W & W (Abuse allegations: unacceptable risk) - [2005] FamCA 892

[2005] FamCA 892

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE

Appeal No. SA59 of 2004

File No. MLF5576 of 2003

IN THE MATTER OF:

Appellant/Father

- and -

Respondent/Mother

[Abuse allegations: unacceptable risk]

REASONS FOR JUDGMENT

BEFORE:Warnick, May and Boland JJ
HEARD:1 March 2005

JUDGMENT: 21 September 2005

APPEARANCES:

Mr Smith of counsel (instructed by the Appellant Father) appeared on behalf of the Appellant Father.
Mr O’Shannessy of counsel (instructed by Paul Cahill, Whyte Just & Moore, 27 Malop Street, Geelong VIC 3220) appeared on behalf of the Respondent Mother.

APPEAL SUMMARY

MATTER:W and W [Abuse allegations: unacceptable risk]
APPEAL NUMBER: SA 59 of 2004 (MLF 5576 of 2003)
CORAM:Warnick, May and Boland JJ
DATE OF HEARING: 1 March 2005

DATE OF JUDGMENT: 21 September 2005

CATCHWORDS:

APPEAL – child sexual abuse allegations – supervised contact – discretionary judgment – whether child faced an unacceptable risk of abuse by the father – meaning of unacceptable risk – standard of proof required to make a positive finding of sexual abuse – weight to be given to importance of maintaining contact – whether trial Judge inferred finding of sexual abuse – expert evidence – qualifications of experts – whether expert was aligned with the mother

M and M (1988) 166 CLR 69; (1988) FLC 91-979

Briginshaw v Briginshaw (1938) 60 CLR 336

B and B (1993) FLC 92-357

Re C and J (1996) FLC 92-697

Gronow v Gronow (1979) 144 CLR 513

House v The King (1936) 55 CLR 499

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621

CDJ v VAJ (1998) FLC 92-828

K v B (1994) FLC 92-478

Re W and W (Abuse allegations; expert evidence) (2001) FLC 93-085

Re W (Sex abuse: standard of proof) (2004) FLC 93-192

WK v SR (1997) FLC 92-787

N and S and the Separate Representative (1996) FLC 92-655

S v S [1993] NZFLR 657

B and B (1993) FLC 92-357

V and V [2004] FamCA 1081

TF and JF and Children’s Representative [2005] FamCA 394

B and B: Family Law Reform Act 1995 (1997) FLC 92-755

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Appeal dismissed.

Introduction

This is an appeal by the father against parenting orders made by Dessau J on 10 September 2004 that the parties’ daughter, E, who was not quite 5 years of age at the date of the trial, should live with the mother, and have defined supervised contact with the father until E is aged 8 years when a further report is to be prepared and the supervised contact order may be reviewed. There is no challenge to orders made by the trial Judge under s 79 of the Family Law Act (Cth) 1975 (“the Act”).
Leave was granted to the father to rely on an amended Notice of Appeal annexed to his affidavit filed 10 February 2005. In the event of the appeal being upheld, the father sought, in the re-exercise of discretion, we make orders that he have unsupervised contact with E, such contact to gradually increase from three hours on each Wednesday afternoon and Saturday morning to ultimately every second weekend from Friday to Sunday afternoon, and each alternate week from Wednesday afternoon to Friday afternoon, as well as for half school holidays and other special occasion contact.
The gravamen of the father’s appeal concerns the finding by the trial Judge that unsupervised contact between the father and E posed an unacceptable risk of sexual abuse to E. The father asserts that the trial Judge, by implication, made a finding that he had indecently dealt with E. The father denied all allegations of sexual abuse, and submitted that the evidence, including expert evidence, was not capable of supporting a finding of unacceptable risk. He submits that the trial Judge failed to assess the magnitude of risk to E having unsupervised contact with him, and whether such risk outweighed the benefit to her of such contact, although this issue is not specifically referred to in the amended Notice of Appeal.
At the commencement of the hearing before us the father sought leave to adduce further evidence. The father’s application was refused on the basis of lack of relevance.

Orders the subject of the appeal

After delivery of judgment on 10 September 2004 the trial Judge made the following orders:
“1.That all previous orders in relation to the child [E] born…January 2000 shall be and are hereby discharged.
2.That the parties shall retain joint responsibility for [E]’s long term care, welfare and development.
3.That [E] shall live with the wife who shall have the sole responsibility for her day to day care, welfare and development.
4.That the husband shall have contact with [E] as follows:
(a)   Each Saturday from 9.00 am to 12.00 noon commencing 11 September 2004;
(b)     Each alternate Wednesday from 4.30 pm until 6.30 pm commencing 15 September 2004;
(c)   On Father’s Day, [E]’s birthday, the husband’s birthday and Christmas Day from 9.00 am until 12.00 noon unless a birthday falls on a school day, when it shall be from 4.30 pm until 7.30 pm; and
(d) Otherwise as agreed between the parties.
5.That for the purposes of the husband’s contact with [E]:
(a)   All contact shall be fully supervised by [Ms MA], her nominee, or any other person agreed in writing between the parties;
(b)   The husband shall meet all the expenses associated with supervised contact;
(c)   The wife shall be responsible for all transport associated with contact; and
(d) The contact in the second half of each Christmas school holiday period shall be suspended save for the husband’s birthday contact.
6.That when [E] attains the age of 8 years, the wife shall arrange for a report to be obtained from Dr [L] or his nominee, after interviewing each of the husband, the wife and [E], as to whether there are any changed circumstances such as to warrant a review of the supervised contact, the costs of such report to be met equally by the parties and a copy of the report to be obtained by them both.”

Background

The father was aged 46 at the date of the trial and employed as an engineer. The wife was aged 39 at the date of the trial and was employed as a teacher. The parties married in July 1999 and separated in June 2003. There was an issue as to whether they cohabited from July 1998 (as claimed by the father) or August 1997 (as claimed by the mother). Nothing turns on that dispute for the purposes of this appeal.
E was born in January 2000. The mother has two daughters from a previous marriage, J and JA, aged respectively 12½ and 10 years at the date of trial.
From 1998 the parties lived in a property they purchased in the south-western area of Melbourne (“the matrimonial home”), and they remained living in that property until they finally separated in mid 1993.
After separation the mother and the three children went to live with her parents. The husband remained in the matrimonial home.

Sexual abuse allegations

On 13 June 2003, whilst using the toilet at the maternal grandmother’s home, E expressed surprise at the toilet seat being up and asked “Does grandpa use my toilet” to which the maternal grandmother replied “sometimes”. E was reported to then say “My daddy lets me touch his doodle” and “My daddy lets me touch his doodle when we have a shower”. E was aged approximately 3 ½ years at the time of this conversation.
On 17 June 2003 the mother asked E whether she touched the father’s “doodle”. E reportedly replied “I touch daddy’s doodle whenever I like”.
At some time prior to August 2003 when discussing the father’s “spikey beard” E is reported by the father to have said to him “Mummy has a prickly beard on her vv … it itches my face as well”.
After separation, and while the parties were discussing appropriate contact for E with the father, the mother raised concerns about inappropriate sexual touching of E by the father, or what she described as “concerns about appropriate boundaries”. The parties however agreed that E should spend substantial contact periods with the father including two or three overnight contact periods each week. The mother told the father she intended to seek professional assistance for J, JA and E to learn “protective behaviours”. The mother’s concern the children should learn “protective behaviours” arose because the mother had revealed to J and JA that she and her sister had been sexually abused as children by the maternal grandfather. The mother was abused by maternal grandfather a number of times between the ages of 11 and 13.
On 7 August 2003 E, during unstructured play, told a social worker, Ms M at a clinic that the father played “a yucky licking game like a doggy”. Ms M reported E also described the father as licking her back and her little finger. E described “monsters” at her father’s house, and said the father had black pyjamas. E was attending the clinic to learn “protective behaviours”. The clinic notified the Department of Human Services (“DHS”) in mid-August 2003 of the disclosures.
On the evening of 7 August 2003 the mother challenged E about her report of the father having black pyjamas. E is reported by the mother as saying she had been “tricking” Ms M about the pyjamas. The same evening the mother said E asked her to lick her finger and when she refused, the mother said she asked E did the father lick her finger. E is reported to have replied “No, he licks my face and tummy”. The mother said she asked E if the father licked her anywhere else and E is reported to have said “Yes, he licks me on the vv [her word for vagina] and the poo off my bum”. When asked by the mother when the father had licked her, E reportedly said “when he was changing my nappy when I was little”.
On 1 September 2003 Ms M observed E, whilst engaged in free play at the clinic, to play “in a very sexualised manner with toy animals, pretending they were licking one another and touching each other’s private parts”. Ms M reported E said that she “touches daddy’s doodle”. Ms M reported that when she asked E how she touched the father, E said “I do a farting noise on it” whilst demonstrating on a toy figure.
In September 2003 during another session with Ms M, E said “Daddy licks me here” and pointed to her genital area. When Ms M asked “where?” E responded, “on my vv and on my bum”. E was again observed by Ms M to play with toys in a sexualised manner. When asked if she touched the father’s private parts, E replied “yes in the shower”. When asked if she touched the mother’s, or anyone else’s private parts, E said “no”. When the mother came into the room Ms M asked E to tell the mother what they had been talking about and E said “daddy licks my vv”.
In an interview with Ms M the father reported E’s conversation of August 2003 about the mother’s “prickly beard on her vv”.
In September 2003 the father commenced proceedings seeking orders that E live with him. Interim orders were made on 24 October 2003 for contact between the father and E each Wednesday from 4.30 pm to 6.30 pm, and each Saturday from 2.00 pm to 5.00 pm, supervised by a paid supervisor, Ms MA.

Trial judgment

The trial Judge’s reasons are conveniently set out in a logical manner under specific topics dealing with factual matters, relevant legal principles, expert evidence, credit and other issues, as well as containing a detailed examination of relevant factors under s 68F(2) of the Act. By reason of the serious nature of the sexual abuse allegations, and the sequelae of the trial Judge’s finding of an unacceptable risk of abuse to E, we find it is appropriate to set out in some detail the content of her Honour’s judgment which we do below.
The trial Judge commenced her reasons by noting that the sexual abuse allegations were at the heart of issues in dispute between the parties in respect of their competing parenting applications. Her Honour summarised the parties’ background history as set out above, their competing applications, and the position of the Child Representative, who expressed a tentative view at the commencement of the hearing that E should live with the mother and have supervised contact to the father twice per week, which view was confirmed at the conclusion of the trial.
Her Honour then identified the relevant legal principles to be applied by the Court in making parenting orders, and referred to relevant sections of the Act particularly s 65E and s 68F(2). Her Honour also noted she must consider the principles set out in s 60B.
The trial Judge set out the principles to be applied in determining a case involving allegations of sexual abuse including in particular M and M (1988) 166 CLR 69; (1988) FLC 91-979. Her Honour made reference to the appropriate standard of proof (Briginshaw v Briginshaw (1938) 60 CLR 336). Her Honour also referred to discussion of M and M by the Full Court in B and B (1993) FLC 92-357 (also reported as Bieganski (1992-1993) 16 Fam LR 353).
Turning to the issues in the present case her Honour said “[t]he sexual abuse allegations are at the heart of the case, and I must deal with them first”. Her Honour noted the difficulty of the issue as the husband denied the allegations and the only evidence was the disclosures made by E when she was aged 3½ to 3¾ years, although these disclosures were supported by expert evidence. Her Honour then listed each of the factual issues involved in the allegations before addressing each issue separately.
The trial Judge particularised the sexual abuse allegations made by E as set out above. Her Honour then summarised the evidence from each expert witness. She firstly considered the evidence of Ms M who she noted to be “a social worker experienced in family therapy and sexual abuse cases” and who had 23 years experience of which 11 were at the clinic. Her Honour noted that it was Ms M who made the notification to DHS. The trial Judge noted Ms M’s opinion was that:
“[E]’s disclosures appear consistent, spontaneous and typical of a child of her age who has been groomed to experience the abuse as a game.”
The trial Judge considered the submissions of the counsel for the father challenging Ms M’s expertise as an expert witness on the basis that she was only a social worker not a psychologist or psychiatrist. Her Honour rejected that proposition referring to the evidence of Dr L (the Family Report writer) who was noted to opine that a social worker experienced in the area of child sexual abuse was capable of giving a valid professional opinion about such abuse, even though not qualified as a psychologist or psychiatrist.
The trial Judge also dealt with the submission made on behalf of the father that Ms M, or the clinic, had a predisposition to look for sexual abuse by reason of the work conducted at the clinic. Her Honour rejected the submission that Ms M was predisposed to accept E had been sexually abused because “of the work of her agency and the context in which [E] was brought there”. The trial Judge referred to the therapeutic nature of the work carried on by the clinic, and that it was not an investigative agency. Her Honour noted the clinic’s practice of referral of any allegations of sexual abuse to DHS. Her Honour compared and contrasted the work of, and attitude adopted by, the clinic staff to that of some other agencies who do not see alleged perpetrators. The trial Judge noted that the father had asked to be included in sessions, and attended the clinic on three occasions.
The trial Judge did however note, by reason of the history of treating members of the mother’s family, (who attended to deal with issues arising from maternal grandfather’s past actions) that E’s attendance at the clinic would have “created a heightened sensitivity” to the possibility of abuse.
Her Honour recorded advice given by the maternal grandmother’s therapist at the clinic, Dr D. Her Honour noted “Dr [D]’s advice was that [E], as well as [J] and [JA], should participate in protective behaviour counselling, just to ensure their safety”, and that advice resulted in E having sessions with Ms M. Her Honour found it was not Ms M’s task or intention to question E. She found E started making disclosures in the course of free play. Her Honour found Ms M to be an impressive witness.
The trial Judge recorded that Ms M was tested as to her observations of, and conclusions about E’s play and sexualised behaviour, and noted Ms M’s rejection that E could, as suggested by the then counsel for the father, be referring to being licked by her pet dog. The trial Judge noted this aspect of Ms M’s evidence and her conclusions were supported by Dr H, an experienced psychiatrist.
The trial Judge then analysed the evidence of Dr D, who she noted to be “a social worker with 15 years’ experience, working with families with issues of sexual abuse and re-unification. She has a PhD in that area”. Her Honour recorded that Dr D, who was more involved with other members of the family, did not offer an opinion as to whether the abuse had occurred, but having worked with the maternal grandfather for over a year, believed it was unlikely that he had abused E. The trial Judge recorded, it appears in error, that Dr D reported the mother and maternal grandmother were “watching him [the maternal grandfather] like a hawk”, this in fact being a comment made by the maternal grandmother to Dr D.
Her Honour then turned to the evidence of the Family Report writer, Dr L, an experienced psychologist. She noted Dr L had deliberately not questioned E in relation to the abuse allegations. The trial Judge recorded her summary of Dr L’s evidence as follows:
“He said it was extremely unlikely that the allegations were concocted or inadvertently led by the mother, as that would be wholly inconsistent with her behaviour and attitude towards contact, and the father’s role in [E]’s life”.
Her Honour further recorded:
“Dr [L] also thought it extremely unlikely that the disclosures referred to an unknown perpetrator (someone other than [the father]) in the face of a lack of opportunity, and the fact that [E] specifically named her father, without evidence of any intimidation to do so.
…As to the possibility that the allegations reflected the marital conflict, and the child’s experience of triangulation, exacerbated by a dynamic of sexual issues pervading the marriage, Dr [L] said it was “not impossible”. But it would rely upon the child being informed about sexual matters from an unknown source, willing to name her father as a perpetrator despite her close relationship with him, and being led to conclusions by a series of improperly conducted interrogations. In his opinion that did not appear likely in this case.”
The trial Judge recorded her findings about Dr L’s demeanour and his expertise finding him “measured and intelligent”. Her Honour noted:
“I was impressed with his experience and felt particularly confident about his observations, as he emphasised the limitations upon him in expressing any final opinion on the sexual abuse issue.”
Her Honour then examined the evidence from a child psychiatrist, Dr H, who provided an investigative report for the Child Representative. The trial Judge set out Dr H’s experience and expertise as a child psychiatrist, and noted the interviews conducted by him and the extensive material which was read by him.
At paragraph 47 of her reasons, the trial Judge summarised Dr H’s evidence noting he opined that E’s disclosures “indicated ‘a high probability’ that there was inappropriate oral sexual activity between E and her father”. The trial Judge said:
“Although dependent to an extent on Ms [M]’s interpretation of [E]’s play, Dr [H] had the opportunity to consider her work against his interviews with and observations of [E] and her parents, and in the light of his own experience in the interpretation of child’s play therapy.”
Her Honour agreed with Dr H in rejecting as unlikely “the suggestion that [E] was referring to a pet dog when she described ‘the yucky licking game’”.

The trial Judge recorded Dr H’s opinion that “[the father] had difficulties in his own personality organisation so that overstepping normal sexual boundaries could not be discounted”. The trial Judge recorded that Dr H then considered a range of other explanations for E’s disclosures, all of which he considered unlikely. Her Honour also recorded Dr H’s examination of the possibility that “another person had put these ideas into [E]’s head”, and his concession that his elimination of the mother in such a role was dependant on accepting the mother’s evidence.
The trial Judge also recorded Dr H’s discussion of the consequences of a close interdependent relationship between a parent and child where boundaries are blurred, and his consideration of whether E’s disclosures could be a product of her fantasy.
Her Honour then recorded Dr H’s conclusions at paragraph 53 as follows “Dr [H] concluded there was a high probability that [the father] sexually abused [E], saying ‘if I had to put a figure on it I would say a 90% chance’”.
The trial Judge referred to the vigorous cross examination of Dr H by the then counsel for the father, and said that this cross examination was conducted skilfully and thoroughly over an extended period. Her Honour made a finding that she was “impressed by, and more confident in Dr [H]’s opinion, the more it was tested”. Her Honour found that Dr H’s evidence and report “stood up to the strongest scrutiny”.
Her Honour then considered the evidence of a forensic psychologist, Mr B, who was retained by the father. She noted he conducted two Minnesota Multi-Phasic Personality Inventory (MMPI-2) tests. The trial Judge recorded Mr B’s finding that, after the first test, he found “no evidence that [the father] was sexually attracted to children, a paedophile, or child molester, but he concluded that he presented as ‘an uncertain risk’ to his own or other children”. The trial Judge noted Mr B’s evidence that this could be reduced to a low risk if he completed an Empathy Program. The trial Judge noted the second test was considered by Mr B to be invalid due to the father’s high rating on the defensiveness scale.
The trial Judge commented on the limitations on the use of the type of evidence contained in Mr B’s report, and the tests he conducted, and made the following finding:
“There is a place for this sort of psychometric testing. But in this case I must weigh it in the light of its one-dimensional and necessarily limited nature, compared with the evidence of Dr [L] and Dr [H], both experienced clinicians, who have had the benefit of assessing [the father] in the fuller context of having seen all family members. Ms [M] and Dr [D] similarly were engaged with all family members, at least to some extent.”
Her Honour considered credit issues under the heading “Each Party’s Honesty”. She noted that both counsel submitted that the opposing party was untruthful, and while she found aspects of each party’s evidence “unsatisfactory”, that there were “other instances where a conflict in the evidence could be explained by different perceptions or interpretations”.
The trial Judge then examined the role pornography played in the parties’ relationship and their interest in pornography. Her Honour noted that both parties had an interest in pornographic material during their relationship, and that this issue was significant on credit issues to the content of material accessed, and whether this reflected on the likelihood the father had abused E. The trial Judge noted Dr L’s evidence that the father “behaved less than truthfully” in “trying to minimise his interest in ‘the swingers’ club’ on the Internet.”
Her Honour noted the mother’s evidence, including her assertion that she was unaware of the level of the father’s interest until she found his password and viewed a collection of pornographic material, which she alleged included a photograph of the father masturbating, the father having sex with other people, and using the contact name [X].
The trial Judge recorded the father’s assertion that it was the mother who introduced him to “swinger’s sites”, and the father’s concession that he had created the User id of [X] as an Internet password, and his denial that the images the mother found were of him.
The trial Judge made a finding that the mother was unaware of the extent of the father’s engagement on the web-site until after separation. She accepted and preferred the mother’s evidence to that of the father in respect of the father’s participation in the swinger’s club. The trial Judge set out in her judgment an email authored by the father on an “Adult Friend Finder” website on 14 September 2002. The trial Judge recorded Dr H’s opinion that the father had strong oral sex fantasies, but that “could not lead to a conclusion that sexual abuse was more likely”. Her Honour noted “[m]any adults in the community like oral sex but are not prone to child abuse”.
Her Honour concluded her discussion of the “pornography” issue by summarising the effect of Dr H’s evidence, and made a finding that she accepted his expert evidence. She said:
“It was Dr [H]’s evidence that [the father]’s interest in pornography was in itself insufficient to indicate a risk of the husband offending, although it was ‘less likely to exclude the possibility’. Dr [H] emphasised that on its own, the fact that an adult is interested in other adults outside the sexual norm, cannot lead to the conclusion that he would be interested in children. It is only if combined with something else as to how the person relates to children that they can be put together. Further, Dr [H] proceeded on the basis that both parties had an interest in pornography and it therefore made little difference as to who had initiated it.”
The trial Judge then proceeded to examine the evidence in respect of E’s relationship with the father. She recorded that there was undisputed evidence that E loved and was close to the father, and that the contact supervisor, Ms MA and other witnesses described E as “relaxed and happy” in the father’s care.
Her Honour noted that the strength of this relationship was one of the reasons why Dr H and Dr L claimed E “could not have been easily persuaded or led towards making disclosures against him [the father], or mistaking or swapping him for someone else.”
The trial Judge set out comments by Dr H and Dr L about their observations of the relationship. Dr H’s evidence was as follows:
“The only worrying material was how she reacted in the presence of her father. She was extremely regressed, flushed and passively attached to him for at least twenty minutes and not able to respond in a verbal level in any consistent way either to him or myself.
I felt this behaviour did reflect something traumatic about the situation. I didn’t think that it was to do with my presence as I had already seen her once together with her mother where she related normally and twice on her own where she also related normally. It wasn’t just the presence of her father because that sort of regression hadn’t been noted in her access visits and so I felt that the regression had something to do with her relationship with her father and my involvement in that.
Further adding to the concern was that this regression was followed by the only play she took up with the family figures. She had a male figure being aggressive with the baby by jumping on the bed with the baby in it and then trying to get into the bed with the baby.”
The trial Judge noted that Dr H was unable to draw a final conclusion, based on his observations, particularly in light of anxiety associated with the assessment process. Her Honour noted that notwithstanding these factors that Dr H observed this was not behaviour he had noted in the mother’s presence, and that he had noted related observations by Dr L.
The trial Judge also noted Dr L’s observations of E and the father. Dr L observed E “acted in a clearly affectionate and engaged way with her father”. He was noted to opine that there was nothing in the father’s behaviour with E which raised concern beyond “the forcefulness of P’s [the father’s] affection”, and that he and [E] appeared to “share secrets”. The trial Judge recorded Dr L’s opinion that “although [E] related well to her father, her base was clearly with her mother and sisters”.
Her Honour observed E’s happy behaviour on supervised contact visits with the father “tended to suggest” that the mother had neither intentionally or unintentionally, undermined her relationship with the father. However, her Honour noted that it did not necessarily follow that the father had not abused E.
The next issue dealt with by the trial Judge was the mother’s attitude to the father and contact. Her Honour described the final stages of the parties’ relationship as “very unhappy”, and that by the date of the parties’ final separation, the mother was poorly disposed to the father. The trial Judge noted the mother said the father “had treated her older daughters poorly, and [she] was frustrated by his over-indulgence of [E]”.
However, the trial Judge made a finding that “there was very little evidence to support [the father]’s case that [the mother] was keen to interfere with his relationship with E either deliberately concocting disclosures, or unwittingly leading the child in that direction”.
Her Honour noted that even after E made her first disclosure a contact regime was negotiated. She accepted the mother’s evidence that when she “received a call from DHS in mid-July, she advised that she did not believe [E] had been sexually abused”.
The trial Judge carefully recorded the chronology of events in respect of contact from August 2003 to October 2003 noting the mother’s cooperation with, and facilitation of, contact. She also recorded Dr H’s notes of the mother’s attitude at this period, and that the mother revealed to Dr H that E had retracted her disclosure saying she had been “tricking”. Her Honour also recorded the opinions expressed by Dr H and Dr L, the latter who was noted to consider it “extremely unlikely the allegations were concocted or inadvertently led by the mother”.
In commenting on the assertion made by the father’s counsel at trial that the mother had, for some time regarded the father’s conduct as “only grooming”, her Honour said:
“The fact that [the mother], as a lay person, was trying to rationalise the situation, impressed me that she genuinely did not want to believe the worst.
I note that the mother was not sure of the allegations, and far from pushing for the DHS notification, she had been against it. She stopped unsupervised contact only when DHS insisted. She has not undermined [E]’s relationship with her father, or the supervised contact, which has proceeded successfully.”
The trial Judge considered and disregarded as “too flimsy” allegations made against the mother by several friends of the father relating to her first marriage.
The next topic considered by her Honour was “[t]he mother’s own sexual abuse as a child and whether or not she is obsessed/fixated with sexual abuse”.
The trial Judge noted the father’s case was that the mother was “obsessed” or had a “fixation” about child sexual abuse by reason of her own abuse by her father between the ages of 11 and 13. Her Honour said at the commencement of the hearing, her concern was that the mother’s abuse as a child “might have made her hyper-vigilant or hyper-sensitive, open to misreading or misinterpreting innocent acts” but found the concern was “not founded on the evidence”.
Her Honour recorded that the father made no allegations about the mother’s behaviour during the marriage to suggest any fixation with abuse. The trial Judge found that the mother’s enrolment of the children in a protective behaviours course on the advice of Dr D was a reasonable one for her to have adopted. The trial Judge noted Dr D also found the mother’s conduct in this regard to be reasonable. Her Honour also recorded that Dr H described the mother as “less-vigilant” and not “hyper vigilant”.
The trial Judge then examined the issue of whether the mother asked leading questions of E. The trial Judge carefully recorded Dr H’s acknowledgement that his opinions were based on his acceptance that the mother had not engaged in systemic or leading questioning of E. The trial Judge noted Dr L also did not think, based on the mother’s attitude and behaviour, that she had engaged in such conduct. Her Honour said:
“The expert evidence was unanimous that a child of 3 ½ is suggestible, and susceptible to leading questions. But the experts did not believe [E] had been questioned inappropriately by her mother.”
The trial Judge accepted the evidence of Dr H and Dr L that the mother had not engaged in systematic or leading questioning of E.
Her Honour then considered whether the mother had been protecting the maternal grandfather, given the suggestion that he, not the father, had abused E due to his previous abuse of his daughters. The trial Judge said the evidence relating to this topic “was rigorously tested, as it should have been”.
The trial Judge discussed the discrepancy in the maternal grandmother’s evidence about E’s initial disclosure and the mother’s evidence about that disclosure. Her Honour noted that the mother said the maternal grandmother had initially told her that E had asked her grandmother if the maternal grandfather had “a doodle”. The maternal grandmother denied she had reported such a conversation to the mother. The trial Judge accepted and preferred the maternal grandmother’s evidence to that of the mother, and found the mother could have been mistaken in recalling precisely what her mother had said to her.
The trial Judge recorded the sleeping arrangements in the maternal grandparents’ home because of the grandfather’s history of sexual abuse. Her Honour discussed the expert evidence relevant to this issue, and the experts’ conclusions that the maternal grandfather as the perpetrator was unlikely, because of E’s naming of the father as the perpetrator, and her denial of involvement of other family members including the maternal grandfather.
The trial Judge accepted the expert evidence that E would have been unlikely to change the identity of the perpetrator “unless for example, intimidated to do so” finding no evidence of intimidation.
The trial Judge discussed the circumstances surrounding a change in the maternal grandfather’s accommodation, and the mother’s demeanour about that disclosure which her Honour noted was “almost furtive”. Her Honour expressed criticism that the maternal grandfather was only called to give evidence when it was obvious that there were no alternatives, but noted that she was impressed with his evidence. The trial Judge recorded the maternal grandfather’s openness about his abusive behaviour and the therapy undertaken by him long before E’s disclosures.
The trial Judge then considered whether E may have been exposed to sexualised behaviour or talk from other children in the mother’s family, who had been told of the maternal grandfather’s behaviour, and concluded there was no evidence that those children were given information which was similar to E’s disclosures.
The trial Judge turned finally to the father’s behaviour following the disclosures and the “alternate thesis” put forward by his then counsel. The trial Judge noted the father “vigorously and consistently” denied the allegations, had acted in a co-operative manner with the police, counsellors and report writers and had voluntarily undergone psychological assessment. Her Honour said the father had co-operated with supervised contact. The trial Judge rejected the alternate thesis proposed by the father’s counsel noting she had dealt with the “essential elements” of the thesis in the course of her review of the expert evidence.
At paragraphs 124-126 of her reasons the trial Judge set out her conclusions on the sexual abuse allegations as follows:
“I am conscious that [E] was only 3 ½ at the time of the disclosures. They must be viewed in that light, and in light of the suggestibility of such a young child, as well as the context of her family disharmony, and her mother’s own abuse as a child. However, I do not find that the mother has concocted the disclosures. The evidence also points against her leading [E], or protecting another perpetrator.
I accept the preponderance of expert evidence, which seems to be soundly based taking all relevant factors into account. I accept that in unstructured play, [E] displayed sexualised behaviour, and made disclosures of details that would not otherwise be within the realms of her experience or imagination. The disclosures were specifically against her father, with whom she otherwise shared a loving relationship. Her mother has not alienated her from him. The dichotomy of her disclosures, but her continuing affection for her father, does not diminish the prospect of abuse.
The evidence combined, and rigorously tested in the course of a nine-day hearing, persuades me that sadly [E] faces an unacceptable risk of abuse by her father.”
Her Honour concluded her findings by a consideration of the factors under s 68F(2) of the Act. A number of the matters considered by the trial Judge are not relevant to this appeal, as the father does not challenge the trial Judge’s finding that E should live with the mother. In considering relevant factors under s 68F(2)(d) the trial Judge noted that the Child Representative recommended supervision of contact continue until E attained the age of 8 years.
In dealing with s 68F(2)(k), the trial Judge, having made findings that unsupervised contact would expose E to an unacceptable risk, considered appropriate mechanisms for the review of her proposed supervised contact order so that it was not open ended. Adopting the principles espoused in Re C and J (1996) FLC 92-697, her Honour set out the process she intended to include in her orders for review of the supervised contact.

Grounds of appeal

The father’s Amended Notice of Appeal contains the following grounds of appeal:
“1. The Judge erred in law in concluding that the child, [E], faces an unacceptable risk of abuse by her father.
2. The report and evidence of [Mr B] was dismissed as being unhelpful to the Judge, particularly in the determination of unacceptable risk.
3. The Judge has erred in making findings from the evidence presented including, but not restricted to:
a)    that the the (sic) mother…is truthful
b)    that the maternal grandmother…is truthful
c)    that the wife and maternal grandmother were vigalent (sic) in ‘acting protectively’ of the children from their maternal grandfather
d)    that there was very little evidence to support the husband’s case that the wife was keen to interfere with his relationship with E
4.The Judge has erred in not making findings that the reports of Drs [L] and [H] were flawed with contradictions and inaccuracies and not substantiated by any records of the actual interviews.”

Relevant law – discretionary judgments

It needs to be remembered that the appeal before us is from 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 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 (sic) 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.”

See also House v The King (1936) 55 CLR 499 at 504, Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627 and Gronow.
In CDJ v VAJ (1998) FLC 92-828, Kirby J said at 85,465:

“186.A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another [Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345 cited in G v G (Minors: Custody Appeal) [1985] FLR 894 at 898, 903]. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong [House v R (1936) 55 CLR 499 at 504-505]. Obviously, what is ‘plainly wrong’ will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power [So called Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. See discussion in Re F (A Minor) (Wardship: Appeal) [1976] Fam 238 and in G v G (Minors: Custody Appeal) [1985] FLR 894 at 900]. The reference to ‘plainly wrong’ is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions [Lea and Lea (1981) FLC 91-115 at 76,877; (1981) 7 Fam LR 553 at 555-556; G v G (Minors: Custody Appeal) [1985] FLR 894 at 897-898]. This is an inescapable feature of the nature of this jurisdiction [In Re K (Infants) [1965] AC 201 at 218-219; Abdo and Abdo (1989) FLC 92-013; (1989) 12 Fam LR 861 at 870].”

Ground 1

The Judge erred in law in concluding that the child, E, faces an unacceptable risk of abuse by her father.

The father, who was unrepresented at the time of preparation of the appeal, prepared extensive written submissions. Supplementary submissions were prepared by counsel who appeared on a direct access brief for the father before us. Counsel for the father at the conclusion of his written submissions notes that “Ground 1 subsumes all other grounds”.

The father’s counsel’s submissions

We find it convenient to deal with Ground 1, and the submissions of counsel for the father, with reference where appropriate, to the submissions prepared by the father. It is clear from our reading of, and reference to counsel for the father’s written and oral submissions in respect of Ground 1, that he also addresses issues raised in grounds 2 – 4 in those submissions.
Counsel for the father submits that “[d]espite the judgment not explicitly saying so, there is an irresistible conclusion that her Honour was satisfied that the appellant had indecently dealt with his three year old daughter”. In support of this submission he relies on:
·the trial Judge’s observations contained in paragraph 76 that E’s happy appearance at supervised contact could not be relied on as proof she had not been abused;
·her Honour’s finding that the mother trying to “rationalise the situation, impressed me that she genuinely did not want to believe the worst”;
·her Honour’s acceptance of “the preponderance of expert evidence, which seems to be soundly based”; and
·that in ordering a review of supervised contact the trial Judge speculated, amongst other matters, that the father may undertake intensive therapy, contrasting this finding with her Honour’s identification of the matters in issue in the proceedings namely that “[t]he sexual abuse allegations are at the heart of the case”.
It is further submitted on the father’s behalf that the trial Judge’s reasoning “discloses errors on two fronts”. The first alleged identified error is that the evidence was not capable of supporting the trial Judge’s conclusions. The second alleged identified error is a failure by the trial Judge to embark on a “secondary task of assessing the magnitude of the risk….to determine whether the risk of harm to [E] having unsupervised contact outweighed the possible benefits to her of that contact”. It is further asserted that the trial Judge’s “omission to determine the magnitude of the risk confirms a primary conclusion about a positive finding of abuse albeit that the nature of the abuse is not clearly identified by Her (sic) Honour”.
It is further submitted there is a “blurring of the issues” by the trial Judge and “some vacillation between the proof of the primary issue and the existence of an unacceptable risk”. It is asserted that “inherent in the judgment [is] a notion that what this three year old child said must be true unless it can be proven it is not true”. Counsel for the father’s submissions refer to the dissenting judgment of Kay J in K v B (1994) FLC 92-478; (1994) 17 Fam LR 722. Counsel for the father also submits:
“…that the task confronting Her (sic) Honour and the requisite analysis of the evidence could not be made easier by avoiding a direct express finding of actual abuse by virtue of an implied finding of positive abuse … However it is inherent in Her (sic) Honour’s finding about the expert evidence that it, seems to be soundly based (AB53, para.125, L1) that the certainties of proof were not attained.”

Submissions of the mother

Counsel for the mother, in his written submissions in respect of Ground 1, succinctly argues that the trial Judge’s reasoning discloses a careful analysis of the evidence and application of the relevant law. It is submitted any error of law has not been identified or particularised. We note, however, the father’s supplementary summary of argument was prepared by counsel for the father, after the mother’s submissions had been filed. The latter were prepared in response of the submissions prepared by the father.

Submissions – Unacceptable Risk

At the commencement of our discussion, we note that the competing applications before the trial Judge were the father’s third amended application for final orders filed 15 June 2004 in which he sought orders that E reside with him, that he have responsibility for decisions in relation to her day to day care, welfare and development, and that the mother have contact for four days per fortnight as well as for six weeks per year during school holidays, and other special occasion contact. The mother relied on an Amended Response to the Second Amended Application which she filed on 4 February 2004. The mother sought orders that E reside with her and that the father have supervised contact with E. We have already noted, in the event the father’s appeal is successful, he does not challenge the order for residence made in the mother’s favour.
We discern the thrust of the first submission made by the father’s counsel is that whilst the trial Judge did not make a positive finding of sexual abuse by the father, her finding E would be exposed to an unacceptable risk of sexual abuse by the father in a shared residency arrangement was unsound by reason of lack of evidentiary support, but created an inference that he had actually abused E. The submissions particularise a number of factual matters which it is asserted the trial Judge should have focused on in her assessment of the sexual abuse allegations. We will return to these particulars in due course.
The submission made by the father’s counsel requires us to examine principles relevant to child sexual abuse cases, with particular emphasis on:
·what is meant by unacceptable risk;
·the potential cessation of a significant or meaningful parent/child relationship; and
·the appropriateness or otherwise of supervised contact, and the nature of supervised contact.
We discuss the first identified issue below, and the second and third identified issues under the heading “contact issues”.
In so doing we are cognisant that this Court has dealt with a number of parenting cases involving sexual abuse since the decision of the High Court of Australia (“the High Court”) in M and M and has clearly defined the role and responsibility of experts in such cases (see Re W and W (Abuse allegations; expert evidence) (2001) FLC 93-085). The law in the area of expert evidence is well settled. Similarly, the standard of evidence required to support a positive finding of sexual abuse is not in doubt (see M and M; Re W (Sex abuse: standard of proof) (2004) FLC 93-192).
The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged. We are satisfied on the facts in this case no criticism could be levelled at the trial Judge for not making a positive finding of sexual abuse (see also WK v SR (1997) FLC 92-787 and Re W and W (Abuse allegations; expert evidence)).

Unacceptable risk test

(a) What is meant by “unacceptable risk”?

In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
…
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M. We find it is appropriate, prior to our discussion of the father’s submissions, to reproduce the principles set out in M and M as they provide the framework to be applied in the determination of this appeal:
“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 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 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 C.L.R. 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 C.L.R. 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) V.R. 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. L.R. 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 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (Inre G. (a minor) (1987) 1 W.L.R. 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.”
An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.

In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘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.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court 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’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
…
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“…In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised…” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

(b)The contact issue

In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.

Discussion – Inferred finding of sexual abuse

The father makes a general assertion that the trial Judge has, by implication, made a finding that abuse by him of E has occurred. This assertion requires an examination of the findings of the trial Judge, subject of complaint, to establish whether those statements carry an implication of possible past abuse, or a positive implication that abuse has occurred.
The first matter relied on to support the submission of inferred sexual abuse by the father is the statement in her Honour’s judgment that “[b]ut, the fact that the child appears happy with her father cannot in itself mean that she has not been abused, that being the major dilemma of any family abuse, that it is at the hands of someone a child otherwise trusts and loves”. We think it is appropriate to examine whether the words complained of, when considered in context, are capable of carrying the inference of sexual abuse claimed by the father. It appears to us a reading of the words used in the extract in their ordinary meaning does not carry the inference asserted by the father, but is rather a generalised statement by the trial Judge about cases in which allegations of sexual abuse are raised.
The second matter relied upon as disclosing an inference of sexual abuse by the father is the trial Judge’s finding at paragraph 93 of the judgment where her Honour refers to the wife “trying to rationalise the situation, impressed me that she genuinely did not want to believe the worst”. This passage occurs in the trial Judge’s judgment after her Honour’s examination of the experts’ opinions of the mother’s actions and reactions following E’s disclosure, and the professional reaction to the disclosures. The trial Judge noted at paragraph 91 that the professional advice received by the mother was that what had occurred to E was sexual abuse. We are satisfied that her Honour’s finding, read in context, cannot be construed as the trial Judge implicitly finding the father had committed sexual abuse. Rather, in examining the mother’s conduct the trial Judge found her actions displayed a person trying to examine rationally E’s and Ms M’s reports to her against a background where experienced professionals were telling her the disclosures constituted sexual abuse.
The final matter relied on by the father in his first submission is that the trial Judge accepted the “preponderance of expert evidence, which seems to be soundly based taking all relevant factors into account”. Her Honour’s finding that she accepted the expert evidence appears in the section of the judgment under “Conclusions re Sexual Abuse”. Prior to summarising her conclusions, the trial Judge carefully examined the evidence of each of the expert witnesses, including Mr B, whose evidence she largely discounted earlier in her judgment.
The father in his submissions puts in issue Dr H’s experience in earlier sexual abuse cases and the fact he interviewed E in the mother’s presence.
Dr H was cross examined by counsel for the Child Representative about his experience and expertise. Dr H’s qualifications do not form part of the exhibits in the Appeal Books before us. However the transcript reveals that Dr H is a certified child psychiatrist and that during his training at the Children’s Hospital he had “the full responsibility for assessing all children that were – serious abuse, physical and sexual”. During that period Dr H dealt with two to three new referrals each week over a period of a couple of years. His evidence was that during his period in private practice, extending between 10 and 15 years, he was involved with the Child Psychiatry Training Program so that he either supervised or assessed two or three cases per year. He also said he had given evidence in this Court in sexual abuse cases. He had been involved in family court proceedings during the last three years in three or four cases.
Dr L and Dr H had appropriate qualifications to give expert evidence. Neither expert was purporting to or did give evidence outside of his specialised area of skill and knowledge (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705). Both Dr L and Dr H saw both parties and observed E in the presence of each of the parties. Dr H and Dr L disclosed the background factual material on which their respective opinions were based. Their evidence was not flawed by reason of a failure to see all relevant parties (compare Re W and W (Abuse allegations; expert evidence); Re W (Sex abuse: standard of proof)). Dr H, in particular, appropriately qualified his opinion on the basis that he noted his reliance, in part, on the veracity of the mother’s statements, and her level of questioning of E. He reported:
“I couldn’t be positive that she hasn’t asked [E] more questions about the allegations than she has acknowledged, but I don’t believe that there’s been systematic questioning of [E] about it.”
Dr H referred to a number of factors, which, as a result of his experience and expertise, formed the basis of his ultimate conclusions. These included his acceptance of Ms M’s observations, and a lack of alternate explanation for E’s statements. In commenting on Ms M’s records, Dr H said:
“I believe that this was a non-directed free play situation in which spontaneous disclosures were made suggesting oral-genital contact between [E] and her father which she experienced as ‘yucky’ and created anxiety ‘monsters in daddy’s house’.”
He concluded:
“[The father] has difficulties in his own personality organisation detailed above that indicate that overstepping normal sexual boundaries can’t be discounted.”
He also referred to E’s regressed appearance whilst in her father’s presence, the father’s “absolute values in the area of order and manners” and the contradiction in those values by his failure to appreciate that “wife swapping” would be seen outside the community norm, or his attitude to sexual intercourse by an adult man with a 16 year old girl fell into a similar category.
We are satisfied that the father’s criticisms of Dr H’s expertise are without foundation.

Ms M’s capacity to give expert evidence was subject of challenge by counsel for the father because she was a social worker not a psychologist or psychiatrist. The trial Judge relied on the evidence of Dr L, whose evidence was as follows:
“Could you tell us, Dr [L], please what’s the difference between a clinical psychologist and a social worker who has studied some psychology in the course of their degree?--- A psychologist has studied psychology predominantly. Look, I have to say that as someone that trained in America I’m not as familiar with Australian undergraduate training as I might be. But certainly my understanding is that someone who’s a psychologist or more particularly a clinical psychologist has significant training in the more fundamental complex aspects of human behaviour and the ability as a clinician to diagnose and treat both individual complex difficulties, and if trained in this area, to deal with family issues as well.
HER HONOUR: It depends entirely on the experience of the practitioner, doesn’t it?--- Yes, your Honour.
There are some social workers – because I gather what [the then counsel for the father] means – having been here for nine days I’ve worked it out – that he’s probably steering towards a social worker who’s engaged in some form of work in sexual abuse. There would be some social workers who are highly specialised and skilled in that area?--- Yes, that’s true.
There would be some psychologists who’d you feel quite anxious about in that area because it wasn’t their expertise. There would be some social workers whose evidence or opinion might not carry a lot of weight because they’re inexperienced in that area. Is that a fair observation?--- That’s a fair summary.”
We are satisfied that the trial Judge was correct in her acceptance of Ms M as an expert witness who had 23 years experience in family therapy and sexual abuse cases. She was a suitably qualified expert, giving evidence within a specialised area of skill and knowledge. Further, in the circumstance of this case, her pivotal evidence was that of an observer of E’s actions spontaneously carried out in her unstructured free play, and an independent witness of E’s statements.
In his oral submissions, counsel for the father submits that the exhibits, particularly Exhibit W15, disclose that Ms M was closely aligned to the mother, in touch with her solicitors, and in phone conversations and correspondence discussed issues of proof with the mother. He submits that these matters were not referred to by the trial Judge or taken into account by her. It is clear from the transcript that Ms M was extensively cross examined during her lengthy cross examination about her clinical notes, notes prepared by the mother for her solicitors, Ms M’s observations, and actions. No question was directed to her in cross examination to the effect that she was, or had aligned herself to, the mother’s case. The trial Judge at paragraph 34 of her reasons noted that the clinic had possession of the notes prepared by the solicitor. Her Honour also noted at paragraph 36, “[the then counsel for the father]’s observations about Ms [M]’s pre-disposition fails to take into account Ms [M]’s professionalism and expertise. She was an impressive witness”.
We find no merit in the submission that Ms M was aligned with the mother. The proposition was never put to Ms M. She was tested in an extensive cross-examination about her interaction with the mother and her knowledge of the father’s residence application, and the trial Judge, who had the opportunity to see and assess this witness during a lengthy cross examination, found her to be an impressive witness.
In his written submissions, counsel for the father refers to the grave consequences to the father regardless whether the trial Judge makes a finding of actual abuse, or “an implied finding of positive abuse”. He said the ambiguity:
“…lay in the nature of the statements, the fact that they were open to interpretation by the experts with a disposition towards the existence of abuse and towards the mother, the circumstances in which they were made and the spontaneous withdrawal then reinstatement (after cross-questioning by the mother) by the child where no influence was brought to bear by the father”.
In Re W (Sex abuse: standard of proof) the Full Court, having reviewed the relevant authorities, discussed the need for a rigorous examination of the evidence to establish that abuse has occurred. The Full Court (Kay, Holden, O’Ryan JJ) said:
“ … Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.”
The father asserts that the trial Judge failed to focus on a number of critical matters in determining the issue of sexual abuse to the Briginshaw standard. They are set out in the father’s submissions as follows:
·attitude of the child at the first session with Dr H and the respondent together;
·attitude of the child to the session in the absence of the respondent;
·inability of the child to volunteer or describe or refer to one incident of indecent dealing in any session despite the leading of the mother in the first session and rigorous questioning by Dr H in the second;
·the child’s statement to her mother that her mother had “tricked” her into saying something about the father, seen as a retraction;
·the fact that immediately after the retraction, the child was cross-questioned by the mother and, supposedly, then said it was true;
·the fact that no attempt was made, forensically, to obtain information from the child such as time, place;
·the gross improbability of the story of oral sex by the appellant upon the child during the changing of a dirty nappy raising issues of fantasy;
·the fantasy emerging in the child’s disclosure (at around the time of the other disclosures) to the father of her mother having a “prickly beard on her vv…it itches my face as well”;
·the general failure to conduct proper investigation techniques by qualified personnel as opposed to confirmatory techniques;
·the fact that such allegations were made against the natural father;
·the fact that the appellant and the child were not seen together by Ms M
·the fact that such allegations were made after separation;
·the fact that the appellant had been living in a house with two young step-daughters without the slightest suggestions of any improper conduct;
·the fact that the child’s demonstrations with toy lizards so small as to be capable of almost any interpretation amounted to “sexualised behavior” in Ms M’s eyes was of limited value;
·the background of sexual abuse in the mother’s family;
·the inherent unlikelihood of such events taking place given the vigilance in the mother in respect of sexual abuse.
We find it convenient to deal with a number of these evidentiary issues in groups.

Attitude of the child at the first session with Dr H and the respondent together;

Attitude of the child to the session in the absence of the respondent;

Inability of the child to volunteer or describe or refer to one incident of indecent dealing in any session despite the leading of the mother in the first session and rigorous questioning by Dr H in the second;

On the first occasion E was seen by Dr H in the mother’s presence she did not make any disclosures of abuse notwithstanding that, at Dr H’s request, the mother repeated the allegations of abuse in E’s presence. When seen alone by Dr H he noted that E engaged in unstructured play. In paragraphs 46 to 54 of the judgment the trial Judge set out her summary of Dr H’s evidence recording his critical findings and manner of giving evidence. Dr H clearly identified that there was “no apparent recognition of the issues” by E and there was “no overtly sexualised behaviour generally”. Whilst we accept the trial Judge did not specifically refer to each of the three areas identified above, we are satisfied that she afforded careful consideration to the whole of Dr H’s evidence. We also take into account that Dr H did not see E until May 2004 almost twelve months from her disclosures.

The child’s statement to her mother that her mother had “tricked” her into saying something about the father, seen as a retraction

The fact that immediately after the retraction, the child was cross-questioned by the mother and, supposedly, then said it was true

In paragraphs 89 and 90 the trial Judge noted the discussion and evaluated the mother’s evidence of E’s retraction. We find no merit in the submission that the trial Judge failed to analyse this evidence.

The fact that no attempt was made, forensically, to obtain information from the child such as time, place

The broad thrust of this submission was put to Ms M in her cross examination by the father’s counsel as follows:
“By the time you come to 7 August in the session with [the mother] and [E] why are you having non-directive play therapy?---Primarily because of the child’s age. She was not yet four. She was three and three-quarters at that time. Children of that age don’t respond to a traditional interviewing verbally-based process. They actually require a different medium.
…
[The mother] has told her Honour that she, for her part, thought the fact that [E] said that it happened when she was a baby, when she was little having her nappy changed, she thought that tended to suggest it was not quite so alarming as it might otherwise be. Did you share that view?---No, I didn’t, because my knowledge of child development suggests that children of that age have a very poor awareness of temporal issues and time and order of things is not yet developed in a child under four. So my concern was the disclosure that the child had made was specific in terms of naming body parts, pointing to her tummy ...”
We are cognisant that the hearing spanned some 9 days with many witnesses. In circumstances such as these it is impractical for a trial Judge to deal with each and every aspect of each witnesses’ evidence. We are satisfied that the trial Judge did not omit or fail to cover evidence that was relevant. Rather we accept that in her Honour’s acceptance of Ms M’s evidence she properly had regard to relevant evidence, including Ms M’s observations of E, and did not, having regard to E’s age of 3½ years and level of cognitive development at the time of the disclosures, record specifically the inappropriateness of questioning of a child of that age about time and place (see also WK v SR at paragraph 44).
We are satisfied that the assertion, set out above, was addressed by Ms M in her evidence, and effectively answered on the basis of her many years experience with young children, which experience lead her to use non-directive play therapy rather than traditional interviewing techniques. The trial Judge accepted Ms M’s evidence.

The gross improbability of the story of oral sex by the appellant upon the child during the changing of a dirty nappy raising issues of fantasy

The fantasy emerging in the child’s disclosure (at around the time of the other disclosures) to the father of her mother having a “prickly beard on her vv…it itches my face as well”

At paragraph 52 of her judgment the trial Judge discussed Dr H’s evidence as to whether E’s disclosures could be a product of her fantasy. In his report Dr H stated that he told the father:
“That I couldn’t find any evidence for any alternative explanation. I felt there was a high probability of some inappropriate behaviour between them and that while she was young and vulnerable I would agree that supervised access was necessary”.
Dr H said in his oral evidence when asked by the then counsel for the father if E could have confused something to do with her nappy changing “I think that this is where the imagination comes in and she is adding material to what she’s saying”. We are satisfied that her Honour’s acceptance of the evidence of Dr H, included her acceptance of his expert opinion about E’s statements about her actions, and her response to the mother’s questioning.
Importantly, the trial Judge accepted the following relevant evidence of Dr H:
·The high probability of inappropriate and sexual activity between E and the father;
·That the overstepping by the father of normal sexual boundaries could not be discounted; and
·The hypothesis that the “yucky licking game” involved E’s dog was unlikely in all the circumstances.

The fact that the allegations were made against the natural father

The fact that the allegations were made after separation

The fact that the appellant had been living in a house with two young step-daughters without the slightest suggestions of any improper conduct;

We discern the thrust of these submissions is that the trial Judge failed to give appropriate weight or consideration to the fact that E’s allegations arose at the time of the parties’ separation, and were specifically made against the father. No submission is made that the mother acted maliciously in respect of allegations against the father. The trial Judge noted that Dr L, whose evidence she accepted, said it was extremely unlikely the disclosures referred to an unknown perpetrator, and E specifically named the father “without evidence of any intimidation to do so”.
The trial Judge found that by separation the mother “was poorly disposed towards [the father]”, but made findings that the mother’s actions shortly after separation did not demonstrate a parent trying to stop contact. At paragraph 86 of her reasons the trial Judge noted, by reason of the notification by the father’s solicitors in August 2003 that he was applying for residence, that the mother may have been “motivated consciously or subconsciously to obtain further disclosures from E”. Her Honour then examined in some detail the evidence of Dr H and Dr L about the mother’s behaviour. The whole of the trial Judge’s treatment of the topic “The Mother’s attitude to the father and contact” is directed at whether the mother was motivated to make allegations against the father by reason of the breakdown in their relationship. We are satisfied that the trial Judge thoroughly examined the evidence relevant to this assertion and made findings, properly based on the evidence before her, that there was no proper foundation for such a finding.
We find no basis for the suggestion the trial Judge should or was required to make a finding about no improper conduct by the father viz a viz J and JA.

That the father and the child were not seen together by Ms M

The pivotal role of Ms M in these proceedings was to observe E in spontaneous free play and to record E’s disclosures and actions in her therapeutic role. There was no suggestion by the trial Judge that the father was uncooperative when the allegations against him were made known to him. To the contrary he sought to be involved in interviews including attendance at the clinic. The trial Judge did have evidence of E’s behaviour and demeanour before Dr L and Dr H. That evidence was of significance because of the observations of those experts. The fact that the father was not seen by Ms M with E was not a matter on which the trial Judge needed to make findings given the evidence which she had before her of E’s reactions in the presence of the father with Dr L and Dr H.

The fact that the child’s demonstrations with toy lizards so small as to be capable of almost any interpretation amounted to “sexualized behaviour” in Ms M’s eyes was of limited value

As with many of these submissions, it is unrealistic to deal with each allegation in isolation. It is clear that E in unstructured free play in two interviews with Ms M used different Duplo or Playmobil plastic figures. These were not the type of anatomical dolls which are used from time to time by members of joint investigation teams comprising police officers and state welfare departments investigating sexual abuse claims. An examination of the transcript reveals the trial Judge was very conscious of the size and type of toys used. Ms M was subject to rigorous cross examination about E’s actions when playing with the toys. When Ms M was recalled to complete her cross examination and challenged about her assertion that E’s play was sexual she said:
“So it’s your interpretation that it’s sexual. Isn’t that right?---The child disclosed it was sexual. Her play was not normal play. It was, in my view, sexualised play. It was quite clearly looking at the lizard’s hind legs. There was a very deliberate sequence of play where the child enacted one animal licking between the hind legs of another animal. That went on for some time and in my view was unambiguous and sexualised play.”
The trial Judge in her conclusions on the allegations accepted in unstructured play E displayed sexualised behaviour. We are satisfied that the trial Judge’s conclusions are supported by the evidence

The background of sexual abuse in the mother’s family; the inherent unlikelihood of such events taking place given the vigilance in the mother in respect of sexual abuse

The trial Judge commenced her judgment by noting the father’s denial of the allegations, and his assertion that the mother had a “fixation about sexual abuse”. The trial Judge at paragraphs 97 to 100 carefully dealt with the evidence supporting the father’s allegations, and having weighed up the evidence, found that the mother’s actions did “not indicate an over-reaction or obsession, nor did the rest of her conduct, particularly in light of her initial resistance to the idea that [the father] had abused E.” The trial Judge accepted Dr H’s evidence. His evidence was that the mother was not “hyper-vigilant”.

Discussion – Balance of Submissions

Counsel for the father in paragraph 9 of his written submissions puts in issue the trial Judge’s acceptance of the expert evidence as “strong”. He challenges the foundation of the experts’ opinions. He notes that the experts’ opinions are based on E’s disclosures firstly to the maternal grandmother, then to the mother, and finally to Ms M.
In both the father’s own submissions and those prepared by counsel for the father it is asserted that the trial Judge’s finding that the mother “could easily have been mistaken in trying to recall precisely what her mother had reported to her” was not open to her Honour. The father notes that the maternal grandfather confirmed in his cross examination that the mother had, in a conversation with him, reported E disclosing to the grandmother that the grandfather had a penis.
We are conscious that the trial Judge found aspects of both parties’ evidence unsatisfactory. However, the trial Judge who had the opportunity to see and hear the maternal grandmother in the witness box preferred her evidence to that of the mother in respect of E’s disclosures.
The trial Judge also had the opportunity of observing the mother throughout her cross examination, and the opportunity to assess, in its entirety, the mother’s evidence. We are not satisfied in these circumstances that her Honour’s finding that the mother had made a mistake was not open to her on the evidence.
In his written submissions paragraphs 15-19, counsel for the father challenges a number of aspects concerning Ms M’s expertise and her opinions. We have already discussed the role of Ms M, as an expert having regard to the principles enunciated in Makita v Sprowles. We do not find the submissions in these paragraphs require further discussion. In short, we do not accept the father’s submission that the trial Judge “accorded a weight to Ms [M]’s views and conclusions that was out of all proportion to its real probative value”.

In paragraphs 20 and 21 of his written submissions counsel for the father criticises the trial judge’s acceptance of, and failure to place qualifications on, the opinions of Dr L, particularly because he did not deal with the sexual abuse issues. It is clear from her Honour’s findings in paragraph 41 that the trial Judge relied on and found relevant Dr L’s evidence in relation to “overall family dynamics”. Further, paragraph 45 of the trial Judge’s reasons makes it clear that Dr L himself placed limitations on his opinion about the sexual abuse issue.
In paragraphs 22 to 36 of his written submission, counsel for the father sets out a number of criticisms or alleged shortcomings in Dr H’s report.
We have already canvassed issues relevant to Dr H’s evidence earlier in our reasons.
The father’s counsel asserts that the trial Judge “impliedly devalued” the psychometric testing which the father undertook with Mr B. The father’s counsel asserts “the dismissive treatment of the evidence is capable of suggesting that Her (sic) Honour considered the appellant bore some sort of evidentiary onus to disprove the allegations and that this evidence, as opposed to other expert evidence, did not get him there”.
The trial Judge carefully analysed Mr B’s evidence and extracted relevant findings from his report. We are satisfied there is no basis for the assertions made in the father’s written submissions. Mr B’s evidence of the results of testing carried out on the father only, by reason of its unilateral nature, together with Mr B’s conclusions about the invalidity of the second test, was of necessity, of very limited value to the issues to be determined by the trial Judge. We are satisfied that Mr B’s conclusions based on his testing did not give substantial support to the father’s case, but rather cast doubt on his parenting capacity.
Paragraph 42 of the father’s submissions, in effect, asserts that the trial Judge failed to give appropriate weight to the father’s relationship with E, and that the trial Judge gave disproportionate weight to factors leading to her conclusion that the father’s contact with E should be supervised.
There is no dispute in this case the trial Judge carefully recorded E’s loving relationship with the father. Her Honour ordered there was to be an ongoing regime of contact with a review mechanism. The trial Judge said “I am conscious that [E] enjoys contact with her father. I am also conscious that it must be sustainable, taking into account all the circumstances…”, and drafted orders which facilitated the maintenance of the father’s worthwhile and loving relationship with E whilst providing adequate and appropriate protection given her Honour’s finding of unacceptable risk.

Conclusion

The trial Judge did not make a finding that the evidence reached the standard required under s 140 of the Evidence Act that the father had sexually abused E. It appears to us, in accordance with the principles enunciated in M and M, it is not necessary or appropriate for such a finding to be made if the evidence does not on the balance of probabilities support such a finding. Although the trial Judge did not make a finding of sexual abuse, it was necessary, nonetheless, for appropriate consideration to be given to the evidence relevant to the question of unacceptable risk.
It is clear that the trial Judge had regard to the whole of the evidence, including the expert evidence in coming to her findings that, on the balance of probabilities, there would be an unacceptable risk of sexual abuse to E by the father if contact was not supervised. That consideration included her assessment of the mother’s evidence, E’s actions as observed by Ms M and statements to her as well as the opinions of Dr H, particularly those referred to by us at paragraph 142, and Dr L, a summary of which we have particularised above. Her Honour, appropriately given the limited nature of Mr B’s involvement, discounted his evidence. Accordingly we are satisfied the trial Judge in the exercise of her discretion carefully weighed all the expert evidence, as well as other relevant evidence in reaching her finding of unacceptable risk to the requisite standard, and that the father’s submission that the “certainties of proof were not attained” misconstrues the exercise undertaken by the trial Judge and her findings.
We are satisfied that the trial Judge accorded appropriate weight to E’s relationship with the father by not terminating contact, but rather, providing for a regime of contact for a period of three years when the appropriateness of a continuation of the orders can be reviewed.
As we highlighted earlier in our reasons, this is an appeal against a discretionary judgment. The task faced by the trial Judge in dealing with issues relating to allegations of sexual abuse involving a very young child are notoriously difficult and complex. The broad thrust of the submissions made on behalf of the father was that although her Honour did not make a positive finding of sexual abuse, she had by inference made such a finding. The trial Judge in assessing “unacceptable risk” to E, properly on the evidence before her made a number of findings which are capable of inferring possible past abuse. We are satisfied that a careful examination of each of the findings the subject of complaint does not support by inference, a positive finding of sexual abuse. In this case the evidence as a whole supported the findings of the trial Judge. In our view it was within the ambit of a reasonable exercise of discretion for the trial Judge to find on the evidence before her that E should live with the mother, that there was an unacceptable risk of sexual abuse of E by the father, and that in those circumstances contact with E by the father should be supervised. We are satisfied, notwithstanding the detailed challenges to her Honour’s findings, and the submissions that she failed to make findings in respect of a number of matters, it has not been established that the trial Judge failed to have regard to any fact or circumstance relevant to the exercise of her discretion, or that she had regard to facts or circumstances which were not relevant to the exercise of the discretion. In these circumstances the appeal must be dismissed.

Costs

At the conclusion of the hearing we sought submissions from the parties as to costs. The mother sought orders in the event that the appeal was dismissed that the father should pay her costs. Counsel for the father conceded if the appeal was dismissed the father should pay the mother’s costs, such costs to be in a specified sum rather than an “open order”. No specific sum was sought by the mother nor did counsel for the father contend for any particular sum. In these circumstances we propose to make an order that the father pay the mother’s costs of the appeal as agreed within 28 days, and failing agreement as assessed pursuant to Chapter 19 of the Family Law Rules 2004.

ORDERS

That the father’s appeal as amended by Amended Notice of Appeal dated 31 January 2005 is dismissed.
That the father pay the mother’s costs as agreed and failing agreement within 28 days as assessed pursuant to Chapter 19 of the Family Law Rules 2004.

I certify that the preceding 166 paragraphs

are a true copy of the reasons

for judgment delivered by

this Honourable Full Court.

Associate