TKR & CPW

[2006] FamCA 72

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT BRISBANE Appeal No. NA 46 of 2004

File No. BRF 1895 of 2003

IN THE MATTER OF:

TKR

Appellant

- and -

CPW

Respondent

REASONS FOR JUDGMENT

BEFORE:                   Bryant CJ, Kay and Holden JJ
HEARD:  4 October 2004
JUDGMENT:             22 February 2006

APPEARANCES: Ms Carew of counsel appeared for the appellant

Mr Galloway of counsel appeared for the respondent
Mr Fleetwood of counsel appeared for the Child Representative

APPEAL SUMMARY

MATTER:TKR & CPW
APPEAL NUMBER: NA 46 of 2004
(BRF 1895 of 2004)
CORAM:Bryant CJ, Kay and Holden JJ
DATE OF HEARING: 4 October 2004

DATE OF JUDGMENT: 22 February 2006

CATCHWORDS: FAMILY LAW – APPEALS – CHILDREN – RESIDENCE – Orders – Interim orders – where parties agree that residence not in dispute – where trial judge made interim residence order because of concerns about mother’s non-compliance with contact – whether trial judge erred in making interim orders – whether trial judge erred in not giving parties an opportunity to make submissions on the question of an interim residence order – R & B (1996) FLC ¶92-658 considered – CHILD ABUSE – allegation of sexual abuse – where trial judge ordered supervised contact with father – whether trial judge erred in finding no unacceptable risk of abuse – whether trial judge erred in not ordering that contact be supervised by an ‘independent person’ – consideration of expert evidence – impact of orders on mother’s ability to parent.

CASELAW CITED:

R and C (Unreported, Full Court of the Family Court, Fogarty, Baker and Lindenmayer JJ, 25 June 1993)

R & B (1996) FLC ¶92-658

M and M (1988) FLC ¶91-958

A and A (1998) 22 Fam LR 756; (1998) FLC ¶92-800

That the appeal be dismissed.

This is an appeal by the mother against orders made by the Honourable Justice Barry on 22 July 2004 granting interim residence to the mother of the only child of the parties, JR, born on 3 January 2000 (aged 4½) and contact to the father supervised by members of his family. The mother appealed against the order for interim (rather than final) residence and the orders for contact. Pursuant to her Amended Notice of Appeal, the mother seeks that there be no contact between the child and father.

Background Facts

The father is 37 years of age and the mother is 33. The parties commenced cohabitation in 1992 and separated finally on 2 September 2002. The father is disabled as a result of an accident in 1986. He is described as a quadriplegic and confined to a wheelchair having suffered a spinal injury but according to the father and the medical evidence, has a high level of self-sufficiency.

After the parties separated the father had contact with JR each week, including overnight and telephone contact.

In January 2003 the father formed a relationship with S (aged 37) and they have cohabited since June 2003. S has three children under 18, two of whom live with S and the father one who lives with his father. She also has two adult children who are independent.

On 14 March 2003, the mother stopped contact as a result of her concerns that JR may have been sexually abused by the father and his brother. Contact subsequently resumed in June 2003 for two hours each fortnight, supervised at a contact centre.

The father denied the allegations of sexual abuse raised by the mother. The allegations were investigated by the police and the Department of Families. No charges were laid and the Department did not seek to intervene in the proceedings before the trial Judge.

The hearing took place in July 2004 and judgment was delivered on 22 July. The trial Judge found that there was no unacceptable risk to JR by contact with her father, and ordered contact during the day every Saturday and every alternate Sunday from 9am to 5pm until July 2005, and thereafter each alternate weekend from Friday to Sunday. All contact was to be supervised by the father’s parents or his defacto partner, or another agreed person (acceptable to the Child Representative) or as ordered by the Court. The need for supervision was due to the father’s disabilities. The trial Judge further ordered that, commencing July 2005, the interim order for residence become final and there were also orders for contact on special occasions, telephone contact and provisions for changeover. An application by the mother for a stay of the order pending her appeal was dismissed.

At the hearing, the mother sought a final order for residence. The father did not oppose such an order, nor seek residence himself. The father’s application was solely for contact. In his Summary of Argument filed 30 June 2004 the father indicated that he sought orders in the terms of the Form 3 application filed 29 April 2003. The final submissions of counsel at trial related only to contact. It was common ground that JR had lived with her mother since separation and that the father would have difficulty in caring for her due to his disabilities.

Reasons for trial Judge’s decision

The trial Judge noted that it was not in dispute that the child was to reside with the mother and that the issue to be determined was what contact, if any, the father should have with JR. The father sought contact with the child, in the absence of agreement, Friday afternoon until Sunday afternoon each alternate weekend, half school holidays, a portion of Christmas Day, the child’s birthday, Father’s Day and telephone contact between 6:00pm and 7:30pm. There were also various orders sought in the event the father was hospitalised.

10.The mother sought that in the event the Court determined the child had been sexually abused or was at risk of sexual abuse by the father, then the father have no contact to the child. In the alternative, the father have contact with the child:-
a)supervised once per month at a children’s contact centre for two hours
b)liberal telephone contact during the day but not more than every second day
c)liberal written contact
with a capacity for the paternal grandparents and the father’s partner S to attend contact with the father.

The trial Judge noted that the mother’s application sought to reduce the father’s contact (the father was then having two hours each fortnight at a contact centre), even if there was a finding of no abuse.

11.A number of witnesses both professional and lay were called by the parties and the trial extended over six days. The trial Judge considered that the major issue for determination was whether the child had been subjected to inappropriate sexual conduct by an adult and if so by whom.
12.The trial Judge identified the evidence in support of the child having been sexually abused falling into four different categories which he described in the following terms.

Disclosures

a)Disclosures made by the child to the mother on a significant number of occasions.
b)Evidence of a disclosure to Ms R, a social worker who had been counselling the mother.
c)Evidence of a disclosure to the maternal grandmother.
d)Evidence of a disclosure to V, a family friend.
e)Evidence of a disclosure on 27 May to LT, a group leader at the child care centre attended by the child and a subsequent disclosure.
f)Evidence of a disclosure to LH, a group leader at the child care centre attended by the child.

Sexualised Behaviour

13.The trial Judge found that the second indicator that the child may have been sexually abused was the child engaging in sexualised behaviour. This was identified as follows:
a)     The maternal grandmother in an affidavit in February 2003, indicating that the child was wanting to lick her all over, her face, her arms and her throat, and telling her that someone can stick their tongue way, way down your throat.
b)     H, the child’s maternal aunt, describing an incident she observed on 18 June 2003 of the child rubbing herself in a sexualised fashion on H’s leg immediately after hopping off the toilet. The child would then have been three.
c)   LM, a friend of the mother, detailing observing the child clutching her vagina.
d)     Mr B, the report writer, describing the child rubbing herself against his leg, invading his personal space and carrying on in an overly familiar fashion although she had barely met him.
e)     Extensive reports by the mother of sexualised behaviour, for example the child thrusting her pelvis when resting on her mother’s hip at nine months of age and doing the ‘Hokie Pokie’ in one situation where she was singing words to that song.
f)   The child engaging in tongue kissing, lizard kisses and zebra kisses.
g)     Evidence of LT of the child lying on her back and spreading her legs at the childcare centre, playing with dolls and carrying on with them in a sexualised fashion.
h)     On 20 January 2004, J, a group leader at the child care centre observing the child at the childcare centre licking the vaginal area of a doll.
i)   The child is also said to have engaged in sexualised behaviour with a gas repairman who called at the mother’s residence and a young boy who lived in the neighbourhood but those persons were not called.

Other Physical Indicia

14.The trial Judge identified the third possible indicator of sexual abuse as the child regularly having redness of her genital area, having vaginal discharge and the mother detecting the smell of baby wipes on the child when she was of a very young age when she was in bed with her father, the child throwing tantrums and some of the child’s drawings.

Expert Opinion

15.The trial Judge identified the fourth area as that consisting of expert opinions, particularly the opinions of two social workers, Mr B and Ms R.
16.The trial Judge described the father’s disabilities, which findings were not the subject of any dispute in the appeal. He described the father as being confined to a wheelchair, a condition described by a doctor as “an incomplete tetraplegia below C6.” The doctor further noted:
“He is completely independent in all aspects of self care including feeding, grooming, dressing and bladder and bowel care. He does not require any assistance from anyone else with this. He is independent in transferring himself from his wheelchair to his bed or a chair. The only transfer that he requires any assistance with is getting himself from the floor into his wheelchair. He is independently able to push a manual wheelchair both indoors and out and has a good ability to control the wheelchair. He uses a motorised wheelchair outdoors and controls this over rough ground and he is able to assist with activities and chores on the property. He needs no assistance to get from his manual wheelchair into his motorised wheelchair.” (at paragraph 20 of the judgment).
17.His Honour noted that the doctor further said:
“He requires only minimal assistance with even the most difficult tasks. He is functioning at a high level for someone with his degree of spinal cord injury. I believe he has a very high level of ability to look after his daughter unassisted or with the assistance of his defacto spouse.” (at paragraph 21 of the judgment).
18.The trial Judge found that during the course of the relationship the parties both used a range of drugs including marijuana, speed and LSD and that there was no challenge to this aspect of the evidence.
19.The trial Judge found that following separation the father remained living at a rural property and the mother moved out with the child to reside with her parents.
20.The trial Judge then considered the expert evidence. He noted first the evidence of a paediatrician that whilst there was vulval inflammation there was no firm direct physical evidence of sexual abuse and that the vulval inflammation could be due to the usual non-specific vulvitis so common in children of that age.
21.The trial Judge further noted that investigations by the Department of Family Services’ officers and the Juvenile Aid Bureau did not substantiate the allegations and when the child was interviewed no disclosures were made.
22.JR was taken to a local sexual violence organisation apparently on one occasion and before the first court hearing the mother commenced taking her to a counsellor at Lifeline, who engaged in play therapy with her. She commenced counselling with a social worker, Ms R, in private practice in early 2003. Reports from her were before the court but were not the subject of cross examination. She had not interviewed the father or seen the child interact with the father.
23.The trial Judge considered the two reports of Mr B, the social worker, who described the child engaging in overfamiliar conduct with him. Mr B noted the father’s denials of the allegations of any inappropriate behaviour and becoming “tearful and upset when discussing the allegations of sexual abuse.” The trial Judge noted that under the heading ‘Assessment’ Mr B wrote:
“It continues to be the writer’s position that sexual abuse cannot be ruled out and therefore caution needs to be exercised when setting down arrangements for contact between JR and her father and the extended paternal family.”
24.In his first report Mr B recorded the father as noting the problem with contact had occurred around the time property settlement negotiations took place in the formation of a new relationship with his current partner. Mr B recounted the mother’s view as to the restrictions that were placed on contact:
“as opposed to the father’s view that the mother began to restrict contact in the throes of property negotiations/dispute or because he had formed a new relationship. [The mother] says that she became increasingly concerned regarding her daughter’s wellbeing. In the past when they had still been together [the mother] had held unformed, almost subliminal fears about certain things but when JR returned from contact visits seeking to engage in deep tongue kissing, and JR’s behaviour was extremely disturbed after contact and particularly after JR began making disclosures regarding apparently inappropriate sexual behaviour, then the mother acted to restrict contact and seek professional help”. (at paragraph 27 of the judgment)
25.Mr B provided a second report in January 2004. Mr B noted that the mother said that JR’s response to the fortnightly supervised contact was “fairly traumatic” and he observed the contact visit on 9 January 2004 in which he was able to see the child interact with the father, paternal grandparents and the father’s partner. He detailed the child engaging in overly familiar conduct with him.
26.The trial Judge noted at page 18 of his report that Mr B recorded:
“[the mother] is adamant that there would be psychological/emotional risk to JR in relation to denial and collusion should day time contact be structured around family supervision. Regarding the possibility of projection, the tendency to attribute to another person or to the environment what is actually in one’s self, the mother says that the “facts do not support the hypothesis” given JR’s behaviour, including separate occasions of deep tongue kissing, and the disclosures” (at page 35 of the judgment)
27.Mr B recorded in his report that the mother indicated that she would have preferred the paternal grandparents to spend time with their granddaughter away from the contact centre rather than overloading JR at the contact centre. The mother apparently repeated this offer in the course of her oral evidence. The trial Judge noted that he found it curious that the offer had never been made to the paternal grandparents orally or in writing despite the fact that the grandparents had invited the mother to meet with themselves and the father’s partner S at a local restaurant or café and the mother had declined the invitation. His Honour said:
“the mother’s conduct towards the father and his family has been one of persistent obstruction. For the mother to suggest that she would have preferred the paternal grandparents to see JR in a park or elsewhere away from the contact centre on a regular, unsupervised basis is not consistent with other more reliable evidence before the court. There is no evidence before the court she took any steps to implement this proposal.” (at paragraph 37 of the judgment).
28.The trial Judge then noted that Mr B considered what he believed were the various options open to the Court and his recommendation, expressed in strong terms, was that for the various reasons he had set out, contact should be supervised at a contact centre. He said that if the Court was to find sexual abuse had occurred as a positive finding of fact, he agreed with the other experts that there should be no contact whatsoever.
29.The second expert referred to in detail by his Honour was Dr V who had prepared a report dated 14 November 2003, and gave evidence. His Honour noted the description by Dr V of the mother’s presentation at page 6 of the report:
“At both interviews, [the mother] presented as a very pleasant and cooperative young woman with well developed social skills. Overall, she was rich in physical and verbal gesture with a certain seductiveness, although this was less present at the second interview. There was no evidence of depression or anxiety. She presented with a warm affect, although there was a certain superficiality in her rather fixed smile. I note a reactive affect. She was able to laugh and smile and even show humour. Curiously, I note, there was no distress when describing the allegations of severe sexual abuse with respect to her daughter” (Paragraph 43 of the judgment)
30.His Honour noted that Dr V described the mother as a “somewhat histrionic individual and is somebody who tends to want to cast herself in the role of a victim.” His Honour quoted Dr V’s summary of the situation (at page 20 of his report):
“It may be of assistance to the Court if I outline several features that this case shares with other cases of false accusations of sexual abuse that I have evaluated for the Family Court over the last 15 years. These points should not be taken to mean I have concluded that sexual abuse has not occurred. I note the following:
·there is a retrospective account of the events prior to separation that are claimed to indicate that sexual abuse has occurred even though no such concerns appear to have been raised previously with anyone;
·the mother’s reliance on subtle observations, including smells, as indicative of sexual abuse;
·the interpretation of probably normal behaviour on the part of the child as being indicative of sexual abuse;
·the mother’s inability to see any explanation other than sexual abuse for abnormal behaviour noted;
·the mother’s inability to be reassured by investigations by competent individuals;
·the mother’s concern about closeness of the child to the father as against concern about the child’s relationship with herself;
·insistence that abuse has occurred whilst contact has been supervised;
·escalation in the nature of the alleged abuse over time;
·the involvement of a therapist who reinforces the beliefs;
·the role of the maternal grandmother in these issues is not clear. I note that the father considers this to be a critical issue, but there is very little data to support this. The only matter of note is the maternal grandmother’s involvement in fringe psychotherapy including rebirthing.

The above statements, which are in no particular order, do not take into account the child’s actual statements, which on the face of it, appear to be explicit. However, the context in which these disclosures arose need to be examined by the Court. If the Court determines that sexual abuse has not occurred, then there is no psychiatric reason why the child should not have ongoing meaningful contact with her father. The degree of psychopathology in him is not of an extent to contraindicate contact. The only issue with respect to supervision is the extent to which he is able to care for a child of this age, given his severe disability from quadriplegia. This question is best addressed by a consultant occupational therapist, but it would seem to me that the age of the child has to be a source of some concern.”

31.His Honour then considered the report of Professor U in relation to the father’s presentation and demeanour, and in context of his denial of inappropriate sexual behaviour. The trial Judge noted that Professor U said:
“The timing of the disclosure of the abuse after conflictual parental separation in the midst of disputes over property is suggestive of an invalid allegation. Furthermore, it would be important to determine that the mother had not been subjected to therapy which has encouraged her to report sexual abuse.” (at paragraph 48 of the judgement).
32.The trial Judge then quoted from paragraph 86 of Professor U’s report regarding the possibility that the mother “has confabulated the allegations but sincerely believes her erroneous allegations of sexual abuse.” He expanded on his opinion in the following terms:
“Confabulation is most often seen in the context of highly conflictual divorce in which a mother who sometimes suffers from borderline personality disorder and herself has a history of having been sexually abused as a child comes to see her ex-partner as the personification of evil. In retrospect, she will find that he was sexually perverse in the marriage. Innocent behaviour on the part of the child or an innocent comment lead to the erroneous conviction by the mother that the child has been sexually abused and to persistent questioning of the child around the issue of abuse. Thus the idea of having been abused is implanted in the child’s mind and the child begins to embellish her story in response to the effect it produces on her anxious audience. Mother and child often come to hold these beliefs with great conviction, even though they are based on a fragile premise. The mother may enlist treating clinicians and friends to advocate on her behalf.
This case has some features of confabulation. There is no doubt that [the mother] sincerely believes that her child has been sexually abused and that she is appropriately protecting JR from further harm. She has some of the features of borderline personality, but I would hesitate to say that she has a true personality disorder. She is currently attempting to extricate herself from what she has come to regard as a pathological relationship with [the father]. This is an emotional context in which, it could be conjectured, confabulations about sexual abuse might arise.” (at paragraph 49 of the judgment).
33.The trial Judge noted in the course of his oral evidence Professor U indicated he could not exclude the possibility that sexual abuse had occurred and noted at paragraph 50 of the Reasons for Judgment:
“There was no further explanation of this answer. The impression I gained from a consideration of his evidence generally was that he held to his view that this was a case of confabulation, but one can never be confident of being 100 per cent correct and, in this context he could not exclude the possibility that sexual abuse had occurred.”
34.The trial Judge noted further that Professor U described what he termed the premature eroticisation of the child and that he was of the view that it was only the eroticised behaviour that supported the allegation of sexual abuse. His Honour noted (in paragraph 51) that in summary, “Professor U seemed to lean to a lingering doubt position” and when his attention was drawn to the annexures to the affidavit of J his opinion of the situation calling for a cautious approach was strengthened.
35.The trial Judge in considering the evidence of the parties found the father to have presented as someone who was honest and forthright in his views. He noted the existence of a warm, close, loving relationship between the father and daughter from which an inference could be drawn that the mother was to an extent jealous of this relationship both before and after separation. His Honour noted that the father had been prepared to subject himself to a polygraph test. Whilst not accepting the validity of the test itself, his Honour took into account the fact that the father was prepared to voluntarily undertake the test and to release the results to the mother’s solicitors regardless of what they were as being indicative of the behaviour of someone who wishes to clear his name and not someone concerned of getting an adverse result from the polygraph testing.
36.The trial Judge did not find the mother to be impressive as a reliable reporter of factual situations, and was convinced that the mother consistently misinterpreted otherwise innocent events. He referred to two situations in which there were different accounts given by the mother from independent witnesses whose evidence he preferred. In particular the mother’s claim that at nine months old the child engaged in pelvic thrusts of a sexual nature and to draw an inference that that meant the child had been sexually interfered with was “fanciful in the extreme”. The trial Judge also found that the mother’s interpretation of physical symptoms including a red vulva and vagina, vaginal discharge and smell associated with her father at a young age as indicia of sexual abuse was “fanciful”. His Honour found that the evidence indicated that the mother was a very anxious woman who also suffered low esteem, was not confident in her own ability and resorted to consulting experts and a variety of other sources for information and comfort.
37.The trial Judge also noted and rejected the mother’s complaints on a wide variety of inappropriate behaviour such as allowing the child to chew gum and to watch television shows that he was watching such as “Saving Private Ryan”. Her complaints also included the child being returned from contact visits smelling of soap meaning that she had not been properly rinsed and on other occasions not having been washed at all. The trial Judge noted and accepted as accurate in general terms the mother’s evidence of JR acting out and misbehaving after contact ceased but did not find that it followed that there was any evidence to show that that was attributable to abuse, sexual or otherwise, by the father. His Honour concluded in so far as the mother’s evidence was concerned, “Overall I was less than impressed with the mother’s evidence”.
38.His Honour accepted the evidence of Ms R as an experienced and dedicated social worker whose evidence was unchallenged. The trial Judge had said he had no reason to doubt the reliability of her observations but had grave reservations about the conclusions concerning sexual abuse that she had drawn from them.
39.In paragraph 89 of his Reasons for Judgment the trial Judge said:
“Was JR subjected to inappropriate sexual conduct and if so, by whom? I would be of the view that it is highly unlikely the allegations of sexual abuse have any substance. This is the view shared by Doctor V and the experienced child representative and by the barrister who appeared on behalf of the child representative. The position of Professor U seemed to waiver. In his report he was of the view that there had been no abuse as such, but the child had been somehow prematurely eroticised.”
40.His Honour said of Professor U’s evidence:
“I have some difficulty understanding these different answers from Professor U. All in all I must say I found the evidence of Professor U somewhat equivocal. However he was clearly of the view that if during the next 12 months the child is allowed to settle away from counsellors and therapists and if her eroticised behaviour is ignored he expected such behaviour would substantially lessen and if that were to occur he was then of the view it may be appropriate for unsupervised contact to occur.”
41.Of the witnesses Ms R and Mr B the trial Judge said both were:
“…of the view the child has been sexually abused by the father or at the very least there was an unacceptable risk to the child. Generally speaking I found the specialist doctors were more objective and accordingly more reliable than the assessments given by the two social workers. Of all the experts the assessment of Doctor V is in conformity with my interpretation of the evidence.”
42.His Honour then indicated that he shared the view put forward by counsel for the child representative that there was no unacceptable risk for the child and set out the reasons for making that finding:

The factors taken into by Doctor V at page 20 of his report.
The observations of Professor U of the context in which the allegations first arose.
The inherent unreliability of the mother’s evidence, in particular that she was not an accurate reporter of facts.
The mother’s tendency to misinterpret otherwise ordinary events or perfectly normal behaviour.
Doctor V’s observations that the mother reported the abuse allegations without obvious distress and recounted the incidents matter-of-factly. Similarly the child’s disclosure as to being abused was also observed to be made in a matter-of-fact manner.
The mother’s generally vindictive behaviour objecting to all contact between father and daughter, objecting to the paternal grandparents being allowed to see their granddaughter, objecting to the father’s partner seeing the child, complaining about the father’s partner remaining in the car outside the contact centre because she formed the view it was too close to the entrance of the contact centre.

(7) The behaviour on the part of the father being out of character for him. His Honour found that he was a man who read stories to his daughter and made up stories for her, had promoted an interest in nature. His Honour said, “I would expect a paedophile engage (sic) in certain alluring behaviour to a child victim but the conduct of the father did not fall into this category”.

The observations of the relationship between father and daughter did not match what one would expect of a relationship between abuser and abused.
The disclosures of sexualised behaviour had escalated since separation when one would normally expect such a complaint to abate with the passage of time.

43.His Honour said that he was unable to explain why the child had acted in the promiscuous manner she had. Some of the behaviour, such as the daughter licking her mother, his Honour thought to be a relatively harmless activity and only to be treated as an indicator of sexualised behaviour if perceived to be such in the mind of the adult participant.
44.His Honour noted that residence was not an issue and that there was no reason why the father should not have contact if there was no finding of unacceptable risk. His Honour considered then whether supervision should be ordered and if so by whom. He found that the contact should be supervised because of the physical limitations of the father but that it was unnecessary for contact to be at a contact centre.
45.The trial Judge noted that the child representative and Professor U had both said that even though there was no unacceptable risk, the contact should be at a contact centre citing as the basis for this the decision in R & C (Unreported, Full Court of the Family Court, Fogarty, Baker and Lindenmayer JJ, 25 June 1993), which centred on the fact that the mother’s anxiety was such that she was unable to function properly if unsupervised contact occurred. In that case, the Court noted that it is well established when considering the factors in s. 64(1) of the Act that an appropriate consideration is the custodial parent's belief that the child or children have been sexually abused whilst on access and the effect of that belief on them as the primary caregiver. The Full Court said:
“In upholding children's right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact adversely on that parent's caregiving ability. (at para. 32)
In taking into account the belief of the custodial parent of abuse by the non-custodial parent of the children and the effect of such belief on that parent as primary caregiver of the children, and consequent harm to the children, a subjective test is employed. However, it must be shown that such belief on the part of the custodial parent is genuinely held. Where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt.” (at para. 33)
46.His Honour noted that in R & C (supra) the trial Judge found that the mother would engage in hysterical behaviour if overnight contact was to occur. He noted in this case the mother’s evidence in the witness box on oath before him that she would be accepting of Court orders and further that there was no evidence of a professional or other nature that the mother would be unable to handle compliance with the orders that he proposed to put in place. He accepted that she would have a degree of difficulty but said, “that is another matter”. He found that the difference between having contact at a contact centre and contact in one’s own home environment was enormous for both adult and child and that it was important for the child and important for the adult participants that they be allowed to engage in as normal a home environment as possible.
47.His Honour further noted that in R & C the trial Judge had ordered unsupervised day contact. In order to assuage the fears that the mother may have, he ordered that there be no overnight contact for a period of 12 months to “hopefully allow the child’s behaviour to settle”.

48.His Honour then went on to consider the question of residence and said (at paragraph 104),
“I propose to only make an interim order for residence. I appreciate that it was not an issue at the trial but I have concerns that the mother may be non-compliant with the court orders despite her statements on oath to the contrary.”
49.His Honour considered that the contact periods were to be supervised by one or other of the paternal grandparents or by the husband’s partner S or any other person as the child representative may approve. Having perused S’s references and various certificates he was satisfied that she was an appropriate supervisor. He commented that the consequence of the order for supervision was that it would to some extent alleviate the mother’s anxiety about the child’s welfare while she was in the father’s care.

The Appeal

50.At the commencement of the appeal, leave was granted to the appellant to file an amended Notice of Appeal. The appellant abandoned grounds 10 and 11 at the commencement of the appeal.
51.The grounds can be conveniently summarised and dealt with under four discreet headings:

The interim residence order (ground 1).
The finding of no unacceptable risk and failure to give adequate reasons for so finding (grounds 4, 5, 6, 7 and 8).
Failure to consider the factors in section 68F(2) of the Family Law Act (ground 2).
The finding that unsupervised contact was appropriate and the acceptance of the husband’s defacto partner and parents as supervisors (grounds 3 and 9).

The interim residence order

Ground 1

That in making an interim order that the child JR reside with the mother, the trial Judge erred in that he:

(a)    failed to provide to the parties any opportunity to address the prospect of such an order being made;
(b)    failed to provide any or any adequate reasons for the making of such an order;
(c)    failed to take into account in making the order that the parties had agreed to a final order being made for the said child to reside with the mother.
52.This ground was supported by the submissions of the Child Representative that the trial had proceeded before the trial Judge on the basis that residence of JR was not an issue and the father had conceded in cross examination that she would continue to live with the mother. The question of residence, whether it be interim or final, was not a live issue for the parties and the trial Judge did not raise his concerns about a final order with the parties to enable them to present evidence and argument. The trial Judge accepted that residence was not an issue. He appeared to make an interim order because of his concerns that the mother may be noncompliant with the orders.
53.In R & B (1996) FLC ¶92-658 the Full Court of the Family Court comprising their Honours Baker and Chisholm JJ (Nicholson CJ dissenting) considered this point and rejected the appellant’s argument that the trial Judge had denied natural justice to the father by not giving him an opportunity to argue whether orders should be made on an interim basis.
54.The Full Court noted at page 82-803 that in cases such as this:
“where the children’s welfare is of paramount consideration, the judge is entitled to make an order that he or she considers will promote the welfare of the children, whether or not the parties seek such an order.” (as per the Full Court in Re P (A Child) Separate Representative (1993) 16 Fam LR 485; (1993) FLC ¶92-376 at 79,896: D & Y (1995) FLC ¶92-581 at 80,719; Re K (1994 ) FLC ¶92-461 at 80, 765).
55.The Full Court considered a number of matters which might have caused the trial Judge in R v B to come to that conclusion and concluded that (at page 82,804):
“The tenor of his Honour’s reasons for judgment in our opinion, was that if he could be satisfied that access would occur normally, with the children passing between the two households with an absence of tension or hostility, then custody in all probability would remain with the respondent. If the respondent continues to be obstructive of access or refuses to obey the orders which his Honour made in relation to it, then his Honour was reserving his options to change custody at sometime in the future, provided he could be satisfied that it was in the best interest of the children to do so.”
56.We agree that a failure to hear the parties before making interim rather than a final order will not necessarily nullify the decision, if the overriding interests of the child demand it. However, this case was significantly different from the facts in R v B. In R v B the father was an applicant for residence where as in the present case there was no dispute that the children should live with the mother and that she should have an order for their residence. Furthermore in R v B there was considerable doubt about whether the mother would be able to carry out the terms of the order for contact, whereas in the present case the mother informed his Honour that she would do so. In R v B the trial Judge was in some degree of doubt about whether it was the right decision to leave the children with the mother rather than change the residence and was being urged to do so by counsel for the Child Representative and the family reporter. In those circumstances the trial Judge, faced with a difficult decision, did not consider it in the best interests of the children that he should make a final order.
57.In this case there was no dispute between the parties about residence and the seeking of an order by the mother for sole residence was not an issue and was supported by the Child Representative. Indeed his Honour said:
“if the child’s behaviour whilst in the mother’s care continues to deteriorate it maybe necessary to consider the issue afresh that is an issue for another day.” (Paragraph 112 of the judgment)
58.The question of residence which had not been put into issue, if orders were not complied with, was as his Honour said “something that would have to be considered afresh”. There was thus no basis that we can find upon which his Honour could have concluded that it was appropriate to make an interim order, particularly having regard to the fact that he did not give an opportunity to the parties, including the Child Representative, to make submissions. Had that been the only order for residence, this ground must succeed. However pursuant to the orders of the trial judge , as from 22 July 2005 the residence order became final and the contact orders included overnight contact on alternate weekends, albeit subject to continuing supervision. Thus, as from 22 July 2005, the mother’s appeal in relation to the interim residence order became moot and we do not need to allow the appeal on this ground nor make any order.

Finding of no unacceptable risk and failure to give adequate reasons for so finding

Ground 4

That the trial Judge failed to provide adequate reasons for finding there was no unacceptable risk.

Ground 5

That the trial Judge erred in finding that Professor U’s opinion that this was a case of confabulation and that the child had not been abused as such.

Ground 6

That in making an order which provided contact by the child JR with the father, the trial Judge failed to take into account significant portions of the evidence of Professor U, in particular:

(a)the evidence that it is more likely than not that JR has been prematurely eroticised by someone
(b)the evidence that the chief suspect is her father.
(c)the evidence that the child’s eroticised behaviour supports an allegation of sexual abuse.
(d)the evidence that it is very unlikely that a person could coach a child of JR’s age to behave in the sexually explicit manner in which JR has been observed to behave.
(e)the evidence that the evidence of J made him more confident that JR’s eroticised behaviour was indicative of sexual abuse.
(f)The evidence that JR’s sexualised behaviour could not be accounted for by the fact that JR had seen her father catheterise himself.

Ground 7

That the trial Judge erred in finding that Doctor V’s opinion was that it was highly unlikely that the allegations of sexual abuse have any substance.

Ground 8

That in making an order which provided contact by JR with the father, the trial Judge erred in that he failed to take into account significant portions of the evidence of Doctor V, in particular;

a)that there was no apparent explanation for the child’s actual explicit statements about sexual matters;
b)that if sexual abuse had occurred, contact of any kind would not be in the child’s best interests.

59.The principles to be applied in cases of this sort are well established since the decision of the High Court in M and M (1988) 12 Fam LR 249; (1988) FLC ¶91-958 and a number of decisions of this court since that time. As explained in the decision of this Full Court in A and A (1998) 22 Fam LR 756; (1998) FLC ¶92-800 in a case of this sort two issues are essentially involved. They were succinctly described by the Full Court in paragraph 3.29 as follows:
“the first inquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then consider whether the residence parent is a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge upon the best interest of the children. The Court then needs to take steps proportionate to that circumstance.”
60.At paragraphs 3.24 and 3.25 the Full Court went on to say that:
“the term identified by the High Court in M & M of “unacceptable risk” provides a touchstone for such an enquiry…. Here the primary question which his Honour should have addressed was, looking at the whole of the evidence, whether contact (or at least contact which was not strictly supervised) might expose the children to an unacceptable risk because, although it is almost impossible to quantify in any precise way, it may place those children in circumstances of potential jeopardy in the future in their father’s care.”
61.We intend to deal with the ground 4 in concert with other grounds under this heading rather than separately. That is because it is not a complaint that the trial Judge did not provide adequate reasons, so that his reasoning process in reaching a decision was unclear, but rather that the appellant challenges the reasons for the trial Judge’s findings. This is demonstrably clear from the appellant’s summary of argument at paragraph 8(l). There the appellant sets out six reasons for the finding of no unacceptable risk by his Honour the challenges each of them. At paragraph 94 of his reasons his Honour enumerates with care, nine reasons why he came to the view that there was no unacceptable risk to the child. There is no basis for suggesting that his Honour did not provide adequate reasons to support his findings. However we will consider this ground in general in considering the grounds raised by the appellant in support of the attack upon his Honour’s finding of no unacceptable risk.
Ground 5

The trial Judge erred in finding that Professor U’s opinion was that this was a case of confabulation and that the child had not been abused as such.

62.The basis of this ground is that the trial Judge misconceived the evidence of the two psychiatric experts upon which he relied to reject the finding of unacceptable risk and failed to otherwise adequately explain his finding. Professor U’s summary (Appeal book volume 3 page 507) was that “it is only the eroticised behaviour discussed in paragraph 73-75 that supports the allegation of sexual abuse. This evidence does not go beyond the “more likely than not” level. It is neither “clear and convincing” nor beyond reasonable doubt”.
63.He further concluded that, paragraph 94 page 507 “even if premature eroticisation is taking place, I do not think that JR has been seriously emotionally harmed. In fact it is the stress associated with the parental separation that is the chief source of the psychological disturbance she displays before and after contact with her father.” In paragraph 94 of the report he says “Nevertheless given all the considerations I agree with Mr B that a degree of caution is appropriate”
64.At paragraph 51 of the judgment his Honour details these passages and says “in summary, Professor U seemed to lean to a lingering doubt position”. His Honour noted that when his attention was drawn to the annexure to the affidavit of J, his opinion that the situation called for a cautious approach was strengthened. During his cross examination Professor U was asked the following: (Appeal book volume 5, page 997, line 9):
Mr Taylor: “thank you your Honour. Professor you made some comments in your report regarding confabulation by the mother. In having interviewed her are you of the opinion that that’s a real possibility here?”
Professor U “I certainly was until I saw that report from the – from the kindergarten teacher. I thought it was a possibility, yes, as I discussed at length, I think, in my – in my report.
65.His Honour also noted that Professor U held a reservation about the mother’s confabulation, which was expressed in paragraph 50 of the reasons for judgment:
In the course of his oral evidence, Professor U indicated that he could not exclude the possibility that sexual abuse had occurred. There was no further explanation of this answer. The impression I gain from a consideration of his evidence generally was that he held to his view that this was a case of confabulation but that one can never be confident at being 100% correct and, in this context, he could not exclude the possibility that sexual abuse had occurred.
66.Given that Professor U’s qualification on confabulation was in response to one particular allegation, we consider that his Honour’s summary at paragraph 50 was a reasonable analysis of his evidence. His Honour dealt specifically with the oral evidence of Professor U and noted in paragraph 91 that in the course of his cross examination he was not so strongly attached to the confabulation theory after seeing the attachment to the affidavit of J. However, his Honour also noted that Professor U was asked “in the light of the evidence you have just given does this change in any way shape or form the conclusion which you have come to in the report?” He replied “it makes me think they are more valid”.
67.His Honour said at paragraph 92 that he had some difficulty understanding these different answers from Professor U and found his evidence somewhat equivocal.
68.We are satisfied that there is no substance to this ground. His Honour was aware of Professor U’s equivocation and that he could not exclude the possibility that a sexual abuse had occurred. We are satisfied that his Honour understood his evidence. However, in coming to his ultimate conclusion the trial Judge was in a position where he had seen and heard the witnesses, and particularly as he was not impressed with the evidence of the mother, able to bring a different perspective to Professor U’s evidence in coming to his ultimate conclusion that there was not an unacceptable risk in contact taking place.

Ground 6

That in making an order which provided contact by the child JR with the father, the trial Judge erred in that he failed to take into account significant portions of the evidence of Professor U, in particular;

a)the evidence that it is more likely than not that JR has been prematurely eroticised by someone;

b)the evidence that the chief suspect is her father;
c)the evidence that the child’s eroticised behaviour supports an allegation of sexual abuse
d)the evidence that it is very unlikely that the person could coach a child of JR’s age to behave in a sexually explicit manner in which JR has been observed to behave;
e)that the evidence of J made him more confident that JR’s eroticised behaviour is indicative of sexual abuse
f)the evidence that JR sexualised behaviour could not be accounted for by the fact that JR had seen her father catheterise himself.

69.As we have already indicated the trial Judge noted at paragraph 50 that Professor U indicated that he could not exclude the possibility that sexual abuse had occurred. In paragraph 51 of the reasons for judgment the trial Judge noted Professor U’s evidence regarding premature eroticism of the child. The passage relied upon by the appellant in ground 6(a) and in 6(b) that “the evidence that the chief suspect is her father” was dealt with by Professor U in his report (Appeal Book volume 3 page 507) where he says:
“opinion: 1 – given the above considerations it is more likely than not that JR has been prematurely eroticised by someone 2- the chief suspect is her father 3 – even if premature eroticisation has occurred the child has not been greatly harmed psychologically. There is no evidence that she has been geniality penetrated 4- the child’s current psychological disturbance is not severe in degree and relates to marital conflict in the child’s separation from her beloved father rather than to sexual abuse 5- JR has a close affectionate relationship with her father which it would be inadvisable to interrupt 6- JR should not be allowed to watch her father catheterise himself 7- further attention to JR’s eroticised behaviour should be withdrawn and her therapy should cease 8- a continuation of the current schedule for supervised contact in a contact centre should be considered 9- the case should be reviewed in six months”.
70.It is also instructive to consider paragraph 92 of his report where he says “thus it is only the eroticised behaviour discussed in paragraphs 73-75 that supports the allegations of sexual abuse. This evidence does not go beyond the “more likely than not” level. It is neither “clear and convincing” nor “beyond a reasonable doubt”. The grounds in paragraphs 6(a) and 6(b) therefore need to be considered with the totality of Professor U’s opinion.
71.Ground 6(c) “the evidence that the child’s eroticised behaviour supports an allegation of sexual abuse”. This is not the way in which the opinion of Professor U was put. Professor U said in paragraph 92 “thus it is only the eroticised behaviour discussed in paragraphs 73-75 that supports the allegation of sexual abuse.”
72.In this context, the comments of the Full Court of this Court in A v J (1995) FLC ¶92-619 about the approach an appeal court should take to the reasoning of the trial Judge in child welfare proceedings are apposite. Their Honours Fogarty, Lindenmayer and O’Ryan JJ confirmed that the best interests of the child are the paramount consideration and thus:
“[i]t is…important to avoid an overly critical analysis of the reasons of the trial Judge. This is not to detract from the requirement to give adequate reasons. It simply means that there should not be a microscopic analysis of, for example, words used by a trial Judge if, in all the circumstances, it is clear that the trial Judge has considered and evaluated the relevant evidence, taken into account all relevant factors and, importantly, has considered the ultimate welfare of the child as the paramount consideration.” (at 82,232).
73.We are also mindful of the comments of Kirby J in AMS v AIF; AIF v AMS (1999) FLC ¶92-852, where his Honour cautioned appellate courts against an “overly critical” or “pernickety” analysis of the trial Judge’s reasons, given the large element of judgment, discretion and intuition involved (at 86,042–043).

74.We are satisfied that the trial Judge in this matter took full and appropriate regard of the entirely of Professor U’s evidence, including evidence with respect to the likelihood of the mother engaging in confabulation and the possibility of sexual abuse having occurred. Accordingly, this ground is not made out.

Ground 7
The trial Judge erred in finding that Dr V’s opinion was that it was highly unlikely the allegations of sexual abuse have any substance.

75.This ground relates to paragraph 89 of reasons for judgement in which the trial Judge said “was JR subjected to inappropriate sexual conduct and if so, by whom? I would be of the view it is highly unlikely the allegations of sexual abuse are of any substance. This is the view shared by Dr V and by the experienced child representative and by the barrister who appeared on behalf of the child representative.”

76.The trial Judge explained this further in paragraph 94 in which he considers whether there is any unacceptable risk for the child. He refers to the fact that it is taken into account by Dr V at page 20 of his report. It is necessary in considering this ground to consider some of the passages in Dr V’s Report.

Diagnostic Issues (provisional)

77.Dr V says at page 17, “the diagnostic issues are complex and much depends on judgment of fact which is not the role of an assessing psychiatrist. However, on the data each party presents of themselves, it would seem to me that there is no evidence that either of the parties suffers from any major mental disorder such as psychosis or pathological disorder of mood or organic mental disorder”.

78.At page 18 he says “with respect to the allegations of sexual abuse, the truth or otherwise of this important issue is of course a matter for the court to decide. There are certain issues in [the mother’s] description of how she came to believe sexual abuse occurred that are of some concern from a psychiatric point of view. I note however, that the belief is not just from inferences drawn from observed behaviour or interpretations of situations but also apparently from “disclosures” the child has made. As to how these disclosures arose contextually is of course a separate question. Clearly the reports of others involved in the case including the Family Report are of importance”.

79.At page 19 under the heading ‘Conclusions’ Dr V said “clearly the most critical issue in determining this are the allegations of sexual abuse of the child as claimed by the mother. If sexual abuse has occurred along the lines alleged, this would indicate quite severe psychopathology in the father and moreover it would be difficult to see how any kind of contact, supervised or not, could be in the child’s interests”.

80.We observe that in the passage above Dr V found no evidence that either of the parties suffered from any major disorder such as psychosis or pathological disorder of mood or organic mental disorder. It is therefore in our view reasonable for the trial Judge to infer that when Dr V opines that if sexual abuse occurred along the lines alleged by the mother it would indicate quite severe psychopathology in the father, that in light of his findings that there is no psychosis or pathological disorder, that he is not persuaded that the allegations of sexual abuse had any substance.

81.At page 20 of the report Dr V said the following: “Only a court can determine on the basis of the tested evidence whether there has been sexual abuse or not and it would be inappropriate for an expert witness to make a judgment of fact. Having stated this, it may be of assistance to the court if I outline several features that this case shares with other cases of false accusations of sexual abuse that I have evaluated for the Family Court over the last 15 years. These points should not be taken to mean I have concluded that sexual abuse has not occurred. I note the following:
·There is a retrospective account of the events prior to separation that are claimed to indicate that sexual abuse had occurred even though no such concerns have appeared to have been raised previously with anyone.
·The mother’s reliance on subtle observations including smells as indicative of sexual abuse.
·The interpretation of probably normal behaviour on the part of the child as being indicative of sexual abuse.
·The mother’s inability to see any explanation other than sexual abuse for abnormal behaviour noted.
·The mother’s inability to be reassured by investigations by competent individuals.
·The mother’s concern about the closeness of the child to the father as against concern about the child’s relationship with herself.
·Insistence that abuse has occurred while contact has been supervised.
·Escalation in the nature of the alleged abuse over time.
·The involvement of the therapist who reinforces the beliefs.
·Role of the maternal grandmother in these issues is not clear.”

82.Dr. V went on to say “the above statements, which are in no particular order, do not take into account that child’s actual statements which on face of it appear to be explicit. However, the context in which these “disclosures” arose needs to be examined by the Court.”

83.We think that whilst Dr V was careful in not trespassing into fact finding which was the province of the trial Judge “(only a Court can determine on the basis of the tested evidence whether there has been sexual abuse or not)”, his outlining of several features that, in his view, were shared with other cases of false accusations of sexual abuse, entitle the trial Judge to form the view that Dr V shared with him a scepticism regarding the likelihood of the sexual abuse allegations having substance. The words used in paragraph 89 of the reasons by the trial Judge – “highly unlikely” – are his own words and were not the words used by Dr V, but nevertheless, we are satisfied that from his evidence his Honour was entitled to draw the inference that Dr V was not persuaded that the allegations of sexual abuse had any substance and that his caution in noting that some statements by the child were explicit came from the proper acceptance that this was ultimately a matter for the trial Judge. His actual words were “However, the context in which these “disclosures” arose needs to be examined by the Court.”

84.We accept that his Honour may overstated the evidence by describing Dr V’s opinion as being “highly unlikely” that the allegations of sexual abuse had any substance, rather than using other words such as he “was unpersuaded” that the allegations had any substance. But this does not in our view advance the appellant’s case that in making an order which provided for contact by the child JR with the father, the trial Judge erred in that he failed to take into account significant portions of the evidence of Dr V, in particular:

a)there is no apparent explanation for the child’s actual explicit statements about sexual matters
b)if sexual abuse had occurred contact of any kind would not be in the child’s interests.

85. A number of matters were put to Dr V in cross examination, including the child’s disclosures about explicit sexual matters. Dr V’s consistent position was that sexual abuse was one of the possible explanations for such behaviour. At page 409 of the transcript Dr V said:

“it seems to me a number of possibilities of why the child is behaving in a highly sexualised way. One is that she has been asked a lot of questions about sexuality and sexual things brought by her mother and others. Secondly, she’s in therapy where she is involved in – for sexual assault issues presumably dealing with dolls etc, talk about body parts. Thirdly, she has been sexually abused. Fourthly, I say that she may have observed her father in inappropriate situations and what comes to mind in particularly is that he was self catheterising and she observed which to my mind is in appropriate for a child to observe that. …So when you put all those things together they may provide an explanation for the child’s behaviour and curiosity about sex and particularly about males”.

86. We thus consider that Dr V did provide an explanation for the child’s explicit statements about sexual matters and that there is no substance to this ground.

87. His Honour found on the whole of the evidence that sexual abuse had not occurred. It was not Dr V’s position that sexual abuse had occurred, but in any event His Honour was well aware of Dr V’s view about contact if sexual abuse had occurred and referred to it in paragraph 40 of the judgment, where His Honour said:

“…in para 30 and onwards, [Mr B] considers what he perceives as the various options open to the Court. His recommendation, expressed in quite strong terms, is that for the various reasons that he gives, contact should be supervised at a contact centre. If the Court was to find sexual abuse had occurred as a positive finding of fact, he would defer to the views of [Ms R] and [Dr V] that there should be no contact whatsoever”.

88. We can thus find no substance on the ground that His Honour failed to have regard to Dr V’s view. It must be remembered that these matters all arise as a result of the appellant’s assertion that His Honour erred in finding that there was no unacceptable risk of abuse and failed to give reasons for so finding. The appellant’s counsel focused largely on the analysis of the evidence of the experts but as we have indicated the ultimate finder of fact was the trial Judge. Whilst His Honour considered the expert evidence, it is clear from paragraph 94 of the reasons for judgment that his finding was based on a number of matters including, importantly, what he described as “the inherent unreliability of the mother’s evidence” and her “generally vindictive behaviour objecting to all contact between father and daughter, objecting to the paternal grandparents being allowed to see their grand daughter, objecting to the father’s partner seeing the child, complaining about the father’s partner remaining in the car at the contact centre because she formed the view it was too close to the entrance of the contact centre.” His Honour’s finding was made after an analysis of all the evidence, including the evidence of the parties and what he observed of them, and those findings in our view were open to him on all of the evidence.

Ground 2

Failure to consider the factors in section 68F(2) of the Family Law Act

89. The appellant contended that the trial Judge identified the major issue for determination as being whether the child had been subjected to any inappropriate sexual conduct by an adult and if so by whom and stated that the real issue was the question of whether an unacceptable risk existed if the child was to have contact with the father. She argued that, having come to the conclusion that the allegations of sexual abuse were quite unlikely to have any substance, that there was no unacceptable risk, and that he did not accept that the child had been sexually abused by anyone, the trial Judge proceeded to make orders for contact without analysing the evidence under each of the various factors set out in section 68F(2). The appellant contended that whilst the issue of sexual abuse was a significant issue, it did not override the obligations of the trial Judge to consider the paramount issue, mainly, was it in the child’s best interests to have contact with the father. In doing so the trial Judge was required to have regard to the relevant factors under section 68F(2).

90. In relation to this ground it is instructive to consider the submissions for the respondent mother which appear at page 387 onwards in volume 2 of the appeal book. The submissions for the mother were made in writing and dealt with the matters in section 68F(2). In those submissions the mother submitted the following matters were relevant.

Wishes of the child

(a)The mother submitted that the child was too young to have wishes which would be given in any real weight by the court. She then submitted that even if the court found the child had wished to see the father the court should take into account the fact that he was sexually abusing her.

The relationship with the child with parents and others
(b)The mother submitted that the child appeared to have a good relationship with both her parents. The rest of her submission under this subheading then related to the sexual abuse allegations and how their finding would impinge upon the relationship between the child and the father. She made no criticism of the child’s relationship with the father’s new partner other than to say that it was no more than “superficially pleasant” and acknowledged that the child’s relationship with the paternal grandparents was apparently sound.

The effect of any changes to the child’s circumstances, including separation from the parents.
(c)Under this heading the mother submitted that the child was traumatised and the rest of her submissions relate to the allegations of sexual abuse.

The practical difficulties at the expense of the child having contact with the parent.
(d)The mother contended that the father’s disability meant that he would have greater difficulty than an able bodied person in caring for a child.

The capacity for each parent and others to provide for the needs of the child.

(e)The mother submitted that the father, according to Dr V, displayed obsessional and perhaps narcissistic character traits which she contended would reduce his capacity to focus on the best interests of the child. Most of the submissions under this heading related to the sexual abuse allegations.

The child’s maturity sex and background

(f)The mother submitted that given the child’s age and her current relationship with the father she is not in a position to protect herself from any dangerous or abusive behaviour and otherwise the mother relied on her previous submissions about the sexual abuse.

The need to protect the child from physical and psychological harm

(g)The mother relied on previous submissions as to sexual abuse, raised concerns about sexual abuse and submitted that appropriate supervision is not available at the current contact centre.

The attitude of the parents to the child and the responsibilities of parenthood

(h)The mother submitted that it was not in the child’s best interests to be “prematurely erotised” and asserted that this was due to the father.

Family violence

(i)The mother alleged that she had been verbally abused by the father during the relationship.

The prospect of unsupervised contact in about 12 months.

(j)The mother submitted again that the court should have found on the evidence and on the balance of probabilities that the child had been prematurely erotised as a result of sexual abuse and directed the remainder of her submissions under this subheading.

(k)The mother further submitted that if sexual abuse had occurred it could continue in the absence of any appropriate supervision and that the father’s family were all unsuitable supervisors.

91. The Child Representative submitted that the mother was by consent the resident parent and the effect of any order on her must be taken into account. The child representative also directed written submissions to the sexual abuse allegations.

92. It was thus clear that the submissions made to his Honour all focused around the sexual abuse allegations. His Honour noted residence was not an issue. His Honour found that there was no unacceptable risk in contact taking place. He considered what contact should be ordered. His Honour did not specifically refer in his judgment to matters in s 68F(2). Nevertheless he considered the matters which were relevant in addition to the sexual abuse allegations and in particular:

(a)The trial Judge considered the effect of the orders upon the applicant’s parenting capacity and hence on the child’s welfare (paragraphs 101 and 102).

(b)His Honour considered the history of drug abuse by both parties and did not find it to be a relevant factor (para 22).

(c)The trial Judge considered the relationship between the father and child and father to be “warm, close & loving”. In his reasons for judgment, the trial Judge found the mother to be anxious and suffer low self esteem (paragraph 72).

(d)The trial Judge considered all the of the complaints about the father’s conduct (other than sexual abuse allegations) in paragraphs 73 to 75 and rejected them as not providing any indication that he could not appropriately care for the child.

93. Thus, although the trial Judge did not make direct reference to section 68F(2) factors nor deal explicitly with the matters contained in that section in his reasons for judgment, we are satisfied that his Honour considered all matters relevant to the child’s welfare in the course of his reasons for judgment. It should be remembered that the written submissions from the mother to which we have referred were clearly directed almost entirely to the question of sexual abuse. The finding that supervised contact was appropriate in all the circumstances was arrived at through consideration of the best interests of the child and thus we find that this ground is not made out.

Ground 3
The trial Judge erred in finding that there was no evidence that the mother would be unable to handle compliance with the orders.

94. The appellant submitted that the trial Judge was in error in making this finding. The appellant pointed to a number of matters which suggested that the trial Judge was in error in finding that there was no evidence “of a professional or other nature that the mother would be unable to handle compliance with the orders.” (paragraph 101).

95. The appellant submitted to the Full Court that His Honour had erred in finding that the mother did have a capacity to parent if orders were made for contact other than at a contact centre and the effect of such orders on the mother/child relationship. The appellant’s counsel conceded that there was no case run by the mother at trial on the impact on the mother of contact occurring, but contended that it was run by the child representative, and that the trial Judge should have drawn the inference that if orders were made on grounds of supervised contact substantially different to the contact being sought by the mother, the mother would be terrified and frightened and this would impact on her capacity to parent.

96. His Honour directly considered these matters and in his reasons for judgment at paragraphs 99 and 100 the trial Judge says:

“The child representative and Professional U said that even though there was no acceptable risk the contact should be at the contact centre citing as the basis for the decision of R & C (unreported, Family Court of Australia, 25 June 1993) which centred on the fact that the mother’s anxiety was such that she was unable to function properly. In R & C the trial Judge found that the mother would engage in hysterical behaviour if overnight contact was to occur. I note that the mother’s evidence in the witness box on oath before me that she would be accepting the court orders. I sincerely hope that she will be as good as her word”.

97. His Honour went on to state in paragraph 101 of his reasons for judgment: “there is no evidence of a professional or other nature that the mother would be unable to handle compliance with the orders that I propose to put in place. I expect that she would have a degree of difficulty. That is another matter.”

98. The trial Judge then said “I note that in R & C the trial Judge had ordered unsupervised day contact and that was subjected to scrutiny by the Appeal Court. However, to assuage the fears the mother might have I have proposed an order that there be no overnight contact for a period of 12 months to hopefully allow the child’s behaviour to settle”.

99. The mother was cross-examined by counsel for the husband on this issue. Her evidence was as follows (Appeal Book, volume 4, page 702):

Mr Fleetwood: Assume for the moment that His Honour, at the end of the trial, make orders that JR spend every second weekend unsupervised with her father, will you be able to support those orders?
[The mother]: I will have to.
Mr Fleetwood: You see, the evidence that I have heard from you earlier today when you were asked about contact at the contact centre, my recollection of your answers was “It just needs to be done. Something that I have got to, you know, do.” Was that in relation to contact at the contact centre, or is that your attitude to contact JR and her father generally?
[The mother]: No that is in relation to contact at the contact centre. It’s what – if I am feeling upset about it or anything it’s what I tell myself, “Look this is just life. We have to deal with it”.
Mr Fleetwood: And do you believe – or do you foresee that that would be your attitude if His Honour orders unsupervised contact between JR and her father?...
[The mother]: I think that I would be terrified.
Mr Fleetwood: but I am asking you foresee whether that would be your attitude?
[The mother]: I cannot foresee my attitude apart from what I said that it would terrify me.

It is apparent from the evidence of the mother, from the written submissions made by her counsel at the conclusion of the hearing and from concessions made by counsel before us that the mother did not run a case at trial on the basis that she would be unable to “handle” compliance with the orders or that her relationship with the child would be affected by them. His Honour was entitled to make the finding in paragraph 101 of the reasons for judgment that there was no evidence of professional or other nature that the mother would be unable to handle compliance with the orders. His Honour accepted that she would have a degree of difficulty and made orders which he thought may assuage her fears. We find no substance to this ground.

Ground 9
Acceptance of the husband’s parents and de facto as supervisors

In his report Professor U at paragraph 94 says “nevertheless, in all considerations, I agree with Mr B that a degree of precaution is appropriate. I recommend that supervised contact in a contact centre for two hours every second week would be appropriate. Eventually, perhaps in one years’ time, more extended supervised contact away from the contact centre should be considered”.

Under cross examination Professor U confirmed this view and confirmed his view that there should be independent supervision. He said “my concern would be that if the supervisor was somebody who was absolutely convinced that there was no truth to the allegation that would worry me” (Appeal Book, volume 5, page 1000). In his report (Appeal Book, volume 3, page 476, paragraph 36) Mr B said “it is respectfully concluded that there remain sufficient concerns regarding allegations of sexual abuse in relation to JR as to warrant an extended period of supervised contact at the contact centre”.

At paragraph 38 he said “the opposite finding that on the balance of probability the sexual abuse allegations are false is more difficult to envisage, on consideration of all the material and could well lead to great anxiety within the primary caregiver should unsupervised, family-based contact be ordered. Hence the writer’s position that at the very least there ought to be regular, closely supervised contact by staff of the [contact centre]”. Mr B discounted the grandparents and S as suitable supervisors because of their belief that the father had done nothing wrong and thus had a conflict of interest.

The Child Representative supported this part of the appeal. The child representative relied upon the recommendation of Professor U that ongoing contact is supervised and his opinion that the stress associated with the parental separation is the chief source of the psychological disturbance that JR displayed before and after contact with her father. The child representative also relied upon Professor U’s opinion that the mother sincerely believed that the daughter had been sexually abused and had low self esteem.

His Honour however, was aware of the evidence. He said that there was no reason why the father should not have contact and that was conceded by the mother if there was no finding of unacceptable risk. He then turned to the question of what contact there should be and posed the question “should it be supervised or not and if so supervised by whom?”

He noted that the child representative and Professor U both said that even though there was no unacceptable risk the contact should be at the contact centre citing as the basis for that the mother’s anxiety and inability to function properly. His Honour however, noted that this case was different from that in R & C (supra) and that the mother’s evidence in the witness box was that she would be accepting of court orders and, as already stated, there was no evidence of a professional or other nature that the mother would be unable to handle compliance with the orders he proposed to put in place.

His Honour made a finding that there was no unacceptable risk that the child might be abused whilst in her father’s care and thus the only question that remained to him concerning supervision was whether the mother’s anxieties were of such intensity that unsupervised contact would harm the child. As already stated His Honour was entitled to find that there was no evidence to support a finding that the mother’s anxieties were of such intensity that unsupervised contact would harm the child. To the extent that the mother had concerns, the trial Judge made orders to assuage her fears. Those orders were that the father have no overnight contact for a period of 12 months. His Honour was concerned to ensure that the contact was valuable and in paragraph 101 of the reasons for judgment said “the difference between contact at the contact centre and contact in one’s own home environment is enormous for both adult and child. It is important for the child and important for the adult participants that they be allowed to engage in as normal a home environment as possible”.

Given His Honour’s finding that there was no unacceptable risk to the child having contact with the father, and that there was no evidence to support the need to provide supervised contact because of the mother’s anxieties, His Honour was entitled to find as he did that it was unnecessary for contact to take place at a contact centre. His Honour found reasons to be confident in the father’s parents and S as appropriate supervisors in the circumstances of the father’s disability and we find no substance to this ground.

For the reasons expressed we are of the view that there is no substance to any of the grounds of appeal relied upon by the appellant and that the appeal must be dismissed.

Orders
! That the Appeal be dismissed.

That there be no order as to costs.

I certify that the preceding 109
paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Associate

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Citations

TKR & CPW [2006] FamCA 72

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Lange v Australian Broadcasting Corporation [1997] HCA 25

[2006] FamCA 72

22 February 2006

Key Legal Topics

Areas of Law

Civil Procedure

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Appeal

Jurisdiction