Wang & Dennison

FAMILY COURT OF AUSTRALIA

WANG & DENNISON

[2009] FamCA 206

FAMILY LAW – CHILD ABUSE – finding of no unacceptable risk – credit findings against mother – false allegations amounting in emotional abuse of child – interim orders made for parents and children to undergo counselling with a view that children recommence spending time with father

FAMILY LAW – CHILDREN – with whom a child lives and spends time with –interim orders – where not in the child’s best interests to make final parenting orders due to lack of information regarding the child’s emotional needs – interim orders made for the two children to continue living with the mother and for the parents and children to undergo counselling with a view that children recommence spending time with the father – final parenting orders pending expert evidence regarding the emotional needs of the children

FAMILY LAW – CHILDREN – with whom a child spends time with – where child abuse allegations have been made – whether child should spend time with siblings who are related to the father or otherwise aligned with the father – finding that child should spend time with siblings

FAMILY LAW – CHILDREN – family violence – where children exposed to inappropriate degree of family violence – finding that family violence instigated by the mother

Children, Youth and Families Act 2005 (Vic)
Crimes (Family Violence) Act 1987 (Vic)
Evidence Act 1995 (Cth) s 22; Division 12A Part VII
Family Law Act 1975 (Cth) ss 4, 60B(b), 60B(1), 60B(2), 60CC, 60CC(2)(a), 60CC(3), 60CC(4), 60CC(4A), 60CD(2)(b), 62B, 65DAA(3), 65DAA(4), 66CC(2)(b), 62G(2), 65DA(2), 65L, 68LA, 68F(2) (repealed)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Rules 2004 (Cth) r 15.10(2); r 16.07(2)

H & W (1995) FLC 92-598
Hemiro & Sinla [2009] FamCA 181
R & R: Children's Wishes (2000) FLC 93-000
Wang & Dennison [2007] FamCA 234

APPLICANT:

Ms Wang

RESPONDENT:

Mr Dennison

INDEPENDENT CHILDREN’S LAWYER:

Septimus Jones & Lee

FILE NUMBER:

MLF

2835

2004

DATE DELIVERED:

20 March 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

18-22 February;
7and 18-19 March;
5-9, 12-15 and 26-30 May;

18-19 June;
21-25 and 28-31 July;
11 August 2008;

March 20 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms D Wiener

SOLICITOR FOR THE APPLICANT:

Perry Weston

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms M Glaister

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Septimus Jones & Lee

Orders

That the husband and the wife do all acts and things necessary to have the family accepted into a post orders program as recommended by the supervising family consultant with a view to the girls, the eldest daughter S born … February 1998 and the youngest daughter N born … March 2000 being reunited with their father and their siblings J, E and Ms L as soon as practicable.
That I adjourn this matter before me to 16 July 2009 at 10.00 am for further hearing.
That pursuant to section 65L of the Family Law Act 1975, the Manager of Child Dispute Services for the Family Court of Australia at Melbourne, at the request of either party to the proceeding, nominate a family consultant to supervise compliance by the parties with the parenting order made on 20 March 2009 (“the Order”) and to render to either party such assistance as is reasonably requested by him/her in relation to compliance with, and the carrying out of, the Order, such supervisory counselling to operate between now and the final hearing specified in paragraph 1 and to be reportable AND IT IS REQUESTED that as soon as possible the family consultant explain the operation of this Order to the children in terms likely to be understood by them.
That until further order the children live with the wife.
That pending the adjourned date the children spend time and communicate with the husband as directed by the counsellor at Centacare in X, or such other agency, as is recommended by the s 65L family consultant.
That the issue of specific parenting orders entitling the children to live or spend time with the husband be reserved to the adjourned date.
That by not later than 10 July 2009 the independent children’s lawyer publish to the parties and provide to my Associate and the supervising family consultant her preliminary view of what orders ought to be made on the adjourned date.
That the supervising family consultant ensure that Centacare in X, or such other agency as the family is accepted into, has a copy of my reasons for judgment.
That until further order the wife keep the husband informed of the progress of S’ enrolment at an appropriate secondary school in 2010.
That until further order the husband and wife each be entitled to attend school events to which parents are normally invited to attend, such as school concerts and sports days but neither parent shall attend upon the children during class time or school breaks unless in the event of an emergency.
That the husband and the wife be entitled to receive school newsletters, school reports and notices at their own expense, if any.
That until further order the wife keep the husband advised of the name and address of the children’s treating medical practitioner and any change thereto and she advise the husband in writing of any hospital admission in relation to the children.
That until further order the wife keep the husband advised of any illness of the children, or either of them, requiring ongoing medical treatment.
The until further order the husband keep the wife advised of any medical treatment given to the children during periods of time the children are in his care.
That until further order the husband and the wife by themselves, their servants and agents each be and are hereby restrained from showing the children any documents relied upon in these proceedings or from talking to the children about the contents of documents in these proceedings or in the criminal proceedings concluded in the County Court in 2007, or allowing anyone else to do so save for in the course of treatment of the children and then only at the direction, or under the supervision, of a counsellor or therapist or treating professional.
That the husband and the wife by themselves, their servants and agents each be and are hereby restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of the children, or either of them, and from permitting any other person to do so in the presence or hearing of the said children, or either of them.
That the parents do all acts and things necessary to ensure that Centacare, or other, counselling includes the children’s siblings J, E and Ms L, the extent of such involvement to be at the discretion of the counsellor appointed to conduct the counselling or therapy.
That the s 65L family consultant be at liberty to consult with the counsellor appointed to the family at Centacare to advise the Court as to the progress of and compliance with the counselling provided by Centacare.
That the independent children’s lawyer provide a copy of this Order and my reasons to:-
a)     The proper officer of the Department of Human Services;
b)     The Principal of H School, in C;
c)     Senior Constable T of Victoria Police;
d)     Ms L, J and E; and
e)The Principal of P School, and Ms R, teacher.
That, for the avoidance of doubt, IT IS REQUESTED that the order appointing the Independent Children’s Lawyer continue in full force and effect.
That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel.
That until further order all exhibits tendered in these proceedings remain with the Court file.
That the Subpoenaed Documents Clerk of this Registry retain any documents produced on subpoenae.
That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Wang & Dennison is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2835 of 2004

MS WANG

Applicant

And

MR DENNISON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

These proceedings concern the children S born in February 1998 and N born in March 2000. The matter was heard by me over 26 days from 22 February 2008 to 11 August 2008.
The competing applications relate to who the daughters are to live with and what time and under what circumstances the girls should see the parent with whom they do not primarily reside. At this point in time, the girls are completely estranged from the father. They have not spent time with him since July and August 2005, when S was 7 years old and N was 5 years old.
The relationship between the parents has been defined by conflict and mutual allegations of domestic violence and the mother’s allegations that the father has sexually abused S. I will make findings in relation to the mother’s allegations. However, my conclusion as to the balance of the case is that the family dynamics are too complex for me to make anything other than interim orders at this stage.
In very short compass, there were a number of separations and reconciliations between the mother and the father with the final separation occurring on 8 November 2004. Shortly prior to separation, orders[1] were made by consent that the children would spend time with the father each Wednesday from 5.00pm to 6.00pm and on alternate weekends from 5.00pm Friday to 2.00pm Sunday and from 10.30am to 12.30pm on Sunday in the other week. There was provision for the children to spend half the school holidays with the father and for the father to attend the children’s school. Post separation, the children spent time with the father in accordance with the orders of October 2004.
[1] Order of 7 October 2004 which was in the terms of minutes signed by the parties and dated 13 September 2004 being parenting orders and orders for a final alteration of property interests.
Difficulties arose with implementation of the orders in early 2005 and the father brought contravention proceedings against the mother. On 28 October 2005, the mother filed an application to suspend the father’s time and communication with the girls and also filed a Notice of Risk of Child Abuse in which the she alleged the following:
1.The children have complained of being repeatedly hit by the father during contact visits and have been returned from contact badly bruised.
2.The child [S] has complained of the father pinching her, pulling her hair, strangling her and refusing to leave her alone during contact periods.
3.The child [S] has complained of the father touching her all over and touching her private parts in the bath during contact periods.
The father’s entitlement to spend time with the children was suspended on 30 November 2005 by order of the Federal Magistrates Court and the proceedings were transferred into this Court. Subsequently, the father was charged with various criminal offences.
This matter was accepted into the Magellan list of cases on 3 February 2006. It is a judicially managed list of cases involving allegations of sexual and serious physical abuse of children.
On 28 February 2007, the father was committed for trial on numerous criminal charges including:
●one count of intentionally causing injury;
●six counts of reckless injury;
●one count of assault with a weapon;
●eight counts of unlawful assault;
●one count of incest by a parent;
●one count of indecent act on a child under 16;
●two counts of intentionally threaten serious injury;
●one count of threat to kill; and,
●one count of reckless conduct endangering a serious injury.
On 28 February 2007, the husband entered into conditions of bail which precluded him having any contact with witnesses for the prosecution, including S, N and the mother, otherwise than by order of the Family Court. On 2 March 2007, this matter came before me and the father sought orders to spend time with the children each alternate weekend to accord with his previous entitlement pursuant to the orders made on 7 October 2004. I dismissed that application and my reasons for doing so appear at Wang & Dennison [2007] FamCA 234. I ordered that the matter be re listed promptly upon conclusion of the criminal proceedings.
The father had been charged with 18 counts[2] including one of incest in relation to S. Ultimately, the father faced trial on 12 charges[3] including, in relation to S, the count of incest and a lesser charge of indecent act with a child under 16. Both offences were alleged to have occurred on 8 November 2004. The date of the alleged offences is significant because, in the current proceedings, the facts relevant to the alleged sexual abuse by the father of S are alleged by the mother to have occurred in July 2005, whereas the charges laid against the father are based on the same circumstances having occurred on 8 November 2004.
[2] Exhibit “ ICL22” is the Charge and Summons dated 1 June 2006 in which the 18 charges are detailed
[3] Exhibit “ICL20” is a Records Report by the Office of Public Prosecutions Victoria which details the 12 counts
The father’s criminal trial was conducted in the County Court at Melbourne in late 2007 and ran for some nine court days. The mother and both girls were cross examined. Early in the hearing I was informed by the independent children’s lawyer that the presiding judge was of the view that there was insufficient evidence to put to a jury in respect of some charges and directed that the jury acquit the father on those charges. Otherwise, the jury returned a not guilty verdict on the charges left to them.
Apart from a brief exposure of the girls to the father in the course of preparing a family report in November 2007, S and N have not spent time with the father or had communication from him pursuant to any parenting order since 2005. The father has had no weekend or overnight time with S or N since 10 July 2005. There were three visits which the father made to the school with the cooperation of the school principal. The first was on 5 August 2008 in the company of Ms L. There was another visit on 11 August 2005 by the father alone and the final visit was when the father was entitled to access the girls at school pursuant to paragraph 6 of the Order made on 7 October 2004 which provided that the father be permitted to visit the children at school and kindergarten at any time and talk to the teachers regarding the progress of the children. The third and final visit was estimated by the father in submission to have been on or about 23 August 2005 but certainly by end of August 2005.
Since the parties filed their applications, the Family Law Act 1975 (Cth) (“the Act”) has been significantly amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amendments”), the provisions of which came into operation on 1 July 2006. Certain procedural elements of the amending legislation, which provide for a less adversarial mode of trial, do not apply to this case as it was commenced before 1 July 2006.

The Independent Children’s Lawyer

Pursuant to an order made on 17 October 2005, Ms Nicola Watts, solicitor, was appointed as the independent children’s lawyer for S and N within the meaning of Division 10 of Part VII of the Act. As such, her role is to form an independent view, based on the available evidence, of what is in the best interests of each of the girls and then act in these proceedings in accordance with what she believes those best interests to be.[4] Ms Watts is not a legal representative retained by the girls and she is not bound by any instructions from the girls.[5] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by S and/or N are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children's lawyer is also under a specific duty to take steps to minimise for the child the trauma associated with proceedings[6] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the child to do so.[7]
[4] s 68LA(2) Family Law Act 1975 (Cth).
[5] s 68LA(4) Family Law Act 1975 (Cth).
[6] s 68LA(5)(d) Family Law Act 1975 (Cth).
[7] s 68LA(5)(e) Family Law Act 1975 (Cth).
At this trial, Ms Watts retained Ms M Glaister, of counsel, to appear on her behalf. Ms Glaister was provided with an instructor for a significant portion of the trial notwithstanding that there was no funding for same. The independent children’s lawyer has, through her counsel, done all that could be asked of her and all that an independent children’s lawyer could be expected to do both in preparation of the matter for trial and at trial. In my judgment, S and N have been well served by the independent children’s lawyer.

The mother’s proposal

On the first day of the hearing, the mother’s position was that neither of the girls ought to spend any time with or communicate with the father. In particular, the mother submitted that there was an unacceptable risk of the children being sexually abused by the father if they were to spend unsupervised time with him in the future and that it was inappropriate for supervised time to be ordered on an ongoing basis.
On the sixth day of the hearing,[8] a significant concession was made by the mother. It was that there was insufficient evidence for the court to be satisfied that there was an unacceptable risk of sexual abuse being perpetrated by the father against either or both of the girls into the future. The mother sought orders that S and N live with her and “the parties and the children attend upon such family therapy counsellor as [is] nominated by the independent children’s lawyer for the purposes of assessing whether reintroduction of the children to the [father] is possible and, if so, under what conditions and whether same is in their best interests.”[9] Otherwise, the mother sought an adjournment of the matter back into the Magellan Directions list for management.
[8] 7 March 2008
[9] See mother’s minute of proposed orders being Exhibit “M3”
At the conclusion of the trial, the applicant mother sought the following orders:-
a)That the mother have sole parental responsibility for the children;
b)That the children live with the mother;
c)That the children spend time and communicate with the father as directed by the counsellor at Centacare [in X] (or such other agency as is recommended by the s 65L counsellor) for four months from the date of judgment.
d)Thereafter, that the children spend time with the father, excluding overnight time:
i)On alternate weekends;
ii)For one half of school term holidays, being 7 consecutive days; and,
iii)For two non-consecutive weeks during the Christmas holiday period.
e)That each party take the children to their extracurricular activities, including to Chinese school on Saturday mornings;
f)That the father be restrained from washing the children or being present whilst either of the children bathe;
g)That the parties be restrained from discussing these proceedings, the prior criminal proceedings concluded in the County Court in 2007 and all associated allegations.[10]
[10] Transcript of proceedings, 11 August 2008, pg 72-80.

In the closing address, the mother’s case was that given the conflict between the parties, shared parental responsibility would not be practicable.[11] However, if the court were to find sole parental responsibility in the mother’s favour to be inappropriate, an order for shared parental responsibility should be made.[12]
[11] Transcript of proceedings, 11 August 2008, pg 72.
[12] Transcript of proceedings, 11 August 2008, pg 74.
Counsel for the mother suggested that vis-à-vis schooling, an order could be made that each of the parties liaise with the school in relation to secondary school enrolment, where a school representative acts as an intermediary between the parties.[13]
[13] Transcript of proceedings, 11 August 2008, pg 73.
On 20 March 2009 I provided the mother with an opportunity to be heard in relation to making only interim orders at this stage. Counsel for the mother indicated no opposition.

The father’s proposal

At the commencement of the case, the respondent father sought that the girls live with him and have limited time with the mother on the basis that they had been emotionally abused by the mother, required to lie and to continue to lie about him and to make false allegations of abuse against him.
At the conclusion of the trial, the respondent father sought the following orders:-
a)That the father and mother have shared parental responsibility for the children;
b)That the children reside with the father and the father have day to day care for the welfare of the children;
c)That the wife spend time with the children:
i)On alternate weekends;
ii)For one half of school holiday periods;
iii)On special occasions;
iv)By telephone for a maximum of 10 minutes each day.
d)That there is to be a preliminary period, lasting for six weeks from the date of judgment, wherein the children continue to live with the mother but spend time with the father for four hours every Sunday for two weeks; and thereafter, from Friday to Sunday for four weeks (including overnight time).
e)That the wife be psychiatrically assessed and ‘treated for depression extreme anger and other related mental problems.’[14]
f)That the father be permitted to take the children to visit family in India.
g)That if the court does not make these orders, that the consent orders of October 2004 be reinstated.
h)That if the court does not make orders for the father to spend any time with the children, that orders be made for the children to spend time with their siblings.[15]
[14] Father’s amended response, dated 22 January 2008, Part F Item 24, para 9.
[15] Father’s amended response, dated 22 January 2008, Part F Item 24.
On 20 March 2009 I provided the father with an opportunity to be heard in relation to making only interim orders at this stage. Counsel for the father indicated no opposition.
In his closing address, the father specified that he wished to be notified of any scholarship applied for by S.[16] In addition, he requested an order to allow him to travel with the children to India, and conceded that the children should equally be able to travel with the mother to China for the purpose of visiting relatives.[17]
[16] Transcript of proceedings, 11 August 2008, pg 48.
[17] Transcript of proceedings, 11 August 2008, pg 45-47.

The proposal of the independent children’s lawyer

The independent children’s lawyer made the first closing address[18] which detailed her proposed orders. She was followed by the respondent father and then the applicant mother[19] whose orders sought are outlined above as their respective proposals.
[18] r16.07(2) FLR 2004
[19] r16.07(3) FLR 2004
In her closing address, the independent children’s lawyer submitted that the children have a primary bond with the mother and as such would be ‘very distressed to be removed from [the mother’s] care at this point in time.’[20]
[20] Transcript of proceedings 11 August 2008, pg 23.
On 20 March 2009 I provided the independent children’s lawyer with an opportunity to be heard in relation to making only interim orders at this stage. Counsel for the independent children’s lawyer indicated no opposition.
The independent children’s lawyer sought orders,[21] the effect of which would be:-
[21] Exhibit ‘ICL 25’, dated 11 August 2008
a)That the mother and father have shared parental responsibility for the children;
b)That the children live with the wife;
c)That the children spend time and communicate with the father as directed by the counsellor at Centacare [in X] (or such other agency as is recommended by the s 65L counsellor) for two months from the date of judgment, and thereafter:
i)On alternate weekends;
ii)Overnight time one evening on alternate weeks;
iii)For one half of school holiday periods;
iv)On special occasions; and,
v)By telephone at all reasonable times.
d)That the order stating that the children live with the mother be conditional upon her continuing to permit the children to spend time with their father;
e)That the father and mother attend Centacare [in X] for the purpose of attending family therapy as directed by the director of that agency;
f)That the father be responsible for ensuring that the children’s siblings, [J], [E] and [Ms L], also attend counselling, at the discretion of the counsellor appointed;
g)That the wife enrol [S] in an appropriate secondary school in 2010, to be chosen from the [M School] or a secondary school which provides a scholarship for the child.
h)That the parties be restrained from discussing the allegations in the proceedings.
In her closing address, the independent children’s lawyer submitted that changeover should initially occur at the children’s school or at a public place. She also suggested an order be made for a communication book to facilitate communication between the parents regarding the children’s extracurricular activities, but warned against extracurricular activities being scheduled by the mother to interfere with the father’s time with the children.[22]
[22] Transcript of proceedings 11 August 2008, pg 24.

Evidence

The applicant wife relied upon the following affidavitory evidence:-
a)The affidavit sworn by her on 11 January 2008;
b)The affidavit of Ms H (the wife’s friend) sworn on 18 January 2008.
There was no application for the mother to adduce viva voce evidence and she did not do so. Apart from her affidavits, cross examination and some re-examination, documents significant to the mother’s evidence included the following documents which I shall describe here because I shall make reference to them a number of times in these reasons:-
a)The mother’s yellow diary.[23] The mother gave evidence that she started keeping the diary on 3 October 2004 and used it to collect evidence relevant to the father’s conduct vis a vis family law or family violence proceedings. She testified that entries were written on the date attributed to them, at the latest, within one or two days thereafter. She said that she usually wrote at night. Sometimes the entries detail her thoughts and feelings rather than record events. However, insofar as she records events, she testified that she had done so as accurately as possible. Importantly, the mother’s evidence was that where there is no entry for a day nothing significant occurred on that day. At paragraph 34 of the mother’s statement to police made on 2 September 2005, she refers to the diary as follows[24]:-
I kept a diary of everything that happened. It is handwritten by me in Chinese. My diary starts from 3 October 2004 when he started threatening me. I put in diary (sic) when he threaten me and hit kids. Yesterday is the last date in my diary, 1^st September 2005.
b)The mother’s statement to Victoria Police dated 2 September 2005.[25] It comprises 34 paragraphs and 10 pages. The mother’s statement details abuse to herself and to the children from 2001 to August 2005. It was commenced on 3 August 2005 and worked on further on 17 August 2005 and completed on 2 September 2005. The time spent each day was approximately two hours. It was prepared by Senior Constable T of the Melbourne Sexual Offences and Child Abuse Unit with the assistance of an interpreter. The same interpreter was engaged for each of the three sessions. The interpreter, Ms Q, acknowledges on page 11:
I interpreted the taking of the statement form [the mother]. When the statement was completed, I read the statement to her in Mandarin and explained the acknowledgement and jurat at the end of the statement, which details the consequences of perjury. Here she stated that it was a correct account of what occurred and understood the reason the acknowledgement and jurat is placed at the bottom of the statement.
S/C T gave evidence on 28 July 2008 and confirmed that the interpreter had performed the tasks acknowledged by her.
c)The mother’s affidavit sworn on 30 August 2005 in support of her then application to suspend the father’s time with the children.
[23] Exhibit “ICL19”
[25] Exhibit “F4”
The respondent husband relied upon the following affidavitory evidence:-
a)The affidavit by him which was filed on 9 January 2008. This was filed with an incomplete jurat clause and was sworn to by him at the commencement of the trial as being true and correct;
b)The affidavit of Mr V sworn 12 May 2005. He was not required for cross-examination;
c)The affidavit of Mr K (the husband’s friend) affirmed 9 January 2008. He was not required for cross-examination;
d)The affidavit of J sworn or affirmed 3 February 2007;
e)The affidavit of E sworn on 23 January 2007;
f)The affidavit of Mr SC affirmed 22 December 2006. He was not required for cross-examination;
g)The affidavit of Mr JR sworn on 11 February 2007. He was not required for cross-examination;
h)The affidavit of Ms L sworn on 19 December 2007. She was not required for cross-examination.
The father’s affidavit comprises 31 closely typed pages of narrative and 77 pages of unnumbered annexure. For ease of reference and after consultation with the parties, I numbered the annexure pages in red pen in the top right hand corner and each party copied those numbers. In these reasons, reference to the father’s affidavit is by those page numbers.
The independent children’s lawyer tendered the following reports:-
a)Confidential court report prepared by the Department of Human Services dated 17 March 2006;
b)Further confidential report prepared by the Department of Human Services dated 16 May 2006;
c)The affidavit of Mr RM sworn 9 August 2001, to which his report dated 23 July 2001 was annexed[26];
d)Psychological report of Ms G from A Hospital in relation to the child S dated 30 March 2001[27].
None of the authors were required for cross examination and they stood as accurate historical documents.
[26] Exhibit “ICL3”
[27] Exhibit “ICL4”
As part of the court’s preparation of this matter for trial a family report was obtained pursuant to section 62G(2) of the Act and prepared by family consultant, Ms Y. That report is dated 22 November 2007 and was received into evidence. Ms Y was cross examined extensively on 30 and 31 July 2008.
All parties relied on various exhibits which were tendered. Some exhibits were affidavits or documents from earlier proceedings.
Finally, a number of documents were tendered, by consent of all parties. The following are documents to which I will refer frequently:-
a)A book of relevant extracts from files produced by the Department of Human Services (DHS), which was tendered as Exhibit “C1”. It was agreed that these documents were admissible as business records. The records were augmented during the trial by further documents[28] and information under oath in respect of which I granted leave pursuant to Parts 4.4 and 4.5 of the Children, Youth and Families Act 2005 (Vic);
b)A calendar of the years 2004 to 2006, as Exhibit “C3”. This was used to ascertain on what days of the week certain historical dates fell.
c)The transcript of the father’s criminal proceedings in the County Court, as Exhibit “ICL6”. The entire transcript was handed up but only specific pages were permitted to be tendered by reference being made to them;
d)VATE tapes of the children taken by Victoria Police on 19 September 2005[29] and transcripts thereof. The transcripts are extracted from the police brief in the criminal proceedings. Pages 156 to 188 of the brief is the transcript of S’ VATE[30] and pages 189 to 217 of the brief is the transcript of N’s VATE[31]
e)A translation of the mother’s yellow diary prepared by Victoria Police for the criminal trial[32]. This document was not tendered as an accurate translation but merely as a guide or indicator of the contents of the mother’s actual diary. On numerous occasions, the mother was queried about the accuracy of her evidence about what she had recorded in her diary. For instance, she purported to read out an entry but, it transpired on questioning, that she had omitted her reference to the father as a “stinky man”[33]. In such instances, the conflict or inaccuracy was resolved by reference to evidence of the interpreter in court.
[28] Exhibit “ICL 12” which were incorporated as pages 55A and 59 into Exhibit “C1”
[29] Exhibit “ICL14”
[30] Exhibit “M1”
[31] Exhibit “M2”
[32] Exhibit “F17”
[33] the mother under cross examination on 15 May 2008 in relation to her diary entry for 29 November 2004
Before leaving this discussion of the evidence, I should mention that all parties adopted a very common sense approach to evidence being adduced. There were no significant arguments about admissibility. Cross examination was relaxed to allow, if not encourage, complete responses. The parties are to be commended in this regard because it gave a greater flow and continuity to the evidence than would have been likely, particularly with the father representing himself and the mother frequently being non responsive. This attitude of the parties permitted the trial to proceed very fairly and as expediently as possible. There were significant documents tendered as business records and there was cooperation in relation to interposing witnesses where it was fair to do so. As already indicated, this was a matter to which the procedural aspects of Division 12A of Part VII of the Act, including the non-application of parts of the Evidence Act 1995, apply.

Findings of fact

There are a great many facts in issue in these proceedings. This is not a case concentrated on one or two instances of sexual abuse. The mother puts in issue the father’s behaviour for all of the cohabitation in Australia and alleges that not long after her arrival in Australia the father began to assault her and treat her cruelly. It is her case that this continued after separation. She alleges that the father kicked and punched and pinched both N and S from an early age and tried on occasions to strangle them. It is alleged that the bruising to S’ throat was so deep that it bled. She alleges that at some point in the 10 days preceding 10 July 2005, the father inserted two fingers into S’ vagina whilst she was bathing and otherwise scrutinised her bathing to an extent that made S feel uncomfortable. The father denies each and every allegation of the mother. The father alleges that the mother has been overbearing to the girls and will not permit the girls to have a meaningful relationship with him.
The result is that there are very many allegations of fact on which it is open to me to make findings.
As far as the father is concerned, he alleges that the mother has fabricated the allegations of violence and sexual abuse and that she will not permit the girls to have a meaningful relationship with him.
I will say more about the assessment of evidence in sexual abuse cases, such as this, later on. Where I make statements of fact, they are findings of fact.

Credit & impression of witnesses

The mother

The mother gave evidence over 20 days.[34] All of the mother’s evidence was given through a Mandarin interpreter. The court was fortunate to retain the services of two particularly skilled interpreters, Mr U and Ms HG, through whom the mother’s evidence flowed as well as possible. The interpreter retained by the court on 20 March 2008 was so inadequate that it was necessary to cut short the hearing after 25 minutes and require another interpreter to attend the next day. In all there were five interpreters.
[34] Exhibit “C6” is a record of the times during which the wife gave evidence.
To say that the mother’s evidence flowed as well as possible is not saying much. This trial demonstrates the difficulty which can arise in cases in which a party’s evidence is filtered through an interpreter. The immediacy of the question was lost as was most of the intonation in the mother’s reply. It was apparent that the mother had some understanding of the question when stated in English. It appeared that the extra time afforded the mother whilst the question was translated into Mandarin was, unfortunately, utilised by her to try to guess the direction in which the questioner was heading rather than in formulating a responsive answer. The upshot was that the mother gave unresponsive answers which prolonged her evidence enormously.
The mother was not particularly expressive in a non-verbal sense. A portion of my time was spent observing the mother in the witness box assessing her demeanour and searching for the nuances in her evidence which, in my experience, are readily accessible in evidence delivered in a language in which one is fluent, but which were lacking in the mother’s evidence. The mother was not wholly inscrutable. There were some matters which were evident from the mother’s evidence and demeanour in the witness box. In her delivery and responses under oath, I observed her to have an utter contempt for, and loathing of, the father, a complete denial of their union having been good for anything and a heartfelt conviction that the girls would not benefit, and will only be damaged by, having anything to do with the father.
It was a low point when the father cross examined the mother as English is not his first language either and he was unable to frame questions appropriately. I had no alternative but to require from him a topic and a direction and to frame the question for him. Sometimes, he was less than satisfied with my skills. Although the father could not frame questions adequately, his organisation and topics for cross examination were most impressive. He was thoroughly prepared without there being an appearance of obsessiveness.
Returning though to the mother’s presentation, I estimate that, when the mother gave evidence on a good day, the trial proceeded 3 times more slowly than it would have if the mother had given responsive answers in the first place. In general, the mother’s failure to answer questions directly, coupled with the interpretation of the questions and answers, resulted, in my estimation, in the mother’s evidence being adduced five to six times more slowly than would have been the case if she been responsive in the first place. It was a phenomenal waste of court time. However, I did not consider that it was consistent with the court’s overarching duty to the welfare of the children to simply record the mother as having answered unresponsively. More often than not, I permitted the cross examiner to press for a response. Had I done otherwise, I would be determining the matter based largely on a lack of evidence from the mother rather than a consideration of evidence she was capable of giving when pressed.
Having watched and listened to the mother give evidence and having given in her favour every allowance for the strain which she must have been under by virtue of proceedings being conducted in a language which is not her native language, I find that much of her evidence, both oral and in affidavit form, was misleading, inaccurate, exaggerated and, quite frequently, untruthful. I am unable to say whether the mother’s unsatisfactory presentation as a witness was attributable to dishonesty on her part, impaired mental or psychological functioning, or because the mother could simply not be bothered to give sensible or responsive answers lest the questioner feel encouraged to continue.

The mother was an unsatisfactory and unreliable witness on matters of truth.

Michael Weston (the mother’s solicitor)

The mother’s solicitor was called to give evidence. Prior to him doing so, the mother waived privilege in respect of the present proceedings. He was treated as a witness of the court. By consent of all parties, his evidence was interposed on 9 May 2008, when the mother’s cross examination was incomplete.
The mother’s evidence had been that S made a statement to her on 10 July 2005 indicative of S having been sexually assaulted by the father whilst in the bath at some stage over the preceding ten days of holiday time. One purpose for calling Mr Weston to give evidence was to ascertain what opportunities there had been for the mother to instruct Mr Weston about her allegations of sexual abuse against the father. On 2 August 2005 a letter was written by Mr Weston to the father[35] alleging physical assault by him on the children, but nothing of a sexual nature. The mother could not remember whether she consulted Mr Weston between 10 July 2005 and 2 August 2005 but she said, if she had, she would have told him about the statement which was indicative to her of sexual abuse having occurred.
[35] Exhibit “F24”
Mr Weston’s evidence was that he first acted for the mother in 2001 when she was in a women’s refuge and some orders were obtained. The mother consulted him again in April 2005 about child support and complaints about the father not returning the children on time or feeding them appropriately. In the meantime, the mother had obtained a further set of orders and it was in respect of those that she consulted Mr Weston. Mr Weston said that he always saw the mother with an interpreter. Early on the interpreter was one Ms VA of the Immigrant Women’s Domestic Violence Service[36] and after Ms VA ceased to be available, around February 2006, interpreters were hired through On Call Interpreters and Translators Agency. Of the mother’s need for an interpreter, Mr Weston said:-
Well, there's no communication with my client - at this stage [June 2005], ma'am, can I say I'm not speaking to my client directly at any time. I'm speaking to [Ms VA], who is the IWDVS worker. My understanding certainly of my client at that stage was that whilst she understood English reasonably well and written English reasonably well, she had a great difficulty in expressing English. Therefore all my communications with her were through [Ms VA]. When she came to see me, [Ms VA] was always with her.
What had made you think that she could read English reasonably well?
---Your Honour, that's only my recollection of the situation. Certainly I know that even now if I speak to my client she will follow - she will appear to follow. You know, she will go to answer me a lot of the time. But then often I find she has misunderstood what I've said, which is why it's absolutely essential to have an interpreter, because whereas she may think she understands what's being said to her, she doesn't.
Okay?---That has been a difficulty all the way through with her.
I include that extract because Mr Weston’s experience of the mother coincides with my own experience of the mother. In the trial, the mother appeared to me often to respond to the question which she understood had been asked in English and without her having much regard for the question as it was interpreted to her in Mandarin.
[36] In these proceedings, Ms VA was frequently referred to as “[…]”
On 7 June 2005, Ms VA wrote to Mr Weston saying that child support payments had started and that:
[t]he older one of her two daughters has nightmares frequently after contact. Our client said she has bruises on the kids after contact; believes she needs to vary her Family Court order. Do you think there's grounds to vary it?
Mr Weston said that he responded on 16 June, indicating that it would depend very much on how the bruises were caused and if the bruises were caused in the course of simple children's play, there would be insufficient grounds to vary the parenting orders.
On 22 June 2005, Ms VA emailed Mr Weston saying:
I spoke to the client last Friday. She said her ex hit the children to [cause] bruises. I talked to [S], the older kid, who said her dad hit her almost every time at contact, and hit the younger daughter but not so often. I asked the client to go and see a doctor as quickly as possible. Please let me know what to do next.
Mr Weston said that he wrote back to Ms VA on 29 June 2005, saying matters were in the mother’s hands as to what she wants to do and:
[i]f she genuinely believes the husband is assaulting the children then she should take steps to protect the children by ceasing the contact. Alternatively she could propose that contact be supervised, but then problems would arise as to who was an appropriate supervisor.
On 12 July 2005, at 6.20 p.m., Mr Weston received an email from Ms VA which read:
Thanks for the letter. I have talked to the older one of the two girls and she said she doesn't want to see her father 100 per cent for sure, but she was unsure about her younger sister's opinion on it. This older one said her father insisted bathing her bum, though she didn't like it. Based on that?? do you think our client can cease contact before supervisor is arranged?
On my calculation, 12 July 2005 was two days after the girls had returned from spending 10 days school holiday time with the father and S had asked the mother whether ‘there were parts of her body that her father should not touch.’[37]
[37] Mother’s affidavit sworn 18 January 2008, paragraph 24.
On 25 July 2005, Ms VA informed Mr Weston that the police were investigating the father, that the mother had denied the father any time with the girls on the weekend of 22 July 2005 but that she was concerned about what she should do in relation to the father’s entitlement to time after school on Wednesday and the police had interviewed the children at school but had not yet spoken to any teachers.
Mr Weston saw the mother and Ms VA in conference, for 1 hour, on 29 July 2005. This was 19 days after the children had returned home from spending 10 days with the father. He gave evidence about the matters discussed (and not discussed) in the following terms:-
MR WESTON: [..] In essence she says she wants to stop contact, children don't want to go. "Kids don't want to go because they are scared of him. They say he hits them a lot. He won't go away."
HER HONOUR: How fulsome are your notes in relation to, "He won't go away"?---Yes, well, your Honour, specifically it says, "He hits the kids' heads, arm and legs. He pinches the kids. Kids are scared of him. He shouts at them. He pulls their hair. He accuses the kids of being evil and the devil. They don't want to go, and he leaves bruises where he pinches them. She has taken some photos on 10 July. No contact last weekend, 22-23 July."
What mention of sexual abuse if any is there in ‑ ‑ ‑?---None. Absolutely none in that meeting, your Honour.
[…]
HER HONOUR: Is there anything which indicates to you that you had reference during that conference to the email of 6.20 pm on 12 July?---No, your Honour. I suspect I probably - that email talks about "washing her bum". There's no indication that I asked specifically about that. Everything in here speaks more of physical abuse of the children - hitting, punching, pinching.
Now, you say that you have had at that stage some experience with [Ms VA]?---Yes, your Honour. I'd worked with her for a number of years, yes.
HER HONOUR: Yes. Using your professional judgment of her, can you say how likely it is that she would have participated in the conference without raising allegations of sexual abuse if the allegations were then to her mind still current? Do you know what I'm getting at?---Yes, your Honour. I have no doubt that if she had thought that at that time sexual abuse had been occurring, there's no doubt she would have raised it.
What do you base that on?---Well, the IWDVS are specifically involved with women who are victims of violence, and sexual abuse often goes hand in hand with it. Certainly from experience previously, they're more likely to mention something than not, if I might say, your Honour. Sometimes I've found with some of these domestic violence services they in fact tend to overblow things rather than understate them. Therefore I would have thought that if there was anything that they felt was important or serious, they would have certainly raised it.
So was that your experience also of [Ms VA], rather than just domestic - because she was the ‑ ‑ ‑?---Not specifically, your Honour. I think just simply in terms of those sort of services, they do tend to - I find myself more often saying, "Look, that's really not relevant," rather than saying, "Well, why didn't you mention that?"
Okay?---It may have been remiss of me, I can't say I specifically mentioned that thing. It would seem to me the allegation there or the allegation in the statement is that "he washes her bum". I'd have to say if that was put to me I would probably say, "Well, so what? If he's bathing his child, there's probably nothing in that." It may well be [Ms VA] said, "Fine," but I can't say that. I don't specifically remember, it's too long ago. But of itself it certainly doesn't seem to me even now as being an allegation of sexual abuse.
HER HONOUR: Right. How likely do you think it is, or can you say at all, whether [Ms VA] may have raised the "bathing her bum and she did not like it" at the conference on 29 July and you disregarded it or - without making a note of it?---I haven't made a note of it at all, so I suspect it's more likely it wasn't raised.
Mr Weston then wrote the letter dated 2 August 2005[38] to the father, complaining of various matters but not mentioning any sexual impropriety on the part of the father.
[38] Exhibit “F24”
On 8 August 2005, Mr Weston received an email from Ms VA spelling out the involvement of, and multiple attendances on the mother by, the Sexual Offences Child and Adolescent Unit of Victoria Police (SOCAU). His evidence was that, at that point, he realised the matter had developed past his initial instructions but he took no action pending receipt of a grant of assistance from Victoria Legal Aid.
Mr Weston was contacted by the mother’s friend, Ms H, on 23 August 2005 and by Ms VA on 25 August 2005 with complaints that the principal of H School had permitted the father to see the girls at school. Apropos of varying an order that specified that the father was entitled to see the girls at school, Mr Weston saw the mother and Ms VA in conference on 30 August 2005. Mr Weston’s evidence was that:-
It was at this stage that I perhaps got more I suppose of the full story. This was the first time I think that we'd actually sat down and gone into what had happened in the interim with the police investigations. I seem to have taken down here, your Honour, not a timetable to be exact but it seems to be - obviously I was going to prepare an affidavit.
Mr Weston referred to 30 August 2005 as being ‘the first time I had any indication that there was sexual abuse involved.’ I accept that evidence as to Mr Weston’s state of mind. However, there is sufficient mention in his file to corroborate that, as at 12 July 2005, the mother had told Ms VA that S had told the mother that she was not comfortable with how the father was bathing her, that is, ‘washing her bum.’ There was no cross examination of Mr Weston directed to explaining why the mother neglected to mention the sexual abuse allegation to Mr Weston on 29 July 2005.
Mr Weston gave some evidence about the mother having a propensity to become confused. For instance, on 17 February 2006, the mother spoke to Mr Weston, without an interpreter, and ‘said that she had a lot of questions to ask … and didn’t understand what was happening.’ He saw the mother in conference with an interpreter on 22 February 2006 and ‘explained where the matter was at.’ Mr Weston gave evidence that:-
[on] 15 March [2006] [Ms H] rings me on behalf of [the mother], saying [the mother] was confused as to when her case was listed again. Your Honour, can I say this is a constant theme. My client gets very confused - very, very confused. I'm probably telling your Honour nothing - but gets very, very confused about what's going on, dates, times. Even up to this point, your Honour, it's a theme that runs all the time - …”
Mr Weston also gave evidence about his use of interpreters and the difficulty he had in getting instructions from the mother at times. He said:-
HER HONOUR: Now can I just ask you something about your impression of your client. Did … you [have] concerns about her ability to understand advice or give instructions?---
MR WESTON: No, not to give instructions, your Honour. What we have had throughout this matter is difficulties with consistency of interpretation. That has been a real problem for me. When we had [Ms VA], at least I was talking to the same person all the time about the same things. What I've struck in the matter consistently is I can see my client with one interpreter and take some instructions, then see her two months later with another interpreter and it's as though the first interview didn't happen. It's something - completely different interpretations. I have spoken with some of the interpreters about it. What they have said to me is one of the problems with Mandarin Chinese is a lot of the English words just - there are no Mandarin words for them. In a lot of cases the Mandarin interpreter has to actually give their version of what's being said. I think in a lot of cases this confuses my client. I have found quite often that she will say one thing to me in one interview and the next time I'll say, "Well, you told me that last time," and she will say, "No, I didn't, I didn't say that," particularly with the trial affidavit for instance. I think I spent at least three hours with her I think on 15 January with an interpreter, going through it, and yet three days later after I'd drafted it, when she came back to sign it, it should have only taken half an hour to read through it with the interpreter and sign it, it actually took another three hours because much of it was changed. I think - I suppose my impression is I don't think my client is - and I hope you won't mind me saying this - I don't think she's terribly well educated. I think she has trouble with a lot of the concepts, and I think the interpreters often have trouble getting her to understand the concepts. That's my impression. But I've never had any doubt about her actually giving me instructions. She has always - I mean, if I didn't think she understood, I wouldn't take the instructions from her. But I've got no doubt she has understood, but I just think at times there has been a lot of confusion.
Well, if I can take you to the instance that you spoke of - you did refer to it but without reference to a date - you would see your client and she would give you instructions, then two months later you would see her with another interpreter and she would deny having given you the instructions ‑ ‑ ‑?---Well, it's not so much deny having given me. I would say something to her - and look, off the top of my head I can't think of a specific example, your Honour, but it might be a difference of interpretation of something. I would indicate that, you know, "You'd seen this particular person four times," and she would say, "Well, no, I've only seen them twice." I'd say, "But hang on, here you told me four times last time." "No, I didn't."
HER HONOUR: That's unlikely to be an interpreter's problem, isn't it?---Well, I think at the time when we've tried to nut it out, it would seem that that's how it appeared to be; that it was a problem somewhere in the translation between what I'm being told - or what I'm asking and how it's being interpreted to her and then she would come back. Again I can't give a specific instance to your Honour but I can recall during the course of the matter on a number of occasions having difficulty with having been given an instruction or something and then find later on that in fact when it's a different interpreter it's something different. It's a difference in - not a huge difference, but there are slight differences there all the way through.
I accept Mr Weston’s assessment of the mother. I regard his evidence as corroborative of the mother’s assertion that she had difficulty with some interpreters retained by Mr Weston for the purpose of conferring with her. However, I am also satisfied on the basis of Mr Weston’s evidence, that he was cognizant of the problem and likely to be more vigilant in relation to ambiguous instructions than he might otherwise have been.
A further reason that Mr Weston was required to give evidence was that, some 10 or 11 days into her evidence and cross examination, the mother testified that her affidavits sworn 30 August 2005 and 18 January 2008, which had been prepared by and witnessed in front of Mr Weston, had not been translated to her. The affidavit sworn 18 January 2008 is the principal affidavit upon which the mother relied in the present case and a document in respect of which the father had demonstrated a number of inconsistencies and inaccuracies on the mother’s part. Relevantly, the mother’s evidence was[39]:-
[39] 9 May 2008
HER HONOUR: When you went to see Mr Weston on 30 August 2005 you signed this document which is filed on 10 October 2005 as an affidavit by you. Have a look at it, please. Did you have that statement interpreted to you?
INTERPRETER: Anyway, if my solicitor ask me to sign, I sign my name. I trust my solicitor. If he ask me to sign, he must have reason for me to do so. Therefore I signed my name.
HER HONOUR: Can you say how many times you have signed something without having had it interpreted to you in Mandarin?
INTERPRETER: I remember there was only once, there was an interpreter interpreted the document to me. That was for the County Court case, my affidavit for the County Court case. I cannot remember whether it was County Court or for this court. There was only once the interpreter interpreted to me the document but halfway through, because the solicitor was in a hurry to go to the court, so I told the interpreter, "Okay, don't worry, I'll just sign it because I trust my solicitor." I thought I occupied too much of his time and he was in a hurry go to the court, and also I trusted him so I said, "Okay, I'll just sign it." I don't think that - I think I trust my solicitor because I entrusted him to do things for me. In some other occasions there might be interpreter present but it was always the case they ask me to sign my name, I just signed. I didn't really - as for any other occasions, whether there was interpreter present I cannot remember. Some interpreters are very lazy, they don't interpret things to me, and also not interpret to me correct.
HER HONOUR: On 18 January 2008 you signed this document and it has an interpreter's clause attached to it.
INTERPRETER: This is the document I was talking about. At the time the solicitor was in a hurry to get to court and the interpreter was becoming impatient because it's a thick document. So halfway through I said, "That's okay, I'll sign my name."
HER HONOUR: Do you remember the interpreter?
INTERPRETER: No.
HER HONOUR: She did not make an impression on you?
INTERPRETER: Yes, I have the impression; an old lady.
HER HONOUR: Was she an older Chinese lady or an older Australian lady?
INTERPRETER: Looks like coming from [Z], China. That's southern part of China, [Z]. I didn't talk to her too much.
HER HONOUR: But she did interpret some part of the affidavit to you.
INTERPRETER: Yes, a few pages. I occupied too much of my solicitor's time and I thought he was in a rush so I said, "Well, I'll just sign it."
HER HONOUR: When you signed documents either in August 05 or that document, apart from reading them over - forget about having them translated from Mandarin. Did anyone sit with you and read them out to you in English?
[…]
INTERPRETER:   No.
HER HONOUR:   So you really had no idea what was in the document?
INTERPRETER:   I don't know.
HER HONOUR:   So you don't know whether you had any idea what's in the documents or you didn't know what was in the documents?
INTERPRETER:   I'm not quite clear about what's written there.
HER HONOUR:   Well, how are you clear at all about what is written there?
INTERPRETER:   What do you mean, how?
HER HONOUR:   Well, you say you're not quite clear, which indicates to me that you have some idea what's there but not a complete idea. I don't know how you have any idea. So how do you have any idea?
INTERPRETER:   At the time when the interpreter was interpreting to me about that document I know a little bit, but now I can't remember.
HER HONOUR:   Well, you've said that some interpreters are lazy. Was she a lazy interpreter?
INTERPRETER:   She is not too bad but she is - she interpreted without much strength, like physical strength.
HER HONOUR:   You say some interpreters interpret for you incorrectly.
INTERPRETER:   Of course.
HER HONOUR:   Why do you say ‑ ‑ ‑
INTERPRETER:   Do you think all the interpreters interpret correctly? These are in English. I don't believe the interpreters interpreted everything to me.
[…]
HER HONOUR:   Okay. What made you believe that the interpreters were not interpreting properly?
INTERPRETER:   As for this document, as you know, it's a very thick document. Even though we didn't finish that document, but what I can say is the interpreter didn't interpret word for word; just gave me some rough idea.
HER HONOUR:   On what do you form that belief?
INTERPRETER:   She read a sentence and then said a few words to me, so that's how I know.
HER HONOUR:   Does anyone have any questions arising out of that before we interpose Mr Weston's evidence - only about how documents are sworn or what she instructed them?
MS GLAISTER:   I've just got one, your Honour.
<CROSS-EXAMINATION BY MS GLAISTER
MS GLAISTER:   Do you remember at the very beginning of this court case when you went into the witness box and your barrister was talking to the judge?
INTERPRETER:   Yes, I remember that.
MS GLAISTER:   I just have a note that she showed you an affidavit - I've got the date 18 January 08, which I presume is ‑ ‑ ‑ [the ] affidavit of 18/1/08, and she asked you if it was true and correct, and my note of your answer was that you said it was correct. My question for you is how did you know it was correct if you hadn't had it all interpreted for you before you signed it?
INTERPRETER:   At that time was I showed the affidavit?
MS GLAISTER:   Yes, you were.
INTERPRETER:   What I mean is when I answered that question my feeling is if the solicitor prepared this document for me it must be correct.

Mr Weston gave evidence about the preparation of the affidavit sworn 18 January 2008 and the interpretation of it to the mother. His account was significantly different to that of the mother, to the point of contradicting her, so I will set it out in detail:-
MR WESTON: Okay, 11 January there's a note from my secretary - this is 11 January 08, "Telephoned client and made an appointment for next Tuesday. The client asks for a female interpreter if possible. Telephoned On Call Interpreters and booked [a female], and interpreter, for our client at 2 pm for two hours. Requested a female interpreter if one is available." I've then got fairly substantial [set of notes] from 15 January - two and a half hours. Probably what I would've done, what I would normally do, your Honour, I would probably have her previous affidavit out. Would probably go through that, make any alterations or any additions, whatever was required and then take further notes as to any stuff, new stuff. Then I would have - because it was pretty substantial - would've organised for her to come back three days later after I'd actually got it typed. Normally if it's a short affidavit I'll do it on the spot to save two appointments but this one was quite substantial. At this stage I think we've already received [the husband’s] material. Yes, on 11 January I've sent the client out all of the husband's affidavits but in particular - he seems to have served two, one dated 3 January and one on 8 January so it's possible.
HER HONOUR: How would she have been able to digest those before the 15th?---I've got no idea, your Honour. I think the 11th possibly would've been our first day back at work I suspect. [The husband] probably brought them in on that day. […]
At this point, Mr Weston read out a summary the instructions he had committed to note form.
HER HONOUR: So was the interpreter there for two and a half hours?---Yes […]- just bear with me, your Honour. 15 January, your Honour, I've got the invoice from On Call Interpreters here. It says, "Booked duration 120 minutes. Actual duration, 165 minutes."
Right?---So in fact it was more than two and a half hours. Again, I think, your Honour, that's because it was a fairly slow and labourious process.
So you did the affidavit?---So I took notes. I would've also written - what I would've had as a copy of the previous affidavit which I would've made notes on and written as well but unfortunately, your Honour, I don't have it. I probably haven't kept it.
MR WESTON: ---16 January, your Honour, I ring On Call, I thought it was very important that I have the same interpreter back, who was a woman named [Ms W] who was very good. So we managed to get her back.
Do you remember what she looked like? Approximately how old?
---Your Honour, not really, your Honour. She wasn't young.
Right, and was she Chinese or European?---I'm pretty sure she was Chinese but she was very well spoken. She wasn't - she spoke perfect English.
Yes?---Some of the Chinese interpreters actually don't speak particularly good English. She spoke perfect English. I've got a note here from 18 - I've got an account there from the same interpreter from 18 January which says again, "Booked duration, 120 minutes. Actual duration, 180." So we had another three hours. I've got a couple of notes. I don't have a lot of notes with respect to the second one, probably as I say, we would have been working off the draft that I had dictated. But we've got notes about [Ms L] in China. We think we clarified the issue that this […] she was talking about in fact was someone she knew. We talked about the potential of subpoenaing [Ms C] or [Ms R] from [P School]. Whether Mr [DP] should be subpoenaed. I explained the rolling list and how all that worked. I do remember that was a very trying three hours.
HER HONOUR: Why do you?? remember it as being trying?---I think, your Honour, because we ended up changing quite a bit of stuff that I'd originally dictated. It was almost once the client actually saw it in black and white and we actually went through it fairly carefully, and they did go through it very carefully.
How much of it did they go through?---I went through it word for word, your Honour.
How do you know?---Because I was in there for most of the time they did it. Went through it word for word, line for line. That's why there was constantly changes being made. What would happen is they'd mark the changes, they'd go through four or five pages, mark the changes, I'd take them away and dictate the changes, come back and they'd have done the next five pages. I'm 99 per cent sure, your Honour, that at the end they went through it again from start to finish. I do distinctly recall I was quite impressed by that interpreter and I thought she was one of the better we've had.
[…]
HER HONOUR: Did you indicate to [the mother] or to the interpreter that it was taking too long and that too much of your time was being taken up?---I don't think so, your Honour. I don't think I'd do that.
Perhaps not expressly, but what about impliedly?---No, I don't think so, your Honour. Look, it is always difficult doing affidavits for a client with an interpreter, it's hard work, it's very hard work. I've always found it to be very hard. But I've acted for a lot of people that English is not the first language. But no, I don't think so, I mean, it was a matter that something had to be done and I was going in and out of the room. Once it was actually - we had the changes and they were going back through it, I was actually going out of the room and doing other work at times. So I wasn't sitting there for the entire three hours. I was probably there for an hour and a half of it, two hours of it perhaps. I was coming out to actually dictate any changes they wanted and going back in, leaving it with them to read further. So I was actually getting some other work done.
Do you think it would've been reasonable for her to feel rushed or - - -?---I have no doubt she probably felt under some pressure, yes.
It is under the pressure of time or under the pressure of being required to settle on the final version? As best I recollect being a solicitor there's two sorts of pressure?---Yes, I don't know that I could, your Honour. I mean, it was - we had to have it filed that day. It had to be done.
What time was this?---I think it was 9 o'clock in the morning, your Honour. The one on the 15th was in the afternoon. He we are, your Honour. It was 9.30 till 12.30.
So when do people leave from your office to file things?---It would've been in the afternoon I suspect, your Honour. I don't recall how we filed it.
It was filed on the - - -?---24th.
Do you have your 2008 diary there?---No, your Honour, I haven't.
Did you say to them that you had to go to court?---I don't recall saying that, your Honour. It would be unlikely I'd be going to court on Friday afternoon. I may have been going to lunch, that could be more likely.
No, I'd like to think that courts operate on Friday afternoons too, sometimes they don't?---Your Honour, it would be a matter though, if I was in court it would've been in the morning. Not much is listed specifically on a Friday afternoon, it would usually be only a conciliation conference perhaps. But I may have had an appointment outside the office that I had to go to. I don't specifically remember it being in a rush. I mean, three hours is a long time to be settling an affidavit.
Doing the best you can in recalling what amendments were made, did there appear to be amendments to all pages?---There were a lot, your Honour. There was a lot of additional stuff that she hadn't mentioned on the 15th. Again I recall she agreed what I'd drafted and then they'd come back with, "But there's this, this, this, as well. No, that's not quite right." That sort of thing. So there were a lot of amendments. There was a lot of additional stuff. A few things that I'd misinterpreted from what they'd said.
Was there any consciousness in you that the first seven pages were really long and laborious but gee whiz, they flicked through the last six or seven?---No, your Honour. That's certainly not my recollection of it. I've no doubt that she was - I think we were all pretty tired and flustered by the end of it. As I say, three hours is a long time to be going on something like that.
It seems to me there's two sorts of pressure though. There's pressure of having to - - -?---I hear what you say, your Honour. I just don't think - from my memory there was certainly no time constraint. I mean, it could've taken another hour. I may be wrong on that but I don't believe there was any time constraint. I know certainly when I organised the interpreter I certainly hadn't anticipated it would take three hours, because we'd only booked her for two. It may have been the interpreter had a problem, but then in the past with interpreters what they generally do is they just say, "Look, I've got to go" and that's it. That didn't happen here. The interpreter stayed to the end. But, no, I don't recall her being under any pressure. Certainly it was a difficult three hours. I would certainly concede that.
Can you comment on the accuracy of this description which was given by [the mother] this morning that only once when seeing you or swearing anything did she ever have an interpreter? In relation to the trial affidavit, the one on 18 January, she recalls the interpreter as being old, looking like she comes from the southern part of China. She said that half way through the affidavit she was told that or formed the impression that you were in a hurry and had to get to court and she said to the interpreter that she would just sign it without reading it because she trusted no?---No, that's - - -
But she in fact had no real idea what was in the document?---Your Honour, three hours with the interpreter there all the time. Went through every line, line by line, yes, many changes, certainly. Many changes, but I'm 99 per cent certain she read through the whole document again at the end. I'm almost certain that's what happened but they were reading through it constantly, that's how I do it. You basically, go through the first few pages, make the changes, give them to me, keep going with the rest but you get back the changes then read it again with the changes in it until you're perfectly happy with it.
Can you look at the affidavit of 18 January?---Yes.
Can you go the interpreter's clause?---Yes, your Honour.
Does it say that she has previously sworn that she'll interpret the document accurately?---No, your Honour.
Okay?---That's the one - the one we use is - no.
Did you take an oath from the interpreter that she would - - -?---No, your Honour, I normally don't. I normally don't do that, perhaps I should, but I normally don't.
Rule 15.10(2) of the Family Law Rules2004 (Cth) provides that, where a deponent does not have an adequate command of English, a translation of the affidavit and oath must be read or given in writing to the deponent in a language that the deponent understands and the translator must certify that the affidavit has been translated. Section 22 of the Evidence Act1995 (Cth) provides that an interpreter must take an oath or make an affirmation, to the effect that they ‘will well and truly interpret the evidence that will be given and do all other matters and things that are required of me in this case to the best of my ability,’ before acting as an interpreter in a proceeding. I am satisfied that the interpretation of the mother’s affidavit to her on 2 February 2008 was ‘in a proceeding’. I am also satisfied, on the evidence of Mr Weston, that the execution by the mother of the documents which were filed as her affidavits in these proceedings fails to comply with applicable law, in particular, the Evidence Act 1995 (Cth).
The effect is that the documents relied upon by the mother are not affidavits. They are contemporaneous notes by Mr Weston of the mother’s instructions to him, the contents of which were the subject of very thorough cross examination and the mother’s answers were direct evidence. For ease of reference, I will refer to the documents as ‘affidavits.’
Mr Weston gave his evidence openly and was not defensive. I accept his evidence as truthful and accurate. Where his evidence conflicts with the evidence of the mother, I prefer his account to hers. It follows that I reject the mother’s evidence that she did not really know what was in her affidavit of evidence in chief sworn 18 January 2008 because it was not appropriately interpreted to her. Furthermore, I find that she gave that evidence to that effect (extracted above) dishonestly and in order to avoid adverse credit findings arising out of the very many times during the trial that her affidavitory evidence was demonstrated to be false or inaccurate.
Mr Weston’s evidence is also supportive of the proposition that the mother did not mention the alleged statements of S (indicative of sexual abuse) because they had not been made as the mother contends or at all.

Ms H (the mother’s friend)

Ms H swore two affidavits for the mother. She is a significant witness because she alleges that S told her in November 2004 that the father had scratched her face with a key and that in July 2005 the father had inserted two fingers into her vagina whilst she was bathing. Ms H is described by the police informant in the criminal charges against the father as a ‘constant presence’ and, on Ms H’s own evidence, she was extensively involved with the mother and the mother’s accommodation and child provision needs from late 2004 onwards.
The first affidavit of Ms H was sworn on 30 August 2005 and the second was sworn on 18 January 2008. However, the mother relied only on the affidavit sworn on 18 January 2008. Both affidavits were prepared and witnessed by the mother’s solicitor, Michael Weston. Mr Weston gave evidence, which I accept, that the first affidavit (sworn on 30 August 2005) was not filed in the Federal Magistrates Court until 10 October 2005 because he was waiting for a grant of legal assistance to file the mother’s application to suspend the father’s time with the children and there was an intervening period of leave by him from his practice.
Ms H was positioned to be somewhat of an ornament to the wife’s case, but that was not what transpired.
According to her affidavit, Ms H is a nurse who had children attending H School in C where the children S and N were students. She had regular contact with the mother and children. Ms H was the person to whom, in July 2005, S made an initial statement indicative of sexual abuse of her by the father upon which Ms H acted by contemporaneously making a notification to Department of Human Services. S then allegedly made a further complaint to Ms H in late 2005, which was indicative of further sexual abuse of her by the father.
Having watched and listened to her give evidence[40] and having perused the documents relevant to her involvement, I find Ms H to be a well intentioned but unreliable witness upon whose evidence as to statements, observations and behaviours indicative of sexual abuse I can place no weight.
[40] Ms H gave evidence and was cross examined on 28 and 29 May 2008.
Omitting formal and irrelevant parts, in Ms H’s affidavit sworn 18 January 2008 she deposes as follows:-
2.        I have known the Applicant and her two children for more then four years. Our children attended kindergarten together and attended school together at [H] School in [C] together for the last four years.
3.        I have regular contact with [S] and [N] whom I have collected from school or kindergarten and who are regularly at my home with the Applicant socially.
4.        In July of 2005 I was in the process of running a bath for my children and the Applicant’s children were at my home. [S] became quite distressed and reluctant to get into the bath. She told me that no one else could get into the bath with she and her sister and that “people hurt you in the bath”. I thought this was quite odd. I then asked [S] what this was all about. She told me that her Father touches her in the bath, that he touches her all over and in her private places and that he won’t stop. She was very distressed and I was extremely concerned. [S] is very intelligent and well spoken and I had no doubt what she was telling me was true. I made an immediate notification to the Department of Human Services on 22 July 2005.
5.        Both [N] and [S] have repeatedly told me subsequently that they are scared of their Father and do not want to go to contact with him.
6.        Shortly after [the mother] stopped contact by the Father to the girls in late 2005, [S] again told me that she was scared to get into a bath because of her Father touching her all over and refusing to stop. She was very upset. When I became aware shortly thereafter that the Father had been visiting the children’s school I became concerned and spoke to [S]’s teacher [Ms O]. She told me that [S] had disclosed to her that she had been assaulted by her Father in the bath in like terms to what [S] had told me. I suggested she should make a notification to DHS. I am aware that she did not do so. When I subsequently spoke to her about this she stated to me that she had discussed the matter with her Principal Mr [DP] and that he had advised her that it was not necessary to make a notification. I was quite horrified but as I was aware that the Department of Human Services and the police were already involved in the matter, I did not need to take those matters further.
7.        I have no doubt that [N] and [S] have been subjected to abuse by their Father during contact periods and are at risk if contact were to continue or resume. I support the Application of the Applicant.
8.        From my frequent contact with [the mother] and her daughters, I have observed that [the mother] is an excellent mother and very attentive to her daughter’s needs. [S] and [N] are always well groomed and cared for and are very happy and content.
9.        [N] and [S] when I see them continue to indicate a fear of their father and of any contact with him.
Her earlier affidavit, sworn 30 August 2005, is in the same format, some paragraphs being identical but some being quite different. The most significant difference is to paragraph four in which the first sentence reads as follows:-
“4. In November of last year I was in the process of running a bath for my children and the Applicant’s children who were at my home.” (emphasis added)
Instead of the final sentence the following two sentences have been added:-
“I made an immediate notification to the Department of Human Services. I hear(sic) nothing further from the Department in relation to same.”
Paragraph six of the earlier affidavit finishes with Ms H’s suggestion to Ms O to ‘make a notification to DHS.’ Paragraph eight does not appear.
When Ms H’s two affidavits are compared, it becomes apparent that in August 2005 she deposed that S made the relevant statement to her in November 2004. However, in her affidavit sworn on 18 January 2008, she deposed that the same event took place in July 2005 and, by reference to her notification to DHS, necessarily on or prior to Friday 22 July 2005. In evidence in chief, Ms H said that the reference to November 2004 in her first affidavit was incorrect and that it should have read July 2005. She said that she had been under a lot of pressure on the day she signed the first affidavit. Namely, she was required to be at work and ‘[it] was a week I had a breast lump that had to be investigated; I had two sisters who died of breast cancer. I probably just overlooked the date.’
In cross examination, the father put to Ms H that she had also told Victoria Police that S had made statements indicative of sexual abuse in November 2004 and that she had been challenged about the accuracy of the November date during conversations at his committal hearing in February 2007. The father’s contention is that no statements could have been made to Ms H in November 2004 because the children were in his care, living at B and that S was not collected by the mother until 29 November 2004. Ms H denied having that conversation with police at the committal hearing or that she changed her evidence to refer July 2005 as the date of S’ statement.

The Full Court found that the trial judge had not paid attention to these views, and that unless the rigorous approach set out in WK v SR is taken, in circumstances where the often inevitable result of a positive finding of abuse is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and the child the disastrous effects of a positive finding that is reached in error. The Full Court found that the termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort, noting (at 79,217-8):

The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times.

23. The Full Court then referred with approval to the dissenting judgment of Kay J. in K v B (1994) FLC 92-478 where his Honour said, at 80, 972:

In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.
In an article entitled 'Prediction, Prevention and Clinical Expertise in Child Custody Cases In Which Allegations of Child Sexual Abuse Have Been Made', appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:
'Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well,... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.' (emphasis in original)
The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place.
The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:
The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e. objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.

24.In Re W, the Full Court concluded its analysis of the relevant legal principles by remarking, at 79,218:
The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.
25.As I have observed before, and with respect to the Full Court, one might as well say that the harm and injustice that flows to both parent and child from an erroneous negative finding is almost too horrible to contemplate, that harm including repeated sexual abuse of a child. Nevertheless, I am bound by the exposition of principle in the judgment.
26.In W v W (Abuse allegations; unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) examined 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. As a starting point the Full Court referred to the significant detrimental harm to a child who is sexually abused, noting (at 79,906) the discussion by Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 where His Honour said, at 82,709:
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.
27.The Full Court also had regard to Fogarty J’s acknowledgement of the potential for false allegations. Referring to Thomas J’s judgment in S v S [1993] NZFLR 657, Fogarty J said (at 82,711):
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 or 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.
28.After considering a number of decisions in which the concept of unacceptable risk was considered, the Full Court in W v W (Abuse allegations: unacceptable risk)concluded (at 79,910):
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 recognized 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.

W v. W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 was delivered after Re W (Sex abuse: standard of proof) (2004) FLC 93-192 and made no reference to the null hypothesis advanced in the article quoted by Kay J. in his dissenting judgment in K v. B (1994) FLC 92-478, which was endorsed by the Full Court in Re W (Sex abuse: standard of proof). Nor was there any reference to the article in Potter & Potter (2007) FLC 93-326 in which the Full Court endorsed the approach described in Re W (Sex abuse : standard of proof) or in the earlier decision in Napier & Hepburn (2006) FLC 93-303 in which the Full Court considered the approach to determining whether the evidence establishes an unacceptable risk of abuse. It is timely to say something further about that article.
Neither Kay J in K v. B nor the Full Court in Re W (Sex abuse: standard of proof) named the authors of the article in question, nor was its sub-title stated. The article is Prediction, Prevention and Clinical Expertise in Child Custody Cases in Which Allegations of Child Sexual Abuse Have Been Made : III Studies of Expert Opinion Formation. Its authors are Thomas M. Horner, Melvin J. Guyer and Neil M. Kalter. Kay J. recorded it as appearing in Volume XXVI No.2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law). The short reference for the article is 26 Fam.L.Q. 141 (1992-1993).
The article is the third in a series. Part I, sub-titled Predictable Rates of Diagnostic Error in Relation to Various Clinical Decisionmaking Strategies, was published in 25 Fam.L.Q. 217 (1991); Part II, sub-titled Prevalence Rates of Child Sexual Abuse and the Precision of “Tests” Constructed to Diagnose It, was published in 25 Fam.L.Q. 381 (1992). The authors of the first two parts are Thomas M. Horner and Melvin J. Guyer.
In the introduction to Part I the authors make clear their interest in the decision making processes that are generated under the mantle of expertise in cases of alleged child sexual abuse. The introduction to Part II sets out its focus as the problems inherent in attempting to reach firm conclusions about allegations of sexual contact between young children and adults. Part III deals with the field and scope of clinical expertise in these cases. The same case study was used in the research referred to in all three parts.
The authors frankly state their concerns about the accuracy of expert evidence and uncritical reliance on it and draw conclusions based on the research to which Kay J referred. Not all their assertions are attributable to their research; for example, in Part I they assert, at 251, that “(t)he contemporary preoccupation with child sexual abuse surely has many parallels with the preoccupations of other times, such as witchcraft and other heresies.” While a footnote is provided (Child Abuse from Salem to Jordan: Therapists as Culprits, 9 AUGUSTUS 7(1986)) the authors go on to wonder how many people over the course of history have been “mortally persecuted for the alleged practice of witchcraft, but had indeed not practiced it” and maintain and flesh out the analogy in their concluding paragraph. Part II continues where Part I left off, commencing with an aphorism attributed to Nietzsche: Convictions are the greater enemies of truth than lies.
Part III of the series, which is the article referred to by Kay J., continues the critique of the involvement of clinical experts in child sex abuse investigations. As Kay J. observed, detailed case notes concerning the possible sexual abuse of a three year old child were provided to eight senior clinical psychologists, twenty-three graduate students undergoing clinical training in psychology and fifty members of staff of child guidance clinics, including social workers, clinical psychologists and psychiatrists. In one phase of the study participants were able to question the evaluating clinician who presented the case study. No participant met with the child who was the subject of the allegation or with any parent or family member of the child. They were neither treating experts nor forensic experts; the method involved the presentation of extensive clinical case material by the evaluating clinician in that case.
Participants were advised that until the allegation was made the child’s parents maintained a good relationship and the child enjoyed a positive relationship with each parent. When she was about 16 to 17 months old, the child began (on her mother’s account) to exhibit behaviours resembling ones referred to in certain media accounts as being associated with sexual abuse. They included nightmares, an interest in and references to sexuality, occasional resistance to having her nappy changed, an emergent negativism, protests against separation from her mother and, once when having her nappy changed, the child saying “daddy hurt ‘gina”, which the mother construed to mean the father had molested the child. The mother’s concerns moved to a strong suspicion when she discovered a hair in the child’s nappy which, she said, was the colour of the father’s hair, and she asserted, a pubic hair. She did not save the hair.
An examining paediatrician discovered no physical evidence of sexual contact and in the course of police investigations the father underwent two polygraphic examinations, which concluded that he was being truthful when he denied any sexual misconduct towards his daughter. The father acknowledged that his daughter had become avoidant of nappy changes and that he sometimes had to be firm with her during them. He corroborated the mother’s observations of increased negativism and oppositionality. He could not explain the hair in the nappy.
Neither police nor protective services investigations substantiated the mother’s suspicions and allegations. Following her receipt of their negative findings, the mother contacted a clinic specialising in the diagnosis and treatment of child sexual abuse; a therapist there stated that the child was being treated for (this is a direct quotation from the article) “trauma [sic] of possible [sic] sexual abuse”. The evaluation team at the clinic never contacted the father but recommended a course of treatment to deal with the child’s behavioural problems, which were deemed symptomatic of “some kind of abuse”.
The clinician who presented the case study to the participants in the research exercise had been requested by a court to complete another clinical evaluation of the allegation of abuse.
The findings of the authors in Part III could be summarised in this way.
·    Expert evidence is highly imprecise and unreliable. Even if some of the experts were “correct” in their opinions, the broad spectrum of opinions makes it very difficult to discern which of those are to be trusted.
·    Estimates of the likelihood of abuse did not necessarily match the recommendations made when asked about the contact the child should have with the allegedly abusing father. In the authors’ words, the implication of this is that “. . . an allegation taken alone . . . has a powerful determining effect far beyond any failure to substantiate it (p.165 (emphasis in original)).
·    Where an expert is confronted with ambiguous and conflicting evidence, he or she is rarely better placed than a court to assess the evidence.
The section of the article quoted by Kay J. in K v. B at 80,972 commences one sentence into a paragraph. The first sentence of the quoted paragraph, which is omitted, states :
Clinicians seem inherently averse to both the scientific standard of accepting the null hypothesis (and, correlatively, the legal standard of presuming innocence in the absence of incriminating proof) when adduced data are insufficient to make its rejection defensible. (170)
The authors’ reference to the presumption of innocence is curious. Insofar as the authors refer to the admission of expert evidence, it is to evidence adduced in civil proceedings, not criminal proceedings. This is expressly acknowledged in their comparison, at 170, of the “clinical arena” with the “civil arena” and in the Introduction in Part I of the series. In Australia, “the legal standard of presuming innocence in the absence of incriminating proof” has no role in civil proceedings and no role in the criminal standard of proof, which requires rather that the accused’s guilt must be established beyond reasonable doubt, to achieve which the elements (ingredients or ultimate facts) of the crime must be established by the evidence beyond reasonable doubt; see Evidence Act 1995 (Cth) s.141; R v. Dickson [1983] 1 VR 227 at 235, Thompson v. The Queen (1989) 169 CLR 1 at 12. The presumption of innocence is a vital part of the criminal law but to say an accused person is entitled to the presumption of innocence is to say no more than that a person suspected of or charged with a crime shall be assumed innocent unless and until his or her guilt is proved, either by a plea of guilty or by a jury finding.

All three authors of the article hold positions at the University of Michigan in the State of Michigan. The article quoted says nothing of the legal standard of proof (or, indeed, burden of proof) in that State however in Part I, at 250-251, the authors note that civil law generally accepts preponderance of evidence as the standard of proof that a party must meet to prevail in the judicial decision making forum while criminal culpability requires that the State meet the more stringent standard of proffering evidence of guilt beyond a reasonable doubt. A footnote, numbered 43, notes :
Certain questions brought before the courts require that the prevailing party meet a higher standard of proof than the usual civil standard. The determination of paternity, the termination of parental rights, and the civil commitment of the mentally ill, for example, all require the moving party to meet a clear and convincing standard of proof.
The authors may be working within a system in which the standard of proof in civil litigation is more variable than it is under Australian law and the court could not rule out constitutional ramifications in the United States.
While this court cannot know why the first sentence of the paragraph was omitted from the quotation in K v. B, it can say that its inclusion would have caused a legally qualified Australian reader to question the apparent analogy drawn between the null hypothesis and the presumption of innocence, its relevance to the arguments the authors sought to advance and the authors’ non-expert assumptions about the law.
The authors refer to the null hypothesis as “the scientific standard” at 170, but say nothing more of it. The expression was coined by Sir Ronald Fisher, an English geneticist and statistician, in 1935; (see Fisher, R.A. (1966) The Design of Experiments, 8^th edition, Hafner: Edinburgh). In statistics a null hypothesis is a concept which arises in the context of statistical hypothesis testing to describe in a formal way some aspect of the statistical behaviour of a set of data which is treated as valid unless the actual behaviour of the data contradicts this assumption. Although a null hypothesis always occurs in conjunction with an alternative hypothesis it would be misleading to consider the alternative hypothesis as the negation of the null hypothesis. Importantly, the absence of evidence against the null hypothesis does not establish its “truth”; if the null hypothesis is not rejected there is no reason to change decisions or procedures predicated on its truth but it allows for the possibility of obtaining further data and then re-examining the same hypothesis. In the article the authors appear to use it to mean a hypothesis that sexual abuse has not occurred.

Tellingly, a clause is omitted in the midst of the paragraph quoted by Kay J. The first sentence of the quoted paragraph is reproduced below with the omitted words in bold :
Unfortunately, the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draws the clinician – and perhaps even judges and jurors as well, although the safeguards against this happening seem to us stronger in the civil arena than in the clinical arena – away from what ought always to be the starting point of his or her evaluation enquiries, which is that the event did not (or very highly probably did not) occur. (170)
The omitted words, which qualify “perhaps even judges and jurors”, are consistent with the authors’ statements (at 162-163) that despite their view of the imperfection of expert evidence, “the findings do not mean, of course, that specialists in child mental health cannot be useful in the fact finding process, as they may offer modes and venues of communication that genuinely assist courts in fully weighing evidence”. The authors describe the central problem faced by courts which use experts in cases of alleged child sexual abuse as being :
. . . one of determining which of the diverse expert opinions one might solicit is veridical and which expert(s) among the many who present themselves as such in any given case can be expected and relied upon to exercise genuine expertise rather than simple ordinary judgment. (163)
The paragraph following that quoted by Kay J. is the concluding paragraph of the article, and is in these terms :
Certainly, one important implication of our observations and findings is that for each and every individual clinician an immense burden exists to demonstrate convincingly to the courts to which they testify, and to society in general (neither statements to the effect that one has seen “hundreds of cases” nor presentations of thick resumes or curricula vitae being inherently convincing), the grounds on which s/he can be confidently expected to reason or predict beyond the capacity of the ordinary judge or juror when s/he is faced with the same information. A further implication, of course, is that courts need to examine their experts beyond the customary scope (which is too often perfunctory) of voir dire, which in our opinion admits far more clinicians to the realm of privileged testimony than is justified by any reasoned appraisals that have been made of them as a class of specialists. (170)
The authors of the article place much faith in the deductive capabilities of courts (as opposed to “clinical experts”) in drawing conclusions from conflicting and ambiguous evidence. The authors do acknowledge the “pragmatic utility” in the admission of expert evidence, however unsatisfactory (166). Their main point is that the court should be cautious when considering expert evidence; as its sub-title makes clear, the article is about the formation of expert opinion, not determination of allegations by a court. At 169, the authors make this clear when expressing this caution :
Courts need to recognize, therefore, that the thought processes of most clinicians, whose modes and manners of discourse may in their aplomb and tones of unflinching conviction, appear to be authoritative, are by dint of training and practice historically rooted in the traditionally divergent, intuitive, and speculative thought processes of the clinical case conference, and not in the traditionally systematic, fact-weighing thought processes of legal discourse. Caveat curia!
The authors refer to the problematic relationship between a low assessment of abuse and a “conservative” recommendation for contact. An example given involved a risk assessment by participants falling between 0.001 and 0.25 (mean probability: 0.11) where despite this low likelihood of abuse, several experts expressed the opinion that contact between the father and child should be supervised as a caution. That approach was criticised and attributed by the authors to “individual differences in tolerance for risk, as well as non-expert based views of parental rights”.
As the article was not concerned with the court process, it did not take into account the potential for such a poor correlation between a clinician’s assessment of risk and his or her recommendation for contact to be tested in cross-examination and the contradiction exposed. Nor did it take into account a court’s obligation to act according to law, rather than on personal views of “parental rights”.
By quoting that part of Kay J’s earlier dissenting judgment which includes an edited quotation from the article, the Full Court in Re W (Sex abuse:standard of proof) cannot have meant to endorse an approach which would have the court take as its starting point a premise that the sexual abuse did not, or “very highly probably did not” occur, as that would be inconsistent with s.140 of the Evidence Act 1995 (Cth) and inconsistent with decades of jurisprudence about the standard of proof in civil cases, before and after the proclamation of the Evidence Act 1995. A revisiting of the article, and of the series of which it forms part, leads one to wonder whether it was considered in its entirety by Kay J in K v. B. As the Full Court itself made no reference to the article, save by quoting that part of K v. B which refers to it, there is no reason to infer that it considered the whole of the article, or the series.
On occasions, submissions made in this court suggest that some readers extrapolate from the first paragraph of the article quoted by Kay J. that the starting point of a judge’s evaluation should be the null hypothesis. The article does not support such a reading; nor does s.140 of the Evidence Act 1995 (Cth) or any of the other authorities to which I have referred.
While Dixon J.’s classic discussion in Briginshaw v. Briginshaw (1938) 60 CLR 336 at 361-363 of the operation of the civil standard of proof may appositely express the considerations which s.140(2) of the Evidence Act 1995 (Cth) requires a court to take into account, the correct approach (as recently observed by Branson J. (with whom French and Jacobson JJ. agreed) in Qantas Airways Ltd v. Gama (2008) 247 ALR 273, at para. 139 is that :
. . . references to, for example, “the Briginshaw standard” or “the onerous Briginshaw test” . . . have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s.140 of the Evidence Act provides.
Similarly, in Johnson & Page (2007) FLC 93-344, at 81,891, the Full Court of this Court expressly agreed with the “view that reference to the Evidence Act, rather than Briginshaw, is appropriate”.
Section 140 is as follows :
(1)      In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)      Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account :
(a)      the nature of the cause of action or defence; and
(b)      the nature of the subject-matter of the proceeding; and
(c)      the gravity of the matters alleged.
The court is not in general required to exclude all reasonable hypotheses consistent with the non existence of a fact, or inconsistent with its existence, before the fact can be found. However, all the circumstances must be considered together at the final stage of the reasoning process and where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved; Palmer v. Dolman, [2005] NSWCA 631, IppJA at para 41.
In Westbus Pty. Ltd. (Administrators Appointed) v. Ishak [2006] NSWCA 198 at para 20, the Court of Appeal, citing a number of earlier authorities, observed that the standard of proof is not met if the circumstances appearing in evidence do not give rise to “a reasonable and definite inference”, but at most give rise to “conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture”.
In Kuligowski v. Metro Bus (2004) 220 CLR 363 at 385, the High Court, in a joint judgment, noted that disbelief of the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. Quoting Rhesa Shipping Co. SA v. Edmunds [1985] 1 WLR 948 at 955, the High Court endorsed the finding that in a particular case it may not be possible for the court to reach a conclusion either way and in those circumstances the court is not bound to do so but may take the third course of finding that the party on whom the burden of proof lies has failed to discharge it.
Thus in this case, as in every case, the court must assess the competing probabilities of facts in issue, whether directly in issue or to establish a fact from which a further inference is to be drawn.

[2009] FamCA 206

20 March 2009

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Appeal

Natural Justice

Procedural Fairness