
It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with the parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. Nor is it necessary…that access should only be denied if it is established that a parent is likely to be a positive harm to the child -- it is the emotional relationship which counts.
42.There are a number of other exceptional circumstances when it may be in the child’s best interest to deny contact to a parent. These include: when contact is traumatic for a child, in cases of abuse or family violence for example; when the child expresses strong resistance to contact; and in situations where contact could undermine the child’s relationship with the parent with whom the child lives. In the latter case, the undermining of a child’s relationship with their primary carer can occur in situations where there has been family violence or where the behaviour of the person with whom the child spends time has impacted upon or continues to impact upon the functioning of the primary carer.
As we have already noted, his Honour, after considering the evidence, concluded it was in [Stephanie’s] best interests to have no direct contact with the husband. Having said so, his Honour noted at para 87, “my consideration of these matters has substantially dealt with the matters I am obliged to take into account under the Family Law Act 1975”. He then went on to repeat that his obligation was to “place [Stephanie’s] interests as my paramount consideration” and said he had this at the forefront of his mind when arriving at his decision. He then said:
89.I am also in accordance with section 60CC to regard as a primary consideration the benefit to [Stephanie] of having a meaningful relationship with both of her parents. I have concluded with some regret and some sadness that it is not in this case of benefit to [Stephanie] to have a relationship with her father except in the very attenuated form that I have outlined above.
90.I have been conscious of my need to protect her from psychological harm although I have concluded that it is unlikely that she would be subjected to any physical harm.
His Honour, having noted that “the additional considerations I am obliged to take into account are set out in s 66CC(3)” [sic] , went on to discuss briefly a number of matters referred to in s 60CC(3).
Having next considered s 60CC(4), his Honour concluded his discussion by saying:
103.To remove any doubt although it would seem to me to be perfectly clear from what I have said before I have taken into account, considered and rejected the possibility that there might be substantial sharing of parenting between these two parents. In my opinion for the reasons I have set out above there should not be.
It is the case, as the husband asserts, that nowhere in his judgment did his Honour make express reference to the presumption of equal shared parental responsibility contained in s 61DA(1). Whilst we accept it would have been desirable for his Honour to have made reference to the presumption in explaining why he proposed allowing the wife sole parental responsibility, we accept the submission made on behalf of the wife (relying on Bennett and Bennett (1991) FLC 92-191) that:
the presumption need not be spelt out in detail, nor does its rebuttal require any specific form of words. It is sufficient if, as occurred in the present case, the substance of the issue is considered and dealt with in a way that permits an appellate court to discern either expressly or by implication the path by which the result has been reached.
In our view, it is clear that when his Honour said he had “taken into account, considered and rejected the possibility that there might be substantial sharing of parenting between these two parents”, he had in mind not only responsibility for the duties associated with the physical care of the child, but also parental responsibility (i.e. decision-making). In view of all the other findings his Honour made, his decision to allow the wife to have sole parental responsibility was clearly the only decision open to him.
It must be remembered that s 61DA(4) provides that the presumption of equal shared responsibility may be “rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. His Honour’s judgment makes clear that he was so satisfied and why. There is accordingly no substance in the first limb of the husband’s criticism of the way in which his Honour applied Part VII of the Act.
Furthermore, we do not consider there is any substance in the second complaint that his Honour did not have regard to the “hierarchy of considerations” in s 60CC and “failed to address the importance of the primary consideration”.
The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations. It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.
It follows that we reject the premise inherent in the husband’s submission that his Honour was obliged to indicate “what factor or factors combined to displace the primary consideration contained in section 60CC(2)(a)”. Firstly, that submission ignores the fact that there is a second primary consideration which his Honour was also obliged to take into account. Furthermore, it is not a question of other factors being needed to “displace” one of the primary considerations. Rather, his Honour was obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as he thought appropriate in arriving at the result most likely to promote [Stephanie’s] best interests. In doing so, he was of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.
In our view, his Honour was at pains to give significant weight to both of the primary considerations. At para 40 his Honour opined that, “the importance to children of their having contact with both of their parents cannot be underestimated”. At para 42, he listed a variety of circumstances in which it might be in a child’s best interests for contact to be denied – but he stressed that such circumstances were “exceptional”. He addressed at length the benefit to [Stephanie] of having a meaningful relationship with both of her parents. However, he also addressed the likely detriments associated with her having an ongoing relationship with the husband and concluded that these outweighed the benefits he had identified. We can see no appealable error in the way his Honour approached this exceedingly difficult task.
Before concluding our discussion of Ground 1, we should record that we have considered and rejected as incorrect (and irrelevant) the wife’s assertion that the husband had abandoned his application for shared parental responsibility contained in the Response filed on 27 January 2004. We have considered both the husband’s Minute of Orders Sought filed in March 2006, and the undated “Father’s Minute of Orders Sought” and do not find in either of them any indication that the husband resiled from his request. The husband’s Summary of Argument filed on 29 March 2006 (which his Honour incorporated as an endnote to his judgment) expressly said that “the husband ultimately seeks parenting orders in accordance with his response filed 27th January 2004”.
We might also observe that at no stage did the wife formally seek an order for sole parental responsibility. Nor was the issue canvassed in the closing submissions or at any other time during the course of the trial. In the final analysis, however, it is irrelevant for present purposes what relief the parties sought. This is so because, subject to s 61DA(2), the presumption of shared parental responsibility applies whenever the court is making a parenting order: Goode & Goode (2006) FLC 93-286 at [85].
Ground 2
By this ground it is asserted that “his Honour’s dismissal of the father’s application for further evidence from an appropriately qualified expert was a denial of procedural fairness”.
The application in question was filed on 24 March 2006, very shortly prior to the commencement of the trial. The application was not included in the Appeal Books, but his Honour is recorded as noting (Appeal Book 443) that it sought “leave to produce and be allowed to admit evidence as detailed as follows…Report forthcoming from [a clinical psychologist], [Mr T] and/or [Mr B] addressing [the psychiatrist’s] report”.
It will be recalled that [the psychiatrist] had been appointed as Single Expert. [The clinical psychologist], who was referred to in the husband’s application, was a clinical psychologist whom the husband had consulted for an assessment during the proceedings. He had already provided a report setting out his (favourable) opinion of the risk the husband posed to [Stephanie].
The husband’s application to introduce additional evidence was considered on the first day of trial. His Honour noted that it had been made outside the time permitted by earlier procedural directions. He then ascertained that the husband did not actually have any of the reports on which he wished to rely. His Honour indicated that the report already provided by [the clinical psychologist] would be admitted into evidence, but enquired from the husband why he should be allowed permission to rely upon a report yet to be obtained “when you’ve had ample time in which to deal with it”.
The husband denied that he had ample time, claming that he had been experiencing a great deal of trauma and stress. He went on to say that [the clinical psychologist] could have his report “created within a few days”. Although the application made reference to [Mr T] and [Mr B], the husband made no mention of how long it might take either of them to produce a report.
Counsel for the wife opposed any further reports being produced and advised that, if the husband was not permitted leave to adduce any further evidence from [the clinical psychologist], the wife would not seek to cross-examine him on the report already provided.
His Honour gave brief reasons for his decision to dismiss the husband’s application. He said (at Appeal Book 464):
Now, [Mr Marsden], your applications for a further report from [the clinical psychologist] or [Mr T] or [Mr B] is refused. I do not believe, in the circumstances where there’s a single expert and the time and the directions are as I’ve given them, that it would be fair or reasonable to postpone these proceedings to enable that to occur. You are entitled to and may rely upon the report that he submitted previously.
We can see no error in the approach his Honour adopted. [The psychiatrist’s] report had been published in May 2005. The husband had had ample time in which to obtain any further evidence dealing with matters raised in the report. Such evidence was not available at the commencement of the trial and there was no guarantee it would be available within the short timeframe the husband mentioned. Furthermore, the husband had conceded in the course of argument that if he were given an opportunity to adduce additional evidence, it would be fair that the wife then be given an opportunity to seek to adduce additional evidence.
Although the husband’s application had been dismissed, he sought to agitate the issue again when the trial resumed in May 2006. At the commencement of this portion of the hearing, the husband advised his Honour that in the interim he had consulted with [Mr B] (and a [Ms H]), whom he said had reviewed the affidavits and [the psychiatrist’s] report and were prepared to provide “input”. He said, “these people are prepared to generate a report for you, if it would assist you in any way”. (Appeal Book 883)
His Honour responded by saying that the proposed witnesses would not “be aware of the issues that have arisen during the course of the hearing...[or]…what determinations, if any, I make about some of those incidents”. His Honour concluded that, in his opinion, a report from either of the experts would not fulfil any useful purpose. His Honour went on to say that if reports were provided, there would then be a need to have the witnesses available for cross-examination about their opinions. He continued:
That may then give rise, because of its late injection into the proceedings, to an application for an adjournment so that alternative witnesses can be obtained, and that in turn may give rise to a further adjournment on your part to seek that [Mr B] and [Ms H] have an opportunity to review the evidence of the contradicting witnesses, so the cycle goes on.
His Honour also noted that it was not in the interests of either party or [Stephanie] for the hearing to be prolonged.
Once again, we see no error in the approach adopted by his Honour. The husband’s application had already been dismissed. He still did not have a report available. There was no reliable indication of how quickly such reports might be obtained. The trial had already taken five days and to allow the introduction of further witnesses would inevitably prolong the proceedings.
For the sake of completeness, we should also make mention of Rule 15.49, which is in the following terms:
15.49(1)If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court's permission.
15.49(2)The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and that the contrary opinion is or may be necessary for determining the issue;
(b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c)there is another special reason for adducing evidence from another expert witness.
We were not directed to any evidence the husband had provided which would have formed the basis for the exercise of the discretion afforded by Rule 15.49(2) to allow additional expert evidence.
Ground 3
By this ground, the husband asserts that the trial Judge “misapplied the dicta in M v M (1988) FLC 91-979”. Reference to the husband’s Summary of Argument indicates that the particular dicta in M and M said to have been misapplied concerned “the unacceptable risk test”.
The only references made by his Honour to the concept of “unacceptable risk” were in paras 46 and 62 of his judgment. In the former paragraph, his Honour found that the evidence was not such as enable him to conclude that there was an “unacceptable risk that the father must or would sexually interfere with his daughter”. We presume the husband does not complain about this reference to “unacceptable risk”.
No submissions were advanced to elucidate the claim that his Honour misapplied “the unacceptable risk test” in para 62 (which we have cited in full above). It is apparent from consideration of the part of the judgment in which that paragraph appears that his Honour was engaged in a process of balancing the benefits to [Stephanie] of spending time with her father against the likely detriments. In adopting this approach, his Honour was doing precisely what the High Court indicated in M and M was the function of a trial judge. As the High Court said at 77,080:
Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression … In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child … Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child.
Although his Honour did not find there was “an unacceptable risk” of the husband interfering either with [Stephanie] or her friends, he determined that, unless the husband undertook treatment, he may engage in “exhibitionist” behaviour in the presence of friends of [Stephanie]. In our view, that was a matter his Honour was entitled to take into account in determining whether it would be in [Stephanie’s] best interests to spend time with the husband.
We see nothing contrary to established authority in his Honour’s approach.
Ground 4
By this ground the husband asserts that his Honour “failed to give any or adequate reasons for his failure to implement the recommendations of the expert”.
The expert to whom this ground refers is [the psychiatrist], the Single Expert. It will be recalled that [the psychiatrist] provided his report in May 2005. He did so after viewing a variety of documents and having interviewed the husband and wife on one occasion, as well as meeting with [Stephanie].
After a lengthy introduction to his report, in which he detailed relevant history and matters noted from documents he had seen, [the psychiatrist] set out his conclusions and recommendations.
… I formed the view that [Stephanie] is a child who is capable of maintaining good quality secure relationship and that provided the Court formed the view that there was not an unacceptable risk of harm from the father, or even that an unacceptable risk could be contained by supervision, [Stephanie] has the capacity to develop a relationship with her father without being obviously prone to anxiety or insecurity.
[The psychiatrist] went on to note that at the time he saw her, [Stephanie] had little or no concept of having a father and was probably “quite a psychologically robust child”. He said that, nevertheless:
were she not to see her father at all throughout her childhood, she would probably experience this as a loss and a source of regret and some sadness to her. However, I doubt that this in itself would cause a psychological disturbance.
After considering issues associated with the likely credibility of the husband’s claim that he was no longer engaging in exhibitionist activity, [the psychiatrist] said:
If it is concluded that at the present time [the husband] is significantly playing down the nature and significance of the above incidents, then there must be a significant question over his remorsefulness and the risk of relapse.
[The psychiatrist] went on to say:
In general, the paraphilias such as Exhibitionism are difficult to treat and even when symptomatic relief is gained, the risk of relapse remains significant. Typically, relapse occurs during times of stress, particularly when the individual’s self esteem is under assault (as [the husband’s] is at the moment). For that reason, even if the Court forms the view that [the husband’s] behaviour is not being manifest at the moment, then bearing in mind that he himself describes it as a situation that he struggled with throughout his adult life, it is my view that the Court should still expect to be satisfied that he will continue to access appropriate maintenance treatment for this condition.
[The psychiatrist] then said he was unaware of any suitable professionals to undertake such treatment in Canberra, where the husband lives, but named an expert in Sydney who might be able to recommend an appropriate person.
[The psychiatrist] observed that:
[t]he likelihood and imminence of relapse is difficult to estimate and depends to some extent on the reliance given to the father’s account. For instance if the Court is satisfied that it is probable that he has engaged in exhibitionistic behaviour more recently than the father alleges then the risk of relapse would have to be held to be very high, and indeed it probably would be correct to say that there had been no remission at all. Moreover there is also the issue of his preferred age of victim.
If on the other hand, the Court forms the view that the father has ceased from the time he says and that the frequency and discreetness of the incidents and the age of his preferred victims roughly accord with his accounts, then particularly if he commits himself to ongoing support and counselling, the risk of relapse is proportionally lower. However as I have pointed out, this is a notoriously relapsing condition particularly under circumstances of stress, so probably the risk of relapse can never be eliminated.
[The psychiatrist] also gave his opinion concerning the likely impact on the husband of being refused contact with [Stephanie] and the likely impact on the wife if contact were to be allowed. In the case of the husband, he found that there was a likelihood he would develop a major depressive disorder. In the case of the wife, he considered it “unlikely that if the Court were to order contact which reflects the risk, she would suffer a degree of distress which would significantly impair her capacity to parent or to provide for her daughter”.
[The psychiatrist’s] assessment in relation to the impact of contact on the wife was made on the basis of his opinion that she was a “warm, thoughtful, psychologically well-adjusted woman” who did not have “any enduring mental illness or personality disorder”. [The psychiatrist] also expressed the opinion that whilst the wife had experienced “a degree of stress” from the husband’s “unwanted direct and indirect approaches to her”, he had not formed the view that “this has caused her to be so disturbed or troubled that it has compromised her capacity to work or to parent”.
In considering the term of reference “the need to protect the child from any form of physical, emotional or sexual abuse or neglect”, [the psychiatrist] first considered issues associated with the husband’s “self absorption and preoccupation with [Stephanie] as an idealised reflection of him”. Overall, [the psychiatrist] did not appear to consider that these were factors of significant risk. However, he went on to say:
Of much greater concern is if the Court is satisfied that the father continues to suffer from a clinical degree of Exhibitionism which is associated with compulsive misbehaviour towards pre-pubertal or pubertal children. If the court forms this view, it is my view that certain risks do flow from this.
[The psychiatrist] went on to discuss the possibility of [Stephanie] being “drawn into inappropriate levels of intimacy”, which he was at pains to emphasise “may not necessarily involve intercourse or other sexually explicit behaviour”. He also identified a second risk, namely [Stephanie] being present while her father was carrying out his exhibitionist activities. Finally, he considered the risks associated with [Stephanie’s] friends being the object of the husband’s exhibitionist behaviour. He referred to the possibility of [Stephanie] feeling “a sense of guilt and shame on behalf of her friends” and could also “cause her friends to become alienated from her”.
Immediately after identifying these possible risks, [the psychiatrist] said:
The mother seeks a no contact order. However it is my view that if acceptably safe, an opportunity should be provided for [the husband] and [Stephanie] to consolidate and maintain a relationship now. I believe she will cope with this if there is no misconduct and that it will provide a base for a sustainable relationship of her choosing when she is an adult.
There is no doubt that [the husband] has suffered from the condition of Exhibitionism. The question is whether he has recovered from this and whether the recovery will be maintained. This gives rise to three possible situations. The first is that the Court forms the view that there is an unacceptable risk that he will continue to behave in this way. The second that he has had this condition which is in remission now but that there is an unacceptable risk that it will recur within the period of the childhood of [Stephanie]. The third is that it is in remission now and that there is not an unacceptable risk that it will recur within the childhood of [Stephanie]. Overarching these options is whether the Court finds that his preferred victims are younger females, which would make any relapse potentially more damaging.
In the event that the Court takes the first view, then there seems little prospect that any contact could be anything but supervised. Under those circumstances, I would recommend professional supervision at this point, and the contact be introduced on a two hours per fortnight basis. Unfortunately the constraints of professional supervision is such that it is unlikely that anything but a small increase in the duration and possible frequency of this contact would be possible in the foreseeable future. However depending on reports from treating psychiatrists or psychologists, and subject probably to a further hearing, the introduction of non-professional supervision may be possible, for instance supervised by friends of the father or friends or relatives of the mother. …
In the second instance my recommendations would be along the same lines as above.
In the third instance, my recommendations would also be along the same lines as above, however it may be that professional supervision could be limited to six or twelve months provided there are no further offences detected and subject to a favourable report from the father’s treating psychiatrist [or] psychologist.
I would note however that my understanding of this condition is that the risk of relapse is sufficiently high, particularly if [the husband] continues to feel rather stressed, that I doubt that the Court could make a finding of no unacceptable risk. However I would defer to the opinion of a specialist in paraphilias in this regard.
It will be seen that [the psychiatrist] recommended there be some contact between [Stephanie] and the husband provided it was “acceptably safe”. In all three possible scenarios he posited, his recommendation was for contact to take place under supervision. It was only in the third scenario that he contemplated the possibility of the contact ever becoming unsupervised.
Consideration of the passages from the judgment to which we referred earlier will demonstrate that his Honour considered that supervised contact would, prima facie, be beneficial for [Stephanie]. To that extent, therefore, his Honour accepted [the psychiatrist’s] opinion, although he did not expressly say so.
His Honour ultimately decided not to order supervised contact for three reasons.
The first related to his concern that, even if he ordered such contact, the husband would go overseas for extended periods to pursue his [business activities] and his medical treatment. Quite apart from any impact this might have on [Stephanie], his Honour considered that the husband’s plans demonstrated a lack of understanding about how his behaviour might impinge on [Stephanie]. In this regard, it is significant to recall that the husband had already spent extensive time travelling overseas.
The second reason for his Honour deciding not to order supervised contact related to the husband’s “almost obsessional relationship with the wife” and the manner in which he had used [Stephanie] in a “totally inappropriate” way with a view to assisting him to resume a relationship with the wife.
The third reason for his Honour’s ultimate decision related to the negative impact that even supervised contact would have on the wife, which he found could have “vicariously unfortunate effects on [Stephanie]”.
We accept that his Honour’s judgment does not make any mention of [the psychiatrist’s] views concerning these three matters. In particular, no mention was made of [the psychiatrist’s] opinion about the likely impact on [Stephanie] of interruptions to supervised contact if the husband were to spend time travelling overseas. In answer to questions posed by his Honour (at Appeal Book 1271 et seq), [the psychiatrist] had indicated that he would still support supervised contact, even if the husband were to spend extended periods away from [Stephanie].
Similarly, his Honour did not mention that portion of [the psychiatrist’s] report in which he indicated that he thought it unlikely, if contact were ordered, that the wife would “suffer a degree of distress which would significantly impair her capacity to parent or to provide for her daughter”. Nor did he mention the part of the report in which [the psychiatrist] recorded his opinion that the husband’s “unwanted direct and indirect approaches” had not caused the wife “to be so disturbed or troubled that it has compromised her capacity to work or to parent”.
Whilst we consider it would have been desirable for his Honour to have made at least some mention of these aspects of [the psychiatrist’s] evidence in his judgment, we do not consider he erred in the appellate sense in failing to do so.
There was certainly no error in failing to make mention of the view expressed by [the psychiatrist] in his report concerning the negative impact any supervised contact might have on the wife and concerning her ability to cope with the husband’s unwanted approaches. His Honour differed from [the psychiatrist] concerning the way in which the wife would cope with these things; however, he was entitled to do so on the evidence. In this regard it needs to be recalled that when [the psychiatrist] saw the wife in 2005, there had been no contact for almost a year. By the time [the psychiatrist] was giving evidence at trial, the contact visits had resumed; the wife had obtained an extension of the restraining order; and the husband had been in prison for breaching the order. The wife had also given extensive evidence of the deterioration in her physical and emotional health. Under cross-examination (at Appeal Book 1222), [the psychiatrist] acknowledged that this evidence would indicate that the wife was not as “robust as I thought that she was”.
The learned trial Judge had an opportunity to observe the wife over 13 days of trial and had considered her evidence concerning the negative impact of the contact arrangements and the husband’s behaviour. His Honour was well placed to assess the likely future impact of such contact and behaviour on the wife and, in our view, was not obliged to mention the fact that [the psychiatrist] had originally held a more sanguine view of her ability to cope.
The position concerning his Honour’s failure to mention [the psychiatrist’s] opinion about the significance of the husband’s anticipated extended absences whilst travelling overseas is arguably not as clear cut. This is so because [the psychiatrist] did not resile from his view on that issue. Nevertheless, as Fogarty and May JJ said in Re C & J (1996) FLC 92-697 at 83,339:
It is well established that the opinions of an expert, however well qualified, are not decisive of the issue and that it is ultimately for the tribunal of fact to determine the matter having regard to that and the other evidence in the case, including the impressions formed of other witnesses. There is no need to cite authority of that well-established approach. But in cases of this sort—the unacceptable risk case involving children who are often inarticulate witnesses of their own misfortunes—that process needs to be approached with caution, fundamentally because the issue is different.
The latter part of this citation echoes the views expressed in J & J (1994) FLC 92-476 at 80,944, where Ellis, Finn & Chisholm JJ said:
While we stress that trial Judges do not have to accept the evidence of experts in child abuse cases, it is imperative that there be proper analysis and evaluation of such evidence by the trial Judge in his or her judgment, and whether that evidence ultimately be accepted or rejected, that proper reasons be given in the judgment for such acceptance or rejection…
We observe that the present is not a “child abuse case” of the type mentioned in the passages cited above. We are also inclined to consider that different considerations might apply to expert testimony directed towards determining the likelihood of a child having been abused in the past, as compared with expert opinion about the possible impact of something yet to occur. Ultimately, however, we do not accept that his Honour rejected the view [the psychiatrist] expressed about the impact on [Stephanie] of extended interruptions to a supervised contact arrangement. In discussing this issue, his Honour said only that the already restricted relationship between father and daughter would be “impacted” by such absences (which we consider self evident) and that this “at least calls into question the efficacy of such supervised arrangements”. His Honour then turned to consider the negative impact that supervised contact would have on the wife and therefore on [Stephanie] and concluded, taking into account all the matters he had mentioned, that it would be best for [Stephanie] to have no contact with her father.
This ground of appeal was directed at the adequacy of his Honour’s reasons. The law requiring the Court to provide adequate reasons is well settled. The adequacy of the reasons depends upon the circumstances of the case but the reasons will generally be adequate if the appeal court is able to ascertain either expressly or by implication the path by which the result has been reached: Bennett v Bennett (supra). In our view, it is clear why his Honour did not accept [the psychiatrist’s] recommendation in favour of supervised contact and accordingly we conclude there is no substance in this ground of appeal.
Ground 5
By this ground, the husband asserts it was not open to his Honour to find there was no benefit to [Stephanie] in supervised contact.
It is the case that in para 82 of his judgment, his Honour recorded that “on balance it seems to me that the supervised contact does not provide any benefit for [Stephanie]”. This statement, however, needs to be read in the context of the careful consideration his Honour gave to the question of supervised contact at paras 63 to 81. Contrary to the assumption contained in this ground, we consider his Honour clearly saw benefit to [Stephanie] in having supervised contact; however, for the reasons he gave, his Honour concluded that the possible disadvantages outweighed possible advantages. He therefore found, properly in our view, that an order for no contact would be the outcome most likely to promote [Stephanie’s] best interests.
Ground 6
By this ground the husband asserts that, “having regard to the provisions of s 140 of the Evidence Act his Honour’s finding about the “[swimming pool] incident” [was] not open to the Court”. It will be recalled that this ground relates to his Honour’s finding that the husband was masturbating in public just a few months before the trial began.
Before proceeding with discussion of this ground, which is the only challenge made in this appeal to a finding of fact, it is important to remind ourselves that an appeal to the Full Court proceeds by way of rehearing. Section 93A(2) of the Act provides that:
[i]n an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact …
The obligations of appellate courts were spelled out by the High Court in Fox v Percy (2003) 214 CLR 118, where Gleeson CJ, Gummow and Kirby JJ said:
25.Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”.
Their Honours then referred to the following passage from the decision of the High Court in Warren v Coombes (1979) 142 CLR 531 at 551:
[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.
Their Honours then said:
27.…If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute … [T]he mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. … In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.
Before proceeding, we should also acknowledge that the particular finding of fact under challenge here involved a finding of behaviour that would constitute criminal conduct. Bearing this in mind, it is apt we repeat the frequently cited remarks of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363:
[W]hen the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality … it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences … It is often said that such an issue as fraud must be proved “clearly”, “unequivocally”, “strictly” or “with certainty”. This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond the reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.
Whilst these words are frequently cited, they must be read subject to what was said by the High Court (Mason CJ, Brennan, Deane and Gaudron JJ) in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Given the potential importance of the evidence that the father was right-handed and given the consequence to the child in terms of possible outcomes of the hearing of determining this evidence one way or the other, and given that the proceedings are not strictly adversarial in nature, it was, in my opinion, incumbent upon the trial judge to do something about this piece of information. He should have required the father to give that evidence under oath or at least sought from the mother a possible admission to that fact which may well have been non contentious.
It must be recognised that whilst this piece of information and potential evidence may not have been decisive it was at the very least a very important piece of information which, if conceded, may well have led the trial judge to a different conclusion.
The Full Court decision in Re F: Litigants in person guidelines (2001) FLC 93‑072 sets out, as the name suggests, guidelines for trial judges in cases where there is a self represented litigant. The Full Court determined to revise what were guidelines 4, 5, and 7 in Johnson v Johnson (1997) FLC 92-764 and to add a further guideline which should be the first guideline. The revised Guidelines are as follows:—
1.A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
2.A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
3.A judge should explain to the litigant in person any procedures relevant to the litigation;
4.A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
5.If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
6.A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
7.If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
8.A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated (Neil v Nott (1994) 121 ALR 148 at 150);
9.Where the interests of justice and the circumstances of the case require it, a judge may:
•draw attention to the law applied by the Court in determining issues before it;
• question witnesses;
•identify applications or submissions which ought to be put to the Court;
• suggest procedural steps that may be taken by a party;
•clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
…
221.We think that guidelines must not risk compromising the neutrality of the court, or the perception of the Court's neutrality. Such neutrality is a key feature of the adversarial system. Judicial assistance cannot make up for lack of representation without an unacceptable cost to matters of neutrality. However, in our view, the obligation to provide a fair trial has principal significance for a court of law and it must take some steps to assist a litigant in person in order to do justice between the parties with an eye to the reality of the prevalence and diversity of litigants in person in this jurisdiction.
…
223.It is also apposite to note the following remarks of the Full Court of the Federal Court of Australia in Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 446:
“A trial Judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 (NSW CA), at 397, per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, 15 September 1997, Supreme Court Vic, Smith J), at 6.”
224.We do not disagree with the formulation of the Full Court in Johnson as to the reasons why it is usually undesirable for the judge to give legal advice, particularly, when it is of a strategic nature. We do, however, think that there can be circumstances where the requirement to conduct a fair trial requires a Judge to give assistance of a legal nature to a litigant in person even though such assistance may risk compromising the appearance of impartiality and neutrality from the perspective of the other side.
225.As with the law that has developed in respect of the appearance of bias, we think it is necessary to appreciate that the imperative to do substantive justice as between the parties requires the conduct of the presiding judge to be assessed by a standard which is properly informed. The informed nature of that standard must, in our view, take account of the responsibility of the Court seized of the family law matter to properly understand the litigant in person's position within the litigation.
The decision in Re F in my opinion required the trial judge, in this case, to point out to the husband that his submissions are not evidence which the trial judge could take into account when deciding the case and then give him an opportunity to give evidence on oath that he was “right handed”.
Has the trial judge applied the provisions of section 140 of the Evidence Act 1995 (Cth)? That section is in the following terms:-
EVIDENCE ACT 1995 - SECT 140
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
It is conceded by counsel for the wife that if the trial judge could not find that the father was masturbating at the [swimming pool] on the occasion he was observed by [the witness called by the wife] then the observation is of no relevance to the decision to be made by the trial judge.
The importance, to the trial judge, of the finding that the father was masturbating at the [swimming pool] on the ultimate decision can be seen in paragraphs 53 and 54 of the judgment. The trial judge accepted the evidence of [the psychiatrist] and was looking to see if there was any evidence of continuing behaviour on the part of the father of paraphilia. He said “The fact that someone has had a tendency to carry out some particular activity does not mean that he or she is in fact presently carrying out that activity. Moreover, it does not mean that activity necessarily continue.” The trial judge underlined the word “continue” in his judgment to add emphasis. I should add, at this stage, that I do not see the making of a positive finding that the husband was masturbating as being necessary in order to make the orders ultimately made by the trial judge in the children’s matter.
In paragraph 54 of the judgment the trial judge said “The father asserted that there was no evidence that he was continuing to engage in exposure activities. He pointed out that he had not been charged or convicted for years. As I mentioned above, I found his “denials” unconvincing.” In relation to this paragraph there was no evidence which the trial judge referred to, or which we were referred to in submissions, to establish that the father had been observed, apprehended or charged with any offence relating to an activity consistent with the condition of paraphilia whilst the parties had resided in the A.C.T. The only evidence which touched on this matter was the evidence of [the witness called by the wife]. The mother’s evidence was that the parties moved to [the country town] in November 2002 where they resided until June 2003 when the parties separated and the mother moved to Canberra. (see para 74 of mother’s affidavit page 149 appeal book 1). At that time the father also moved to Canberra and spent time with [Stephanie] (see para 74 of mother’s affidavit). In January 2004 orders were made in the Federal Magistrates Court for the father to exercise supervised time with [Stephanie]. (para 80 mother’s affidavit page 150 of appeal book 1). From about May 2004 until January 2005 the father was outside Australia (appeal book page 150). The evidence otherwise supports a conclusion that the father had been in Australia at least from January 2005 until the conclusion of the trial in July 2006.
The chronology of events which was provided to the trial judge by the mother (not evidence in the case) appears at page 392 of the appeal books. In that document two events are specifically referred to which may be relevant to this issue. The first is “ 23 January 2004 Husband questioned by police as “person of interest” re indecent exposure at [a location]”. The second is “17 March 2004 Husband interviewed by police as “person of interest” in indecent exposure at [another location].” We were not directed to any specific evidence of these incidents nor did the trial judge refer to them in his judgment.
At page 1451 of the appeal book a list of the exhibits in the trial are listed. The list includes “M23 NSW police records 29/10/2” and exhibit “M24 AFP records of [Mr Marsden]”. We were not referred to these exhibits nor were they included in the appeal book. The exhibits were not referred to by the trial judge. We can only assume there was nothing in those exhibits which added to the evidence which touched on the “[swimming pool]” incident.
The [swimming pool] incident assumed significant importance in the decision of the trial judge. It is the finding which can be seen as an important reason for the trial judge not accepting that unsupervised time for [Stephanie] to spend with her father would not be appropriate or in her best interests.
Given what has been said above, section 140(2)(c) of the Evidence Act assumes great significance.
In that subsection the word “gravity” is used. Decisions of this Court are helpful in determining what that might mean.
In Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 the Full Court said the following in relation to section 140 of the Evidence Act and the standard of proof in children’s cases:
“Some principles applicable to sex abuse allegations
13.As indicated above we believe it helpful to now briefly examine the principles applicable in cases involving difficult questions of sexual abuse where the only witnesses to the alleged abuse are the alleged perpetrator and the alleged victim. This is particularly difficult where the victim is of tender years and does not give any direct testimony that can be the subject of forensic testing.
14.In M and M (1988) FLC 91-979; (1988) 12 Fam LR 606 and B and B (1988) FLC 91-978; (1988) 12 Fam LR 612 the High Court considered the circumstances in which a trial judge should make a finding of sexual abuse when considering children's issues under Part VII of the Family Law Act. The Court, at FLC p 77,080-77,081, Fam LR p 610-611 said (citations omitted):
“But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds; McKee v McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the best interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf J v Lieschke.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw. There Dixon J said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.'
His Honour's comments have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.''
15.In WK v SR (1997) FLC 92-787; 22 Fam LR 592 the Full Court (Baker, Kay and Morgan JJ) examined the application of the principles set out in M and M to a situation where the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said at FLC at 84,691, 84,694-84,695; Fam LR at 599, 602-603:
``26. However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court's duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995 (Cth), her evidence needed to be very carefully evaluated.
...
46. It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:
‘140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.'
47. In children's matters under Part VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
48. This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.''
16.Although this case was argued that irrespective of the finding of sexual abuse there should have been supervised contact, given his Honour's refusal to allow any supervised contact was clearly dependent upon his positive finding of sexual abuse, if that finding is unsafe then in our view we have no other option but to remit the question of supervised contact back to a Judge at first instance. This approach was appropriately conceded by counsel on behalf of the mother and the child representative.”
A summary of case law discloses the following the relevant legal principles on this point as:-
The ordinary civil standard of proof applies even if the matter to be proved involves criminal conduct or fraud: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ); Palmer v Dolman [2005] NSWCA 361 (fraud);
In applying the civil standard of proof, it is appropriate to take into account factors listed in s 140(2) of the Evidence Act: see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 (per Mason CJ, Brennan, Deane and Gaudron JJ).
It is well accepted that the test to be applied under s 140(2)(c) is the Briginshaw test: WK v SR (1997) 22 Fam LR 592; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at 61 (Beazley, Giles and Santow JJA). The most often quoted portions of the decision in Briginshaw v Briginshaw (1938) 60 CLR 336, come from the decision of Dixon J at 361-362:
... when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality ... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
See also the decision in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419.
It is well established that the “degree of satisfaction” or the “strength of evidence necessary” may vary according to the gravity and nature of facts to be proved. See Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 (the High Court said “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove”); Rejfek v McElroy (1965) 112 CLR 517 at 521 (the “clarity” of proof required “is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved”); Helton v Allen (1940) 63 CLR 691; Bhattacharya v Director-General of Department of Education & Training [2000] NSWCA 74 at 21 (per Mason P, Beazley JA and Bryson AJA); McWilliam v Penthouse Publications Ltd [2001] NSWCA 237 (serious misconduct involved in a conspiracy required “firm scrutiny of the evidence”); Council of The Law Society of New South Wales v A Solicitor [2002] NSWCA 62 (Mason P, Sheller and Giles JJA) (professional misconduct of a solicitor). The common law is now codified in s 140(2)(c) of the Evidence Act 1995 (Cth).
The High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 acknowledged that the strength of evidence required may vary according to gravity. However, their Honours added:
… authorative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (citations removed)
In the recent Federal Court decision of Penhall-Jones v State of NSW [2007] FCA 925, Buchanan J in determining an appeal from the decision of a Federal Magistrate identified the distinction between the standard of proof and quality of evidence required at par 118:
[118] It is generally accepted, and the citations I have extracted are examples, that there is a need to distinguish between identification of the appropriate standard of proof (on the balance of probabilities in a civil case) and the quality of evidence which will satisfy the standard in a particular case. That is a matter which may vary according to the gravity of the accusations or contentions to be evaluated. Although the balance of probabilities remains the civil standard of proof, what may be required to satisfy that standard of proof in a given case, and satisfy it to the ‘reasonable satisfaction’ of the court, is not fixed.
I find this last description of the process, as it fell from Buchanan J, a particularly clear statement which will be of particular guidance to trial judges.
In the High Court decision of Trustees of the Property of John Daniel Cummins v Cummins (2006) 224 ALR 280 the following was said:
What had been required for the trustees to succeed at trial was that the circumstances appearing in the evidence gave rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability, that, in making the August transactions, Mr Cummins had the "main purpose" required by the statute. Further, counsel for the trustees accepted that, in determining the inferences to be drawn from the primary facts, regard was to be had to the seriousness of the allegations made against Mr Cummins (although he was not a party) and the gravity of the consequences of findings adverse to him. Reference was made to the well-known judgment of Dixon J in Briginshaw v Briginshaw.
The interplay between the High Court decision in Briginshaw and section 140 of the Evidence Act 1995 is difficult to precisely determine. Is the High Court treating the words of the section as having the same force and effect as the relevant part of the Briginshaw decision? On my reading it is, as illustrated by the quote from Cummins v Cummins referred to above. That passage illustrates that the principle contained in Briginshaw is still applicable in determining in civil proceedings the standard of proof to be applied notwithstanding the advent of section 140 of the Evidence Act. It serves to give meaning to the words of section 140.
CONCLUSION ON THIS POINT
The question to be answered in this case is:- Did his Honour, the learned trial judge, rely upon “Inexact proofs, indefinite testimony, or indirect inferences” to make his finding that the father was masturbating at the [swimming pool] on the occasion of the observation by [the witness called by the wife]? Did he have before him “the quality of evidence” to enable him to make that finding? For my part the answer to the first question is yes and the second no. Accordingly I would determine that the finding was unavailable to the trial judge on the evidence before him.
Having reached that decision I would not depart from the overall determination of the trial judge. I would not order a retrial as I am satisfied that the decision of his Honour the trial judge was correct and well-founded on other grounds. As stated earlier I agree with the balance of the determination of Warnick and Thackray JJ.
I certify that the preceding two hundred and ninety-four (294) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 21 November 2007
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