Potter v Potter
[2007] FamCA 350
•27 April 2007
FAMILY COURT OF AUSTRALIA
| POTTER & POTTER | [2007] FamCA 350 |
| 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 |
| Family Law Act 1975 (Cth) s 68F(2) Evidence Act 1995 (Cth) s 140 |
B and B (1993) FLC 92-357
Briginshaw v. Briginshaw (1938) 60 CLR 336
M and M (1988) 166 CLR 69Napier & Hepburn [2006] FamCA 1316
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd (1977) 139 CLR 231
Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192
V & R [2004] FamCA 1081
WK v SR (1997) FLC 92-787
| APPELLANT FATHER: | POTTER |
| RESPONDENT MOTHER: | POTTER |
| INDEPENDENT CHILDREN’S LAWYER: | DORIS LILLIAN CHAN |
| FILE NUMBER: | BRF | 579 | of | 2004 |
| APPEAL NUMBER: | NA | 13 | of | 2005 |
| DATE DELIVERED: | 27 April 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Bryant CJ, Coleman & May JJ |
| HEARING DATE: | 2 August 2005 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 February 2005 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr George and Mr Hanlon |
| SOLICITOR FOR THE APPELLANT: | McKays Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Carew |
| SOLICITOR FOR THE RESPONDENT: | Nita Stratton-Funk & Associates |
| INDEPENDENT CHILDREN’S LAWYER COUNSEL: | Dr Sayers |
| INDEPENDENT CHILDREN’S LAWYER SOLICITOR: | Ms Doris Chan |
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, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.
That the Court grants to the Children’s Representative a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the children’s representative in respect of the costs incurred by the children’s representative in relation to the appeal.
That the Court grants to each party (including the Children’s Representative) a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by the orders made by this Full Court.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: NA 13 of 2005
File Number: BRF 579 of 2004
| POTTER |
Appellant Father
And
| POTTER |
Respondent Mother
REASONS FOR JUDGMENT
This is an appeal by the father against Orders made by O’Reilly J on 21 February 2005 providing for his supervised contact with the child, K born … 2001, aged 3 years and almost … months at the time of trial.
The Child Representative was also granted leave to appeal out of time, and cross-appealed.
Prior to the commencement of the trial, the parties reached agreement as to the child’s continued residence with the mother and various other specific issues The trial concerned the father’s contact, and in particular whether contact with him posed an unacceptable risk of abuse to the child.
The trial proceeded over five days from 25 to 29 October 2004. The Court was assisted by the expert opinion of Ms L and Dr N. Judgment was delivered by her Honour on 21 February 2005.
The Orders made by her Honour which are subject to appeal relevantly provide:
a)During any period in which the father does not reside in the Brisbane metropolitan area the child have contact with the father, to be supervised by any of the paternal grandmother, the maternal grandmother, Mrs Q or the mother for up to six contact periods per year, each contact period to be up to but no more than five consecutive days, upon the father giving 30 days written notice to the mother as to the intended contact dates, times and supervisors, provided that if the supervisor is to be the paternal grandmother the contact occur on the contact days between 9.00am and 4.00pm or such shorter period as may be arranged between the mother and the paternal grandmother and if the supervisor is to be any of the maternal grandmother, Mrs Q or the mother the contact occur on the contact days between 10.30am and 1.30pm or such other periods as may be arranged between the mother and supervisor.
b)During any period in which the father resides in the Brisbane Metropolitan area the child have contact with the father on alternate Saturdays between 10:30am and 1.30pm to be supervised by any of the maternal grandmother, Mrs Q or the mother.
After the conclusion of the hearing and making of Orders, the matter was relisted on 7 March 2005 when the maternal grandfather was given the opportunity to be heard in relation to her Honour’s proposal to limit him coming into contact with the child. Her Honour’s proposal came from a finding that the child had been sexually abused by an unknown party, who after eliminating the paternal grandfather, she identified as either the father or maternal grandfather.
A further Order was made on 7 March 2005 that the mother ensure that K “not be left alone” with the maternal grandfather. Whilst this Order is not the subject of appeal by the appellant, the Child Representative asserts that her Honour erred in failing to explain her reasons for making orders for “protective” contact which deviate from the orders made relevant to the father’s contact with the child. Both orders were made for the same purpose, given the Judge’s inability to identify the perpetrator of the abuse, which she found positively to have occurred.
Relevant Background
The relevant background facts as recorded by the trial Judge are as follows and were common ground between the parties:
· The child, K was born on …2001 and was 3 .. years old at the time of the hearing;
· The mother was 26 years old and the father was 35;
· The parents married in 2000 and separated in September 2003, when the child was 2 ½;
· Following separation, K lived with the mother and had limited contact with the father;
· The contact between the father and the child following separation was as follows:
§ November/December 2003 on a few occasions supervised by the mother;
§ On a few occasions in January 2004 unsupervised;
§ Brief contact in July 2004 at an interview with Ms L, a social worker;
§ On 22 August, 5 September, 19 September, 3 October and 17 October 2004, contact took place supervised by the mother;
§ Following the hearing which commenced on 25 October 2004 the trial Judge ordered fortnightly contact supervised by any of the mother, the maternal grandmother, or Mrs Q (a close friend of the grandmother).
After the birth of K the mother returned to work as a registered nurse doing mostly evening shift work and K was cared for during at her home during that time by a retired day care mother.
In January 2003 the child’s daycare centre was taken over by a Ms B who was still the day carer at the time of the trial.
After separation the mother and K moved out of the matrimonial home and moved in with the mother’s parents. In June 2004 she and the child moved into their own residence.
It is important in our view that we record that the mother and K lived with her parents from separation in September 2003 until June 2004.
It is also important to record, in our view, that from this chronology, the accuracy of which was not in dispute, the father’s only unsupervised contact with K was on a few occasions in January 2004.
Issues at trial
The parties agreed that the child should reside with the mother and had provided to the trial Judge draft consent orders on all aspects related to the child’s welfare except contact with the father.
Her Honour described the case at the outset as concerning a young girl “showing extreme sexualised behaviour including, according to some of the evidence masturbation on a daily, or almost daily basis”.
As the evidence emerged, the major issue for determination for her Honour was whether the child had been subjected to inappropriate sexual conduct and consequently whether unsupervised contact with the father posed an unacceptable risk of abuse.
Reasons for Judgment of the Trial Judge
Having set out the background history, her Honour dealt with the proposals of each of the parties. She recorded that the mother had purchased her own home where she and the child lived and that she had a male companion but did not live with him.
The father was then living in Queensland relatively near the mother and child but had indicated at the commencement of the trial that he planned to relocate to Adelaide at the end of 2004 to “rebuild his life there, to transfer his employment to a [workplace] in Adelaide and to live with the paternal grandparents in Adelaide until such time as he could arrange his own accommodation”.
Her Honour noted that during the trial the father said that he would be prepared to delay his departure to Adelaide for about four months to enable a graduated regime of increased contact to occur before his departure.
Her Honour then set out the provisions of the Family Law Act 1975 (Cth) relevant to determining what orders should be made and the principles relevant to the findings of sexual abuse. She referred to relevant authorities, noting first that a court could not make a positive finding of sexual abuse unless it could be satisfied as to the three matters set out in B and B (1993) FLC 92-357 at 79,772:
1.that the abuse could not have been committed by any other person;
2.the allegations are not based on fabrications; and
3.there is no innocent explanation for the disclosures made.
Her Honour noted that (at paragraph 24 of the reasons for judgment):
In order to make a positive finding that sexual abuse has actually taken place, the Court must be satisfied on the balance of probabilities, but bearing in mind the seriousness of an allegation, the inherent unlikeness of an occurrence of a given description and the gravity of the consequences flowing from a particular finding, which satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. Briginshaw v. Briginshaw (1938) 60 CLR 336. Hilton v. Allen (1940) 63 CLR 691. Reifek v. McElroy (1965) 112 CLR 517. M and M (1988) 166 CLR 69 at 76-77. WK and SR (1997) FLC 92-787 (FC) at pars 26, 46-48. Re W (2004) FLC 93-192 at pars 13-15.
Her Honour then noted at paragraph 25 that in accordance with what the High Court had said in M and M (1988) 166 CLR 69 (at pages 76 to 78) that the resolution of an allegation of sexual abuse was subservient and ancillary to the Court’s determination of what was in the best interests of the child. Her Honour then went on to say at paragraph 25:
..In all but the most extraordinary cases, a finding of sexual abuse will have a decisive impact on the order to be made respecting residence and contact. In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if residence or contact be granted and assess the magnitude of that risk. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of the child, is a fundamental matter to be taken into account in deciding issues of residence and contact. Efforts to define the magnitude of risk which will justify the Court in denying residence or contact have resulted in a variety of formulations. The test is best expressed by saying that the Court will not grant residence or contact to a parent if that residence or contact will expose the child to an unacceptable risk of sexual abuse.
The trial Judge made a positive finding that the child had been sexually abused. As she was unable to determine which of the father or [maternal] grandfather was responsible she found that there was an unacceptable risk of sexual abuse if there was to be unsupervised contact with the father or the maternal grandfather. Her orders required contact to take place between the father and child only under supervision and the mother was to ensure that the child was not left alone with the maternal grandfather.
THE TRIAL JUDGE’S FINDINGS AND CONCLUSIONS
findings about masturbation
Ms B, the child’s carer since January 2003, described the child as having been until March 2004, “like any other normal child of her age”. She said that on 9 March 2004, the child stood in front of her and rubbed her fist on her “private parts”. The child was fully clothed. The child subsequently attempted to rub Ms B’s private parts. Ms B reported that after reprimanding the child and telling her not to do it, the child responded “my daddy do that to me”. Upon being asked what her daddy did the child replied demonstrating with a rubbing notion, “tickles me there”.
Ms B then made a notification to the Department of Child Safety after a consultation with Ms T, the coordinator of the day care centre which the child attended. On 17 March 2004, Ms B witnessed behaviour of the child consistent with masturbation. The following day K was put down for her nap, and Ms B and Ms T observed her from another room. Both observed the child masturbating.
Ms B’s evidence was that at date of trial the masturbatory behaviour had occurred on most days or about four days per week. Her Honour accepted the observations of Ms B and Ms T that the child was masturbating and she was also observed by the mother and the maternal grandmother separately to have been masturbating.
The Child’s Comments
The mother reported that on 9 March 2004, having been informed about the masturbatory behaviour, asked K, “does anyone touch your bottom?”. K had replied affirmatively and when asked “who touches your bottom?”, she replied “Daddy does”. The mother then asked “what does Daddy do when he touches your bottom?”, K said “tickle, tickle, tickle” (using finger motions to tickle).
On the following day, the mother said that when she and K were playing, the mother went to tickle her, K laid back on her leg and said “tickle me here, Mummy” and pointed to her vagina. She was told that no one was allowed to touch her there and then said to her mother, “Daddy does it”.
The third comment reported by the mother was on Friday, 26 March 2004 when the mother was putting her to bed and K continued to try and feel her vaginal area. The mother went out and came back to the room later and saw her lying on top of her doll thrusting her pelvis up and down. She was asked if anyone had shown her how to do that or done it to her before and finally said “Daddy did it”.
Interview with the child by the Department of Child Safety
As a result of notifications, the Department of Child Safety arranged for the child to be interviewed on 15 April 2004, but the child made no disclosures nor demonstrated any sexual acting out during the interview process.
As a result the notification was assessed as “unsubstantiated” for sexual abuse, and specifically “the child did not make any disclosures” and there was “no other information that could indicate that the child was sexually abused by the father”.
The Maternal Grandfather’s Involvement
Her Honour found that on occasions the child had referred to both the maternal grandfather and paternal grandfather as “Daddy”.
Her Honour further found that the child had spent more time with the maternal grandfather than the father since separation. A schedule was tendered showing
that the child had contact with each of the paternal grandfather and maternal grandfather on various occasions between the child’s birth and final separation in September 2003 and on several occasions in each week between the final separation in September 2003 and when the mother moved from the maternal grandparent’s home in June 2004. It is sufficient to record that her Honour found that the maternal grandfather in particular had extensive contact alone with the child since the final separation.
Both the father and the maternal grandfather denied having acted inappropriately towards K. Her Honour commented on the maternal grandfather’s evidence and appeared troubled by some of its features.
In paragraphs 54 and 55 of the reasons for judgment, the trial Judge said:
The maternal grandfather’s evidence, although containing the inconsistencies to which I have already referred, might not have presented to me as odd, were it not for other evidence which he gave, which, against the background evidence which I have described, somewhat startled me. He said that sometimes he would read the child a story at bed time and “K would lie on the bed clothes beside me”, but then made the specific point that afterwards the maternal grandmother “would then put her to bed”.
It seems to me most curious that a man who stated that his “upbringing” dictated against (it seems) close physical or private contact with young female children (again, with the same exceptions to which I have already referred) could then admit to the intimacy of lying with a young female child on her bed. This is particularly odd, because of the point that he made (see above) that he had on occasions put the child to bed in her cot, but not “when she came out of the cot”, as if to distance from himself [sic] from anything to do with the child’s bed.
[her Honour’s emphasis]
Expert Evidence
Dr N, a psychiatrist, provided a report dated 7 September 2004 and gave oral evidence. Dr N was initially engaged for the purposes of undertaking psychiatric evaluation of the parties, but her evidence ultimately extended to an analysis of the child’s presentation as communicated by Ms B. Dr N did not observe nor meet with the child, K.
Her Honour noted the following evidence provided by Dr N in her report dated 7 September 2004 (at paragraph 56):
The behaviour exhibited by K if accurately described would give rise to concern that she has been inappropriately sexualized in my view….
[Her Honour’s emphasis]
And opinion later presented in an addendum letter from Dr N dated 27 September 2004 (Exhibit 1):
The information from Leanne B would in my view add further weight to the possibility that K has been sexually abused…
Her Honour was unable to identify the precise “information” from Ms B referred to by Dr N, but was of the view that Dr N was well-qualified to express an opinion as to whether “the child’s behaviour, as described by Ms B, is likely to be the result of sexual abuse of the child” (at paragraph 61).
The trial Judge summarised Dr N’s oral evidence in the following way (at paragraph 62):
·If Ms B’s evidence as to what she observed on 17 March 2004 is accurate, that would give rise to some concern that the child has been inappropriately sexualized.
·The description of the incident concerning the child with her doll would indicate that the child has at least witnessed sexual activity.
·After sexual abuse, children tend to “act out” fairly quickly.
·The longer the child’s masturbatory conduct goes on, the higher is the index of suspicion that the child has been sexually abused.
·The child’s masturbation now is a “comfort thing”, a “comfort mechanism”, like twirling hair or the comfort of a particular doll, but would be likely to have commenced because of sexual abuse.
[Her Honour’s emphasis]
·The descriptions of the child’s conduct do not leave Dr N in any doubt that the child was masturbating
[Her Honour’s emphasis]
·Concerning exhibit 8 (which is a photocopy of the book by Pam Linke “Pants Aren’t Rude”, subtitle “Responding to Children’s Sexual Development and Behaviour in the Early Childhood Years”, Australian Early Childhood Association Inc, 1997, the booklet given by Ms T to the mother, see at pp 46-47) that she agreed with the indicators of sexualised or eroticised behaviour there described. I will set out only one part:
“…It is sometimes difficult to distinguish from healthy explorative play, but its persistence and inappropriate focus on sex will arouse concern.
Such behaviour includes:
· looking for sexual activities;
· being much more focused on genitals than other children are;
· exposing genitals;
· rubbing their genitals against others or asking to have their genitals rubbed;
· sexual seductiveness;
· sexual aggression towards other children;
· interpretation of close physical contact and touch in a sexual way, ie, trying to turn it into sexual touch;
· excessive masturbation, masturbation with objects and putting objects into the vagina or anus in a sexual way, eg imitating the movements of sexual intercourse”.
·If the child’s conduct in rubbing herself were explicable by worms, thrush, constipation or the like, she would expect to see the rubbing and other conduct at other than sleep time.
·In this case the child’s masturbation has become entrenched as a comfort mechanism for the child, which is unfortunate and inappropriate, and if the child has discovered masturbation as a source of pleasure, it is not surprising that it has become an entrenched comfort mechanism
[Her Honour’s emphasis]
·The child’s description of “tickle, tickle, tickle”, together with the child’s hand movements demonstrating the tickle (which has been described to Dr N) indicates that the abuse perpetrated upon the child was introduced by the concept of “play”.
·It is possible but not probable that that the child has not been sexualized.
[Her Honour’s emphasis]
Her Honour was further assisted by the evidence of Ms L, a social worker and family report writer, who had met with the parties and K on 14 July 2004 in order to prepare a report. Her Honour recorded a particular incident referred to by Ms L in the following way (at paragraph 63 of the reasons for judgment):
At one stage K lay across her father’s arms seemingly emulating the way a parent carries a babe-in-arms. This had the appearance of significantly regressed behaviour but I am not in a position to interpret what was happening for K or whether this reflected their earlier means of relating.
Her Honour noted at paragraph 65 of the reasons for judgment that the mother had said that before the contact on 22 August 2004, after a period of no contact with the father since January 2004, save for the interview with Ms L, K had commented:
...“Daddy won’t hurt me any more will he, Mummy” and on another occasion, when the mother and the child were moving into their new home in June 2004 to the effect “We are safe now, Mummy, Daddy isn’t going to hurt us any more”. As to this Ms L and that in her assessment the child did not have any concept of being “hurt”; or “afraid” of the father but rather Ms L had the general impression that whatever had occurred to the child was a pleasurable experience for her and not a frightening experience. Ms L said of the child’s comments that perhaps an adult person might have conveyed either overtly or inadvertently that the child had not been safe before.
[our emphasis]
Her Honour then noted Ms L’s evidence about how a contact regime should be reintroduced given that the father had virtually no contact with the child, certainly no unsupervised contact, since January 2004.
Conclusions by the trial Judge about sexual abuse based on her findings and expert evidence
Her Honour referred to what she described as (at paragraph 72 of her Honour’s reasons for judgment):
..the three matters referred to by the Full Court in B and B (1993) FLC 92-357 at 79,772, namely (1) that it must be satisfied that the abuse could not have been committed by any other person (other than the alleged perpetrator); (2) the allegations are not based on fabrications; and (3) there is no innocent explanation for the disclosures made.
It is important for the purposes of this appeal, to record precisely what conclusions her Honour reached.
At paragraph 74 her Honour said:
As to the second matter, on all of the evidence, I am satisfied to the requisite degree that the child’s allegations are not based on fabrications. In particular, in this regard I rely on the evidence and opinions of Dr N to which I have already made extensive reference. The child’s particular description of “tickle, tickle, tickle”, together with the child’s hand movements of the tickle demonstrated in evidence (namely, a slow deliberate finger action comprising the fingers curling and then straightening) was the subject of specific reference by Dr N that the abuse perpetrated upon the child was introduced by the concept of “play”. Dr N’s ultimate conclusion that “it is possible but not probable that the child has not been sexualised” was a firmly expressed opinion, based upon Dr N’s wealth of experience in assessing these matters.
[her Honour’s emphasis]
At paragraph 75 her Honour considered whether there was an innocent explanation for the disclosures made, and said:
As to the third matter, I am satisfied to the requisite degree that there is no innocent explanation for the disclosures made by the child. In particular, the combination of the child’s description “tickle, tickle, tickle”, using the finger motions to tickle which I have described, with specific reference to her pointing to her vagina as the area tickled, does not easily admit of innocent explanation and on its face is consistent only with a clear description by the child of a person inappropriately having applied fingers to her vaginal area.
[her Honour’s emphasis]
Her Honour then concluded in paragraph 76:
On the summation of these two matters, I find that it is more likely than not, having regard to the relevant evidentiary tests referred to above that the child has been sexually abused and further, having regard to M and M, that in this particular case I am impelled by the circumstances to make that positive finding in the child’s best interests and so that she may be protected.
[her Honour’s emphasis]
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.
Her Honour then turned to consider whether the child would be exposed to an unacceptable risk of abuse if there were to be unsupervised contact with the father or maternal grandfather. Her Honour concluded that on the appropriate evidentiary test as set out in Briginshaw (supra), unsupervised contact with the father would expose the child to an unacceptable risk of sexual abuse. This she found was for the following reasons:
·Despite the gap in time between the father’s contact in January 2004 and the onset of the child’s behaviour in February/March 2004, according to Dr N’s evidence it “would not necessarily preclude the father being the abuser”;
·Ms L’s evidence about interview with the father and child, and particularly her observations that the child lay in the father’s arms in a particular way which she thought made the child look vulnerable;
·That the father was one of three persons that the child has called “Daddy” and referred to what she described as the various disclosures in which the child has referred to “Daddy”;
·The mother’s evidence in August 2004 she was making arrangements for the first contact to take place for two hours the child had said that she didn’t want to see Daddy, and in particular “Daddy won’t hurt me any more will he Mummy ?”.
Ms L had expressed some reservations as to the relevance of this evidence given that the masturbatory behaviour exhibited by the child seemed to be a source of pleasure and not concern. Further her Honour opined that the relevance of the child’s comment was that the child was being prepared for contact with the father and on that occasion was unlikely to have mistaken that she was being prepared for contact with her grandfathers, or one of them.
For completeness we note that having identified the maternal grandfather as a possible abuser, her Honour correctly noted the procedural difficulties arising from the fact that serious findings might be made against him and he had not been made a party to the proceedings. She therefore indicated that she did not propose to consider whether unsupervised contact with the maternal grandfather would expose the child to an unacceptable risk of sexual abuse. However, she expressed her concerns in relation to what she described as “my duty and function to protect the child”. Her Honour made an interim order ensuring that the child was not left alone with the maternal grandfather and relisted the matter for further submissions.
It appears that neither the maternal grandfather nor the mother objected to that order becoming a final one.
Her Honour then considered the matters in s 68F(2) of the Family Law Act 1975 (Cth). None of her findings impinge upon the crucial findings about unacceptable risk which her Honour had made nor are the subject of the appeal.
Orders
Her Honour, having determined that the child would be exposed to an unacceptable risk of sexual abuse if there was to be unsupervised contact with the father, noted that the father planned to move to Adelaide. In accordance with the views of Ms L as to what contact would be appropriate, her Honour made the orders described in paragraph 5 herein.
Her Honour also ordered that the mother arrange for the child to attend a behavioural psychologist in consultation with the Child Representative. The Child Representative was requested to consult with Dr N as to a suitable behavioural psychologist.
Grounds of Appeal
The following grounds of appeal are set out in the Appellant’s Notice of Appeal in Form 20 filed 21 March 2005:
1.The leaned [sic] Trial Judge erred in that she misdirected herself as to the proper approach to be followed in determining the contact application in this case.
2.The learned Trial Judge erred in that she misdirected herself as to the proper approach to be followed in determining the allegations of sexual abuse in this case.
3.The learned Trial Judge erred in finding that the circumstances of this case impelled her to make a positive finding of sexual abuse having occurred.
4.The learned Trial Judge failed to give any Reasons supporting the finding referred to in paragraph 3 hereof.
5.The learned Trial Judge erred in finding that unsupervised contact by the Father with the child would expose the child to an unacceptable risk of sexual abuse.
In the summary of argument the grounds of appeal were synthesised as follows:
1. The trial Judge wrongly concluded (and failed to give any reasons why) a positive finding of sexual abuse was required.
2. The trial Judge applied incorrect principles in determining whether the child had been sexually abused.
3. It was not open on the evidence or as a matter of logic to conclude that unsupervised contact as between the child and the father would expose the child to an unacceptable risk of sexual abuse in circumstances in which the trial Judge found it impossible to identify the father as the abuser.
4. The trial Judge misdirected herself on the proper approach to determine the contact application, and in particular, diverted from the consideration of the paramount issue being the best interests of the child by the “supposed need to arrive at a definitive conclusion on the allegation of sexual abuse”.
The submissions on behalf of the Child Representative synthesised the grounds of appeal identified by the appellant father into two questions, namely:
(a) 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; and
(b) Whether the trial Judge’s positive findings on those issues were contrary to the weight of the evidence.
It is convenient for us to deal with the grounds under those two headings.
The Child Representative’s Cross Appeal
The Child Representative cross-appealed, and relied on the following grounds:
1. The learned Trial Judge erred in fact or in law in making a positive finding of sexual abuse in the circumstances of this case where:
a)it was not possible to make a further finding as to the identity of the perpetrator of that abuse; and
b)the perpetrator was likely to be in continued contact with the child.
2. The learned Trial Judge erred inasmuch as her Honour failed either to apply the relevant law or explain her reasons for not applying the relevant law when making orders as to who would supervise or otherwise monitor contact between the child and the maternal grandfather.
The orders sought by the Child Representative were:
(1) That
(a) The matter be the [sic] sent back for a new trial; and
(b) In the event that the application is made the maternal grandfather be granted liberty to join as a party to these proceedings.
(2) In the alternative:
(a) That the maternal grandfather’s interactions with the child be at all times monitored by a person who is not a member of the maternal grandfather’s immediate family;
(b) The independent third party be a person nominated by the mother in consultation with the Child Representative, until such time as the Child Representative is discharged, and after that time by the mother alone;
(c) such furtheror [sic] order or other order as this honourable Court deems appropriate.
Did the Trial Judge err in her formulation or application of the law in making a positive finding that sexual abuse had occurred ?
The Trial Judge’s Positive Finding of Sexual Abuse contrary to the weight of the evidence
Her Honour’s finding depended upon the evidence given by Dr N about the observations of the child masturbating, and the child’s comments to the mother. Thus it is important to carefully examine the evidence of Dr N (at transcript page 297 commencing at line 44 with examination in chief by the Child Representative):
---It is within the norm for children of that age to masturbate. The behaviour described by Leanne B, if accurate, I think would give rise to some concern that the child had been inappropriately sexualised.
[our emphasis]
On the 9th and 10th or are you referring then to later behaviour on the 17th? --- I’m sorry, I’ll just have to check that.
Perhaps, Doctor, I can assist you. Ms B’s evidence was that on 9 March she observed the child to be standing and holding herself at this part of her body and that she was seen to be rubbing herself?--- Yes.
Are you able to comment in relation to that behaviour? Then I’ll move onto the next behaviour she describes?--- That specific incident wouldn’t give rise to suspicion in my view.
[our emphasis]
Ms B describes that the father had – that when asked the child replied that “Daddy does it”? --- That would add some weight to suspicion.
[our emphasis]
When the conduct the child was apparently describing was a tickling around the genital and possibly up into the tummy area?--- Yes. That would give rise to concern I think. It’s not of itself indicative that sexual abuse has occurred but I think it would be reasonable to have suspicions.
[our emphasis]
Then Ms B describes the child reached out as if to rub her genital area and she describes the child as approximately a metre away?--- That’s unusual behaviour. Children usually have a sense of boundaries and I think one would be concerned that this child’s boundaries have been breached in some way. But again, it’s not of itself indicative of sexual abuse.
[our emphasis]
The next behaviour that Ms B describes is approximately a week later on 17 March 2004 for the first time when she describes the child using a sheet between her legs. Are you familiar with the description Ms B --- ? --- Yes. Yes, I am.
Can you comment on that? --- That I think is more concerning. It’s unusual for children to attempt to insert – I’m not quite clear from the description whether this was what was happening, but a child this age would not have had a concept of there being a cavity in the vaginal region and I would find it concerning if she were trying to insert anything into her vaginal orifice.
There is other evidence of events not long after that where the child is described as using a doll and lying on its stomach and thrusting into the doll? --- That’s unusual behaviour and would indicate that the child had at least witnessed some inappropriate sexual activity.
[our emphasis]
The evidence of Dr N continued (at transcript page 298 line 42):
Are you able to put a timeframe as to when the child might have witnessed such matters? --- That’s so speculative as not to be of much value but in general, because of limited concentration spans, children would tend to act out fairly quickly after that, I think – after some inappropriate sexualisation.
[our emphasis]
There is evidence before the Court that the child may have seen a photograph of the father both – some time not long before the events on 17 March. Can you comment? --- I think that’s probably too long a bow to draw.
The evidence before the Court is the child has continued to engage in behaviour either touching herself, and pelvic thrusting motions, or engaging in behaviour using sheets and toys. Can you comment?--- The longer it goes on, the more likely it is that she has been abused, I think.
[our emphasis]
We observe that this was the first occasion on which Dr N had suggested the child might have been abused. We observe that her Honour appropriately in our view interjected and asked the question again and received a different answer:
HER HONOUR: Sorry, Dr N, you said “the longer it goes on, the”? --- The higher the index of suspicion that abuse may have occurred.
Dr N’s evidence continued (from transcript page 299 line 12):
MR BURRIDGE: The mother gave evidence that the child was in no doubt of the mother’s view that the child should not engage in that behaviour. What can you say about that? --- From the description it seems as if the behaviour may have been used as a comfort mechanism. Masturbation is often to reduce anxiety or – the reason I say this is because it happens at night as she’s going to sleep and it’s [sic] seems that ---
Yes. On all occasions it’s at sleep time?--- Yes. Yes.
HER HONOUR: Night or nap time in the afternoon?--- Yes. So it’s become a manoeuvre that children – I suppose we’re all aware that children have certain habits. At night they may twirl their hair or have to have a doll. It seems as if this is a comfort mechanism now but still I think that this particular form of behaviour would probably have resulted from inappropriate sexualisation at the outset.
MR BURRIDGE: There’s evidence that the child has been engaging in nail-biting behaviour?--- Yes.
Are you able to comment?--- It’s an indication of anxiety, some sort of stress.
And sleep disturbances associated with periods of contact? --- A lot of children have sleep disturbances when visiting non-abusive parents just because of the stressful nature of the circumstances.
From the descriptions you’ve read of the behaviour, can you – sorry, I withdraw that. Are you familiar with the childhood conduct associated with rocking?--- Yes.
Can you compare that to the descriptions you’ve read of the behaviour – can you talk about it?--- It’s difficult at second remove but the description that I read would indicate that there should perhaps be concern about sexualisation rather than just rocking. The description is of sexual type behaviour.
In our view from the examination of Dr N by the Child Representative, it could not be said on that evidence that Dr N had opined that it was more likely than not that the child had been sexually abused.
Carefully considering the evidence in chief of Dr N, and bearing in mind she had not seen the behaviour herself, we find it difficult to see how her Honour could, at least at this point in the evidence, have reached a conclusion that the evidence established on the balance of probabilities having regard to the test in Briginshaw (supra) that it was more likely than not that the child had been the subject of sexual abuse. We say this particularly in light of the reference in Briginshaw to “inexact proofs, indefinite testimony, or indirect inferences”.
We are further concerned by the apparently interchangeable use of the terminology by Dr N which moves from descriptions of behaviour that she said was indicative of sexual abuse, to whether the child had witnessed some inappropriate sexual activity, or whether there was some inappropriate sexualisation. At no time was there any description of what the inappropriate sexualisation might be or what sexual abuse might have occurred to the child or alternatively what she might have witnessed. These matters were not explored, at least in evidence in chief by the Child Representative.
Following her examination in chief, Dr N was cross-examined by Counsel for the mother. Counsel for the mother directed Dr N’s attention to a book provided to the mother about children’s sexual behaviour and development in the early childhood years, published by Australian Early Childhood Association Incorporated.
Counsel for the mother then asked Dr N about matters described in the book under the heading “sexualised or eroticised behaviour” and asked Dr N if she agreed that this was behaviour (at transcript page 301 line 3):
…that is likely to indicate that a child has been or is being sexually abused. It is not healthy, exploratory, flavoured, persistent and / or inappropriate focus on sex. It is sometimes difficult to distinguish from healthy explorative play but its persistent and inappropriate focus on sex will arouse concern.
Dr N accepted that the masturbatory behaviour described by Ms B indicated that the child was more focused on genitals than other children would be. She also described the frequency as excessive. Dr N agreed that the behaviour was consistent with masturbation with objects and that the behaviour described was that of imitating the movements of sexual intercourse (transcript page 302 ln 18):
- I think what that’s meaning is that if you’ve got certain things that of their own may be indicative of nothing in particular but the more you have that indicates a suggestion of abuse then the greater the suspicion?--- Yes.
At page 305 of the transcript, in response to a question about the child’s behaviour, Dr N answered that (commencing at line 3):
--- I think that the answer to that is that if the child’s movements are such that they caused concern with trained observers, and it involves sexual regions, then there is a probability that it’s inappropriate sexualisation. I’m not sure if I’ve answered your question but ---
Had the child seen or – is it possible that the child has seen or viewed people performing a sexual act?--- It would give rise to suspicion that the child had, yes.
This conduct gives rise to a suspicion that the child has viewed a sexual act?--- Has either viewed or been subjected to.
Dr N gave the following evidence at page 306 of the transcript (commencing at line 1):
That the child has continued to participate in this conduct unabated for a long period of time, could it be that the reason it continues is because the child hasn’t been brought into check or brought to account to limit it?--- My understanding was that the mother had reproved the child and indicated that she didn’t care for it to continue. Normally, what would happen, I think, is that if the behaviour was extinguished – sorry, if one assumes that there is some inappropriate sexualisation occurring to the child and this behaviour stopped, one would anticipate that the behaviour of the child would extinguish over time.
…
Surely there are agencies, counsellors, psychiatrists, psychologists, paediatricians with expertise and who could assist the mother to develop a plan to keep this in check or prevent its continuance?--- It depends on whether or not there is a stimulus which keeps going. But yes, there would be behavioural psychologists who could assist the mother in extinguishing the behaviour.
…
MR HANLON: Other than two occasions reported where the child attempted to reach out to touch another person, either on the tummy or in the groin area, this conduct which is reported occurs at bedtime?--- Yes.
Is it significant that it occurs at a particular time?--- Yes, I think the significance of that is that it has become entrenched as a comfort mechanism for the child. Now, as I said before, it’s quite normal for children to have some ritual that they go through at bedtime which settled them, calms them. I think in this case that’s what this child is doing. It’s an unfortunate mechanism and it’s not an appropriate one but I think that the behaviour has probably become reinforced y [sic] that.
Continuing at transcript page 307 at line 39:
All the evidence presented thus far to you – it’s possible to be viewed as that the child hasn’t been sexualised?--- I suppose it is possible but it’s not probable.
HER HONOUR: That this particular child hadn’t been sexualised?--- Yes, and in my view.
MR HANLON: Your report speaks – last paragraph, the first sentence:
The behaviour exhibited by [K], if accurately described, would give rise to concern that she has been inappropriately sexualised in my view.
Do you still stand by that or have you softened that stance?--- No. I stand by that.
At page 309, her Honour asked Dr N about the father’s contact (commencing at line 34):
.. Since September 2003, the final separation, there were a couple of isolated dates in November and in December where there was contact with the father but the mother was present. In January 2004 there were two only on the mother’s version of evidence – two only overnight contacts. The father says that each of those overnight contacts was two nights, making four, that was unsupervised and it appears that they were roughly 9, 10, 11 January and then 23 to 25 January, be it one or two nights on those occasions. In the middle of January there was a three-hour contact. Then there was no contact between the father and the child from 25 to 26 January 2004 until the interviews in Ms L’s office in July 2004. There’s a time gap there obviously, between the last unsupervised contact with the father late January 2004 and the first manifestation of the concerning conduct, that is 17, 18, 19 March 2004. I know this is in the realm of speculation but would you expect – there has been some other evidence that if a child – it may have even been by you, Dr N – that if a child is going to respond to stimulus by showing inappropriate sexualised behaviour, that that’s more likely to happen fairly quickly rather than after a long period of time. Are you able to make any relevant observations about those time gaps?--- Not really. Nothing is set in concrete. I made that comment about it being more likely to happen quickly because of the child’s limited concentration span that – to some extent it depends on the emotional loading of the incident, what it signified to the child and I really haven’t got enough information to make a comment about that. I couldn’t say that it would preclude the father being the abuser, just the chronology of it.
[our emphasis]
In oral submissions to us on the appeal, Counsel for the appellant began by examining and detailing the evidence as we have described it and submitted to us that (at page 8 line 8):
…[N]owhere in this case has it been said the child has been sexually interfered with or sexually abused. The worst it gets is from Dr N that the child has been inappropriately sexualised. And again, perhaps with the benefit of hindsight, that’s a matter that ought to have been investigated, but it has not been by anyone as to what the doctor meant by that. Whether she meant that the child had on balance or otherwise been interfered with, whether she had observed inappropriate activity between adults, or any other basis on which she drew that conclusion.
Counsel submitted further in oral argument, that use of the term “inappropriate sexualisation” alone was not sufficient to identify by whom it might have occurred, or what the specifics are or what the particulars are.
Discussion
In Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 the Full Court said (at pages 79,217-79,218):
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
We agree with the submission of Counsel for the appellant that on a careful analysis of the evidence it is not possible to say that Dr N opined that it was more likely than not that the child had been sexually abused.
A finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw (supra) and s 140 of the Evidence Act 1995 (Cth).
In WK v SR (1997) FLC 92-787 the Full Court (Baker, Kay & Morgan JJ) said (at page 84,694):
…[T]he grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
We have carefully considered the evidence because it is relevant to her Honour’s finding about unacceptable risk to the child, but at trial, counsel for the Child Representative and the father made concessions to her Honour about making a positive finding that abuse had occurred. The first concession occurred at the end of the evidence when submissions were being made. The following passage of dialogue occurred (transcript page 329 line 11):
HER HONOUR: My concern is this; the evidence fairly overwhelmingly indicates that there has been sexual abuse of this child.
[COUNSEL FOR THE CHILDREN’S REPRESENTATIVE]: Yes. We’ve reached the same conclusion.
HIS HONOUR: It is impossible on the evidence to determine the perpetrator.
[COUNSEL FOR THE CHILDREN’S REPRESENTATIVE]: Yes.
At page 333 of the transcript, Counsel for the father said to her Honour (at line 33):
MR HANLON: And I’ll also adopt the submissions of the children’s representative, your Honour.
HER HONOUR: Yes. What do you say as to whether or not the Brigginshaw [sic] test applies to my determination as to whether or not there’s unacceptable risk of harm to the child?
MR HANLON: My submission is the same as [Counsel for the Children’s Representative]’s in that I say that it does apply, your Honour.
If there was any doubt about the import of the concessions, then all doubt is removed when the matter came back before her Honour. At page 345 of the transcript, Counsel for the mother said (commencing at line 34):
MS CAREW: Your Honour, can I firstly note that it seems to be common ground that it’s more probable than not that this child has been subjected to sexual abuse and that my learned friend, [Counsel for the Father], adopted the submissions of the Child Representative, and the Child Representative’s counsel, and submissions to your Honour seem to ----.
HER HONOUR: Just one moment. It’s common ground that – and what paragraph of the Child Representative’s submissions?
MS CAREW: It was in the – well, I’m referring in that submission to the concession that seemed to be made, or the submission made by the Child Representative in oral submission.
…
HER HONOUR: Yes, that’s what I was thinking of. Just one moment. Just let me note that please, Ms Carew. And, Mr Hanlon, I gather from what you’ve just said that you confirm that you adopt the Child Representative’s submissions in paragraphs 25 and 31?
MR HANLON: I adopted the whole of my learned friend’s submissions, your Honour.
HER HONOUR: Yes.
…
MS CAREW: --- concession that I understood and the reason I raise it – the concession I understood made by my learned friend, Mr Burridge, was that he accepted when your Honour said that it’s more probable than not the child had been sexually abused, and I understood that he said, ‘Yes’. Now, if I’m wrong in that then obviously your Honour would need that clarified, but my understanding was that there was an agreement that it’s more probable than not on the evidence that this child has been sexually abused.
HER HONOUR: Just one moment, Ms Carew. I haven’t noted that down as part of Mr Burridge’s oral submission. Mr Burridge, do you recall whether or not, in your oral submission, you indicated agreement that it is more probable than not that the child has been sexually abused?
MR BURRIDGE: Yes, I did.
HER HONOUR: You did ? Yes, thank you. And you do adopt and make that submission that it is more likely than not that the child has been sexually abused?
MR BURRIDGE: Yes.
HER HONOUR: Thank you, Mr Burridge. I’ll just note that down. And, Mr Hanlon, do you adopt that submission of Mr Burridge’s?
MR HANLON: As I said before, I adopt the submissions of Mr Burridge.
Counsel for the respondent correctly submitted in our view that there was no attempt to formally resile from that position on the appeal. Only in the clearest case and for the most cogent reasons, should parties who have conceded a matter at trial be allowed to make the validity of what’s been conceded the basis for overturning the result of the trial: per Barwick CJ in Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd (1977) 139 CLR 231 at 241.
Thus in our view the first and second arguments raised by the appellant father in written submissions, namely the trial Judge wrongfully concluded a positive finding was required and her Honour applied incorrect principles in determining whether the child had been sexually abused must fail, and we do not need to consider further the arguments advanced by the appellant in support of those grounds. The positive finding of abuse was open to her Honour because of concessions made by the Child Representative and the father’s counsel that it was more likely than not that the child had been sexually abused.
These grounds relied on by the appellant and the Child Representative, relating to her Honour’s finding of sexual abuse by the appellant and the Child Representative cannot succeed.
The trial judge applied incorrect principles in determining whether the child had been sexually abused.
This ground must also fail. That is because of the concessions made by the appellant and the Child Representative to which we have referred.
Before leaving this ground, however we consider it important to record how her Honour directed herself in relation to what she described as “the three matters referred to” in B and B (1993) FLC 92-357 at 79,772.
It is necessary to set out precisely what her Honour said at paragraph 72:
Based on the evidence to which I have already referred, and having regard to the Briginshaw test to which I have already referred, I turn now to consider the three matters referred to by the Full Court in B and B (1993) FLC 92-357 at 79,772, before the Court can make a positive finding of sexual abuse, namely (1) that it must be satisfied that the abuse could not have been committed by any other person (other than the alleged perpetrator); (2) the allegations are not based on fabrications; and (3) there is no innocent explanation for the disclosures made.
[her Honour’s emphasis]
We have some concerns about her Honour’s characterisation of the “three matters” she described as being necessary before a positive finding of abuse could be made.
First, the three matters were not propounded by the Full Court in B and B (supra) but by the trial Judge. The Full Court did not comment on whether this was an appropriate test before a positive finding could be made. The Full Court, when commenting upon the trial Judge’s three headings, under which he considered whether there were explanations for the children’s statements and behaviour other than sexual abuse by the husband, merely said the following (at page 79,777):
His Honour, in our view, dealt with all these matters in a logical and comprehensive fashion.
The three headings used by the trial Judge were not referred to again by the Full Court nor was there any suggestion that such conditions would need to be filled before a positive finding could be made (although they may be logical conditions). We observe that her Honour appears to have misstated the law but may have been lead into doing so by the submissions of Counsel.
Because of the concessions made we do not need to consider what the appellant contended was her Honour’s incorrect application of this test. We observe only that as she could not be satisfied as to the first question, namely the perpetrator of the abuse, a positive finding called for careful reflection.
Finally we observe the importance of Dr N’s evidence in concluding it is possible but not probable that the child has not been sexualised. Given that the evidence indicated that sexualised behaviour could indicate sexual abuse, it is important in our view that Dr N did not say “it is possible but not probable the child has not been sexually abused” [our emphasis].
Dr N’s comment enabled her Honour to find the child had been sexualised and it was open to her to be satisfied to the appropriate standard, having regard to all the evidence. But the question of whether the sexualised behaviour could more likely than not indicate the child actually had been sexually abused, does not appear to have been considered by her Honour. In the end because of the concessions made, her Honour did not have to analyse the evidence to the extent that she might have, had the concessions not been so readily made, and had the evidence of Dr N been more rigorously analysed.
The position that the Child Representative took in relation to the positive finding of sexual abuse made by the trial Judge was that it was not inherently implausible or open to being characterised as contrary to the weight of the evidence.
It is perhaps unsurprising that this position was taken in view of the concessions made by the Child Representative at trial. Nevertheless in oral argument, Counsel for the Child Representative reiterated that in the particular circumstances of this case, it was not prudent to have made a positive finding that the abuse had occurred. That particular submission however can be better examined in light of the cross-appeal of the Child Representative. We should say however that the Child Representative’s Counsel on appeal conceded that the evidence which ultimately lead to her Honour’s finding that sexual abuse had occurred was “necessarily highly speculative”. It is also noteworthy that the respondent mother did not seek a positive finding of abuse by the father (or at all).
did the trial judge err in finding unsupervised contact by the father with the child posed an unacceptable risk of abuse to the child by erring in her formulation or application of the law and by making findings contrary to the weight of the evidence?
The next argument advanced by the appellant father was that it was impossible to identify the father as the abuser. He contended that the trial Judge concluded that unsupervised contact between the child and the father would expose the child to an unacceptable risk of abuse and that logically that conclusion did not follow.
In Re W (Sex Abuse: Standard of Proof) (supra) at page 79,226 the Full Court said:
48. In our view if a trial judge finds it appropriate to make a positive finding that abuse has occurred, that finding needs to particularise, as far as possible, just what that abuse consisted of. Unless such findings are made it is impossible for the alleged perpetrator to challenge the findings or for an appellate Court to properly review the evidence to see if the findings are safe. The failure of the trial Judge to provide such particulars makes his generalised findings that “abuse” has occurred all the more unnecessary and inappropriate in this case.
These comments are equally apposite in this case, however given the concessions it is appropriate that we consider this particular issue in a consideration of this ground.
The mother contends that as a matter of logic, in making the generalised finding of sexual abuse without the capacity to make a finding as to which the persons the child has called “Daddy” is the perpetrator of the sexual abuse, the trial Judge was making a positive finding that on the proper evidentiary test, she was unable to conclude that the father had sexually abused the child. We agree with this proposition.
It is also consistent with the mother’s position in so far as she did not seek a finding that the father had abused the child, but rather that he posed an unacceptable risk if he was to have unsupervised contact.
In summary the father’s argument was that her Honour did not apply the appropriate standard of proof to conclude that there was an unacceptable risk of abuse by the father. Put another way, that her Honour’s finding of unacceptable risk against the father was against the weight of the evidence.
Discussion
The trial Judge found that it was not possible to conclude that the father was the abuser. The maternal grandfather emerged during the hearing as an alternative potential abuser. However the case before her Honour was about the father and whether he posed an unacceptable risk. Whatever preventative measures were put in place to safeguard the child from abuse from other persons, the main task for her Honour was to assess on the evidence whether there was an unacceptable risk posed by the father if he were to have unsupervised contact.
Notwithstanding that her Honour felt that there were two possible abusers, the father and the maternal grandfather, before she could make a finding to the appropriate evidentiary standard that there was an unacceptable risk of abuse by the father, she needed to assess the evidence and see whether it reached the standard required under s 140 of the Evidence Act. This test was whether on the balance of probabilities there would be an unacceptable risk of abuse to K by the father if contact was not supervised.
The circumstantial nature of the evidence and age of the child made it almost impossible for her Honour to particularise the nature and extent of the abuse. This was one of the concerns raised by the Full Court in Re W (Sex Abuse: Standard of Proof) (supra).
There is little doubt that in a case where there are no specific allegations, the opportunity to the accused parent to meet or refute the allegations disappears. However, it must also be remembered that these cases generally are about young children and where there is abuse it occurs without witnesses. Specific allegations are difficult to obtain.
There was only one matter that might have implicated the father prior to separation. This was described by her Honour at paragraph 44 of the reasons for judgment as follows:
The mother also said in her evidence that on an occasion in early 2003 she had arrived home from night shift one morning. Whilst she was making up the child’s cot she noticed the brass side latch had been completely bent over. She was unable to straighten it. She was concerned about the damage as the cot did not belong to her but was on loan from her aunt and had extreme sentimental value. She spoke to the father in relation to the damage, as the cot had been intact the night before. The father had said to her “don’t worry about it” and had tried to brush off the subject. In her oral evidence the mother described the cot and the positioning of the bolt or pin. See exhibit 10. In her evidence in general the mother described the father as a very particular person, very concerned about general household matters, and the like. However, whilst the mother has seen fit to raise this matter, the evidence does not lend itself to the drawing of any necessary or safe inferences.
The father was extensively cross-examined about this issue and had an apparently plausible and innocent explanation. In view of her Honour’s inability to draw any inferences we infer her Honour accepted his evidence. That left opportunity to the father to have abused the child to the few unsupervised periods of contact in January 2004.
This opportunity has to be weighed up against the preponderance of the evidence, which included:
· the evidence of Ms B that until March 2004 the child had “been like any normal child of her age” (paragraph 28 of the reasons for judgment);
· the evidence of Dr N that children tend to “act out” fairly quickly after sexual abuse (paragraph 80 of the reasons for judgment); and
· Dr N’s evidence when asked about the time gap between the father’s contact in January 2004 and the onset of the child’s behaviour in February/March 2004 to the effect that it would “not necessarily preclude the father from being the abuser.”
We observe that in her written report Dr N said that if the behaviour exhibited by K ( the masturbation ) was accurately described it “would give rise to concern that she has been inappropriately sexualised in my view”. She opined that whilst it was unlikely that any further investigation would clarify the situation, she thought that in the circumstances supervision would be appropriate.
Whilst her Honour relied on Dr N’s expertise as she was entitled to do, in concluding that the child had been inappropriately sexualised, she did not appear to place weight on Dr N’s opinion about supervision when coming to her decision. We infer this was because at the time of writing her report, Dr N was unaware that there was anyone other than the father who was the alleged abuser. That changed at trial.
We also observe that the father denied any abuse to the child and denied having touched the child inappropriately in her vaginal area, if such be the allegation. He specifically denied having done so in play or accidentally. Her Honour did not reject his evidence or make adverse findings about his credit, and in all other respects her Honour made favourable findings about the father.
At paragraph 102 her Honour observed that the child had a close relationship with the father. Under the heading ‘The capacity of the parties to provide for the child’s needs, including emotional and intellectual needs’, she considered evidence about the father but concluded (at paragraph 115) that there was no evidence to the effect that the father would not physically care for the child on contact.
As it developed, this was not a case in which the trial Judge had to consider whether to make a positive finding against the father, or to decide whether the evidence against the father being insufficient for a positive finding, led to a conclusion that unsupervised contact with him would pose an acceptable risk. In our view her Honour was not entitled on the evidence to find that there was an unacceptable risk of abuse by the father. The way in which her Honour approached the case meant that the father was either the perpetrator of abuse, or entirely innocent of it. The latter could not logically lead to a finding of unacceptable risk and her Honour did not find the former.
Arguably even if there were two likely perpetrators, if an analysis of the evidence suggested the father was the more likely of the two, then a finding of unacceptable risk could be made, but her Honour did not analyse the evidence in this way nor make such a finding. Indeed, the evidence as we have set it out, does not lead to such a conclusion.
This is consistent with the comments of the Full Court in V & R [2004] FamCA 1081 per Finn, Kay and Holden JJ who considered a similar case in which a trial Judge found the children had been sexually abused but was unable to determine the identity of the perpetrator. In that case the trial Judge refused to make orders for either supervised or unsupervised contact on the basis that contact would pose an unacceptable risk to the children. The Full Court held that the trial Judge had erred in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator. In our view her Honour fell into similar error in this case.
Her Honour had an obligation to even more carefully examine the evidence about the father’s possible role given the circumstantial nature of the evidence leading to the finding that sexual abuse had occurred.
In Napier & Hepburn [2006] FamCA 1316 the Full Court at paragraph 56 said:
The determination of whether or not the evidence discloses the existence of an unacceptable risk has itself been the subject of significant judicial comment. Recent Full Court decisions have cited with approval a passage from the dissenting judgment of Fogarty J in N v S (1996) FLC 92-655 at 82,713 where his Honour said (emphasis added):
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk.
…
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.
…
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.
In a separate judgment in Napier & Hepburn (supra), Warnick J at paragraph 114 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.
In considering the evidence about the father’s potential involvement we do not overlook her Honour’s consideration of the father under the rubric of unacceptable risk which she did at paragraphs 90 to 94 inclusive. But in doing so, we observe the following:
a)At paragraph 91, her Honour suggested that the admission of Counsel for the Father that he was unlikely to have been involved in conduct associated with the abuse was that it did not “give sufficient weight to Dr N’s evidence… 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 from being the abuser” ”.
We do not see that the two statements are inconsistent. One was simply expressed in the positive, “it is unlikely the father was involved” and the other in the negative it “would not necessarily preclude the father”. Both statements in our view in an evidentiary sense to do not lead to a finding that it is more likely than not that the father was the abuser. It may be that her Honour misconstrued the evidence of Dr N, expressed as it was in a double-negative form;
b)Ms L’s evidence that she had been “unnerved” by the child’s demeanour with the father, but we observe her Honour had declined to draw adverse inferences against the father from this evidence; and
c)References to “daddy” rather than “grandad” or “poppy”, contemporaneously with the child’s “disclosures”.
Her Honour noted, we think correctly, that the child had on least one occasion referred to “my daddy”, and at least on another occasion in August 2004 she made reference to “daddy” in the context of being prepared for a visit to her father. But in the end, this appears to be the only evidence to positively link the father with the being the likely abuser. In this case, in particular, this needs to be weighed against all the other evidence, including:
·Dr N’s evidence about the time gap;
·the inability to identify any particular behaviour;
·uncertainty, at least on an analysis of the evidence, that any abuse (rather than sexualisation) had occurred at all;
·the child’s relationship with her father which was in all respects a positive one; and
·the father’s denials.
Her Honour might also have observed that although she refers to the mother’s evidence in which K says “Daddy won’t hurt me anymore, will he mummy”, the evidence did not support the child having been “hurt”. Dr N noted that if the child had said “tickle, tickle, tickle” as her Honour found, that “it might indicate that the hypothetical event was presented to the child as a game”. Ms L said “during my – my assessment there was never any comment about K having been afraid or having been hurt. Indeed, the general impression that I had about what was relayed to me about the behaviour at the day care centre was – was certainly not one – I mean was one of, you know, that this was a pleasurable experience rather than a painful or frightening experience”.
We consider that her Honour did not properly evaluate this evidence in making a finding on the balance of probabilities that the father posed an unacceptable risk of sexual abuse to the child in the event that she has unsupervised contact with him.
We acknowledge that her Honour was encouraged to make a positive finding of abuse by the concessions of all counsel. Nevertheless, upon a rigorous examination of what the evidence amounted to, this was not a case in which a positive finding of abuse enabled the Court to find what kind of abuse had occurred and in what circumstances, and if there were more than one possible perpetrator, to identify him.
Despite the concessions, it was never articulated by her Honour what the nature of the abuse found by her to have occurred was. Such uncertainty and inexactness would necessarily be reflected in a consideration of whether the father did pose an unacceptable risk to the child. Her Honour did not carry out such an analysis. That analysis would have included a consideration of whether, despite the finding that something had occurred to the child by either the father or maternal [grandfather], nevertheless the risk of harm to the child in having contact with the father outweighed the possible benefits to her from having that contact (see B and B (1993) (supra at page 79,778)). Her Honour did not apply that test and in failing to do so, she fell into error.
The father’s appeal must therefore succeed.
Although the appellant seeks orders which will provide for unsupervised contact, in our view, the nature of the error identified requires the matter be reheard. In particular, it may be that without the concessions of Counsel about whether a positive finding of abuse should be made, the Court would not come to such a conclusion. There is, in any event, likely to be further evidence, perhaps contentious, about the child’s demeanour and behaviour in the period since the orders were made, which may throw light on the original findings either in relation to whether a positive finding would be made or the question whether the father poses an unacceptable risk to the child if unsupervised contact was ordered.
The Child Representative’s Appeal
As we have determined that the father’s appeal must succeed, there is no need for us to consider the Child Representative’s cross-appeal. We find it necessary however to make the following comments. The first ground asserted that the trial Judge erred in making a positive finding that sexual abuse occurred where:
(a)it was not possible to make a finding as to identity of the perpetrator, and
(b)the perpetrator was likely to be in continual contact with the child.
This was not the case that was presented by the Child Representative at trial. Indeed the Child Representative supported the concession that her Honour should make a positive finding of sexual abuse. In the circumstances, the ground relied upon is a curious one.
The second ground contends that the trial Judge failed to apply the relevant law or explain her reasons for not doing so in making orders as to who would supervise or otherwise monitor contact between the child and the maternal grandfather.
The maternal grandfather was not a party to the proceedings and her Honour noted the issue of procedural fairness. In the orders that she made at the conclusion of the hearing, she made an order until further order that the mother was to ensure that the child not be left alone with the maternal grandfather and adjourned the matter to 7 March 2005. When the matter came back, apparently without objection from the parties, her Honour made a final order that the mother ensure that the child was not left alone with the maternal grandfather.
On appeal in written submissions, the Child Representative conceded that it was open for the trial Judge to find on the evidence that both the father and maternal grandfather posed an unacceptable risk of harm to the child if contact was unsupervised.
Given that the grandfather is not a party to the proceedings, the cross-appeal is unusual. However, there is no need for us to deal with it, as we propose to allow the appeal and send the matter back for a rehearing. The question of the grandfather’s role, if any, can be pursued by the Child Representative if that is thought to be necessary and appropriate.
Costs
In the event of the appeal being successful, none of the parties sought an order for costs against the other parties and we do not propose to make one.
In the circumstances, there being an error of law, we propose to grant a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth), the appeal having succeeded on a point of law, for the appellant, respondent and the Child Representative (in respect of the appeal) and in relation to the rehearing.
I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 27 April 2007
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