FAMILY COURT OF AUSTRALIA
| VASSER & TAYLOR-BLACK | [2007] FamCA 547 |
| FAMILY LAW - APPEAL – UNACCEPTABLE RISK OF CHILD ABUSE – Whether Federal Magistrate erred in rejecting mother’s application for adjournment pending investigation of allegations of sexually inappropriate conduct by father towards child – Information from investigation likely to be of benefit in determining orders in child’s best interests – Federal Magistrate did not discuss and weigh benefits in allowing investigation to proceed or balance any prejudice in granting adjournment sought with orders sought by father – Whether Federal Magistrate erred in finding child was likely to suffer unacceptable risk of psychological abuse in care of mother – Federal Magistrate did not identify governing law – Unable to discern from Federal Magistrate’s reasons basis of finding of unacceptable risk of psychological abuse of child in care of mother – Federal Magistrate failed to analyse risk in mother’s household and consider what safeguards to overcome risk could be put in place - Whether Federal Magistrate failed to provide adequate reasons and assess impact on child of sudden change in care arrangements and separation from mother – Federal Magistrate did not consider relevant matters in s 60CC as outlined in recommended steps contained in Goode and Goode (2006) FLC 93-286 at [82] – Failure to do so constitutes appealable error. Appeal allowed. FAMILY LAW - APPEAL – COSTS – Error of law by Federal Magistrate – Appropriate both parties and independent children’s lawyer receive costs certificates. |
| Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC and 61DA |
Bennett v Bennett (1991) FLC 92-191
Goode and Goode (2006) FLC 93-286
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716
House v The King (1936) 55 CLR 499
M and M (1988) 166 CLR 69; (1988) FLC 91-979
Sun Alliance Insurance Ltd v Massoud (1989) VR 8
| APPELLANT: | Vasser |
| RESPONDENT: | Taylor-Black |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Wearne |
| FILE NUMBER: | SYC | 200 | of | 2007 |
| APPEAL NUMBER: | EA | 13 | of | 2007 |
| DATE OF ORDERS: | 29 March 2007 |
| DATE OF PUBLICATION OF REASONS FOR ORDERS: | 7 June 2007 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Finn, Boland and Ryan JJ |
| HEARING DATE: | 29 March 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 22 January 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 41 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Messner |
| SOLICITOR FOR THE APPELLANT: | Michie Shehadie & Co |
| COUNSEL FOR THE RESPONDENT: | Ms Hausman |
| SOLICITOR FOR THE RESPONDENT: | Ross Clarke & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Boyle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Vasser v Taylor-Black.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 13 of 2007
File Number: SYC 200 of 2007
| Vasser |
Appellant
And
| Taylor-Black |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
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- AGLC
- Vasser & Taylor-Black [2007] FamCA 547
- Case
- [2007] FamCA 547
- Decision Date
CaseChat Overview and Summary
This case concerned an appeal from orders made by a Federal Magistrate regarding child welfare. The dispute involved allegations of sexually inappropriate conduct by the father towards the child, and the mother's application for an adjournment to allow for an investigation into these allegations. The father sought orders for access to the child.
The Federal Court was required to determine whether the Federal Magistrate erred in rejecting the mother's application for an adjournment, given that information from an investigation into the allegations could have been beneficial in determining the child's best interests. The court also had to consider whether the Federal Magistrate erred in finding that the child was likely to suffer an unacceptable risk of psychological abuse in the mother's care, and whether the Federal Magistrate failed to provide adequate reasons for this finding, assess the impact of a sudden change in care arrangements on the child, or consider the relevant matters under section 60CC of the *Family Law Act 1975* (Cth) as outlined in *Goode and Goode*.
The Court allowed the appeal, finding that the Federal Magistrate had erred in several respects. Specifically, the Magistrate did not adequately discuss and weigh the benefits of allowing the investigation to proceed against any prejudice caused by granting the adjournment. Furthermore, the Magistrate failed to identify the governing law and the basis for the finding of unacceptable risk of psychological abuse in the mother's care was not discernible from the reasons. The Magistrate also failed to analyse the risks within the mother's household and consider potential safeguards. The Court emphasised the paramount consideration of the child's welfare and the principles established in *M and M*, which require courts to assess the risk of harm to a child, including the magnitude of that risk, when determining custody and access orders. The Magistrate's failure to consider these matters constituted appealable error.
Given the errors of law identified, the appeal was allowed. The Court also ordered that both parties and the independent children's lawyer receive costs certificates.
The Federal Court was required to determine whether the Federal Magistrate erred in rejecting the mother's application for an adjournment, given that information from an investigation into the allegations could have been beneficial in determining the child's best interests. The court also had to consider whether the Federal Magistrate erred in finding that the child was likely to suffer an unacceptable risk of psychological abuse in the mother's care, and whether the Federal Magistrate failed to provide adequate reasons for this finding, assess the impact of a sudden change in care arrangements on the child, or consider the relevant matters under section 60CC of the *Family Law Act 1975* (Cth) as outlined in *Goode and Goode*.
The Court allowed the appeal, finding that the Federal Magistrate had erred in several respects. Specifically, the Magistrate did not adequately discuss and weigh the benefits of allowing the investigation to proceed against any prejudice caused by granting the adjournment. Furthermore, the Magistrate failed to identify the governing law and the basis for the finding of unacceptable risk of psychological abuse in the mother's care was not discernible from the reasons. The Magistrate also failed to analyse the risks within the mother's household and consider potential safeguards. The Court emphasised the paramount consideration of the child's welfare and the principles established in *M and M*, which require courts to assess the risk of harm to a child, including the magnitude of that risk, when determining custody and access orders. The Magistrate's failure to consider these matters constituted appealable error.
Given the errors of law identified, the appeal was allowed. The Court also ordered that both parties and the independent children's lawyer receive costs certificates.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
We also think it was significant that his Honour did not refer to the High Court’s decision in M and M (1988) 166 CLR 69; (1988) FLC 91-979, that decision having become the “touchstone” setting out the relevant principles to be applied in cases of asserted unacceptable risk of any kind. Those principles, which are well known, are as follows: In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities. In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p 362. There Dixon J said: “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child. No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A v A (1976) VR 298 at p 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶ 91-830 at pp 76,240-76,242; (1987) 11 Fam LR 765 at pp 770 and 771 respectively), ‘a real possibility’ (B and B [ Access] (1986) FLC ¶91-758 at p 75,545), a ‘real risk’ (Leveque v Leveque (1983) 54 BCLR 164 at p 167), and an ‘unacceptable risk’ (In Re G (a minor) (1987) 1 WLR 1461 at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse. (our emphasis).
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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