Russell & Close

[1993] FamCA 62

[1993] FamCA 62

BETWEEN:R

APPELLANT/HUSBAND

ANDC

RESPONDENT/WIFE

Appeal No SA45 OF 1992

No. AD449 OF 1988

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA

FOGARTY, BAKER AND LINDENMAYER JJ

HRNG

ADELAIDE, 31 March 1993

DATE 25:6:1993

Mr D Haines, instructed by Greg McGee, Solicitor, appeared on behalf of the

Appellant Husband.

The Respondent Wife appeared in person.

Miss Ross, instructed by Legal Services Commission, appeared on behalf of

the Separate Representative.

ORDER

Appeal dismissed with costs.

JUDGE1

FOGARTY, BAKER AND LINDENMAYER JJThis is an appeal from orders made by

Justice Bulbeck on 9 October 1992, defining access by the husband to the two

children of the marriage, M and A. The relevant orders were:

"3. That the wife do give and the husband do have access to

two infant children of the marriage now dissolved on alternate

Saturdays from 9.00 am to 6.00 pm on and from the 10th day of

October 1992 and from 9.00 am to 6.00 pm on alternate Sundays on

and from the 11th day of October 1992.

4. That the wife do give and the husband do have access to the

said children during each school holiday period between the hours

of 9.00 am and 6.00 pm on such days as agreed between the parties

to the intent that the total access does not exceed one half of

each such school holiday period and in default of agreement on

such dates to the same intent as may be ordered by the Court.

5. That the parties do attend to effect the delivery and

return of the said children at the commencement and conclusion of

all access periods at the police station at Suburb G in the State

of South Australia unless the parties shall have agreed in

advance in writing to effect such delivery and return elsewhere."

HISTORY

2.The husband was born in the UK in 1948 and the wife was born in Country H

in 1955. The parties were married in Country H in 1982. The parties

moved to Australia shortly thereafter and separated in January 1988. There

were two children born to the union, M in 1984 and A in 1986.

3.Following the separation the parties agreed that the husband have access

to the two children each Saturday afternoon and in April 1988 the access

arrangement was varied, whereby the husband exercised access each weekend from

10.00a.m. on Saturdays until 1.00 pm on Sundays. In April 1989, access was

again altered by agreement of the parties, as a result of which the husband

exercised access on alternate weekends from 10.00 am on Saturday until 1.00 pm

on Sunday.

4.In October 1988 the husband gave an undertaking, without admissions, that

he would not, during access or otherwise, give alcohol to the children, swear

at them or at the wife, or attend unannounced at her premises.

5.The husband continued to exercise alternate overnight weekend access

until, on 27 September 1991, after an argument between the parties concerning

the husband's smoking in the presence of the children, the wife refused to

allow the husband access to the children. Thus, alternate weekend access

ceased shortly before the wife married Mr C in October 1991.

6.The present dispute between the parties arose because of the wife's belief

that A has been sexually abused by the husband and it is necessary therefore

to record the history of events which led up to the allegations being made and

the various investigations which then took place in relation thereto.

7.In April 1990, at the conclusion of an agreed access period, A

complained of pain in her vulval area and a sore throat. The child was taken

to the J Medical Centre where she was seen by a Dr D who, as one

of several possibilities, suggested that the child may have been sexually

abused. The wife subsequently spoke to a social worker at the Department of

Family and Community Services and appointments were then arranged for a

consultation with Dr B, a paediatrician, on 2 May 1990. Dr B’s report,

which appears at pages 1 and 2 of volume 2 of the Appeal Book, contains the

following conclusion:-

"While it could have been a congenital variant and therefore of no

significance it is more likely that there has been some direct

trauma from interference to the hymen with some distortion of the

hymenal edge."

8.The child was interviewed by Mr E, a senior assessment worker

attached to the Child Protection Service at the J Medical Centre, in May 1990. Mr E’s report, which appears on pages 7 to 10 of volume 2 of the Appeal Book, contains the following conclusion and recommendations:-

9.Early in July 1990, the wife informed Mr E that A may have been

interfered with two years earlier at a child care centre. As a result Mr

E again interviewed the child. Mr E’s second report appears at

pages 11 to 15 of volume 2 of the Appeal Book and at the end of that report,

the following conclusions and recommendations appear:-

"This assessment was the second invitation I have given to

A to talk about touches. She was comfortable with the interview

setting and had ample opportunity to refer to abuse if it was a

current problem for her. Nevertheless, A has not made any

allegations of sexual abuse. Her clear reluctance to answer

questions about touches to the genital area can be a symptom of

previous abuse, but can also be adequately explained by

embarrassment about discussing the topic. The assessment of M

raised no concerns that he had been abused. Nor did M give

any reasons for his recent refusal to go on access to his father.

He conceded that he wants to visit his father sometimes, but not

all the time. I recommended that Mrs R periodically talk with A in

particular, about protective behaviours. I also made sure that Mrs

R knew how to contact FACS and how to seek help out of hours if

the need arose. Otherwise, no further action was planned."

10.The husband instituted proceedings on 13 November 1991 seeking orders for

defined access from 5.30 pm on Friday until 6.00 pm Sunday each alternate

weekend and for half of all school holiday periods. On 19 November 1991

resumption of previous overnight alternate weekend access by the husband to

the children was ordered in respect of two dates during the period of

adjournment.

11.On 17 November 1991 the wife swore but did not file her first answer and

cross-application which gave four reasons for opposing the orders which the

husband sought as follows:-

(a) The husband's flat contained only two bedrooms, one of which

was sublet, and the children therefore slept in the same bed as

the husband;

(b) The husband failed to ensure the cleanliness of the children;

(c) The husband was contributing to a superannuation scheme rather

than paying maintenance for his children; and

(d) Whilst the husband had apparently adhered to the promise not

to give the children alcohol, the husband had failed to honour his

promise not to swear at the wife.

12.The document made no reference to alleged sexual abuse of A by the

husband. It was argued on appeal by the wife that the reasons for this

omission were that the wife felt that there was as yet insufficient proof to

support such an allegation and that Mr C did not at that stage believe the

allegations made by the child to be true. The trial Judge found that the

husband was unaware of any suggestion of sexual abuse concerning A until he

was served with the wife's revised answer which was sworn and filed on 10

December 1991. Information regarding alleged sexual abuse was first brought to

the attention of the husband and the court by way of this document.

13.On 5 June 1992 the Legal Services Commission, acting on behalf of the

separate representative of the children, sought information from the

Department for Family and Community Services in relation to that Department's

investigations of allegations of sexual abuse concerning A.

14.On 5 August 1992 the Department of Family and Community Services, by

letter, gave particulars of the Departmental investigations into the

allegations of sexual abuse. The relevant part of the said letter was as

follows:-

"The assessment indicated some ambiguity as to the occurrence

of sexual interference. Also, as there had been no disclosure from

A, we were unable to conclude the identity of the alleged

perpetrator.However, given the findings of the medical

examination and Dr B’s reference to the possibility of sexual

interference, it was decided that the allegations should be

registered as sexual abuse of A.

This office decided to take no further action due to the

inconclusive outcome, lack of disclosure by A and Mrs R's request

that her ex-husband NOT be informed of abuse allegations. Mrs R

indicated her fear of reprisal from Mr R, given allegations of a

history of domestic violence and intimidation."

15.As a result of a letter written to Dr B by the wife's husband, Mr C,

Dr B again interviewed A in June 1992 at the J Medical Centre.

Dr B’s report, which appears at pages 3 and 4 of volume 2 of the Appeal

Book, reached the following conclusion:-

"My conclusion (is that) the hymenal opening appeared larger than

normal for her age and the hymenal tissue appeared to have been

stretched. This would indicate that interference in the past is

the most likely cause for the hymenal changes. The hymenal

changes did not appear to be due to a congenital variant."

16.The child was interviewed by Ms F of the Child Protection

Service at the Flinders Medical Centre on 7 August 1992, and a verbatim

account of that interview appears from pages 16 to 34 inclusive in volume 2 of

the Appeal Book. It was during this interview that A, for the first time, made

quite detailed allegations of sexual abuse involving the husband.Ms F’s

summary and recommendations appear in the following passage on pages 43 and 44

of the same volume:-

"A was re-referred to the Child Protection Service to assess

an allegation of sexual abuse by her biological father, Mr R.

This re-assessment occurred because it was claimed by A's mother

and stepfather that A had alleged that Mr R had touched

her vulval area, on many occasions. Further, a medical

re-examination of A had concluded that the physical evidence

obtained was more consistent with an explanation of physical

interference than congenital variation. A made an allegation at

the Child Protection Service, inresponse to direct questions,

implying that Mr R had touched her vulval area.

The reliability of A's allegation of sexual abuse by Mr R

cannot be established, in my opinion. Unfortunately, the truth of

this matter is obscured by the context in which A made this

allegation. She has been interviewed about concerns of sexual

abuse, albeit generally, on three occasions over a two year

period. There was an overt acceptance by A's mother and stepfather

that sexual abuse by Mr R had occurred, and evidence that this

matter had been discussed with A on more than one occasion. This

most recent assessment occurred after a problematic series of

Family Court hearings, which had been unsuccessful in establishing

the nature and frequency of access visits. Nonetheless, elements

of A's allegation were logical and presented in a way that

suggested she was describing an actual experience. While little

information was given spontaneously, and there were some

inconsistencies in her allegation, there are plausible

explanations for these factors that could be consistent with A's

claim that sexual abuse occurred. The medical evidence further

suggests that, at some time in her life, A's vulval area has been

physically interfered with. As such, it is my opinion that the

allegation of sexual abuse of A by Mr R cannot be definitively

confirmed. This does not mean that sexual abuse of A has not

occurred. However, the context in which A made a disclosure of

sexual abuse was potentially influential, while I accept that any

such influence may well have been unintentional on the parts of Mr

and Mrs C. The most problematic aspect of this ambivalent

conclusion is establishing how to protect A in the future. She has

made an allegation of sexual abuse about her biological father

which may be true, but cannot be established. If the allegation is

true, then it is important that A experiences being believed, and

that she is protected from further abuse. If the allegation is not

true, perhaps as a consequence of A feeling pressured to say

something about her father, then protection is obviously less of

an issue. While A was generally reticent to discuss her

experiences of her family, there were indications that her father

features in a positive way in her life. Therefore, considerations

of future safety need to be balanced with A's apparent desire to

continue to have contact with her father. To balance her safety

and her wish to see her father, supervised access may be required.

There was also discussion with Mr and Mrs C about the level of

care A (and M) received while on access visits with their father.

It is my understanding that this issue had been recognised by the

Family Court with a recommendation made that Mr R contain his

drinking and smoking behaviour when the children are in his care.

I have not yet met with Mr R, for the reasons previously explained

and therefore cannot comment on the extent of his drinking

behaviour. If, however, this is an identified problem, then it

would be useful to request that Mr R obtain appropriate support to

change this behaviour. His commitment to taking this action, if

required, would further contribute to A's (and M's) safety when in

his care. Obviously, if Mr R's drinking behaviour is not an

identified problem, then such steps are unnecessary. Regarding A's

emotional status, there were no indications of major concern at

this point in time. It is my understanding that A is managing

well at school, while experiencing some difficulty with

friendships. The main concern I have is the emotional effect on A

of the protracted negotiations about access. It is essential that

this matter be settled and that the decision be accepted, at least

in front of the children. Ongoing discussion in front of A (and M)

by either Mr and Mrs C or Mr R is at the least confusing, and

probably detrimental in the long term to the children's ability to

develop the relationships they need with their parental figures."

17.The trial commenced on 17 September 1992 and proceeded for five days. Her

Honour reserved judgment and judgment was delivered on 9 October 1992.

GROUNDS OF APPEAL

18.In the course of his submissions to us, Mr Haines for the appellant

husband, raised three main issues, which we now record and deal with seriatim.

19. That the trial Judge, having found that the husband had not sexually

abused the child, erred in refusing overnight access and, in any event, that

it was illogical on the one hand to deny the husband overnight access, yet on

the other to allow daily access by him to the children to be unsupervised. 19.

In her reasons for judgment, the trial Judge recorded the history of the

access arrangements subsequent to separation and then dealt comprehensively

with the sexual abuse allegations in relation to A, their effect upon the

child and, in particular, the impact which they have had upon the wife's

attitude to access, particularly with regard to overnight access.

20.The trial Judge's findings in relation to the sexual abuse issue appear

in the following passage at page 29 of volume I of the Appeal Book:-

"However, the husband is now in a position in which it is

established A was, at least once at some time in her life up until

about three weeks before 24/6/92, sexually abused on at least one

occasion. As the wife said similarly in her affidavit, Mr C said

to Miss K that A told the wife that not the husband, but a

boy across the road (presumably from the husband's residence)

"touched" her but he and the wife believed the child was prompted

by the husband to say so. The evidence on this alleged statement

by A on 6/2/92 is uncertain and no definite reliance could be

placed upon it. The husband has, however, perhaps been too

optimistic that the children would be suitably supervised by the

14 year old boy in the play area as once, recently, the children

spoke of a strange man in the area and on another occasion a woman

hitting her child. The husband went immediately to the play area

but saw no such person. However, with hindsight, it could have

been wise for him to take the precaution of always supervising the

children himself, or another suitable adult if for some unforeseen

reason he could not do so. He knew of the wife's stance from her

10/12/91 answer."

21.Although her Honour accepted the medical opinion of Dr B, she was not

satisfied that the husband was the person who had sexually abused the child on

at least one occasion, as Dr B asserted. Having found, therefore, that the

child had been sexually abused on at least one occasion and, at the same time,

it not having been established to her reasonable satisfaction that the husband

was the abuser, it was then necessary for her Honour to consider what would be

the appropriate access order. The trial Judge was required, as far as was

possible, in order to protect the child from further abuse, to assess the risk

to the child if access to the husband were to proceed on an overnight and an

unsupervised basis.

22.Her Honour's reasoning process in reaching her final conclusions may be

found in the following passages from her reasons for judgment, which appear at

pages 30-32 of volume 1 of the Appeal Book:-

"Both Miss K and the welfare officer agreed in no

objection to overnight access if no sexual abuse by the husband

occurred, plus per Miss K if there were no other concerns and

per the officer if the children wished such. The children have

indicated by implication that they envisage overnight access in

their contemplation of access which they wish to maintain with the

husband. The court must place the best interests and the welfare

of the children as first priority and not the wishes or feelings

of either parent. I am not satisfied that the husband was the

person who sexually abused the child on some at least one occasion

found to have occurred in the medical opinion of Dr B.

However, the wife has convinced herself that it was the

husband who has sexually abused the child and she obviously does

not wish to even contemplate that someone else may have caused the

signs of past such interference observed by Dr B.

The children under the current situation must live with the

wife and Mr C as well as visit the husband. Although I do not find

a specific ground for refusing overnight access to the husband, I

consider it isunsafe for the husband to have overnight access at

present in the sense that I am satisfied she would use such

occasions to make more allegations against him, and even if she

had no valid ground at all to do so, as to current events. Thus,

having heard the wife's evidence, there is a high probability of

further accusations from her if the husband cared for the children

overnight in the immediate future without a reliable witness being

present and the husband said, in effect, he could not arrange such

person to be always present. I take this to include that he could

not arrange that a reliable person, eg, a woman, sleep in the same

room as A overnight. This would be one way in which the wife's

possible future accusations could be refuted. There may be other

methods, but no such proposal was put forward by the husband.

I consider it is to the benefit of both children to continue

regularcontact with the husband. I do not consider it is to their

benefit that they run a risk of the wife, in an hysterical and

deliberate pattern of behaviour, causing further scenes to which

overnight access would lend fuel. I am satisfied on the evidence

as presented that there is not an unacceptable risk on this topic

if day access is granted and the husband personally always

supervises the children."

And then at p 33

"The children have to live with a mother who can be extremely

hysterical and with a step-father who appeared on his evidence

to be antagonistic and also uncharitable towards the husband in

unnecessarily adding derogatory remarks about the children's

father in his evidence."

(...)

As above, I consider there is no need for supervision by the day

as the wife's convinced suspicion of the husband will have less

effect even upon her therein. Also, I am satisfied there is no

unacceptable degree of risk for the children in any event in my

proposed order. By such day access it is hoped that even if the

wife does believe her allegations against the husband are true,

she will be less likely to repeat such matters in front of the

child."

23.Before deciding what the appropriate order for access should be, the

trial Judge was required, having regard to those findings, to consider, inter

alia, the following factors:-

(a) That the child had probably been sexually abused on at

least one occasion;

(b) Her Honour's finding that she was not satisfied that the

husband was the abuser;

(c) That the husband sought unsupervised overnight access;

(d) That the wife believed that the husband had abused the

child;

(e) That the wife opposed overnight access, whether supervised

or not; and

(e) The likely reaction of the wife to any order for access,

and the impact upon the children of her reaction.

Cases involving allegations of sexual abuse of children.

24.The principles governing cases involving allegations of sexual abuse of a

child or children of the marriage were recently discussed at length by the

Full Court in the decision of B and B (1993) FLC 92- 357. The Court in that

case considered the test laid down by the High Court in M and M (1988) FLC

91-979 at page 77,081 for determining whether to grant custody or access to a

parent. The High Court determined that in order 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, the test was "best expressed by

saying that a court will not grant custody or access to a parent if that

custody or access would expose the child to an unacceptable risk of sexual

abuse."With respect to that test, the Full Court in B and B (1993)

highlighted a number of issues of relevance to this case.

25.Any finding that the allegation is proved or not proved, or that there is

insufficient evidence to make a finding either way "may not necessarily be the

determinant factor in the ultimate decision". (at page 79,777).In this

regard, the High Court in M and M stated that there are strong practical

family reasons why the Family Court should refrain from making a positive

finding that sexual abuse has actually taken place, unless it is impelled by

the particular circumstances to do so. (M and M at page 77,081).

26.The Full Court emphasized that whilst the High Court in M and M

acknowledged that findings in relation to a disputed allegation of sexual

abuse will "have an important, perhaps a decisive, impact on the resolution of

that issue" (M and M at page 77,080), the "unacceptable risk" test established

by that decision must be employed within the wider context of the case, that

is in determining whether the making of the orders sought is in the interest

or welfare of the child. Specifically, the High Court stated at p 77,081:"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."

27.In addition, the Full Court in B and B (1993) noted that the High Court

made it clear that the existence of an "unacceptable risk" does not refer

exclusively to the risk of sexual abuse occurring. Rather, the existence and

magnitude of the risk of sexual abuse was to be considered along with other

risks of harm to the welfare of the child. Thus the High Court in M and M

considered at p 77,081 that even in a case where supervised access is

contemplated, there may nevertheless be a "risk of disturbance to a child who

is compulsorily brought into contact with a parent who has sexually abused her

or whom the child believes to have sexually abused her".

28.The Full Court in B and B (1993) also noted the further statement of the

High Court in M and M that "in access cases, the magnitude of the risk may be

less if the order in contemplation is supervised access". (at page 77,081).

Relevance of custodial parents beliefs.

29.It has been recognised that in determining access cases in which

allegations of sexual abuse have been made, the issue for the court "is not

whether a parent has sexually abused a child but whether in all the

circumstances of the case access should or should not take place, following a

consideration and evaluation of the various matters referred to in s64(1),

including any finding in relation to child sexual abuse, with the overriding

principle being the paramountcy of the welfare of the child". (B and B (1988)

FLC 91-957 at page 76,923). Thus, in order to protect a child from risk it is

not necessary for the court to make positive findings about the guilt or

innocence of one of the parties concerning allegations of sexual abuse. In

addition, s64(1)(va) defines harm to the child broadly to include not only

sexual abuse, but abuse generally, ill treatment and psychological harm.

30.It is established that in considering the factors in s64(1), in

particular the nature of the relationship of the child with each of the

parents (s64(1)(bb)(i)), the custodial parent's caregiving capacity

(s64(1)(v)) and "the need to protect the child from abuse, ill treatment, or

exposure or subjection to behaviour which psychologically harms the child"

(s64(1)(va)), an appropriate consideration is the custodial parent's belief

that the child or children have been sexually abused whilst on access and the

effect of that belief on them as the primary caregiver. The majority of the

Full Court in B and B (1988) noted at p 76,924 that the criteria in s64(1) do

not constitute an exhaustive list of matters to be taken into account in

proceedings concerning children. In this regard, the Court considered that the

trial Judge should always recognise:

"That any benefit to the child in access taking place should

not be outweighed by disadvantages for the child, including a risk

that the child's relationship with the custodial parent might be

undermined by the conduct of the non-custodial parent during

access periods." Thus the majority found that the trial Judge had

appropriately considered the attitude of the wife towards access

and her belief that the child had been sexually abused by the

husband as one of the reasons for suspending access.

31.Similarly, in the case of S and P (1990) FLC 92-159 the Full Court of

this Court found it appropriate that the trial Judge had had regard to the

wife's attitudes and concerns in considering whether or not access would be to

the ultimate benefit of the child. Specifically, the Full Court, under the

heading "Other matters taken into account by the trial Judge to justify his

decision to suspend access" at page 78,109, quoted the trial Judge's findings

that the wife would not trust the husband in his care of the child, would not

accept any finding exonerating the husband, and as a result of her conviction

of his guilt, would continue to be in a state of tension and anxiety should he

have access to the child.The trial Judge therefore concluded: "This means

that she will be an anxious parent and this will impair her mothering

capability." The Full Court in B and B (1993) at page 79,780 stated:

"It is not unreasonable for the court to take into account in

assessing whether an unacceptable risk exists, the need of a

custodial parent to be assured of the children's protection. As

primary caregiver, anxiety about the children's exposure to

potential harm is likely to impact adversely on that parent's

ability to care for the children."

32.The responsibilities and obligations of courts exercising jurisdiction

under the Family Law Act in relation to children were set out at length in B

and B (1993) at page 79,799. In summary, it was stated by the Full Court

that:

"it can be seen that the obligation cast upon the Family Court

by statute is not only to promote children's welfare (the content

f which varies with changing social values regarding children) but

also to uphold children's rights (including the fundamental common

law right of personal inviolability and the right to protection

from physical and mental abuse laid down in the Rights of the

Child Convention and implied by s64(1)(bb)(va) and ss70BA and BB

of the Family Law Act)."

In upholding children's right to protection from sexual, psychological and/or

emotional harm, the court must take into account any anxiety on the part of

the primary caregiver concerning the child's exposure to potential harm where

such anxiety is likely to impact adversely on that parent's caregiving

ability.

33.In taking into account the belief of the custodial parent of abuse by the

non-custodial parent of the children and the effect of such belief on that

parent as primary caregiver of the children, and consequent harm to the

children, a subjective test is employed. However, it must be shown that such

belief on the part of the custodial parent is genuinely held. Where it appears

on the whole of the evidence that such belief is entirely irrational and

baseless, the genuineness of the subjective belief of the custodial parent

will clearly be open to doubt.

34.In the present case, there was evidence upon which the wife's belief that

the younger child had been sexually abused by the father could have been based

and we are satisfied that this belief was genuinely held.

35.The trial Judge, as we have said, made a specific finding of fact that it

was unsafe for the husband to have overnight access at present, as the wife

would use such occasions to make more allegations against him. She also

concluded that it would not be to the children's benefit to run the risk of

subjecting them to "a hysterical and deliberate pattern of behaviour" by the

wife in relation to such further allegations, which would cause "further

scenes to which overnight access would lend fuel".

36.Counsel for the husband contended that there was no evidence before her

Honour to support either of those conclusions. He submitted that there was no

evidence of any hysterical behaviour by the wife outside the court, and no

evidence that the children had been affected adversely to date by any

statements or actions of the wife. He submitted that it was a "quantum leap"

for her Honour to move from the wife's admitted hysterical comportment in the

courtroom (during cross-examination about her raising of the sexual abuse

allegations) to a conclusion that she would behave hysterically outside the

court-room, on or in relation to access occasions, if the husband were granted

overnight access, and that such hysteria would impact adversely upon the

children's welfare.

37.Her Honour had the unique advantage of hearing and observing the

behaviour and demeanour of the wife in the courtroom during the proceedings,

and particularly whilst she was under cross-examination. That advantage is of

even more significance in this case than it is in most appeals because a copy

of the transcript of the proceedings before her Honour was not included in the

Appeal Book. We do know, from passages in her Honour's judgment, that the wife

at times behaved quite uncontrollably and inappropriately during the hearing.

For example, at p 10 of the Appeal Book her Honour refers to the fact that the

wife "several times became excessively antagonistic and from the witness box

became verbally aggressive towards the husband to the extent of interrupting

the hearing". Similarly, at pp 26-27 her Honour recorded that "the wife at

times also very obviously became tearful when she seemed not to want to answer

a question directly", and that "at other times in evidence her tears seemed to

be more those of anger and she became very hysterical and aggressive in her

words, manner and gesture in court, mainly towards the husband, but

occasionally towards his counsel". At p 33, her Honour referred to the fact

that the children "have to live with a mother who can be extremely hysterical

and with a step-father who appeared on his evidence to be antagonistic and

also uncharitable towards the husband".

38.Judges are entitled, and are frequently called upon, to draw inferences

as to the likely future behaviour of a party to proceedings from that party's

past behaviour, as revealed by evidence in those proceedings. There is no

difference, in principle, between behaviour of a party as revealed by evidence

in the proceedings and behaviour of that party as revealed to the court

directly in the course of the proceedings. No doubt when considering whether

the behaviour of a party in court during the hearing of proceedings is a

reliable guide to likely future behaviour by that party out of court, a judge

will take into account the context in which the former behaviour occurred, and

make due allowance for the fact that the surroundings and atmosphere of the

courtroom are novel and perhaps stressful for the party and quite different

from the context in which the party normally functions. Nevertheless, we are

of the opinion that it is open to a trial judge to draw inferences as to a

party's likely future conduct in another context from the conduct which that

party has displayed in the courtroom during the hearing of the proceedings.

That is what her Honour did in this case, and we are unable to conclude that,

in doing so, she erred in any way.

39.Having thus properly concluded that the wife's likely reaction to an

order for overnight access by the husband would be to indulge in a "hysterical

and deliberate pattern of behaviour" involving further allegations of sexual

abuse leading to "further scenes" between the parties, her Honour was entitled

also to infer that such "hysterical behaviour" and "scenes" would be likely to

impact adversely upon the children's welfare, notwithstanding the absence of

direct evidence of any such impact to date. Judges are entitled to bring to

bear, upon the evidence before them, their ordinary common sense and general

knowledge and experience of human nature and conduct. It seems to us that no

direct evidence is required to entitle a judge to conclude that if children

are constantly subjected to overt conflict between their parents over access,

particularly where the custodial parent indulges in hysterical outbursts

directed to the other parent involving allegations of sexual abuse, the

children's welfare is likely to be adversely affected.

40.We are therefore of the opinion that her Honour's finding about the

wife's likely reaction to an order for overnight access and her conclusion as

to the impact of that reaction upon the children were open to her upon the

evidence, including the evidence which her Honour herself witnessed, in the

form of the wife's conduct and demeanour in the witness box in the course of

the proceedings.

41.It was further submitted by the husband's counsel, and by counsel for the

Separate Representative, that it was quite illogical for the trial Judge, on

the one hand to order unsupervised daytime access, and on the other to refuse

to permit overnight access, whether supervised or not. It was therefore

contended that her Honour's discretion was not exercised "according to the

rules of reason and justice", but rather according to "private opinion" or

"humor" (see Dwyer v Kaljo (1992) 27 NSWLR 728 at 744.)

42.We consider that this argument misconceives her Honour's course of

reasoning which led her to the conclusion reflected in her orders. Her Honour

was not so much concerned with logic, as with reality, and she was obliged to

regard the welfare of the children as the paramount consideration. She was

faced with a very difficult choice. The children's mother, their unchallenged

custodian, believed that the younger child had been sexually abused by the

husband. She was therefore, understandably, vehemently opposed to the

husband's having overnight access to the children. Her Honour was satisfied

that the child had been sexually abused on at least one occasion at some time

in the past, but was not satisfied that the perpetrator of such abuse was the

husband. Notwithstanding her Honour's finding about that, she concluded (as we

have found she was entitled to do) that the wife would be likely, if overnight

access were granted, to indulge in hysterical behaviour, make further

allegations of abuse by the husband, and create "scenes" in relation to access

which would be likely to impact adversely upon the children's psychological

welfare.

43.At the same time, her Honour was of the view that the children desired to

continue to have access to their father, and that some access to them by him

was in their interests. Her assessment of the wife was that she would be less

concerned about the possibility of further sexual abuse if access were limited

to daytime access only. She therefore concluded that there was no unacceptable

risk of psychological harm to the children if daytime access only were

ordered, even if it were not supervised. Although she did not say so

expressly, it is clear that she considered that the risk of such harm, if

overnight access were granted, was unacceptable and that the likelihood and

magnitude of such harm was so great as to outweigh any benefit to the child

from the continuation of overnight access. Further, in our view, the magnitude

of risk found in the present circumstances must be considered in light of the

orders contemplated. The trial Judge ordered that the amount of access by the

husband not be reduced in any way, save that such access be limited to daytime

access.In our opinion, on her Honour's findings, that order was open to her

as a proper exercise of her discretion in the unusual circumstances of this

case and it is not open to this court to interfere with it. In addition, the

wife has not challenged the order for daytime, unsupervised, access.

44.The assertion in ground 1(d) of the Notice of Appeal, that instead of

limiting the husband to daytime access (because of the wife's likely response

to overnight access) her Honour ought to have restrained the wife, by

injunction, from "uttering expressions to the children concerning sexual

abuse", in our view has no merit. Such a suggestion overlooks the reality of

the situation and the fact that such an injunction would be practically

incapable of enforcement. Whilst such an injunction might prevent the wife

from uttering such expressions to the children in the presence and hearing of

the husband, it could not, in any practical sense, prevent her from doing so

at other times when he is not present. Attempts by him to have the wife dealt

with for breach of such an injunction would involve the parties and the

children in further conflict to the ultimate detriment of the children's

welfare. In any event, it isfar from clear to us that the husband actually

sought such an order from her Honour at the trial.

2. The second issue raised by counsel for the appellant was that, because of

the acrimony between the parties and, in particular, the wife's aggressive

manner, any prospect of agreement between them in relation to access issues

would be extremely unlikely. In Mr Haines' submission therefore, the trial

Judge should have specified, in her Order No.4, that portion of the school

holiday periods during which the husband is entitled to exercise daytime

access. 45.Given the high level of hostility between the parties, we agree

that the trial Judge ought to have specified that portion of the school

holiday periods during which the appellant should have access to the children.

We therefore propose to allow the appeal in this respect and specify the first

half of all school holiday periods as being the period within which the

husband shall be entitled to have access to the children.

3. Finally, in relation to her Honour's Order No.5, we were informed by Mr

Haines that there is in fact no police station at Suburb G and therefore that

it is necessary to substitute another venue because of the difficulties which

the parties have experienced in reaching agreement on any issue relating to

the children's welfare. 46.It was agreed by the wife that there is in fact

no police station at Suburb G and in the course of the appeal the parties

ultimately agreed that the access changeover point should be at the Adelaide

Police Station, 1 Angus Street, Adelaide and there will therefore be an order

by consent in those terms.

47.The wife appeared in person assisted by her husband, Mr C.In light of

the wife's very limited ability to communicate in English and the complexity

of the matter, Mr C was permitted to appear for her in the nature of an

informal advocate in order to present the wife's argument to the Court. Mr C

made both oral and written submissions on the wife's behalf and an interpreter

attended to translate the proceedings into the Country H language.

48.Essentially, the wife's argument was that whilst she approved of the

orders made by the trial Judge, she opposed a number of her Honour's findings

of fact, and in particular her finding that although she accepted the medical

opinion of Dr. B that abuse had occurred on at least one occasion, there

was insufficient evidence that the husband was the person who had sexually

abused the child. She therefore argued that her Honour reached the right

result, but for the wrong reasons. Such a course is open to a respondent, who

may support the orders appealed from on any grounds available on the evidence,

but a respondent in that position is faced with the same problem as an

appellant who seeks to have the appellate court overturn the trial Judge's

findings of fact. Relevantly here, those findings of fact may be overturned on

appeal only if the appellant (in this case the respondent) discharges the onus

of satisfying the court that they were plainly wrong. As Kitto J said in

Lovell v Lovell (1950) 81 CLR 513 at 532-3, that onus

"is particularly heavy where an attack is made upon findings of

fact made by a judge who had the advantage of seeing and hearing

the witnesses; in such a case each judge of the appellate court

must put to himself the question: "Am I - who sit here without

those advantages, sometimes broad and sometimes subtle, which are

the privilege of the judge who heard and tried the case - in a

position, not having those privileges, to come to a clear

conclusion that the judge who had them was plainly wrong?': Watt

or Thomas v Thomas (1947) AC484, at p 488."

49.In this case, the notion that we could overturn, or even cast significant

doubt upon, her Honour's findings of primary fact (especially her finding on

the sexual abuse allegation) not only without having seen or heard the

witnesses but also without the benefit of the transcript of the proceedings

before her Honour, is patently untenable. However, we think it desirable to

refer to some aspects of those submissions.

50.In particular, the wife referred to the statement by the trial Judge at

page 28 of volume 1 of the Appeal Book that "The wife's assertion that she

only allowed access to continue without interruption in 1990 and until

September 1991 after the 29/4/90 incident because she was very frightened of

the husband, must be open to doubt. It was the wife who asked the husband to

mind the children for about four days at one stage so she might attend a

religious meeting in Melbourne." The wife pointed out that this access visit

occurred in June, 1989, before the wife had any reason to suspect sexual abuse

had occurred and that she had allowed access to continue from April, 1990 to

September, 1991 as she could not at that stage provide convincing proof of the

allegations.Even allowing for the limited material before us, it appears

that her Honour erred in treating this as an example of her doubts concerning

the wife's allegations. However, whilst this matter may have had some

influence on the trial Judge, the fact is that the trial Judge concluded that

it was in the child's best interests that overnight access should not occur.

51.The wife also went to some length to explain her responses during

cross-examination to a series of questions which can be found at pages 26-27

of the transcript. The husband's counsel had suggested that the wife and Mr C

had "told A to tell these stories on her father". The wife asked that the

question be repeated and subsequently answered affirmatively the rephrased

question "you and Mr C have told A to tell people that her father has sexually

abused her. Yes or no?"The wife sought to explain that she was unclear as to

the meaning of the word "stories" and answered "yes" to the rephrased question

as she and Mr C had sought to reassure A before her interview with the

clinical psychologist and had "simply told her to tell the truth about what

happened when Daddy hurt her."It is impossible for us to express any view

about this because it largely depended on seeing the wife give these answers

and because of the absence of the overall transcript.

52.The wife referred to various other evidence, particularly that found in

the interview between A and Ms F, the clinical psychologist, at pages 27

- 34 of volume 2 of the appeal book, and asserted that there had been

convincing proof available to the trial Judge that the husband had sexually

abused the child. The main concern of the wife was the lack of a positive

finding that the husband was the person who had sexually abused the child on

at least one occasion. Again, in the absence of the transcript, especially of

thes cross-examination of the witnesses, it is quite impossible for us to

evaluate these matters. In addition, as there is no cross-appeal, no purpose

would ultimately be served by our undertaking any such analysis of these

issues.

COSTS

53.At the conclusion of the hearing of the appeal, we invited each of the

parties to make submissions in relation to costs.54.Mr Haines indicated to

us that, whatever the outcome of the appeal, his client did not seek any order

in relation to costs. He conceded, however, that in the event that the appeal

was unsuccessful, his client could hardly resist an order for costs being made

against him.

55.Counsel for the separate representative made no submissions in relation

to costs.

56.The wife submitted that in the event the appeal was unsuccessful she

should have an order for costs.

57.Neither the wife nor Mr C are legal practitioners and it is therefore

difficult to envisage what costs they may have incurred in a legal sense in

opposing the appeal. There may nevertheless have been costs, in the form of

outlays,incurred by the wife and it will be for the taxing officer to

determine whether in fact any such costs are payable by the husband to her

should an order be made.

58.As the appeal did not succeed in relation to the main issue, we are of

the opinion that the husband should pay the wife's costs of and incidental to

it, as may be taxed by the appropriate officer of the court.

59.IT IS ORDERED:

(1) That the appeal be allowed in part;

(2) That Order 4 of the orders of 9 October 1992 be discharged

and the following order be inserted in lieu thereof:-

"4. That the wife do give and the husband do have, access to the

saidchildren during the first half of each school holiday

period, between the hours of 9.00 am and 6.00 pm each day."

(3) That Order 5 of the orders of 9 October 1992 be amended by the

deletion of the word "(Address)" and the insertion of the words

"(Address), Adelaide".

(4) That the appeal otherwise be dismissed.

(5) That the appellant husband pay the respondent wife's costs of

and incidental to the appeal, as may be taxed by a Registrar of

the Court.