FAMILY LAW - APPEAL – CONTACT – UNACCEPTABLE RISK – Allegations of sexual abuse – Inability to identify the perpetrator of the abuse – Supervised Contact ordered
FAMILY LAW - APPEAL – CONTACT – FINDING OF SEXUAL ABUSE - Where Father and Child’s Representative had conceded at trial the child had been sexually abused and sought to argue on appeal that her Honour erred in making a positive finding of sexual abuse and applied incorrect principles in so concluding
FAMILY LAW - APPEAL – CONTACT – UNACCEPTABLE RISK – Whether it was open on the evidence to conclude that unsupervised contact as between the child and the father would expose the child to unacceptable risk of sexual abuse in circumstances where the trial Judge found it impossible to identify the father as the abuser but he was one of two possible perpetrators – Standard to be applied in making a finding of unacceptable risk of abuse
FAMILY LAW - APPEAL – CONTACT – PRINCIPLES TO BE APPLIED – Whether the learned trial Judge erred in her formulation or application of the law relevant both to a positive finding that sexual abuse has occurred and that the child’s unsupervised contact with the father posed an unacceptable risk of harm to the child
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Potter and Potter
Orders
That the appeal be allowed.
That the matter be remitted for re-hearing before a Judge other than O’Reilly J in the Brisbane Registry of the Family Court of Australia.
That the cross-appeal of the Children’s Representative be dismissed.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that,…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Potter v Potter [2007] FamCA 350
Case
[2007] FamCA 350
Decision Date
CaseChat Overview and Summary
This appeal concerned contact arrangements between a child and her father, following allegations of sexual abuse. The primary dispute revolved around the trial judge's findings regarding the occurrence of sexual abuse and the risk posed by unsupervised contact with the father. The appeal was heard by Bryant CJ, Coleman and May JJ.
The legal issues before the Full Court were whether the trial judge erred in making a positive finding that sexual abuse had occurred, and whether it was open to her to conclude that unsupervised contact between the child and the father would expose the child to an unacceptable risk of sexual abuse. This was particularly in circumstances where the trial judge found it impossible to identify the father as the perpetrator, although he was one of two possible perpetrators. The Court was also asked to consider the standard to be applied in making a finding of unacceptable risk of abuse and whether the trial judge correctly formulated or applied the relevant legal principles.
The trial judge found it more likely than not that the child had been sexually abused by a person the child called "Daddy". While there were three such individuals – the father, the paternal grandfather, and the maternal grandfather – the evidence led the judge to conclude it was unlikely the paternal grandfather was the abuser due to minimal contact. The judge was unable to identify the perpetrator between the father and the maternal grandfather, noting the maternal grandfather had extensive unsupervised time with the child and inconsistencies in his evidence. Despite the inability to definitively identify the father as the abuser, the trial judge considered the risk of unsupervised contact with the father or maternal grandfather, applying the principles of s 140(2) of the Evidence Act.
The Full Court ultimately ordered that supervised contact be maintained between the child and the father, upholding the trial judge's assessment of unacceptable risk.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Her Honour then went on to consider what she described as the first of the matters identified in B and B (supra), namely the identity of the perpetrator. Her Honour noted that there were three persons who the child called “Daddy”, the father, the paternal grandfather and the maternal grandfather. Her Honour concluded at paragraph 79:On all of the evidence it is not possible to make a finding as to which of the persons the child has called “Daddy” is the perpetrator of the sexual abuse. [her Honour’s emphasis] Her Honour noted of the father’s case, at paragraph 80 of the reasons for judgment: In the father’s case, it is more pertinent that Ms B said that the child’s sexualised behaviour commenced only in February/March 2004, and that Dr N said (to which I have already referred) that after sexual abuse, children tend to “act out” fairly quickly. The father had very limited contact with the child between the date of the final separation in September 2003 and February/March 2004 and only 2-4 overnight contact with the child in January 2004 (being one or two nights in the period 9-11 January 2004 and one or two nights in the period 23-25 January 2004). See exhibit 4. Dr N observed at the trial that the time gap between the father’s contact in January 2004 and the onset of the child’s behaviour in February/March 2004 “would not necessarily preclude the father being the abuser”.[her Honour’s emphasis] At paragraph 81 of the reasons for judgment, her Honour noted that the paternal grandfather had very minimal contact with the child and no contact with her between June 2003 and June 2004. Based on Dr N’s evidence that after sexual abuse children tend to “act out” fairly quickly, that was seen to “preclude the likelihood that the paternal grandfather is the child’s abuser”. As to the maternal grandfather, her Honour noted at paragraph 82 of the reasons for judgment that the maternal grandfather had had extensive time alone with the child, and in particular since the final separation. She reiterated her observations as to certain parts of the maternal grandfather’s evidence which disturbed her, and in some respects that she found to be inconsistent. At paragraph 83 of the reasons for judgment the trial Judge noted that having made those observations on the evidence it was not possible to make a finding as to the identity of the child's abuser. Her Honour then began her conclusions at paragraph 88 by reiterating her findings that: 1.It is more likely than not that the child has been sexually abused. 2.The perpetrator is a person whom the child calls or has called “Daddy”.3.There are three such persons, namely the father, the maternal grandfather and the paternal grandfather. 4.It is unlikely that the paternal grandfather is the perpetrator, for the reasons I have mentioned above, namely that he had very minimal contact with the child and no contact with her between June 2003 and June 2004, against the background of Dr N’s evidence that after sexual abuse children tend to “act out” fairly quickly. 89. On all of the evidence, therefore, I am left to consider, having regard to the matters in s 140(2) of the Evidence Act, whether the child would be exposed to an unacceptable risk of sexual abuse if there were to be unsupervised contact with the father or the maternal grandfather.