NUSKE & GRICE

[2014] FCCA 3102

FEDERAL CIRCUIT COURT OF AUSTRALIA

NUSKE & GRICE [2014] FCCA 3102

Catchwords:
FAMILY LAW – Parenting – future care arrangements – father seeking suspension of existing interim orders providing for time between the children and the mother – orders made by consent for parentage testing procedures to be conducted – allegations of sexual abuse – father seeks mother have supervised time with children – unacceptable risk of sexual abuse not substantiated.

Legislation:  

Family Law Act 1975 (Cth), s.65F

Johnson & Page [2007] FamCA 1235
Deacon & Castle [2013] FCCA 691

Applicant: MR NUSKE

Respondent: MS GRICE

File Number: AYC 361 of 2014

Judgment of: Judge Harman

Hearing date: 11 December 2014

Date of Last Submission: 11 December 2014

Delivered at: Albury

Delivered on: 11 December 2014

REPRESENTATION

Solicitors for the Applicant: Mr Avery of Northey Legal

Solicitors for the Respondent: Ms Coady of Louise Coady Family Lawyers Pty Limited

Solicitors for the Independent Children’s Lawyer: Ms Terrill of Loretta Terrill Family Lawyer

ORDERS

1. Pursuant to s.62G a report is to be prepared for the Court by a Family Consultant nominated by the Manager Child Dispute Services in accordance with Exhibit A.

2. The matter is adjourned for further mention and directions to 15 June 2015 at 2pm.

3. Direct the parties attend in person whether legally represented or not on 15 June 2015 and subject to the Family Report having been released in a timely fashion then each of the parties are to have read the report and are to have considered any recommendations contained therein prior to that appearance and be in a position to:

   (a)Provide full and proper instructions to their legal representatives;

   (b)Advise the Court of orders proposed by them (if different to those proposed in their respective Application and Response);

   (c)Identify the judiciable issues that may require hearing;

   (d)Address means by which the proceedings might be brought to a conclusion other than by hearing (such as further Family Dispute Resolution, family counselling or other action);

   (e)Advise their position as regards any recommendation/s made by the report writer as to family counselling or participation in any course program or service; and

   (f)If hearing time is sought, to advise the witnesses proposed to be called and a realistic estimation of the hearing time required to complete the matter to Judgement.

4. By consent and pursuant to section 69W of the Family Law Act 1975 parentage testing procedures shall be carried out in relation to the following:

   (a)X born (omitted) 2010;

   (b)Ms Grice born (omitted) 1991; and

   (c)Mr Nuske born (omitted) 1988.

5. The mother and the alleged father shall contact a parentage testing agency agreed between them within seven (7) days to complete all necessary documentation in order for the DNA testing to take place.

6. The parties shall each pay half the cost of the testing procedure and ensure that their share of the cost is forwarded to the testing agency with the completed documentation.

7. The parties shall ensure they submit to the testing within 28 days from the date of these orders.

8. The mother shall ensure that the child submits to the DNA testing as advised by the Agency.

9. Dismiss the Application in a Case filed 20 November 2014 and remove that issue from the list of cases awaiting hearing.

IT IS NOTED that publication of this judgment under the pseudonym Nuske & Grice is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

Exhibit A

Family Report

1. Pursuant to s.62G of the Family Law Act 1975, a report be prepared for the Court by a Family Consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia.

2. The Report writer is requested to consider and comment upon the following:

   (a)The nature of the relationship of the children with each of the children's parents; and other persons (including any grandparent, partner of a parent or other relative of the children or other person’s living within either parent’s household;

   (b)The capacity of each of the children’s parents and any other person (including any grandparent or other relative of the children or member of the parent’s household) to provide for the needs of the children, including physical, emotional and intellectual needs;

   (c)The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents and/or members of a parents household or other care givers;

   (d)The parents' current and future capacity to communicate with each other and resolve difficulties that might and with respect to same:

   (i)any specific course, program or counselling service that might be of assistance in supporting, encouraging and/or assisting the parents (jointly and/or severally) in addressing any such difficulties as are apparent; and

   (ii)the impact upon future parenting arrangements (including the allocation of parental responsibility) of such apparent difficulties (if not addressed) and/or upon the children;

   (e)Such other matters as the Report Writer considers relevant.

3. The Report Writer is requested to identify and provide appropriate citations for any social science literature that has been referred to and/or relied upon in expressing opinions within the report.

4. The Family Consultant is requested to complete the report not less than 4 weeks before the adjourned date.

5. The parties shall attend all appointments with the Family Consultant and shall ensure that any other member of their household or other relative (as the Report Writer may request) as well as the subject children attend all appointments with the Family Consultant, as requested by the Family Consultant.

6. The Family Consultant may inspect the Court file, and any documents produced on subpoena access to which has been granted to the parties and/or the Independent Children’s Lawyer.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT ALBURY

AYC 361 of 2014

MR NUSKE

Applicant

And

MS GRICE

Respondent

REASONS FOR JUDGMENT

1. These proceedings involve future care arrangements for two children:

   X, born (omitted) 2010 (aged 4 years); and

   Y, born (omitted) 2012 (aged 2 years). 

2. The children presently live with their father and Orders provide for them to spend time with their mother.

3. The proceedings were commenced by an Application Initiating Proceedings filed on 12 August 2014. A Response has now been filed.

4. The parties to the proceedings are the children’s parents or putative parents, being Mr Nuske, the Applicant and Ms Grice, the Respondent.

5. The proceedings first came before the Court on 15 August 2014. On that date the proceedings were adjourned for a brief period.

6. The matter returned before the Court on 1 October 2014. On that date a number of Interim Orders were made. Ms Grice had still not, at that point in time, filed a Response and accordingly, the only evidence taken into account on that occasion was that contained within the Child Dispute Conference Memo and as led by the father. In any event, Orders were made which provided for the children to spend time with each of the parties.

7. An issue is raised today with respect to paternity of the eldest child and Orders have been made by consent to address that issue. An Application in a Case has also been filed in the intervening period.

8. That Application in a Case was filed on 20 November 2014 and it seeks a variety of Orders but principally and relevantly for the purpose of this determination, it seeks a suspension of the existing Orders providing for time between the children and the mother. The Application seeks that subject to a number of conditions precedent, that the mother then spends time with the children at a supervised contact centre or supervised by one of a number of nominated people.

9. The Application in a Case is supported by an Affidavit and Notice of Abuse Form 4. They were each also filed on 20 November 2014. The Affidavit purports to give evidence not only by Mr Nuske but by the maternal grandmother, Ms E. It purports to do so by annexing a number of emails from Ms Grice setting out the evidence that she would, no doubt, give if she were a deponent of an Affidavit. Such a practice should be discouraged and should, in fact, cease forthwith. There is a proper way to lead evidence and it is not by annexing statements or emails. 

10. The gravamen of the Application relates to what is suggested to be a disclosure or disclosures of sexual abuse by the child X. The disclosures suggested to be made by the child are set out in the Form 4 and also contained in the father’s Affidavit.

11. The first “disclosure”, as it is termed, is suggested to be made by the child to the maternal grandmother. Clearly, the maternal grandmother supports the father’s position. What is suggested to have occurred, as regards said disclosure, is that the child was camping with her grandmother and while she was being made ready for bed she started to cry. A pull-up or type of nappy was being placed on her at that time. It is suggested by Ms Grice that she was “shocked”, as was an Auntie who was also present.

12. It is suggested that when the child was asked what the matter was, she responded, “My body hurts”. It is suggested that when asked why, the child responded, “Mummy has been touching me”. She was asked where and she pointed to her vagina and that she then “Throw her legs open it was very red and broken skin.  I handed her a wet cloth and got her to hold it. Calmed her and said that we would talk to daddy when we got home”. On returning, there was a conversation with the father.  Thus, the father suggests that the child also stated to him that the mother had been touching the child on or about the vagina.

13. There are a number of curious elements that then follow. Firstly, it is suggested that the maternal grandmother said to the child, “Mummy is not allowed to touch you in that area”. Secondly, the child was taken to see a general practitioner, a Dr C. A copy of the electronic note of the good doctor is attached, together with a letter addressed, “To whom it may concern”. It would suggest that on 6 November 2014 the child was taken to the clinic by the father and the child was referred for counselling. It would seem the child was referred for counselling with respect to “suspected abuse”. There is nothing in the notes to suggest how or why the referral was made or upon which it was based.

14. What is curious is that at the very same time as the referral for counselling for “suspected abuse” and upon physical examination the child was diagnosed as suffering from vulvovaginitis. In other words, a vaginal infection. It is suggested that a rash or other skin irritation was also detected.

15. What has followed thereafter is that the child has been seen by another doctor, has been seen or referred to the Department of Human Services and that there have been various conversations with the child’s day care centre regarding the suggested “sexual abuse” of the child. A referral has been made to the police.

16. Whilst a referral has been made for counselling one would hope that counselling is not proceeding on the basis of sexual assault counselling. In any event, an Order will be made to ensure that it does not occur, as in the circumstances, it would not appear that there is anything that could constitute “abuse”. It would appear to be a common occurrence that when something is stated or observed that has many possible interpretations that separated parents, (and it would seem also, in this case, grandparents), are quick to jump to the interpretation which is the most sinister.

17. What the child has indicated is that her mother has “touched” her vagina. There is good touching and bad touching but one would hope that it has not yet become an extraordinary event that a parent would touch their child’s vagina, particularly when as in this case, as is clear, the child had some irritation, rash or infection which clearly required treatment. Indeed, treatment of some sort or other has been provided to the child.

18. The allegation is that the mother “touched” the child’s vagina. A parent touching their child’s vagina, a child still wearing nappies at least at night, is not of itself “abuse”. There are many innocent explanations for that. What is curious is the sinister explanation that is seized upon and as a consequence, there have been not less than six reports made to different persons or agencies on the basis that the child has been abused and the child referred for counselling for abuse.

19. The child clearly had and was diagnosed as suffering from a vaginal infection. It is no doubt unpleasant for the child but it is far from extraordinary that a parent would, in those circumstances, touch their child’s vagina. 

20. I make clear that this is an Interim Application. The matter has been dealt with on the basis of the material filed, all identified material having been read and considered, as well as brief submissions. The matter is dealt with in a busy duty list. There has been no time for cross-examination or testing. No other material has yet been brought to Court to be inspected and/or tendered. On the basis of that described one would imagine it would not demonstrate anything more than the evidence that is before the Court.

21. The child made a statement that a parent touched them. This was followed by the child being told that a parent should not touch them in that part of their person. The child was diagnosed with an infection to that part of their person. Why that is a matter that needs to be reported to the police is entirely unclear.

22. What makes it an allegation of abuse is not the facts related above but the interpretation placed upon the child’s statement and the observation of the child’s red and broken skin in the groin area. Why one would not rather leap to the conclusion that the child has an infection or rash escapes belief. In any event the conclusion that was drawn was abuse. Not illness or even neglect but abuse.

23. It is not a conclusion that the Court can accept demonstrates an unacceptable risk to this child within the context of the discussion of same in Johnson & Page [2007] FamCA 1235 and a line of other authorities as discussed by me in Deacon & Castle [2013] FCCA 691. I incorporate that discussion herein for the sake of brevity and continuity:

    454. In dealing with an issue of unacceptable risk, I am considerably assisted by the Full Court’s decision in Johnson & Page and particularly passage of that judgement at paragraphs 62 and 63 and 65-68 (inclusive) as follows:

    “Relevant legal principles

    The principles to be applied by a trial Judge in determining whether a child should spend time with a parent when the issue of sexual or other serious abuse is alleged to have been perpetrated on the child and/or it is asserted there is an unacceptable risk of harm to the child if the child spends time with a parent are those set out by the High Court in M and M. 

    Given the nature of the challenge to his Honour’s reasons it is appropriate we set out the relevant passages from M and M at 76-77 

    In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:

    “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

    His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.

    No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

    In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

    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.”

    455. And:

    456. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the issue of “the unacceptable risk test” and in so doing reviewed a number of cases determined after M and M. Their Honours at paragraph 111 noted:

    In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred.   We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.  The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty.  However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

    457. Two recent decisions of the Full Court have again examined the question of unacceptable risk. In Napier v Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395 the majority (Bryant CJ and Kay J with whom Warnick J agreed in upholding the appeal), by implication, approved passages from Fogarty J's discussion in N and S (1996) FLC 92-655 at 82,713 which are as follows: 

    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. [Full Court’s emphasis]

    458. Also potentially relevant to the issues raised in this appeal are Warnick J's comments in his separate judgment in Napier v Hepburn, which were adopted with approval by the Full Court in Potter v Potter (2007) FamCA 350. His Honour said: 

    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. (paragraph 114)

    459. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:

    (a) The decisive issue is and always remains the best interests of that child.

    (b) All other issues are subservient.

    (c)The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.

    (d) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.

    (e) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.

    (f) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.

    (g) The onus of proof in reaching that conclusion is the ordinary civil standard.

    (h) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.

    and thereafter expanded some points contained in the summary.”

1. The Application must also be dealt with, as I am urged, by a “cautious approach”. A cautious approach involves a consideration of various propositions, not only the one proposition the father has considered and concluded correct. One must approach any allegation of abuse with caution but the caution must be in response to the allegation on the basis that it is plausible, supported by evidence which is probative, uncontested or persuasive. One must balance converse or alternate hypothesis.

2. If one were to take the allegation that is raised at its highest then there is proof positive of two things and only two things. Firstly, the child stated that her mother touched her vagina, and secondly, the child had a vaginal infection. The two, in fact, go together somewhat like a horse and carriage. It would be neglectful of the mother, something for which she is criticised and suggested to be, for her to not attend to the child and touch her vagina, to wipe it, clean it, apply cream to it, inspect it, to seek to determine the cause of the problem. It is possible that there has been abuse but that possibility must be viewed in light of the evidence available and the evidence available does not make it irresistible, it does not even make it a likely, plausible interpretation of events.

3. I am also conscious that these are not only parents, but it would seem, extended family who are involved in somewhat unpleasant litigation with each other. That does not allow the allegation to be dismissed but I must be conscious of the evidence available, which is very little, if any, which would support that conclusion. 

4. I also have to be cautious in balancing the alternate proposition. What if the child has not been abused? What if I am terminating an entirely healthy and appropriate relationship with a parent and what is the consequence for the child of doing that? In this case, it is suggested that the child’s relationship with the mother is not ideal.

5. The mother is accused of being neglectful and physically hurting the child by hitting her, (although that is not an allegation contained in the Notice of Abuse Form 4, only the Affidavit).

6. The child clearly has a connection with her mother. She spends time with her together with her brother, and she clearly has not come to any great or significant harm. Whilst it is suggested that the child has stated that the mother hits her, and I make clear, hitting a child is not condoned, that is not to open the door to suggest that a parent cannot lawfully chastise their child. That is a matter for personal preference of parents and is not yet illegal behaviour.

7. However, the allegation is purely that. There is no suggestion of an observed injury. There is no suggestion of any other complaint. In those circumstances, I am simply not satisfied that the Court’s jurisdiction should be exercised to interfere with the order already in place. I do propose, however, to Order a Family Report to advance the matter and that will be attended to.

8. Orders have also previously been made for the parties to engage in Family Dispute Resolution and Family Counselling services. The father has completed the Parenting Orders Program. The mother has not yet. The mother has been directed today to contact the relevant service provider forthwith and ensure her enrolment and completion of that program. If she does not, it will count badly against her and section 65F of the Family Law Act 1975 may preclude me hearing her Application. If the matter reaches final hearing and she has not done that which the Court has ordered and intended for her benefit and education, then her Application may not be heard, the father’s will.

9. One would hope that the parties can double their efforts to attend Family Dispute Resolution and Family Counselling and seek to resolve some or all issues between them. 

I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate:

Date:  11 February 2015