Minister of Community Welfare v. B.Y. and L.F.

[1988] FamCA 11

MINISTER OF COMMUNITY WELFARE v. B.Y. and L.F.

(1988) FLC ¶91-973

Other publishers' citations: (1988) 93 FLR 104 (1988) 12 FamLR 477

Full Court of the Family Court of Australia at Adelaide.

Judgment delivered 22 September 1988.

Before: Nicholson, C.J., Baker and Maxwell JJ.

Nicholson C.J., Baker and Maxwell JJ.: This is an appeal by the Minister of Community Welfare of South Australia against portion of an order for costs made by Burton J. on 9 November 1987 whereas the Minister, who had intervened in proceedings between husband and wife concerning custody and access of children was ordered to pay three-quarters of 80% of the husband's taxed costs from the time of the Minister's intervention in the wife's application to suspend access and the time of the husband's application for custody.

The Notice of Appeal asserts a number of errors on the part of the learned trial Judge in making this order. Before turning to the grounds of appeal it is, I think, necessary to consider the background against which the order was made.

The husband and wife in these proceedings were married on 18 May 1970 and separated on 26 March 1984. A decree nisi of dissolution was pronounced by this Court on 28 May 1985. There are two children of the marriage, Z, born 4 November 1982 and A, born 20 August 1984, some five months after the separation. Z has been in the custody of the wife since separation and A has been in the custody of the wife since birth. There is a long history of litigation between the husband and wife arising out of difficulties associated with custody and access which it is unnecessary to recount for present purposes. It suffices to say that in September 1985, Gun J. heard cross-applications for custody and guardianship and on 11 September 1985, awarded the wife sole guardianship and custody of both children and made detailed orders for access in favour of the husband.

Problems with access continued and on 9 October 1985 the wife made application to either suspend access or to vary it to ensure that there was no contact between the husband and wife at the time of handover of the children. It appears that the husband used these occasions for the purposes of alterations with the wife and generally created great difficulty. The wife gave evidence, which the learned trial Judge accepted, that she had made attempts over a long period to solve problems arising at the handover of the children for access periods. She initially took Z to the husband's home, later taking someone with her on these occasions. At one stage a Handover Centre was in existence at the Central Methodist Mission and this venue was used and later when the husband had access to A, this access was given at the home of the husband's aunt. It appears that one of the main problems at handover was that the husband would refuse to hand the children back if he was not able to see the wife. When the Handover Centre was closed in 1985, the handovers took place at Police Headquarters. It appears that on these occasions, there was always an incident in which the husband was abusive to the wife and any companion she might have with her at the time. The wife attempted to have change-overs effected by taxi, but the husband refused to return the children unless the wife picked them up personally. Finally, the wife reached the point of making her application on 9 October 1985 to suspend access. At this time, no allegation had been made of sexual abuse.

It appears that the wife, in attempts to solve the problems relating to access, consulted various people and organisations and was concerned that Z, in particular, was being upset as a result of the goings-on at the handover of the children. She noticed that Z soiled her pants on some occasions after access and she also noted that she would masturbate on occasions and wake up at nights crying. A also displayed a disturbed sleep pattern and the wife noted that these events took place after overnight access in particular and would taper off after such access.

It appears that in about the middle of November 1985, the wife telephoned Miss W. who was at that time co-ordinator of the Irene Women's Shelter in Adelaide. She had been given Miss W's name as a person who had experience in dealing with difficult access matters. She gave Miss W a reasonably detailed account of her problems relating to access and of Z's and A's conduct following access periods. After this telephone discussion, Miss W became concerned that Z may have been the subject of sexual abuse by the husband. She, accordingly, telephoned the Department for Community Welfare and sought advice from a Departmental officer. This call was treated as a complaint by the Department that the husband had sexually abused Z. It should be noted that at no time had the wife made any such complaint of sexual abuse nor did she suggest to Miss W that such a complaint be made to the Department.

On 27 November 1985 JL, of the Department for Community Welfare, visited the wife and informed her that an allegation had been made by an informant whom she would not name, that there had been inappropriate sexual behaviour between the husband and Z. The wife then instructed her solicitors to inform the husband's solicitors that she would not grant access due on 30 November or thereafter.

As a result of that refusal of access, contempt proceedings were brought by the husband and were heard by Gun J. in March 1986. In those proceedings the husband had alleged two contempts, one in respect of the wife's earlier failure to give him access to A and the second in respect of the wife failing to give him access to both children on 30 November 1985 and thereafter. Gun J. found the wife guilty of contempt on both counts, the first of which is not relevant for present purposes. On the second count, although his Honour found the wife guilty, he did not consider it proper in the circumstances to make any order punishing her for her failure to comply with access requirements, because by that time she had been informed by Miss L of the allegation that the husband had engaged in inappropriate sexual behaviour with Z.

On 20 February 1986, the husband's father was granted access to each child, the order for access to Z in favour of the husband was suspended until further order and the order for access to A was varied.

On 18 March 1986 at the time of dealing with the contempt applications, Gun J. made an order that the husband have access to Z at least once a fortnight in the presence of and under supervision of a welfare officer of the Family Court. The husband had, prior to 18 March 1986, been charged with offences relating to sexual interference with Z, but before the matter came on for hearing before Burton J. in September 1986 the charges had either been withdrawn or dismissed for want of prosecution.

On 14 April 1986, the South Australian Children's Court made an order placing the two children under the protection of the Minister for Community Welfare pursuant to sec. 12 of the Children's Protection and Young Offenders Act. 1979 (S.A.), as a result of an allegation being made before the Court on the part of the Department, that the husband had sexually abused Z.

On 22 May 1986 the husband made an application in this Court for the discharge of the order for custody in favour of the wife and the substitution of an order for custody in his favour in relation to both children.

As the law then stood, the Family Court was precluded by sec. 10(1) of the Family Law Act 1975 from making any order relating to the custody of the children unless pursuant to sec. 10(3) of the Family Law Act, it was satisfied that there were special circumstances that justified the making of an order.

However, counsel for the husband, the wife, the children and the Minister (who had by then intervened in the proceedings in the Family Court) all requested that Burton J. hear the competing applications notwithstanding the existence of the order in the Children's Court. On 19 June 1986, his Honour found that the unanimous request of all parties did constitute special circumstances within the meaning of sec. 10(3) of the Act and determined to hear the matter.

It is to be noted that although the Minister agreed to this course, counsel for the Minister would give no undertaking on the Minister's behalf to abide by the decision of the Court, but merely indicated that the Minister would give most serious consideration to the Court's findings, particularly with respect to the allegations of sexual abuse.

It should also be mentioned that the husband had instituted proceedings against the wife and the Minister for contempt which Burton J. dismissed on 18 June 1986. The applications to suspend access by the wife and for guardianship and custody by the husband were then listed for hearing before his Honour commencing on 22 September 1986 and the hearing lasted for 15 sitting days, a great deal of which was taken up by medical evidence.

The case for the wife on the question of sexual abuse, which was strongly supported by the Minister, largely depended upon the evidence of two doctors, Dr B and a psychiatrist, Dr K.

Following the original allegation being made to the Department, it appears that arrangements were made by the Department for Z to be seen and examined at the Sexual Assault Referral Centre by Dr B. As a result of the examination, Dr B wrote a report dated 3 December 1985 in which she expressed the opinion that Z had been the subject of sexual abuse by the husband. Z was then referred to the Adelaide Children's Hospital for therapy but due to heavy workloads being experienced in that institution was not treated there to any extent and was therefore referred to Dr K. Dr K also formed the view that Z had probably been subjected to sexual abuse and in a report dated 14 March 1986 recommended that no access be granted by the husband to either child.

A second report was prepared by Dr K dated 7 April 1986 at the request of the wife's solicitors in which the doctor stated that she considered that no access, either supervised or unsupervised, should be granted. It appears that the orders made in the Children's Court placing Z under the guardianship of the Minister were made in reliance on these two reports and Dr B's report.

Evidence on behalf of the husband was given by Drs F and V, both paediatricians, and by Dr LP, a psychiatrist.

His Honour, in the course of his judgment, said:

``By the time that the evidence was concluded and counsel had made their final submissions to me on 13 April 1987, it is fair to say that both counsels for the Minister and for the wife were unable to put to me that there was evidence upon which I could make a positive finding of sexual abuse on the balance of probabilities. Neither counsel attempted, to any serious degree, to suggest that I should rely at all upon the opinion of Dr K and neither counsel had any real reply to the criticisms of Dr B's evidence made so trenchantly by Mr A. Indeed, counsel for the Minister devoted the whole of his final address to the topic of the husband's conduct towards the wife and F (whom the wife had married on 5 April 1986) at handover times for access and the detrimental effect such conduct had on the children. The highest that counsel for the wife could put the allegation of sexual abuse of Z by the husband, was that I might be in doubt and therefore unable to be satisfied one way or the other.''

His Honour then proceeded to make a detailed examination of the medical evidence given before him. It is unnecessary for this purpose to deal with this part of his Honour's judgment and these findings, which were not the subject of challenge before us. However, we should say that an examination of his Honour's judgment reveals cause for considerable disquiet with the methods used to substantiate allegations of sexual abuse and with the objectivity of the professional persons to whom these examinations were entrusted. In the event, his Honour found that there was no substance in the allegation of sexual abuse, dismissed the husband's application for sole guardianship and custody of the children and ordered that the wife's application to suspend access and the husband's application for access, be adjourned for consideration of the precise form in which the access order should be made.

After hearing argument, his Honour made the orders of 9 November 1987, portion of which the Minister complains of. In his Reasons for Judgment, his Honour said:

``The allegation of sexual abuse originated from an informant who made a report to the Department for Community Welfare. The Department for Community Welfare refused from November 1985 when the report to it was first made, until the date the trial commenced in September 1986 to disclose the identity of the informant and the nature of the information passed on by the informant. The Department has a general policy that it will not disclose such an informant's identity. The husband's solicitors eventually discovered who the informant was and called her as a witness in the husband's case.

The evidence from the informant, namely Miss W, was that in November 1985 she was employed by the Irene Women's Shelter. She was telephoned by the wife for advice about the access changeover difficulties she was experiencing. After hearing the wife's description of Z's behaviour before and after access, Miss W reported to the Department for Community Welfare that she believed that the child may have been sexually abused by the husband. The wife at no time alluded to the possibility of sexual abuse in the telephone conversation, nor made any remark which could have been interpreted as an accusation against the husband.

The wheels were thus set in motion for a Department for Community Welfare investigation, and the subsequent referral of Z by the Department to the Sexual Assault Referral Centre at the Queen Elizabeth Hospital.

The wife says that once the report from the then unknown informant was made, she was swept up in events beyond her control. There is a certain amount of truth in this. The Department did take over in the early stages of the matter and arranged for the Sexual Assault Referral Centre examination and report. The Department refused to disclose to the wife not only the name of the informant, but any details surrounding the report. To that extent the wife was powerless to stop the bureaucratic juggernaut, and she quite reasonably believed the report was based on some solid ground.''

His Honour then proceeded to discuss the role of the wife in the context of her claim for costs against the Minister which was unsuccessful. His Honour said:

``I formed the opinion that even though the wife was not privy to all the information in the Department's possession and that she was not part of a conspiracy in a sinister sense, with the officers of the Department, she and the Department presented what was very close to a joint case on both grounds alleged by the wife. They did in fact seek the same orders from me, namely guardianship and custody to the wife and a discharge of the access orders.

I find that, subject to giving consideration to the wife's financial circumstances pursuant to sec. 117, the husband is entitled to costs for that part of the case upon which he was wholly successful, namely the allegation of sexual abuse which I found to be unjustified. That leaves to be decided the question of apportionment of those costs between the wife and the Department, and I will deal with that aspect later in these reasons.''

His Honour then went on to express the view that some 80% of the time occupied had related to the question of the allegations of sexual abuse and continued —

``The wife was at a disadvantage, as previously stated, in that she did not have access to the totality of the evidence of alleged sexual misconduct by the husband. The Minister was under no such disability. He knew the circumstances and the frailty of the information which set in motion the investigation of sexual misconduct. He kept that part of the case to himself as part of the Department's policy not to disclose the identity of informants in such cases.

Where the nature of the initial information forms a relevant part of the evidence in a case, as I find it did in this matter, then I am of the opinion that the non-disclosure of such information puts the Minister at risk for costs if it is eventually shown that such non-disclosure prolonged the case, or could have affected its outcome. The evidence disclosed that the initial referral of the children to the Sexual Assault Referral Centre contained an allegation that the husband was the perpetrator of the sexual abuse of Z. It was put to me during the trial that this initial allegation by a member of the Department influenced the medical staff at the Sexual Assault Referral Centre. I am of the opinion that in fact it did cause some bias, albeit subconscious.

I was not referred to any authority on the privilege of a Government Department to withhold information for reasons of public policy. It seems to me that should such privilege exist in the circumstances of this case, then the Minister might be absolved from liability of costs which might flow from the consequences of the withholding of such information.

It is clear, however, that a claim to legal professional privilege may be overridden when the evidence may enable the accused to resist an allegation made by the Crown or to establish innocence in a criminal matter (R v. Barton (1972) 2 All E.R. 1192).

Proceedings in the Family Court are neither criminal nor civil, nor is the information given to the Minister the subject of professional legal privilege. The situation in this matter was that the wife and the Minister set out to prove that the husband was guilty of sexual misconduct with Z and the husband set out to establish his innocence. I consider the situation sufficiently analogous to a criminal trial in that respect to make the principle enuciated above applicable in this case.

I, therefore, am of the opinion that the Minister in this case had no privilege to protect him from disclosing the identity of his `informer' and that the wife and the husband were therefore both deprived of vital information necessary for the preparation of their cases. The very nature and origin of the original `report' of possible sexual abuse, was a relevant matter and I can see no justification for the Minister in the circumstances of this case, refusing to disclose the identity of the informant. I make no comment on the policy of the Department to withhold such information as a general rule. I make my finding purely on the circumstances of this case.

Although the Minister did not adduce evidence of sexual abuse, it is clear that he supported the allegation both inside and outside the Court. His officers assisted the wife and the referral of the children to the doctors who gave evidence at the wife's behest. He intervened in the wife's application and at all times supported her application. He took proceedings for guardianship of the children in the Children's Court on the strength of the allegation of sexual abuse and when I found that there had been no sexual abuse, he withdrew those proceedings.

There is no doubt that the allegation was promoted by his Department, even though the evidence was called as part of the wife's case. I do not find that he should be responsible for the wife's costs however. The extent to which the Minister's conduct misled the wife, was not sufficient to make him responsible for her costs. I cannot say that the wife would not have proceeded with the sexual abuse allegation had she known of the origin of the report. However, had the Minister had his way, a very important piece of evidence would have been kept from the Court.

The wife's means are also a relevant fact pursuant to sec. 117(2A). She works part-time and has an income of just over $100 per week. She is married and her husband is employed as an engineering draftsman. They are paying off their home and the wife has custody of the two children. She also has a large bill to pay to the Legal Services Commission for her own legal advisers, the exact amount of which is not yet known.

I find that the combination of the wife's finances and the Minister's participation in the events at the trial are such that he should bear most of the responsibility for the husband's costs which are attributable to the wife and the Minister.''

His Honour then went on to discuss the financial position of the husband and said:

``In considering an application for costs, I must consider sec. 117(2A) and I find the relevant facts to be:

(a) The financial circumstances of the husband and the wife are modest, but neither are they non-existent.
(b) The wife is in receipt of legal aid, but does have to make a substantial repayment to the Legal Services Commission, regardless of the outcome of this case.
(c) The conduct of the Minister in keeping secret a relevant and vital piece of information, caused the husband initial expense and prolonged the trial.
(e) The Minister and the wife were wholly unsuccessful in their allegation of sexual abuse by the husband and successful in their claim that the husband's conduct at access times was unacceptable, but not successful to the extent of having access suspended.
(f) Any order I make against the wife will be set off against orders in her favour and the financial burden of an order against her will therefore be reduced.''

His Honour then went on to make a number of orders for costs including the order of which the Minister complains.

``It is important in our view to record the fact that there was no appeal by any party either in relation to the substantive orders which his Honour made or in respect of the findings which he made in the course of his reasons for judgment.''

Turning now to the grounds of appeal, grounds (a) and (b) can conveniently be dealt with together. These are as follows:

(a) That the learned trial Judge erred in holding that the non-disclosure by the appellant of the identity of the person who notified an officer of the Department for Community Welfare of her suspicion that the child, Z, had been maltreated, put the appellant at risk for costs if it were eventually shown that such non-disclosure prolonged the case or could have affected its outcome.
(b) The learned trial Judge erred in holding that the appellant had no privilege to protect him from disclosing the identity of the person who notified an officer of the Department for Community Welfare of her suspicions that the child Z had been maltreated.

In our view, these grounds are without substance. His Honour made it clear that he was expressing the view which he did having regard to the circumstances of this case which he obviously considered to be different from the usual cases involving informants. There are many cases where it would be of the utmost importance not to disclose the identity of an informant and no doubt some where the substance of the information conveyed by the informant might serve to identify one who should not be identified. The reasons for the law's policy in this regard are fully set out in D v. National Society for the Prevention of Cruelty to Children (1978) A.C. 171; R v. Rankine (1986) 2 All E.R. 566; Signorotto v. Nicholson (1982) V.R. 413 and Malony v. New South Wales Coursing Association Ltd. (1978) N.S.W.L.R. 60. The Crown Solicitor for South Australia, who appeared on behalf of the Minister, relied upon those authorities and argued that they were relevant to the present case.

We think, however, that this case is to be distinguished from cases of that type. What in fact occurred in this case was that an Officer of the Department chose to record as a complaint of sexual abuse, a request for advice made of her by Miss W based upon information conveyed to Miss W by the wife. No complaint or suggestion of sexual assault had been made by the wife.

It is of interest to note, that pursuant to sec. 91 of the Community Welfare Act Amendment Act, 1981 (S.A.) —

``(1) Where a person suspects on reasonable grounds that an offence under this Division has been committed against a child, that person —

(a) if he is not obliged to comply with this section — may notify an Officer of the Department of his suspicion;
or
(b) if he is obliged to comply with this section — shall notify an Officer of the Department of his suspicion.

as soon as practicable after he forms the suspicion.

...

(3) Any such notification must be accompanied by a statement of the observations and opinions upon which the suspicion is based.

(4) An Officer of the Department who has received any such notification shall forthwith report the matter to the regional panel constituted for the region in which the offence is alleged to have been committed.''

It appears that none of the provisions of this section were complied with by the Officers of the Department in this case.

Following the recording of the alleged ``complaint'' an Officer of the Department chose to then inform the wife of a complaint of sexual abuse of Z by the husband, conveying the obvious impression that the complaint had emanated from some third party, when in fact it had originated from the wife herself, but not as a complaint of sexual abuse. Not unnaturally the wife, confronted with this allegation from a seemingly responsible source, agreed to the setting in train of what turned out to be an incompetent investigation which in turn led to a series of hearings conducted at great length and expense as the result of an allegation which had never, until the time of Dr B's report, been made, and which was found to be completely without foundation in any event. In our view, the very least that might have been expected of the Department would have been for the Departmental officer to disclose to the wife, the circumstances in which she came to visit her and make an assessment of the wife's observations of the children's behaviour in an objective fashion and then decide whether they were suggestive of sexual abuse or otherwise.

It may well be that had this been done these proceedings would never have occurred. Even if it had then been decided to seek the assistance of Dr B, the history conveyed to the doctor would have been very different and the unconscious bias which his Honour found to have been shown by Dr B may not have been so evident. In our view, for the Minister to endeavour to rely upon doctrines of privilege in this case, was to do nothing more than seek to avoid the consequences of the disclosure of the Departmental incompetence with which the complaint had been handled. The Minister must accept responsibility for this Departmental incompetence and this must be regarded as a proper matter for his Honour to have taken into account on the issue of costs.

The vices of the present case from the Minister's point of view are first, that there never was a complaint of sexual abuse to the Department, secondly, that the only information that the Department had came from the wife herself via Miss W and thirdly that the Department chose not to inform the wife of the nature or source of the complaint made. Even if the Departmental officer had told the wife of the substance of the information conveyed by Miss W and the source of it without identifying Miss W, the situation would have been entirely different from the wife's point of view. In the circumstances of this case, however, we can see no reason of policy or otherwise why Miss W should not have been identified since she was not an informant in a true sense but merely a conduit of information conveyed to her by the wife.

Ground (c) of the Notice of Appeal is as follows:

``That the learned trial Judge erred in the circumstances in placing reliance on the following circumstances, namely:

(1) That the appellant assisted the wife in the referral of the children to the medical practitioners who gave evidence at the wife's behest;
(2) That the appellant intervened in the wife's application and at all times supported her application: and
(3) That the appellant took proceedings in the Children's Court and subsequently withdrew those proceedings.

This ground can, we think, be conveniently dealt with in conjunction with amended Ground (e) which is as follows:

`(e) The learned trial Judge gave no or insufficient consideration to the fact that the appellant had been given leave to intervene in the proceedings at the unanimous request of all parties in an attempt to avoid multiplication of litigation (i.e. litigation in both the Children's Court of South Australia and the Family Court of Australia).'

And

`(f) The learned trial Judge gave no or insufficient consideration to the statutory obligations of the appellant pursuant to the Community Welfare Act 1972 (S.A.) and the Children's Protection and Young Offenders Act 1979 (S.A.).'''

So far as ground (c)(1) is concerned, this can be disposed of shortly. It may be that in normal circumstances, the Minister's assistance in the referral of children to a medical practitioner or practitioners could not be criticised or taken into account in relation to the question of costs, but again in the circumstances of this case and given the background of the complaint which we have already discussed, we think that his Honour was correct in taking this matter into account.

As to ground (c)(2) and ground (f), counsel for the Minister argued that the Minister was present before the Court because of his statutory role and obligation and that his Honour paid insufficient attention to this matter or to the question of the balance of constitutional power. We think that there is a basic misconception underlying this argument. The mere fact that a Minister becomes a litigant pursuant to statutory powers and obligations or sees fit to support another litigant in proceedings pursuant to such powers, does not absolve him from liability for costs, nor should it do so. The fact is that the Minister was party to proceedings which involved a grave allegation against the husband, which was found to be not merely unsubstantiated on the civil standard of proof, but to be completely without foundation. In our view, in such circumstances, the Minister deserves no special consideration on the issue of costs and we can see no reason in principle why he should do so. Ministers of the Crown frequently engage in litigation in pursuance of statutory obligations and responsibilities but we are aware of no principle that suggests that when they are unsuccessful in such litigation, they should be protected from the usual consequences of such lack of success in terms of an order for costs against them. If it were otherwise, the way would be left open for the pursuit of many unsubstantiated allegations against individual members of the community and the potential for grave injustice being done to such persons. We think that his Honour was perfectly entitled to look, as he did in this case, at the position of the husband who had been the victim of these allegations and having regard to his findings, to make orders against the Minister as well as the wife.

So far as ground (e) is concerned, we similarly think that it has no substance. Whilst it may have been sensible for the parties to have agreed to the Family Court acting as the Court which would make the final decision in the matter, it is to be noted that the Minister's agreement to this was qualified in any event and it is also to be noted that had he chosen to continue with the proceedings in the Children's Court and had he been similarly unsuccessful, he would have been liable for costs in that Court. In all the circumstances we can see no reason why the adoption of the course that was taken should in any way operate to protect the Minister from the consequences of a lack of success in the litigation.

So far as ground (c)(3) is concerned, we think that it is similarly without foundation. Although the learned trial Judge referred to this matter in the course of his Reasons for Judgment, we think that if read in context, it is apparent that he was simply commenting that the Minister had in fact accepted his finding that no sexual abuse had occurred and had withdrawn the Children's Court proceedings. It is clear that this was merely an observation by his Honour as part of the narrative in his judgment and was not a factor exercising his discretion in awarding costs as he did.

The final ground of appeal is ground (d) which is as follows:

``That the learned trial Judge erred in regarding the wife's financial circumstances as a relevant factor in determining what order, if any, as to costs should have been made against the appellant.''

Section 117(2) of the Family Law Act 1975, enables the Court, subject to subsec. (2A) and the Rules of Court to make such order as to costs as the Court considers just. Subsection (2A) provides a list of considerations which the Court is required to have regard to and which include the financial circumstances of each of the parties to the proceedings. It is thus apparent that the learned trial Judge did not merely have a discretion as to whether to take the wife's financial circumstances into account, but was obliged to do so. We therefore consider that the arguments advanced under this head can have no substance.

Counsel for the Minister argued that the operation of sec. 117 should be confined to the parties to the marriage and should not apply when consideration is being given to the making of an order for costs against an intervener. We can see no basis for limiting its operation in this manner and we think that his Honour's decision in this regard was correct.

It follows that we consider that the appeal should be dismissed with costs.

In conclusion, we consider that there are aspects of this case which give rise to considerable disquiet. The method of investigation of the allegations was unsatisfactory and incompetent and led to a substantial injustice being done to the husband and wife and to the children themselves.

Further, the case was, as the learned trial Judge commented, conducted along lines bearing some similarity to a criminal trial and occupied some 15 sitting days. In our decisions in the cases of B and M delivered 8 August 1988, we commented that this Court is an inappropriate forum for the trial of such allegations against individuals which we consider to be the province of either the criminal courts themselves or under appropriate child welfare legislation, the court set up for that purpose. This Court is concerned with the adjustment of rights between parties and between the parties and their children and we are concerned about the increasing tendency to make it a forum for the trial of allegations of this nature. Counsel for the Minister complained, with some justification we think, that this has led in the present case, to the trial of the handling of a matter by a State department in a Federal Court, but we think that this was inevitable once the matter was before the Court.