Vasser & Taylor-Black
[2007] FamCA 547
•7 June 2007
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
These are reasons for orders made by the Full Court on 29 March 2007.
The mother had appealed against a number of interim parenting orders made by Federal Magistrate Altobelli on 22 January 2007. The orders had the effect of radically changing the care arrangements for V, the now six year old only child of the mother and of the father. Until the Federal Magistrate’s orders V had lived in a long standing shared care arrangement spending equal time living with her mother and her father.
The Federal Magistrate ordered that V should, pending further order, live with the father (subject to certain undertakings given by the father designed to protect V from any risk of sexual abuse), and that she spend time with the mother for three hours, twice per week, such time to be supervised.
As will become apparent from our reasons, the parties had conducted previous proceedings about V in the Family Court of Australia in 2004 and Moore J had made orders that V live with each party in a shared care arrangement with V changing households mid week each week. At about the time the proceedings came before his Honour, V was about to commence school, and in accordance with Moore J’s orders, was to live in a week about shared care arrangement in lieu of the mid weekly shared care arrangement.
The catalyst for the present proceedings was an assertion by the mother that V had made disclosures of sexually inappropriate conduct by the father. It was alleged by the mother that V reported the father touched her genitals and made remarks about his penis. The mother, who had previously complied with orders, withheld V when she was due to return to the father. She asserted she did so on advice received from the Department of Community Services (“DoCS”) and pending investigation of the allegations by the Joint Investigation Response Team (“JIRT”). The father commenced recovery proceedings in the Federal Magistrates Court.
The father asserted before the Federal Magistrate that V was subject to risk of unacceptable psychological abuse in the care of the mother, and that she should, at least on an interim basis, live with him, with limited supervised contact with the mother.
The appeal, which was expedited, was argued by the mother’s counsel and supported by counsel for the independent children’s lawyer, under three broad topics. It was argued that the Federal Magistrate:
·erred in rejecting the mother’s application for an adjournment pending the JIRT investigation;
·erred in making findings that V was likely to suffer unacceptable risk of psychological abuse in the care of the mother; and
·failed to assess the impact on V of a sudden change in her care arrangements and separation from the mother.
After hearing the parties’ submissions, we determined that the appeal should be allowed and the orders made by the Federal Magistrate on 22 January 2007 should be set aside and indicated we would later provide written reasons for our decision. These are those reasons.
It is convenient to note here that the matter has been transferred to the Family Court of Australia, and has been placed in the Magellan list before Watts J. It is also appropriate that we note the parties agreed that, on the appeal being allowed, the orders made by Moore J and orders made by Altobelli FM which are not subject of challenge, are now the operative orders pending further order of the Court.
Application to adduce further evidence
For completeness we note that the mother sought to adduce further evidence on the appeal, and that her application was not opposed by the father or the independent children’s lawyer. We rejected that application noting we would not, in the event we determined the appeal should be allowed, re-exercise the discretion ourselves. We had particular regard to the fact of the concession by both parties and the independent children’s lawyer that if the appeal was allowed, Moore J’s orders would be the operative orders, and that the matter had an early further mention date before Watts J.
Background
There is little background in the Federal Magistrate’s reasons. However relevant facts are found in the judgment of Moore J which judgment was referred to by his Honour and was contained in the appeal book.
The mother was born in 1956 and is aged 50 years. She first came to Australia as a tourist in 1995, then returned in 1996, and has since remained living in Australia. She is an Australian citizen.
The father was born in Australia in 1950 and is aged 56 years. He has two prior marriages. No children were born of those marriages. He has an adult child of a much earlier relationship.
The parties met in 1999, and the mother fell pregnant in 2000. In March 2001 just prior to V’s birth, the mother moved into a home owned by the father. The parties and V lived in the father’s home until November 2002 when he commenced living with his mother. In January 2003 the mother left the father’s home and thereafter lived in rented premises.
Defended proceedings were heard before Moore J in February/March 2004. During the course of the proceedings before Moore J, Dr W, a child psychiatrist, was appointed as an expert, and prepared an extensive report. Her Honour published reasons and made orders on 26 March 2004. Until the orders made by the Federal Magistrate these were the operative orders. In summary Moore J’s orders provided that until she commenced school V should live with the father, on a two week cycle, by being in his care in week one each Sunday until Thursday, and in week two from Sunday to Wednesday. At all other times, V was to live with the mother. Upon V commencing school her living arrangements were to change to a “week about” shared parenting arrangement during school terms, and she was to spend one half of all school holidays with each parent.
A dispute arose between V’s parents during 2006 about V not wearing underpants when she went to bed in the father’s household. The mother consulted three general practitioners for medical treatment for V who it appears suffered recurrent vaginal/urinary tract infections. During that year the mother consulted her general practitioner, Dr K, about V, and the doctor wrote a letter to each of the parties.
The mother asserted at about 8.30 pm on 6 January 2007 V made a disclosure to her which she found concerning. At about 10.30 pm the mother telephoned the DoCS helpline. The mother said on Sunday 7 January 2007 Constable S of the South West Sydney JIRT spoke to her, made arrangements to interview V the following day, and advised her not to return V to the father. She further said that V was interviewed for two hours on 8 January 2007, and that she was interviewed on 9 January 2007.
The father’s solicitor swore an affidavit on 10 January 2007. He deposed to speaking to Constable S who told him he was investigating an allegation that the father had indecently assaulted V. The solicitor deposed Constable S advised him JIRT did not intend to apply for an interim apprehended violence order or an emergency child protection order, and that he had suggested the mother would need to make an urgent application to vary the current orders.
V was not delivered to the father in accordance with the orders and he immediately commenced proceedings by filing on 10 January 2007 an application for a recovery order and interim parenting orders.
The mother asserted on 14 January 2007 V said “lets [sic] now was [sic] wash my royal penis”. She asserted when she asked V “where she got those words from” that V replied “[m]y dad says that”. On further questioning V said the words were spoken when the father was in the shower and “I’m there watching him”.
The proceedings which first came before his Honour on 16 January 2007, were adjourned until 19 January 2007 and further adjourned until 22 January 2007 when his Honour delivered reasons for judgment, and subsequently made the orders the subject of the appeal. His Honour’s ex tempore reasons, delivered on 22 January 2007, were published in their settled form on either 1 February 2007, or 5 February 2007. His Honour also made an order for the appointment of an independent children’s lawyer.
A subsequent stay application was made on behalf of the mother and refused by his Honour. No appeal was filed against the refusal of the stay.
Federal Magistrate’s reasons for judgment relevant to the appeal
At the commencement of his reasons his Honour briefly set out the applications before him and how the matter had until that time progressed through the Court. He noted when the matter commenced before him on 16 January 2007 the mother had not filed any material and the matter had been adjourned to give her the opportunity to put on some evidence and for a subpoena to be served on the New South Wales Police to produce documents relating to the alleged disclosure.
His Honour noted that the matter proceeded in the usual manner for an interim parenting application, that is, on the papers with submissions being made by the parties’ counsel. His Honour noted that the mother’s counsel presented submissions which were “quite clear and quite simple”. His Honour recorded those submissions as follows:
... It is basically that the child, [V] had made a disclosure, a disclosure that I would be deeply concerned about, and on the basis of well established authorities I should act as if there is an unacceptable risk of abuse and that there should be no contact between the child and the father until, at the very earliest, the JIRT team had completed their investigation, including an interview with the father himself. (paragraph 5)
His Honour also noted there was “an ongoing dispute” between the parties about V wearing underpants to bed. His Honour then recorded:
... that whilst the mother was clearly unhappy with the existing parenting orders she was still abiding by them, at least until the child’s disclosure which led her to not send the child back to her father on the date when that otherwise would have happened. (paragraph 6)
His Honour then went on to discuss counsel for the mother’s submission that V faced an unacceptable risk of abuse in the father’s household and that she should not return to her father “at least for the time being”. In considering these submissions his Honour said:
Now, these are compelling submissions, at least on their face, and in other circumstances might not just be compelling but convincing as well. (paragraph 7)
The Federal Magistrate then turned to discuss the submissions made by counsel for the father which he summarised as canvassing:
… The history of the litigation between the parents; the report of Dr [W]; the hearing before Moore J and her Honour’s detailed judgment; the present context of these allegations and inconsistencies with the evidence of the mother. (paragraph 8)
His Honour then summarised the father’s position saying:
... the father’s position is that there is no unacceptable risk of the child living with him. Indeed, if there is any unacceptable risk of abuse – in this case we are talking specifically psychological abuse – it is in the mother’s household. [Counsel for the father]’s submission is that, in view of the incomplete and conflicting evidence, I should strive to eliminate risk from both households if I can possibly can [sic]. (paragraph 8)
His Honour then went on to compare and contrast the present proceedings with more typical interim matters and referred to the report prepared by Dr W and Moore J’s findings in the earlier proceedings. His Honour then said:
All of this evidence is a factor that I take into account... (paragraph 12)
His Honour referred to the fact that the allegation arose at a time when there was a dispute between the parties as to where the child would go to school, a history of non-acceptance by the mother of the orders of Moore J including the change to her Honour’s orders which was to come into effect when V commenced school in early 2007. His Honour commented:
... When one looks at the overall context in which this disclosure is allegedly made the submission is that there is, in effect, every motive for the mother to want the existing shared care arrangement to be stymied. (paragraph 15)
His Honour then discussed what he described as counsel for the father’s “strongest submission” in respect of asserted inconsistencies and shortcomings in the mother’s evidence and referred to the mother’s failure to disclose the letter received from Dr K.
After dealing with a number of aspects of the mother’s evidence, and criticisms of that evidence by the father’s counsel, his Honour expressed his concern about the recording by the mother of her conversation with V in which the asserted disclosures were made. He also noted his concern that the mother did not make a report to DoCS for two hours after the child’s disclosure. His Honour described this as a “very significant delay”.
Having detailed each of the submissions made by counsel for the father, the Federal Magistrate expressed his concern raised by the parents’ communication book, noting the last entry in the book which referred to, amongst other matters, the mother’s concern about the father taking V’s pants off whilst she was in the father’s household which entry was dated 7 January 2007, and that the communication book contained no mention of V’s disclosure on 6 January 2007. His Honour said:
… I am not sure how I am to reconcile that inconsistency. It certainly adds to the doubts I have about the mother’s allegation and concerns that I have about what is going on in her household. (paragraph 32)
His Honour appears then to have focused on whether or not there was an unacceptable risk to the child in being returned to the father, or whether she would be exposed to a risk in her mother’s household, that risk being a psychological one. His Honour said:
… In the present context the dilemma I face is to somehow assess the magnitude of the risk, having regard to incomplete and untested evidence. Nonetheless, I do have the report of Dr [W] and judgment of Moore J, but I must say that in making this decision I do not base much weight on either Dr [W]’s existing report or Moore J’s judgment. (paragraph 33)
His Honour concluded:
34. I think that there is a risk to the child in the theoretical sense in both households, but the risk is different in terms of magnitude. I do not regard the risk of exposing the child to sexual abuse in the father’s household to be an unacceptable one. However, I have so many concerns about the mother’s evidence that even on an interim basis I have grave reservations about the allegations that have been made. The magnitude of the risk to the child in the father’s household is not significant. Nonetheless, I believe that I can further reduce the risk by imposing certain restrictions on the father’s activities involving the child that might otherwise give rise to the possibility of abuse.
35. Conversely, I am concerned about the magnitude of risk in the mother’s household. The risk of psychological abuse to this child is unacceptable. I have concerns that the manner in which these allegations have been raised exposes the child to harm. I am concerned about what the mother says to the child when she is with her. For the time being I am confident that the child can be protected in the father’s household. I do not have the same confidence in the mother’s household. My task and responsibility is to protect the child and I am satisfied in this case that this is the best way to achieve this.
Then his Honour requested the parties to discuss conditions of supervision for the father noting he was satisfied that the father’s brother was a suitable supervisor. His Honour sought submissions from the legal representative saying “what sorts of orders can I make that will protect the child whilst in the mother’s household?” (paragraph 37). As is apparent from his Honour’s subsequent orders he did not provide for the mother to spend time with V at a children’s contact centre, as proposed by the father. Rather, he made orders which provide for supervision provided by a professional agency, paid for by the father.
Appellate principles
This was an appeal against a discretionary judgment. The circumstances in which the Full Court should interfere with a discretionary judgment are well known. In Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Grounds of appeal
The mother’s Notice of Appeal contained ten grounds. However before us as we have already noted, her counsel, as did counsel for the independent children’s lawyer (who was appointed after the making of orders the subject of the appeal) argued the appeal under the three broad topics we identified above. It is convenient that we address the major challenges to his Honour’s orders by addressing those broad topics.
Discussion
Failure to grant the adjournment sought by the mother (Ground 8)
On the first return date of the father’s application, 16 January 2007, the Federal Magistrate was informed by the mother’s solicitor that, as a result of the mother’s contact with DoCS, the child had been interviewed by officers of the South West Sydney JIRT, that the mother had been advised Constable S proposed to interview the father, and that the mother should make an urgent application to the Court. The solicitor advised the Federal Magistrate he had been away on holidays, and by the time he had prepared an application for the mother, the father had already filed his application. The mother’s solicitor sought a short adjournment to put on material, and to issue a subpoena to JIRT.
The importance of the material from JIRT was clearly recognised by his Honour who said:
FEDERAL MAGISTRATE: I for one want to see the record of interview. Now, is it possible to contact Constable [S] or somebody at the JIRT team and ask them:
What is it going to take to get that document here now?
Now I don’t mind having – getting on the telephone and making any order that is needed in order to facilitate that; if it is an order that can be reasonably complied with by the police and provided neither of you have any really serious concerns about proceedings [sic] in this particular fashion. Any concerns, [to the solicitor for the mother] on your part?
[SOLICITOR FOR THE MOTHER]: No, your Honour, I mean I think from our point of view the whole case would really come down to what’s in the record of interview.
FEDERAL MAGISTRATE: Either way.
[SOLICITOR FOR THE MOTHER]: Agreed.
FEDERAL MAGISTRATE: Yes. (transcript, 16 January 2007, p 5).
Later that day, the Federal Magistrate granted leave to issue a subpoena to the New South Wales Police for the JIRT records. By 19 January 2007, that is some three days later, the material had not been produced in response to the subpoena.
At the commencement of the hearing on 19 January 2007 counsel for the mother conceded the mother had not filed a response to the father’s application for recovery orders and interim parenting orders although she had by that date filed affidavit material. The mother’s counsel in response to a request by the Federal Magistrate indicated the mother’s position as follows:
[COUNSEL FOR THE MOTHER]: Until the investigation by JIRT is concluded we would ask that this matter be adjourned and that all orders that provide for the father to have contact to the child be suspended pending that adjourned date.
...
[COUNSEL FOR THE MOTHER]: As I said, your Honour, unless there is supervision pending, we are really only talking about a short timeframe, depending on what JIRT says, as to when this investigation will be complete, and it is only pending that time and as I said, pending the father having his interview with the JIRT officers. Once that has happened then supervised contact, but the mother’s position would be such contact be supervised by a contact centre and not by a family member.
FEDERAL MAGISTRATE: But that is after the investigation is concluded?
[COUNSEL FOR THE MOTHER]: Yes, your Honour.
FEDERAL MAGISTRATE: Yes, yes.
[COUNSEL FOR THE MOTHER]: That is after the father is at least - - -
FEDERAL MAGISTRATE: Yes, after the interview?
[COUNSEL FOR THE MOTHER]: Yes, yes. (transcript, 19 January 2007, pp 12-13).
The relevance of the investigations which had been carried out by JIRT, particularly the record of interview with the child, were clearly recognised by his Honour, when after hearing submissions from the parties he said:
I can’t help but feel that that this is a classic example of it. I mean, I think that JIRT and the police should have been here today so we can get to the bottom of what is happening in [V]’s life and act on the basis of proper information. And, you know, somebody says, well it is section 130, public interest.
…
Well I have got to tell you, I am not impressed, and one of the things I am certainly going to do is pursue the issue of that subpoena and see if we can get some better quality information on which to make a decision about [V].
Now I must say, I think, [to counsel for the mother], you are absolutely right. I think that, you know, before I can really make an informed decision in [V]’s best interests, I need to know what she said to the police and I appreciate that they are going to have concerns about producing that information, and we will cross that bridge when we come to it. (transcript, 19 January 2007, p 36).
In paragraph 5 of his reasons for judgment the Federal Magistrate referred to the mother’s position that the child’s living arrangements with the father should be suspended “at the very earliest” until the JIRT investigation had been completed including an interview with the father. His Honour did not thereafter specifically address the mother’s application for an adjournment.
It was clearly recognised by the Federal Magistrate that the record of interview with the child was likely to be of significance to any determination about her best interests. In this case, the JIRT investigation had commenced promptly after notification to DoCS by the mother. There was nothing to suggest the investigation was not being pursued appropriately. The time frame for service and compliance with the subpoena was short. The transcript of 16 January 2007 does not disclose any contact with the New South Wales Police to enquire whether or not they were able to comply with a subpoena by 19 January 2007.
This was a case where the department with authority to conduct investigations into allegations of alleged sexual abuse were acting in accordance with their statutory mandate. We recognise, as did the Federal Magistrate, the importance of the investigation being conducted, and the benefit information from JIRT was likely to play in determining orders in the child’s best interests. A further short adjournment as sought by the mother’s counsel would not have impeached the integrity of those investigations, and would have enabled compliance with the subpoena.
This challenge to his Honour’s orders, as was the second issue agitated, is essentially a challenge to the adequacy of his Honour’s reasons. The necessity for the giving of adequate reasons is subject of well know authority (see Bennett v Bennett (1991) FLC 92-191 and Sun Alliance Insurance Ltd v Massoud (1989) VR 8).
Nowhere in his reasons, does his Honour discuss and weigh up the benefits of allowing the JIRT investigations to proceed, or balance any prejudice in granting the adjournment with the orders sought by the father. We were satisfied that the challenge raised in this ground was established.
It appears to us that by failing to grant the adjournment his Honour deprived himself of the opportunity to have the best available evidence to determine this young child’s best interests. We note a short adjournment would have also permitted an independent children’s lawyer to be appointed, whose enquiries and submissions would no doubt have been very relevant to the orders to be made. Nothing turns on the success of this first challenge, given that the case is now in the Family Court of Australia’s Magellan program.
Asserted error by the Federal Magistrate in finding the child was exposed to an unacceptable risk of psychological abuse in the care of the mother
We think it is appropriate before we commence our discussion of the remaining issues raised by the appeal, that we note his Honour did not identify the governing law. His Honour made no reference to the decision of the Full Court in Goode and Goode (2006) FLC 93-286 and in particular paragraph 82 of that judgment.
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).
At paragraph 5 of her written submissions counsel for the independent children’s lawyer, having earlier referred to the test set out in M and M (supra) namely, “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”, submitted:
When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent. In order to weigh the competing risks, the court should analyse what the risk is. To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk. (paragraph 5)
We accept this submission cogently encapsulates the task his Honour faced in this matter.
We think it useful to repeat the Federal Magistrate’s findings about the child being exposed to an unacceptable risk of psychological abuse in the care of the mother before discussing the challenge to those findings:
34. I think that there is a risk to the child in the theoretical sense in both households, but the risk is different in terms of magnitude. I do not regard the risk of exposing the child to sexual abuse in the father’s household to be an unacceptable one. However, I have so many concerns about the mother’s evidence that even on an interim basis I have grave reservations about the allegations that have been made. The magnitude of the risk to the child in the father’s household is not significant. Nonetheless, I believe that I can further reduce the risk by imposing certain restrictions on the father’s activities involving the child that might otherwise give rise to the possibility of abuse.
35. Conversely, I am concerned about the magnitude of risk in the mother’s household. The risk of psychological abuse to this child is unacceptable. I have concerns that the manner in which these allegations have been raised exposes the child to harm. I am concerned about what the mother says to the child when she is with her. For the time being I am confident that the child can be protected in the father’s household. I do not have the same confidence in the mother’s household. My task and responsibility is to protect the child and I am satisfied in this case that this is the best way to achieve this.
We are unable to discern from his Honour’s reasons the basis of his finding of unacceptable risk of psychological abuse in the mother’s household. As counsel for the independent children’s lawyer records in her submission this finding may be based on:
·the mother raising with V whether or not the father was still taking her pants off at night, and questioning her about the father’s actions;
·the mother’s actions in tape recording the child’s conversation;
·questioning V about her statement the father touches her “duppe” (the child’s word for her vagina) or her asserted statement that the father said “lets [sic] now was [sic] wash my royal penis”; and/or
·whether the questioning by the mother is “coaching” V.
Whilst we accept reasons given in an interim matter may be brief, in this case some limited analysis linking findings to the conclusion of unacceptable risk was required.
We further accept as cogent the submissions of counsel for the independent children’s lawyer of the need for the Federal Magistrate to have conducted an analysis of the risk of abuse in order to determine the safeguards which could be put in place, and if those safeguards on an interim basis were adequate. We accept his Honour conducted this exercise in respect of the alleged unacceptable risk in the father’s household, and found no exposure to such a risk. However, he failed in his reasons to both analyse the risk in the mother’s household, and consider what safeguards to overcome risk could be put in place.
Asserted failure to assess the risk to the child of separation from the mother (Ground 3)
Before us both the mother’s counsel and counsel for the independent children’s lawyer submitted that the Federal Magistrate failed to provide adequate reasons, or to deal with the impact of his orders on V’s long standing care arrangements.
As we have noted above, his Honour did not follow the suggested approach set out in Goode and Goode (supra) or consider the relevant statutory provisions (ss 60B, 60CA, 60CC or 61DA).
In her written submissions counsel for the mother highlighted matters relevant to this ground. In addition to the failure to consider the relevant provisions of the Act she submitted the following were matters requiring consideration:
·the necessity to assess the impact on the child of the abrupt cessation of her living arrangements with the mother; and
·the very limited time the child would spend with the mother.
In her written and oral submissions counsel for the independent children’s lawyer drew attention to the principles to be applied in interim proceedings which we have referred to above. We think it is of benefit to refer to the summary of those principles set out in paragraph 82 of Goode and Goode (supra):
82.In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
It appears to us that his Honour may not have fallen into error if he had followed the steps recommended in Goode and Goode (supra) by adopting the structure and approach in paragraph 82 (which would have required him to consider relevant matters in s 60CC). That exercise was one which would have also been extremely relevant to this third issue.
We accept that the Federal Magistrate did not in his reasons consider these significant matters. The failure to consider these issues constitutes appealable error.
Other grounds
Whilst both parties in their written submissions addressed all 10 grounds contained in the mother’s Notice of Appeal, the oral submissions and the manner in which the appeal was conducted focussed on the issues we have discussed above. We do not in these circumstances consider it is necessary for us to address in any detailed way each separate ground of appeal, particularly in light of the acknowledgement in the mother’s counsel’s written summary of argument of the overlapping nature of many of the grounds. For completeness, however we record that we see merit in the mother’s counsel’s submissions in respect of the inappropriate weight placed by the Federal Magistrate on the timing of reporting of the child’s disclosures to DoCS, and his failure to take into account the mother’s solicitor’s explanations on 16 January 2007 about difficulties in filing an urgent application due to his absence on leave.
Costs
At the conclusion of the appeal, we received submissions from the parties and the independent children’s lawyer in respect of costs of the appeal. As we are satisfied there was an error of law by the Federal Magistrate we considered it appropriate that both parties and the independent children’s lawyer receive costs certificates.
I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 7 June 2007
Appendix “A”
Orders of the Full Court made on 29 March 2007
“IT IS ORDERED:
That the appeal be allowed.
That Orders 1, 5, 7, 8, 9 and 10 of the Orders of Federal Magistrate Altobelli of 22 January 2007 be set aside.
IT IS NOTED in connection with this order:
i.That by the setting aside of Order 1 of the orders of Federal Magistrate Altobelli of 22 January 2007, the orders of the Honourable Justice Moore of 26 March 2004 are revived (other than those orders which are exhausted or spent), and
ii.That all orders of Federal Magistrate Altobelli of 22 January 2007 other than Orders 1, 5, 7, 8, 9 and 10 (or those orders which are exhausted or spent), but including the undertakings noted in Orders 17 and 18, continue in operation.
That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.
That the Court grants to the independent children’s lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the independent children’s lawyer in respect of the costs incurred by the independent children’s lawyer in relation to the appeal.
IT IS NOTED in connection with these orders:
That the Full Court does not regard these orders as precluding an application for further interim orders concerning the child’s living arrangements or welfare.
That the Full Court will publish reasons for these orders in due course.”
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