Tait v PHATHAISONG

[2000] WASCA 284

TAIT & ANOR -v- PHATHAISONG & ANOR [2000] WASCA 284

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 284
Court:	THE FULL COURT (WA)
Case No:	FUL:20/2000	Heard:	21 AUGUST 2000
Coram:	PIDGEON J WALLWORK J ANDERSON J	Delivered:	29/09/00
No of pages:	23	Judgment Part:	1 of 1
Result:	Appeal and cross-appeal dismissed
PDF Version

Parties:	JOHN JOSEPH TAIT GERALDENE ELIZABETH TAIT SOMPHIT PHATHAISONG JULIA JOHNSTON (in her capacity as the separate representative of the child)
Catchwords:	Appeal and new trial Family law Whether a young child should reside with mother or Grandparents Child left for significant periods with Grandparents Who was responsible for sexual assault Whether trial Judge applied wrong standard of proof Extent of no contact order by a person causing a risk of further sexual assault Turns on own facts
Legislation:	Family Court Act 1997 s90 s166(2)
Case References:	B v B (1993) FLC 92-357 Bennett v Bennett (1991) FLC 92 - 191 M v M (1988) 166 CLR 69 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 P v P (1995) FLC 92 - 615 Abalos v Australian Postal Commission (1990) 171 CLR 167 Australian Coal and Shale Employees' Federation v Cwlth (1953) 94 CLR 621 B and R and the Separate Representative (1995) FLC 92-636 Bank of Western Australia v Ocean Trawlers Pty Ltd (1994) 13 WAR 407 Bartlett [1994] FLC 92-455 Brease v Brease (1998) FLC 92-793 Brunskill v Sovereign Marine and General Insurance (1985) 62 ALR 53 Burton and Burton [1979] FLC 90-622 CDJ v VAJ (1998) FLC 92-828 Devries v Australian National Railways Commission (199201993) 177 CLR 472 Doney v The Queen (1990) 171 CLR 207 Gronow and Gronow (1979) 144 CLR 513 H v W [1995] FLC 92-598 House v The Queen (1936) 55 CLR 499 Jones v Dunkel (1959) 101 CLR 298 K v Z [1997] FLC 92-783 Kennon v Kennon (1997) FLC 92-757 Mann v Mann (1957) 97 CLR 433 Northern Territory of Australia v GPAO [1999] FLC 92-838 Re K [1994] FLC 92-461 Re Lynette [1999] FLC 92-863 Re P (A Child); Separate Representative [1993] FLC 92-376 Smith and Smith [1994] FLC 92-488 SS Hontestroom v SS Sagaporack [1927] AC 37 Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 Transport Industries Insurance Co Limited v Longmuir [1997] 1 VR 125 Warren v Coombes (1978-1979) 142 CLR 531 White and White [1995] FLC 92-648 WK v SR (1997) FLC 92-787

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : TAIT & ANOR -v- PHATHAISONG & ANOR [2000] WASCA 284 CORAM : PIDGEON J

WALLWORK J
ANDERSON J

HEARD : 21 AUGUST 2000 DELIVERED : 29 SEPTEMBER 2000 FILE NO/S : FUL 20 of 2000 BETWEEN : JOHN JOSEPH TAIT

GERALDENE ELIZABETH TAIT
Appellants

AND

SOMPHIT PHATHAISONG
First Respondent

JULIA JOHNSTON (in her capacity as the separate representative of the child)
Second Respondent

Catchwords:

Appeal and new trial - Family law - Whether a young child should reside with mother or Grandparents - Child left for significant periods with Grandparents - Who was responsible for sexual assault - Whether trial Judge applied wrong standard of proof - Extent of no contact order by a person causing a risk of further sexual assault - Turns on own facts

(Page 2)

Legislation:

Family Court Act 1997 s90 s166(2)

Result:

Appeal and cross-appeal dismissed

Representation:

Counsel:

Appellants : Mr J M Walters QC & Ms E N Jenour
First Respondent : Mr S J Jones
Second Respondent : Ms J Johnston

Solicitors:

Appellants : Holden Barlow
First Respondent : Legal Aid Western Australia
Second Respondent : Legal Aid Western Australia

Case(s) referred to in judgment(s):

B v B (1993) FLC 92-357
Bennett v Bennett (1991) FLC 92 - 191
M v M (1988) 166 CLR 69
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
P v P (1995) FLC 92 - 615

Case(s) also cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167
Australian Coal and Shale Employees' Federation v Cwlth (1953) 94 CLR 621
B and R and the Separate Representative (1995) FLC 92-636
Bank of Western Australia v Ocean Trawlers Pty Ltd (1994) 13 WAR 407
Bartlett [1994] FLC 92-455
Brease v Brease (1998) FLC 92-793
Brunskill v Sovereign Marine and General Insurance (1985) 62 ALR 53
Burton and Burton [1979] FLC 90-622
CDJ v VAJ (1998) FLC 92-828


(Page 3)

Devries v Australian National Railways Commission (199201993) 177 CLR 472
Doney v The Queen (1990) 171 CLR 207
Gronow and Gronow (1979) 144 CLR 513
H v W [1995] FLC 92-598
House v The Queen (1936) 55 CLR 499
Jones v Dunkel (1959) 101 CLR 298
K v Z [1997] FLC 92-783
Kennon v Kennon (1997) FLC 92-757
Mann v Mann (1957) 97 CLR 433
Northern Territory of Australia v GPAO [1999] FLC 92-838
Re K [1994] FLC 92-461
Re Lynette [1999] FLC 92-863
Re P (A Child); Separate Representative [1993] FLC 92-376
Smith and Smith [1994] FLC 92-488
SS Hontestroom v SS Sagaporack [1927] AC 37
Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156
Transport Industries Insurance Co Limited v Longmuir [1997] 1 VR 125
Warren v Coombes (1978-1979) 142 CLR 531
White and White [1995] FLC 92-648
WK v SR (1997) FLC 92-787

(Page 4)

1 PIDGEON J: This is an appeal from an order of the Family Court that Prisarna Tait, a 4 year old child who was born in Thailand on 25 July 1996, should reside with the respondent, the mother of the child. The appellants are the parents of the father of the child and had, in the same proceedings sought an order that the child reside with them. They live in Western Australia and have, from time to time, been looking after the child when it has been brought to this State. The mother and father of the child had not married. The father is deceased, having been killed in tragic circumstances within a year of the child being born.

2 On 26 February 1998 the appellants, after they had been asked to look after the child made an application to the Family Court for an order pursuant to s 36 of the Family Court Act that they be granted sole guardianship and residency of the child, with the mother having reasonable contact to the child while the mother is in Australia. This was amended during the hearing in a way I shall later mention. There was a cross-application by the mother seeking similar orders in her favour. The applications were heard by Barlow J, who after a long trial, made an order in favour of the mother, the present respondent. His Honour ordered that the mother be responsible for the child's day to day and long term care, welfare and development. Detailed provisions were made for the appellants to have contact with the child, both when it was in Australia and when it was in Thailand. The appellants are seeking to replace these orders by orders that they have sole custody with access to the respondent.

History

3 The respondent was born in Thailand on 16 June 1975 and is now 25 years of age. She met the father in a bar in Bangkok in late 1994 or early 1995. The father was an Australian citizen born on 26 February 1963 so at that time he was approximately 33 years old. The respondent accompanied the father to Singapore and they commenced a relationship. In 1995 she became pregnant to the father. She acceded to his request for an abortion. In about October 1995 she again fell pregnant and this time she refused the father's request for an abortion. As a result the child, Prisarna Tait, was born in Conburi, Thailand on 25 July 1996.

4 The child's birth was registered in Thailand and the father registered the child as an Australian citizen by descent. The father and the respondent continued their relationship, but there were periods when they were apart by reason of the father's work commitments. They mainly lived in Thailand, but visited Hong Kong from time to time. In December 1996 the respondent and father came to Australia with the

(Page 5)

child. They stayed with the appellants. The father was able to stay for only a few weeks, but the mother and the child stayed until early February 1997 when the mother and child returned to, I assume, Thailand. In March 1997 the father, the respondent and the child, travelled to Hong Kong. On 20 April the father was struck by a person and fell into a coma from which he died on 29 April 1997. The funeral was held in Australia. The respondent and child arrived on 8 May 1997 for the funeral. They stayed five days and left again for Thailand, stopping a short time in Hong Kong to enable the respondent to collect her belongings.

5 It was the appellants wish that the respondent and child migrate to Australia and shortly after his son's death, the appellant Mr Tait took some steps to obtain permission for the respondent to migrate here. The respondent did not pursue the matter. There is a conflict of evidence as to whether or not the respondent at the time of the funeral expressed a wish to migrate here.

6 In June 1997 the respondent visited Singapore. She met formed a relationship with another man which came to an end in September 1997. She said that over this period she spent only four weeks in Thailand. It is not clear from her affidavit as to where the child was during this time. The respondent said in an affidavit (AB700) "I believe that I took Prisarna to Singapore with me between 9 and 23 August". I would see a possibility that she left the child with relatives as was the pattern the following year. In October 1997 the respondent telephoned the appellant, Mr Tait, and asked him if he and his wife would take the child. Mr Tait agreed to this and on 31 October 1997 the respondent and the child returned to Australia. The appellants say that after the respondent and child arrived in Australia on 31 October 1997, the respondent told them that she was very happy for the appellants to bring up the child in Australia because she saw "the benefits of a healthy stable life in a loving environment". The respondent, on the other hand, said that she spoke to the appellants about the child spending time with them in Australia.

7 The appellants had earlier instructed a solicitor, Mr J W Byrne, to obtain letters of administration of the father's estate. The respondent, in November 1997, shortly after her arrival in this State, saw Mr Byrne and agreed with his suggestion that he have a power of attorney to assist in administering the estate as the child was the sole person entitled. On 18 December 1997 letters of administration were granted to Mr Byrne. In the meantime, on 23 November 1997, the respondent and the child returned to Thailand.

(Page 6)

8 During the period January to February 1998 the respondent travelled to Singapore, Jakarta and Kuala Lumpur. During these trips away she left the child with her sister, but she said she regularly telephoned her sister in order to check on the well-being of the child. The next known and common fact is that on 20 February 1998 the respondent and the child arrived in Western Australia and stayed with the appellants. The respondent had previously advised by telephone that she was coming. There was a conflict of evidence as to what was said prior to her arrival and there is a further conflict as to what her intention was following arrival. The appellants said that they understood that the child was to stay with them until she attained the age of 16 years, or longer, if she had not then completed her education. The respondent, on the other hand, said it was to be on a temporary basis.

9 About this time the appellants approached their solicitor Mr Byrne. They said they did this after the arrival of the respondent and the child on 20 February 1998 but Mr Byrne's affidavit indicates that this could have been earlier as he says that on 19 January 1998 he was instructed by the appellants that the respondent would be bringing the child into Western Australia late in February 1998 and that they instructed him that the child was to be left indefinitely as it was the respondent's wish that the child be educated in Australia. The appellants told Mr Byrne that they wished to make application to the Family Court seeking an order for care and control of the child in Australia and for an injunction preventing the child from being removed from Australia. The appellants said that the respondent would consent to such an application. (AB546). Mr Byrne did not practice in that jurisdiction so made arrangements for the appellants to instruct Messrs Holden Barlow to enable the application to be made. On 24 February 1998 the appellants told Mr Byrne that the respondent would consent to the application and arrangements were made the following day for the respondent, an interpreter and the appellants to be in Mr Byrne's office. Mr Byrne went through the application with the respondent and she signed a minute of agreed orders. The minute in its original form provided that the appellants be granted sole guardianship and custody of the child with the mother having reasonable access. There was proposed a further order restraining all parties from removing the child from the Commonwealth of Australia without the prior consent of the Family Court.

10 The matter came for hearing on 11 March 1998 before a Magistrate. Each of the parties attended a counsellor prior to the hearing. The orders ultimately made by the Court by consent were that the appellants and the respondent have interim joint guardianship and custody of the child but

(Page 7)

this was subject to the next two clauses which specified access to the respondent with a requirement that at the conclusion of access the respondent was to return the child to the appellants. The Director of Counselling was requested to report on the arrangements and the matter was adjourned until 19 August 1998.

11 On the following day, 12 March 1998, the respondent left for Singapore leaving the child in the care of the appellants. On 26 March she returned to Thailand. She did not return to Australia until 17 August 1998. During that time she travelled extensively, mainly in the Far East, but her travelling included a trip to France. She said she travelled with a friend and her friend's husband and her fare was paid for by the friend. The respondent's sister also paid for some of the travelling. During this time she would from time to time ring the appellants and speak to the child.

12 On 20 July 1998, while the respondent was still away from Australia, she wrote to the Family Court saying amongst other things that she will never give up her right of guardianship. She said "I want that my daughter visit the school in Australia. There is the money for my daughter. I hope that John Trait will help me for that." She said if that was not possible she would take the daughter back to Thailand. She then indicated the source of funds available to her.

13 The respondent, on her arrival in Australia on 17 August 1998, stayed at a backpackers' hostel as the appellants said that by reason of her letter to the Family Court they regretted that they could no longer accommodate her until after the hearing.

14 The matter was called on in the Family Court on 19 August 1998 and was adjourned until the 21 August 1998. On that day orders were made restraining the respondent from removing the child from the Perth metropolitan area. The matter was next called on 2 September 1998 when the orders for access were changed. There was a specific order that the respondent have the care and control of the child each Sunday, Monday and Tuesday from 9 am to 5 pm each day. The appellants were to deliver the child to the respondent at the commencement of the access period at the Whitfords railway station and at the conclusion of the access period they were to receive the child from the respondent at the same place. On 11 September 1998 the respondent moved from the hostel where she was staying to rented accommodation and the order for access was then varied so that the child could reside with the respondent from 9 am each Sunday to 4 pm on the following Tuesday and the place of exchange was again to

(Page 8)

be the Whitfords railway station. The order for access was pending the disposal of the proceedings before the Family Court.

15 On 9 August 1998 the respondent took up residence as a boarder with Mr R L Demario-Nachardo at a unit in Mosman Park. At this stage she was having difficulty in obtaining money from home. She moved into that unit originally as a boarder but within about 11 days the relationship with Mr Demario-Nachardo became a personal one. On Sunday 22 November a significant event occurred. The respondent, whilst the child was in her care, noticed a pale red mark on the child's nappy. The child also complained of soreness between the legs. On the following day the respondent took the child to the Princess Margaret Hospital where it was established that the child had been sexually abused. She did not on the following Tuesday return the child to the appellants. This resulted in the appellants on 25 November 1998 seeking an order that the child be returned to their care. The matter was heard on 27 November when the Court ordered that the child remain in the care of Family and Children's Services and the parties were restrained from removing the child from that care. Family and Children's Services were to determine the contact visits. The child was then put into the care of foster parents with both the appellants and respondents having supervised contact with the child. On 23 December 1998 Dr Watts, a clinical and forensic psychologist, was appointed Court expert to enquire into and report on various matters relating to the child.

16 On 15 February 1999 the main application came on for hearing before Barlow J with the child remaining in the custody of the foster parents. The matter was heard continuously over 12 days until 3 March when unfortunately his Honour became ill and the matter was required to be adjourned. It was not possible to resume the hearing until 1 November 1998. One of the issues before his Honour was who was responsible for the sexual assault. The appellants claimed it occurred whilst the child was with the respondent and Mr Demario-Nachardo. The respondent denied this and claimed it occurred whilst the child was with the appellants. On 4 March 1999 the day after the matter was adjourned, Dr Watts published a report where the doctor set out his view as to who was responsible for the sexual assault. He expressed the view that it was Mr Demario-Nachardo and his report showed it would not have occurred whilst the child was with the appellants. The appellants applied for an interim order that the child be in their care subject to supervised contact by the respondent. The respondent filed a cross application seeking an order that the child reside with her. The matter was heard by Tolcon J. His Honour ordered that the Director General of Family and Children's Services have

(Page 9)

power to place the child as and where the Department deemed appropriate. The Director, on the same day, placed the child in the appellant's care. The respondent had contact with the child each Monday and Thursday from 10 am till 3 pm at the residence of Sister Mary Veronica Keely in Carlisle. Sister Keely is a Sister of Mercy who lives in a four bedroom house at Carlisle with other Sisters and whose task is to assist mothers and children who may need temporary accommodation.

17 Two further matters occurred prior to the resumption of the hearing. On 10 June 1999 the appellants discovered that that child has sustained an injury to her labia. They made a further application and as a result, an order was made that the child was not to be left alone at any time with the respondent and an officer of the Family and Children's Services was to be present during contact with the respondent. On 6 July 1999 Thackray AJ made an order that each party be restrained from making derogatory remarks about the other.

18 The hearing resumed before Barlow J on 1 November. By this time there were amendments made to the orders sought. The appellants amended their application from one of guardianship and custody to one seeking residence of the child and parental responsibility. The amended application co-incided with proposals submitted by the Child Representative. His Honour, in his reasons, set out the orders proposed by the Child Representative which included the proposal that the child reside with the appellants and they have the long term care and day to day welfare and development of the child. At the conclusion of counsel's addresses on 5 November his Honour indicated he would reserve his decision but hoped to be in a position to state his conclusion on some immediate matters and he dealt with these in reasons given on 8 November. The first two questions on which he set out his conclusions were whether residence of the child with the appellants or supervised contact by the respondent would expose the child to an unacceptable risk of sexual abuse. The other two questions were there should be more contact with the respondent and how the name of the child should be pronounced.

19 The order his Honour made on the first two questions was that pending delivery of his final judgment it would be appropriate for an immediate order that Mr Demario-Machardo be forbidden to have any contact with the child whatever. He extended this to members of his family, not on the basis that they were in any way involved with such abuse, but he considered it was in the best interests of the child for the injunction to be so extended.

(Page 10)

20 His Honour, when dealing with the third question ordered that the child remain with the appellants but gave the respondent more extended contact. He ordered that the Thai pronunciation should be used for the child's first name.

21 He gave his full reasons on 1 February 2000.

Orders made by trial Judge and reasons for them

22 The orders made by Barlow J were in the main that the child reside with the mother who may take the child back to Thailand. There were detailed provisions as to access by the appellants both while the child was in Australia and when the child was in Thailand. The respondent was restrained from allowing Mr Demario-Machardo and any members of his immediate or extended family from having any contact whatsoever with the child.

23 His Honour, in his reasons, examined at length many factors. His ultimate conclusion was that a consideration of the matters to which he had referred, in the context of all of the evidence presented, led him to conclude "that on balance it is more likely than not, that the interests of the child will best be served by an order for residency being made in favour of the respondent". He prefaced his conclusions by saying that he was satisfied that both the appellants and the respondents had a genuine love for and commitment to the welfare of the child and consequently it was not an easy case for him to decide. He noted that the age gap which existed between the appellants and the child could affect the child's upbringing. He said that the fact that the respondent is the mother of the child was an important and significant factor but it was not the only significant factor to be taken into account in determining what is in the best interests of the child. He said that the respondent's past conduct in leaving a child for extended periods gave rise to some concern about her parenting abilities and commitment to the child but the evidence led him to conclude that in the future the respondent was likely to be more mindful of her responsibilities as a parent. He was satisfied that she could provide a stable environment for the child. He was satisfied that the relationship between the respondent and Mr Demario-Machardo had ended and it was unlikely that the relationship would be renewed either in Australia or Thailand. He was satisfied that with the restraining order made in respect of Mr Demario-Machardo the child would not be exposed to an unacceptable risk of sexual abuse.

(Page 11)

Grounds of appeal

24 The grounds of appeal extended over some seven pages. A number of them relate to questions of fact and the assessment by his Honour of witnesses. I propose to deal, firstly, with the more important and stronger grounds which were argued at greater length and I shall deal with these under separate headings. I shall then refer to the balance of the grounds.

25 We were informed that there were three issues which seemed to dominate the trial. The first was whether the respondent did or did not agree to the child remaining permanently in the care of the appellants. The second was the background of the respondent and the third was who was responsible for the child being sexually assaulted. It was accepted at the hearing of the appeal that the child had been sexually assaulted.

Whether too high a standard of proof was applied and the findings relating to the sexual assault.

26 The prime thrust of one of the main grounds of appeal was whether his Honour, throughout the trial, applied the wrong standard of proof. This arose by reason of an observation his Honour made when considering one of the issues arising on the question of the sexual assault. It is necessary to deal, firstly with the matter of the sexual assault in order to understand how the question of standard of proof arose and the extent to which it might have affected his Honour's reasons.

27 The symptoms that an assault had taken place were claimed to have been noted on 22 November 1998. This was a Sunday and consequently was the day on which the child was to be delivered by the appellants to the respondent at the Whitfords railway station. The appellant, Mrs Tait, before going to the station, changed the child's nappy and did not notice any injury or anything untoward in her genital area. The child was handed over to the respondent, in the presence of Mr Demario-Machardo at the railway station at about 9am. There was there a conversation between the respondent and Mrs Tait as to the child having a cold and as to the child, if necessary, being taken to the doctor. The respondent with the child and Mr Demario-Machardo left the station to travel to Mr Demario-Machardo's unit in Mosman Park. The respondent said that she noticed an unusual smell and Mr Demario-Machardo said the child smelt strongly of alcohol. They arrived at the unit in Mosman Park. A relative of Mr Demario-Machardo rang and Mr Demario-Machardo told the respondent that he would have to leave to visit this relative. He asked the respondent to come with him but the respondent said she would stay

(Page 12)

with the child because the child was not well. Mr Demario-Machardo left, leaving the respondent and child in the unit. The respondent gave the child a shower and said that she noticed in the genital area a red bruise and tear. At that stage she thought it was nappy rash and when she changed the nappy the child again said she was sore.

28 Later in the day the unit came under the observation of a private detective, Mr James. He had been engaged by the appellants in October 1998 so that they could ascertain how the respondent was looking after the child and to ensure she did not take it away. He was engaged prior to there being any thought of there being a sexual assault.

29 His Honour referred to conflicts of evidence as to when Mr Demario-Machardo returned that day. Different times appeared in statements he had given to the Department of Family and Children's Services, the police, the affidavit he filed in the proceedings and his evidence in court. Mr Demario-Machardo said on his return he noticed the injury to the genital area which caused him great concern. The respondent's evidence was that Mr Demario-Machardo returned to the flat at about 3.30pm and was shown the injury to the child. He left with the child at about 4pm and on her evidence returned 30 to 35 minutes later. The child would have been alone with him during that time. He said he left the house again at about 4pm and was away for about 35 minutes.

30 The evidence of the investigator, Mr James, was that at about 3.30pm on 22 November 1998 he had the unit under observation. The part of his report to which his Honour referred commenced at 5 o'clock where Mr James said he heard the child coughing and a male talking to the child saying "Open wide". He said at 5.35pm Mr Demario-Machardo drove away from the property with the child in the front passenger seat. Mr James said he followed the vehicle but lost contact. He rang the unit at 20 past 6 but there was no answer. At 6.30pm he saw Mr Demario-Machardo return in the vehicle with the child in the front passenger seat.

31 There was a conflict of evidence as to the state the child was in when Mr Demario-Machardo returned to the unit. There was also a question raised as to whether or not the respondent was in the unit when he returned. It was in relation to these questions which caused his Honour to make the critical references as to the drawing of inferences. His Honour said(AB106)

(Page 13)

"Having regard to the evidence of Mr James to the effect that at 1700 hours, whilst walking past Mr Demario-Machardo's unit, he heard only a male voice and the child coughing and the conflict between Mr Demario-Machardo's statement to the Department of Family and Children's Services and his statement to the police, as to whether the respondent was in the unit when he arrived home, Counsel for the appellants submitted, that I should draw an inference that at the time Mr Demario-Machardo was alone in the unit with the child."

32 His Honour then said in respect of inferences:

"An inference is simply a logical deduction or conclusion from proved facts. An inference may be drawn from a combination of facts which have been proved, even though none of those facts alone would support the inference. Before I may draw an inference or conclusion, I must be satisfied it is the only reasonable inference which may be drawn consistent with the facts as I find them to be."

33 His Honour then said that he was unable to reach a conclusive view as to whether or not the respondent was in the unit when Mr Demario-Marchardo returned to it and whether the child was alone in the unit with him.

34 It is conceded that his Honour in this passage was expressing too high a standard. It is the type of direction which is given to juries in criminal trials where the standard of proof is proof beyond reasonable doubt. The ordinary standard of proof required of a party that bears the onus in proceedings of this type is proof on the balance of probabilities. As was said by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, that remains so even where the matter to be proved involves criminal conduct or fraud. Their Honours in that case dealt with statements in other cases to the effect that clear, cogent or strict proof is necessary where criminal conduct is alleged. Their Honours said that such statements did not affect the standard of proof and continued (at 172):

"The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately,

(Page 14)

however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities."

35 The question of the standard of proof applying to the circumstances of this case was also dealt with by the High Court in M v M (1988)166 CLR 69, a case referred to by the trial judge and a case to which I shall later make reference.

36 One of the main issues in the appeal is whether this error was limited to the particular inference his Honour was considering drawing, or whether it extended to impugning the main findings of fact made by his Honour to reach the conclusion he did. I shall later return to this question.

37 His Honour's ultimate finding in respect of the sexual assault was that it occurred some time on 22 November 1998 during the period between the child being collected from the appellants and Mr Demario-Machardo leaving the unit. His Honour did not say specifically who carried out the assault and his Honour and went no further than saying, "the totality of the evidence leads me to conclude, that if Mr Demario-Machardo were to have contact with the child, she would be exposed to an unacceptable risk of sexual abuse." His Honour expressed a number of reasons for reaching this conclusion which conclusion is not questioned in this appeal.

38 His Honour indicated in his reasons why he went no further than expressing the conclusion as to the risk of contact with the child. His Honour set out how he saw the role of the Family Court and its obligations to children when faced with allegations of sexual abuse. He set out at length what was said by the Full Court of the Family Court in B v B (1993) FLC 92-357 at 79,777 - 781 and he referred to that passage of the High Court in M v M where the court said that the Family Court should not make a positive finding that an allegation of sexual abuse is true unless it is so satisfied according to the civil standard of proof with due regard to the seriousness of the allegation and should refrain from making a positive finding that an allegation of sexual abuse is true unless impelled by the particular circumstances to do so. The High Court then referred to the alternative test as to whether there was unacceptable risk of sexual abuse and to the fact that this test would normally be sufficient to determine the question.

39 His Honour's desire to avoid an injustice to Mr Demario-Machardo has, in my view, caused an injustice to arise in respect of the appellants.

(Page 15)

His Honour analysed the possibility that one or other of the appellants may have been involved in the assault. His Honour said that, apart from opportunity, there was no evidence from which one could either directly, or by inference conclude, that the appellants, or either of them were responsible for the sexual assault. He then said that, in so far as it was alleged that the sexual assault was committed by the appellants, or either of them, he was satisfied the allegation had not been proved. It is my view that on the evidence before his Honour and having regard to the actual findings made by his Honour, the appellants were entitled to an unequivocal finding that the sexual assault occurred after the delivery of the child on 22 November and that they were in no way responsible. One of the reasons for his Honour not reaching such a conclusion was his not drawing inferences by reason of the expressed method he was using to draw inferences.

40 His Honour in applying similar principles as to inferences, was unable to make a finding in another area. This was whether the respondent knew that the sexual assault had taken place. The appellants claim that the respondent knew who carried out the assault and with that knowledge allowed the child to remain in contact with Mr Demario-Machardo. The appellants' claim goes further and that is, that the respondent, with this knowledge, positively asserted at the trial that the appellants were involved this it is claimed reflects on her character and her attitude to the grandparents.

41 His Honour said that on the questions of the identity of the abuser being known to her and of her covering for that person and of her not removing the child from a risk situation, he was satisfied that the allegations had not been proved. I consider that the manner in which he indicated that inferences should be drawn inhibited him in properly judging these questions and accordingly the conclusion cannot stand. If, therefore, the questions become critical to the determination of the appeal, this Court would be required to consider whether it could draw the inferences from undisturbed known facts or whether the matter must go for re-trial on this point.

Whether incorrect standard of proof applied to other areas

42 As I mentioned, the submission on behalf of the appellant is that his Honour's findings on the main question that it was in the best interest of the child to reside with the respondent cannot stand as there is a possibility that his Honour failed to apply the correct standard. The nature of the submission is that some of the positive conclusions his Honour

(Page 16)

reached may have been reached through his Honour, by reason of an incorrect standard of proof, not reaching competing conclusions.

43 It would be unlikely that any Judge, particularly a Judge as experienced as his Honour, would be applying, on ordinary issues, a standard other than the civil standard. There has from time to time been some difficulty when there is an accusation of a crime. This has been an area to cause appeals and was the area his Honour was judging when he made the reference as to how he would draw inferences. I consider that it is apparent from his Honour's reasons that on the general question he was applying the civil standard of proof. This becomes clear from the way he expressed his conclusion when he said: (AB140)

"That a consideration of these various matters in the context of all the evidence presented to me leads me to conclude that 'on balance it is more likely than not, that the interests of the child will best be served by an order for residency being made in favour of the respondent.'"

44 His Honour, in deciding whether or not the respondent smelt an odour on the child on the morning of 22 November, expressed the view that it was "more likely than not" that the respondent did notice the odour. (AB140). I would add, in passing, that his Honour did not consider it was alcohol.

45 Even on the questions relating to the sexual assault there is every indication that his Honour intended to apply the civil standard. Before commencing his consideration of this area he set out what was said by the High Court in M v M that the standard of proof was the civil standard. One of the reasons why his Honour went no further than determining whether there was an unacceptable risk of sexual abuse and not going as far as to express a conclusion on who did it was because he was applying only the civil standard. I consider that his Honour throughout intended to apply the civil standard, but the error he made was that when setting out how he should draw an inference when considering possible criminal conduct he set out and applied a formula that amounted to a criminal standard of proof without being conscious that he reached this standard.

46 I have examined his Honour's positive findings which led him to the view that the respondent should have the residency of the child. I do not consider that there is any area of risk that these would be impugned by a failure of his Honour to make inferences that might suggest the contrary of the actual findings he did make. This covers the first ground of appeal.

(Page 17)

Recommendations of the Court Expert.

47 The first paragraph of the second ground of appeal claims that his Honour failed to take sufficient account of the recommendations and conclusion of the court expert, Dr Watts, that the child should reside with the appellants. Dr Watts in his initial report said that for a long term decision to be made for the child, consideration needed to be given to the stability which can be offered. His report said that the appellants have provided a loving home and a stable predictable environment which is unlikely to change in the foreseeable future. He said that on the other hand the mother's situation is up in the air and the court would need to be well satisfied of what the actual arrangements would be. He gave evidence supporting the child being with the appellants.

48 It is clear and it is accepted that the ultimate decision as to what is in the best interests of the child is a decision of his Honour. Dr Watts provided comprehensive information on the matters he was asked to investigate, including the psychological assessment of the parties and of the child. His Honour made many references to Dr Watts' evidence and his Honour gave reasons as to why he was not accepting parts of what Dr Watts said and why his Honour came to a different view. It could not be said that his Honour gave insufficient weight to the views expressed.

49 I consider his Honour gave full and I would add careful consideration to these views.

Submissions of Child's Representative

50 The second paragraph of the second ground raises similar propositions in respect of the Child Representative. At the hearing of the appeal counsel for the Child's Representative was given leave to withdraw as she was being funded by the Legal Aid Commission. The Commission funded representation at the trial, but was not able to provide funds for the appeal. Counsel indicated that her submissions would have supported the appellants.

51 The ground of appeal claims that his Honour failed to take any, or any sufficient account of the recommendations and orders proposed at the trial by the Child's Representative. During the course of the trial, counsel representing the Child Representative submitted a minute of the orders sought by the Child Representative. The first two proposed orders were that the child reside with the appellants and that the appellants have sole responsibility for the long term care and day to day welfare and

(Page 18)

development of the child. There followed further proposals relating to contact by the respondent and steps that the appellants should take to fit them for the role, including joining the Australian Thai Association and attending regular cultural and religious festivals with the child. It was proposed that she attend a Buddhist Temple and be taught the Thai language. This was giving strong support to the appellants. The appellants, as I mentioned, amended their application by deleting a claim for guardianship and limiting it to residency, so as to be consistent with the principal orders proposed by the Child Representative. His Honour did not make such orders. Although he gave reasons for not making them, he did not specifically analyse the fact that the Child Representative was supporting them or refer to counsel's submissions. The question arises as to whether it was necessary to do so.

52 To answer the question, it becomes necessary to determine what is the role of a Child Representative particularly when the child is too young to make its views known or to give instructions. It is clear from s 171 of the Family Court Act 1997(WA) that the representative is a legal representative, that is a solicitor who may instruct a barrister.

53 In Bennett v Bennett (1991) FLC 92 - 191 at 78259 the Full Court of the Family Court set out the roles of the separate representative for a child. The Court said that a separate representative must, of necessity, form a view as to the child's welfare based upon proper material and, if appearing, may make submissions in accordance with that view. The Court said that the role of the separate representative is broadly analogous to that of counsel assisting a Royal Commission in the sense that his or duty is to act impartially, but, if thought appropriate, to make submissions suggesting the adoption by the Court of a particular course of action, if he or she considers that the adoption of such a course is in the best interests of the child.

54 Mr Walters QC in his submissions made reference to this case and to a similar summary of the duties set out by the Full Family Court in P v P (1995) FLC 92 - 615 at 82156-157. Mr Walters then submitted that once the separate representative feels compelled to make a submission and a recommendation, then the Court ought to deal with it and give it some weight.

55 Both the grounds of appeal and the submission in support refers to the "recommendations" of the Child's Representative. I would see this as disclosing the fallacy of the ground. It is not the function of a Child's Representative to make recommendations in the sense of forming a

(Page 19)

judgment on the material the representative gathers and then asking the court to act on that judgment. The function of the representative, as is the function of every other solicitor and counsel representing an interest, is to put relevant evidence before the court and to make submissions on that evidence and to argue in favour of a course of action. The representative, unlike the court expert, has no peculiar skill to form an expert opinion on that evidence. It could not be said that it is the intention of the Act that the Child's Representative should make a judgment on the evidence so that the Judge who is ultimately to decide the issue is required to give reasons for not acting on that view. It is not the intention of the Act that the decision making power be divided in this manner. The decision as to what is in the best interest of the child is a decision to be made by the Judge and the Judge alone who must make the decision after giving proper consideration to the evidence adduced by each of the parties and their submissions.

56 His Honour, in the present case, was clearly aware of the orders proposed by the Child's Representative as he set those out in full. The principal orders sought by the Child's Representative was the main question he was judging. He considered, under separate headings most, if not all, of the important issues raised by the Child's Representative which included the respondent's attitude to the child prior to her return in July 1998 and her attitude to the child at the time she was travelling around the world. An important question on which the counsel for the representative of the child made submissions was the question of the sexual assault and whether the respondent was aware at the time that it had taken place and the attitude of the respondent in maintaining a relationship with the person concerned. This issue was also dealt with at length by his Honour.

57 An argument in support of the ground is that his Honour did not refer to the submissions of counsel for the Child's Representative. His Honour's reasons extended over 117 pages. There was a danger of the reasons becoming of inordinate length. His Honour did not set out the submissions made by any counsel and it would be obvious that his Honour saw greater benefit to the parties in setting out the matters he did. It could not be said that by a failure to set out these submissions that he did not consider them.

Other grounds

58 I indicated earlier that I would leave over for the present the question whether it was properly resolved as to whether the respondent knew of the

(Page 20)

assailant and consequently, whether inferences are open from her failure to remove the child from the influence of the assailant. Ground 3 relates to this question.

59 Ground 4 claims that the findings set out in that ground were against the weight of evidence, or alternatively there was no sufficient evidence upon which his Honour could make the finding. The ground in many sub-paragraphs refers almost to all the findings his Honour made. One of the findings claimed to come into the category that was against the evidence was the fact that the respondent was a reliable and truthful witness. This could not be a particular of the ground specified and I shall treat it as a separate ground. The question as to whether the respondent came in that category is a matter entirely for his Honour. There would be no point in these reasons setting out the well known law on the subject. It would be sufficient to indicate that nothing has been put forward to show that his Honour misused his position.

60 The other matters referred to in the particulars with which I am now dealing are questions of fact and are questions of which his Honour dealt with in detail in his reasons. I shall leave over to the next paragraph questions relating to whether the respondent made an informed decision when she agreed to proposals that the child be with the appellants. It would in these reasons be sufficient to say in respect of the remainder of the matters referred to in ground 4 that I consider that it was open to his Honour to reach the conclusions he did for the reasons he specified and nothing has been put forward to indicate he acted on any wrong principle.

Respondent originally agreeing to appellant having the child

61 His Honour found that the respondent did not properly understand the consent order made on 11 March 1998. Some of the particulars of ground 4 bring this into question. I consider there are two answers to this. Firstly his Honour's conclusions were open on the evidence. Secondly, even if it could be shown that the respondent, at that stage of her life, made informed decisions of the type claimed, then the fact that she has changed her mind would not effect the outcome of the appeal having regard to the other findings made by his Honour.

Whether respondent knew of the sexual assault

62 I propose now to refer to those grounds I left over and that is, his Honour's finding that the respondent did not know the identity of the

(Page 21)

person carrying out this sexual assault and by reason of that of the respondent covering up for that person and not removing the child from his influence.

63 I consider that his Honour's finding in that area cannot stand by reason of the weight of evidence to suggest the contrary and by reason of the expressed method his Honour used to draw inferences. I do not consider there is need to examine the matter further because if one assumed for the present the respondent was, at the time, fully aware as to who carried out the sexual assault, it would not in my view affect the outcome. I have reached that view for these reasons. The fact that such an assault occurred is extremely serious. It must be weighed against her that she did not immediately break off the relationship. That is of concern, but there were factors that would have made this difficult. She was a stranger here, she was being kept by the person concerned and had nowhere to go. It nevertheless would still have been possible with some difficulty on her part, to have gone somewhere else.

64 I have weighed up these factors and I am of the view that an adverse finding against the respondent, at its highest, would not be a bar to her having the child in the future, having regard to the number of positive findings made by his Honour to support the fact that the child should reside with her. The adverse finding, at its highest, would be that she knew of the serious assault, but did not immediately break contact. The order his Honour made forbidding contact with the person referred to in the order removes any risk of that person again coming into contact with the child. His Honour found and the evidence showed that it would be unlikely that the respondent would resume a relationship with the person, particularly in Thailand. If it occurred in this State, the order could be reviewed.

65 The same must be said in respect of the allegation that the respondent maintained at the hearing that the appellants were responsible for the sexual assault when she knew it was someone else. This is another of the matters that would have to go back to the trial Judge if that were necessary. However, I consider that even if a finding were made against her on this question, it would not affect the ultimate result having regard to the other matters his Honour found.

Trial Judge's positive findings in favour of the respondent

66 Section 90 of the Family Court Act provides that when a particular parenting order is to be made in relation to a child a court must regard the

(Page 22)

best interests of the child as the paramount consideration. This was the test his Honour was applying. There are certain important positive findings made by his Honour which I consider must stand and cannot be impugned. The first is that the respondent is the mother of the child. The second is the age difference between the child and the grandparents. The third is that there has been a change of attitude on the part of the respondent as the mother and the fourth is that the respondent can provide a stable environment.

67 Ground 5 claims that his Honour failed to take sufficient account of the respondent's previous frequent and extended separations from the child and the ground claims that it is possible that she will again in the future leave the child in the care of her extended family. This raises a difficult question and one of concern. It was, however, carefully examined by his Honour. The essential question is whether her attitude has changed and the fact that as it happened in the past, it may happen in the future as the respondent may still wish to travel. There was evidence that her attitude had changed and this was one of the findings of his Honour. He also evaluated the future risk. He had a difficult question, but I consider it was open to him to reach the view he did. Ground 6 comes within a similar area. It claims that the respondent's proposed arrangements for the child were vague and unclear. This was a matter of argument, but a matter which his Honour carefully weighed up.

68 There was another issue arising from the appellants' belief as to the respondent's earlier life. His Honour commented on the attitude and weighed it up as one of the factors against the appellants. The appellants claim that their attitude was governed by what their son told them and which they truly believed. I would see strength in the appellants' submissions but even if this particular finding were reversed it could not affect the outcome. I would see it as playing only a minor part.

69 For these reasons I would dismiss the appeal. The cross-appeal brings into question the extent of the injunction and the fact that the relatives of Mr Demario-Nachardo are included in the injunction. It is clear the relatives would not have been involved in the assault, but it is equally clear that it would be in the best interests of the child for the injunction to extend to the relatives.

70 I would dismiss the appeal and the cross-appeal.

71 WALLWORK J: I agree with the reasons for judgment of Pidgeon J and to the orders proposed by his Honour.

(Page 23)

72 ANDERSON J: I have had the advantage of reading in draft the judgment of Pidgeon J. I entirely agree with it and there is nothing I can usefully add.