Re W (Sex abuse: standard of proof)
[2004] FamCA 768
•24 August 2004
[2004] FamCA 768
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
Appeal No SA 64 of 2003
Re W (Sex Abuse: Standard of Proof)
REASONS FOR JUDGMENT
CORAM: KAY, HOLDEN & O'RYAN JJ
DATE OF HEARING: 22 June 2004
DATE OF JUDGMENT: 24 August 2004
CORAM: Kay, Holden & O'Ryan JJ
DATE OF HEARING: 22 June 2004
DATE OF JUDGMENT: 24 August 2004
Catchwords: APPEAL - CHILD ABUSE - Sexual abuse - Need for trial Judge to be satisfied on strict application of Briginshaw test that abuse has occurred - WK v SR (1997) FLC 92-787 applied - Positive finding as made at trial not open on the evidence - Need for trial Judge to particularise abuse where positive finding made - Danger of relying on expert evidence as to the ultimate issue where expert has not examined parties or child in question - Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 referred to - Matter remitted to arrange for supervised contact.
The appellant is the father of two children B born January 1994 and G born November 1997. This is his appeal against orders made by Nicholson CJ on 19 November 2003 that he be prohibited from having any contact with them.
The Chief Justice found that it was probable that the appellant had sexually abused his daughter. He concluded that G could not be adequately protected in any form of unsupervised contact and the potential detrimental effects of her having contact under supervision outweighed any benefit that she might receive from such supervised contact. It was his Honour’s view that allowing contact to B alone would also be detrimental to both children.
The appeal before us has concentrated on only two issues, namely
· Whether, no matter what the finding of the Chief Justice, his conclusion that the proposals for supervised contact in this case were more detrimental to the welfare of the children than no contact at all ought not reasonably have been open to him, and;
· the positive finding that the father had abused G was unsound and ought not have been made.
It is appropriate to note that his Honour, without making any findings of particular behaviour on behalf of the father, spoke in generalities of the abuse having commenced to occur in the second half of 2001 and possibly to have continued until early 2003. G would have been less than four at the second half of 2001 and a little over five at the commencement of 2003. During the same period B's age ranged from seven and a half through to nine years of age.
The evidence in relation to sexual abuse was summarised by his Honour as follows (emphasis added):
“27.I now turn to the evidence in relation to sexual abuse. That evidence firstly consists of that of the wife and the maternal grandmother and grandfather as to the responses and behaviour that they observed in relation to the children and the disclosures made to them. Secondly it involves the disclosures made to Ms C and Senior Constable B as to their interviews with the children. Next there is evidence from Dr L who is a general practitioner, of an interview with the child and her medical history and from Dr H, a paediatrician, as to her observations on examination of the child. Finally there is the evidence of Dr A, the Court appointed expert, together with that of the psychologist Mr P. There is also evidence of the child G’s school teacher as to behaviour change in the latter part of 2002.
28.On the husband’s side, there is his evidence denying that any abuse occurred and the evidence of a teacher as to the “withdrawal” by G of her allegations.”
Some appellate principles
Before analysing the evidence and the conclusions reached by his Honour we think it is appropriate that some relevant appellate principles be outlined. It is also convenient to outline what we think ought to have been the proper approach that the Chief Justice should have taken in these proceedings.
The Family Court of Australia is entirely the creature of statute. Its appellate powers are to be found within the confines of the Family Law Act 1975 (Cth). An appeal from a judge sitting at first instance is governed by the provisions of s 94, in particular s 94(2) that provides:
"Upon such an appeal, the Full Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re-hearing, on such terms and conditions, if any, as it considers appropriate."
The Full Court also has the power to receive further evidence upon questions of fact. (See s 93A(2)). No such evidence was sought to be led in this appeal.
The nature of such a statutory appeal and the role of an intermediate appellate court has been the subject of several recent decisions of the High Court of Australia. They purport to clarify some of the apparent confusion as to precisely what that role is. These decisions have been drawn together most recently in the decision of Fox v Percy (2003) 197 ALR 201. In their joint judgment Gleeson CJ, Gummow and Kirby JJ said at 206-208, 210 (emphasis added, citations omitted):
“20. Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd. Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under a statutory power to do so; and (iv) an appeal by way of a hearing de novo. There are different meanings to be attached to the word 'rehearing'. The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz.
…
23.The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
…
25. Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'. In Warren v Coombes, the majority of this Court reiterated the rule that:
'[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.'
…
26.After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission, and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
…
31.Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical."
Then per Callinan J at 239:
148.…A test of 'glaring improbability', 'incontrovertible error' or 'palpable misuse of an advantage' is not what the Act requires or all relevant previous decisions hold. Such a test pays, I am inclined to think, altogether too much deference to a trial judge's view of the facts and advantages, both actual and supposed. This is not to deny, however, that deference should be paid to first instance findings of credit. It is simply to prefer a test of wrongness, and to be guided by, rather than bound by findings on credit, or on the basis of demeanour."
Applying those principles to the present case, whilst we are conscious of the advantage that the trial Judge may have had in areas where questions of credit arose, it seems to us that the only real credit question in this case was whether or not it was safe to reject the husband's sworn denials. We shall seek to explain shortly why issues of credit do not otherwise arise. In particular, no challenge was made to the findings of credit relating to the adult witnesses. In so far as credit issues relate to the children, they were not witnesses in the strict sense of the word although ultimately it was the story at least of G that was crucial to the outcome of the proceedings.
His Honour dealt with issues of the husband's credit in a passage as follows:
“137.Against this there is the evidence of the husband strongly denying that he had acted in this way. There was nothing specific about his evidence or the way that he gave his evidence from which I could draw a negative inference against him except his attempt to suggest that the wife had inculcated the children for malicious purposes associated with her [interstate] move... It may be that this was nothing more than a desperate attempt to explain away what on the face of them appeared to be damning allegations by G.
138.The husband’s credibility was not further assisted by his attempt through his Counsel to suggest that B may have been the real perpetrator of these assaults. I regard this suggestion as fanciful and as doing little credit to the husband’s case. I pointed this out to Counsel for the husband at the time the allegation was first made but it was strongly persisted with.
139.Finally however, so far as the husband’s case is concerned, it is obviously significant that he conceded through his Counsel in final addresses that it was inevitable that I would find that there was an unacceptable risk of his having unsupervised contact with the children.”
For reasons which will become apparent the palpable advantage of the trial Judge in seeing the witness does not appear to be the basis upon which the Chief Justice declined to accept the husband's version of events. The reasons that his Honour sought to reject it are explained by him and we shall, in due course, endeavour to indicate why it is apparent that those reasons themselves are unsound.
Some principles applicable to sex abuse allegations
As indicated above we believe it helpful to now briefly examine the principles applicable in cases involving difficult questions of sexual abuse where the only witnesses to the alleged abuse are the alleged perpetrator and the alleged victim. This is particularly difficult where the victim is of tender years and does not give any direct testimony that can be the subject of forensic testing.
In M and M (1988) FLC 91-979; (1988) 12 Fam LR 606 and B and B (1988) FLC 91-978; (1988) 12 Fam LR 612 the High Court considered the circumstances in which a trial judge should make a finding of sexual abuse when considering children's issues under Part VII of the Family Law Act. The Court, at FLC p. 77,080-77,081, Fam LR p. 610-611 said (citations omitted):
"But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds ; McKee v McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the best interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf J v Lieschke .
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw. There Dixon J said:
'The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ''reasonable satisfaction'' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.'
His Honour's comments have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw , that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.''
In WK v SR (1997) FLC 92-787; 22 Fam LR 592 the Full Court (Baker, Kay and Morgan JJ) examined the application of the principles set out in M and M to a situation where the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said at FLC at 84,691, 84,694-84,695; Fam LR at 599, 602-603:
"26.However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court's duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995(Cth), her evidence needed to be very carefully evaluated.
…
46. It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:
'140 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.'
47. In children's matters under Part VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the 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.
48. This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred."
Although this case was argued that irrespective of the finding of sexual abuse there should have been supervised contact, given his Honour’s refusal to allow any supervised contact was clearly dependent upon his positive finding of sexual abuse, if that finding is unsafe then in our view we have no other option but to remit the question of supervised contact back to a Judge at first instance. This approach was appropriately conceded by counsel on behalf of the mother and the child representative.
The trial Judge’s exposition of the law
The Chief Justice summarised the law as to abuse allegations as follows:
"121.As part of the exercise of determining what orders should be made, the Court must examine the nature of the allegations of child abuse and the evidence supporting those allegations. As was observed by the Full Court in B v B (1988) FLC 91-957, it is not the role of trial Judges in the Family Court to hear such cases as criminal trials designed to establish the guilt or innocence of a party and it would be entirely inappropriate to proceed on the basis that contact is the reward for an acquittal and the punishment for a conviction. At 76,923 Baker and Maxwell JJ made the following observation:
'In the course of the hearing of a custody or access application, the court may make one of the following findings in relation to an allegation of child abuse:
(a)That the allegation is proved; or
(b)The allegation is not proved; or
(c)There is insufficient evidence to determine either (a) or (b).
Any such finding, however, may not necessarily be the determinant factor in the ultimate decision.
The issue for the court, in our view, is not whether a parent has sexually abused a child but whether in all the circumstances of the case access [now termed contact] should or should not take place, following a consideration and evaluation of the various matters referred to in s.64(1) [now s. 68F(2)], including any findings in relation to child sexual abuse, with the overriding principle being the paramountcy of the welfare of the child.”
122.The approach of the Court in considering cases involving allegations of sexual abuse was considered by the High Court of Australia in M v. M (1988) 166 CLR 69 where, in a unanimous judgment, it was said at 76:
'The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue. ...
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.' (emphasis added)
123.Their Honours appreciated however that a positive finding may be made saying, at 77:
'No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order regarding respecting custody and access'. (emphasis added)
124.In the course of its judgment (at 76-7), the High Court indicated the approach that a judge should take when considering an allegation of sexual abuse, namely:
'In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with regard to the factors mentioned in Briginshaw and Briginshaw [(1938) 60 CLR 336 at p.362]. There Dixon, J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences".'
125.In B v. B (1993) FLC 92-357 the Full Court of the Family Court referred to the authoritative test enunciated by the High Court in M v. M (1988) 166 CLR 69 at 78 whereby a Court 'will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse'. The Full Court went on to say:
'The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the child in having access with a parent outweighs the possible benefits to them from that access.' (p.79,778).
126.The difficulties associated with determining an unacceptable risk were considered by the Full Court in N and S and the Separate Representative (1996) FLC 92-655. Kay and Hilton JJ (Fogarty J dissenting) there upheld the decision of the trial Judge who on the evidence before him had decided that the allegations relating to sexual interference of the child by the father had not been made out and that there was no unacceptable risk of sexual abuse to be found. Their Honours appeared to approach the matter on the basis that it was a discretionary judgment and that the trial Judge made findings open to him on the evidence.
127.In his dissenting judgment, Fogarty J analysed in detail the meaning and application of the term unacceptable risk. His Honour considered a number of cases in which efforts had been made to define the term with greater precision and concluded that:
'There is a limit beyond which it can be of no use to endeavour to devise a precise expression to encapsulate a judgment which will ultimately depend on a great many factors. However, what can be asserted with confidence is that the welfare of the child requires that the term be carefully construed ...
The term “unacceptable risk” itself may be read as conveying the notion that a genuine risk is capable of being viewed as “acceptable”. That could not be so ....'
128.At 82,714, Fogarty J went on to consider appropriate questions for consideration as follows:
'In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?'”
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.
The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
Kay J said in his dissenting judgment in K v B (1994) FLC 92-478 at 80, 972; 17 Fam LR 722 at 748-749:
“In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.
In an article entitled 'Prediction, Prevention and Clinical Expertise in Child Custody Cases In Which Allegations of Child Sexual Abuse Have Been Made', appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
'Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well,... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.'
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place. The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (ie objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.”
The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.
The evidence of abuse
What then was the evidence from which the trial Judge was able to conclude that this father had sexually abused his daughter? An analysis of that evidence takes up much of the trial Judge's reasons for judgment. In order for us to reach a conclusion as to the soundness or otherwise of the Chief Justice's findings it is necessary that we detail much of that evidence.
His Honour turned first to the evidence of the maternal grandmother GM. He said of her evidence that:
"133.She displayed nothing more than the attitude one would expect of a concerned grandmother. Her evidence was supported by that of her husband."
His Honour's description of her evidence (paraphrased) was :
“30.She noticed changes in both children [in 2001] following separation in that they became withdrawn and unable to discuss their time with their father and both seemed more clingy with their mother. She also noticed that G became unsettled with her grandfather and with male visitors and began to suffer bedwetting. She described an episode with the family dog when G displayed overtly sexualized behaviour. When she did this her grandfather said, 'where did she learn that sort of thing?' and B explained that she may have seen it in cartoons or somewhere else. He showed signs of great embarrassment.
31.She also described an incident where, after putting the children to bed, she heard G calling out and found B lying on top of her.
32.It appears that she together with the wife also called on the husband at home when he had the children with him and found that he was having a bath with G. This was during the daytime and caused her some concern. She raised these concerns with the wife who dismissed them at the time. …
33.The wife agreed that she had at first discounted her mother’s concerns because she considered that the husband had always been a good father and loved the children and that they loved him.
The wife
34.In February 2002, the wife said that she came into the house and observed B lying face to face on top of G rubbing himself up and down on her as she lay in a beanbag. The wife said, 'You don’t do that. Why are you doing that?' to which B replied, 'Dad does it.' He also said, 'Dad did it to G when she was asleep.'
34.As a result the wife telephoned the Sexual Assault Support Service and eventually spoke to Ms C and received advice from her. In the meantime she telephoned the husband and she said that she confronted him about the matter. He denied that anything untoward had occurred. It appears that he then came to the wife’s house and spoke to B and asked him what had happened and that B told him that it was a lie that he told because he was in trouble himself. Both the husband and B were crying at the time.
35.The wife did however take the children to see Ms C subsequent to this event during the course of which B told her, 'Dad rubbed himself against G, I saw the bed moving.'
…
43.…during 3rd Term of 2002, G’s teacher noted that G was beginning to show considerable signs of separation anxiety when she was separated from the wife…
44.…late in 2002 [according to the wife] G became progressively more difficult to persuade to go to bed or to sleep. She said that by Christmas 2002 B had begun exposing himself to other children.
46.[On Sunday 16 February 2003] the wife put G to bed after she returned from contact and G then went to sleep. However at about 11pm she woke up crying and would not stop.
47.The wife took her into the lounge room where G said in answer to a question as to whether daddy had growled at her, 'Daddy touches my bottom when I am asleep at night – I told Daddy no and he didn’t listen.' The wife asked if this happened in the 'big' holidays and she said 'Yes.'
Ms C
38.[On 27 February 2002] she interviewed [the children] alone… G did not respond at all during the interview but that B told her that he saw 'Dad rub his rude bit against G.' B told her that he did not know if G was awake at the time but said that he saw the bed moving. B also said that 'Dad had his pyjamas on.' She noted that B appeared embarrassed and that G appeared not to listen to what was being said but just continued playing."
The wife [again] took the children to see Ms C on Wednesday 19 February 2003. His Honour said:
"50.Ms C…first saw the wife and her mother privately while the children played in the sand pit…Ms C [then] interviewed the children.
51.Her evidence as to the interview was as follows:
'I asked G if she would tell me why she was crying and upset on Sunday night and G showed me by her body language and facial expression that she was embarrassed and she said, 'when Ise asleep Dad touched my rude part with his hand.' G stated he put his fingers inside. I asked if it hurt and she said, 'Yes it does hurt.' I then asked did he touch you with any other part of him?' and G indicated to her genital area and said, 'He put his rude bit down there.' I said to G, 'Do you touch any part of Dad?' and G became more embarrassed and she said something which sounded like, 'touched his rude bit with my hand.'
Because of G’s high degree of embarrassment I didn’t clarify that. I asked G if she was touched anywhere else she did not like and she said, 'Dad puts his rude bit on my head and in my mouth' I asked what that felt like and G said, 'Yuk.' She said it hurt but she did not cry. B interrupted several times when I was talking with G and he said a few times that she doesn’t know because she is asleep.' B appeared anxious about what G was saying. I asked B if he had seen any of the things that G was saying and he said he hadn’t but G had told him. G said that Dad said to keep it a secret.'
52.Ms C said that on this occasion she spent approximately three quarters of an hour with the children."
The police
Ms C drew the matter to the attention of the Police.
"56.The police interview with the child was considerably delayed and was not conducted until 21 March 2003 when B and G were interviewed by Detective Constable B and a departmental official…The videotape of this interview was in evidence….
58.[Detective Constable B ]… interviewed both children together. She conceded that this was not ideal but she said that she felt that it was necessary because B provided considerable support for G. It is noticable when viewing the interview that B took a major part in answering many questions.
59.G repeated to Detective Constable B that 'Her Dad rubbed himself against her and touched her bare bottom.' She said 'and sometimes he puts his rudey (?) willie (?) in my mouth.
60.It is important to note that G volunteered this last information without any specific question from Detective Constable B. She was asked by Detective Constable B how many times Dad had rubbed himself against her and she answered 'a thousand'. B then said 'not a thousand, she doesn’t know how many.' She was then asked 'his willie, how many times has he done that?' The answer was 'Umm ten times.' Question, 'Daddy didn’t make you scared did he? Did he say not to tell anyone?' Answer, 'I said to stop but he didn’t.'"
We interpose in this recitation of his Honour’s findings our observation that in the course of the videotaped interview B twice said that he had seen none of the behaviour that his sister was complaining about. He also said that his father had never behaved inappropriately towards him. The following are relevant extracts of what was said at the interview (B’s relevant answers emphasised):
"DC B:Alright. So I’m just writing this down. You sleep in your own beds? Alright B, can you tell me what you’ve seen then between daddy and your sister?
B:Nothing.
DC B:At all?
B:Nup.
DC B:Ok. You did say something before that I forgot to write down. Can you help me again with what you said?
B:Ummm.
DC B:You said something daddy did something to G and I forgot to write it down.
B:Rubs against us.
DC B:Rubs against us.
B:That’s what G said.
DC B:Did you see that one?
B:Nup.
…
DC B:Alright, so G, your brother told me about something that happened with dad, about dad rubbing himself against you.
G:Mmmm. He touches my bottom.
DC B:Does he? And you’ve got a bare bottom?
G:Bare bottom.
B:Yeah, she’s got a top on but her bare bottom.
G:And sometimes he puts his willy in my mouth.
DC B:Does he?
G:Yeah (indistinct)
DC B:Why does he do that I wonder?
G:Umm. I don’t know.
DC B:Have you ever seen that one B?
B:Nup.
DC B:Nup. Is this what G’s told you has she?
B:Yep.
DC B:So she tells you all her secrets does she?
B:No, we were like at Ms C’s and umm and she told Ms C and I…
DC B:Well B, you’re told me some good things that I’ve written down. Is there anything else you think you could tell me about dad?
B:Hmmm. Nothing.
DC B:Yeah. You think of all the things you might have seen or your sister might have told you and I can write them down. Or things that might have happened to you cos I like to know those things as well.
B:Nup. Nothing’s happened to me.”
Nicholson CJ next turned to detail his findings as to the evidence given by two doctors.
“Dr L
61.Dr L was the family general practitioner. … The wife took G to her on 19 February 2003 seeking a referral letter to Dr H. She told Dr L that there were allegations of sexual abuse by G’s father. Mention was made of the interview with Ms C and G repeated to Dr L that 'Daddy sometimes touches my bottom.' Dr L conducted no examination... .
Dr H
62.H obtained a history primarily from the wife and asked no specific questions of G. She was subsequently examined by Dr H at the Colposcopy Clinic at [the Hospital]. She noted that the child was extremely difficult to examine and the examination was limited to the essentials. She noted that the genital tissues were somewhat tight and non elastic. She thought that this was normal for a child of this age but that it was also indicative that vaginal penetration was unlikely to have occurred. She noticed nothing abnormal about the hymen but was unable to get the child to relax sufficiently to fully assess this area. She said in her report 'If digital penetration had occurred I would have expected to see evidence of previous hymenal damage and I could not confidently say that that was present.'
63.She said that it was unlikely that there would be any physical signs of oral penetration and for this reason she made no examination in that regard.”
In summary the direct evidence of the father behaving in an inappropriate sexual manner towards G consisted of
· B telling his mother in February 2002 that “dad rubbed himself on G when she was asleep"
· B saying in the presence of Ms C and the wife again in February 2002 that “Dad rubbed himself against G, I saw the bed moving.”
· B telling Ms C in February 2002 that he saw “Dad rub his rude bit against G.”
· G telling her mother in February 2003 “Daddy touches my bottom when I am asleep at night – I told Daddy no and he didn’t listen.”
· G telling Ms C in February 2003, “when Ise asleep Dad touched my rude part with his hand…he put his fingers inside…it hurt …pointing to her genital area she said “He put his rude bit down there.” … she said something which sounded like, “touched his rude bit with my hand.”…“Dad puts his rude bit on my head and in my mouth…it felt like “Yuk”…it hurt but she did not cry.
· G telling Dr L in February 2003 that “Daddy sometimes touches my bottom.”
· G telling Detective Constable B “Her Dad rubbed himself against her and touched her bare bottom…and sometimes he puts his rudey (?) willie (?) in my mouth…he had rubbed himself against her “a thousand times…“Umm ten times.”
In addition there were the observations of the grandparents, the wife and the school teacher that the G was unsettled and clingy. There were episodes of bed-wetting. There were also observations of what might be interpreted as sexualised behaviour by both children.
The evidence to contradict these assertions came from
the husband who consistently denied any wrong doing,
B who said to Ms C and in the police interview that he had never seen his father do anything
Dr H who found that the "genital tissues were somewhat tight and non elastic…this was …indicative that vaginal penetration was unlikely to have occurred. She noticed nothing abnormal about the hymen."
Retractions made by G and B as discussed below.
Expert Evidence
In addition to this direct evidence, his Honour heard from two expert witnesses who had been asked to give their opinions about certain matters outlined below.
Dr A
Dr A, a psychiatrist was appointed by the trial Judge as a Court expert to enquire into and report on the following matters:
(a) The nature and quality of the investigation into the allegations of child sexual abuse made in this case;
(b) Whether and if so, in what ways (if any) the process of investigation may have affected the integrity of the information obtained through the investigation process;
(c) Any consequences for the children arising from (a) and (b).
His Honour described Dr A as “a highly experienced child psychiatrist with a particular expertise in the area of child sexual abuse.”
His Honour said of Dr A’s evidence:
“87.As to Ms C’s evidence, he commented that during her initial interview in 2002 she seemed to have taken a careful history from the wife…
88.As to the 2003 interview, he thought that the interview had been conducted in a skilled and age appropriate manner that enabled G to volunteer information that she had not done in the previous interview…
89.He noted that there were a number of features about the police interview that gave rise to some concern."
His Honour then made findings about other aspects of Dr A’s evidence that seem to go well outside of his terms of reference:
“94.Importantly he also thought that despite the short comings of the interview, it was to be noted that G had volunteered the initial fact that the husband had put his penis in her mouth and that she differentiated the frequency of events that involved rubbing from oral penetration.
95.Overall he thought that the information disclosed by the interviews gave grounds for serious concern that the husband has in fact sexually abused his daughter and that this abuse may well have included digital penetration of her vagina and penile penetration of her mouth.
96. Dr A continued:
'There are grave consequences for the children regardless of the conclusions reach by the court about these allegations. Exposing the children to an abusive father is damaging as is denial of contact with a non abusive father. Therefore, it is important that the court have before it the best available evidence to assist it in its determinations. While I have made some criticisms of the procedures followed, it is my view that on the balance of probabilities there is sufficient evidence to have significant concerns that [the father] has sexually abused his daughter. There is no evidence of abuse of his son.'
97.Dr A later conceded that if there was evidence that the son had witnessed the abuse of his sister, that would also be abusive of the boy.
98.He noted that time had not permitted him to interview the children. He also thought it inappropriate to expose G to further investigative or disclosure interviews.
…
101.It was put to him in cross examination by Mr R that it was equally as likely that the abuse alleged by G did not occur as did occur. Dr A answered:
'No I wouldn’t have written my report the way I did if I believed it was equally likely. I would have then stated that I didn’t feel that on the balance of the probabilities that abuse had occurred whereas my view (is) that on the balance of probabilities, abuse did occur.'
…
103.He also laid stress upon the fact that the allegation of fellatio was unsolicited and emerged spontaneously from G. He also thought that the way that information had emerged from the children gave credibility to it and that there was no evidence that they had been tutored in any way.
…
106.He described oral penile penetration as one of the most serious forms of abuse that could occur falling short of life threatening behaviour and he thought that it was probable that it had occurred in this case.
107.He was cross examined quite extensively by Mr R as to the possibility that B had been the perpetrator of the abuse rather than his father. He considered that that was possible but thought it unlikely in that G had never referred to B as the perpetrator but only her father."
His Honour’s eventual reliance on Dr A’s assessment of whether sex abuse had probably occurred is particularly troublesome. As indicated above, these comments seem to be well outside his terms of reference which were to comment on the process rather than the outcome. There was nothing in Dr A’s evidence nor the Chief Justice’s treatment of it that would indicate whether Dr A was approaching his assessment of probability with a Briginshaw test in mind.
In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O’Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 “…there are grave dangers in reliance upon expert evidence given in such circumstances.”
Whilst much of their Honours’ rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
For the reasons set out above we are of the view that Dr A’s evidence concerning the probabilities of something untoward having occurred should have been given very little weight.
Finally his Honour recalled the evidence of Mr P. Mr P’s evidence related to the children’s wishes and not directly to the issue as to whether anything untoward had happened between father and child. However the strength of their wishes to be with their father ought, in our view, have at least been a further indicator that there were serious questions as to whether the father had ever behaved inappropriately towards them. His Honour said:
“With my leave, a psychologist, Mr P, conducted an interview with the children for the following purpose:
(a)To ascertain their wishes as to contact with:
(i)Their father;
(ii)Their paternal grandmother;
(b) To obtain evidence of their reaction to the proposition that they have no further contact with:
(i)their father;
(ii)their paternal grandmother.
The children were brought to the interview with Mr P by the wife. After preliminaries B was interviewed on his own followed by G on her own and then B again and finally the two children with the wife.
Mr P said that B showed some initial hesitation about discussing his father. He said that he felt okay about not seeing him but missed playing with him. He had happy thoughts about his father and would be happy if he saw him. He showed no interest however in seeing his paternal grandmother.
G seemed to Mr P to be a happy child who easily responded to verbal interaction. When not seeing her father was discussed she said 'Bad. I want to see Daddy.' The impression that she gave to Mr P was that she missed her father rather than ruminating or worrying about him. She again re-iterated her desire to see him when asked what she would want if she had three wishes.
Mr P’s conclusion in his report was:
'If the children were not to see their father, especially given their ages, they may connect the lack of contact with their disclosures and feel guilty that they had made any disclosures and feel responsible for not seeing him.'"
The treatment of father’s evidence
His Honour dealt with the father’s evidence and made findings as to his credit in the following passages (emphasis added):
"64.The husband filed affidavits denying he had sexually assaulted or abused either child. He was also interviewed by Detective Constable B who confirmed that he had similarly denied the allegations when questioned by her. She indicated that the police did not propose to bring criminal proceedings against the husband.
65.The husband agreed that sometimes G was clingy when she came on contact visits and reluctant to leave her mother but he said that B was not. He said that he could not recall GM or the wife coming home to find him in the bath with G although he admitted that during the marriage he did have baths with both G and B.
66.As to the events of early 2002, he said that the wife did not tell him all that had happened but said that there was something funny going on with B and G. As a result he believed that the wife was accusing him of sexually assaulting G.
67.He was unclear about what had happened and decided he needed to go and speak with B and the wife to find out what had been said.
68.He said he went to the wife’s house and spoke to B who was sitting on the lounge crying. He said that he asked B what had happened and waited to let him tell him what had happened. He said B said that it was a lie and he had never said that. The husband said he asked him what he meant and B said he knew he was in trouble so he told a lie. He said that B became even more upset as did he.
69.He specifically denied all of the allegations relating to touching G’s bottom, exposing his penis to her or touching her head with it or putting his penis in her mouth or having touched her vagina with his finger.
70.In his affidavit of 16 April, the husband, after denying the allegations against him said
'However I believe that the mother may have other motives for making these allegations against me. The mother for some time has been wanting to take B and G [interstate] to live. The mother has a new boyfriend there and has told me on at least two occasions that she intends to move there. I can recall one occasion was just after we had the consent orders drawn up about my contact with the children.'
71.He said that following the mother’s return from [an interstate trip] in early February 2003 she began to pressure him about a property settlement. These allegations were also put to the wife in cross examination but as I have said, they were not persisted with during the course of final addresses.
…
137… there is the evidence of the husband strongly denying that he had acted in this way. There was nothing specific about his evidence or the way that he gave his evidence from which I could draw a negative inference against him except his attempt to suggest that the wife had inculcated the children for malicious purposes associated with her [interstate] move. It may be that this was nothing more than a desperate attempt to explain away what on the face of them appeared to be damning allegations by G.
138.The husband’s credibility was not further assisted by his attempt through his Counsel to suggest that B may have been the real perpetrator of these assaults. I regard this suggestion as fanciful and as doing little credit to the husband’s case. I pointed this out to Counsel for the husband at the time the allegation was first made but it was strongly persisted with.
139.Finally however, so far as the husband’s case is concerned, it is obviously significant that he conceded through his Counsel in final addresses that it was inevitable that I would find that there was an unacceptable risk of his having unsupervised contact with the children."
We find his Honour’s reliance on each of these three reasons for rejecting the husband’s unshaken denials unsound. His initial attempt to blame the wife for fabricating the story or somehow influencing the children to make it up is entirely consistent with his being innocent of any improper conduct.
His move to a position of suggesting that B might be the perpetrator is equally understandable. As set out above both the maternal grandmother and the wife gave evidence of catching B acting in what they thought to be in a sexually inappropriate way towards his sister. It was understandable for the husband to say effectively the “I know I did nothing wrong. If there is any substance in G’s complaint the perpetrator might be her brother.”
The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of “unacceptable risk” had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact “would expose the child to an unacceptable risk of sexual abuse”. An acceptance of the husband’s unshaken denials would leave the child’s disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
Given that his Honour’s reasons for rejecting the husband’s evidence were unsound, in our view for that reason alone his positive findings of abuse are unsound.
In any event those findings are hard to identify with precision. We are not told what it was that his Honour was satisfied the father did to G. We are not told when it happened, where it happened or how many times it happened. The findings seem to be in the following passages
"140It is important to note that if the disclosures by G in 2003 stood alone, that would be strong evidence that serious abuse had occurred.
141However, they do not stand alone. There emerges from the evidence a strong suggestion that abuse began to occur in the second half of 2001 and may well have continued from then until early 2003. I am certainly prepared to infer that the husband had commenced abusing G, at least as described by B, in early 2002
142One would have thought that following the disclosures by B in early 2002 the husband would have ceased his abuse. However, by late 2002 both children were displaying behavioural signs suggestive that something was deeply troubling them and given G’s subsequent disclosures, I have little doubt that if the abuse did cease for a period after February 2002 it resumed in the second half of that year and into 2003.
…
147I find no difficulty about making [a positive finding of abuse having occurred] in this case. I have already referred to the fact of cogent and believable disclosures being made by G to independent witnesses, as well as to the mother.
148.This is corroborated by the 2002 disclosure by B to Ms C and the observations of sexualised behaviour by both children. In addition there is the evidence indicating emotional and behavioural difficulties by the children at relevant times."
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.
The withdrawals
There were three occasions when the children withdrew their allegations:
· Early in 2002 the wife found B rubbing himself on G. He said he was mimicking his father. The wife confronted the husband about the matter. He came to the wife’s house and spoke to B and asked him what had happened and that B told him that it was a lie that he told because he was in trouble himself. Both the husband and B were crying at the time.
· Between Ms C’s interview of 19 February 2003, but prior to the children being interviewed by Detective Constable B on 5 March 2003 the wife heard the children talking in the bedroom and then G came to her and told her that she wanted to tell the nice lady with the sandpit that she had lied to her. B was also in the bedroom prior to the statement being made by G and when the wife questioned him he said that he had told G to lie to her about the retraction.
· On Friday 20 June 2003 G for no apparent reason skipped or ran up to her school teacher, told her that she had a secret and said that it was a bad secret; it was a lie. “I said that Daddy was touching me on the bottom. It’s a lie; he wasn’t. Now I can’t see him until after Christmas” and then she ran back to her place in the class.
His Honour was very dismissive of these events calling them “alleged” or “purported” withdrawals. His Honour sought to explain them away by saying"
“83.I do not attach very much significance to any of these incidents. As will be seen when I come to discuss the expert evidence, the last incident in particular was the subject of much cross examination of Dr A. However, and as significantly emerges from the evidence of Mr P, it seems likely that the children have developed some awareness that it was their disclosures that have lead to them not seeing their father and it may well be that they thought that they could reverse this process by seeking to withdraw their disclosures.”
Whilst there was evidence from Dr A about the not unusual occurrence of false retractions in cases where there is proven abuse, this was not such a case. The only serious direct evidence of abuse were the disclosures. There seems little logical reason to be accepting of the disclosures and dismissive of the retractions given the Briginshaw standard and when there needs be no positive finding to protect the child. As already mentioned an erroneous positive can have disastrous consequences. The retractions ought have been seen as further indicators that a positive finding was not open in this case.
We trust it is abundantly clear from the matters discussed above that the trial Judge’s positive finding that the husband abused G was unsafe and ought not be allowed to stand. At its highest the evidence ought properly have left the Court with a lingering concern that something untoward might have happened. This being so, it is necessary to remit the matter to a judge at first instance to determine what if any arrangements for supervised contact are appropriate for these children absent such a positive finding of abuse.
In order to protect the children from further possible inappropriate behaviour, to alleviate the mother’s concerns for the welfare of her children, and to protect the father from future unfounded allegations, the imposition of a scheme of supervised contact ought be imposed.
We would observe however that the reasons provided by the Chief Justice for rejecting Ms PH, the partner of the husband’s brother Mr HB, as a supervisor do not seem to be an adequate basis for her disqualification.
His Honour said:
"170.Ms PH has significant professional qualifications, these being a Bachelor of Education (Early Childhood), a Graduate Diploma in Special Education, and a Masters Degree in associated areas. She has worked as a teacher from kindergarten through to university level and has worked with children in a number of capacities including as a Group Leader with Relationships Australia,
171.She brought an obvious professional approach to the task of supervision and I was impressed with qualifications and apparent objectivity.
172.However she is nevertheless very closely associated with the husband’s side of the dispute by her relationship. Given my deep concerns about the husband and the fact that Mr HB is strongly aligned with the husband, I would think it likely that she would be subjected to intolerable pressure to relax her supervision. Ms PH also expressed quite natural concerns about making an open-ended commitment to supervision for an indefinite period. If for some reason or other she wished to terminate the arrangement in the future, that would leave a significant problem given the alignment of the rest of the husband’s family."
It ought not be assumed that because of her proximity to the husband’s brother, Ms PH could not diligently and efficiently carry out her role as a contact supervisor. Her professional qualifications appear to be exemplary. There was nothing said by the Chief Justice that was in any way critical of her appearance in Court. Faced with the dilemma of no contact vs contact supervised by Ms PH, from the children’s perspective the latter seems on the face of it to be clearly preferable. However ultimately these are matters for the trial judge at the remitted hearing of this application, it having been agreed by all counsel that the Full Court is not in a position to say how, when and where such contact might take place.
Orders
1. The appeal be allowed
2. Orders 4, 5, 6 and 7 of the orders made by Nicholson CJ on 19 November 2003 be set aside.
3. The father’s application for supervised contact with the children B and G be remitted for hearing before a Judge sitting at first instance on the basis that no positive findings of improper conduct by the father towards the children have been made but that it is common ground that there remains, on the evidence that was before the Chief Justice, an unacceptable risk to the children if contact is not supervised.
4. The Court grants to the appellant father 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 in respect of the costs incurred by the appellant in relation to the appeal.
5. The Court grants to the respondent mother and the child 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 respondent and the child representative in respect of the costs incurred by the respondent and the child representative in relation to the appeal.
6. That the Court grants to the appellant and the respondent and the child representative a further certificate pursuant to the provisions of s.8 of the said Act being a certificate stating that in the opinion of the Court it would be appropriate for the Attorney General to authorise a payment under that Act in respect of such part as the Attorney General considers appropriate of any costs incurred in relation to the new trial granted by these orders.
I certify that the 56 preceding
paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.
Elizabeth Hore
Associate
98