SELLERS & SAXTON - [2011] FamCAFC 227

FAMILY COURT OF AUSTRALIA

SELLERS & SAXTON

[2011] FamCAFC 227

FAMILY LAW ─ APPEAL FROM DECISION OF FEDERAL MAGISTRATE ─ CHILDREN ─ Best interests of the children ─ Challenge to finding of unacceptable risk of harm ─ Not established that it was not reasonably open to the learned Federal Magistrate to accept the evidence of the mother, the maternal grandmother, the paternal aunt and the paternal niece in relation to the child Y’s disclosures ─ Not established that the learned Federal Magistrate “palpably misused” the advantage he enjoyed over this Court of having seen and heard the witnesses give evidence and undergo cross-examination ─ Appeal dismissed

FAMILY LAW ─ APPEAL FROM DECISION OF FEDERAL MAGISTRATE ─ CHILDREN ─ Parenting arrangements ─ Parental Responsibility ─ Where the Court was referred to nothing which indicated, or should have indicated, to the learned Federal Magistrate that either party at any time was seeking other than an order for sole parental responsibility in his or her favour ─ Not established that the learned Federal Magistrate erred in concluding that preserving the presumption of equal shared parental responsibility (“ESPR”) would not be in Y’s best interests ─ Not established that the learned Federal Magistrate made an error of principle or discretion in relation to his conclusion that ESPR was not in the child X’s best interests ─ Where even if, contrary to the Court’s conclusion, the learned Federal Magistrate erred in concluding as he did with respect to ESPR for the child X, his decision could be supported by the conclusion he had reached with respect to the child Y, and the undesirability of continuing the presumption of ESPR for one child but not the other ─ Appeal dismissed

COSTS ─ Where neither party sought costs ─ No order for costs of the appeal made

Family Law Act 1975 (Cth) Part VII, ss 60CC, 60CC(2), 60CC(2)(b), 60CC(3)(b), (d), (f), (i), (j) and (m), 61DA, 61DA(2), 61DA(4), 62DA(4)
Federal Magistrates Act 1999 (Cth) s 39

Abalos v Australian Postal Commission (1990) 171 CLR 167
Briginshaw v Briginshaw (1938) 60 CLR 33
Coulton v Holcombe (1986) 162 CLR 1
Edwards v Noble (1971) 125 CLR 296
Gronow v Gronow (1979) 144 CLR 513
M v M (1988) 166 CLR 69
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
Metwally (No 2) v University of Wollongong (1985) 60 ALR 68
SSHontestroom v SS Sagaporack [1927] A.C. 37
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588
Voulis v Kozary (1975) 180 CLR 177

APPELLANT:

Mr Sellers

RESPONDENT:

Ms Saxton

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Wollongong

APPEAL NUMBER:

EAA

2011

FILE NUMBER:

WOC

682

2008

DATE DELIVERED:

2 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

11 November 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 June 2011

LOWER COURT MNC:

[2011] FMCAfam 597

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Alexander

SOLICITOR FOR THE APPELLANT:

Verekers Lawyers

SOLICITOR FOR THE RESPONDENT:

Self Represented

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Doosey

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Aid NSW Wollongong

Orders

That the appeal be dismissed.
That there be no order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Sellers & Saxton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 79 of 2011
File Number: WOC 682 of 2008

Mr Sellers

Appellant

And

Ms Saxton

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed 13 October 2011 Mr Sellers (“the father”) appealed against orders made by Federal Magistrate Scarlett on 15 June 2011 in parenting proceedings between the father and Ms Saxton (“the mother”) pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The orders of the learned Federal Magistrate against which the father appealed relevantly provided that the mother have sole parental responsibility for the two children of the former relationship of the parties, X born in 2000 and Y born in 2004 and that the children spend time with the father on the basis defined by his Honour. The time to be spent by the child Y with the father was to be supervised.
The father sought that the orders made by the learned Federal Magistrate on 15 June 2011 be discharged and that the parenting proceedings be remitted for rehearing “before a single Judge of the Family Court of Australia”.
Before the learned Federal Magistrate, each party had sought sole parental responsibility for the two children. Each party sought that the children primarily reside with him or her.
The mother resisted the father’s appeal and sought to maintain the orders of the Federal Magistrates Court.
Counsel for the Independent Children’s Lawyer (“the ICL”) neither supported the father’s appeal, nor the mother’s resistance of it.
It is common ground that, if the father’s appeal is successful, the parenting proceedings will be remitted for rehearing, necessarily to the Federal Magistrates Court. Whether the Federal Magistrates Court would retain the proceedings, or, as the father sought, transfer them to the Family Court for hearing would be a matter for the Federal Magistrates Court (see section 39 of the Federal Magistrates Act 1999 (Cth)).
It was common ground that, if the father’s appeal was successful, each party and the ICL should be granted costs certificates for the appeal and the rehearing. In the event of the father’s appeal being unsuccessful, neither the mother nor the ICL sought any order for costs against the father.

Background

The parties were married in January 1999 and separated under the one roof in February 2008. The mother left the matrimonial home with the children in mid April 2008, returned on or about late April 2008 and left the home finally at the end of April 2008. The parties were divorced in July 2009.
Subsequent to the separation of their parents, the parties’ two children primarily lived with the mother.
The mother was aged almost 38 years and the father was aged 37 years as at the date of the judgment of the Federal Magistrate.
Disclosures of inappropriate touching by the father were made by Y to the mother on 26 April 2008 and 11 May 2008. The father has always denied any inappropriate touching of Y.
The father did not see the children until after the making of interim orders in the Federal Magistrates Court of 29 August 2008. Those orders provided that the children live with the mother and spend supervised time with the father each alternate Sunday. The father continued to see the children on that basis until the making of the orders which gave rise to the present appeal.
The parenting proceedings were heard over six days in the Federal Magistrates Court. The learned Federal Magistrate did not find that the father had inappropriately touched Y, but that the evidence established an unacceptable risk for the child Y in spending time with the father on an unsupervised basis. There has never been any suggestion that the child X’s time with the father should be supervised.
The learned Federal Magistrate concluded that the children’s best interests would be served by them continuing to reside with the mother and spending defined time with the father, such time being supervised in the case of Y in light of the finding that unsupervised time would constitute an unacceptable risk for Y.
The learned Federal Magistrate concluded that the presumption of equal shared parental responsibility (“ESPR”) was rebutted by the best interests of the children, that conclusion being significantly reliant upon the finding he had made as to an unacceptable risk of harm for the child Y, and in the case of the child X, the level of hostility found to exist between the parents.

The challenge to the finding of unacceptable risk

Although the father’s Amended Notice of Appeal articulated two grounds, for reasons which will become apparent, it is preferable to deal first with the second of those grounds.
Ground 2 provided:
2.The Magistrate [sic] erred in that in forming the view that the Father posed an unacceptable risk to the child [Y]:
2.1The Magistrate [sic] gave too much weight to the evidence of [Ms J];
2.2The Magistrate [sic] gave insufficient weight to the effect that the allegations of [Ms T] had upon the mother;
2.3The Magistrate [sic] gave too little weight to the failure of [Ms T] to give evidence;
2.4The Magistrate [sic] gave too little weight to the observations of Dr [W]; and
2.5The Magistrate [sic] gave too little weight to the fact that [Y] did not make disclosures to her mother or to DOCS.
in [sic] consequence of which the conclusion of the Magistrate [sic] was without proper foundation and unreliable.
As is readily apparent from their terms, each of the five complaints articulated in this ground constitute “weight” challenges, the law in relation to which is not in doubt, and does not require extensive re-statement for present purposes.
In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-20 that:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
In the course of his written submissions, Counsel for the father also raised challenges which exceeded the ambit of what were clearly articulated in the Grounds of Appeal as weight challenges. The Court has considered these challenges.
In support of the ground generally, it was submitted by Counsel for the father that:
20.His Honour did not give sufficient weight to the circumstances that no proper disclosure had been made to those who were trained to elicit them. He relied on the evidence of witnesses who had each been pre-disposed in relation to the issue which was the subject of the disclosure.
As is not in doubt, the learned Federal Magistrate was aware that Y had not made disclosures to the relevant child protection authority, or to the Joint Investigative Response Teams, or to Dr W.
The learned Federal Magistrate recorded at paragraph 52(i) of his Reasons for Judgment that:
52.…
(i)Dr [W] found the issue relating to the need to protect the children from harm arising from abuse, neglect or family violence difficult to appraise. He formed the view that “it is likely that [Y] has made the statements that are alleged, but the ambiguity lies in the reasons for this and the construction that should be put on her statements.” He raised the possibility that the Mother, after [Y] had made the statements she made, had asked her leading questions which may have subtly reshaped the child’s responses to turn something innocent into something more sinister. Dr [W] was somewhat critical of the involvement of Ms [D], the psychologist consulted by the Mother, saying:
Ms [D]’s involvement could, in retrospect, have been somewhat of a concern in respect of the above, but she arrived on the scene after the original allegations had been made so at worst she may have only consolidated [Y]’s statements and at best, she may indeed have obtained some further details. I note her qualifications though, which do not immediately suggest this is an area of expertise for her. (footnotes omitted).
Later, the learned Federal Magistrate recorded at paragraphs 110 and 111 that:
110.…The investigation by the Department of Community Services and by JIRT did not elicit any disclosures by [Y] that justified any action being taken. There is no longer an Apprehended Violence Order in force.
111.Dr [W] was critical of the involvement of [Ms D] in interviewing the child and I am persuaded that little weight should be given to her account. As Dr [W] pointed, Ms [D]’s qualifications and expertise are not in this sensitive area.
His Honour had earlier recorded at paragraph 63 that:
63.The Mother arranged for a child counsellor, a psychologist named [Ms D], to counsel the child. Ms [D] had three counselling sessions with the child, on 30^th May, 20^th June and 8^th July 2008. She reported that the child had said to her that her father had touched her, including placing his index finger inside her vagina.
His Honour reiterated, accurately at paragraph 115 that there is no doubt that:
115.The evidence to be relied upon comes from the Mother, the maternal grandmother, [Ms J] and her mother, [Ms F].
This Court has not been referred to any expert opinion evidence, from Dr W or anyone else, which established that it was significant that “no proper disclosure had been made to those who are trained to elicit them”. In the absence of being referred to any such evidence, the Court cannot accept that the learned Federal Magistrate gave insufficient weight to such evidence. In the absence of expert opinion evidence as to the significance of this factor his Honour could not safely have relied upon it when determining the probability or improbability of the child’s disclosures being true.
To the extent that the witnesses whose evidence was relied upon were not “trained to elicit them”, nothing to which this Court has been referred establishes that evidence of complaint such as Y made to those witnesses was unable to be accepted on the basis that the persons to whom they were allegedly made were not “trained to elicit them”. No expertise was required for them to have given evidence of a disclosure. That was an issue of fact. Part of Dr Ws’ criticisms of Ms D, which the learned Federal Magistrate accepted, related to the manner in which she “elicited” the child Y’s responses. Properly, his Honour did not rely upon that evidence in reaching his conclusion of unacceptable risk.
So far as the submission that each of the witnesses to whom Y made disclosures had been “predisposed” is concerned, nothing to which the Court has been referred establishes that the learned Federal Magistrate’s conclusions with respect to the evidence given by each of the mother, the maternal grandmother, the paternal niece or the paternal aunt was unable to be accepted on the basis that they were “predisposed”. Inferentially, the submissions of Counsel for the father assert that the witnesses upon whose evidence the learned Federal Magistrate relied had either coached the child to make a disclosure, or embellished the disclosures which the child made. Nothing to which this Court has been referred establishes that the learned Federal Magistrate should have so found.
As is not in doubt from a reading of the learned Federal Magistrate’s Reasons for Judgment, the issue of possible unacceptable risk if the child Y was to spend unsupervised time with the father, and its significance, were identified by his Honour when he said that:
32.There is really one issue in this matter, but it is a very serious issue. It is the Mother’s case that the Father has sexually abused the parties’ daughter [Y] and, as a consequence, she seeks orders that will protect the child from the risk of harm.
There is no suggestion that his Honour misstated or misconceived the issue which was pivotal to determining the parenting proceedings before him.
In the course of reviewing the expert opinion evidence of Dr W, the learned Federal Magistrate referred, in the passage to which the Court has earlier referred, to possible explanations for the child’s disclosures. As is not in doubt, Dr W found the issue “relating to the need to protect the children from harm arising from abuse, neglect or family violence difficult to appraise”. It was for the learned Federal Magistrate, as the “trier of fact” (see Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705) to determine that issue, and to do so by reference to the evidence before him.
The learned Federal Magistrate carefully considered the history of Y’s disclosures to the mother, the maternal grandmother, the paternal niece Ms J and the paternal aunt Ms F. The learned Federal Magistrate recorded that Y first said to the mother on 26 April 2008 “Daddy touches me down here and it is sore”. His Honour recorded, accurately, the mother’s response to that disclosure:
58.The Mother stated that she noticed the child’s vagina was “a bit red” but she thought that the soreness may have been due to spending time in the sand at [the beach] the previous day and not having had a bath for 24 hours.
As is not in doubt, the mother gave the father the benefit of the doubt in relation to Y’s initial disclosure. It is difficult to reconcile her doing so with any asserted ulterior “predisposition”. Similarly, when the child said to the mother on 11 May 2008 “I am sore, Daddy touches me here”, the mother did not refer the child to Department of Family and Community Services (“DOCS”) or the Police or a medical practitioner. As it is not suggested that the disclosure was not made, that too is difficult to reconcile with any asserted ulterior “predisposition”.
The first reporting of Y’s alleged disclosures was in fact by the paternal niece Ms J on or about 20 May 2008. In what way Ms J was “predisposed” to manufacture, encourage or embellish a disclosure by Y has not been identified before this Court. Thereafter the mother arranged for the counselling sessions which Ms D, a psychologist, conducted on 30 May, 20 June and 8 July 2008.
The maternal grandmother deposed to two alleged disclosures that “concerned her”, on 5 June 2008 when, she alleged, Y said words to the effect of “I’ve got two holes” and, on 25 June 2008 when the child allegedly said “Daddy touches me here”. In what way the maternal grandmother was “predisposed” to manufacture, encourage or embellish disclosures by Y in those terms has not been identified before this Court.
The learned Federal Magistrate then considered the evidence of the paternal aunt Ms F, and her daughter Ms J. Ms F and Ms J alleged that on 19 May 2008, at a time when Ms J was babysitting Y, Y “pulled down her pants, sat on the floor, spread her legs and pointed to her vagina” and “repeated” words to the effect “It’s sore in there” and “Daddy did touch me in there”.
In the course of the reasoning which gave rise to his “conclusions” the learned Federal Magistrate referred to the father’s assertion that Y had been “manipulated by the Mother to say the things that she had said in order to further her own interests in these proceedings”.
His Honour said in that regard that:
113.I do not accept this submission. The Mother had separated from the Father because of his erratic behaviour, which had involved verbal abuse and spitting in her face. It seems unlikely that she would have seen the need to fabricate allegations of abuse against the Father in order to bolster her case to have the children live with her.

Nothing to which this Court has been referred establishes that anything there recorded by the learned Federal Magistrate was other than reasonably open to him on the evidence. The matters to which reference has earlier been made support his Honour’s conclusion. The evidence before him amply supported the observation made by his Honour in the final sentence of paragraph 113 of his Reasons.
His Honour then referred to assertions of the father that the mother “may have allowed her mind to be poisoned” by accusations apparently made by another niece of the father, Ms T, that the father had inappropriately touched her when she was a young child.
The learned Federal Magistrate recorded, accurately there is no doubt that:
114.…[Ms T] did not give evidence in this case. She did not depose to an affidavit setting out her allegations. She declined to give evidence, even by telephone, and the only role she played was to seek to be excused from giving evidence. Whatever [Ms T]’s claims may or may not be, they do not amount to any evidence against the Father in this case.
Nothing to which this Court has been referred establishes the probability that the mother’s mind was “poisoned” in reliance upon Ms T’s “accusations”.
The learned Federal Magistrate said of the mother’s evidence that:
116.I observed the Mother whilst she was giving evidence and listened to her evidence very carefully. She appeared to give a very believable account of what she said [Y] had disclosed, although she at first did not want to believe that the child had actually disclosed abuse by her father.
His Honour said of the evidence of the maternal grandmother that:
117.The evidence of the maternal grandmother, [Ms S], corroborates the mother’s evidence as to the child’s disclosures and her sexualised behaviour.
The learned Federal Magistrate then recorded that:
118.However, it is the evidence of [Ms J] and her mother, [Ms F], that I found particularly persuasive. There is no evidence that the Mother coached [Y] into making the disclosures that she did or that she in some way conspired with either [Ms J or Ms F] to make up this story.
119.[Ms J] did depose that the Mother had spoken to her previously about her concern that [Y] was complaining of a sore vagina and asked her if she had noticed anything strange about her behaviour, but the evidence goes no further than that.
120.[Ms J]’s evidence is that [Y]’s disclosures to her were unsolicited and caused her so much shock and confusion that she telephoned her own mother, who soon came over and also received an unsolicited disclosure by [Y], which [Ms J] confirmed.
121.My observation of [Ms J] was that she was a very good witness. She was credible and definite, but did not appear to exaggerate. She herself is a young mother, and her reaction to this disclosure was to seek help from her own mother. I regard her as a witness of truth.
122.Similarly, [Ms F]’s evidence was credible and persuasive.
Importantly, the learned Federal Magistrate then said that:
123.It is important to consider the fact that [Ms F] is the Father’s adopted sister and [Ms J] is his niece. By taking the action that they did, they have in effect severed the relationship with the Father. Why, it should be asked, would [Ms F] and [Ms J] side with the Mother against their own brother and uncle?
Notwithstanding the comprehensive and cogently reasoned submissions of Counsel for the father, the question his Honour there posed remains unanswered.
The principles governing challenges to findings of fact made by trial Judges, for that is what the current challenges really constitute, are not in doubt.
In Abalos v Australian Postal Commission (1990) 171 CLR 167 McHugh J, with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed, referred with approval to the judgment of Lord Sumner in SSHontestroom v SS Sagaporack [1927] A.C. 37 (at 47) that:
47..… not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 (“Earthline”) having extensively reviewed the history of “Appellate review of facts”, and the “Emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial judge’s real advantages” in relation to the credit of witnesses. In the course of his judgment (at paragraph 90) his Honour said that:
90.The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge… (footnotes omitted)
Nothing to which this Court has been referred establishes that it was not reasonably open to the learned Federal Magistrate to accept the evidence of the mother, the maternal grandmother, the paternal aunt and the paternal niece in relation to the child Y’s disclosures. Nothing to which this Court has been referred establishes that the learned Federal Magistrate should have rejected or in some way discounted the evidence of any of those witnesses, either on the basis that they had “coached” the disclosures made by Y, or been “predisposed” to hearing such disclosures. Nothing to which this Court has been referred establishes that the learned Federal Magistrate “palpably misused” the advantage he enjoyed over this Court of having seen and heard the witnesses give evidence and undergo cross-examination.
As Counsel for the father fairly made clear, it was not suggested that it was not open to the learned Federal Magistrate to find that the disclosures were made, the father’s complaint being that the learned Federal Magistrate “asked himself the wrong questions”.
Counsel for the father submitted that the learned Federal Magistrate had led himself into error, by focussing exclusively on the disclosures Y made, and the evidence of the persons to whom she did disclose.
It was submitted that, had his Honour had equal regard to other evidence of what had not occurred, both as to time and events, he could not reasonably have concluded on the balance of probabilities in the Briginshaw v Briginshaw (1938) 60 CLR 33 sense that the father constituted an unacceptable risk.
Those matters were submitted to the learned Federal Magistrate, and reiterated before this Court and comprised:
21.1Physical separation occurred in April 2008. There was no suggestion of any abuse before then notwithstanding the abundant opportunity which the father had.
21.2As if to underline that evidence, on 25 April 2008 the father takes his daughter to [the beach]. [Y] feels sore and the mother quite sensibly assumes that the likely irritant is sand.
21.3There is no further incident before 11 May 2008. So this is now long after any time which the father has had with [Y]. It is suggested that [Y] then says “I am sore. Daddy touches me here”. This is the same form of words used in April and we can assume that whatever else it means it must be referring to “touch” as just that (ie not in the sense of “touching up”) and it must be a recall of what has been said before, presumably as a result of some positive reinforcement from the mother.
21.4The last relevant day of contact is 16 May 2008. There is no evidence of any further incident on that date. Despite that, on 19 May 2008 (well over 3 weeks after Anzac Day), [Y] is said to make a disclosure to [Ms J].
21.5Of course, it is not value neutral. [Ms J] is specifically told of the earlier incident despite the fact that the mother claims that she dismissed it as a result of irritation and nothing more seems to have occurred.
21.6[Y] is examined on 20 May 2008 by DOCS and no sign of assault or of interference is found. The “redness” which [Ms J] seems to find on 19 May 2008 (more than 3 weeks after Anzac Day and 3 days after the last contact with the father) is entirely absent on the next day.
21.7Examination of 20 May 2010 [sic] by an independent expert shows no redness, no swelling and no lesions.
21.8By 25 May 2008 the mother is clearly exaggerating. Having originally described [Y] as “a bit red”, she now suggests she returned from [the beach] with “a very red vagina”.
21.9On 24 June 2008 when [Y] is said to have said “Look Mummy, this is where Daddy touches me”, it is apparent that it is a learned response. It is almost 2 months since Anzac Day!
None of the matters to which Counsel for the father referred the Court was not known to and, in most instances referred to, by the learned Federal Magistrate in the course of his reasons. The learned Federal Magistrate was clearly aware of the difficulties which the evidence revealed, and to which he referred by reference to the evidence of Dr W of his Reasons for Judgment.
The matters asserted by Counsel for the father to which reference has been made neither individually nor cumulatively render erroneous the learned Federal Magistrate’s finding with respect to unacceptable risk.
It was further complained by Counsel for the father that:
22.The Federal Magistrate made something of the explanation of the Father to Dr [W] that [Y] may have been manipulated by the Mother: Reasons at Paragraph 112-3.
With respect to the ingenuity of this complaint, in the paragraphs to which it refers, the learned Federal Magistrate did no more than consider matters asserted on behalf of the father in relation to the reliability or otherwise of Y’s disclosures. Had his Honour not considered those possibilities, the father would have been entitled to complain. In the paragraphs to which this complaint relates, and paragraph 114 which follows, the learned Federal Magistrate considered the various bases upon which the father asserted that it was unsafe to rely upon Y’s disclosures, and particularly disclosures made to the mother. No factual inaccuracy vitiated his Honour’s consideration of those assertions.
On behalf of the father it was then complained that:
23.The Federal Magistrate makes the point that no part of [Ms T’s] allegations formed part of this case: Reasons Paragraph 114. That proposition ignores the fact the Mother clearly believed that Ms [T] had suffered abuse at the hands of the Father. If the Federal Magistrate had accepted that proposition, which was undeniable, then he might have accepted the submission of the Father that that belief had been the basis of the scenario set out in the written submissions of the Father.
On balance, it is likely that the mother believed, at least at the time she saw Dr W, that the father had acted inappropriately towards his niece Ms T. As his Honour recorded:
41.The Mother also told Dr [W] about her concerns that the Father’s niece, [Ms T], had made allegations that the Father had inappropriately touched her when she was a young child. She said that the niece had made these allegations when she was 16 and in counselling as a result of another incident unrelated to the Father. The Mother said that [Ms T] had written to her after she had separated from the Father, describing the incidents. The Mother also told Dr [W] that the niece had withdrawn her offer of assistance in these proceedings “because she now understood that in essence, this was a civil matter which could not result in a gaol sentence and that she was fearful of being cross-examined in front of Mr [Sellers] and also of Mr [Sellers] himself.” (footnotes omitted)
Nothing to which this Court has been referred demonstrates that the learned Federal Magistrate erred in failing to find that, by reason of her belief with respect to Ms T’s allegations, the mother had been “predisposed” to either coach Y to make disclosures or embellish any disclosures which she made.
As noted earlier, a major difficulty which confronts the challenges with respect to acceptance of the mother’s evidence of Y’s disclosures, as the learned Federal Magistrate acknowledged, was that the mother did not want to believe that the child had actually disclosed abuse by her father on each of the first two occasions when the child disclosed to her [26 April and 11 May 2008].
As the submissions of Counsel for the father suggest, it was open to the learned Federal Magistrate to find an absence of unacceptable risk. That however does not mean that a finding of unacceptable risk was necessarily erroneous (see Edwards v Noble (1971) 125 CLR 296 at 304, 307).
The submission of Counsel for the father that the learned Federal Magistrate “might have accepted the submission of the father” (emphasis added) cannot have been inadvertent. The test is not whether other findings were open on the evidence, but whether those made by the learned Federal Magistrate were not reasonably open to him. It is not in doubt that only two people really know the truth in relation to Y’s disclosures. The learned Federal Magistrate was obliged to have regard to the whole of the circumstances surrounding the making of the disclosures. This his Honour did. So doing did not preclude him from finding as he did.
It was further complained on behalf of the father that:
24.At Paragraph 118 Reasons, the Federal Magistrate concludes that there is no evidence as to coaching. Again such a conclusion was not available in circumstances where the Federal Magistrate must have, or should have, been aware of the impact of belief on the perception of truth. One example will suffice. Repeatedly the “disclosure” refers to daddy “touching” me. It is said in the adult sense of “touching me up”. It cannot have been said by [Y] in that sense. That leaves two alternatives:
24.1[Y] used that expression as part of a trained response; or
24.2It is an adult construct of what was said (in which case it cannot constitute evidence).
Significantly, this Court has not been referred to any evidence in support of this contention. Having regard to the terms of the complaint, that is unsurprising. It was conceded by Counsel for the father in the course of his oral submissions that, albeit in circumstances which were challenged, Y had disclosed soreness in her vaginal region and that the father “touched her”.
Nothing to which this Court has been referred establishes either of the alternatives asserted by Counsel for the father. The issue of fact before the learned Federal Magistrate was whether or not the father had touched Y in her vaginal region. The father denied that he had ever done so. The mother initially did not want to believe that he may have done so, and gave an innocent explanation to Y’s first disclosure.
Given that it was not part of the father’s case that he had ever touched Y’s vaginal region in innocent circumstances, such as bathing the child or applying medication to that area, the sole issue was one of whether or not he had done so, of which the learned Federal Magistrate was not satisfied, or whether the evidence in relation to the issue established an unacceptable risk of harm to Y if the father were to spend unsupervised time with her.
Nothing to which this Court has been referred establishes that the learned Federal Magistrate should have found either of the alternatives urged in this complaint.
It was also submitted on behalf of the father that “the objective evidence supports a different conclusion from that put forward by the Federal Magistrate”. Insofar as it was submitted that “there is not even a suggestion of abuse before physical separation”, nothing to which this Court has been referred establishes that an unacceptable risk of abuse thus could not have been found in the circumstances described by the witnesses whose evidence the learned Federal Magistrate accepted.
As noted earlier, the learned Federal Magistrate was aware that there had been “no allegation of abuse when [Y] is spoken to by trained investigators”. As also earlier recorded, nothing to which this Court has been referred establishes that the absence of such disclosure precluded the learned Federal Magistrate from finding unacceptable risk established.
It was then submitted by Counsel for the father that:
25.3When [Y] is spoken to by trained investigators she makes two disclosures:
(a)Mummy told me to say Daddy touched my woo woo (this is supported by [Ms D’s] “training” of [Y]).
(b)Daddy did not touch my woo woo.
This Court has not been referred to any evidence before the learned Federal Magistrate establishing either of these assertions, nor has it been established that, if those statements were made, they precluded the learned Federal Magistrate from finding unacceptable risk. The learned Federal Magistrate was acutely aware that there was “no medical support for the disclosures” This Court has not been referred to any evidence establishing that the absence of such medical support precluded a finding of unacceptable risk.
It was submitted by Counsel for the father that:
25.5If the vaginal area was red on Tuesday (but not otherwise hurt) as [Ms J] claims, it is most unlikely that the father had any role in that circumstance on the previous Friday.
The Court has not been referred to any evidence, presumably by an appropriately qualified medical expert, in support of this assertion.
Nothing to which this Court has been referred establishes that any of the matters observed by Dr W, or the absence of “physical distress” by Y at any stage during his observations of her precluded the learned Federal Magistrate from finding unacceptable risk. Notwithstanding all of the matters, to which he referred, Dr W concluded that “the issue relating to the need to protect the children from harm arising from abuse, neglect or family violence is difficult to appraise”.
In the course of his oral submissions, Counsel for the father asserted that there had been a “chain of influence” and “positive reinforcement” over Y in the course of her disclosures. It was further submitted that the “suspicions which built on each other were clearly seen in the repetition by the child of the mantra”.
Pivotal to these assertions is acceptance of the father’s challenges to the learned Federal Magistrate’s acceptance of the evidence of the mother, maternal grandmother, paternal aunt and paternal niece, and rejection of the father’s contentions at trial in relation to their evidence. The Court has earlier rejected those challenges. Nothing to which the Court has been referred establishes that the learned Federal Magistrate should have made findings in the terms of Counsel for the father’s complaints. His Honour was clearly alive to the case the father agitated at trial in relation to Y’s disclosures. The issue turned substantially, if not decisively, on the credibility of the witnesses who attested to the child’s disclosures. His Honour had the advantage of seeing and hearing the evidence of those witnesses tested, an advantage this Court lacks. It has not been established that his Honour palpably misused that advantage, or that his findings were glaringly improbable (see Voulis v Kozary (1975) 180 CLR 177).

Ground 2 having not been made out, it is necessary to consider Ground 1 which provided:
1.The Magistrate [sic] erred in that he determined that the mother should have sole parental responsibility despite the fact that:
1.1The presumption in favour of equal shared parental responsibility had not been rebutted; or
1.2If the learned Magistrate [sic] was of the view that it had been rebutted, he did not provide the reasons why he had formed that view; or
1.3Even if the presumption was rebutted, the learned Magistrate [sic] failed to consider whether equal shared parental responsibility was nevertheless in the best interests of the children.
As noted earlier, before the learned Federal Magistrate, each party sought an order for sole parental responsibility.
In written submissions filed on behalf of the father at trial, it was submitted, inter alia that the:
3.Children have a right to know and to be loved by both their parents. The only order which will give effect to that goal is an order for sole parental responsibility in favour of the father.
It is convenient to refer at this point to the second complaint articulated by this ground. As is not in doubt, the learned Federal Magistrate’s reasons for concluding that the presumption of ESPR created by section 61DA of the Act was rebutted is recorded in the following paragraph of his Honour’s Reasons:
130.The finding of unacceptable risk of harm in respect of [Y] leads to a finding that it is not in her best interests for her parents to have equal shared parental responsibility for her. Notwithstanding the fact that a similar finding has not been made in respect of [X], in my view the level of hostility between the parties is such that equal shared parental responsibility is not in [X’s] best interests, either.
Section 61DA (4) of the Act provides that:
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
As is also not in doubt, the factors influencing the learned Federal Magistrate’s “best interests” conclusions in the context of section 61DA were different for each of the children. In the case of Y the finding of “unacceptable risk of harm” was instrumental in his Honour’s “best interests” conclusion. In the case of X, “the level of hostility between the parties” was the factor which led his Honour to so conclude. In the circumstances, the revelation of the reasons for his Honour’s conclusion was adequate. His Honour concluded that the presumption was rebutted in the children’s “best interests” on the two separate bases which he indentified. The challenge to the adequacy of his Honour’s reasoning thus fails.
In the course of his oral submissions, Counsel for the father amplified his written submissions with respect to the impact of section 61DA(2) of the Act on rebuttal of the presumption of ESPR. With respect to Counsel for the father, the Court cannot accept that the terms of section 61DA(2) impact upon the application of section 61DA(4). Section 61DA(4) clearly refers to the basis upon which the presumption of ESPR may be rebutted.
It can reasonably be inferred that the expression “best interests” in section 62DA(4) is by reference to the considerations referred to in section 60CC of the Act. Rejecting the submissions of Counsel for the husband in relation to the impact of section 61DA(2) on section 61DA(4), does not diminish the prospect of other matters asserted in relation to this issue being successful.
It was, fairly and accurately, conceded by Counsel for the father that:
10.…it was still open to the Federal Magistrate to find that the presumption had been rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility: see Section 61DA(4) FLA.
Significantly, the learned Federal Magistrate did not conclude that the presumption of ESPR did not arise pursuant to section 61DA(2) of the Act. So concluding may have reasonably open to his Honour on the undisturbed findings of fact made by him with respect to Y. The submissions of Counsel for the father thus address an outcome which did not arise. As the submissions of Counsel for the father correctly recognise, whether or not the presumption of ESPR was applicable, determining whether there would ultimately be an order for ESPR was, in the circumstances of this case, by reference to the best interests of the children.
It was submitted by Counsel for the father that the learned Federal Magistrate failed to explain “why the alleged level of hostility between the parents means that an order that there be equal shared parental responsibility is not in the best interests of [X] and there is no consideration of making a different order in respect of [Y] and [X]”.
As noted earlier, neither party sought, even in the alternative, different orders for parental responsibility for each of the children. Given the formal positions of the parties, as clearly recorded in the written submissions filed on their behalf before the learned Federal Magistrate, in the circumstances of this case, for this complaint to have possible substance, it would be necessary to refer the Court to some submission or suggestion before the learned Federal Magistrate that such an outcome may result (see Coulton v Holcombe (1986) 162 CLR 1 and Metwally (No 2) v University of Wollongong (1985) 60 ALR 68).
The Court has been referred to nothing which indicated, or should have indicated, to the learned Federal Magistrate that either party at any time was seeking other than an order for sole parental responsibility in his or her favour. In those circumstance, the learned Federal Magistrate did not err in failing to make different orders with respect to parental responsibility for each of the children, and may well have been in error had he done so, the possibility of so doing having not been raised by either party to the proceedings before him.
It was submitted by Counsel for the father that neither of the bases upon which the learned Federal Magistrate determined that the presumption of ESPR should be rebutted was sufficient to constitute “best interests”. Counsel for the father expressly disagreed with the proposition put to him by the Court that an undisturbed finding of unacceptable risk with respect to Y could constitute best interests within section 61DA(4) of the Act.
One of the primary considerations with respect to best interests pursuant to section 60CC(2) of the Act is:
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In M v M (1988) 166 CLR 69 at page 78 Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ said that:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A. (17)), “an element of risk” or “an appreciable risk” (Marriage of M. (18)), “a real possibility” (B. v. B. (Access) (19)), a “real risk” (Leveque v. Leveque (20)), and an “unacceptable risk”: In re G. (A minor) (21).This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising 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. (footnotes omitted)
It is difficult to see how, without more than the Court has been referred to, preserving ESPR would be in a child’s best interests when unacceptable risk has been established.
The terms of section 60CC(2)(b) are sufficiently broad to encompass a finding of unacceptable risk. In those circumstances, it is difficult to see how it could nevertheless be concluded that preserving the presumption of ESPR would be in the child’s best interests. On that basis alone this complaint would fail.
If the finding of unacceptable risk were not a sufficient basis for the learned Federal Magistrate’s conclusion pursuant to section 60CC(2)(b) of the Act, the undisturbed finding of unacceptable risk to Y would be pursuant to section 60CC(3)(b), (d), (f), (i), (j), or (m). It is difficult to see how maintaining the presumption of ESPR in relation to a child in relation to whom such a finding has been made could be in the child’s best interests. It is sufficient to regard that nothing to which this Court has been referred establishes that the learned Federal Magistrate erred in concluding that preserving the presumption of ESPR would not be in Y’s best interests. This complaint fails.
To the extent that, it could succeed, notwithstanding the case presented by the father in the lower court, the challenge to the basis of the order for sole parental responsibility with respect to X fails. The Court is not satisfied that it was not reasonably open to the learned Federal Magistrate to conclude best interests on the basis his Honour did. Section 60CC(3)(m) refers to “any other fact or circumstance that the Court thinks is relevant”. Given the implications of ESPR, the ability of the parents to communicate and co-operate freely and openly, without abuse was a matter to which his Honour could, and did, sensibly have regard when considering the best interests of X. No error of principle or discretion has been demonstrated in relation to his Honour’s conclusion that ESPR was not in X’s best interests.
Even if, contrary to the Court’s conclusion, the learned Federal Magistrate erred in concluding as he did with respect to ESPR for X, his decision could be supported by the conclusion he had reached with respect to Y, and the undesirability of continuing the presumption of ESPR for one child but not the other. The parties pleaded position at trial recognised that reality, and never altered until the appeal in this Court.
It was finally submitted by Counsel for the father in support of this challenge that:
17.As an issue of public policy, if the finding of the Federal Magistrate was regarded as an adequate reason to make an order for sole parental responsibility, parties would be inclined to exaggerate the lack of communication and hostility between themselves. To the extent which that now occurs, it occurs as a result of a paucity of reasons.
With respect to the ingenuity of this submission, no issue of “public policy” arose before the learned Federal Magistrate, or arises before this Court. Whilst, on limited occasions, declaratory statements from this Court are appropriate, this is not such an appeal. Turning, as do most appeals, on the particular facts and circumstances of the case, this appeal is dispositive.
Moreover, this complaint overlooks the reality that, as this Court’s consideration of earlier challenges raised on behalf of the father confirms, the learned Federal Magistrate carefully examined the evidence before him in relation to the issues to which this complaint refers, and the reality that the findings upon which his Honour’s conclusion with respect to ESPR for X were based have not been disturbed, or, in most instances, challenged before this Court. Nothing to which this Court has been referred begins to establish that the mother exaggerated the “lack of communication and hostility” between herself and the father.
The complaint with respect to “paucity of reasons”, misconstrues the nature of appellate challenges to discretionary judgments. It is for the father to demonstrate that the learned Federal Magistrate erred in concluding as he did with respect to ESPR for X. Neither the factual basis of the learned Federal Magistrate’s conclusion, nor the reasons for it or the logic underpinning it have been successfully challenged in this Court.

CONCLUSION

No ground of appeal having been made out, the appeal will be dismissed.
None having been sought, no order for costs will be made for the costs of the appeal.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 2 December 2011.

Associate:

Date: 2.12.2011