In the Matter Of: N Appellant/Wife and S Respondent/ Husband and the Separate Representative [1995] FamCA
139 (20 December 1995)
FAMILY COURT OF AUSTRALIA
IN THE MATTER OF: N. APPELLANT/WIFE
AND S.
RESPONDENT/HUSBAND
AND THE SEPARATE REPRESENTATIVE
Appeal No. EA 56 of 1995
No. PA 4849 of 1994
Number of pages - 75
Access - Sexual Abuse - Unacceptable Risk
COURT
IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA
FOGARTY(1), KAY(2) AND HILTON(2) JJ
CATCHWORDS
Access - Sexual abuse - Unacceptable Risk - Where trial Judge not satisfied of the occurrence of sexual abuse on the balance of probabilities
Sexual Abuse - Unacceptable Risk - Where trial Judge not satisfied of the occurrence of sexual abuse on the balance of probabilities
Unacceptable Risk - Sexual abuse - Where trial Judge not satisfied of the occurrence of sexual abuse on the balance of probabilities Background
This case concerned the custody of, and access to, the parties' four year-old daughter. For nearly two years leading up to trial the child made repeated, specific and detailed allegations that she had been sexually abused by the father while on access. The mother eventually denied the father access. The father sought access and, later, custody.
The Order 30A expert thought that the father had not sexually abused the child, and that access could be of benefit to the child. The sexual assault counsellor, to whom the child had been referred by the Department of Community Services after a finding that she had been abused, believed that the father had sexually abused the child. Coleman J said that he was unable to be satisfied on the balance of probabilities that the alleged abuse had taken place, and that "it follow(ed)" that he did not regard the father as unfit to be a custodian or an access parent. His Honour addressed the question whether access could be said to raise an unacceptable risk to the child. He said:
"If one is not satisfied, as I am not, that the allegations of sexual abuse or any of them have been proved on the balance of probabilities, it would seem logically to follow that an unacceptable risk of sexual abuse would be found to exist, only if there was evidence implicating the (father) but being insufficient to support a finding on the balance of probabilities that sexual abuse had in fact occurred. In this case there is really not a middle course reasonably open. The evidence either establishes the fact of abuse or it does not."
The father's proposals for custody were not realistically formulated.
His Honour ordered that the mother have interim custody of the child, and
the father supervised access on a gradually increasing basis for a period of six months, at the end of which a report be obtained as to the effectiveness of access and the child's reaction to it, and the matter be re-listed for hearing.
The mother appealed against the order allowing the father access. The major…
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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AGLC
N & S & The Separate Representative [1995] FamCA 139
Case
[1995] FamCA 139
Decision Date
CaseChat Overview and Summary
The Full Court of the Family Court of Australia heard an appeal concerning the custody and access arrangements for a four-year-old child. The mother, the appellant, had denied the father access to their daughter due to the child's repeated and specific allegations of sexual abuse by the father. The father sought access and later custody. The trial judge, Coleman J, was not satisfied on the balance of probabilities that the alleged sexual abuse had occurred.
The legal issues before the Full Court included whether the trial judge erred in failing to give proper weight to the evidence of sexual abuse, and whether the trial judge correctly applied the concept of "unacceptable risk" in determining access arrangements. Specifically, the court considered whether the trial judge's finding that he was not satisfied of abuse on the balance of probabilities logically led to the conclusion that the father was not unfit to be a custodian or access parent, and whether the trial judge adequately assessed the risk of harm to the child.
The majority of the Full Court, comprising Kay and Hilton JJ, dismissed the appeal. They held that the trial judge had weighed the relevant evidence and concluded there was no unacceptable risk to the child, characterising this as a discretionary judgment that should not be interfered with, citing the principles in *House v. R.* and *Gronow v. Gronow*. Fogarty J, dissenting, found that the trial judge had erred by failing to directly address the question of unacceptable risk. His Honour reasoned that in cases involving allegations of sexual abuse, the court must assess whether the evidence, even if insufficient to prove abuse on the balance of probabilities, creates an unacceptable risk of harm to the child, considering the grave consequences of such abuse. Fogarty J noted that the trial judge incorrectly equated a lack of satisfaction regarding the occurrence of abuse with a lack of unfitness for access.
The Full Court ordered the dismissal of the appeal. While the majority acknowledged that the trial judge should not have awarded interim custody to the mother given the father's unrealistic proposals for custody, they noted that the mother had not specifically appealed this aspect of the order. The court also indicated that custody would likely not be re-investigated at the end of the six-month period.