S & R

[1999] FamCA 12

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA  Appeal No EA80 of 1997
AT SYDNEY  File No CA337 of 1996

BETWEEN:

S
Appellant Husband
- and -

R
Respondent Wife

THE CHILDREN’S REPRESENTATIVE

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  KAY, HOLDEN and MULLANE JJ
DATE OF HEARING:  25 November 1998
DATE OF JUDGMENT:                  12 January 1999

APPEARANCES: Ms Tonkin of Counsel, instructed by Snedden Hall & Gallop, Solicitors, 4^th Floor, 11 London Circuit, Canberra City ACT 2601, appeared on behalf of the Appellant Husband.
Mr Nash of Counsel, instructed by Farrar, Gesini & Dunn, Solicitors, 17-21 University Ave, Canberra City ACT 2601, appeared on behalf of the Respondent Wife.

Mr Sansom of Counsel, instructed by Oakley Osmand, Solicitors, Suite 804, 8^th Floor, 15 London Circuit, Canberra City, ACT 2601, appeared on behalf of the Children’s Representative.

S AND R

EA 80 of 1997
Coram: Kay, Holden and Mullane JJ
Date of appeal: 25 Nov 1998
Date of judgment: 12 Jan 1999

EVIDENCE -hearsay - children's representations - police interview annexed to mother's affidavit admissibility of hearsay under s100A of the Family Law Act and ss8 and 59 of the Evidence Act -

EVIDENCE - telephone evidence - Order 30 Rule 2AAA of the Family Law Rules

SELF LITIGANT -procedural fairness - duty of court to inform a self litigant of his or her rights-

CHILDREN - residence - contact - approach to allegations of child sexual abuse -standard of proof - gravity of proceedings -

This was an appeal by H against orders that the two children of the marriage reside with W and be denied contact with him.

The parties were married on 25 January 1991, lived in WA and separated permanently in 1995 when the wife unilaterally moved with the girls to NSW. The two children of the marriage, twin girls, were born on 31 October 1991. For several years prior to the final separation there were long periods of separation during which a shared parenting regime was established. Since final separation the children resided with W and had limited supervised contact with H.

At trial W sought to deny contact to H alleging that he had sexually abused the children during the period prior to her moving to NSW. H made a competing application for residence, denying that abuse had taken place.

At the final hearing W was represented, the children had a separate representative, and H was unrepresented.

The evidence used by the trial judge to support a finding of abuse included an affidavit by W to which a transcript of a police interview with the children, made more than one year after the last possible opportunity for abuse to have occurred, was attached. There was also an affidavit by a church minister who had supervised contact on one occasion, and two reports of a clinical psychologist.

The trial judge exercised his discretion to hear evidence from the minister and clinical psychologist by telephone.

H was not advised by the trial judge of the desirability of making submissions regarding the admissibility of a record of interview annexed to the wife's affidavit and its potential consequences.

A medical officer’s report which addressed the issues of abuse (no physical evidence) and the children’s behavioural problems was not considered by the court.

Purporting to rely on the approach to allegations of abuse which was defined in M v M (1988) FLC 91-979 and relying on a perceived absence of countervailing evidence, a positive finding of abuse was made but without particularising the abuse. The trial judge made orders granting residence of the children to W and denying contact to H (other than phone calls and gifts).

On appeal, H submitted that he had been denied procedural fairness as a self litigant, and that the positive finding of abuse was against the weight of the evidence.

1. Procedural fairness and the self litigant

(a) The admissibility of the police interviews

Section 100A of the Family Law Act and s8 of the Evidence Act operate together to enable the Family Court to admit evidence that would otherwise be excluded by the rule against hearsay in s59 of the Evidence Act, and give such weight to the evidence as the Court sees fit.
The evidence of W that a police officer had told her what the children had said in an interview was admitted within the scope of this discretion. However the Records of Interview were not properly before the Court. The very least that was needed was for the records to have been adopted as accurate by some person who was present when they were made.
In the context of allegations of abuse it was imperative that the trial judge remain conscious of the manner in which evidence was obtained, its admissibility and its probative value.
The trial judge failed to seek submissions from H regarding the admissibility of the documents or any discretion to exclude them in circumstances where there was great doubt as to their admissibility and significant reasons to exclude them. This was inconsistent with the requirement of guideline 6 of Johnson and Johnson (1997) FLC 92-764; 22 FamLR 141, that the trial judge inform an unrepresented litigant of his or her rights. A fundamental breach of procedural fairness resulted which of itself required a retrial.
A particularly heavy onus applied to the trial judge to conform with guideline 6 because of the centrality of the evidence to the proceedings and the gravity of the outcome, in that the children could not see their father again.

(b) Evidence by telephone

When credit is at issue it is preferable for the Court to observe the giving of evidence.
Order 30 Rule 2AAA of the Family Law Rules enables the court to receive evidence by telephone where satisfied that this is convenient.
The trial judge failed to seek submissions from H regarding the desirability and consequences of obtaining evidence by telephone.
Once it became apparent that evidence given by telephone was to be relied on in making a positive finding of abuse, a duty arose under Johnson (supra) to inform the self litigant of the problems of determining witness credit over the telephone as a matter of procedural fairness.

2. The abuse finding

(a) The correct approach to assessing evidence of child abuse

The balance of probabilities is the correct standard of proof for allegations of sexual abuse, however the trial judge failed to consider Briginshaw and Briginshaw (supra) at 362 per Dixon J, cited with approval in M and M (supra), that ‘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.’ It is well established that an ability to make a finding on the balance of probabilities varies with the nature of what is sought to be proved (see eg Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Ors (1992) 67 ALRJ 170; (1992) 110 ALR 229).
Caution is required where the maker of the statement (the child) is not subjected to cross-examination and the statements are incapable of being properly tested

(b) The positive finding of abuse was against the weight of the evidence

The trial judge placed particular reliance on the evidence of the clinical psychologist and the record of the police interview. Having regard to the requirements of Briginshaw (supra), this evidence was not such that the trial judge could have properly relied on it to come to a positive finding of abuse.
In addition, an absence of countervailing evidence does not justify a positive finding of abuse. The trial judge incorrectly overlooked H’s denials in stating that there was no countervailing evidence.

Held: Appeal allowed

Retrial ordered and to be expedited

Reportable

This is an appeal by the father of twin girls, A and B, born 31 October 1991 against orders made by Faulks J on 23 May 1997 precluding him from having any contact with the children, other than via letters and gifts. It was common ground at the hearing before us that in the event the appeal is allowed the issue of whether there should be any, and if so, what, contact between the father and the children should be remitted for retrial.

Background

The husband is 44 years of age and the wife 36 years of age. They met in December 1990 and married on 25 January 1991. They finally separated in late 1995 and the marriage was dissolved by decree, which became absolute in October 1996.

During the course of the marriage the parties resided in Perth. Following the final separation the wife took the children to New South Wales, where she resided at the time of the trial in May 1997. The husband resided in Perth until about four months after the separation, and then he moved to New South Wales.

It was the appellant father’s case that when the children were a little over one year old the wife left the matrimonial home, leaving the children in the husband’s care. They remained separated until Easter 1994, during which time there was a shared care arrangement in operation, with the children living with their father from Tuesday until Sunday of each week. The parties’ reconciliation lasted until Christmas of 1994 when the children were once again left with the father and the shared care arrangement was re-established. There was a further reconciliation in August 1995, with the wife finally leaving the matrimonial home on 16 November 1995, taking the children with her.

According to the wife’s evidence, after the parties separated in January 1993 the children were cared for on a day-about basis by each of the parents until August 1993, when an agreement was reached about a shared weekly arrangement. The wife agreed that there was an attempted reconciliation in May 1994, which lasted until December 1994 and thereafter an approximate equal sharing arrangement was put into place. A further attempted reconciliation took place in August 1995, the final separation taking place on 16 November 1995, with the wife moving to New South Wales with the children.

The differences between the parties as to the care of the children from the time of the first separation late in 1992 were only differences of slight emphasis. The trial Judge made no findings about these matters at all. He did, however, note that in recounting the history of their relationship each side made what amounted to “quite bizarre allegations about the conduct” of the other, but his Honour concluded that he could derive no assistance from the allegations or even from the fact that the allegations were made, and he did not rely upon them.

The proceedings before the Court were competing applications for residence of the said children. The wife sought that there be no contact between the children and the husband. The husband sought orders in the alternative, should the children reside with the wife, that he have reasonable access to them, including alternate weekends and half school holidays.

The primary basis upon which the wife asserted that there should be no contact between the husband and the children was her belief that the children had been sexually interfered with by him. The trial Judge identified the issue as follows:

“However, the significant question that is – that was before the court, was the issue of whether or not Mr S had sexually interfered with the two girls. It is not asserted that the girls were raped, in the strict sense of the word. The action said to have occurred in accordance with the girls’ descriptions, would be best described I suppose, as some form of digital penetration. It is asserted, and to some extent, corroborated by Mrs R, who is Mrs S’s mother, that on at least one occasion, one or both of the girls were in a situation where they had their head in their father’s lap and their bare legs and bottom in proximity to his face and mouth. It is not asserted that any sexual contact occurred in that instance, but it is said in effect that this was indicative of what might happen in other places.”

There is in the course of his Honour’s judgment no other reference to precisely what it is that is said to have constituted the behaviour of the husband which enabled his Honour to find that he was left “in the face of the evidence as it is in this case with a persuasion that the sexual abuse in this case must have happened” and then subsequently, “that the children have been sexually abused by their father”.

The allegations and the evidence that supported them.

In her initial Form 7 application filed on 17 January 1996, the wife asserted (inter alia) that in about May or June 1993 she -

“suspected a possible abusive situation. The father would touch the twin girls in an erotic manner, caressing their naked bodies in a feather-like fashion. The respondent seemed to show a (sic) unnatural interest in their genitals and seemed to enjoy putting nappy rash cream on their bottoms.
…
In or about April 1995 the respondent allowed one of the twin girls B to put her legs around his head with no underpants on, her head in his lap, this was a frequent occurrence.
…
The applicant has made an appointment with the sexual assault service for B because she is displaying psychological disturbance and promiscuous behaviour…”

In response to that application, the husband denied any impropriety on his behalf.

Following the commencement of the proceedings in New South Wales, arrangements were made for the husband to have supervised contact with the girls. One such contact period was supervised by T, a Baptist Church minister, on 12 March 1996. The visit lasted one and a half hours. Reverend T deposed in an affidavit sworn 26^th April 1997 that:

“My first impression of the relationship between the children and their father at the supervised visit was one of genuine affection. After a short time however the children and Mr S were taking pictures of each other with a video camera that had been brought by Mr S. B asked Mr S words to the effect ‘ Would you like me to take a picture of your “fun”’. I understood the word ‘fun’ to be a euphemism for the word ‘penis’. This caused me to prick up my ears.
About an hour later towards the end of the visit after much innocent activity and conversation B said to Mr S words to the effect ‘Daddy, aren’t you going to show us your private parts? Remember you used to show them to us’. After this comment was made Mr S looked up at me with an embarrassed smile. Mr S then said to me by way of explanation ‘When we were alone at home they insisted on coming in and looking at me when I was showering or sitting on the toilet’.”

The visit of 12 March 1996 was the first occasion that the husband had seen the children since they had been removed from Western Australia in late 1995. The husband challenged Reverend T’s version of events insofar as he asserted that there was no rational basis upon which Reverend T could assume that the reference to “fun” should be interpreted as a reference to “penis”. The husband’s version of the reference to "private parts" during that meeting was as follows:

“During the visit it became clear that the girls have been sexually educated. As if to display the newly gained knowledge B made the following statements. Pointing at her crotch she said, ‘Do you know daddy that these are my private parts?’ and ‘Do you have any private parts?’’

According to Faulks J:

“In the lead up to the case coming on for hearing, the court appointed as an expert with the consent of all of the parties, and at the request of the separate representative of the children, Mr Peter Erskine, a clinical psychologist, of … New South Wales. He provided two reports to the court, one dated 4 October 1996 and the other 28 April 1997.”

According to the first report of Mr Erskine of 14 September 1996 the complaints of the wife were:

that when A was aged between 2 and 3 months old, she saw the husband touch the outside of A’s vagina. At that time she voiced her concerns to Mr S who is alleged to have replied that she was “the one with the problem”.
that during the first period of reconciliation, “Mr S would ‘accidentally’ take photographs of the girls naked then laugh about this”.
that during this period, the twins were, in her view, “excessively modest” but she observed no clear-cut examples of sexual assault by the husband.
During the second period of separation there were occasions when the children would be returned to her spending time with their father “dirty and not wearing underpants”. It was during this period that on one occasion she “witnessed B with her head in Mr S’s lap and her legs apart, with her vagina close to Mr S’s face”.
that since she moved to New South Wales, A was said to “have displayed a number of relatively recent behavioural changes – punching, screaming and kicking” while B is said to be “anxious”, to “curl up in a ball and hide” and to display inappropriate sexual behaviour. With respect to the latter behaviour, B is alleged to have been kneeling on the floor without underpants on, to point her bottom towards the wife and while touching herself on the vagina state “Daddy gets me to do this and watches”. B is also alleged to have told the wife that “Daddy touches my private parts”.

Mr Erskine reported that the husband denied that he had ever displayed any inappropriate sexual interest in or behaviour towards the twins and claimed that it was the wife who had encouraged the children to touch her on her vagina.

Mr Erskine then set out what he understood to be five allegations by the wife of inappropriate sexual interaction with the twins:

The first was the feather-like caressing of the children already referred to above.
The second was the incident where B put her legs around the husband’s head whilst having no underpants on.
The third and fourth were the words reported to have been used by Reverend T (“fun” and “Daddy, aren’t you going to show us your private parts? Remember you used to show them to us”).
Finally there was an assertion that there had been two investigations of the husband by the Department of Community Services (“DOCS”).

According to Mr Erskine, during the first investigation by DOCS neither child disclosed sexual abuse. During the second investigation, B stated that her father touches her private parts (vagina) and that she had seen her father also touch A’s vagina. Additionally it was suggested that the husband had told the girls not to tell their mother about these events.

When Mr Erskine saw the children in August and September 1996 they had had no contact with their father at all from November 1995 until March 1996, then no unsupervised contact with their father at all until the time of the interview.

Mr Erskine reported of the interview with B, who had not seen her father since about April 1996:

“I asked her when was the last time she had seen her father and she replied ‘I don’t remember’. When asked ‘What’s it like when you’re with daddy?’ she replied “He’s been tickling me too softly. I like it but he shouldn’t do that. He’s been touching me in my private parts’. I asked her ‘Where are your private parts?’ and she pointed to her vagina. I asked her ‘When did daddy touch you on your private parts?’ and she said ‘Lots of times’.
I asked ‘Does he ever touch A?’ and she said ‘Yes.’ I asked ‘When?’ and she replied ‘The same times’.
Asked directly ‘Does Mummy ever touch your private parts?’ she said ‘No’.”

Mr Erskine interviewed the child A and asked (emphasis added):

“’What’s it like when you see daddy?’ Her reply was ‘I feel horrible because he’s naughty, very naughty’.
When asked to describe these ‘naughty’ behaviours A said: ‘He lets me cook on a stove when it’s really hot and I could get burnt’ and then added ‘He also does more naughtier things’.
When asked to describe the ‘naughtiest thing’ her father did A said ‘Letting me cook on the stove’. Asked did her father do any other naughty things she replied ‘Not many more’.

Asked did her mother ever do naughty things she replied ‘None’.
I then asked her specifically if her mother ever touched her private parts. Her exact reply was ‘No she doesn’t, dad does.’ I then enquired what name she used to describe her private parts and she simply replied ‘private parts’.”

Mr Erskine said (emphasis added):

“…there are some significant pieces of evidence which, in my opinion, cannot be accounted for by the marital separation and ongoing conflict per se. This evidence relates to Mr S’s alleged sexual contact with the children.
First, the Rev. T, who apparently has no reason to be biased or to embellish his findings, stated that he is certain that B asked ‘Daddy, aren’t you going to show us your private parts? Remember you used to show them to us.’ I find Mr S’s statement that Rev. T misheard or misrepresented B’s comments as unconvincing as is Mr S’s attempt to portray B’s comments as resulting from her mother’s statements.
Second, I note that on 21 March 1996 B told … the Department of Community Services that her father touched her and A’s vaginas and that he had instructed them not to tell their mother. I found Mr S’s denial unconvincing. He was unable to offer any plausible reason why his daughter should have made such specific allegations of sexual abuse. Moreover, his explanation that it was really the mother who had primed the children to say that the father had asked them not to tell the mother, sounded unconvincing.
Third, when I interviewed the children individually with no other adults present B specifically stated that Mr S touched her and A’s ‘private parts’ - (which she indicated by pointing to mean her vagina) – on many occasions. She specifically denied that her mother had so touched her. A also disclosed sexual abuse by her father although she was more reticent and I place rather less emphasis on her disclosure.
I regard the two children as being sufficiently intellectually mature, despite their young age, to give valid statements about their abuse by their father. Overall, I find their statements, particularly those by B, convincing and believable.”

We interpose to say that all that A ever said was that her Dad touched her private parts. The conclusion that that statement of itself amounts to a disclosure of sexual abuse is very worrying and ought to have placed the trial Judge on high alert as to the reliability of Mr Erskine’s opinion. The child was not yet five years of age when interviewed. She had spent much of her life in the care of her father. It would be very surprising indeed if either of the parents had not, at some stage in the course of appropriately caring for the children, touched their genitals. To conclude that a statement by a child of four that “… my father touched my private parts” means that the child has made a disclosure of sexual abuse is a conclusion that is totally unsustainable on the evidence.

At that point in his report, Mr Erskine concluded that there existed “…the strong probability that they have been sexually abused by their father”.

In his affidavit filed in December 1996, the husband denies any inappropriate sexualisation of the children. He admits that when he was caring for them there were occasions when he would shower in their presence and, on rare occasions, joined them in the bath. He detailed the events of a supervised contact period on 9 April 1996 where B had said that the wife had told B that he had said to B when she was a “little toddler”, “Don’t tell Mummy”. Later that day, when the children were doing some drawings, B said that she could not draw penises and when asked by the husband, “Who told you all this about penises?” the child said “You…I saw your penis when you were in the shower…”

A court counsellor, Daphne Dawson, supervised contact on 28 November 1996 and 19 December 1996. In a report given to the Court in writing on 15 January 1997, she concluded that the girls responded well to their father during the contact periods. They seemed happy to participate.

In para.25 of an affidavit sworn 30 April 1997, under the heading “MY CONCERNS ABOUT MR S’ BEHAVIOUR”, the wife, in 21 sub-paragraphs, makes the following assertions (in summary):

1.From the birth of the children, the husband would stroke their naked bodies with the tips of his fingers in a feather-like touch as they lay across his lap.
2.From the birth of the children, the husband showed an unnatural interest in their genitals and seemed to enjoy putting nappy rash cream on their bottoms.
3.On one occasion between January 1993 and May 1994 when the girls were about 18 months old, A was standing with her hand on her vagina and the father said “Does that feel nice, A?”.
4.In August 1994 the husband took a whole roll of film of the girls while they had naked bottoms.
5.In August 1994 the husband, in response to a question by the wife whether anything of a sexual nature had taken place when he was a child, said that when he was five years of age, his own father got angry when he caught his own mother sucking his (the child’s) penis.
6.When the girls were about three and a half years of age they complained to the wife about sore genitals, saying, “Mummy, my bottom hurts”.
7.During December 1994 “the girls were always delivered back from contact visits with the husband with no underwear on”.
8.In May 1995 B put her head in the husband’s lap and her legs over his shoulder. She was not wearing any underwear and her vagina was a couple of centimetres from his mouth. This was not an isolated incident. B had done this on a number of other occasions during changeovers.
9.The wife asserted, without particularising, that “the girls were very sexualised and promiscuous around their father”. On 22 December 1995, one of the girls said to the other “Don’t tell Mummy”. When I inquired who told them to say that, they said “Daddy, daddy told us”.
10.On access changeovers, the husband would stare at the girls’ bottoms.
11.In May 1995 A telephoned the wife crying and saying, “I want to come to your house”.
12.When the parties were living together, the husband only took a bath or shower when the girls were awake and on every occasion would invite them to come in with him.
13.That during one period of reconciliation, the girls would not allow the husband to read them a goodnight story or permit him to lie down with them until they went to sleep.
14.That when the girls were about four years old, the husband massaged them with massage oil and continued to stroke their naked bodies with a feather-like touch whilst they lay across his lap.
15.In December 1995 when a television service man came to the house, B lifted up her nightie and pointed at her vagina in front of the service man, then put her fingers on her vagina.
16.In January 1996 B touched her vagina when sitting on her mother’s lap. When asked to stop kept doing it saying “Da Da Da”.
17.On 18 January 1996 A, whilst massaging the wife’s arm said “Daddy likes to be stroked really soft, he likes tickles” and “Daddy lets me look at his penis”. At the wife’s request to draw a picture of it, the child did a drawing, which is annexed to the wife’s affidavit.
18.On 28 January 1996 out of the blue, A said “Daddy used to touch me on my private parts”. B then said “A tells him to stop but he doesn’t”.
19.On 8 March 1996 B, whilst in her nightie, lay on her bed, spread her legs wide open, put her hand on her vagina and said “Daddy gets me to do this and he watches me”.
20.On 10 January 1997 B said “My poo squirt hurts. It feels like when Dad put his finger in it, it hurt when he did that”.
21.On 13 January 1997 B said “When Dad put his fingers in my private part it hurt, it really did Mum, it hurt a lot”.

The wife further deposed at paragraph 39 that the children had attended upon:

1.The Department of Community Services on two occasions;

2. A District Hospital and Community Health Service (Sexual Assault Service) on a number of occasions;

3. Dr (sic) Erskine, a court-appointed psychologist, on four occasions;

4. A further psychologist, on two or three occasions.

The police interview of the children

The wife further deposed that after she received Mr Erskine’s report in September 1996 she contacted the police and made a formal complaint about possible sexual abuse of the girls. She said she made a statement on 22 January 1997 and exhibited a copy of the statement to her affidavit. Notwithstanding that she deposed that she was:

“…extremely reluctant to allow this [a police interview of the children] as I felt the girls had been interviewed enough by other counsellors and psychologists and I did not want to cause further trauma to them”

she agreed to do so, and on 8 January 1997 she said the girls were interviewed by a Senior Constable at her home. The wife then attached to her affidavit documents marked with the letter “C” which she described as “Copies of Statements given by A and B respectively”.

The document purporting to be a copy of the record of interview with the child B describes an interview, which commenced at 1.00pm and finished at 2.10pm. The child is asked of her understanding of why the police are present and in response to the direct question “Do you know what I am here to talk with you about?” the child says “My dad…about I have seen my Dad touching As’ (sic) private parts and about me seeing my dad touching my private parts”.

The wife deposed that she moved to a property in X Street in December 1994. A reconciliation between the parties took place in August 1995 when the wife moved to a property in Perth with the husband. During the police interview with B, in response to the question “When did you see your dad touching A’s (sic) private parts?”, the child allegedly said:

“Oh, it wasn’t when we lived in this house. Because when he was at work we sneaked out of his house. We didn’t like him”
Question: Do you know what house it was?
Answer: No, but I know where my mum was born. It was London. We didn’t live in London. Only our mum but when we lived with our dad it was in X Street.
Question: Did Dad touch As’(sic) private parts in X Street?
Answer: Yes, he did it when mum wasn’t looking because he didn’t want us to see and he touched my private parts when ever I saw him.
…
Question: When did dad touch your private parts?
Answer: Well at X Street, and hes (sic) done and do you know what he let me wear (sic). He let me wear knickers and a singlet when it was a cold day and a hot day and when I was a baby and when I was a kid. I am five now.”

In the course of the record of interview, and in response to what might be said to be leading questions such as “Did he put his finger inside or outside your wee wee squat”, B indicated, without particularising how often, to what degree and when or where, that the husband had inserted his finger inside her vagina and her anus and that he had touched A’s private parts. She said:

“I keep telling him not to but he keeps on doing it every day and every night. Sometimes when I am asleep in bed he creeps in from his bed and he touches our private parts when we are in bed.”

The child also described seeing her father’s “private parts” in the shower and in the bath and seeing him “wee” in the shower and in the bath. When then asked where the touching had taken place the child said:

“X Street in the kitchen and he touched our private parts and he doesn’t show his private parts in every room but he touches our private parts in every room but the office he doesn’t touch our private parts in the office because mum will be in there but everywhere else.”

A was interviewed the next day between 10.30 am and 12.10pm. She understands that the police are interviewing her “for us to remember what our dad does to us sometimes”. When asked what that was she said:

“He puts his finger in our private parts and he puts his finger down he only did it to me and he puts his finger in my mouth and down my throat. He wants us to get our room messy and he doesn’t want us to tidy it up.”

The child then describes her father inserting his finger in her anus and vagina “just all the time. Every day when I have a bath”. When asked to describe the manner of insertion, the child said:

“He has a finger about that big (indicating her pointer finger) and he puts it in an (sic) twists it around.”

When asked where this happened, the child said “At Perth”. She said it happened “lots and lots”, “more than once” and “a lot more than once”. When asked how her father had touched her in the anal region, the child said:

“He just thinked about it for a bit and then just punched it in (indicated her pointer finger and hit her hand on top).
Question: Did this hurt you.
Answer:     No.
Question:   How do you know he put his finger in your poo squat?
Answer:   Because I felt it and he’s not going to do it ever again because he is on his best behaviour.
….
Question:   Did dad only touch your private parts in Perth?
Answer:     Yep.
Question:   Did he touch your private parts anywhere else?
Answer:     No.
Question:   Was it when you were only four?
Answer:     Yes.
Question:   How do you remember that you were four?
Answer:     Cause I always remember my dad.”

[These are only excepts from the interviews and do not purport to be the entire documents].

Mr Erskine's second report.

On 28 April 1997 Mr Erskine provided a second report to the Court. He said he had received:

a copy of an order made 20 March 1997 requesting a further report,
a copy of the report of the supervising counsellor Daphne Dawson of 15 January 1997,
a copy of the wife’s affidavit of 27 February 1997, plus attachments (police statements and A.D.V.O),
a copy of the husband’s affidavit of 4 April 1997, and
an affidavit by a child care worker who accompanied the husband to act as a supervisor during contact periods early in 1997.

In his report Mr Erskine indicates that he is clearly aware of the “disclosures” made by the children to the police. He interviewed the children individually and had an observation session with the children and the husband. There was some initial overt distress by A that settled quickly. However, she remained frequently aloof, interacting in a rather aggressive manner for about an hour with the husband. The husband and B interacted together in an appropriate and unremarkable manner, talking, drawing and playing for the next hour. At the conclusion of the contact period, when asked if they were looking forward to seeing their father the next day, B replied “No, we don’t” and A added, “We don’t like him”. B continued “We don’t want to see him but we have to”.

Mr Erskine concluded:

“The police assessment revealed frank disclosures by both children that they had been sexually abused by their father on numerous occasions. These revelations are consistent with those provided to me prior to the compilation of the first report. B had also disclosed sexual abuse by her father to the Department of Community Service (DOCS) on 21 March 1996.
The father denies the above allegations and essentially claims that they are the result of the children being influenced by their mother…”

In his summary he says:

“1.Since my last report the twins have disclosed to the police that Mr S has sexually abused both of them on numerous occasions.
2.I consider that these disclosures are believable and should be taken seriously. I find Mr S’s explanation as to why these allegations have arisen as not convincing, and specifically, note the lack of evidence to support his position that the twins have been primed by the mother to disclose sexual abuse (so she can have custody).”

The Trial

The hearing took place between Wednesday 21 and Friday 23 May 1997 inclusive, with the judgment being delivered late on the afternoon of the third day of the hearing. The husband represented himself. Counsel appeared on behalf of the wife and the Children’s Representative appeared in person. At the commencement of the hearing, the Children's Representative announced:

“I have arranged for Mr Erskine to be here on Friday in light of your Honour’s views voiced previously about hearing the parties prior to hearing the experts.”

After appearances were announced the trial Judge said:

“Before we begin perhaps it might be appropriate to inquire whether anyone has any objection to any of the material that has been filed. We will start with material filed by Mr S.”

Counsel for the wife then took objection to an assertion in an affidavit filed by the husband in December 1996 that in 1993, the wife had told the husband that she felt an incredible urge to rape a stranger. He also took objection to assertions by the husband that the wife’s mother had made similar allegations against her father and schooled the wife in the course of the breakup of that relationship, the clear implication being that this was a multi-generational problem in the wife’s family. His Honour struck out both allegations. He also struck out an allegation from the husband’s affidavit wherein the husband reported that officers of the Department of Community Services had found behaviour of the mother as described by the husband to be “clearly emotionally and mentally abusive”. Finally, he struck out a passage whereby the husband deposed there was an unnamed witness who had told him that the wife had displayed erotic behaviour in the past and that the girls needed some time in a relaxed, calm environment.

The Children's Representative was then asked whether he had any objections to any of the material and he did not. The husband was then asked if he had any objections in the following manner:

“Do you have any objections on the grounds that the material contained in any part of the material filed on behalf of Mrs S…”

To which the husband replied:

“Well, in that case I was not aware that this was going to happen so in that case I would be – there is a few paragraphs in here that I would apply the same standard to which would be statements as far as my alleged activities as a male prostitute.”

The trial Judge then declined to strike out what may have been seen to be admissions against interest by the husband and he effectively reinstated the earlier paragraph struck out with regard to the wife’s claim that she wanted to rape a stranger. The husband then said:

“There is probably lots more stuff in there what I can deal with as it comes up, your Honour.
HIS HONOUR: You will need to tell me before the end of the day any others that you are objecting to.”

The wife was then called for cross-examination.

In the course of the first morning of the hearing, the husband indicated that he wished to cross-examine the wife’s mother, R and the deponent T who had supervised contact. Counsel for the wife advised his Honour:

“That Mr T had been tentatively made available by telephone this afternoon.”

Just prior to the luncheon adjournment on the first day, the following exchange took place:

“MR NASH:    “Your Honour, I am afraid to tell you we have run out of witnesses. Mr T will be available after lunch I am told by telephone, and I have a number which I can give before lunch to you – to the court officer.
HIS HONOUR:          Thank you…If it is not terribly inconvenient if people could be available some time after 2 o’clock and we can start again as soon as we are able to do so.
MR S: May I ask a question, your Honour? Does that include my witnesses and people that I would like to contact or cross-examine over the telephone?
HIS HONOUR:          No, no, at the moment we are in Mrs S’s case. As far as that is concerned you have indicated you wish to cross-examine her, her mother, and Mr T.
MR S: That is right, yes.
HIS HONOUR:          So, he will be available after lunch. When we have finished the mother’s case we will then start on your case.”

However, when the Court resumed after the luncheon adjournment, it would appear from the transcript that Mr T had been contacted by telephone, an affirmation was extracted from him and cross-examination began. It was clear from the nature of the cross-examination that Mr T’s credit was in issue as the husband was challenging his recollection of events.

At the conclusion of the first day (Wednesday) the Child Representative announced that Mr Erskine could be available to give evidence by telephone the following day (Thursday) but had cleared Friday for the purposes of attending at the Court. His Honour said:

“I suppose, the question would be, was there any view, amongst the three of you, as to whether Mr Erskine was going to give evidence in person? That was your contemplation for Friday?
MR OSMOND:         Yes, I had organised for him. He was going to travel overnight on the Thursday and be here 10 o’clock on Friday.
HIS HONOUR:          What is your attitude to his giving evidence by telephone – your personal attitude.
MR OSMOND:         I am not a great supporter of telephone evidence, as your Honour is probably aware, because of difficulties in the past.
HIS HONOUR:          Yes, all right, well, that is your attitude for the moment. What about yours, Mr Nash?
MR NASH:                Your Honour, in this particular case, it is my submission that we could do it by telephone because the reports we do have – Mr Erskine, no doubt will have his notes, should they be relevant, available with him and the only portion and the video edited has been viewed by him and relevant portions of it have been extracted by him. In those circumstances, it is my submission, we could do it by telephone
HIS HONOUR:          What is your view, Mr S? --- Yes, I think it would be fine by telephone.
MR OSMOND:         Can I add a rider to what I said beforehand? I have spoken to Mr Erskine over the phone. He is quite clear over the phone and I would ask him to have his notes available and to have all necessary material than (sic) he needs available so that we would not run into problems that we have experienced in the past with professional witnesses.
…
HIS HONOUR:          Well, let us see what we can do. I mean, practically, yes, there is a saving of travelling if you let him know now that he is to be required tomorrow by telephone, then he may well find that is Friday fills up again if he is a busy practitioner. I think, notwithstanding your reservations, I would permit his cross-examination by telephone.”

The Appeal

The appeal was argued before us on two basic grounds. Firstly, that the husband had been denied procedural fairness, and secondly, that the positive finding of sexual abuse was against the weight of the evidence.

In respect of the procedural fairness ground, it was submitted that the trial Judge had failed to follow the guidelines as set down in Johnson and Johnson (1997) FLC 92-764; 22 FamLR 141 and in particular, with regard to the issues of admissibility of the police reports and the weight to be given to them, had failed to comply with Guidelines 5 and 7 which read:

“5. If evidence is sought to be tendered which is or may be inadmissible, to advise him or her of the right to object to inadmissible material, and to enquire whether he or she so objects.
…
7. To ensure as far as possible that a level playing field is maintained at all times.”

It was submitted that prima facie, the copies of the records of interview of the children were inadmissible as offending against the rule against hearsay. The hearsay complained of was that the wife was purporting to give evidence of what the police officers had told her the children had said to them. Had the police officers been called to give the evidence, then the matter would have been covered by s.100A of the Family Law Act and would not have offended the rule against hearsay. The failure to call the police officers rendered these statements prima facie inadmissible.

The admissibility of the police interviews

Section 100A of the Family Law Act provides as follows:

“(1) Evidence of a representation made by a child about a matter that is relevant to the welfare of the child or another child, which would not otherwise be admissible as evidence because of the law against hearsay, is not inadmissible solely because of the law against hearsay in any proceedings under Part VII.
(2) A court may give such weight (if any) as it thinks fit to evidence admitted pursuant to subsection (1).
(3) This section applies in spite of any other Act or rule of law.
(4) In this section:
"child" means a child under 18 years of age;

"representation" includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.”

Section 8 of the Evidence Act provides as follows:

“(1) This Act does not affect the operation of the provisions of any other Act, other than sections 68, 79, 80 and 80A of the Judiciary Act 1903.”

Section 59(1) of the Evidence Act provides as follows:

“(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.”

Whilst the evidence of what the children told the police officer is not per se inadmissible by reason of its hearsay nature, given the provisions of s.8 of the Evidence Act and s.100A of the Family Law Act, prima facie the evidence of the wife that the police officer told her that this is what the children told the police officer (i.e. the inclusion in the wife’s affidavit of copies of the alleged records of interview with the twins) is caught by the general exclusion under s.59 of the Evidence Act.

The Evidence Act sets out exceptions to the hearsay rule contained in s.59. One exception is to be found in s.60 which provides as follows:

“The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.”

In the annotations to the Evidence Act published by the Attorney-General’s Department, the following appears:

“[60.4] Section 60 also has the effect of excluding from the hearsay rule statements made directly or indirectly by persons to the expert about the facts of the particular case. The evidence of the expert thus becomes evidence of those facts. However, it should be expected that little weight would be given to the evidence insofar as it relates to representations about the facts of the case, unless those facts are not seriously in dispute. As a practical matter one would expect the persons who made the statements to the experts to be called as witnesses.”

In this case, the copies of records of interview were not only annexed to the wife’s affidavit but were referred to by Mr Erskine in his second report as being documents to which he had made reference.

Section 63 of the Evidence Act provides an exception to the hearsay rule in circumstances where the maker of a previous representation is not available to give evidence about an asserted fact. Insofar as the asserted fact in this case was that the children made certain “disclosures” to the police, then the persons capable of giving that evidence on a first hand basis would be the police. There was no evidence before the trial Judge that those police officers were not available to give evidence about the disclosures. Accordingly, s.63 of the Evidence Act appears to have no application in these proceedings.

Section 64 provides a further exception to the hearsay rule in circumstances where the maker of a previous representation is available. The section provides as follows:

“(2) The hearsay rule does not apply to:
(a) oral evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made; or
(b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation;

if it would cause undue expense or undue delay, or would not be reasonably practicable, to call the person who made the representation to give evidence.”

Section 67 then provides:

“(1) Subsections 63(2), 64(2) and 65(2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence.
(2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section.
(3) The notice must state:
(a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence; and
(b) if subsection 64(2) is such a provision-the grounds, specified in that provision, on which the party intends to rely.

(4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice.
(5) The direction:
(a) is subject to such conditions (if any) as the court thinks fit; and

(b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies.”

Section 68 which deals with objections to tender of hearsay evidence in civil proceedings if the maker is available provides:

“68. (1) In a civil proceeding, if the notice discloses that it is not intended to call the person who made the previous representation concerned because it:
(a) would cause undue expense or undue delay; or
(b) would not be reasonably practicable;

a party may, not later than 21 days after notice has been given, object to the tender of the evidence, or of a specified part of the evidence.
(2) The objection is to be made by giving to each other party a written notice setting out the grounds on which the objection is made.
(3) The court may, on the application of a party, determine the objection at or before the hearing.
(4) If the objection is unreasonable, the court may order that, in any event, the party objecting is to bear the costs (ascertained on a solicitor and client basis) incurred by another party:
(a) in relation to the objection; and
(b) in calling the person who made the representation to give evidence.”

There is a further exception to the hearsay rule contained in s.69 of the Evidence Act relating to business records. However it would appear that that section could not have been relied upon to ensure the admissibility of the records of interview in this case, as they were likely to be caught by sub-s.3 which exempts from the exception a document that

“(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or
(b) was made in connection with an investigation relating or leading to a criminal proceeding.”

Finally, reference needs to be made to the provision of s.135 of the Evidence Act which provides as follows:

“The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.”

It should be noted in this case that no objection was ever taken by the husband at trial to the admission into evidence of the records of interview. Indeed, in an affidavit sworn 4 April 1997 the husband says:

“I have read the statements made by A and B in the police interview. In response I would like to point out that the statements have been made after a year of constant counselling, and the perverted input from the mother, and are in obvious conflict with statements made by the children when in my care.”

It would thus appear from the husband’s material that he was not questioning the accuracy of the records of interview insofar as they recorded what had occurred between the children and the police, but was rather trying to find some rational explanation as to why the children would make such statements in circumstances where he was asserting there was no factual basis for the allegations to be made.

To the extent that the trial Judge had a discretion to exercise to render as admissible that which was otherwise inadmissible, it was submitted that the trial Judge failed to seek from the husband or any of the other parties, submissions as to why his discretion should be exercised in favour of admitting the material in the circumstances of the case. There were powerful reasons as to why that discretion may well have been exercised in favour of the wife, namely that the authenticity of the document was not the subject of any significant challenge.

At the same time, there were powerful reasons as to why the document ought not to have been admitted without requiring the presence of the police officers. The taking of evidence from young children concerning matters of sexual abuse is notoriously difficult. For it to have serious probative value it generally requires great expertise and skill. There was no evidence before his Honour as to the expertise or skill of the police officers who took the records of interview. The records of interview took place after the children had been seen by various investigators over a period of some 15 months. The children were slightly over 5 years of age at the time the police records of interview were held. They were giving evidence about events which were at least 14 months old and during which time their stories had been told in varying degrees to a number of other persons.

The records of interview contained many leading questions. The efficacy and value of such leading questions has been seriously questioned. (see “Report of the inquiry into child abuse in Cleveland” (Cm412(1987)). In Separate Representative vJHE and GAW (1993) 16 Fam LR 485, Nicholson CJ and Fogarty J, when examining the rationale behind s.102A of the Family Law Act (prohibition on admissibility of multiple reports in abuse cases) said at 501:

“Social science literature also documents that repeated interviews by an assortment of professionals jeopardises the quality of the child’s evidence by increasing the risk of leading questions and confusing the child: see Spencer and Flin (eds), The Evidence of Children — The Law and Psychology (1990).
In 1992 in England, the Home Office published a Memorandum of Good Practice for interviewing children for the purposes of adducing evidence in criminal proceedings. Although the Memorandum is directed at interviews where there has been an allegation of sexual abuse giving rise to a criminal prosecution, its underlying principles are aimed at ensuring the welfare of the child concerned is not subverted to the requirements of the adversarial process. It is therefore relevant to these proceedings to note that the Memorandum is emphatic that the child be interviewed as soon as possible, that the child be interviewed by as few people as possible and that there be as few interviews as possible. The overall tenor of the Memorandum is that one interview will be the norm and that further interviewing is regarded as the exception rather than the rule: see Jenny McEwan, ‘‘Where the prosecution witness is a child: the Memorandum of Good Practice” Journal of Child Law (1993).”

Given that the father was representing himself, and given the nature of the proceedings, it was essential that the trial Judge remained alert to the manner in which the evidence in this case was obtained, to its admissibility and to its probative value. Where there was a discretion to be exercised concerning its admission, then the father had to be given a fair opportunity to argue as to why that discretion should have been exercised in his favour. It is not apparent from either the transcript or his Honour's judgment that adequate opportunities were offered.

The self litigant's right to be told what might be objected to

It was put to us on behalf of the wife that there had been no miscarriage of justice in the manner in which the proceedings were conducted. It was put that the obligation of the trial Judge ends with the trial Judge providing the opportunity to place objections and does not require the trial Judge to explain the nature of the objections that may be taken. In our view, such submission is inconsistent with Guideline 6 as laid down in Johnston, supra, namely:

“If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights.”

By extension, if a question is to be asked or a document is sought to be tendered which prima facie is inadmissible and which goes to the very core of the subject matter of the proceedings and where the ramifications of the proceedings are as Draconian as they might be in this case, namely that the children may never see their father again, then there is a very heavy onus placed upon the trial Judge to ensure every opportunity is properly provided to the litigant in person to raise objections which one would expect may well be taken by competent counsel. Clearly if the dispute is a minor one, such as whether contact should commence at 7.00pm or 8.00pm on any particular night, then the Court may, in the interests of expediency, place more emphasis on s.97(3) of the Family Law Act which directs the Court to proceed without undue formality, than might otherwise be the position where the outcome of the case may lead to (a) a total prohibition on contact between a parent and a child or (b) the continuation of contact between a parent and a child where the child is possibly at serious risk if that contact continues (the sex abuse case dilemma).

In his response, counsel for the Children’s Representative submitted that the trial Judge should have given the husband an informed opportunity to take objection to the admission into evidence of the police report in the manner in which it was presented. At the same time, notwithstanding other procedural irregularities, such as allowing the evidence to be taken by telephone without discussing the ramifications of such a course with the husband, and in the face of actual opposition by the Children's Representative, insofar as Mr Erskine was concerned, the Children's Representative submitted that the appeal should not be allowed as any retrial would be unlikely to produce a different outcome. He referred us to the passage from Stead v State Government Insurance (1986) 161 CLR 141 at pp. 145-6 cited at para.114 of Johnson, supra, and in particular, the question posed by the High Court as to whether complying with these rules would have made any difference. The High Court said:

“The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v. National Coal Board [1957] 2 QB 55 at p. 67 in these terms:-
‘There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. ... No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.’

That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

…
It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.”

It was submitted on behalf of counsel for the wife that, absent the records of interview, there was still ample material upon which the trial Judge could have found that the children had been subject to digital penetration by the husband, namely admissions made by the children to the wife and the general opinion of Mr Erskine that the children had been abused, which was the finding of Mr Erskine prior to the police records of interview being taken. Our difficulty is that nowhere in the trial Judge’s reasons for judgment does the trial Judge actually indicate precisely what conduct he is finding has taken place.

In our view, it was incumbent upon the trial Judge, faced with the situation of a litigant in person and a record of interview taken in these circumstances, to at least turn his mind to the issue of excluding the document on the basis of prejudice and to seek submissions about it from the various parties. His failure to do this, in our view, amounted to a fundamental breach of procedural fairness that of itself is sufficient to require a re-trial of this matter.

Evidence by telephone

The specific complaint in this case is that notwithstanding that Mr S took no objection to the calling of evidence from either witness by telephone, given that the credit of the Reverend T was in issue and given that the opinions of Mr Erskine ultimately became the predominant and decisive feature of the case, the trial Judge had a special duty to the husband in accordance with matters set out in Johnson and Johnson, supra, to explain to the husband the ramifications of having a witness give evidence by telephone rather than in person.

The Family Law Rules provide (inter alia): -

“ORDER 30 RULE 2AAA TAKING EVIDENCE OR MAKING SUBMISSIONS BY VIDEO LINK OR TELEPHONE
2AAA. (1) The court may make an order allowing or directing evidence to be taken or submissions to be made by video link or telephone from any place inside or outside Australia.
…
(4) The court must not make an order allowing, or directing, evidence to be given or submissions to be made by telephone, unless it is satisfied that:

…
(b) the evidence or submissions can more conveniently be given or made from the place where the evidence is to be given or the submissions are to be made.”

It is clear that no attempt was made to draw to the attention of the husband the existence of the rule nor to seek any submissions as to whether or not the Court ought exercise its discretion to hear from the witnesses T and Erskine merely because it appeared convenient so to do.

Generally, where the credit of a witness is in issue, the Court ought at least be able to observe the manner in which the witness gives evidence as well as be in a position to hear or read the evidence. This is the advantage of the trial Judge frequently referred to as the justification for appeal courts being loath to interfere with findings of credit. (Devries and Another v Australian National Railways Commission and Another [1992-93] 177 CLR 472; Abalos v Australian Postal Commission [1988] 171 CLR 167; Kearney v Roucek (1997) FLC 92-745; LC v TC (1998) FLC 92-803).

Once it became apparent that Reverend T's evidence was being relied upon by Mr Erskine as an important aspect of his conclusion, then it was, in our view, incumbent upon the trial Judge to advise the husband of the difficulties the trial Judge would face in properly evaluating the evidence without seeing the witness. The trial Judge should then have sought submissions on whether the cross-examination could take place by telephone or whether the witness’ attendance was required before his affidavit could be relied upon. Absent such an opportunity being given, in our view there was a miscarriage of justice in this case. In light of the matters referred to in Stead, supra, that matter alone would not have been sufficient to cause us to remit this matter.

The position in relation to requiring Mr Erskine's physical presence is not so clear cut. The attack on Mr Erskine was not aimed at his credit so much as the appropriateness of his conclusions. Ultimately the trial Judge relied heavily upon those conclusions as a major basis for his positive finding that the children had been sexually abused by their father. Apart from the children's statement, Mr Erskine's evidence was the crucial factor in the trial Judge's findings. Given its importance, the husband as a litigant in person ought to have at least been given an explanation of the ramifications of assessing evidence given by telephone as compared to evidence being given in court.

Given the gravity of the outcome of this case, namely that the orders sought by the wife were aimed at ensuring that the children have no further relationship with the husband for the foreseeable future, we are of the view that notwithstanding that a re-trial may certainly place stress upon the children’s primary caregiver, and may end with a similar result to that achieved by the proceedings before Faulks J, the outcome is so significant that it deserves to be conducted according to basic concepts of procedural fairness.

There are, however, other bases upon which we are of the view that the present orders are unsafe and that it is appropriate that a re-trial be ordered. We are conscious of the views of the High Court recently expressed in CDJ v VAJ, 23 FamLR 755, where their Honours said that courts exercising a discretion to admit fresh evidence in child related cases need to pay attention to the likelihood of a substantially different outcome being achieved and to the trauma that may be associated with the necessity of yet a further trial.

Further evidence

At the hearing of the appeal, a report from a Medical Officer from a child abuse unit, dated January 1997 was admitted into evidence before us. This document had apparently been in the police file that was subpoenaed at the trial before Faulks J but had been overlooked by counsel for the wife, the Children's Representative and the husband. It indicated that the doctor had seen the children at the hospital on 20 January 1997 accompanied by the wife and the Senior Constable who interviewed the children. The report says that the mother told the doctor:

“That both children have made disclosures of genital touching by their father to police and to a psychologist, who is preparing an assessment for the Family Court. They have previously made disclosures to their mother and maternal grandmother. [The maternal grandmother] told me that the disclosures were of digital genital touching only.”

The doctor was able to conduct a genital examination of B but unable to conduct a genital examination of A. The examination of B was “entirely normal and there were no signs attributable to sexual abuse”. The doctor went on to comment that “one would not expect to see abnormal clinical signs when there is a history of genital touching only”.

The doctor had also been given a history of the behavioural patterns of the children and she said:

“The behavioural concerns discussed suggested that the girls have been distressed. The events surrounding separation, the shared care of the girls move, parental discord and alleged sexual abuse could all play a part in the genesis of their distress.”

At the proceedings before Faulks J, the wife would clearly have been aware that the children had been the subject of medical examination as she was present when the examination took place. There was no suggestion made to us that Faulks J was made aware of the existence of the medical examination or of its result. There is no suggestion that the existence of the medical report was drawn to the attention either of the Child Representative or of the husband, even though the wife must have known of it or was in a position to give instructions as to its likely existence.

In our view, it is clear that had the existence of the medical report been known, then it would have been incumbent upon the Children's Representative to give consideration to cross-examining the doctor to ascertain any discrepancies in the history as given by the wife to the doctor of “genital touching” as compared to the statements made by the children of “genital penetration”. One would have expected questions to have been asked of the doctor as to whether genital penetration as described by the girls was consistent with her physical examination of the child B. Clearly, if the medical evidence was that digital penetration causing pain would be likely to leave behind evidence of damage to the hymen, then the trial Judge may have been less comfortable in making a positive finding that the children were digitally penetrated.

The judgment

It is perhaps convenient to summarise the manner in which the trial Judge dealt with the issues. After setting out some background, and indicating that he would make no findings about what he described as the (quite bizarre) allegations made by each side as to their conduct, his Honour set out under the heading “A significant issue was the alleged interference with the girls” the passage referred to at the commencement of these reasons for judgment.

His Honour then turned to an examination of the role of the court appointed expert and his Honour said:

“In this regard I am conscious of the fact that the High Court in considering this issue in M v M had made it clear that there should be no leaping to conclusions about what is to happen. For some time the question of child abuse had been a considerable difficulty to the court, and the High Court resolved the issue in M v M [1]. I say resolved the issue, though that is not strictly true. It considered what the court's correct approach might be, and it is important in the context of this case particularly, that I turn to what their Honours in the High Court had said ought to be the appropriate approach. At page 77,081 of the Family Law Cases Report, in the joint judgment of their Honours Mason CJ and Brennan J, and Dawson, Toohey and Gaudron JJ, their Honours say:
[1] (1988) ¶ FLC 91-979.
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.

Their Honours had commented, (and I will return to this question in a moment), that in such a matter as this, while it is essentially a civil determination, that is, a decision that is to be made on the balance of probabilities, it is the decision which is to be made subject to the strictures of their Honours in Briginshaw v Briginshaw[2], where Dixon J pointed out that it was necessary that there should be a reasonable satisfaction as to the fact that something has occurred. I will return to his Honour's judgment in a moment.
[2] (1938) 60 CLR 336
Again, their Honours in M v M said at page 77,081:
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.

Their Honours go on to say:
That in resolving the wider issue, that is, the question of whether or not contact should take place, and in what form, the court must determine whether on the evidence...

I note and emphasise, "On the evidence":
...there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk.

Their Honours go on to hold further[3]
In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her, or whom the child believes to have sexually abused her.

But that was not the issue in that case.
Overall, the Honours summarised the matter by saying this:
In devising tests, these tests, the courts have endeavoured in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse, and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent, if that custody or access would expose the child to an unacceptable risk of sexual abuse.…”

[3] at page 77,081:

His Honour then discussed his task as he perceived it in light of M and M (1988) FLC 91-979; 12 FamLR 606 and concluded:

“The precondition to a determination, assuming that the question of sexual abuse is an important, and as their Honours have said, generally decisive element, would be whether or not a court is able to come to a conclusion on the evidence before it.”

His Honour then sets out some passages from Briginshaw [1938] 60 CLR 336 and in particular a passage of Dixon J at 361 which reads as follows:

“The truth is, that when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independent of any belief in its reality.”

His Honour concludes:

“It is not enough that there should simply be evidence of the fact, there must be an actual persuasion that something has occurred.”

Having set out his Honour’s understanding of the test as prescribed in M and M, supra, and the task which he had to undertake, his Honour then returned to the evidence of Mr Erskine. His Honour said of Mr Erskine:

“However, in this instance the strength of his opinion, given his expertise, and I might add his unchallenged expertise, is such that it would require significant counter evidence for there to be any serious disagreement by a court with the conclusions that he draws within the range of his expertise.
In this regard, there is no countervailing report or assessment of Mr Erskine's report, and I have to record that during the course of cross-examination, Mr Erskine's evidence was not altered one millimetre as to certainty, or as to the conclusions that he sought to draw. He was asked questions by Mr S and was asked other questions by me, each of which were directed to establishing the proposition that there may be another explanation for the twin's conduct, and their disclosures, which would not be consistent with their having been sexually abused by their father.
In respect of all that cross-examination Mr Erskine remained totally unchanged in his opinion, unshaken in his belief and, in my opinion, not in any significant way affected as to his credibility, or as to the credibility of his opinion as an expert. In such circumstances it is not open to the court to conclude other than that his assessment is appropriate insofar as it is genuinely and generally acceptable in its context. There is nothing to suggest to me that it is not so acceptable in this matter.”

His Honour then voiced some concerns about the certainty with which Mr Erskine had come to his final conclusion and highlighted a number of reasons why Mr Erskine may have been a little less strong in his conclusion, noting that professional witnesses often provide

“a far more conservative approach to a conclusion, or, indeed, the basis of presenting a series of options for a tribunal to make a decision”.

His Honour also noted the youth of the children, the time that had elapsed between the possible event and the allegations, and the leading nature of many of the police questions. His Honour however, concluded:

“All of these factors however, need to be subsumed into the overall proposition that there is no countervailing evidence.”

We would interpose and say that there certainly was countervailing evidence, namely the husband’s denials. Even if the husband remained silent on the matter, the tests referred by the High Court of clear, cogent and strict proof still remained applicable, albeit on the balance of probabilities.

His Honour then concluded:

“All of these matter, and any doubts I may have about the final result of his report, must ultimately be put to one side. His evidence constitutes one element of my consideration about whether or not child abuse has occurred.”

We do not quite understand what it is that the trial Judge is saying in that paragraph. There appears to be an internal contradiction. Either he is bringing Mr Erskine’s evidence into the assessment process subject to the doubts that surround its validity (in which case he could not put those doubts aside) or it is decisive, in which case it is wrong to say it "constitutes one element in my consideration”.

Having identified Mr Erskine’s evidence as one element to be considered, His Honour then said:

“The second element is the statements of the children themselves which are reported to him [Mr Erskine] and also to the police…The third element of the consideration of course is the evidence of Mr S himself.”

His Honour then says under the heading “Summary”:

“In this case therefore, there is the strong evidence of Mr Erskine in which he asserts that the abuse has occurred, based upon his clinical assessment of the children. There is the evidence of the children themselves and there is the evidence of Mr S.”

His Honour said that the wife’s evidence was corroborative of the children’s evidence and that the incident described by her of the children placing their bare bottoms and legs in proximity to the husband’s face would not cause his Honour to conclude that there had been sexual abuse.

His Honour then discussed why the children may have said what they were reported to have said. He said that the first possibility was because the children were accurately reporting what had occurred. The second possibility was that the evidence had been put into their minds either directly or deliberately by some other person, or alternatively, had been conditioned by a process of questioning or other inappropriate investigation in the first place. His Honour then identified the remaining possibility the children were deliberately lying about the incidents. His Honour concluded that it was unlikely the children were telling deliberate untruths and then said:

“I am left with the proposition either that the statements they have made are true, in which case it would affirm and confirm the assessment made by Mr Erskine and fit within the corroborative evidence that I have mentioned previously. Or, alternatively, I may conclude given all of the evidence before me, that the children had either been deliberately conditioned or coached by a third person, or alternatively, had by reason of mismanaged investigative approach by some parties or party, developed a story which for all practical purposes they now believed to be true but which was not true.”

His Honour concluded, having regard to the manner in which the wife gave her evidence and

“given that there is no evidence directly as to the fact, it seems to me that I could not possibly feel the sense of persuasion I must do to come to a conclusion that the children had been deliberately and directly conditioned by Mrs S.”

His Honour then reduced the possible explanations to two:

“…one that the children are telling the truth, and/or that the children’s evidence has now been contaminated in effect by the reporting and recording of it by those engaged in the process of investigation or assessment.”

His Honour indicated that Mr Erskine rejected that possibility.

His Honour then commented that there had been a certain consistency of approach by the children in the manner in which they had given their evidence over a period of time, saying:

“…that the evidence of the children has satisfied in language and detail the ‘test’ of substantial reliance upon a central theme.”

Precisely what the nature of that “test” is or where his Honour extracted it from is not explained in his reasons for judgment.

His Honour then returned to the evidence of Mr Erskine that the children’s reports to him were:

“at least consistent and possibly indicative of the sexual abuse having occurred and a fortiori that their responses were not conditioned responses but rather genuine and truthful.”

His Honour concluded:

“…that I am left in the fact of the evidence as it is in this case with a persuasion that the sexual abuse in this case must have happened.”

After making a positive finding of abuse (but without defining exactly what that abuse consisted of) His Honour said:

“…it would not be appropriate in the normal course of events to allow the children to be exposed to any unacceptable risk that they might be further interfered with by their father…”

However, his Honour then examined the various provisions of the Family Law Act, and in particular s.68F(2). He concluded on the residence issue that:

“even if there were to be a choice between the parties, untrammelled by the question of sexual abuse, it would be appropriate that the children live with her [the wife].”

On the contact issue his Honour said:

“I hope that in due course, when the children have acquired a level of self-protection, maturity and understanding, and when the parties antipathy to each other has finally been dissipated by time, that the children will have an opportunity to spend time with their father. However, until that time arrives, which I see regrettably as being some time in the future, in my opinion, the children should not have contact with their father.”

The correct approach to assessing evidence of child abuse

Paradoxically, his Honour does not cite the very passage from Dixon J in Briginshaw, supra, at 362 that their Honours in M and M, supra, thought "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", namely,:

“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.”

The juxtaposition of that passage in M and M, supra, is in our view an important reminder that the more serious the allegations and the ramifications of them being proven, the more convinced the Court needs to be that the allegations are proven, albeit on the balance of probabilities. In Refjek v McElroy [1965] 112 CLR 517 at 521, when discussing the civil standard of proof necessary to support a finding of fraud, the High Court said:

"The ‘clarity’ of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved: see Briginshaw v. Briginshaw (1938) 60 CLR 336 , per Dixon J.(1938) 60 CLR, at p 362 ; Helton v. Allen (1940) 63 CLR 691 per Starke J.(1940) 63 CLR, at p 701 ; Smith Bros. v. Madden (1945) QWN 39 , per Dixon J.(1945) QWN, at p 42 . (at p521)

But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge: see Helton v. Allen (1940) 63 CLR 691 per Dixon, Evatt and McTiernan JJ. (1940) 63 CLR, at p 714”

In Neat Holdings Pty. Ltd v. Karajan Holdings Pty. Ltd And Ors (1992) 67 ALJR 170; (1992) 110 ALR 449, Mason C.J., Brennan, Deane and Gaudron JJ said (emphasis added):

“The ordinary standard of proof required of party who bears the onus in civil litigation in this country is proof on the balance of probabilities.
That remains so even where the matter to be proved involves criminal conduct or fraud ((1) See, e.g., Hocking v. Bell (1945) 71 CLR 430, at p 500; Rejfek v. McElroy (1965) 112 CLR 517, at pp 519-521). On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear ((2) Briginshaw v. Briginshaw (1938) 60 CLR 336, at p 362; Helton v. Allen (1940) 63 CLR 691, at p 701; Hocking v. Bell (1944) 44 SR (N.S.W.) 468, at p 477 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Rejfek v McElroy (1965) 112 CLR, at p 521; Wentworth v. Rogers (No.5) (1986) 6 NSWLR 534, at p 539 or cogent ((3) Rejfek v. McElroy (1965) 112 CLR, at p 521) or strict ((4) Jonesco v. Beard (1930) AC 298, at p 300; Briginshaw v. Briginshaw (1938) 60 CLR, at p 362; Helton v. Allen (1940) 63 CLR, at p 711; Hocking v.Bell (1944) 44 SR (N.S.W.), at p 478 (affirmed in Hocking v. Bell (1945) 71 CLR, at pp 464, 500); Wentworth v. Rogers (No.5) (1986) 6 NSWLR, at p 538 ) proof is necessary "where so serious a matter as fraud is to be found" ((5) Rejfek v. McElroy (1965) 112 CLR, at p 521). Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct ((6) See, e.g., Motchall v. Massoud (1926) VLR 273, at p 276) and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."

In Director General for Family and Children's Services v E (1998) 23 Fam LR 546, Heenan J of the Supreme Court of Western Australia heard an appeal against the findings of a Magistrate in a matter involving a Care and Protection application where it had been alleged that the mother of two children had been unable to adequately protect them from a sexual assault perpetrated by their father on one of the children in the presence of the other. In discussing the level of proof necessary before a positive finding of sex abuse ought be made, his Honour said (at 549):

“In S v S [1993] NZ FLR 657; at 660, Thomas J said:
‘The reality is that child sexual abuse is often as difficult to prove as it is difficult to refute … At the same time it must be borne in mind that false accusations or total fabrications of child sex abuse are regarded by many experienced child psychologists and psychiatrists as being somewhat rare. This does not mean, of course, that allegations of sexual abuse are to be approached on the basis that they are true or likely to be true. Indeed, it is recognised that a relatively small but significant percentage are likely to be false. The point merely serves to demonstrate the difficulty of reaching a firm conclusion as to whether sexual abuse has or has not occurred and the necessity to proceed with great care and caution before either finding that such allegations have been established or finding that they are without foundation. The court’s concern must be to adopt an approach which will be just and which will place the welfare of the child ahead of all other considerations.’

When the present applications were heard in the Children’s Court the child, J, was 5½ years old and the child, A, 4 years old. Neither gave evidence and neither attended at the court. What they and their mother said about the matters in issue was relayed to the court by others. That evidence was admitted under s 30 (3) (a) of the [Child Welfare] Act [(WA) 1947] which provides that in such proceedings:
‘…the court shall admit in evidence any statement, whether oral or otherwise, voluntarily expressed or necessarily implied and whether made in the presence of a party to those proceedings or not.’

Clearly that provision enables hearsay to be admitted as evidence of the truth of the statement made but it says nothing about the weight which is to be attached to such evidence. Nevertheless, the necessity to proceed with great care and caution, to which Thomas J referred in S v S, can hardly be overemphasised when, as in this case, the proof of sexual abuse and the identification of the abuser depend a great deal upon the statements of children whom the learned magistrate has neither seen nor heard.”

This very caution is totally applicable to proceedings under the Family Law Act and evidence received via the provisions of s.100A. Where the "witness" whose evidence is to be relied upon has not been seen or heard by the trial Judge, and whose evidence has not been tested by the person against whom an adverse finding is sought to be made, then utmost caution needs to be taken before such evidence can be relied upon to establish such a serious allegation as sexual abuse.

The evidence which his Honour said persuaded him to make a positive finding of specifically, digital penetration and generally, sexual abuse was the opinion of Mr Erskine and the statements of the girls.

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.”

Mr Erskine was a clinical psychologist with 22 years experience in practice. Beyond a short statement of his qualifications and experience, no attempt was made to establish his expertise in evaluating the probability of abuse having occurred. Whilst this task should have fallen on the shoulders of the Children's Representative who had engaged his services, once it became apparent to the trial Judge that the self represented litigant was not covering that aspect of the evidence, the trial Judge, if he was to rely significantly on Mr Erskine's opinion, needed to satisfy himself as to the expertise of the witness to give such an opinion.

In our view, reliance on Mr Erskine's opinion and the unheard and untested statements of the children would not have led his Honour to be positively satisfied that the children had been digitally penetrated or sexually abused by their father, had his Honour applied the test in Briginshaw, supra, and the other authorities cited above. However, unless his Honour accepted the husband's denials and explanations, it was certainly open for his Honour to conclude that unsupervised contact would leave the children in a position of "unacceptable risk". What, if any, contact orders might have been made had his Honour made such a finding would only be a matter of speculation by us.

Conclusion

In our view this matter needs to be remitted for a rehearing. In summary, we are remitting this matter for rehearing because:

(a)the trial Judge based his findings significantly on evidence which could only have properly have been admitted before him by consent or by the exercise of a discretion and that given that the appellant was unrepresented, it was incumbent upon the trial Judge to invite the appellant to make submissions as to the manner in which that discretion should be exercised or as to the ramifications which might follow if consent were given to the admission of the evidence.
(b)The trial Judge failed to invite submissions in respect to the giving of evidence by way of telephone in accordance with Order 30 rule 2AAA(3) and, in particular, failed to explain to a litigant in person the ramifications on issues of credit of the failure by the trial Judge of an opportunity to observe the manner in which the witnesses gave their evidence.

(c) The introduction into evidence before us by consent of the report of the medical officer and the possible effect that it may have had upon the conclusions reached by the trial Judge;

(d) The failure of the trial Judge to apply that part of the decision of Briginshaw and Briginshaw, supra, which was identified by the High Court in M and M, supra, as being most apposite to cases involving alleged sexual abuse of young children.

(e) The conclusion of the trial Judge that absent evidence to the contrary he was bound to make a positive finding of sexual abuse.

One difficulty about remitting the matter is that the parties have moved from Canberra to Tasmania. It would seem, however, that many of the significant witnesses, such as Mr Erskine, the police officers, the counsellors who acted as supervisors during contact periods, and the medical officer, may all still reside in the Canberra area. In the circumstances, we are of the view that it is appropriate that the matter be remitted back to the Canberra Registry but that either party be at liberty to apply for a change of venue to Tasmania or some other registry as they may be advised. We would further recommend that the matter be given an expedited hearing, given that the proceedings herein commenced almost three years ago.

Costs

At the conclusion of the hearing we received submissions as to the costs in the event that the appeal was allowed. Counsel for each of the parties has sought relevant certificates under the provisions of the Federal Proceedings (Costs) Act (s.9 for appellants, s.6 for respondents). They each sought certificates under s.8 for a retrial. The difficulty with granting a certificate for a retrial in respect of the husband is that he was not represented at the first trial and it cannot properly be argued that he has effectively wasted the costs spent at the first trial which would justify the granting of the certificate for costs at the second trial.

In the circumstances, we propose to grant s.8 certificates to the respondents to this appeal, but not to the appellant. At the same time, we would observe that if the appellant otherwise falls within Legal Aid guidelines and is desirous of having legal aid at the trial, then it would be a curious result indeed to see that the mother and the Children's Representative were covered by public funds but the father was not.

Orders

The orders of the Court will be:

1. That the appeal be allowed.
2.That Orders 1, 2, 2.1, 2.2 and 3 of the orders of Justice Faulks made 23 May 1997 insofar as they purport to be permanent orders be set aside but that they remain in full force and effect pending the further hearing and determination of the applications remitted by these orders or further order.
3.That the respondent wife’s amended Form 7 application filed 30 April 1997 and the appellant husband’s response filed 7 March 1996 be remitted to the Canberra Registry of the Family Court of Australia for determination by a judge other than Justice Faulks.
4.That there be liberty to either party to apply to a judicial officer at the Canberra Registry for a change of venue.

5. That the hearing of the retrial of this action be expedited.
6.That the Court grants to the appellant/husband a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant/husband in respect of the costs incurred by the appellant/husband in relation to the appeal.
7.That the Court grants to the respondent/wife and the Children's Representative costs certificates pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondents in respect of the costs incurred by the respondents in relation to the appeal.
8.That the Court grants to the respondents 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 to the respondents in respect of such part as the Attorney General considers appropriate of any costs incurred by the respondents in relation to the new trial granted by these orders.

[1999] FamCA 12

12 January 1999

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