N & S & The Separate Representative - [1995] FamCA 139

Family Court of Australia

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 ground of appeal was that his Honour erred in failing to give proper weight to the evidence of sexual abuse of the child.

HELD, dismissing the appeal (Fogarty J dissenting):

(per the whole Court) That his Honour should not have awarded interim custody to the mother, the father not being a realistic candidate for custody, and there being no reason to think that at the end of the six month period the father would be a suitable custodial parent. The effect on the mother, and consequently on the child, of being forced, through fear of loss of custody, to comply with access orders, in circumstances where she genuinely believed that the father had sexually abused the child, a belief for which his Honour found she could not be criticised, and in the face of continuing disclosures by the child, should have been recognised. However, as the mother had not specifically appealed against the order for interim custody, an order for final custody could not be substituted, though it would not be expected that custody would be re-investigated when the matter returns for hearing at the end of the six months.

(per Kay and Hilton JJ) That his Honour weighed the relevant evidence and found that there was no unacceptable risk to the child. This was a discretionary judgment with which it would be inappropriate to interfere, according to the principles of House v. R. [1936] HCA 40; (1936) 55 CLR 499 and Gronow v. Gronow [1979] HCA 63; (1979) 144 CLR 513.

(per Fogarty J) That the question to be asked in cases such as the present is: Would supervised or unsupervised access pose an unacceptable risk to the child of sexual abuse, or of other physical, emotional or psychological harm or disturbance? Most cases which involve allegations of sexual abuse in this Court fall into the "grey area" in which the Court is unable to be satisfied that sexual abuse has or has not occurred. The secrecy which usually surrounds sexual abuse, the nature of the offences which it involves, and the nature of the relationship between the perpetrator and the child all militate against the furnishing of the type of evidence which lawyers traditionally regard as probative of the occurrence of an event. The unacceptable risk question recognises this, and does not require a positive finding that sexual abuse has occurred before an unacceptable risk can be said to exist.

The notion of "unacceptable risk" must be assessed in light of the grave consequences of sexual abuse to a child's development, as well as the effects of future contact with the party.

The trial Judge failed to answer the question whether, on all the evidence, access could be said to represent an unacceptable risk of harm to the child. His Honour erred in finding that it followed from his inability to be satisfied that the father had not sexually abused the child that he was not unfit to be either a custodian or access parent. Once having found that he could not be satisfied on the balance of probabilities that the father had sexually abused the child, his Honour should then have examined the entirety of the evidence of sexual abuse, and asked whether that evidence raised an unacceptable risk of harm to the child if access to the father were granted. His Honour erred in approaching the evidence as either establishing or not establishing the occurrence of sexual abuse. The unacceptable risk determination should have been made, with emphasis placed on the likely future effects on the child if the allegations were true.

The trial Judge did not give any consideration to the effect of the orders on the custodian and the impact of that on the welfare of the child.

Discussion of the issues involved in sexual abuse in custody and access cases, and the meaning and correct application of the unacceptable risk question.

M and M (1988) FLC 91-979, Brown and Pedersen (1992) FLC 92-271, B and B (1993) FLC 92-357, S v. S (1993) NZFLR 657, M v. Y (1994) NZFLR 1, S v. S (1994) NZFLR 26 discussed.

HEARING

SYDNEY, 10 October 1995

20:12:1995

Mr Johnston, instructed by Stacks - The Law Firm, Solicitors, appeared for the appellant wife.

Mrs Ashes, instructed by Lily Bulyk, Solicitor, appeared for the respondent husband.

Mr Lethbridge, instructed by the Legal Aid Commission, appeared for the separate representative.

ORDER

Appeal dismissed. DECISION

INTRODUCTION

FOGARTY J By notice of appeal filed on 14 July 1995, the wife appealed against orders made by Coleman J on 15 June 1995 following a hearing before him from 29 May 1995 to 2 June 1995. On 15 September 1995 the wife filed an amended notice of appeal in which she confined her appeal to Order 2 of the orders of 15 June 1995, (which provided that the husband have supervised access to the child of the parties). In addition, she appealed against Orders 1, 2, 3, 4 and 7 made by Coleman J on 19 July 1995 (the details of which are referred to hereafter but which also relate to access).

2. Mrs Ashes, who appeared for the husband, objected to the competency of the appealinsofar as it related to the orders of 19 July 1995, pointing out that this was first included in the notice of appeal by amendment made on 15 September 1995. To the extent that it is necessary to do so we should extend time to validate that circumstance.
3. These proceedings were commenced by an application filed on 15 August 1994 by the husband which sought an order that he be granted "urgent access" to the child of the marriage, T., who was born on 9 January 1991, and was aged approximately three-and-ahalf years at that stage. On 17 October 1994 the wife filed an answer and cross-application in which she sought custody of the child and that the husband "be denied access". On 5 May 1995 the husband filed an amended application in which he sought custody.
4. At trial the separate representative for the child sought orders that custody be granted tothe wife, and that supervised access be granted to the husband on a gradually increasing basis for a period of six months, at the end of which a report be obtained as to the success or otherwise of access. The principal issues for determination before Coleman J were thus custody and access.
5. The trial Judge dealt in detail with the history of the parties' relationship, but I propose toconfine my recitation of the facts, as far as possible, to the issue which was at the centre of the appeal, namely the allegations that the child had been sexually abused by the husband, and the basic facts necessary to provide a context to those allegations. A wider examination of the facts of this case is unnecessary for the determination of the major issues raised on this appeal.

BACKGROUND

6. The husband and wife were aged 39 and 34 years respectively at trial. They commenceda de facto relationship in about August 1987, and married on 19 November 1989. The child was born in January 1991. The parties separated finally in November 1992, the wife acquiring rented accommodation for herself and the child. From December the husband had contact with the child on occasions at the wife's home. From February to May 1993 the husband exercised access to the child once a week, either on a Saturday or Sunday.
7. From May 1993 through to the trial, which commenced in May 1995, the child made various allegations, mostly to the wife, that she had been sexually abused by the husband. It was not suggested at the trial that the allegations had been fabricated by the wife. It was accepted, and the husband did not contest this, that the child had actually said the things which the wife claimed that she had said, and that the wife had observed the matters about which she gave evidence. It is important, in order to obtain a sense of the persistence, degree and detail of the child's statements, and the circumstances surrounding those statements, that they be described in some depth before the legal issues are examined.
8. On 23 May 1993 the husband had access to the child, who was then aged two years and four months. On 24 May the wife noticed a redness in the child's vulval area, and the child said to her that "Daddy fiddled with my bottom". On 25 May the child said to the wife "My doll has a sore bottom" and "Mummy, my bottom is sore". On 26 May 1993 the child said to the wife "Mummy, Daddy hurt my bottom". The wife then contacted the 24 hour hotline of the District Office of the Department of Community Services.
9. On 27 May 1993, Ms K. of the Department of Community Services attended the home of the wife and child and arrangements were made for an appointment at the Child Protection Unit of the Camperdown Children's Hospital on 3 June. On the evening of 27 May the child said "don't touch me" whenever the wife attempted to change her nappy.

10. On 29 and 30 May the husband had access to the child. On 31 May, while the wife was changing the child's nappy, the child said "Daddy hit me", pointing to her vagina and saying "down here". On 1 June, while the wife was changing the child, the child said "pull legs to open up bottom". On 2 June 1993 the child said to the wife "my bottom is itchy". The wife replied "why is it itchy?", to which the child responded "it is Daddy, it bleeds".

11. On 3 June the child was seen at the Camperdown Children's Hospital by Dr T. and Ms P. On 4 June Ms K. again attended the home of the wife and child, the wife noticing on that day a yellow discharge on the child's nappy to which she referred Ms K. On 5 June the wife and child attended the surgery of Dr F. On 10 and 18 June the child was again seen at the Child Protection Unit. On 20 June 1993 the husband exercised access to the child at his parents' home. On 22 June the child was again seen at the Child Protection Unit.

12. On 10 July 1993, while the wife was changing the child's nappy, the child said "Daddy bit my bottom", indicating her legs, and "Daddy bit me here". The husband exercised access to the child on 11 July. The child was "clingy" on return and said "Daddy bit me on the bottom" and "Daddy bites me and then fluff comes out".

13. On 12 July the wife observed bruising on the child's buttocks. The husband confirmed responsibility though he said that the circumstances in which the bruising occurred were innocent, in that he had unintentionally bitten the child too hard while they were playing. The child was again taken to Dr F. and examined, the wife noticing that the child presented with a red vulva.

14. A report of the Children's Hospital dated 13 July 1993, based on an examination of the child by Dr T., recorded that the child had "normal pre-pubertal genitalia. Her hymen did not relax but appeared normal. Her anus and perianal skin were normal." The file does not reveal any medical examination subsequent to that date.

15. On 15 July the wife notified the Department of Community Services of the alleged assault on the child of 11 July. On 16 July Ms K. again saw the child and interviewed the wife. On 16 July the child said to the wife "this goes in here" and attempted to insert a dummy into her vagina. The wife was visited by Departmental officers on 21 July. The husband commenced to have telephone contact with the child and access approximately once per week, from August being overnight access and thereafter one day a week from 9:00 a.m. to 5:00 p.m. From 24 November 1993 the child spent five days with the husband.

16. In early January 1994 Dr L., a paediatrician, confirmed a diagnosis of Attention Deficit Disorder and prescribed medication for the child. In the following month Dr S. confirmed that diagnosis. In October 1992 Dr S had seen the child and diagnosed hyperactivity, and prescribed an elimination diet.

17. On or about 19 March 1994 the parties reconciled for a period of about 11 days, but the attempted reconciliation was unsuccessful.

18. From March to May 1994 the husband exercised weekend access to the child from Saturday morning to Sunday afternoon and during the week from time to time. The husband had continuous access to the child from 21 to 24 May 1994, and each alternate weekend, rather than each weekend, from the end of May 1994.

19. On 14 August 1994 the husband returned the child at the end of an access weekend in a flushed and excitable state. The husband admitted having given the child food which contravened the child's strict dietary requirements, which had been the subject of previous difficulties between the parties. The wife then refused the husband access to the child. On 15 August the husband filed his application for access which commenced these proceedings.

20. On 25 August 1994 interim consent orders were made providing for the husband to have access from 9:00 a.m. on 31 August to 5:00 p.m. on 4 September. The husband undertook to observe the child's dietary requirements. The husband exercised access in accordance with these orders.

21. On 6 September the wife observed a redness on the child's bottom and noticed a small ulcer or tear inside the child's vagina. Later that day the wife took the child to Dr G., to whom the child said "My Daddy did it" and "this feels fine". Dr G. examined the child and telephoned the Department of Community Services. The child said to the wife on this day, after the wife had asked her why she was repeatedly rubbing her crotch, "Daddy taught me to do this. It feels nice. I've spots on my bottom and they bleed. Daddy wipes the blood off with a tissue."

22. On 7 September the child touched the wife in the groin area and said "why are yousweaty" and "what's this?" touching the wife's vagina. On the same day the child said again "My bottom is sore, Daddy hurt me."
23. On 8 September 1994 the wife and child attended the Department of Community Services at Wollongong. The child was interviewed by an officer of the Child Mistreatment Unit. The child and the wife were then referred to the Urunga House Sexual Assault Centre at Wollongong. The child was examined there by Dr T. two days later.
24. On 10 September 1994 the child said to the wife "Daddy hurt my bottom" and gestured with her right index finger and inserted it into her vagina. She said "My bottom's sore, can I have cream please?" The wife spoke to an officer from the Department of Community Services. On 17 September the husband exercised access to the child for the last time prior to trial, the wife thereafter refusing him access.
25. On 19 September 1994 the wife filed a notice of child abuse or risk of child abuse, alleging that between 31 August and 4 September the husband had sexually abused the child, exposed the child to inappropriate sexual behaviour, and engaged in inappropriate sexual conduct with the child.
26. In October the wife commenced a relationship with Mr V.F. On or about 8 October thechild said to Mr F. "do you have a penis? all men have a penis don't they? My Daddy has been doing naughty things to me". Later that month the child touched Mr F. in the groin area and said "is that your penis".
27. In October the Court appointed a separate representative for the child. In November thechild commenced counselling with Ms Alison Grundy at the Urunga House Sexual Assault Centre.
28. In November 1994 the child said to the wife "Daddy tried to drown me". A couple of days later she said "Daddy has a penis. It is big and red. He makes me touch it." Two days later she said "Daddy wants me to touch his penis. I rub cream on him and he dies and bleeds." In November the child said to Mr F. "why do you have a small penis (V.)? My Daddy has a big penis."
29. On 13 December 1994 the separate representative applied for the appointment of an Order 30A expert. Dr Michael Fairley, a registered medical practitioner with specialist qualifications in psychiatry, was appointed.
30. On or about 13 December the child said to the wife that the husband had put his penis in her mouth and bottom. On or about 6 March 1995 the child said "Daddy put his finger in my bottom and it got stuck, he couldn't get it out and it really hurt". On 11 April 1995 the child said "(V.) hurt my bottom, he pulled my pants down and his pants down and rubbed bottoms together". Nine days later she repeated to a Department of Community Services Officer that "(V.) hurt my bottom in the attic". Later that day she retracted that statement saying to the wife "only Daddy hurt my bottom not (V.)".

31. It is essential that that history be appreciated in deciding this appeal. The above facts are taken from his Honour's judgment, and constitute only a part of the various allegations and statements made by the child and the wife. Others, some of which are extremely rich in detail, appear in the wife's written materials, and the trial Judge did not include them in his judgment, though he does not appear to have disbelieved them. The persistence of the allegations, the age of the child, their detail, and the length of time over which these events unfolded, must be noted.

JUDGMENT OF COLEMAN J

32. The hearing before Coleman J commenced on 29 May 1995, and lasted five days. His Honour delivered judgment on 15 June 1995.
33. His Honour referred to the orders sought by Mr MacPherson, who appeared for theseparate representative, that the wife have custody, "qualified later to interim custody" of the child, and that the husband have supervised access for an initial period of six months, a report to be obtained at the end of the six months as to the effectiveness of access and the child's reaction to it. His Honour saw the relief sought by the separate representative as "in substance interlocutory", and said that he did not "understand there to be any real opposition to a regime of interlocutory orders being made by the Court, the dispute being more as to what those interlocutory orders should be". His Honour concluded that "no form of final orders could presently be made which would be consistent with the welfare of the child being the paramount consideration".

34. On issues of credit, his Honour said at Appeal Book p.13 that to the extent that a finding should be made, "I prefer the evidence of the (husband) to that of the (wife) where there is conflict in the testimony".
35. His Honour dealt with the future proposals of the parties concerning custody, neither ofwhich "can realistically be said to involve a great degree of certainty", but said at Appeal Book p.14 that the case does not ultimately "turn on the certainty or otherwise of material proposals for (T.'s) wellbeing".
36. At Appeal Book p.15 his Honour said:
"The case turns, and has always turned rather more on the emotional wellbeing of the child (T.) than factors relating to physical accommodation. To the extent that the case does or could turn on material or physical considerations the (wife) could be said to have demonstrated a capacity to provide which is unmatched by anything which the (husband) has either hitherto demonstrated or shown a probability of being able to demonstrate in the future, at least so far as the personnel involved in his arrangements is concerned."

The Evidence of the Husband

37. His Honour said at Appeal Book p.23 that:
"The (husband) means well so far as custody is concerned, but his proposals have an air of unreality about them, particularly given the difficult task that any custodian of this child will be undertaking and the reluctance or inability of the (husband) to accept the nature and extent of (T.'s) difficulties, which are real and substantial, whether or not the child has been correctly diagnosed as having ADD."
38. His Honour referred to the husband's lack of insight into the difficulties of caring for T. on a full-time basis, and said at Appeal Book p.24 that he had difficulty seeing how "without that insight, one could begin to cope adequately with the demands that this child will place on any custodian in the future".
39. His Honour turned to the cross-examination of the husband on the allegations of sexualabuse. At Appeal Book p.24 he said:
"The (husband) denies that he has ever done anything of the kind alleged by (T.) or otherwise acted in a manner that could explain, with the exception of the biting of the buttocks, why the child made any of the allegations she did. Given that the (husband) denies entirely the allegations, it is perhaps not surprising that he cannot shed any light on why they might have been made by the child. The (husband) was not obliged to disprove the allegations, the Court's task being to determine whether, on all the evidence, it is satisfied as to the happening of sexual abuse, the absence of sexual abuse or an uncertainty in that regard either in relation to the fact of abuse or the identity of the abuser if satisfied that abuse occurred. The denials on oath by the (husband) cannot in my view be rejected. There is not medical or circumstantial evidence which militates against accepting on the balance of probabilities those denials. There is little more that one can realistically say where, realistically, only two people "know" whether abuse happened or did not, the other not ever being likely to be called as a witness in these proceedings."
40. His Honour referred to suggestions by the husband that the wife had encouraged thechild to make the complaints which she had made, as part of the wife's malicious attitude to access. However, his Honour found at Appeal Book pp.24-25 that:
"the cross examination of the (husband) in relation to the (wife's) prior history of giving or withholding access suggested that the current unbending attitude of the (wife) to future access is not one which the (wife) has always maintained, nor is it an approach which the (wife) readily or immediately adopted. As the material facts show, the (wife) in fact continued to permit access for a considerable time and on a reasonably generous basis after the child first commenced to make allegations."

41. His Honour said that the husband did not suggest that the child was not saying what the wife had alleged that she was saying, but that the child had somehow been "put up to it" by the wife.

42. His Honour dealt further at Appeal Book pp.25-26 with the husband's lack of detailedproposals and his lack of understanding of, and involvement in, the child's medical history. He found the husband's parenting skills to be "questionable", and concluded at Appeal Book p.26:
"Unless leaving the child in the custody of the (wife) were itself to present an unacceptable risk to the safety of the child, there is no basis upon which the custody of (T.) could be vested in the (husband)."

The Evidence of the Wife

43. His Honour referred to the wife's belief that the husband had abused the child. He saidat Appeal Book p.28 that he did not believe the wife's opposition to access to be nongenuine or contrived, and that he viewed her "earlier apparent willingness to believe in the innocence of the (husband) and allow him on-going access to (T.) as favourable to the

(wife)".

44. His Honour referred to the three bases of the wife's opposition to access; the wife'sview that the husband had sexually abused the child, that he had taken unnecessary risks with the child over a long period of time, and that she felt he had undermined her relationship with the child.
45. In relation to the second factor, his Honour found that some of the actions of thehusband had involved a standard of care which was "less than satisfactory", especially in relation to the child's dietary requirements, and that he had exposed the child to "unnecessary risks".
46. In relation to the third factor, his Honour found at Appeal Book p.29 that:
"there is in the (husband's) approach to the (wife) and apparent attitude towards her, a measure of condescension or superiority that may well fuel in the (wife's) mind a belief that, by wanting access to his daughter, the (husband) is attempting to undermine her relationship with the child. Ultimately I do not think that the concerns of the (wife) in this regard are well-founded but those concerns are, on the evidence I have seen and heard, far from fanciful or lacking any objective basis."
47. His Honour then said at Appeal Book p.29:
"It is really in relation to the question of sexual abuse that cause for concern arises."
48. His Honour said that the wife had stated in cross-examination that if the Court foundthat it was unlikely that T. had been sexually abused by the husband that she would agree to supervised access, but she was not sure who should supervise. In cross-examination by Mrs Ashes, for the husband, the wife said that she would accept the husband's parents as supervisors, but that she would still have her concerns.
49. His Honour dismissed the suggestion made by the husband that the wife had "hawked"the child to doctors until she heard the diagnoses she wished to hear. His Honour referred to the cross-examination of the wife in relation to her physically examining the child from January 1993 on. He found at Appeal Book pp.29-30 that any claims that the wife was looking for evidence of sexual abuse, or trying to draw allegations from the child, were not substantiated until late 1994, given that she continued to allow the husband access until that time.
50. His Honour said that the wife was unable to accept that the husband was innocent ofany inappropriate behaviour with the child, but noted that it would be hard to criticise her for that, given the persistence of the child's allegations and the expert advice the wife had received.

51. In relation to suggestions of inconsistency, to the extent that the wife preferred to believe that Mr F. had not sexually abused the child, but that the husband had, his Honour pointed out at Appeal Book p.30 that it was a "superficial inconsistency", there being "a material difference in relation to the nature and extent of the allegations and the period of time over which the allegations have been made". Since the allegations against Mr F. were made, the wife had made changes so as not to put the child in the company of Mr F. on her own.

52. His Honour said at Appeal Book pp.30-31 that the cross-examination of the wife was:
"almost suggestive of a desire on the (wife's) part to believe that (T.) had been abused by the (husband), the (wife) refusing to concede that there may have been explanations or innocent interpretations with respect to some of the complaints on the one hand, and refusing to accept that the (husband) would not have done some of the things alleged by the child. At one point during this evidence the (wife) stated "he is a malicious and evil man" and "I have no reason to disbelieve that he tried to put his penis into (T.'s) anus or vagina". This evidence reveals a markedly different attitude to that which the (wife) had in relation to the (husband) until late 1994."
53. In that context his Honour referred to the evidence of the wife that she had herself beensexually assaulted, but said that he did not "find on all the evidence that the (wife) is preoccupied with matters pertaining to sexual abuse, but the totality of the evidence does suggest that she perhaps has a predisposition to believe sexual abuse has occurred when (T.) makes a complaint", though there was an exception in the case of Mr F.
54. His Honour addressed the likely situation should access be awarded to the husband atAppeal Book p.31:
"The (wife) stated in cross examination that if access was awarded she would continue to inspect (T.'s) genital region after access and would maintain a journal in relation to access visits (professional advice having been given to keep a journal previously), will contact DOCS if anything is said or seen and will ask questions of (T.). Having heard the (wife), the prospects are that there will be a "debriefing" after each access visit. The probability is (for reasons I think accurately pinpointed by Dr Fairley) that the (wife) will ask questions which suggest their own answers and (T.) will, realising that those answers gain considerable attention, continue to provide those answers to the (wife). That scenario causes concern in relation to any access should (T.) continue to live with the (wife) and would, if access were to be considered, have to be weighed up as the price that the child would pay (assuming that the Court were not satisfied that the child would be at risk of abuse) for having access to the (husband). Whilst it could be suggested that the (wife) would stop at little to prevent access, her history to date does not suggest that such is the case although her history in recent times suggests that "evidence gathering" with a view to having access lawfully terminated will be on-going."
55. It should be noted in relation to the suggestion that the mother would continue to"inspect (T.'s) genital region", that the evidence at trial was that the child was still in nappies and that "inspection", at least at that time, involved observing the child's genital region during nappy changes.
56. The wife said that the child had expressed a wish not to see her father, and that she hadtried to keep her feelings towards the husband from the child. His Honour, however, had no doubt that the child would know of the wife's attitude towards the husband.
57. His Honour was not persuaded by assertions from the husband that the wife's mentalstate created a risk to the child's emotional development, though "that is not to say that the evidence does not provide a basis for concern in that regard". There was evidence that the wife had suffered from depression.
58. In April 1995 the wife placed the child in respite care for three days, saying that she felt unable to cope. His Honour referred at Appeal Book p.32 to the stresses in the wife's life at that stage, "they being principally, an attention-seeking and difficult child, the child's disclosures in relation to the (husband), the child's disclosure and retraction in relation to Mr (F.) and the pending court case".

The Evidence of Dr Fairley

59. Dr Fairley's report was tendered in evidence, his Honour finding at Appeal Book p.35 that "the thrust of the doctor's report is substantially correct and that the doctor's observations and opinions are entitled to considerable weight".
60. Dr Fairley regarded the areas of difficulty in the wife's continued care of the child as falling into three headings: firstly, the wife's depression and its effects on the child; secondly, the wife's intrusive parenting style; and thirdly, her belief in relation to sexual abuse.

61. Dr Fairley said at Transcript pp.298-9 that "(T.) clearly has a strong attachment to her mum" and that "one would have to have compelling reasons to disrupt that relationship". His Honour agreed with Dr Fairley's conclusion that a better alternative than the wife had not been demonstrated.

62. In relation to the question of sexual abuse, Dr Fairley said that there was a small risk ofabuse in the case of the husband, and an equal one with respect to Mr F. He said that the child's acting in a "hypersexual way" and "talking of sex a lot" did not necessarily indicate sexual abuse, though they are often found in sexual abuse situations.
63. His Honour at Appeal Book pp.36-37 agreed with Dr Fairley's view that the wife wouldnot change her mind in relation to the child having been abused, and that if no order for access were made, she would see that as confirming the accuracy of her belief, while if access were ordered "it would be likely to affect (T.), that is to say that the adverse response of the (wife) to an access order would impact upon the child in a way that would be to the child's detriment". Dr Fairley said that this would be likely to contribute to the child's overactive behaviour.
64. His Honour said at Appeal Book p.37:
"Whilst I am not qualified to express an opinion, there is a good deal of commonsense and logic in Dr Fairley's suggestion that much of the behaviour of (T.) can be seen in the context of the parents' hostilities."
65. His Honour referred to Dr Fairley's confirmation that the wife has a genuine belief thatthe child had been sexually abused by the husband, and that she had not fabricated any evidence. At Appeal Book p.37 his Honour said: "I agree with those observations." Dr Fairley had said at Appeal Book p.304: "My impression in what I heard of these was that it was probably a fairly accurate record of the - their conversations between mum and (T.), yes."
66. His Honour referred to a possible explanation offered by Dr Fairley for the child's conduct. At Appeal Book pp.37-38 he said:
"The doctor suggested that, the more (T.) "serves up this behaviour, the more the mother responds" and that this tends to
"reinforce" such behaviour in the child. Having seen the (wife), I do not doubt that she has over the past 12 months or so whether consciously or otherwise, responded most attentively to the child's allegations about the (husband). The logic of the doctor's proposition is difficult to refute. The child is difficult, attention-seeking and has no doubt been through a confusing period which now occupies most of the time that she has been alive. The child may well feel insecure and use attention-seeking behaviour as a means of guarding against that insecurity. I am not saying, nor did Dr Fairley, that the reason the child is making the complaints about the (husband) is that to which I have referred, but it is a possible explanation and the evidence, both in relation to the child and her behaviour on the one hand, and the (wife) on hers, provide support for the proposition."
67. His Honour referred to the suggestion made by Dr Fairley that the child may have been"coached" in relation to the complaints, though he did not believe that the wife had fabricated the evidence. His Honour said at Appeal Book p.38 that it was by "a process of encouraging the child to give certain answers that the coaching became apparent".
68. His Honour said that Dr Fairley had stated that it was "most likely" that the child had notbeen abused by either the husband or Mr F., and that the child uses "accusations of this kind to get attention from her mother". He said that T. was "not a truthful child".
69. His Honour noted Dr Fairley's view on access, that it should be of a few hours duration,the husband's parents playing an important part, building to overnight access and eventually holiday access. A key reason for this view was that "(T.) has a good relationship with the (husband), notwithstanding the child's complaints and all that has happened".
70. Dr Fairley said that there was no sufficient reason to remove the child from the wife's care even if the effect of access was that the child would be questioned and examined after access periods.

71. His Honour concluded at Appeal Book p.39 that "Dr Fairley impressed as a thoroughly professional and independent witness whose evidence I accept both in terms of his observations and the opinions which he expressed in reliance upon those observations".

The Evidence of Ms Grundy

72. Ms Grundy was employed as a psychologist by the Illawarra Area Health Service. At thetime of the trial she was the Co-ordinator of the Urunga House Sexual Assault Centre, and had held that position for one-and-a-half years, prior to that being employed for three years as a psychologist at the Centre. Ms Grundy said that she believed that the husband had sexually abused the child.
73. His Honour said at Appeal Book p.39 that he agreed substantially with Ms Grundy'sopinions though:
"by a different process, I do not come to the same conclusion as Ms Grundy in relation to whether or not the (husband) has sexually abused (T.). Ms Grundy was not concerned to examine and determine whether or not (T.) had been abused by the (husband). Those who referred the child to Ms Grundy had come to that view (the Department of Community Services). As I understand the position, the child would not have been referred to Ms Grundy had the Department not come to the view that the child had been abused. Consistent with that understanding it would not have been any part of Ms Grundy's function to question that initial diagnosis but rather to work with the child in the light of that diagnosis. It is thus no criticism of Ms Grundy that I do not find the allegations of abuse against the
(husband) substantiated."
74. His Honour said at Appeal Book p.39 that though he did not find the allegations proved,"the evidence of Ms Grundy sounds a clear and (sic.) note of caution which cannot lightly be disregarded". Ms Grundy referred to T.'s statement to her that she was "dirty on the inside", which she said that children who have been abused often say.
75. At Appeal Book p.40 his Honour said:
"When asked to justify her belief that (T.) had been abused by the (husband), Ms Grundy pointed to a number of matters, including the statements made by the child. Ms Grundy's fundamental premise was that it is very hard to see how a child of the age (T.) has been at the time of the various allegations could have been coached to say the things that she did. One's commonsense suggests there is logic in that proposition. (T.) is however a (sic.) "unusual child" as Ms Grundy conceded..."
76. His Honour referred to Ms Grundy's statement that she could not say "it happened 100 per cent", but "in all probability" the child had been abused.
77. Ms Grundy said that if there were no access ordered a minimum of six months furthertherapy would be required before the child could be "safe, well and happy".
78. Ms Grundy also expressed the opinion that T. felt safer by the time of trial, after asubstantial period in which she had not seen her father. She admitted that there were other possible explanations apart from sexual abuse, and confirmed that T. loves her father.

The Evidence of Dr Fairley and Ms Grundy

79. His Honour purported to reconcile the opinions of Ms Grundy and Dr Fairley thus atAppeal Book pp.40-41:
"One cannot ignore lightly the words of health care professionals such as Ms Grundy who have had very considerable experience with children who have undoubtedly been abused and who have seen (T.) on more occasions, and in a more therapeutic context than has Dr Fairley. On the other hand, Dr Fairley is a psychiatrist of considerable experience and expertise. Ultimately the dilemma which potentially emerges from the evidence of Dr Fairley and Ms Grundy is not as difficult to resolve as at first appears, the course which I ultimately consider to be most likely to be in the best interests of the welfare of (T.) being a course which I do not believe to run counter to the opinions of either of these experts."

The Question of Sexual Abuse

80. His Honour then said the following in relation to sexual abuse at Appeal Book pp.44-46:
"The High Court in M v M (1988) FLC 91-979 made clear that the ultimate and paramount issue to be decided in custody or access proceedings is whether the making of the order sought is in the interests of the welfare of the child, the fact that an allegation that the child has been sexually abused by the parent seeking custody or access arises not altering the ultimate and paramount issue which the Court must determine. The Court made clear that the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination to what is in the best interests of the child, the Court's being constrained not to allow its consideration of the paramount issue to be diverted by the supposed need to arrive at a definitive conclusion in relation to the allegations of sexual abuse. 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 on the balance of probabilities. In resolving the wider issue the Court must determine whether, on the evidence, there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. The existence and magnitude of the risk of sexual abuse is a fundamental matter to be taken into account in deciding issues of custody and access. The High Court noted that the Court has endeavoured, in order to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. A Court will not grant custody or access to a parent if that custody or access would expose the child to "an unacceptable risk" of sexual abuse.
For present purposes it is clear that, if the Court is satisfied on the balance of probabilities that the (husband) did what (T.) has alleged he has done, or some of the things which the child alleges that the (husband) has done, then the (husband) would not be a fit and proper person to have custody of (T.). Moreover, access without the strictest of full time supervision would expose the child to the risk of further abuse, an unacceptable risk which would outweigh the benefits that the child might otherwise derive from contact with her father. The only access that could in such circumstances be ordered would be long term supervised access if a finding of sexual abuse were to be made. Such an order would not, in the light of the Full
Court's decision in B v B (1993) FLC 92-357, be one that the Court could readily make. In the present case, if the allegations against the (husband) were established, it is inconceivable, even with strict supervision, that the benefits of such access could outweigh the detriment to the child (T.). If the (husband) did what the child claims that he has done, exposing the child to even supervised access in the future would itself be a form of abuse of the child.
I am not satisfied on the balance of probabilities that the allegations against the (husband) are established. The (husband) has consistently denied any wrongdoing. It is correct that the (husband) is substantially unable to provide any explanation for the allegations being made. Having regard to the terms of the allegations, that is hardly surprising. The absence of explanation as to why the child is saying what she is saying, whilst a matter relevant to determining whether the allegations lack substance is not a matter that operates by admission or otherwise against the (husband) in the present circumstances. The allegations of abuse are uncorroborated in any material respect. The only expert opinion evidence in support of a finding that sexual abuse has occurred is that of Ms Grundy. Ms Grundy did not purport to have independently reached that conclusion but rather relied upon a conclusion drawn by officers of the Department of Community Services, the qualifications of those officers to draw such conclusion, and the material upon which they did so being matters which fall short of providing evidence entitled to substantial weight as Ms Grundy herself to some extent conceded in the course of her evidence. The expert evidence of Dr Fairley militates against making a finding as does the circumstantial evidence in relation to Mr (F.), unless one were to make a similar finding against Mr (F.), the evidentiary basis for such a finding being less substantial than in the case of the (husband). The child is attention-seeking and demanding and has, as Dr Fairley has demonstrated in his evidence, been shown to be untruthful in some not insignificant respects. I am not obliged to speculate as to why the allegations are made but rather as to their substance or lack of it, but there does seem on all the evidence a good deal of logic in what Dr Fairley suggested in his oral evidence as a possible explanation of at least some of (T.'s) complaints. In all the circumstances, only be (sic.) elevating suspicion to the status of proof could one find that the allegations of sexual abuse against the (husband) have been established on the balance of probabilities. Such a process would involve placing very considerable reliance upon the proposition that "if he did not do it, who did?". That itself assumes what has not been proved - namely that the child was abused by someone. It is correct that the (husband) had the opportunity to have committed the acts of abuse complained of, but on the evidence a number of other people may well have had a similar opportunity.
It follows that I do not regard the (husband) as unfit to be a custodian or an access parent by virtue of the allegations of sexual abuse raised by (T.). It does not follow from the finding I have indicated that the child's complaints are totally lacking in foundation. It may be that something inappropriate has been done to (T.) at some time by some person. One must consider whether, in all the circumstances, to allow the (husband) to have unsupervised contact with (T.) (whether as a custodian or an access parent) would involve an unacceptable risk of sexual abuse to the child. This is a difficult concept to grasp. 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 (husband) 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. Only by proceeding on a basis similar to that indicated earlier could one realistically find that there was an unacceptable risk. There may be cases which, though not involving a positive finding of sexual abuse do involve a finding of unacceptable risk but this is not such a case.
It follows that the (husband) is not unfit to have custody or access by reason of sexual abuse or an unacceptable risk thereof. It does not follow, as the High Court has made clear, that the matter ends there as one must look at all the circumstances in order to determine what is best for the child. One does not cease to have regard to the fact that allegations are made when considering how desirable or otherwise it would be, and how viable or otherwise it would be, for the (husband) to have custody of or access to (T.). Those matters must be looked at within the context of Section 64 of the Family Law
Act."

Conclusions of the trial Judge

81. His Honour said at Appeal Book p.46 that "neither party represents a satisfactory option so far as the welfare of the child is concerned". At Appeal Book p.47 he said that:

"any order the Court makes at this time by way of final order is less likely to be in the best interests of the welfare of (T.) than an order that could be made after a regime such as the proposal of the learned Separate Representative envisages".

82. His Honour then considered the matters referred to in s.64. In respect of (bb)(i) and (ii),the nature of the relationship of the child with each of the parents and other persons, and the effect on the child of separation from either parent, his Honour found at Appeal Book pp.48-49:
"The Court is obliged to take into account the nature of the relationship of the child with each of the parents of the child and other persons and the effect on the child of separation from either parent. In this case, the child has survived being separated from the (husband) in a custodial context and, for a period of more than six months, in an access context. The child has not thrived in such circumstances, largely due to the strength of her relationship with the (husband), the removal of contact with him in the last six months having (given my finding that contact has not been accompanied by sexual abuse or an unacceptable risk of it) deprived the child of an on-going relationship with the (husband). The absence of the (husband's) influence on a regular basis has meant that the child has not had the effect of the (husband's) more relaxed parenting style by way of offset to the (wife's) somewhat overprotective parenting style. Whilst it can be said that the child has coped with not having the (husband) in her life in any meaningful way for a considerable period now, the evidence suggests that, save in relation to questions of abuse, that has been detrimental to the child's happiness and, probably, development.
The child has lived with the (wife) throughout her life. The (wife) was the primary caregiver for the child up to the time of separation. The child has never lived apart from the (wife) save for short access periods, four to five days being the longest time in which the child has been with the (husband). The child does have a strong bond with the (husband) albeit, as Dr Fairley makes clear, that bond is not entirely healthy for the reasons Dr Fairley gave. Despite the (wife's) shortcomings, it is a matter entirely for speculation as to how (T.) would cope with being separated from the (wife). That emerges clearly on a number of different levels, both in terms of the child's relationship with the (wife), the absence of anything approaching such a bond with any other person as well as the unknown factors in terms of adjustment to separation which the child's particular emotional and/or behavioural problems create. It would, on the evidence I have heard, be a brave prediction to suggest that the child would cope without detriment were she to be removed from the care of the (wife), particularly if she was then placed with the (husband) who is himself to a large extent an unknown quantity with arrangements that are very much uncertain as I have outlined."
83. His Honour said that Dr Fairley's report made it clear, subject to some concerns, thataccess between the child and the father "would have the potential to benefit the child". His Honour said that it would be undesirable to resume access in circumstances in which the child may make further allegations, and that supervision of access would therefore be preferable. He went on to deal with the details of access.

ORDERS OF COLEMAN J

84.           On 15 June 1995 His Honour made the following orders:
"1. That, pending further order of the Court, the respondent mother have interim custody of the child (T.) born 9 January
1991.
2. That, pending further order of the Court, the applicant father have access to the said child:
a.          (a)      for a period of three (3) months, access to be of three (3) hours duration on one Saturday in each month between the hours of 10.00am to 1.00pm, such access to be supervised by the parents of the applicant father or either of them, and, thereafter;
b.          (b)      for a further period of three (3) months, access to be ofeight (8) hours duration on one Saturday in each month between the hours of 10.00am and 6.00pm, such access to be supervised by the parents of the applicant father or either of them, and, thereafter;
c.          (c)       one (1) weekend per month from 10.00am Saturday to 4.00pm Sunday such access to be supervised by the parents of the applicant father or either of them.
3.          3.        That a further report be prepared by the O.30A expert, DrMichael Fairley after 1 February 1996 as to the effectiveness of access and the said child's reaction.
4.          4.        That, pending further order of the Court, the said childcontinue to attend counselling with Ms Alison Grundy, Psychologist.
5.          5.        That liberty be granted generally to restore to the list fordirections on 72 hours notice, or upon the report referred to in Order (3) hereof becoming available.
6.          6.        That, pending further order of the Court, the appointment ofthe Separate Representative be continued."

THE HEARING AND ORDERS OF 19 JULY 1995

85. On 28 June 1995, Ms Grundy wrote to the separate representative, indicating that she proposed to terminate her sessions with the child. In her letter she said that she did not think the supervisors chosen had been appointed to "safeguard (T.)'s ongoing welfare". She said that to continue to see the child "would not be therapeutically appropriate, as she is to have unsafe contact with her father". She said:
"Further, the basis of counselling for children is that they have been very courageous to tell about the abuse and that now they have disclosed people who care about them will keep them safe from any ongoing events with that particular perpetrator. Obviously my credibility to (T.) about keeping her safe and therefore any ongoing work with this child has been rendered impotent due to the court ruling."
86. On 6 July 1995 the separate representative filed an application pursuant to the liberty to apply seeking that Order 4 be discharged and that the matter be restored to the list for further directions. The husband filed an application on 19 July 1995 which sought that the dates for access be specified.
87. The matter came before Coleman J again on 19 July 1995, and he made orders on that day. Order 1 specified dates for the three three-hour access periods, Order 2 for the three eight-hour Saturday access periods, and Order 3 for the weekend access periods. These were all to be supervised by the husband's parents or either of them. Order 4 specified the venue at which access was to commence and conclude. Order 5 said:
"That the orders for counselling of 15 June 1995 be varied to provide that such counselling may occur with Dr Geoffrey Wragg in the event of Alison Grundy being unwilling or unable to undertake such counselling."
88. Order 7 required the wife to provide to the husband, at least one week prior to the firstaccess visit, a complete list of foods and beverages which the child is permitted to consume.
89. The orders which the wife appealed against in her amended notice of appeal wereOrder 2 of 15 June 1995, and Orders 1, 2, 3, 4 and 7 of 19 July 1995.
90. The separate representative sought that the appeal be dismissed.

THE APPEAL

91. The grounds of appeal relied upon by the wife were detailed, and it does not seem necessary to deal with each point separately, nor did Mr Johnston, who appeared for the wife, seek to do so at the hearing of the appeal. I propose instead to divide my discussion into four essential components, which encompass the individual arguments: firstly, whether the trial Judge correctly dealt with the issue of "unacceptable risk"; secondly, whether he dealt appropriately with the evidence of sexual abuse; thirdly, whether he correctly considered the likely effect of access on the wife, and its consequent impact on the child; and fourthly, the interim nature of the orders made.

General Principles

92. Prior to dealing with those specific matters, it is important to set out more generally theprinciples relevant to the Courts' determination of access applications. The most basic of those principles appears in s.64(1)(a): "the court must regard the welfare of the child as the paramount consideration."
93. In Brown and Pedersen (1992) FLC 92-271, the Full Court accepted the following principle, as stated by Treyvaud J in Re A (1982) FLC 91-284 at 77,612, at 79,011:
"...the submission commonly made is that access is denied to the non-custodial parent only rarely and in exceptional cases. There are a number of authorities that say that. In my view, however, that alleged principle that access is denied only rarely and in exceptional cases, begs the question. It states the consequences of the application of the proper rule. It is not in fact the rule nor the principle. I consider that the principle applicable can be stated quite simply, namely that access by a non-custodial parent will only be ordered where access will advance and promote the welfare of the child." (emphasis added)
94. In B and B (1993) FLC 92-357, the Full Court said at 79,779:
"While the welfare of the child has been the paramount consideration in custody and access matters at least since the inception of the Family Law Act, the interpretation of that principle has not been constant. One interpretation was that a child's best interests were served by contact with his or her parents to the extent that to deny access might have "grave consequences" for the child's future development. This gave rise to an almost presumptive "right" of access being given to parents in the name of the welfare of the child: see Cooper v.
Cooper (1977) FLC 90-234. However, the Full Court in Brown and Pedersen has authoritatively ended that line of reasoning and what best promotes a child's welfare will be decided by the exercise of judicial discretion in each case.
This view was upheld by the High Court (Brennan, Toohey and McHugh JJ) which refused leave to appeal from the Full Court's decision in that case (13 March, 1992). Brennan J (as he then was) stated:-
"If it be the case that Cooper and other cases in the Family Court suggest that a non-custodial parent has a presumptive right of access, they are incorrect and cannot be followed.
Equally, it is incorrect presumptively to deny access to a non-custodial parent. There is no presumption either way as a matter of law. The benefit to the child of maintaining a bond with a non-custodial parent is a matter of fact to which weight is given according to the circumstances of the case."" (emphasis added)
95. There can be no doubt that that is the accepted, and the correct, approach for thisCourt to take in relation to access cases. The Court must make a decision based on the facts of the particular case before it, including the nature of the relationship between the particular child and parent concerned. While it is of great importance to take into account the benefit to a child of a healthy, loving, supportive relationship with a parent, where such a relationship does not exist on the facts of the particular case, it can be of no assistance to a judge, or the child, to idealise that the situation were different, on the basis that the majority of parent-child relationships are of that character.

96. To speak of a court terminating the parent-child relationship only in "exceptionalcircumstances" says nothing more than that in the majority of cases, parents genuinely love, respect and care for their children, and seek to act in their best interests. It thus may be true that as a matter of sociological inquiry it would be an "exceptional" case in which that were not the situation. But as a matter of legal principle, in making decisions concerning the welfare of a particular child, it cannot ultimately matter to that child's welfare how parents in general relate to their children. All that matters to that child's welfare, in this context, is how that particular child's parent relates to him or her. To speak of "exceptional circumstances" is to run the risk of confusing legal principle with sociological expectations, and losing sight of the individual case in favour of broad, nonspecific ideals.
97. The judicial process involves a thorough examination of each case on its merits, in lightof its own particular facts and circumstances. No more so than in cases involving the welfare of children is that apparent, or desirable. The question is: In this particular case, what is in the best interests of this child, taking account of the fact that the child and the parent are two real individuals, and not hypothetical entities to be moulded into a societally expected model of appropriate child-parent relationships?
98. This approach is consistent with Australia's international obligations pursuant to Article9.3 of the United Nations Convention of the Rights of the Child, which the Commonwealth Executive ratified on 17 December 1990 and which entered into force for Australia on 16 January 1991. That Article obliges member states to:
"respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests". (emphasis added)
99. Though the law in Australia is that ratification of an international treaty or conventiondoes not, without legislative action, incorporate the terms of the treaty or convention into domestic Australian law (see the discussion of Nicholson CJ and Fogarty J in Murray v. Family Services, ACT [1993] FamCA 103; (1993) FLC 92-416), such a treaty or convention is nevertheless not without significance to the exercise of judicial discretion. (See the discussion in Murray, supra, that of the Federal Court in Minister for Foreign Affairs and Trade v. Magno [1992] FCA 566; (1992) 112 ALR 529, and the High Court in Minister for Immigration and Ethnic Affairs v. Teoh [1995] HCA 20; (1995) 128 ALR 353, which it is unnecessary to repeat here.)

100. The Article requires that the right of children to maintain relationships and contact with their parents be respected. It is in the nature of a "right" that it belongs to, and is exercisable by or on behalf of, the person for whose benefit it exists. To have a right to do something does not mean that one is required to do the thing which the right allows or enables. Rather, it entitles the holder of the right to do that thing in cases in which to do so is likely to bring benefit to the holder. It operates to protect the holder of the right, in circumstances where such a benefit is likely to arise from its exercise, from being prevented from doing the thing, the doing of which the right preserves.

101. In most cases it is left to the holder of the right to decide when it should be exercised. In the case of young children, the choice must be made on their behalf, they lacking the maturity and understanding to be capable of making such a choice. The only permissible criterion according to which the person assigned to decide on their behalf can refer is whether it is in the best interests of the child concerned that the right be exercised.

102. The Article referred to provides that children have a right to regular contact with both parents. Of course, it does not require them to have contact with both parents. Rather, it proscribes their being prevented from such contact where such contact would bring benefit to them.

103. Thus the question to be determined in deciding whether this particular right should be exercised is whether it is in the child's best interests to have contact with both parents. There can be no presumption either that it is or that it is not. The inclusion of the expression "except if it is contrary to the child's best interests" only clarifies the meaning of the right.

104. To comply with the Article, the Court must ask: What will best serve the interests of the particular child in the particular case? That is the accepted approach of this Court. "Unacceptable Risk" To the Child

105. The central point of any discussion of the issue of unacceptable risk in sexual abuse cases in Australia is the decision of the High Court in M and M (1988) FLC 91-979, together with Brown and Pedersen, supra, and B and B, supra. There has otherwise been surprisingly little detailed discussion in Australia of the important principles involved. However, there are several recent decisions in New Zealand which provide a most useful analysis of these matters, including Y v. M (1993) NZFLR 609, S v. S (1993) NZFLR 657, M v. Y (1994) NZFLR 1, and S v. S (1994) NZFLR 26. I will refer to passages from those judgments, but they repay further more detailed reading. The first two citations refer to judgments of single judges in the New Zealand High Court. The latter two citations refer to the judgments of the New Zealand Court of Appeal in those cases, which it heard consecutively. The Court of Appeal allowed the appeal in M v. Y and dismissed the appeal in S v. S.

106. In determining applications for custody and access, the Court is to have one paramount principle in mind - the best interests of the child involved. It is the duty of the Court to examine the entirety of the evidence put before it, and to determine, based on that evidence, what orders would best promote the welfare of that child. The fact that a case involves allegations or suggestions that a child has been sexually abused by an applicant for custody or access does not displace that principle. It does, however, raise an important set of factors and considerations to which the Court must have serious regard in determining the proper application of the principle to the facts of the case.

107. This appeal is concerned only with sexual abuse and I will confine my comments to that. Other forms of abuse - physical or emotional - may also have similar consequences and in appropriate cases may call for a similar approach.

(i) The reality of sexual abuse

108. The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise. For example, in Australia, for the year 1993/94 there were 28,711 substantiated protective notifications to State or Territory Departments of instances of child abuse, of which 5360 involved sexual abuse. (Child Abuse and Neglect: Australia 1993-94, Child Welfare Services No. 13, Angus and Woodward, Australian Institute of Health and Welfare, Table 24 p.33).

109. In S v. S, supra, Thomas J, in the New Zealand High Court, said at 664 that:

"recent research has revealed a consistently high level of the incidence of child sexual abuse in most countries. (See Russell, "The incidence and prevalence of intrafamilial and extrafamilial sexual abuse of female children" (1983) 7 Child Abuse and Neglect 147-153; Baker and Duncan, "Child sexual abuse: A study of prevalence in Great Britain" (1985) 9 Child Abuse and Neglect 457-467; and Goldman and Goldman, "Australian children's sexual experiences within the family", Sixth International Congress on
Child Abuse and Neglect, 1986, Sydney, Abstract No 7, p 69.)".

110. Gallen J said in the New Zealand Court of Appeal, in S v. S, supra, in a judgment with which Cooke P and Hardie Boys J agreed, at 31:

"...research material available and indeed the common experience of the Courts, is such that it can no longer be accepted (if it ever could have been accepted) that conduct of this kind is a rare abberation (sic.)."

111. Courts must be aware that the occurrence of sexual abuse is not confined to certain socio-economic groups, and that its perpetrators are not easily identifiable. Experience shows that there is nothing incongruous about a sexual abuser being otherwise widely respected and admired by his or her peers or community. Thomas J said at 668:

"The fact is that abusers are not restricted to persons of bad character who are held in low esteem. Indeed, it is recognised that they may come from all walks of life. Not infrequently in criminal cases, a person convicted of a charge involving sexual abuse can produce copious references testifying to his good character and reputation. Yet, it is not suggested that the abuse did not occur. Sexual abuse knows no social boundaries, and it would or could be perilous for the child if the Court was to conclude that sexual abuse has not occurred, notwithstanding evidence to suggest that it has, on the basis of testimony of the parent's excellent general character. Here, as elsewhere, the welfare of the child is paramount."

112. It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.

(ii) Sexual abuse and custody/access proceedings

113. Where a child has been sexually abused by a parent, that fact will have an enormous impact on any decision that must be made by a Court regarding the welfare of that child, and involving the parent. However, in reality, there are only a limited number of cases in which a Court will be able to say with certainty that the allegations of sexual abuse are true. Most fall within what Cooke P described in M v. Y, supra, at 4 as the "grey area in which a confident conclusion cannot be reached either way". Often there will be limited evidence of the sort which those in the legal profession are accustomed to recognising as probative of the occurrence of an event. The secrecy which usually surrounds sexual abuse, the nature of the offences which it involves, and the nature of the relationship between the perpetrator and the child, all militate against the furnishing of the type of evidence with which lawyers like to work. Of course, the lack of that type of evidence may say less about whether an alleged event did or did not occur, than it says about the inappropriateness of the legal concepts used to test the allegations, especially in the context of a case which centres on the welfare of the child.

114. In S v. S, Thomas J said at 659:

"Allegations in custody and access cases that a child has been sexually abused are not uncommon. They pose an acute problem for the Courts simply because of the difficulty in determining whether the sexual abuse has taken place. This is particularly so in the case of pre-school children. Such children are not likely to be able to provide a coherent account of what, if anything, has happened. In the result, the allegations frequently are neither conclusively proved nor disproved.
In the state of uncertainty which results it would be easy for the Courts to find that the allegations of sexual abuse have not been established to the requisite standard of proof and dismiss them from contention. But to make that finding and no more may result in the child being exposed to an appreciable risk of being sexually abused while in custody or during access visits. Having regard to the fact that the child's welfare is the first
and paramount consideration to be taken into account by the Courts, that risk clearly cannot be accepted. The ordinary evidential rules governing the proof of matters in issue in civil cases can be seen at once to be inappropriate. The Court's dilemma was graphically described by Hardie Boys J in Gooch v Gooch (High Court, Christchurch M 156/82, 22 April 1983). The learned Judge said (at p 28):
It would of course be a terrible thing for the children if I were to entirely reject their allegations, and order their lives on the basis that there was no substance in them, and yet in fact for them to be true.
And, again (at p 26):
...I cannot dismiss the possibility that there may be at least some factual basis for what the children say. I am left in doubt. Whilst I must give the father the fullest benefit of that doubt, I must also accord it to the children. In their interests, it would be irresponsible to ignore it."

115. At 660, Thomas J continued:

"The immaturity of the child is not the only problem in
cases such as this. Difficulties also arise because the allegations are made in the context of a custody or access dispute. Generally speaking, and it is the case here, the mother who suspects the child is being sexually abused voices her concern and reports the perceived disclosures that have been made to her by the child to the authorities and the Family Court. Her account is at once seen as "allegations" or an "accusation" of sexual abuse and her motives are viewed with suspicion. It is suspected that she is seeking to discredit the father and so advance her claim to custody or to restrict the father's access. Her credibility is put squarely in issue. Although the mother may do no more than report the unusual behaviour she has witnessed in her child and the perceived disclosures which the child made to her, the somewhat dated aphorism that such allegations are easily made and difficult to refute may still prevail.
The matter is somewhat more complex. The reality is that child sexual abuse is often as difficult to prove as it is difficult to refute. Studies have explored the reasons why allegations of sexual abuse tend to surface in the context of custody or access disputes. See Kee MacFarlane, "Child Sexual Abuse Allegations in
Divorce Proceedings" in Sexual Abuse of Young Children (1988) 121. At the same time it must be borne in mind that false accusations or total fabrications of child sex abuse are regarded by many experienced child psychologists and psychiatrists as being somewhat rare. See, for example, Kee
MacFarlane, ibid, at pp 123 and 127; and Green, "True and False Allegations of Sexual Abuse in Child Custody Disputes" (1986)
25(4) Journal of the American Academy of Child Psychiatry 449. This does not mean, of course, that allegations of sexual abuse are to be approached on the basis that they are true or likely to be true. Indeed, it is recognised that a relatively small but significant percentage are likely to be false. The point merely serves to demonstrate the difficulty of reaching a firm conclusion as to whether sexual abuse has or has not occurred and the necessity to proceed with great care and caution before either finding that such allegations have been established or finding that they are without foundation. The Court's concern must be to adopt an approach which will be just and which will place the welfare of the child ahead of all other
considerations."

116. As Thomas J pointed out, courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.

117. Those latter factors give rise to concerns about the "rights" of the parent and the suggestion that allegations of sexual abuse only have to be made for those rights to be lost or unfairly compromised. The Courts have to be vigilant about this, but in the ultimate the only issue is the welfare and protection of the child. The discussion by the Full Court in Re P (a child); Separate Representative (1993) FLC 92-376 on the restrictions of the "right" of the parent to have a child in a sexual abuse case further examined or interviewed emphasises the essential priorities.

118. The overall problem is accentuated by the circumstance that, in general, lawyers and judges do not have a specialised understanding of the intricacies of child psychology and development. In addition these cases must ultimately be conducted within a legal framework with resort to familiar legal terms, concepts and attitudes. The fact that the concept of justice thus involved is inextricably linked with those legal concepts and attitudes represents a problem in cases of this type which it is difficult to articulate or compensate for.

119. On the other side of the equation are the great benefits that can be enjoyed by children through contact with both parents. A healthy parent-child relationship can bring to a child a unique richness and warmth of experience which is vitally important to the child's future development. The forced severing of ties between a child and a non-abusive, loving parent can have profound effects.

120. This is where the dilemma arises. Does one take the step of terminating or limiting that relationship where one does not know whether the alleged events took place? And how does one sufficiently account for the fact that because of the nature of the offence any real degree of certainty may be impossible to achieve, and that in any event the ultimate determinant is the welfare of the child?

121. In M and M, supra, Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ answered these questions in the following way at 77,081:

"To achieve a proper balance, the test is best expressed by
saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse."

122. The High Court observed that in access cases, "the magnitude of the risk may be less if the order in contemplation is supervised access", but noted that even in the case of supervised access, "there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her (or him) or whom the child believes to have sexually abused her (or him)."

123. In B and B, supra, the Full Court drew this together and concluded at 79,778 that "if supervised access poses an "unacceptable risk" of harm (or "disturbance"), whether physical, emotional or psychological, it should not be granted". The question to consider in access cases is therefore: Would supervised or unsupervised access pose an unacceptable risk to the child of sexual abuse, or of other physical, emotional or psychological harm or disturbance?

124. Of course, it will be appreciated that that is only one question among many which a Court will ask in a case where its task is to determine what is in the child's best interests. A Court may find that there is no such unacceptable risk in a particular case, but it must then still ask whether the custody or access being sought is in the child's best interests. A negative answer to the unacceptable risk question does not automatically lead to an order for access, because it will not follow that because access does not pose such a risk that it will necessarily be in the child's best interests. However, those are more general issues which are not central here and need not be examined further.

(iii) What is Meant by "Unacceptable Risk"

125. The term "unacceptable risk" does not carry an easily identifiable meaning. In M and M, supra, the High Court noted the difficulty involved in searching for a precise definition. At 77,081, it said:

"Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm"

d. 56. This was a discretionary judgment. The circumstances in which the Full Court shouldinterfere with a discretionary judgment are well known. In Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 Stephen J said at 519:

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.

a. 57. In House v. The King (1936) 55 CLR, at pp 504-505, Dixon, Evatt and McTiernan JJ said at 534:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred."

a. 58. In our view, given the role of an appellant court as outlined, it would be inappropriate forthis Court to interfere with his Honour's findings. His Honour has carefully identified each portion of the evidence on which he relies, and there is evidence to support the conclusions to which he came.

b. 59. In M. v M. (1988) 166 CLR 69, Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ dismissed an appeal from orders refusing a father access to his child where the trial Judge had been unable to positively find that alleged sexual abuse had occurred. Their Honours said:

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 [1938] HCA 34; (1938) 60 CLR 336, at p 362.
...
...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. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a
child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access...
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v. A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This
imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

60. Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial. His Honour said at Appeal Book p.45:

130. I am not satisfied on the balance of probabilities that the allegations against the applicant are established... 131. It follows that I do not regard the applicant as unfit to be a custodian or an access parent by virtue of the allegations of sexual abuse raised by (T.). It does not follow from the finding I have indicated that the child's complaints are totally lacking in foundation. It may be that something inappropriate has been done to (T.) at some time by some person. One must consider whether, in all the circumstances, to allow the applicant to have unsupervised contact with (T.) (whether as a custodian or an access parent) would involve an unacceptable risk of sexual abuse to the child. This is a difficult concept to grasp. 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 present applicant 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. Only by proceeding on a basis similar to that indicated earlier could one realistically find that there was an unacceptable risk. There may be cases which, though not involving a positive finding of sexual abuse do involve a finding of unacceptable risk but this is not such a case.
132. It follows that the applicant is not unfit to have custody or access by reason of sexual abuse or an unacceptable risk thereof. It does not follow, as the High Court has made clear, that the matter ends there as one must look at all the circumstances in order to determine what is best for the child. One does not cease to have regard to the fact that allegations are made when considering how desirable or otherwise it would be, and how viable or otherwise it would be, for the applicant to have custody of or access to (T.). Those matters must be looked at within the context of Section 64 of the Family Law Act.
...
148. Dr Fairley's report makes clear that, subject to addressing some of the concerns indicated by Dr Fairley, access between the applicant and (T.) would have the potential to benefit the child. One cannot in this context ignore the fact that the child has been making allegations, with reasonable consistency, over a significant period of time. Although I have not made a finding that sexual abuse has occurred or that there is an unacceptable risk of it, it is clearly undesirable that
access, which has not occurred for more than six months now, be simply resumed in circumstances where, on the evidence, there may be further allegations made by (T.). To permit an access regime where that could occur would be to no one's advantage raising as it would the virtual certainty of further proceedings, whether in this Court or in the Childrens' Court at the instigation of the Department under the Child Care and Protection legislation of New South Wales. It is not correct to say that the applicant must demonstrate to the respondent's satisfaction that he is not abusing and would not abuse (T.) but clearly if the respondent were able to accept that, a lot of the basis of her hostility towards the applicant would be eliminated and her ability to accept and cope with access increased. It would clearly put (T.) under intense pressure to make further allegations, either to please the respondent or to gain the respondent's attention, if she were to be put in the position of having unsupervised access with her father. Dr Fairley's view, which I accept, is that it would be better to have access, even if allegations were made (as opposed to abuse occurring) than to have no access between (T.) and the applicant. That opinion was predicated on the Court not making a positive finding in relation to abuse, a condition precedent which has been met. In my view the proposition put by the separate representative in relation to access is in form almost irresistible...

61. By creating interim orders his Honour was trying to establish whether or not an access regime was viable and whether or not such an access regime would advance the welfare of the child, given the mother's attitude towards ongoing access. His Honour clearly dismissed any unacceptable risk to the child of sexual interference by the father. Whilst there was evidence to support his Honour coming to a contrary conclusion, that evidence was clearly weighed up by his Honour and rejected by him. None of the matters raised by counsel for the appellant are in our view, sufficient for this Court to interfere with the findings made by the trial Judge.

GROUND 2

a. 62. The second ground sought to be argued in our view amounts to a submission that moreweight should have been given to the detriment which the child would suffer as a result of the mother's attitudes towards access. Reliance was sought to be placed on the decision of the Full Court in Sedgley (1995) FLC 92-623, and in particular the passages at 82,258 and 82,259, adopting the words of Purdy J in Grant's case where his Honour said :

"Whilst the welfare of the child might require some continuity of contact with the non-custodial parent, the need for peace and tranquility in the custodial parent's household may be a more compelling need for the child."

a. 63. At issue in this case is whether or not the situation had yet been reached that the'tranquility' need outweighed the 'contact' need. The decision in Sedgley was whether or not that situation had yet been reached. The decision in Sedgley came after many years of difficult and disruptive conduct on behalf of the non-custodial parent. There is no such similar history in this case.

b. 64. The correct approach in our view, is that identified by Fogarty J in Sampson's casereferred to above. There may come a time in difficult access cases where the Court has little choice but to deny the non-custodial parent access because of the effect that the access is having on the custodial parent's household. What Coleman J did here, eventually with the concurrence of all of the parties, was to set up a temporary regime for some six months to see whether or not access could work, given his Honour's findings about sexual abuse. In our view such a course was clearly open to his Honour, and in our view Ground 2 is not established.

GROUND 3

a. 65. This ground suggested that his Honour failed to give any or any proper weight to areport by Alison Grundy dated 28 June 1995, when making the access orders on 29 July. By that report Miss Grundy indicated that, as the Court did not believe that sexual assaults had occurred, it would not make any sense to order that T. herself continue to see the sexual assault counsellor. She announced in the report that she planned to terminate the counselling sessions with the child. This was consistent with the evidence given in the first report to which we have already made reference and in her viva voce evidence.

b. 66. In our view the nexus between the ongoing counselling between the child and AlisonGrundy and the existence of supervised experimental access was not shown. There has been no appeal against the order substituting Mr Wragg for Alison Grundy and in our view there is no substance in the ground of appeal.

GROUND 4

a. 67. The wife conceded in her viva voce evidence that the husband's parents wereappropriate supervisors. There was no issue before the trial Judge about this matter although there was a theoretical issue as to whether or not there ought to be supervision by persons who were not convinced of the existence of that for which they were supervising. This in our view, is a non sequitur.

b. 68. In B v B (1993) FLC 92-357 the Full Court considered the propriety of ordering supervised access in a case where there was an actual finding of sexual abuse. In such circumstances the Court took the view that supervised access may not normally be appropriate given (inter alia) the difficulties in finding appropriate supervisors both short and long term. The Full Court observed at 79,781 :

"... It is in most cases undesirable for friends or family of
the access parent to supervise children during access periods in circumstances whether abuse has been found to have occurred, or there is an unacceptable risk of abuse occurring."

a. 69. In cases where there is no finding of unacceptable risk but the custodial parentimplacably believes that sexual abuse has occurred, supervised access can prevent disruption to the parent/child relationship, protect the accused parent from further accusations and allay the fears of the custodial parent.

b. 70. In an article entitled Supervised Child Access - The Evolution of a Social Service Family and Conciliation Courts Review, Vol 32 No. 2, April 1994 230-246, by Robert Straus and Eve Alda the following passages appear:

Some of the most intractable dilemmas brought before Family Courts involve disputes over access to children whose parents are separated or divorced. The particular dilemmas where a need for supervised visitation arises include situations like the case example where contact between a noncustodial parent and child has been interrupted; the issue is an alleged risk to the child; ...where a noncustodial parent has been absent or incarcerated...domestic violence...
Common to all these situations is the tension between unacceptable alternatives; on one hand actively terminating or allowing a cessation of contact with a noncustodial parent, and on the other hand maintaining contact with a potential risk of harm to the child and/or the custodial parent. Supervision of parent-child contacts creates a third alternative. By providing neutrality and safety for both parents and the child(ren), supervised child access...becomes a long-term alternative to interrupting a parent-child relationship.
The implicit assumption in this discussion is that, absent clear evidence that all contact should be cut off, the interests of children are served by maintaining contact with the noncustodial parent, while protecting the children...
The objectives of supervising parent-child access are therefore to provide a setting in which a child can maintain or re-establish a relationship with a noncustodial parent when that relationship might otherwise be interrupted or damaging to the child; to reassure the custodial parent of the child's safety while with the other parent; to protect the noncustodial parent against false accusations; to document the inter-action between each parent and the child for use by the court or other evaluators; to provide feedback to the supervised parent to better his or her relationship with the child (James and Gibson, 1991). Ensuring safety for both parents and the child(ren) is an overarching purpose.

71. In this case Coleman J did not express precisely why he was ordering supervised access rather than unsupervised access. His Honour said at Appeal Book p.16 when dealing generally with the father's evidence:

77. So far as access is concerned, I cannot reject the respondent's denials in relation to the allegations levelled at him. It does not follow that he is thereby immediately and necessarily a suitable access parent either on a supervised or unsupervised basis. The parenting skills of the applicant, as revealed in cross examination by two skilful Counsel, are questionable, particularly in the case of a child as difficult as (T.) is, and even more so given the child's emotional and related difficulties.
It appears implicit from the discussion with counsel one basis for the provision of a supervisor, other than the continuing conflict between the father and the mother, was the need to effectively provide the mother with some degree of confidence about the access, as well as protecting the father from further unfounded allegations being made against him.

a. 72. As there was no issue taken with respect to the parents' suitability, in our view it isinappropriate to raise it now.

b. 73. In any event his Honour, in the course of his discussions with Counsel, indicated that hehad observed the husband's parents both in the witness box and in the court-room for a number of days, and had concluded from his observations that they were appropriate persons to supervise the access in these circumstances.

GROUND 5

a. 74. The final ground of appeal is expressed in general terms. In submissions to the Court,Counsel for the appellant referred to paragraph 142 of his Honour's judgment where his Honour said:

"It may never be permissible to experiment with the life of a child. The evidence suggests that this child would, if an experiment were unsuccessfully taken, be more damaged as a consequence than it would to many other children."

a. 75. The passage quoted is in the midst of a discussion as to whether or not there ought tobe an experimental change of custody. It comes immediately after a sentence that reads as follows:

"Put another way in my view the benefits which (T.) may derive from moving to live with the applicant are more than outweighed by the disadvantages that such a move may well involve."

a. 76. In any event the passage relied upon, in our view, does not accurately state thesituation regarding custody cases. In many cases involving custody and access the Court is obliged to experiment. It is only with the passage of time that one can measure whether or not the experiment has been successful. Certainly the child should never be put into a life threatening situation. But in many cases the Court is forced to choose between two or more less than satisfactory alternatives, each fraught with risk to the child. Where the Court has to weigh up competing risks, such as in this case the risk of allowing access compared with the risk of not allowing access, the Court must often, by the very nature entailed in the process, experiment. Providing there is more to be gained from carrying out the experiment than not carrying it out, and providing the possible benefits to the child outweigh the possible detriments, the experiment may well be required to be undertaken to advance the welfare of the child.

b. 77. In our view the course adopted by the trial Judge was perfectly open to him in thecircumstances of the case. He had concluded that the allegations relating to sexual interference of the child by the father had not been made out. He then had the difficult task of determining what was best for the long term future of the child, given that the mother was unlikely to accept the findings of the Court. One of the options open to him was to conclude that the welfare of the child required there to be an access regime created with the hope that the access regime would eventually turn out to be successful. That is the course that his Honour adopted and in our view it cannot be said that his Honour in so doing acted upon any wrong principle. In our view no basis for allowing the appeal has been made out.

COSTS:

a. 78. In the event that the appeal was dismissed Counsel for the appellant husband soughtan order for his costs to be taxed. He was not in receipt of legal aid. The wife opposed the making of the order sought in the event that the appeal was disallowed. She was also not on legal aid. We have little evidence of the financial circumstances of the parties. Even though this effectively was an appeal relating to an interim period of access which appeal has been wholly unsuccessful, in our view the issues raised were of sufficient significance that the general rule in s.117(1) should apply and each party should bear their own costs.

ORDERS:

(1) That the appeal be dismissed.
(2) That there be no order as to costs.