Nikolakis & Nikolakis
[2010] FamCAFC 52
•25 March 2010
FAMILY COURT OF AUSTRALIA
| NIKOLAKIS & NIKOLAKIS | [2010] FamCAFC 52 |
| FAMILY LAW - APPEAL – Findings of fact – failed to give sufficient reasons – appeal dismissed. FAMILY LAW - CHILD ABUSE – Unacceptable risk of father sexually and emotionally abusing the children – factors that might indicate a risk in the future – how unacceptable risk is to be assessed - father allegedly engaged in predatory sexual behaviour with other children - father’s prior conviction of indecent assault overturned. FAMILY LAW - CHILDREN – With whom a child lives – father seeking an equal shared arrangement – trial judge ordered supervised time with children. |
| Bennett & Bennett (1991) FLC 92-191 M v M (1988) 166 CLR 69; (1988) FLC 91-979 Murphy & Murphy [2007] FamCA 795 Napier & Hepburn (2006) FLC 93-303 N & S (1996) FLC 92-655 |
| Family Law Act 1975 (Cth), s 60CC(2), s 60CC(3) Evidence Act 1995 (Cth), s 140 |
| APPELLANT: | Mr Nikolakis |
| RESPONDENT: | Ms Nikolakis |
| INDEPENDENT CHILDREN’S LAWYER: | Christine Hafey |
| FILE NUMBER: | PAF | 219 | of | 2005 |
| APPEAL NUMBER: | EA | 51 | of | 2007 |
| DATE DELIVERED: | 25 March 2010 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Coleman & Stevenson JJ |
| HEARING DATE: | 10 September 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 March 2007 |
| LOWER COURT MNC: | [2007] FamCA 1738 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Juhasz |
| SOLICITOR FOR THE APPELLANT: | Not applicable |
| COUNSEL FOR THE RESPONDENT: | Ms Gillies |
| SOLICITOR FOR THE RESPONDENT: | Adams & Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Boyle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Champion Partners |
Orders
That the appeal be dismissed.
That the father pays the costs of the mother and the Independent Children’s Lawyer of and incidental to the appeal as agreed and in default of agreement as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Nikolakis & Nikolakis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 51 of 2007
File Number: PAF 219 of 2005
| Mr Nikolakis |
Appellant
And
| Ms Nikolakis |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Nikolakis (“the father”) appeals against parenting orders of Flohm J which were made on 19 March 2007. In summary, those orders granted Ms Nikolakis (“the mother”) sole parental responsibility for the parties’ four children, permitted the mother to relocate with the children from Sydney to the Gold Coast, and provided for the children to spend two hours supervised time with the father on four occasions each year. The mother filed a cross-appeal against the orders but subsequently discontinued the cross-appeal and did not pursue it before us.
Central to her Honour’s decision, and the focus of the father’s challenge on appeal, was a finding that the father posed an unacceptable risk of sexually and emotionally abusing the children. The father contends that this finding was based on legal and factual errors. The mother resists the appeal and seeks that the trial judge’s orders be upheld. The Independent Children’s Lawyer also seeks that the appeal be dismissed.
Background
The following facts are recorded in the judgment of Flohm J and do not appear to be controversial.
The father was born in 1965 and was 41 years old at the time of trial. The mother was born in 1975 and was 31 years old at trial. The parties married in 1995 and lived with the paternal grandmother at her property until about 2000 when they moved to a nearby property. The parties have four children: A born in 1995 and is now 14 years old, B born in 1998 and is now 12 years old, C born in 2000 and is now 9 years old, and M born in 2002 and is now 7 years old.
In 2001 police investigated a complaint made against the father by a 16 year old girl regarding a possible sexual assault. No charges were laid.
The date of the parties’ separation was disputed. The father said it was in June 2002, whereas the mother asserted it was in August 2004 when she was admitted to a psychiatric unit after a suicide attempt.
In October 2004 a further complaint was made to police against the father alleging sexual assault, this time pertaining to a girl aged 7. On 29 August 2005 the father was convicted of indecent assault in relation to this incident, but that conviction was subsequently overturned on appeal before the hearing.
The father filed an Application in January 2005 seeking, amongst other things, that the children live with him and that the mother’s time with them be reserved. On 9 September 2005 (very shortly after the father’s conviction) interim orders were made by consent to the effect that the father spend no time with the children. The father thus did not see the children (except in the presence of the court-appointed expert) for over 17 months in the time leading to final hearing.
By the time of the trial there was some confusion as to the precise form of orders sought by the father nevertheless, her Honour was able to say in relation to the father’s ultimate proposal (at paragraph 7): “The Court understands clearly that the father is proposing an equally shared arrangement or as close to an equally shared arrangement as the Court thinks appropriate.”
In contrast, the mother at trial sought permission to relocate to the Gold Coast, sole parental responsibility for the children and for the father’s time with them to be “reserved”. The Independent Children’s Lawyer supported the mother’s position, adding that the father ought to be permitted to send letters and the like to the children.
As noted above, the trial judge’s determination most closely resembled the position of the mother and the Independent Children’s Lawyer, although it did provide for the father to have some limited supervised time with the children.
Trial judge’s reasons
Her Honour summarised each party’s case and why they contended that the orders they sought were in the children’s best interests. Importantly for this appeal, the mother asserted the father had emotionally abused the children and posed an unacceptable risk of sexually abusing the children. The mother based the latter allegation on “two separate complaints of inappropriate sexual, or possibly sexual, conduct by the father…together with the father’s demonstrated ability to cause these children to keep secrets from the mother”. For his part, the father denied that the children were at any risk of harm from him and denied the allegations against him in relation to abuse of other children. The father emphasised his close relationship with the children and asserted that “the mother’s capacity to care for the children’s needs is inferior to his capacity”.
The trial judge then assessed the parties’ credit. Her Honour spent several pages evaluating evidence that “demonstrated to the Court that [the father] has been dishonest in his dealings with others and with this Court.” Her Honour’s ultimate conclusion on credit was that:
39.Accordingly, given that the father has demonstrated himself to be capable of very dishonest behaviour and was generally a very unimpressive witness from the point of view of his credit, and that the mother has demonstrated herself to be generally an honest person and a truthful witness, it follows that I would more readily accept the mother’s version than the father’s version on those issues in which there are factual disputes between the parents.
The trial judge listed some 12 areas of factual dispute she was required to resolve and proceeded to make findings on each. The relevant factual disputes for the purposes of this appeal are as follows:
(ii)The date and circumstances of the parents’ separation…;
(vi) The allegations in relation to sexual abuse by the father; and
(x) The alleged emotional abuse of the children by the father.
We will now briefly outline her Honour’s findings in relation to each of these issues.
The parties’ separation
The trial judge noted the parties’ “very different versions” of their separation. The father asserted that the parties separated under the same roof by August 2002 and that he moved out to his parents’ house by October 2002. He began a relationship with Ms M in 2003 and travelled regularly to see her in O, frequently taking the children with him. In contrast, the mother asserted that separation did not occur until August 2004. She said that between August 2002 and August 2004 the parties remained living together but the children would stay with the paternal grandmother when the mother was working nightshift and that on some occasions the father accompanied the children. The mother said that the father told her he was attending markets in regional NSW and would not let her accompany him. During an argument about this in August 2004, she said, she realised the marriage was over. The trial judge accepted the mother’s version, citing the parties’ relative credit and various pieces of evidence, including “most tellingly, it was not until August 2004 that the mother, consistent with her learning that the marriage was over, attempted suicide.”
Importantly for the purposes of this appeal, the trial judge went on to comment on the fact that the children had not told the mother about the father’s relationship with Ms M which they had witnessed in O:
60.I am satisfied that the most likely explanation of events in that period is that the father was leading a double life, travelling regularly to [O] to spend time with his girlfriend but not wishing to initiate separation from the mother. He deliberately hid from the mother his true relationship with [Ms M] and, extraordinarily, the children did not reveal what was going on behind the mother’s back. I am satisfied to the requisite standard that the father either expressly or implicitly convinced the children not to disclose to the mother the nature of his relationship with [Ms M] and not to disclose to the mother details of their activities in [regional NSW] which might have revealed, for instance, that [Ms M] did not have a partner. No other explanation is logical in circumstances where the father took the children frequently to [regional NSW] and the mother’s suspicions were, on her evidence which I accept, not aroused by anything the children said. I remarked during the course of the hearing, and I repeat, that I did find it extraordinary, in circumstances where the mother apparently thought the father was taking the children to visit a couple with two children, ie. an innocent situation, that she would not have made reference to those people and their activities in a normal way, enquiring about the children’s weekend activities, not to interrogate them but simply out of maternal interest as to how they had spent their time. Even in those circumstances the children revealed nothing. The relevance of the father’s role in that secretive behaviour of the children is discussed in more detail later.
The allegation of sexual abuse by the father
Her Honour first noted that there was no allegation that the father had acted sexually inappropriately towards the children of the marriage. Rather, the case of the mother and the Independent Children’s Lawyer was that the father had engaged in “predatory sexual behaviour” with other children “and accordingly the [Nikolakis] children are at risk of similar abuse if they spend unsupervised time with the father.”
It is useful for us to here set out her Honour’s consideration of the evidence of the father’s alleged predatory sexual behaviour.
84.The facts, as I understand them, are that in 2001 a 16 year old girl named [E], the daughter of family friends of the [Nikolakis’s], accompanied the father and two of his own children on a camping trip to the South Coast. The father was the only adult present. It is reported that on arrival at the camp site the father made [E] a cup of tea which she thought tasted bitter and which she poured out. The father then made her a second cup and, although [E] thought that cup also tasted bitter, she drank it. It is reported that thereafter [E] had no memory of the ensuing days, her first memory being of returning in the car to [X] two days later. [E] told her mother of the events and a medical examination, including blood tests, was arranged. [E] tested positive for the drug Benzodiazepine, and a general medical examination noted that [E’s] throat was ulcerated. Her mother took [E] to the Sexual Assault Unit at [a] Hospital but no examination was carried out because of the time that had elapsed. The matter was referred to the Joint Investigation Response Team at [P]. That information is contained in a statement recorded by the police in Exhibit M14 but it is not clear on the face of that document whether that information was provided direct to the police by [E] or by her mother. In either case, the inference is clearly to be drawn that it was suspected by [E’s] family that the father drugged [E] and may have sexually assaulted her in some manner whilst she was asleep.
85.The father denies any improper conduct. His evidence is that he was interviewed by the police about that incident but no charges were laid. The only explanation from the father of which I am aware is that he told the mother that at the time [E] was in with “a bad crowd”. I do not know whether that is the father’s own explanation for the incident or whether that was information provided to the father. I do not know whether that is an explanation for [E] fabricating events or an explanation for [E’s] positive drug test. The evidence is that the family friendship between the [Nikolakis’s] and [E’s] family was permanently severed at that time.
86.The next incident occurred in October 2004. The father was in [regional NSW] with his three daughters, staying in the home of [Ms M], the woman with whom he was in a romantic relationship. It appears that [Ms M] went to the movies and the father babysat his three children and her two children, being [Y] aged 8 and [X] aged 7. [Y] reported to the police that the father gave the children a drink of [soft drink] which tasted “funny” and that after they drank the [soft drink] they all felt sleepy, although it is clear from that child’s statement that the children did not fall asleep at that time. [X] complained the following day to her mother that when the other children had fallen asleep the father carried her from one bedroom to another and touched her on her genital area and put his tongue in her mouth. In relation to the inappropriate touching [X] said that it happened more than once. [X’s] mother reported the matter to the police. Records of [Ms M’s] [children’s’] police interviews are before me as part of Exhibit M13.
87.The father’s version to the police, which is also contained in Exhibit M13, was that all the children were asleep, and that [X] walked into the lounge room where he was sitting. He said that she did not appear to hear his request that she return to bed so he picked her up and put her back into bed. He thought she may have been sleepwalking and that is what he told the mother when she returned from the movies. He denies any improper conduct.
88.The father was charged and later convicted of indecent assault of a child under the age of 10. It was the conviction on that offence which caused the mother in these proceedings, apparently on the advice of the Department of Community Services, to take the [Nikolakis] children into her fulltime care. In September 2005 interim consent orders were made in this Court whereby the father was not to have any contact with the children and that has continued to the present time. In May 2006 the father’s conviction was overturned on appeal.
The trial judge went on to note the submissions of the mother and the Independent Children’s Lawyer that although the Court could not make a positive finding that the father had engaged in inappropriate conduct with those children, the “common threads” to the two incidents should lead to a finding of unacceptable risk. Her Honour then set out the asserted similarities between the two alleged incidents and described those similarities as “prima facie very disturbing”. Similarly, she later said, at paragraph 100, the similarities were “very disturbing and cannot be treated lightly by this Court”.
Crucial to the father’s appeal was the following statement by her Honour:
91. …the evidence is undisputed that there is no way that the two families involved have had any contact with each other such that the facts involving the first incident would have been known to another family three years later. There is no evidence to suggest that a person other than [E’s] family, such as the mother, who was aware of the facts surrounding the first incident, was in a position to pass those facts on to [X’s] family: the mother had had no contact with [Ms M] prior to statements being made by [Ms M’s children].
In the following paragraph her Honour again made reference to the fact that Ms M’s son Y “could have known nothing of the 2001 incident” at the time he reportedly spoke about the funny-tasting drink which made him and the other children feel sleepy.
These statements were criticised by counsel for the father at the hearing of the appeal on the basis that they could not be supported by the evidence before the trial judge. Our analysis of this issue appears below.
The trial judge reviewed various authorities on the “unacceptable risk” test and effectively warned herself against “falling back” on a finding of unacceptable risk “in circumstances where there is insufficient evidence to find that abuse has actually taken place but [the Court is] left with an uncomfortable or uneasy feeling about the alleged perpetrator’s conduct”. Her Honour noted, at paragraph 95:
Those authorities emphasise the importance of the necessity to examine the allegation of unacceptable risk with a rigour appropriate to the seriousness of the allegations and the consequences which flow from such a finding in the context of parenting proceedings in the Family Court.
Her Honour’s conclusion on the sexual abuse allegations appears at paragraph 100:
I have concluded that the evidence of those two incidents alone, given the form which much of that evidence takes, falls short of satisfying this Court to the requisite standard that the father poses an unacceptable risk of sexual abuse of his own children if he was to spend time with them on an unsupervised basis.
However, the trial judge then referred again to the circumstances surrounding the parties’ separation and to the fact that the children had never told the mother about Ms M or what had happened on their weekends in O. Her Honour cited evidence from the single expert Dr RN of a concern that, given the children’s silence on that issue, the children may not disclose to the mother if they were sexually abused by the father in the future. Her Honour held at paragraph 103:
I have ultimately come to the conclusion that whilst the evidence of the 2001 and 2004 incidents involving [E] and [X] alone falls short of satisfying the Court to the requisite standard that the father poses an unacceptable risk to the children of sexual abuse, that evidence together with the evidence and findings about the [regional NSW] events and the father’s role therein satisfies the Court to the requisite standard that there is an unacceptable risk of sexual abuse of these children if they were to spend unsupervised time with the father in the future. That the children may once again keep secrets from the mother of conduct by the father, which he expressly or implicitly communicates to the children she should not be told about, removes from this Court the confidence that often accompanies the making of parenting orders against a background of allegations of sexual abuse of children, that is, the confidence that the combination of a vigilant residence parent and children who will confide in that parent if they feel uncomfortable about the other parent’s conduct towards them is likely to minimise the risk of inappropriate conduct occurring or reoccurring.
The allegation of emotional abuse by the father
The trial judge relied heavily upon the written and oral evidence of Dr RN in assessing this allegation. In summary, her Honour accepted the following concerns of Dr RN:
· The father has “no insight into his disordered functioning, his prognosis is poor, i.e. change is unlikely, and…the father has actively devalued the mother to the children which over time could lead to them becoming alienated from her”.
· The visits to regional NSW subjected the children to “the confusion and conflict of a situation whereby they felt they would be betraying the father’s trust if they confided in the mother.” The father’s relationship with Ms M was “very disturbing” for the child A in particular, who was described as “distressed”.
· The girls “were not being protected from their father’s emotional outbursts and his subsequent physical ‘collapse’” and that the girls were being encouraged “into a precocious care giving role which has consequences for their emotional development”.
· The father failed to take any responsibility for the “rupture” in his time with the children.
· The father interacted with the children in a manner which suited his needs and seemed unable to put the children’s needs before his own. The father’s conduct with the children during the assessment by Dr RN was emotionally abusive.
· The father has narcissistic qualities, a propensity to manipulate, and a lack of empathy with his children.
· The paternal grandmother would be unable to protect the children from emotional indiscretions by the father and would not be an appropriate supervisor.
Dr RN concluded that, even if the sexual abuse allegations were not substantiated, “there are enough concerns about other aspects of [the father’s] non-child focused parenting to prevent him having a role as a residential parent”.
At paragraph 160 of her reasons, the trial judge accepted Dr RN’s evidence in the passage which follows:
…Dr [RN], when asked about the benefits to children of knowing their parents, including their parent’s deficiencies, adopts the proposition that that benefit has to be balanced against any risk to which they may be exposed by contact with that parent, and confirms that the risks to be taken into account were not only risks of physical harm and risks of sexual harm but also risks of emotional harm.
Further, at paragraph 165 her Honour accepted the following evidence:
…Dr [RN] adopts the proposition that the children would have no protection from the father’s emotionally harmful conduct if he was to spend time with them outside a contact centre, and that the detrimental impact of such periods would be increased the longer the father spent with the children under those circumstances. Dr [RN] agrees that would be harmful to the children and says that it is one of the detriments of the father spending time with the children which must be weighed up against the benefits which she has outlined.
These are important paragraphs as the father contends that her Honour erroneously did not in fact conduct any such balancing or weighing exercises in making the finding of unacceptable risk – an issue to which we return to in our discussion below.
At paragraph 166 her Honour accepted this evidence:
Dr [RN] expresses concern that the father may not be restrained in his conduct in the presence of his children simply because it was occurring in a contact centre, in circumstances where he had not been restrained in his insensitive conduct towards the children in Dr [RN’s] presence.
And finally, at paragraph 167 her Honour accepted Dr [RN’s] view that:
these children have a clearly identified attachment to their father, but that does not mean that his past parenting has not been insensitive; what it does mean is that he and the grandmother have been emotionally available in the past in a way that has fostered that attachment.
Her Honour’s conclusion on this issue appears at paragraph 178:
Taking into account all of the evidence before me… I am satisfied that the father is a parent who is emotionally abusive of his children, and that this conduct is part of a chronic disordered way of doing things… [w]hilst a number of emotionally abusive incidents have occurred, the Court has made particularly adverse findings about the father’s role in the “enmeshing”, to use Dr [RN’s] description, of the children in his relationship with [Ms M] and in the children keeping secrets about the [regional NSW] visits from the mother… [s]uch has been the father’s emotional abuse of the children, demonstrated by a number of incidents, that this is a case where that conduct alone would lead this Court to find that there is an unacceptable risk of abuse, a finding which would be reflected in orders that any time the father spent with the children should be supervised for a substantial period of time into the future.
Legislative considerations
There was no criticism of the trial judge’s summary of the relevant legal principles to be applied.
Her Honour’s discussion of the primary considerations in s 60CC(2) of the Family LawAct 1975 (Cth) (“the Act”) was brief, given that she had already devoted many paragraphs (including those summarised above) to a discussion of the need to protect the children from harm.
The trial judge’s assessment of the additional considerations in s 60CC(3) of the Act did not come under attack from the father. In summary, the trial judge found that the children expressed a strong desire to see their father and had close emotional attachments with both parents. Her Honour remained concerned about providing the father with any opportunity to undermine the children’s relationship with the mother. Her Honour acknowledged that each parent was in effect proposing a change to the arrangements then in place. She accepted Dr RN’s evidence that the risk of emotional abuse occurring even at a supervised contact centre had to be balanced against the detriment to the children of not seeing their father at all.
In concluding that the father should spend limited supervised time with the children her Honour said:
308.I must say that I have found the issue of the children’s future time with the father a very difficult issue to decide. I am satisfied on the evidence before me that whatever time the father spends with the children is likely to be used by him to fulfil his needs rather than the children’s needs, and I am satisfied that he is so invested in the legal system, as Dr [RN] has observed, that he is likely to take every opportunity available to him to destabilise the mother’s household, through the children, more determined [sic] to win the ultimate war than concerned about the impact on the children in the meantime. I am satisfied that the father is unable to censor himself on this issue and I am satisfied that the paternal grandmother will not provide any voice of restraint. I do share the concerns raised by the mother and the Independent Children’s Lawyer that, given the father’s demonstrated propensity to deceive and manipulate, that he may be able to persuade to his point of view any supervisors at a contact centre. I do share the concerns raised that any pressure placed by the father on the children, or criticisms made by the father of the mother, or questions asked by the father about the mother’s life and lifestyle, may well be kept secret from the mother by the children, given the [Ms M] experience in [O]. All of those matters strongly support an order for no contact at all.
309.However, balanced against that is the evidence of the benefits to the children, clearly set out by Dr RN, of being able to actually see their father’s face and touch their father, to know he is alive, to know that he has travelled to Gold Coast in order to see them and that amongst the possible detriments to the children of never being able to see their father is that they may blame the mother for that situation. The other long term detriments have been referred to above.
Grounds of appeal
The father’s Notice of Appeal contains six grounds of appeal. However, only four of those grounds were pursued and addressed in written and oral submissions. The first three grounds argued relate to the trial judge’s finding that the father posed an unacceptable risk of sexually abusing the children. The fourth relates to the finding that the father posed an unacceptable risk of emotionally abusing the children. We set out in full the four grounds of appeal that were pressed before us:
(1)That the [t]rial [j]udge erred in fact and law in finding that there was an unacceptable risk of sexual abuse of the children subject to these proceedings by the father if the father were to spend unsupervised time with the children in the circumstances of this case where:
(a)Her Honour found that the two separate allegations of sexual abuse by the father upon two girls aged [16] and [7] years respectively could not be proved to the requisite standard upon the evidence before [h]er Honour;
(b)The lack of any allegation that the father had in any way sexually abused his children; [and]
(c)The lack of any evidence before the trial judge to suggest that the father may have sexually abused his children.
(2)The [t]rial [j]udge erred in law in that [h]er Honour misdirected herself as to the proper approach to be followed in determining whether or not the father in spending unsupervised time with his children posed an unacceptable risk of sexually abusing his children.
(3)The [t]rial [j]udge erred in law in failing to give sufficient reasons for the finding that the father in spending unsupervised time with his children posed an unacceptable risk of sexually abusing his children.
(4)The [t]rial [j]udge erred in law in failing to give reasons for finding that the father poses an unacceptable risk of emotionally abusing his children in circumstances of this case where [h]er Honour had found:
(a)The father had emotionally abused his children on a number of occasions;
(b)That the father’s conduct alone would lead the court to find that the father poses an unacceptable risk to his children; [and]
(c)That any time the father spends with the children should be supervised for a substantial period of time in the future.
We now address each of these grounds in turn.
Discussion
Ground One (Factual Errors): That the trial judge erred in fact and law in finding that there was an unacceptable risk of sexual abuse of the children subject to these proceedings by the father if the father were to spend unsupervised time with the children
The submissions advanced by the father under this ground raise questions about the evidence upon which her Honour made findings of unacceptable risk, how unacceptable risk is to be assessed and in particular those factors that might indicate a risk in the future rather than an evaluation of evidence suggesting sexual abuse may have occurred in the past. This ground raises the vexed question about reliance on past factors to indicate the risk of future abuse, and the standard of proof applicable to past factors where they have influenced the future finding of risk.
The father’s written amended summary of argument asserted that an error of law occurred in circumstances where:
· the trial judge found that two separate allegations of sexual abuse by the father upon the two girls aged 16 and 7 respectively, could not be proved to the requisite civil standard;
· the lack of any allegation that the father had in any way sexually abused his children; and
· the lack of any evidence before the trial judge to suggest the father may have sexually abused his children.
The matter was argued somewhat differently before us but it is convenient to deal with the written summary first. The father is correct in the assertion that the evidence before the Court concerning the sexual abuse of the two children E and X could not be proved to the requisite civil standard. In relation to the allegations the trial judge said (at paragraph 97):
I do not know if the allegations of abuse by the father against the teenager [E] and/or the child [X] are true. I do not know if they are false. It is conceded that there is insufficient evidence, or at least evidence on which I could place any real weight, before the Court which would allow me to determine those matters.
The gravamen of the father’s argument seems to be that not only could the Court not make a finding in relation to the two girls required to satisfy the standard of proof, which is to be found in s 140 of the Evidence Act 1995 (Cth), but that the state of the evidence itself in relation to those allegations was such that the Court could not rely upon it at all to form a basis upon which to examine the question of whether there was an unacceptable risk (in unsupervised time with the children of the marriage). The written submissions assert that the poor quality of that evidence coupled with the lack of any allegation that the father had in any way sexually abused his own children and the lack of any evidence before the trial judge to suggest that the father may have sexually abused his own children, must inevitably have precluded the trial judge from finding an unacceptable risk of sexual abuse, in the absence of further evidence.
The written submissions were amplified upon in oral evidence when counsel put the argument in this way; if the trial judge could not make a positive finding that any abuse had occurred to the children E and X, and as the original allegations fall so far short of enabling anything on which to have based an unacceptable risk finding, including no reports of the children of the marriage of sexual abuse and the expert not suggesting that the father had abused his children, then the evidence of the good relationship between the father and the children must outweigh any concerns her Honour had, based on the untested evidence. As we said this poses the question of the extent to which past allegations can have relevance to future risk.
The starting point for considering this argument is the High Court’s decision in M v M (1988) 166 CLR 69; (1988) FLC 91-979. M v M was a case which involved allegations that the father had sexually abused the child and the child’s welfare would be put at further risk if unsupervised access was granted to the child. The trial judge was not satisfied to the appropriate civil standard that the father had sexually abused the child, but on the other hand he was not satisfied that the father had not abused the child. The trial judge considered there was a possibility that the child had been sexually abused by the father and that in the interests of the child he should eliminate the risk of such abuse by denying access to the father. In the Full Court, the majority concluded that trial judge applied the correct principles in that there was ample evidence to support the findings he made. Chief Justice Nicholson (as he then was) dissented on the ground that an order for access should not be refused because there was a mere possibility that would expose the child to sexual abuse. He considered that “there must be a real or substantial risk of such abuse occurring as a matter of practical reality”.
The High Court dismissed the appeal upholding the majority view of the Full Court. The Court there said (at pages 76 and 77):
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.… 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. 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 considering the previous efforts of the Court to define with greater precision the magnitude of the risk that would justify the Court denying access to a child, the High Court ultimately resolved in favour of the test they formulated as follows (at page 78):
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.
In essence what we perceive the argument of the father to be is that in this case the evidence of any sexual misconduct was so remote and uncertain that it could not form the basis for any inquiry into the future risks of time spent with the father on an unsupervised basis.
The father commenced by asserting in the written submissions that:
· the evidence relied upon to prove the allegations of sexual abuse by the father of the two girls, E and X, was based solely on the material gathered by investigating police;
· none of the witnesses at trial, apart from the father, could give any evidence on any matter of substance in respect of the allegations of alleged sexual abuse of the two girls;
· the father denied any sexual conduct towards either of the girls; and
· the veracity of the allegations by the two girls was not tested at the trial.
The untested allegations of sexual abuse against the father amounted to no more than untested hearsay evidence. The evidence of X consisted of:
· a transcript of record of interview with the complainant;
· a transcript of record of interview with the father; and
· a transcript of record of interview with the complainant and brother (also 8 years old at the time of trial).
Thus it was submitted that the allegations of sexual abuse put forward to the Court were no more than hearsay accounts which were unsubstantiated and untested at the trial.
We do not see any error by her Honour in her consideration of the evidence that was before her, nor does the test require that the Court be in a position to make positive findings. In our view her Honour had some cogent evidence as a starting point for a consideration of whether the father posed an unacceptable risk to his own children if unsupervised time with them was granted.
The first of these was the assertion that in 2001 the 16 year old girl, E, the daughter of family friends of the husband and wife accompanied the father and his own children on a camping trip at which the father was the only adult present. It was reported that on arrival at the camp site the father made E a cup of tea which she thought tasted bitter and was subsequently poured out. The father then made her a second cup and although E thought that cup also tasted bitter, she drank it. The trial judge found (at paragraph 84):
It is reported that thereafter [E] had no memory of the ensuing days, her first memory being of returning in the car to [X] two days later. [E] told her mother of the events and a medical examination, including blood tests, was arranged. [E] tested positive for the drug Benzodiazepine, and a general medical examination noted that [E’s] throat was ulcerated. Her mother took [E] to the Sexual Assault Unit at [a] Hospital but no examination was carried out because of the time that had elapsed. The matter was referred to the Joint Investigation Response Team at [P]. That information is contained in a statement recorded by the police in Exhibit M14 but it is not clear on the face of that document whether that information was provided direct to the police by [E] or by her mother. In either case, the inference is clearly to be drawn that it was suspected by [E’s] family that the father drugged [E] and may have sexually assaulted her in some manner whilst she was asleep.
Her Honour noted that the father denied any improper conduct and that the only explanation from the father was that he told the mother at the time that E was in with a “bad crowd”. Her Honour was not aware whether that was the father’s own explanation for the incident or whether it was information provided to him or whether there was an explanation for E fabricating events or an explanation for the positive drug test. She noted that the family friendship between E’s family and the mother and father was permanently severed at that time.
Her Honour was clearly aware at the lack of strength of the allegations and corroborating evidence in a forensic sense but had evidence which was unchallenged of a girl aged 16 who had been in the care of the father making an allegation of sexual abuse. Her Honour found, however, that no explanation for the incident or why the child had made the allegation was available.
The second incident was the subject of more evidence. In October of 2004 the father was in regional NSW with his three daughters staying with his then girlfriend, Ms M. Ms M went to the movies and the father babysat his three children and her two children; Y then aged 8 and X, then aged 7. Her Honour found that, at paragraph 86:
[Y] reported to the police that the father gave the children a drink of [soft drink] which tasted “funny” and that after they drank the [soft drink] they all felt sleepy, although it is clear from that child’s statement that the children did not fall asleep at that time. [X] complained the following day to her mother that when the other children had fallen asleep the father carried her from one bedroom to another and touched her on her genital area and put his tongue in her mouth. In relation to the inappropriate touching [X] said that it happened more than once. [X’s] mother reported the matter to the police.
Her Honour had before her the police interviews which were extensive. Her Honour noted that the father’s version to the police, at paragraph 87:
was that all the children were asleep, and that [X] walked into the lounge room where he was sitting. He said that she did not appear to hear his request that she return to bed so he picked her up and put her back into bed. He thought she may have been sleepwalking and that is what he told the mother when she returned from the movies. He denies any improper conduct.
The father was charged and then later convicted of indecent assault of a child under the age of 10 and it was that offence that caused the mother in these proceedings to take the children into her fulltime care. Prior to the hearing in this matter, the conviction was overturned on appeal. Surprisingly, in our view, there was no evidence before her Honour as to why the conviction was overturned. In any event, her Honour had full statements from the children, [Y] and [X], running for many pages in which it was quite clear that [X] was consistently alleging that she had been sexually assaulted by the father.
In oral submissions, counsel for the father expanded upon what he said were factual errors arising in the following passage of her Honour’s judgment (at paragraphs 98 and 99). Her Honour there deals with what appears to be the same argument being put to us at this stage which she describes thus:
I do not know whether or not there is a sinister link between beverages prepared by the father three years apart being described tasting bitter and “funny” respectively or whether that was merely a coincidence.
It is asserted by counsel who submits the “coincidence” contention that without that link there is nothing, and that the link if [sic] far too tenuous in circumstances where all this Court has before it is statements made by various persons who are not present to be tested on, inter alia, what other explanations there may be for what happened.
Counsel relies upon what her Honour found at paragraph 92:
Whilst it is true that there are some details which link the two events, how tenuous is that link? Does it mean, as is being suggested here, that the father’s modus operandi is to drug children and then, when they are asleep, to touch them inappropriately or worse? Is it enough that one child (or teenager) has been reported as saying that she drank a cup of tea prepared by the father that tasted bitter and that was the last thing she remembered for about 48 hours and that a blood test arranged by her medical practitioner produced evidence of Benzodiazepine, and that, three or so years later a young boy, who could have known nothing of 2001 incident, has been reported as saying that the father gave all the children in his care a drink of [soft drink] which tasted “funny” and that after they finished the [soft drink] “they all felt sleepy”? It is that link, together with the fact that although there was no clear evidence of sexual activity in the first case there was evidence of a drug, and although no evidence of a drug in the second case there was an explicit disclosure from the child herself of sexual activity, which is primarily relied on, together with the other similarities referred to above, by those in this case who assert an unacceptable risk.
The error asserted by the father is that her Honour was wrong in finding that Y knew nothing of the 2001 incident.
In considering this submission, we wish to say at the outset that we do not consider that, even if her Honour erred in her finding of this fact, that it of itself necessarily vitiated her Honour’s finding of unacceptable risk, but that issue would only arise if the father is successful on this ground.
The primary pieces of evidence which formed the basis for the finding that the father posed an unacceptable risk of sexually abusing his children were two supposedly independent yet similar allegations, that the father had sexually abused two other children, E in 2001 and X in 2004. The assertion by the father is that there is a possibility on the evidence before the Court that the second allegation was in some way brought about or at least influenced by the first (principally as a result of coaching by an adult party who was aware of the first allegation).
We conclude, for reasons that we will explain, that the most that can be said on this issue is that the evidence as it stands discloses the possibility of cross-pollination of the incidents. In particular, the relationship between Ms M and the mother both prior to and around the time of the allegations was not fully explored in evidence and could not be put to Ms M because she was not called as a witness.
However, the reasons for these submissions may be found in the fact that the issue of “contamination” was never put as part of the father’s case at trial. The highest that it achieves in the father’s evidence is at page 740 (line 40) of the appeal book where the following exchange took place:
MR [C]: There would be no reason to believe that [Ms M] would in any way manufacture such a complaint against you at that time?
THE FATHER: At that time I had no reason to believe so.
This topic was never returned to in re-examination; nor was it alluded to in the father’s affidavits.
Thus, the unexplored possibility of contamination remains but was not put as part of the father’s case at trial. Nor was the potential cross-contamination put in the father’s written appeal submissions and it was only in oral submissions that counsel for the father directly addressed the issue of possible cross-contamination of incidents. He argued that, in relation to the second allegation, there was a “plausibly distinct possibility that the child had been coached.” He argued that E and X’s allegations had formed the substantive evidence going to unacceptable risk of sexual abuse and this error of fact affected the weight the Court could permissibly attach to those allegations. Once the error of fact was taken into account he submitted, the Court could attach even less weight to those allegations.
In examining the police record which forms the basis of what is known of the allegations, when Ms M gave a history to the doctor examining X the day after the alleged assault (29 September 2004) the following was recorded:
Six months ago [N] told [Ms M] he was accused of sexually assaulting a child who was a friend of the family. He said this accusation came from his ex-wife and did not provide any further details.
There was thus evidence before the Court that Ms M knew of the first allegation some months before the 2004 allegation.
The alleged assault perpetrated upon X occurred In September 2004. X was interviewed in October 2004. She mentioned nothing in her interview about any soft drink or any drink being given to her or the other children prior to the assault. There is no mention of food and or drink on the evening of the alleged assault at all.
The issue of a drink arose two weeks later in October 2004 when Y, her brother, was interviewed. He volunteered early in the interview (without being asked) “I know what we ate for dinner, when mum went to the movies.” He described the dinner and said “After dinner we had coke.” Later in the interview he mentions the fact that the “coke” “tasted a bit funny” and said “it made me, it made ‘em all feel sleepy.” However, later in the interview Y agreed with the police officer that after drinking the soft drink the children all went outside and played, then came in and watched a movie before falling asleep.
In the mother’s affidavit she stated she did not know of the allegations made by X against the father until December 2004. She stated she was informed of the allegations by her father after he received a telephone call from an ‘anonymous person’ who was apparently a friend of Ms M.
However, in evidence the mother agreed, when it was put to her, that actually she was informed of X’s allegations in between her suicide attempt (August 2004) and her re-admission to hospital thereafter (November 17, 2004) and not December 2004. Thus, it is logical to assume she found out about the allegation between September 2004 and November 2004. She also admitted that once she became aware she called Ms M. Therefore it can be reasonably inferred that prior to 17 November 2004 the mother knew of X’s allegations and had spoken directly to Ms M. It is therefore possible to conjecture from the evidence of the mother that she had spoken to Ms M (and could have given Ms M details of E’s allegations against the father) prior to Y’s visit to the police in October 2004. But the issue of whether this information was in fact given by the mother to Ms M was never explored, and thus the possibility of contamination of Y’s statement was not able to be taken further.
Her Honour found at paragraph 91 of her judgment:
On the versions given to the police in 2001 and 2004 it is the case that both incidents did involve the father and there are similarities between the two incidents which are prima facie very disturbing. Further, the evidence is undisputed that there is no way that the two families involved have had any contact with each other such that the facts involving the first incident would have been known to another family three years later. There is no evidence to suggest that a person other than [E’s] family, such as the mother, who was aware of the facts surrounding the first incident, was in a position to pass those facts on to [X’s] family: the mother had had no contact with [Ms M] prior to statements being made by [Ms M’s] children.
We think the trial judge was incorrect in some of those findings. First there was evidence before the Court which showed that Ms M knew of the earlier incident some six months prior to X’s allegation, although it is not clear what precise details Ms M knew. Secondly, there was evidence that the mother was in a position to pass on detailed facts of the earlier allegation to X’s family and the possibility that she had a telephone conversation with Ms M prior to Y making his statement in October 2004. On the mother’s own evidence, she had a conversation with Ms M prior to 17 November 2004.
Do these errors undermine the basis of the trial judge’s assessment of unacceptable risk? We do not consider that they do, for the following reasons.
First, while it is possible that some of the facts could have been known to Ms M prior to the incident, and passed on to X and Y, this hypothesis exists only as a possibility.
Secondly, this was not explored at trial as Ms M was not called by either party.
Thirdly, there was no motive to suggest why Ms M might cause X to make such allegations when the state of her relationship with the father at that point was a good one and they were engaged (albeit without the mother’s knowledge) to be married.
Fourthly, X apparently made the complaint to her mother and made statements to the police herself of sexual abuse. Such complaints were specific and consistent.
Fifthly, the possibility of cross-contamination seems to arise in the context of Y making comments about the “funny tasting” soft drink. While her Honour regarded the two incidents of the drink providing similarities, her findings about the facts do not depend upon this. For example, her Honour says in paragraph 92:
It is that link, together with the fact that although there was no clear evidence of sexual activity in the first case there was evidence of a drug, and although no evidence of a drug in the second case there was an explicit disclosure from the child herself of sexual activity, which is primarily relied on, together with the other similarities referred to above, by those in this case who assert an unacceptable risk.
We think it is clear that the trial judge did understand the tenuousness of some of the links but her Honour was faced with an assertion of inappropriate behaviour by the father to a child in 2001 and a clear allegation of inappropriate sexual behaviour towards the child X in 2004, with no suggestion of why such allegations might have been made. As her Honour found at paragraph 93:
Whilst it is true that the father’s story about [X] sleepwalking seems fanciful, and it would appear that the little girl’s graphic account was accepted by her mother and later accepted by a jury in circumstances where the father was convicted of an act of indecency against [X], that conviction has been overturned on appeal.
Her Honour was mindful (in paragraph 94) that the details of the allegations made against the father in the past would not assist the Court in determining whether those allegations were true or whether any risk to the children of the marriage might flow from those allegations.
Her Honour was also aware of the gravamen of the ground now relied upon, where she says (also in paragraph 94):
Counsel for the father cautions this Court from drawing common elements out of untested hearsay accounts contained in police statements and the submission is forcefully made that in a case where it is conceded by all parties that the evidence cannot establish to the requisite standard that the past abuse did occur, the starting point for any enquiry into whether there is an unacceptable risk in the future should be that there is no such risk of sexual abuse of the [Nikolakis] children until it is proved otherwise.
Her Honour was also mindful of the fact that there had been a number of cases which guided first instance judges away from a path whereby in circumstances where there is insufficient evidence to find that abuse has actually taken place, that they are left with an uncomfortable or uneasy feeling about the alleged perpetrator’s conduct, and “fall back” on a finding of unacceptable risk. In support of this her Honour cited Napier & Hepburn (2006) FLC 93-303.
Her Honour in particular noted that some of the matters that would provide guidance in assessing future risks would be difficult to answer in this case. But, as her Honour says at paragraph 100, the incidents were “very disturbing and cannot be treated lightly by this Court, and statements have been made by children, one of which includes explicit details of sexual abuse by the father.” Her Honour went on to say, at paragraph 100:
The evidence has made the Court’s determination on this issue very challenging. I have concluded that the evidence of those two incidents alone, given the form which much of that evidence takes, falls short of satisfying this Court to the requisite standard that the father poses an unacceptable risk of sexual abuse of his own children if he was to spend time with them on an unsupervised basis.
Thus, in this way, the argument that her Honour erred in fact can be disposed of. Her Honour herself concluded that on the evidence of the incidents, given the form that it took, she could not be satisfied to the requisite civil standard that the father posed an unacceptable risk of sexual abuse if he was to spend time with the children on a regular basis. However, as her Honour pointed out, that was not the end of the matter.
We conclude our comments in relation to this ground by reference to paragraph 188 of the decision of Carmody J in Murphy & Murphy [2007] FamCA 795 which was cited to us by counsel for the father in support of the proposition that her Honour was not entitled to make a finding of unacceptable risk of sexual abuse. Carmody J said:
The weight (if any) to be attached to evidence of out of court welfare related statements made to adults by children about abuse they have allegedly suffered, of course, depends on their trustworthiness and inherent probability. The admission of hearsay may be justified as better then nothing, but it can put an accused party at a serious forensic disadvantage and lead to trial by prejudice and the trustworthiness of witnesses who appear electronically or not at all, is difficult to assess. Indirect statements such as these have to be closely examined and handled with extreme care because they are made by a child, often a very young one, with unknown motives to a party whose interests conflict sharply with those of the suspected parent.
We do not think this passage assists the father, as his Honour was there referring to the whole question of probative value of such comments, including whether or not positive findings could be made.
Paragraph 205 of Carmody’s J judgment, we think, represents a better summary of the position facing the trial judge here:
What is clear however, is that without the alleged victims giving direct evidence, the forensic investigation of the sexual abuse issue may well be inadequate, and the evidence insufficiently exact, definite or precise enough to meet the requisite standard. Without any independent source of substantiation or corroborative confirmation of the alleged abuse, secondary evidence of untested disclosures of alleged child victims, will rarely satisfy the court on the balance of probabilities of anything. The evidentiary bar will almost always be set too high. In many, perhaps most child sex abuse cases, the court will be unable to reach a conclusive or confident conclusion one way or the other. It is in that situation that a future evaluation must be made about whether making a particular parenting order will expose the child to any and what risks of related abuse or other relevant harm in the future. (footnotes omitted)
That is the task that her Honour then went on to do.
To the extent that we have not dealt with the part of Ground 1 which asserts that the trial judge erred in law, that assertion will be dealt with in a consideration of Ground 2, which asserts legal errors.
Ground Two (Legal Errors): The trial judge erred in law in that her Honour misdirected herself as to the proper approach to be followed in determining whether or not the father in spending unsupervised time with his children posed an unacceptable risk of sexually abusing his children.
Under this ground the father asserts that the trial judge erred in law by misdirecting herself as to the proper approach to be followed in determining whether or not the father, in spending unsupervised time with his children, posed an unacceptable risk of sexually abusing them.
The father notes her Honour’s findings and in particular the manner in which her Honour moved from a position where she found that evidence of two incidents alone could not satisfy the Court that the father posed an unacceptable risk of abuse to his own children if he was to spend unsupervised time with them, to the position that her Honour ultimately arrived at. In particular, what was of concern to her Honour was that there was significant evidence before her that the father had been involved in the children concealing from the mother his affair with Ms M and the children being part of that family at the same time as being part of the mother’s family. She placed reliance on Dr RN’s evidence that “bearing in mind this conduct, the children may not disclose to the mother if they were in danger of inappropriate behaviour by the father.” The trial judge concluded that (at paragraph 103):
In my view all the evidence about that incident shift the balance in favour of a finding of unacceptable risk. I have ultimately come to the conclusion that whilst the evidence of the 2001 and 2004 incidents involving [E] and [X] alone falls short of satisfying the Court to the requisite standard that the father poses an unacceptable risk to the children of sexual abuse, that evidence together with the evidence and findings about the [regional NSW] events and the father’s role therein satisfies the Court to the requisite standard that there is an unacceptable risk of sexual abuse of these children if they were to spend unsupervised time with the father in the future.
Her Honour went on to say:
That the children may once again keep secrets from the mother of conduct by the father, which he expressly or implicitly communicates to the children she should not be told about, removes from this Court the confidence that often accompanies the making of parenting orders against a background of allegations of sexual abuse of children, that is, the confidence that the combination of a vigilant residence parent and children who will confide in that parent if they feel uncomfortable about the other parent’s conduct towards them is likely to minimise the risk of inappropriate conduct occurring or reoccurring
Past abuse, and whether it can be established, is by no means the only evidence of risk, as this case demonstrates, but facts that might provide helpful guidance about potential harm and future risks might not carry much probative weight in determining whether abuse actually occurred. Evidence of sexual abuse of other children providing the basis for the finding of unacceptable risk to the children of the marriage was a feature in WK & SR (1997) FLC 92-787, where the Full Court found that one of the children’s older half-sister, whose evidence was of some abuse, was technically inadmissible on the abuse question and should not have been given any weight by the trial judge on that issue but the Full Court acknowledged it would have been clearly relevant when considering broader parenting issues. The question of whether there is an unacceptable risk has to be considered, as the High Court said in M & M (supra), having regard to all the circumstances and the child’s best interests. It is possible, despite positive findings of misconduct in the past, to find no unacceptable risk in the future. That may be because, for example, the children are older, have learned protective behaviours and that the Court can be satisfied that they are old enough to report any untoward behaviour to the other parent. In addition, people and circumstances change.
On the other hand, failure to establish an allegation in the past does not determine the wider issue of what parenting order, if any, is in the child’s best interests and thus the unacceptable risk inquiry involves a real and substantial consideration of whether or not particular facts raise an unacceptable risk (see Napier & Hepburn (supra) and N & S (1996) FLC 92-655 per Fogarty J at 82,713). In addition, there are many matters which the trial judge must consider. They include the situation where the allegations themselves are serious but the probative value of the evidence is slight (as was the case here). On the other hand, the evidence of something occurring may be strong but the nature of what occurred is less clear. All these matters have to be considered with all the other matters under section 60CC in each case in which the Court is to make a parenting order.
Counsel for the father argued that, contrary to what was said in Napier & Hepburn (supra) the trial judge had not identified the risk or evaluated the harm of unsupervised contact. In our view this ground cannot possibly succeed. Her Honour not only referred to the obligation she had by virtue of what the Full Court had said in Napier & Hepburn, but she fulfilled that obligation. Her Honour identified the risk and on its own, given the lack of evidentiary certainty, her Honour made it clear that she would not have found there was an unacceptable risk to the children of unsupervised contact with their father. However, when she evaluated other matters such as the father’s behaviour in involving the children in his deception of the mother concerning his relationship with Ms M in O, this created circumstances in which her Honour found that the consequences of the previous conduct having occurred created an unacceptable risk to these children. Thus the evidence relied upon by the trial judge was a combination of factors which, of themselves, might not have been sufficient to pose an unacceptable risk to the children of unsupervised contact with the father but which in combination, she found, did so. They were:
a)the possibility/risk of the father having sexually abused other children;
b)the subterfuge in which the father involved the children, removing the confidence the Court might otherwise have that the children would feel unconstrained about reporting any concerning behaviour; and
c)the risk of emotional abuse of the children by the father arising from a number of factual findings by the trial judge.
Ground Three (Lack of Reasons): The trial judge erred in law in failing to give sufficient reasons for the finding that the father in spending unsupervised time with his children posed an unacceptable risk of sexually abusing his children.
This ground is really a reasons-based ground. In Bennett & Bennett (1991) FLC 92-191 the Full Court referred to the decision of Fullagar, Gray and Tadgell JJ in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 per Gray J at 18:
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 (supra) at 78-266 the Full Court said “We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.”
The Full Court also said at 78-267:
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 written submissions simply assert that the trial judge failed to provide adequate reasons as to how her Honour concluded that the findings in relation to sexual abuse allegations when combined with the findings in relation to the events which took place in regional NSW shifted the balance in favour of unacceptable risk of sexual abuse. In oral submissions counsel for the father said that:
Having regard to the previous grounds, much of what her Honour canvassed was watered down and that, given the threshold for concern, it wasn’t reached. Her reliance on the duplicity of the [regional NSW] arrangement did not assist.
In particular counsel submitted that:
Leading to a conclusion that the children would not be likely to report concerning behaviour, that her Honour had not spelled out her reasons in three areas:
i)In relation to prior accusations.
ii)In relation to the trips to O.
iii)In relation to assertions that the children would not report.
We do not see how these submissions can be sustained in light of the clear weighing up of the risks to the children by the trial judge, particularly the findings in paragraphs 101, 102 and 103 and her reliance on the evidence of the expert, Dr RN, whose evidence supported her Honour’s concerns. Furthermore, there was ultimately the finding of emotional abuse of the children which her Honour also found was a factor in deciding whether or not there was an unacceptable risk. In our view this ground must clearly fail.
Ground Four (Lack of Reasons): The trial judge erred in law in failing to give reasons for finding that the father poses an unacceptable risk of emotionally abusing his children
This ground also relies on lack of reasons. Although this is stated to be a ground based on a lack of sufficient reasons, both the written submissions and the oral submissions were directed to the failure of the trial judge to carry out the required balancing exercise between the finding of the father having been emotionally abusive of the children (a negative) and a number of pieces of supportive evidence from Dr RN about the children’s relationship with their father (a positive). In particular, it was submitted that she had found:
· That the children had been made to feel loved by their father.
· That the children should not be deprived of the experience of love of their father without good reason.
· That the children were experiencing grief over missing their father.
· That the three elder children displayed attachment behaviors [sic] towards their father.
In oral submissions counsel for the father submitted that the finding of emotional abuse needed to be balanced against the positive factors in the expert’s report.
As argued, this is really a ground going to weight rather than insufficient reasons. However, this argument ignores the many findings that her Honour made about emotional abuse which were not the subject of challenge before us, including the following:
a)The finding that the evidence of the father and paternal grandmother minimised the mother’s role and portrayed an image of a disinterested, distant and incapable mother to the children, an image which the trial judge found had not been reflected in the expert’s assessment of the relationship between the mother and the children.
b)The father’s involvement with Ms M in O, which would have demeaned the mother in the eyes of the children and made it clear she was being deliberately excluded.
c)The father’s attitude to and opinion of the mother had influenced the views expressed by the eldest child, A.
d)Dr RN’s evidence that it was potentially emotionally abusive of children for the father to suggest to them that it was somehow the mother’s fault that he wasn’t seeing them at the time of his assessment.
e)The trial judge’s finding that the father had a “win at any cost” attitude in relation to this litigation and paid no regard to the impact that had on the mother’s capacity to parent the children.
f)The expert’s “ongoing concerns” about the father’s ability to put the children’s needs before his own.
g)The expert’s view that the father was emotionally insensitive to the children’s needs.
h)The father’s undermining of the mother’s parenting since separation in various ways including planting a listening device in her home and redirecting her mail and using some of her mail to annex to affidavit material that was ultimately not relied upon.
i)Attending the children’s school during the time where there was an order that they spend no time with him.
j)Arranging for jackets for A, B and C through the school and providing lunch money.
k)Using information garnered about the mother and children’s daily life to impress upon the mother that the father knew what was happening in the daily life of her and the children.
l)Threatening the mother, after her initial release from hospital following a suicide attempt, to sign a divorce application or he would take the children from her.
Having considered these matters, the trial judge concluded that while a number of emotionally abusive incidents had occurred, the Court had made particularly adverse findings about the father’s role in the “enmeshing” of the children in his relationship with Ms M and in the children keeping secret about the regional NSW visits from the mother.
We think it clear that the trial judge did place weight on the father’s relationship with the children. In the end her Honour balanced the father’s relationship between the children and their father with her concerns, in particular about the emotional abuse she had found would occur, and the risk of sexual abuse when coupled with the emotional abuse finding. The decision to order supervised time was carefully considered by the trial judge in order to protect the children from the opportunity for the father to use time spent with the children to fulfil his needs rather than the children, while at the same time ensuring that the children could be reassured that the father remained in their lives. We think it is clear from her Honour’s reasons that she neither failed to give adequate reasons for her findings, nor failed to balance all of the evidence, both for and against the father’s spending time with the children in coming to her conclusion. Thus, in our view the appeal must fail.
Costs
At the conclusion of the appeal, counsel made submissions about costs and in particular counsel for the father and the Independent Children’s Lawyer sought an order for costs in the event the appeal was dismissed. The father opposed such an order, indicating that he had a modest income and was heavily reliant on a pension. Counsel conceded that his was a private brief, but otherwise relied upon material before the trial judge. The father’s evidence at trial was that he was a professional, who was engaged in part-time professional work between 2002 to the end of 2004, for which he received goods in kind but no monetary recompense. The father’s evidence was that he had not worked since September 2005 and maintained he was in receipt of a disability support pension as a result of injuries he had suffered. The father asserted that he ceased making mortgage payments on his home in March 2006 but conceded, under cross-examination, that he was intending to build a second storey on the house.
On balance, the father has been unsuccessful in this appeal, in a matter in which none of the grounds of appeal have been upheld. In the circumstances we propose to make an order that the father pay the costs of the mother and the Independent Children’s Lawyer.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 25 March 2010
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