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W & W (Abuse allegations: unacceptable risk)

W & W (Abuse allegations: unacceptable risk)

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[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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FamCA 892
Decision Date: 21 September 2005

CaseChat Overview and Summary

This appeal concerns the findings of the trial Judge that the father posed an unacceptable risk of sexual abuse to his daughter, E, and that she should have supervised contact with him. The father appealed on the basis that the trial Judge had failed to make findings in respect of a number of matters and had made findings that were not supported by the evidence. The Full Court found that the trial Judge had carefully considered the evidence, including expert evidence, and had not made a positive finding of sexual abuse by the father. The trial Judge had made findings that on the balance of probabilities there was an unacceptable risk of sexual abuse if contact was not supervised. The Full Court found that the trial Judge had exercised her discretion properly and that the appeal must be dismissed. The father was ordered to pay the mother's costs of the appeal.

Orders