Napier & Hepburn
[2006] FamCA 1316
•5 DECEMBER 2006
FAMILY COURT OF AUSTRALIA
| NAPIER & HEPBURN | [2006] FamCA 1316 |
| APPEAL – CONTACT – UNACCEPTABLE RISK – Allegations of sexual abuse – Adequacy of reasons - Father challenged decision of trial judge allowing him only supervised contact to his six year old son – Statements made by child relating to the father following periods of holiday contact – Father questioned by police but no charges laid - Trial judge considered the father to be lacking in candour in relation to evidence of the father’s sexual practices before and during the parties’ relationship – The trial judge did not explain his reasons for rejecting the father’s strenuous denials in relation to the alleged abuse – failure to reject allegations of abuse as groundless ought not lead inevitably to a finding of unacceptable risk – Impossible to ascertain what it was that led the trial judge to the conclusion that unsupervised contact with the father would expose the child to an unacceptable risk of abuse – Appeal allowed. Per Bryant CJ and Kay J – Re-exercise of discretion – The Full Court should re-exercise its discretion to provide for a graduated regime of contact between father and son, building to unsupervised contact – Although the Full Court has not had the benefit of evaluating the parties as witnesses, the issues are narrow – None of the parties asserted that further evidence would be forthcoming or that professional opinions would be likely to change – The Full Court received proposals from the parties and the Independent Child’s Lawyer for a regime of contact between father and son should the appeal succeed. Per Warnick J – The matter should be remitted for retrial – The appeal has been allowed on the basis of insufficient examination and explication of an enquiry into whether allegations of abuse are true or false and whether an unacceptable risk of abuse exists – The Full Court should not make the orders that should have been made at first instance without itself conducting that enquiry and explication – The proposals of the parties regarding future conduct should the appeal succeed are not evidence, nor is it clear what inferences should be drawn from them if they were. |
| Family Law Act 1975 (Cth) |
Fox v Percy (2003) 214 CLR 118
KN and Child Representative and NN & JN (2006) Fam CA 611
M v M (1988) 166 CLR 69; (1988) 63 ALJR 108; (1988) FLC ¶91-979 at 77,081; (1988) 12 Fam LR 606
Merriman v Merriman (1993) FLC ¶92-422 at 80,351, (1993) 17 Fam LR 22
N v S (1996) FLC 92-655 at 82,713 (Fogarty J)
Re W (Sex abuse; standard of proof) (2004) 32 Fam LR 249
W v W (Abuse allegations; unacceptable risk) (2005) FLC ¶93-235, (2005) 34 Fam LR 129
| APPELLANT: | NAPIER |
| RESPONDENT: | HEPBURN |
| INDEPENDENT CHILDREN’S LAWYER: | MR FITZGERALD |
| FILE NUMBER: | MLF | 6835 | of | 2001 |
| APPEAL NUMBER: | SA | 21 | of | 2006 |
| DATE DELIVERED: | 5 DECEMBER 2006 |
| PLACE DELIVERED: | Hobart |
| JUDGMENT OF: | BRYANT CJ, KAY & WARNICK JJ |
| HEARING DATE: | 28 SEPTEMBER 2006 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 MARCH 2006 |
| LOWER COURT MNC: |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | MR NORTH SC WITH MR TREZISE |
| SOLICITORS FOR THE APPELLANT: | DOBSON MITCHELL & ALLPORT |
| COUNSEL FOR THE RESPONDENT: | MR FOSTER |
| SOLICITORS FOR THE RESPONDENT: | PWB LAWYERS |
| INDEPENDENT CHILDREN'S LAWYER: | MR FITZGERALD, LEGAL AID COMMISSION |
Orders
The appeal be allowed.
Orders 1 and 3 made by the Honourable Justice Benjamin on 3 March 2006 be set aside.
[J] spend time with his father as follows:
(a)one further period of supervised contact for two hours on each of Saturday and Sunday at the Hobart Children’s Contact Centre;
(b)a weekend of contact in Tasmania from 10.00am Saturday until 5.00pm Sunday as soon as practicable after (a) accompanied by another adult nominated by the father and approved of by the mother, which approval shall not be unreasonably withheld;
(c)For 7 days in Tasmania in January 2007 accompanied by another adult nominated by the father and approved of by the mother, which approval shall not be unreasonably withheld, from 9.00am to 6.00pm on each of the first five days and then from 9.00am on the sixth day until 6.00pm on the seventh day;
(d)From the first until the last Saturday of each Tasmanian May/June and August/September school holidays;
(e)For 21 days in the Tasmanian Christmas school holiday period after 5 January in each year commencing 2008;
(f)For four weekends in Tasmania from 4.00pm Friday to 5.00pm Sunday in each school term commencing 2007, the father to give at least 28 days notice in writing of his intention to avail himself of the proposed contact;
In addition to the weekly telephone contact as ordered by the Honourable Justice Benjamin on 3 March 2006, the father be at liberty to communicate with [J] by telephone on [J]’s birthday and on 24 December of each year.
When [J] is spending time with his father, his mother may telephone him each second night between 6.30 and 7.00. The father shall provide the mother with details of telephone numbers where he may be contacted during such periods.
The parties are at liberty to seek further orders concerning the implementation of these orders concerning matters such as travel arrangements and the like by applying to a Judge or Federal Magistrate if they are unable to agree.
The independent children’s lawyer’s appointment continue for a period of six months.
The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act in respect of the costs incurred by her in relation to the appeal.
| FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT HOBART |
Appeal Number: SA 21 of 2006
File Number: MLF 6835 of 2001
| Mr NAPIER |
Appellant
And
| Ms HEPBURN |
Respondent
| INDEPENDENT CHILDREN’S LAWYER |
REASONS FOR JUDGMENT
Bryant CJ and Kay J:
This is an appeal against orders made by the Honourable Justice Benjamin on 3 March 2006. The proceedings involved competing applications for residence and contact to the child J born in June 1999. Whilst the Notice of Appeal purported to challenge all of the orders made, counsel for the appellant father conceded that the only matters in issue related to:
· an order that the mother have sole responsibility concerning the day-to-day and long term care, welfare and development of the child, and
· the orders made for contact, in particular the requirement that the contact be supervised.
It is convenient to state at the outset that it is common ground that the order for sole responsibility was made when neither party had sought any such order nor had addressed his Honour in relation to the making of such an order. In the circumstances it was conceded by counsel for the respondent mother that it was appropriate that we set that order aside. The focus of the appeal then became the issues involved in the making of a supervised contact order.
background
At the time of the trial in March 2006 the father was 48 and the mother 31. The parties commenced cohabitation in Melbourne in 1998. In 1999 they moved to a farming property in Western Australia where they lived until December 2000 when the mother returned to Melbourne, bringing J with her.
The father commenced proceedings seeking residence of J in Western Australia in February 2001. Those proceedings were transferred to the Family Court of Australia at Melbourne and were ultimately resolved by consent orders made in April 2002. Those orders provided for the father to have contact with the child for two periods of two weeks duration in Western Australia in each year and eight periods of up to 10 days duration in Melbourne. The orders remained in effective operation until November 2004, although the mother in her affidavit expressed the view that the orders were “unreasonable and impracticable in some respects”.
Whilst the father did not avail himself of all of the contact that he was entitled to under the order, he still had significant contact with J. It seems to be common ground that in 2004 the father saw J in Western Australia for two weeks in January 2004 and two weeks in June 2004 as well as in Melbourne in March for nine days and in September for 10 days.
By late 2003 the mother had commenced a relationship in Melbourne with RK. In mid-2004 it became apparent that Mr K intended to work full-time in Tasmania and the mother informed the father of her intention to move with J to Hobart. The father then commenced proceedings in Melbourne to restrain the mother from moving the child and apparently after some negotiation between legal practitioners for each of the parties, arrangements were made for contact to take place in Tasmania.
The father had contact with J between 12 and 15 November 2004 in Tasmania. Following the contact period the mother asserted that over a period of about a week the child had made a number of disclosures to her including that “Daddy put his finger in my bottom”, “Daddy’s willy on my bottom”, “[Daddy] he hit me on the head with his willy…”, and “Daddy wee-ed on my head”.
Earlier, in March 2004, after J had stayed with his father in a Melbourne hotel for nine days, Mr K observed J playing with blocks in the kitchen that J had lined up in a row with a triangular block on top of them. Mr K overheard J saying “careful, they may sperm you”.
Mr K reported the child’s statements to the mother who then spoke to J. She deposed that in the course of their conversation J lifted his leg up, pointed towards his anus and said “He was tickling his bottom”. The mother then deposed that when washing the child’s bottom in the bath on 26 March 2004 the child said “It just tickles, Mummy. Daddy did that at the little house.”. Three days later the child said to the mother “Daddy tickled me”. When she asked whether the father had tickled J on the tummy, the child laughed and said “And I tickled his willy”.
The mother became concerned and eventually consulted TM, a clinical psychologist, about the possibility that J might have been sexually abused by the father. Ms M had 10 sessions with J, during which there were no observations nor any comments made by J that would be considered confirming of sexual abuse. It also became apparent that there had been discussions about sperm whales at J’s kindergarten.
After the child’s statements to the mother in November 2004, the mother contacted the police in Tasmania. When the father arrived in Tasmania on 10 December 2004 to have contact with J he was met at the airport at Hobart by two members of the Tasmania Police who sought to interview him about the mother’s allegations that he had sexually abused J. This was apparently the first time that the matter had been specifically drawn to the father’s attention.
The mother refused any contact and an application brought by the father seeking to have contact resumed was eventually dismissed by Morgan J on 20 June 2005. The only face-to-face contact the father had with J after November 2004 was during the preparation of a welfare report by Mr P, a clinical psychologist who had been appointed to prepare a single expert’s report.
The father’s response to the mother’s allegations that he had sexually abused the child was to file a cross-application seeking to have the child reside with him.
The matter went to trial on the basis of the competing applications for residence and on the issue of what, if any, appropriate contact orders ought to be made.
the judgment
There is some confusion in the appeal book as to precisely what document constitutes the reasons for judgment delivered by the trial judge. The appeal book contains two documents, one described in the Appeal Book Index as “Reasons for Judgment of the Honourable Justice Benjamin” and the other described as “Draft Reasons for Judgment”. There are some substantial differences between the two documents.
Neither document contains a certification by the judge’s associate that the document is a true copy of the reasons for judgment. The first document has the file number on its title page, whilst the second document does not. The second judgment contains obvious spelling errors, some handwritten alterations and non-sequential paragraph numbers.
In the course of submissions before the Full Court it became apparent that counsel for the appellant father and the respondent mother were basing their submissions on the first document whilst counsel for the independent children’s lawyer had based his written submissions on the second document.
It seemed to us that in the course of the discussion between Bench and Bar it was ultimately accepted that it would be appropriate for us to rely only upon the first document and not upon the second.
A subsequent search of the Court’s internal database of judgments did not help us clarify the matter as the judgment does not appear in that database.
Given that there were no contrary submissions made to us by counsel on behalf of the respondent mother that we should adopt a different course, we propose to treat the first document as the reasons for judgment provided by the trial judge to the parties. Nevertheless we think it will also be appropriate that we make some comment on the relevant portions of the second document
The judgment is broken into 109 paragraphs. The first 23 paragraphs set out the trial judge’s understanding of the background of the case and of the procedural matters that had occurred. There are no matters in this appeal that challenge those findings.
Paragraphs 24-37 discuss the legal principles to be applied in parenting cases, highlighting that they needed to be viewed in light of what his Honour described as “probably the most significant feature of this case…the allegations raised by the mother”. His Honour then cited a passage from the High Court in M v M (1988) 166 CLR 69; (1988) 63 ALJR 108; (1988) FLC ¶91-979 at 77,081; (1988) 12 Fam LR 606 where their Honours 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" (A. v. A. (1976) V.R. 298 at p. 300), "an element of risk" or "an appreciable risk" (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), "a real possibility" (B and B [Access] (1986) FLC ¶91-758 at p.75,545), a "real risk" (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 W.L.R. 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.
His Honour then made reference to a “recent but unpublished paper by the Honourable John Fogarty” in which his Honour had stated that in any case about a child, particularly if an issue of risk is involved, the ultimate and definitive criteria is the best interests of the child.
His Honour cited a further passage from Mr Fogarty’s paper although wrongly attributing it to the High Court in M v M rather than to Mr Fogarty, which passage read:
…For a finding that there is an unacceptable risk, the degree of risk concerned forming that conclusion must be clearly stated. A finding of unacceptable risk without further explanation of degree of risk and basis of that conclusion would be too ambiguous and the desire not to be too dogmatic may come at too high a price.
Having set out what his Honour perceived was the appropriate law to be applied, his Honour made brief reference to the submissions of the parties saying:
38.In his submissions and case outline, counsel for the father asserted a primary issue which arises in the proceedings is the allegation made by the mother that the father had sexually abused [J], an allegation that the father strenuously denies. The outcome of the proceedings will obviously turn upon the determination made by the court in relation to that primary issue.
39.I accept that submission which also resonates with the submissions of the mother and submissions made by the child representative. As a consequence I will deal with the allegations of sexual abuse at this point...
From paragraphs 40 to 98 his Honour discusses the allegations before reaching his conclusions. He begins by examining six matters that the mother had asserted demonstrated that the father had an underlying disposition to inappropriate sexualised behaviour. Those matters were:
· The father told her he had sex with a 14 year old girl when he was about 30 years of age;
· The father told her that when younger he had lived with a paedophile in Melbourne who would regularly entice street children to his home and sexually assault them;
· The father had made extreme sexual requests of the mother during their relationship, including asking her to urinate on his head or urinate during intercourse;
· The father had an unhealthy interest in a 12 year old girl when the parties were living together;
· The father had a type of soft pornographic book containing images of semi-naked pubescent girls;
· The father attended a brothel about the time of the parties’ separation.
His Honour accepted the father’s evidence that the father did not have sex with a 14 year old girl but had a relationship with an 18 year old woman that lasted for about four years.
In relation to the assertion that he had lived with a paedophile in Melbourne, his Honour made reference to the father’s affidavit in which he said:
I deny that I ever told [the mother] I once shared a room with a fellow musician who would bring young boys back to our room for sex. The entire allegation is a fabrication.
In oral evidence the father acknowledged that he had been associated with a fellow band member who had an inappropriate interest in young children. His Honour was concerned that the father’s explanation in cross-examination of the flat denial “the entire allegation is a fabrication” was not convincing and that he lacked candour in terms of that evidence.
There was an acknowledgment that urination had played some part in the sexual relationship between the parties. The father asserted that it was not necessarily started by him and on at least one occasion occurred at the request of the mother. His Honour said that the father was not candid in respect of his evidence in that regard and that on balance he preferred the evidence of the mother that the use of urination was a game initiated by the father.
His Honour said that he could make no findings as to the father having an unhealthy interest in a 12 year old girl, nor did he give any weight to the mother’s assertion that the father had “a type of soft pornographic book”.
His Honour found that the father’s answers surrounding the circumstances in which he went to the brothel were not candid.
Between paragraphs 52 and 59 his Honour discussed the events that arose in March 2004 and the subsequent involvement of Ms M concluding that the mother reluctantly accepted that no abuse had taken place but became more vigilant thereafter.
His Honour then made reference to the series of disclosures set out in the mother’s affidavit to which we have briefly described in the background material set out above. His Honour also said:
65.The mother also gave evidence of some poor behaviour by [J] in relation to her car with rocks, and he put it down to “things daddy did to me”. A further disclosure was made in April 2005 in relation to the finger in bottom allegation where [J] is alleged to have said, “It hurt, mummy; it hurt like blood,” and reiterated the allegation that, “Daddy weed (sic) on my head”.
His Honour indicated that he had seen a video tape of police interviewing J that included some disclosures made by J during the interview. His Honour recorded without comment that it was submitted that the lack of detail and manner in which J gave his statement to the police was such as to make those statements less believable.
His Honour then turned his attention to the report of Mr P. He began by quoting from the report that:
[J] has not provided details and has changed his story at times, which may indicate that he does not know details because the events did not happen, or because his age precludes the recall and expression of those details. In most cases the lack of detail increases the possibility that the abuse did not happen, but given [J]’s age and confusion, this is not necessarily the case.
His Honour said:
68.The evidence in the single-expert’s report was that it was open for me to find both ways; that is the abuse did occur, or the abuse did not occur. Submissions were also made in relation to the good relationship between [J] and his father. From the evidence of the single expert, it appears no weight could be attached one way or the other in relation to that.
That particular paragraph was the subject of significant attack in the course of the appeal and we will return to discuss that attack shortly.
The mother’s evidence was that in June 2005 J told her he wanted to make a book about Daddy and those “naughty things he did”. She said the child drew the pictures and told her what he would like written under the pictures. He told her he wanted the book called “Information about Daddy, Naughty, Naughty, Daddy”.
In August 2005 he did a drawing in class which the mother describes as having
…a female’s breasts on an animal, and also a penis and testicles. The creature is urinating, had a wide open mouth and was not a happy figure...
His Honour referred to the existence of the drawings and then moved to the evidence of DC, a counsellor employed by the Sexual Assault Services in Hobart, who had seen J for 10 visits between February and December 2005. His Honour said that no disclosures were made to Ms C.
He then returned to Mr P’s evidence saying:
75.Mr [P] found that [J] was likely to be suffering from adjustment disorder and this relates to emotional behaviour response to stressful situations. Mr [P] set out the number of stressors in [J]’s life, including parental separation, conflict between parents, a mother with anxiety and depression – and there is no issue of that – significant relocations, absence from a loved parent, especially in the context of the inclusion of a new adult, and possible sexual abuse.
Mr [P] observed that both the mother and Mr K believe J has been sexually abused by the father. His Honour then said:
78.In these reasons I intend to make no positive finding that sexual abuse did occur, nor am I going to make any findings that sexual abuse did not occur...
In seemingly dealing with the father’s residence case that the sexual abuse allegations were part of a deliberate and sustained attempt to remove him from J’s life, his Honour concluded that the mother was a witness of truth, as was Mr K, and that by implication no improper ulterior motive should be attributed to the mother in the actions she had taken.
His Honour said of the father:
87.…The statements he made to the police in the interview of 10 December 2005 were as one would hope from a parent, child focussed and concerned. However, his evidence in other areas, as I have said in these reasons, were sometimes glib and sometimes not glib.
88.Sometimes it seemed that his evidence was carefully constructed to satisfy the inquiry. As a consequence, generally where there is a conflict of the evidence between the parties, unless otherwise determined in these reasons, I prefer that evidence of the mother.
His Honour went on to say that he accepted Mr P’s evidence that J had a strong conviction that something had happened to him, whether it happened or not. He then said:
93.Whilst I am unable to make a positive finding of sexual abuse, I am unable to reject the allegations as groundless. I find the mother is not making up stories of abuse and I find that the mother looked for rational explanations…
…
95.I find the mother has not directly caused or allowed [J] to be inculcated with the [belief] that he was sexually abused by the father.
He then said:
99.Weighing the whole of the evidence, I find that if [J] were to have unsupervised contact with his father it would expose him to an unacceptable risk of abuse...
His Honour then turned to discuss the importance of maintaining a relationship between J and his father and the manner in which it could be best attended to, accepting Mr P’s evidence that there was a need for J to have contact with his father. He said:
104.I am structuring my orders in such a way that hopefully the parties can move away from a contact centre sooner rather than later, and hopefully the parties can, at least at this level, work together to find a supervisor so that [J] can have long and meaningful contact with his father.
His Honour said:
108.…it is clear that [J] loves both parents. The order[s] I will put in place reflect what I regard as the appropriate attitude of the mother in terms of her dealing with the allegations and also puts in place an ability for [J] to have regular contact with his father.
His Honour then made orders as follows:
1.THAT the mother, [Ms Hepburn], shall have the sole responsibility concerning the day to day and long term care, welfare and development of the child [J], born 11 June 1999 ("[J]").
2.THAT [J] reside with the mother.
3.THAT [J] shall have supervised contact with the father, [Mr Napier], as follows:-
(a)Utilising either or both Relationships Australia Children's Contact Service or the Good Beginnings Children's Contact Service as follows:
(i)for five consecutive days over each of the mid year Tasmanian school holiday periods;
(ii)for ten consecutive days over the Tasmanian school holiday period after 5 January in each year;
(iii)for two consecutive days over four weekends in each school term (not being the Mother's Day weekend);
(iv)on 24 December each year;
(v)such contact on the days referred to above to be notified or confirmed by the father to the mother in writing at least twenty eight days in advance;
(vi)such contact for as many hours (during daylight hours) as is able to be accommodated by either or both of the said Contact Services, such contact to be supervised and to include, if available, the two hours contact at the "Good Beginnings Contact Play and Learn".
(vii)that for the purposes of contact set out in 3(a) above, each party must contact the Contact Services referred to above within twenty one days from the date of this order and arrange for an appointment for assessment and suitability for supervised contact and attend such assessment and comply with any reasonable time made for an appointment by the said Contact Centres for supervised contact and will comply with the reasonable rules of the said Contact Centre and will comply with any reasonable request and directions of the staff at the said Contact Centre.
(viii)that after the assessment intake procedures if the parties are accepted by the said Contact Centre or Centres as suitable or contact, the father's contact shall be on the days set out above at such times as is available through the said Contact Centres and on the days set out above.
(b) THAT after two months from the date of these orders on days where the said Contact Centres are unable to provide contact or assist with supervised contact then contact shall take place on the day specified above subject to:-
(i)such contact being supervised by a person or persons reasonably nominated by the father as supervisor and with such persons being approved by the mother (which approval will not be unreasonably withheld) and such supervisors providing a written undertaking to the Court that they have read the reasons upon which this order is based and acknowledge that they accept there is an unacceptable risk of the father having unsupervised care of [J] and that the supervision will be constant during the contact period;
(ii)such contact shall occur in the Hobart Metropolitan area and the mother will deliver [J] to and collect [J] from the person who is providing such supervised contact;
(iii)such contact to be from 9.00am to 5.00pm;
(iv)such contact on such days as set out above as are confirmed in advance by the father to the mother in writing at least twenty eight days in advance;
(c)that the father meet the cost of the said Contact Centre(s) or the contact supervisor.
(d)such other times, dates and places for contact as are agreed in writing between the parties.
4.THAT the father shall have telephone contact with [J] once per week between 6.30pm and 7.00pm on a day to be agreed between the parties or in the event they are unable to agree each Wednesday between 6.30pm and 7.00pm.
It is convenient to observe at this time that there is an inexplicable tension between the sentiments expressed in par 104 of the judgment and the orders that were pronounced. Order 3(a) provides for contact to be for as many hours as is able to be accommodated by the two nominated contact services, whilst Order 3(b) provides for contact from 9 to 5 when the contact services are unable to provide contact. The imposition of the condition in 3(b) that it only occur as a default situation when supervised contact is unable to be provided at the contact centres, is seemingly inconsistent with the proposition that the parties should move away from the contact centre sooner rather than later.
the appeal
In essence the appeal was argued on the basis that there were inadequate reasons provided by the trial judge in explaining why he concluded at par 99 that:
…if [J] were to have unsupervised contact with his father it would expose him to an unacceptable risk of abuse.
It was further argued that the evidence ought not have led his Honour to reach that conclusion in any event.
The law requiring the Court to provide adequate reasons is well settled. The relevant principles were conveniently stated by the Full Court in Merriman v Merriman (1993) FLC ¶92-422 at 80,351, (1993) 17 Fam LR 22, where their Honours said:
Following the decisions of the Full Court of this Court in Bennett and Bennett (1991) FLC ¶92-191, Horsley and Horsley (1991) FLC ¶92-205 and Bonnici and Bonnici (1992) FLC ¶92-272 the principles governing the need for the giving of adequate reasons for the exercise of the discretion … are well established. For present purposes they are perhaps best expressed in the following passage from the judgment in Horsley (at page 78,401):
“Counsel for the wife contended that the trial Judge did not give adequate or any reasons for his decision and that his failure to do so amounted to an error of law and additionally contended that his Honour's discretion had miscarried. In Bennett and Bennett (1991) FLC ¶92-191 the Full Court considered a similar argument (also advanced in that case by the same counsel) and after referring to a number of authorities, … referred to the judgment of the Full Court of the Supreme Court of Victoria in Sun Alliance Insurance Ltd. v. Massoud (1989) VR 8 and in particular to the passage in the principal judgment of Gray J. where his Honour said:
‘The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.'
In Bennett's case the Full Court went on to say:
‘It is unnecessary to decide, in this case, whether the inadequacy of her Honour's reasons was itself an error of law requiring her decision to be set aside, in that we have already determined that the appeal should succeed on the merits. The weight of judicial authority, however, suggests that it might well amount to such an error. At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.'
The Court concluded on this topic:
‘The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge's line of reasoning, as must the parties, if they are to be satisfied that justice has been done.'
In this case it was submitted that it was not possible for the appeal court or the parties to ascertain the reasoning upon which his Honour based his assessment that the magnitude of the risk of abuse arising during unsupervised contact was such that it could be said to be unacceptable. The conclusion reached by the trial judge is said to be unexplained.
The determination of whether or not the evidence discloses the existence of an unacceptable risk has itself been the subject of significant judicial comment. Recent Full Court decisions have cited with approval a passage from the dissenting judgment of Fogarty J in N v S (1996) FLC 92-655 at 82,713 where his Honour said (emphasis added):
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. 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. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘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’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.
See Re W (Sex abuse; standard of proof) (2004) 32 Fam LR 249 (Kay, Holden and O’Ryan JJ) and W v W (Abuse allegations; unacceptable risk) (2005) FLC ¶93-235, (2005) 34 Fam LR 129 (Warnick, May and Boland JJ) and KN and Child Representative and NN & JN (2006) Fam CA 611 (Bryant CJ, Finn and Kay JJ).
When one examines the findings of the trial judge in this case it appears to us that it is impossible to ascertain what it was that led his Honour to reach the conclusion that unsupervised contact with the father would expose J to an unacceptable risk of abuse.
His Honour commences in par 38 by identifying as a primary issue the allegation made by the mother that the father had sexually abused J, an allegation which the father strenuously denied. His Honour said that the outcome of the proceedings would obviously turn upon the determination made by the Court in relation to that primary issue.
He then turned to the allegations made by the mother that the father had an underlying disposition to inappropriate sexualised behaviour already referred to above. Whilst his Honour dealt with each of the matters raised he gave no indication of how his findings about them might impact on whether they could be linked in any way to behaviour which would affect the father’s likely parenting of J.
As already indicated, there were six matters relied upon by the mother. Of those six matters the trial judge appeared to be concerned as to whether the father had been entirely candid in his explanation of three of those matters.
The first concerned his denials about informing the mother that he had lived with a paedophile in Melbourne who would regularly entice street children into his home and sexually assault them (Mother’s affidavit par 20, AB99). The father’s response to that assertion was
“I deny that I have ever told [the mother] that I once shared a room with a fellow musician who would bring young boys back to our hotel room for sex. The entire allegations is a fabrication.”
The trial judge found that the father was not convincing in relation to his explanation for the difference between the absolute denial in his affidavit evidence and his qualified denials in his oral evidence, finding “that he lacked candour in terms of this evidence” [emphasis added].
The second matter that the judge identified as an area in which the father was not candid related to an assertion made by the mother in her affidavit where she said:
While we were together [the father] made extreme sexual requests of me including asking me to urinate on his head and to urinate during intercourse.
The father had responded in his affidavit:
I disagree, that during our relationship, I made peculiar sexual requests of her. I agree that, on rare occasions, urination was involved in our sexual activities. [The mother] was always a willing participant.
In his report to the Court Mr P had said:
…[Ms Hepburn] described problems in their sexual relationship and one occasion when he asked her to urinate on him. This relates to one of the allegations. [Mr Napier] reported that he did not recall who initiated that sexual experiment and that it did not lead to any pattern of behaviour…
The mother gave no further evidence relating to this issue and it was not raised again with her in cross-examination by counsel for the father or counsel for the independent child’s lawyer.
In his oral evidence in chief the father was asked to comment on the mother’s allegation and he said:
…there was - a couple of occasions where there was mutual role playing involved in that, but that lasted probably about two or three occasions and then the novelty wore off, just like all games of that nature.
He was then cross-examined about the subject by counsel for the mother and various scenarios were put to him. It would be fair to conclude that the father appeared to be somewhat uncomfortable about discussing the subject.
The trial judge’s conclusion was that:
…the father was not candid in respect of his evidence in that regard. On balance I prefer the evidence of the mother. I find that the use of urination during intercourse and on another person during intercourse was a game initiated by the father.
It is perhaps important to recall as noted above that the entirety of the evidence of the mother is to be found in par 21 of her affidavit previously cited.
His Honour went on to say about the issue of urination in the sexual activities of the mother and the father:
48.As to what weight I attach to it, I have to deal with that in terms of the whole context of the allegations made between the parties…
The final issue upon which the trial judge was critical of the father’s candour related to an event which precipitated the separation of the parties. The mother deposed to finding an American Express receipt for $300 in December 2002. Inquiries of American Express gave her the phone number of a business which turned out to be a Perth brothel. The father had then admitted to the mother that he had visited the brothel. In his affidavit the father said:
I admit that I have used a prostitute. This is certainly not an indication of any proclivity on my part to sexual abuse [of] my son. I find that thought to be totally abhorrent.
When cross-examined about his trip to the brothel the father indicated that he was very drunk that night but was unable to have sex with the prostitute, and after attempting sex simply had to make do with a cup of tea. It was suggested that in earlier evidence he had said “I knew I couldn’t do anything so I had a cup of tea instead” which was inconsistent with the subsequent version given, that he had attempted to have sex but was unsuccessful. The father indicated that he was not intending to demonstrate any lack of candour by the language he had used on the first occasion. The trial judge concluded that the father was “not candid in terms of his answers to this line of questioning”.
The balance of the analysis of the evidence by the trial judge consists of detailing the mother’s assertions as to the child’s disclosures and commenting on the evidence of the expert witness. Mr P had prepared a 20 page report. His Honour chose to quote only one passage from the report, which dealt with evaluating the child’s disclosures:
[J] has not provided details and has changed his story at times, which may indicate that he does not know details because the events did not happen, or because his age precludes the recall and expression of those details. In most cases a lack of detail increases the possibility that the abuse did not happen, but given [J]’s age and confusion, this is not necessarily the case.
Immediately following that quote, his Honour said:
68.The evidence in the single expert’s report was that it was open for me to find both ways; that is that the abuse did occur, or the abuse did not occur…
In fact the evidence of Mr P was:
…Material that is presented and that has been presented to me gave me cause to think both that something has happened and reasons to believe that something may not have happened.
When being asked about his view as where the facts lie in this case
…Having looked at my notes a few months after I wrote them and gone through the material in different order, I have to say that my view is moving towards the side that says I don’t see a great deal of consistency if it did happen. But having said that, I cannot say with any great certainty one way or another and I feel sorry to have to say that.
Then:
…looking back on my notes over time, I find myself thinking, “This is more congruent with a child who hasn’t been abused,” but I maintain my position that I held in the report; that I simply do not know.
His Honour then indicated that where there was a conflict between the mother and the father he preferred her evidence. When dealing with the father’s credibility his Honour said:
87.It was submitted to me on behalf of the child representative that some of the evidence of the father is a paradox. The statements he made to the police in the interview of 10 December 2005 (sic) were as one would hope from the parent, child focussed and concerned. However, his evidence in other areas, as I have said in these reasons, was sometimes glib and sometimes not glib.
88.Sometimes it seemed that his evidence was carefully constructed to satisfy the inquiry. As a consequence, generally where there is a conflict of the evidence between the parties, unless otherwise determined in these reasons, I prefer that (sic) evidence of the mother.”
This finding does not, however, appear to take the matter much further. The determination of whether the child may have been abused required some assessment to be made of the father’s credit in relation to his strenuous denials that he has acted inappropriately with the child. The child’s evidence itself was incapable of being tested or necessarily being accurately interpreted. His Honour said that he was unable to reject the allegations as groundless. In so doing, he must by necessary implication have rejected the father’s strenuous denials, but nowhere does he explain why he has done so.
Even a finding that the allegations could not be rejected as groundless ought not lead inevitably to a finding of unacceptable risk. His Honour concluded that the mother had not directly caused or allowed J to be inculcated with the belief that he was sexually abused by the father, which possibility had been the foundation for the father’s claim to have a residence order made in his favour. But this does not explain the step that his Honour took next in the course of the judgment which was to conclude that, on the whole of the evidence, unsupervised contact would expose the child to an unacceptable risk of abuse.
A reading of the earlier parts of the judgment throw little light on what it was that led the trial judge to reach the conclusion he did, other than:
· The child was saying something which may well be indicative of inappropriate behaviour by the father towards the child;
· The father strenuously denied having acted with any impropriety towards the child;
· The expert witness was unable to categorically state that the events described by the child did not happen;
· The father has not been entirely candid in some of his answers relating to his earlier sexual conduct with the mother;
· The child appeared to have a warm and loving relationship with the father and wanted to continue that relationship.
We find it difficult to understand how those factors, without a further explanation by the trial judge, could safely lead the trial judge to conclude that there was an unacceptable risk of abuse. In order to reach that conclusion the trial judge needed to evaluate not only the seriousness of the behaviour if it occurs, that is that the behaviour would be unacceptable, but also the risk that the behaviour is likely to occur. It might be unnecessary in the context of this case to emphasise that if the allegation is that the father has attempted to anally penetrate the child in a sexual manner or urinate upon the child for some form of sexual gratification, such conduct is likely to be extremely detrimental to the welfare of the child. But the future likelihood of that event occurring needs to be evaluated not only in terms of the cogency of the evidence that it has occurred in the past, but also in the context of the father’s denials and the vigilance of the parties, given the events that have led them to litigate over these issues so early in the child’s life. What potential there was for these events to continue to occur if they had previously occurred in the past, might well be diminished by the bright lights that have been shone upon the parties and their conduct, in the course of these proceedings.
Writing in the Australian Journal of Family Law (1994) AJFL 60 at 83 in an article entitled ‘Child Sexual Abuse Allegations in the Family Court’, Patrick Parkinson said:
It is submitted that in assessing whether there is an unacceptable risk of sexual abuse in the future in cases where it is not at all established that any sexual abuse has occurred in the past, the Court should consider certain factors which individually or cumulatively may go to reducing the risk involved. Inevitably, the importance of these factors will depend from case to case:
·The fact that the custodial parent will in future be on the look-out for any sign of abuse;
...
·The possibility the child can be taught protective behaviours, such as learning the difference between good and bad touching, learning to say No and to tell an adult when uncomfortable things happen;
…
·The father’s awareness that he is under scrutiny and that a proven further occurrence of abuse will lead not only to permanent denial of access, but may lead to criminal charges.
There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.
The “Draft Reasons for Judgment” throw little light in our search for an understanding as to why the trial judge concluded there was an unacceptable risk to J if his father had unsupervised contact to him. There are two conflicting passages in the “Draft Reasons” that do not appear in the “Reasons” . They read as follows (emphasis added):
99. When weighing the whole of the evidence including the lack of canda (sic) and the bliv (sic) answers given by the father, the mother’s appropriate response to the disclosures that were made in March 2004 and the evidence that her bright personality continued from then until the second set of disclosures in November 2004. The [? , the] adjustment disorder being suffered by [J] and the consistency of his complaints bearing in mind the findings I have made in relation to the mother, I am satisfied that to allow [J] to have unsupervised contact to his father would expose [J] to an unacceptable risk of abuse.
100.[J] is suffering from an adjustment disorder and one of the stresses (? stressors) for that disorder may well be sexual abuse. On the evidence before me I find that there is an unacceptable risk which would justify this court in requiring contact between [J] and his father to be supervised.
…
[Then under the heading of
(g)the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i)being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii)being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;]
89.I have made findings above and I find that [J] is not at risk from the mother in respect of psychological harm caused by her alleged attitude or alleged behaviour. On the other hand I find that there is a risk to [J] in terms of unsupervised contact that he may suffer psychological harm in the care of the father.
Assuming these three passages shine some further light on understanding how his Honour arrived at the conclusion there was an “unacceptable risk to the child of abuse” we would comment that the mother’s response to the disclosures in March 2004 and her personality change after the disclosures in November 2004 may properly go to the issue as to whether or not there should be a change in residence. They do not, however, assist the Court in determining the core issue in relation to contact, namely what sort of contact, if any, should take place following the completion of the trial.
It was not urged upon the trial judge and has not been urged upon us that whatever findings were made in relation to the allegations of sexual abuse, the child’s psychological state was such that an ongoing unsupervised relationship with his father might cause him harm.
In par 42 above we have referred to the passage cited from Mr P’s evidence that J is likely to be suffering from an adjustment disorder. What the witness said and which bears repeating was (emphasis added)
[J] himself is likely to be suffering from an adjustment disorder. This relates to an emotional and behavioural response to a stressful situation. There are a number of stressors in [J]’s life including:
·Parental separation
·Conflict between parents
·A mother with anxiety and depression
·Significant relocations
·Absence from a loved parent, especially in the context of the inclusion of a new adult
·Possible sexual abuse.
The symptoms that [J] shows include high levels of distractibility, immature behaviour in the form of elimination disorders with both day and night time enuresis (wetting) and occasional encopresis (soiling), and sleep disturbance – which may be a sleep terror disorder, and possibly related to a developmental stage. It is impossible from the symptoms to determine the exact or even the most probable cause, except that any number of the above factors are likely to produce such reactions in a child.
When cross-examined about this passage by counsel for the child representative Mr P said:
You’ve have identified six potential stressors. The information that has been provided, does it anyway (sic) corroborate or otherwise any of the individual stressors other than the possibility of sexual abuse?...No, they are all possible.
…
Can we now stop to talk about the specific - that is in relation to [J] - as I say, you’ve identified on page 14 of the report, D6, the six stressors. With the information that you have now have are you able to identify which one of those six is the most likely stressor in [J]’s life?---No, I’m not.
Mr P’s evidence could not fairly lead the trial judge to conclude that the possibility of sexual abuse was any greater a contributor to the child’s adjustment disorder than was the child’s absence from a loved parent, namely his father. Nor was there anything suggested in the evidence that would indicate that the child would suffer psychological harm if there was unsupervised contact other than, of course, the attendant harm to the child if there was a proper basis for concern about sexual abuse.
That brings us back to the need for the trial judge to have focused not only on the magnitude of the harm to which the risk related but on a likelihood of the conduct complained of occurring in the future. Sometimes this is a very uneasy balance, but the denials of the alleged perpetrator of the alleged past abuse cannot be ignored and must be evaluated. No such evaluation appears to us to be apparent in the reasons provided by the trial judge.
We have viewed the video tape of the father’s interview with the police on his arrival in Hobart in December 2004. We have read the cross-examination of the father. There is nothing apparent from either the video tape or the cross-examination which would lead to a rejection of the father’s denials of any inappropriate conduct towards J. There is no attempt in the reasons for judgment nor in the submissions of the parties that point us to any part of the father’s presentation in court that would lead one to doubt the father’s denials.
At the same time there remain unexplained the child’s November statements. Precisely what it was that the child was describing and whether anything untoward possibly occurred will remain incapable of forensic resolution. The indicators for determining an outcome in such a situation must then be found with the assistance of the expert evidence starting from the premise of the legislation that the child is entitled to have a meaningful relationship with both of his parents unless the welfare of the child contra-indicates the same.
Given that we find substance in the complaint that the trial judge has failed to adequately explain the conclusion that he reached, we are left with the dilemma of whether to remit the matter for a retrial or to try to do the best we can on the material that is before us.
We are conscious that we have not had an opportunity to evaluate the parties as witnesses, although given the now narrow ambit of the matters in issue, that is that there is no claim by the father for a residence order in his favour and no challenge to the judge’s finding that the mother’s reaction to the child’s statements and disclosures was appropriate in the circumstances, we question the utility of remitting the matter for retrial.
Nobody has asserted that any further evidence would be forthcoming, nor would the professional opinions be likely to change. The child’s disclosures were finite. It is clear from the written and oral evidence of Mr P that a re-trial would not elicit any further insight into the resolution of the issue. As already mentioned there is no suggestion that the mother’s reactions were anything other than appropriate in light of the child’s statements.
The adverse findings relating to the father, did not relate at all to the principal allegations concerning the possible child abuse but rather to issues surrounding his conduct prior to or during cohabitation. The trial judge did not assess and evaluate the father’s denials of any improper conduct with J, and whilst a further hearing might allow for such an evaluation to take place, neither the mother nor the independent children’s lawyer pressed for a rehearing in order to test the husband’s denials.
Whilst we are conscious that it is unusual to re-exercise the discretion in a parenting case without seeing the parties, we were not pressed by either party nor the independent children’s lawyer to remit the matter for retrial.
We have carefully considered the emotional toll on the family of a retrial and the desire of all parties to bring this matter to a conclusion. Whilst we have had the advantage of reading the reasons for judgment proposed by Warnick J, we are still firmly of the view that a retrial would be inappropriate in the circumstances. Absent there being any reason to not accept the father’s denials, we are not persuaded that the evidence reasonably leads to a conclusion that unsupervised contact poses an unacceptable risk of harm to J.
At the hearing of the appeal we invited counsel for the parties and the independent children’s lawyer to provide us with a joint statement concerning the contact that the father and J had with each other since the making of the trial Judge’s orders and the availability of contact hours at a contact service in Hobart. We also invited each of the parties and the independent children’s lawyer to provide us with a set of proposed orders for ongoing contact in the event that we concluded that the appeal should be allowed and that a rehearing of the matter was an undesirable course. We have been provided with those documents.
The joint statement of the parties and the independent children’s lawyer has informed us that since the orders were made on 3 March 2006 J and his father have spent time together at the Hobart Children’s Contact Service for two hours on each of 22 and 23 April, 3 and 4 June, and 2 and 3 September 2006. It further informs us that the most time that can be offered at the Hobart Children’s Contact Service is 1-1½ hours of supervised time on a Friday, followed by two hours on a Saturday and two hours on a Sunday on a monthly basis for a period of one year. The agreed statement does not explain what would happen at the conclusion of that one year period.
The mother’s proposals
In her proposals the mother submits that if the Court determines there is not an unacceptable risk in unsupervised contact it would be appropriate to order contact in four stages:
First Stage
For a period of 12 months there should be contact for 5-5½ hours each month at the Children’s Contact Centre in Hobart and an additional five hours of contact in each month, such contact to be supervised at the mother’s expense by a supervisor nominated by the mother and acceptable to the father and the independent children’s lawyer. The mother proposes a list of 10 possible supervisors.
Second Stage
For a period of a further 12 months there should be day time contact in Tasmania from 9 to 5 on each day for
i.Ten consecutive days during Tasmanian Christmas school holidays;
ii.24 December 2007;
iii.Four two day weekends in each of three school terms;
iv.Seven consecutive days in the June and September school holidays.
Third Stage
For a period of a year on the same basis as the second stage but with overnight accommodation in Hobart.
Fourth Stage
·Seven days in Western Australia during a Tasmanian school holiday period, followed by one period in each calendar year of two weeks duration outside of Tasmania during a school holiday period.
·Four periods in each year of seven days in Tasmania and
·on an alternating basis, either on the child’s birthday or Christmas Day in each year.
The mother further proposes that the father give 60 days notice of each proposed contact arrangement in Tasmania and 90 days notice of any proposed contact arrangement outside of Tasmania. She proposes:
·the father be restrained from sharing a bed, shower or bath with the child;
·that until such time as the child is permitted to travel by air on an unaccompanied basis then the father shall accompany the child [this seems to be an entirely inappropriate condition in the circumstances given that the Qantas website indicates that on a domestic basis a child be permitted to travel on an unaccompanied basis once he is six years of age. As J is now seven this seems not to have any application at all].
·The mother wants to be able to telephone the child on a nightly basis until at least three Western Australian trips have been concluded.
It needs to be remembered that if the mother’s proposals are accepted J who was born in June 1999 and is now 7 years and 4mths would
(a)not see his father other than on a supervised basis until he is 8½ years of age;
(b)would not be entitled to spend any overnight period with his father until he is 9½ years of age;
(c)would not be entitled to accompany his father out of the State of Tasmania until he is 10½ years of age.
The father’s proposals
The father proposes there be:
(a)one further period of supervised contact for two hours on each of Saturday and Sunday at the Hobart Children’s Contact Centre;
(b)a weekend of contact from 5.00pm Friday until 5.00pm Sunday as soon as practicable after (a);
(c)from 23 December 2006 until 2 February 2007;
(d)from the first until the last Saturday of each Tasmanian May/June and August/September school holidays;
(e)on an annual alternating basis commencing December 2007 from either 27 December or 23 December until 1 February;
(f)for 10 days in each Tasmanian school term from Friday at the conclusion of school of one week until Sunday of the following weekend, the father to ensure that the child attends school on each school day during that period. Those periods are to be enjoyed on 21 days notice in writing;
(g)by telephone at all reasonable times including each Wednesday and Sunday between 6.30pm and 7.00pm, the father proposes that he will be responsible for all flight costs associated.
The independent children’s lawyer’s proposals
The independent children’s lawyer proposes an arrangement that will see J spending time with his father
·For seven days in each of the mid-year Tasmanian school holiday periods;
·For 21 days in the Tasmanian Christmas school holiday period after 5 January in each year;
·For four weekends from 4.00pm Friday to 5.00pm Sunday in each school term;
·On 24 December in each year.
She further proposes that the father should give at least 28 days notice in writing of his intention to avail himself of the proposed contact.
The independent children’s lawyer proposes that the contact arrangements up to and including January 2007
(a)be supervised by a person nominated by the father as supervisor and approved by the mother;
(b)be on a daily basis from 9.00am to 5.00pm;
(c)occur in the Hobart metropolitan area with the mother delivering J to and collecting J from the agreed supervisor;
She further proposes that for the balance of year 2007 on each second night of a contact period the child be returned to the mother’s home at 6.00pm and collected the following day at 9.00am. Then in 2008 contact occur only in Tasmania with the mother being entitled to telephone J on two occasions in each week. Then in 2009 contact may take place out of the State of Tasmania with the father giving written notice of the place the child should be living, including a telephone number at which the child may be contacted by the mother who should be permitted to call him on at least two occasions per week.
The independent children’s lawyer further proposes continuation of Orders 4, 5, 6, 7, 8 and 11 as made by the trial judge and proposes that the independent children’s lawyer’s appointment should continue for a period of six months.
Discussion
As can be seen from the extreme positions taken by the parties and the somewhat conservative position taken by the independent children’s lawyer, the resolution of what is an appropriate regime is far from simple.
The mother in her submissions says that we need to balance the following considerations:
·there may or may not have been sexual abuse;
·the child’s age and capacity to recognise, avoid or report inappropriate behaviour;
·the need to address the fact that the child believes that something happened to him;
·the need to avoid stress that would maintain or increase the child’s adjustment disorder;
·the need to maintain and expand the relationship between the child and his father;
·the vast distances between the parties’ places of residence and the logistical considerations and expense that is entailed in facilitating contact;
·the need to protect the mother from her depression and anxiety;
·the need to build upon the mother’s confidence that unsupervised contact carries with it no risk of sexual abuse;
·In his oral evidence Mr P said that regardless of the Court’s findings contact should be supervised for the benefit of the mother, but that supervised contact should only happen a few times, ideally within a short space of time, so if the father came to Hobart or J went to Western Australia a few times for say once a month for about three months that should be sufficient.
In July 2006 the Family Law Act 1975 was substantially amended. The amendments included primary considerations as part of the determination of what is in the child’s best interests. In particular the primary considerations in s 60CC(2) provide the framework in which an order in the best interests of the child should be made. In this case that section requires the Court as a primary matter to consider the benefit to the child of having a meaningful relationship with the father whilst being protected from exposure to abuse.
Conscious of all of the factors identified by the mother’s counsel, but particularly mindful of the benefit of J having a meaningful relationship with both of his parents (see ss 60B(1)(a) and 60CC(2)(a) of the Family Law Act1975 (Cth)). In order to achieve that balance we accept the recommendations of Mr P and propose to order as follows:
1. The appeal be allowed.
2.Orders 1 and 3 made by the Honourable Justice Benjamin on 3 March 2006 be set aside.
3.[J] spend time with his father as follows:
(a)one further period of supervised contact for two hours on each of Saturday and Sunday at the Hobart Children’s Contact Centre;
(b)a weekend of contact in Tasmania from 10.00am Saturday until 5.00pm Sunday as soon as practicable after (a) accompanied by another adult nominated by the father and approved of by the mother, which approval shall not be unreasonably withheld;
(c)For 7 days in Tasmania in January 2007 accompanied by another adult nominated by the father and approved of by the mother, which approval shall not be unreasonably withheld, from 9.00am to 6.00pm on each of the first five days and then from 9.00am on the sixth day until 6.00pm on the seventh day;
(d)From the first until the last Saturday of each Tasmanian May/June and August/September school holidays;
(e)For 21 days in the Tasmanian Christmas school holiday period after 5 January in each year commencing 2008;
(f) For four weekends in Tasmania from 4.00pm Friday to 5.00pm Sunday in each school term commencing 2007, the father to give at least 28 days notice in writing of his intention to avail himself of the proposed contact;
4.In addition to the weekly telephone contact as ordered by the Honourable Justice Benjamin on 3 March 2006, the father be at liberty to communicate with [J] by telephone on [J]’s birthday and on 24 December of each year.
5.When [J] is spending time with his father, his mother may telephone him each second night between 6.30 and 7.00. The father shall provide the mother with details of telephone numbers where he may be contacted during such periods.
6.The parties are at liberty to seek further orders concerning the implementation of these orders concerning matters such as travel arrangements and the like by applying to a Judge or Federal Magistrate if they are unable to agree.
7.The independent children’s lawyer’s appointment continue for a period of six months.
8.The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
9.The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
10.The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act in respect of the costs incurred by her in relation to the appeal.
Warnick J:
I agree with the Chief Justice and Kay J that the appeal should be allowed for the reasons given. However, in my view, the applications should be remitted for rehearing and I will give my reasons for that opinion shortly.
I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change.
As to the orders that this Full Court should make on the appeal, I consider that it is significant that all parties have formulated proposals that ultimately lead to unsupervised contact between father and son. This may well be a very sensible approach to this family’s situation and a suitable set of parameters within which an arbiter or more likely, a mediator, could work. But this Full Court is neither of these. This Full Court has allowed an appeal on the basis of insufficient examination and explication of an enquiry into whether allegations of abuse are true or false and if those questions are not answered, whether an unacceptable risk of abuse exists. In that enquiry, the mother took the stance that she believed abuse had occurred. The father denied abuse.
In my view, this Court should not (in the absence of further evidence) make the orders that should have been made at first instance without itself conducting that enquiry and giving the sufficient explication of it. I do not consider that the orders proposed by the parties, if this Court re-exercises the trial judge’s discretion, amount to further evidence. Even if they do, I am quite uncertain about what inferences can be drawn from the fact of the proposals.
I do not consider this Court should re-exercise the discretion when:
· the trial Judge had reservations about the father’s credibility;
· this Court has not seen the parties or their witnesses;
· in my view, at the trial an “area” of enquiry potentially critical to that investigation, was only lightly touched upon.
As to the effect of the observations in paragraphs (i) and (ii) above, I note what Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy (2003) 214 CLR 118, of the position of an appellate court:
23.On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
As to my observations about the extent of enquiry at trial, it seems that, in respect of the initial “disclosures” of abuse in March 2004, because after intervention by a counsellor the mother became satisfied that abuse had not occurred, the circumstances of these “disclosures” were not carefully scrutinised. Yet within these events may well lie clarification of what has transpired. There is strong potential that all subsequent events are “contaminated” by what is said and done at the time of initial concern.120. I acknowledge the dread that accompanies the prospect of a retrial. But for this Court to decline to make a decision is not necessarily to commit the parties to a further trial. They have already demonstrated stances about orders that set the parameters of the dispute now. However, if the parties cannot resolve their issues, such is the seriousness of the allegations (which I can only assume are extant) that as fulsome a judicial enquiry into them as is possible ought be conducted.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court
Associate:
Date: 5 December 2006
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