FAMILY LAW - CHILDREN – Parenting law and policy- Child sexual allegations - Whether children face an unacceptable risk of abuse by the father or mother - Standard of proof – Importance of the parental relationship and maintaining contact – The best interest criteria – Displacement of presumption of equal shared parental responsibility - Circumstances in which parenting time properly restricted or denied – Aptness of long-term supervised contact in the circumstances- Relevance of child protection issues in family proceedings – Legal principles governing general approach to parenting disputes involving suspected or alleged child sexual abuse considered – Whether alleged child victims should give direct evidence and face cross-examination about complaints- Meaning and assessment of unacceptable risk – Admissibility of social and behavioural facts and other extrinsic information from non-legal sources- Consideration of appropriateness of post-order reviews of “final” parenting orders.
This was an application by the father for equal shared parental responsibility and parenting time and by the mother for supervised contact on sexual abuse and related grounds. The parties were married in 2001 and separated in 2005. There were two children of the marriage, a girl, A, aged 5 ½ and the boy, T, aged 3 ½ at the date of trial. The mother also had two daughters from previous relationships, B aged 13 ½ and M aged 10, who lived with the parties during the marriage.
After separation the mother and children remained in the family home on the Gold Coast. The father went to live with his mother in northern NSW.
M and A made statements to the mother, police, departmental officers, M’s paternal grandmother and the maternal grandmother, which led to the belief that both girls may have been sexually abused by the father when they were three. The allegations were consistently denied by the father.
At trial the mother relied on the children’s s 100A statements and inferences arising from the father’s alleged personality traits and some behaviours of the children.
The father alleged concoction and probable adult influence.
Psychiatric evidence did not support either case.
Both children had a close and continuing relationship with the father which they wanted to maintain. Two family reporters and a psychiatrist recommended increased time with the father in the event of a no risk or negative finding on the abuse issue. The mother firmly believed abuse had occurred and would have difficulty in coming to terms with any contrary finding or supporting unsupervised contact.
Held:
1) The totality of the evidence was neither sufficient nor satisfactory enough to support definite positive or negative findings on the issue of past sexual abuse.
2) The possibility of past sexual abuse of M and/or A could not be dismissed as groundless and gave rise to an appreciable though relatively low risk of sex related harm to A on unsupervised time with the father.
3) No assessed risk in relation to T.
4) Child safety concerns and the mothers contact adverse…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Murphy & Murphy [2007] FamCA 795
Case
[2007] FamCA 795
Decision Date
CaseChat Overview and Summary
This case involved an application by the father for equal shared parental responsibility and parenting time, and by the mother for supervised contact, based on allegations of child sexual abuse. The parties separated in 2005, with two children of the marriage, A (aged 5 ½) and T (aged 3 ½), remaining with the mother. Allegations of sexual abuse by the father against the two older daughters from the mother's previous relationships, M (aged 13 ½) and A, arose from statements made by the children. The father consistently denied these allegations.
The court was required to determine the standard of proof for allegations of child sexual abuse in parenting proceedings, the assessment of "unacceptable risk" of harm, and the admissibility of extrinsic information from non-legal sources. It also needed to consider the importance of the parental relationship and maintaining contact, the best interests of the children, and the circumstances under which parenting time might be restricted or denied. The court also had to assess the appropriateness of long-term supervised contact and post-order reviews, and whether alleged child victims should give direct evidence.
Carmody J found that the totality of the evidence was insufficient to make definite findings on past sexual abuse. However, the possibility of past sexual abuse could not be dismissed, giving rise to an appreciable, though relatively low, risk of sex-related harm to A on unsupervised time with the father. No assessed risk was found in relation to T. Considering the child protection concerns, the mother's adverse attitude towards contact, and other factors, the court determined that it was not in the best interests of the children to make final orders. The court concluded that a graduated re-introduction of unsupervised time with safeguards, including a short period of supervised contact and post-order monitoring, was the best interests solution. No orders were made re-allocating parental responsibility due to high levels of mutual suspicion and conflict between the parents.