Warnett & Amerson (No 2)
[2020] FamCAFC 260
•23 October 2020
FAMILY COURT OF AUSTRALIA
| WARNETT & AMERSON (NO. 2) | [2020] FamCAFC 260 |
| FAMILY LAW – APPEAL – PARENTING – Majority decision – Appeal against final parenting orders – Unacceptable risk of harm – Whether the appellant father posed an unacceptable risk of sexual abuse to the child – Where orders were made for the child to spend limited supervised time with the father until 2024 – Adequacy of reasons – Where the many allegations made by the child had different probative value – Where a close analysis as to what each allegation actually meant in light of all the evidence was required in this case – Where the primary judge did not discuss and weigh each allegation made by the child – Appeal allowed – Orders set aside – Matter remitted for rehearing – No order as to costs – Costs certificates awarded to the parties and the Independent Children’s Lawyer. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 |
| Albert & Plowman [2020] FamCAFC 23 AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Baira v RHG Mortgage Corporation Ltd (2012) 297 ALR 416; [2012] NSWCA 387 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Boensch v Pascoe (2019) 375 ALR 15; [2019] HCA 49 Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 M v M (1988) 166 CLR 69; [1988] HCA 68 N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 U v U (2002) 211 CLR 238; [2002] HCA 36 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 |
| APPELLANT: | Mr Warnett |
| RESPONDENT: | Ms Amerson |
| INDEPENDENT CHILDREN’S LAWYER: | Lukes Law |
| FILE NUMBER: | WOC | 427 | of | 2017 |
| APPEAL NUMBER: | EAA | 116 | of | 2019 |
| DATE DELIVERED: | 23 October 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Austin JJ |
| HEARING DATE: | 9 September 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 September 2019 |
| LOWER COURT MNC: | [2019] FamCA 499 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Cohen with Ms Murphy (direct brief) |
| COUNSEL FOR THE RESPONDENT: | Ms Dart |
| SOLICITOR FOR THE RESPONDENT: | Rossi Simicic Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Scarlett |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Lukes Law |
Orders
The appeal against Orders 2–3 and 5–8 made on 27 September 2019 by a judge of the Family Court of Australia be allowed.
Orders 2–3 and 5–8 made on 27 September 2019 be set aside on and from the first mention of the remitted matter before a judge or Senior Registrar of the Family Court of Australia.
The matter be remitted to the Family Court of Australia for rehearing of the issues of parental responsibility, the time and manner in which the child is to spend time with the father and any ancillary injunctions by a judge other than the primary judge.
There be no order as to costs.
The Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent mother a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.
The Court grants to each of the parties and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the rehearing ordered.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Warnett & Amerson (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 116 of 2019
File Number: WOC 427 of 2017
| Mr Warnett |
Appellant
And
| Ms Amerson |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Ainslie-Wallace & Aldridge JJ
Introduction
This appeal concerns the parenting arrangements for Y (“the child”) born in 2011. On 27 September 2019, a judge of the Family Court of Australia found that Mr Warnett (“the father”) posed an unacceptable risk of sexual abuse to the child. Accordingly, final parenting orders were made which provide for the child to live with Ms Amerson (“the mother”), who was to have sole parental responsibility for the child in consultation with the father (Orders 2 and 3). The orders also provide for the child to spend limited time with the father, which was to be supervised until she commenced Year 8 in 2024 (Orders 5–7), and for the father to enter into various written undertakings to be filed in Court (Order 8).
The father appeals against these orders. The appeal is opposed by the mother and the Independent Children’s Lawyer.
The central issues in the matter were the behaviour of the child and what were the likely causes of it. There is no doubt that the child was confronting and exhibited many psychological and emotional problems. Dr J, the single expert psychiatrist (“the single expert”), who has been working in the field of child and adolescent psychiatry for many years, described the child as one of the most troubled children that he had seen, not necessarily as to the intensity of her problems but their breadth (Transcript 22 March 2019, p.20 line 40 to p.21 line 5).
The primary task of the primary judge was to determine whether the father posed an unacceptable risk of harm to the child. The child made many allegations that the father had touched her in sexually inappropriate ways. She also made similar allegations against four other males. The evidence disclosed that some of the child’s allegations could not be correct and that others were unlikely but most of them could not be resolved into a finding.
The single expert was of the view that the child’s allegations did not provide a basis for a finding of unacceptable risk of harm to the child and that, most likely, the causes of the child’s many problems lay elsewhere. The primary judge did not accept these opinions and found that a number of factors, including the child’s “reasonably consistent nomination of the father as a perpetrator” (at [206(e)]), led to a finding that the father posed an unacceptable risk of sexually abusing the child.
The primary judge was faced with the difficulty of analysing a very complicated series of allegations in circumstances where his Honour did not accept the opinion of the single expert, which was a course that was open to his Honour. That, however, required the primary judge to explain why his view of the facts led to the findings that were made. Regrettably, that task was made much more difficult than should have been the case because the primary judge did not receive the assistance from counsel that was necessary for him to understand all of the issues that arose from the varied nature of the child’s allegations.
The test for the adequacy of reasons is well known. In Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267, the Full Court adopted the principles expounded in Sun Alliance Insurance Ltd v Massoud [1989] VR 8, saying:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, McColl JA with the concurrence of the other members of the Bench said:
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge “‘enter into’ the issues canvassed and explain why one case is preferred over another”…
(Citations omitted)
The majority of the Full Court in Fitzwater v Fitzwater (2019) 60 Fam LR 212 (“Fitzwater v Fitzwater”) explained these authorities as they apply to cases such as the present as follows:
12.The task, therefore, is to look at the trial judge’s reasons as a whole to determine whether her Honour did undertake the balancing or weighing exercise as to the implications of the child’s statements…
13.In determining whether there is an unacceptable risk of sexual abuse or risk of harm to the child, the Court must “assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child’s welfare” and the “existence and magnitude of the risk of sexual abuse … is a fundamental matter to be taken into account” (M v M (1988) 166 CLR 69 at 77…).
14.This led Fogarty J in In the Marriage of N and S (1996) 19 Fam LR 837 at 860 … to say:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
15.This passage was approved by the Full Court in Napier v Hepburn (2006) 36 Fam LR 395 at 406 … and Johnson v Page (2007) FLC 93-344 at 81,888-9…
(Citations omitted)
We have come to the conclusion that his Honour’s reasons are not sufficient to meet the requirements set out in N and S and the Separate Representative (1996) FLC 92-655 at 82,713–82,714. We are satisfied, for the reasons that follow, that the primary judge did not “deal in a satisfactory way with the substantial amount of evidence necessary to be dealt with” and that there had not been “a determination of the case upon a consideration of the real strength of the body of evidence presented” (Baira v RHG Mortgage Corporation Ltd (2012) 297 ALR 416 at [175]).
We shall explain this by referring shortly to the child’s behaviour, followed by a discussion of the various allegations made by the child in detail, before turning to his Honour’s reasons for judgment. Where appropriate, we shall refer to the issues arising from an allegation made by the child which, in our view, required consideration.
The child’s behaviour
The child started at day care at the age of about 16 months, which was when the mother returned to work. After initially settling in well, the child’s behaviour deteriorated and over the last 12-18 months of her time there (2014-2015), a number of issues built up. For example, the child pulled a live lizard apart and there were several incidents of violence towards other children, including pinching. On another occasion, the child stabbed another child with a pair of scissors. The child also began wetting her pants during the day.
There was no suggestion of any sexualised behaviour by the child at this time.
The child started school in 2016. Again, her behaviour was good at first but it deteriorated in May of that year. The child was nasty to other children, hitting and kicking them and wrecking their things. There was no apparent pattern to the child’s behaviour.
Arrangements were made for the child to see the school counsellor in late 2016.
In early 2017, the child’s sleep pattern deteriorated and she again started wetting her pants during the day. She was touching other children, including their private parts. The mother also found the child masturbating on two occasions.
At the time of the interviews with the single expert in April and May 2018, things had improved, although the child was still hitting other children, destroying their work, running away and getting angry. Nonetheless, the incidents were “less frequent and less persistent” and the child seemed “to be getting on better with other children” (single expert’s report dated 18 May 2018, p.20).
The child’s allegations
May 2016
On 29 May 2016, the child spent time with the father at the paternal grandfather’s home at Suburb KK. The mother described the child as being cranky, strange and crying uncontrollably on her return.
On 1 June 2016, the child said to the mother “[the paternal grandfather] touched my vagina”. When asked if the paternal grandfather was “doing the nipping crab thing again?” (a game that the paternal grandfather played with the child), the child agreed (at [136]).
This allegation was made after the child had started school and at a time when her behaviour was starting to deteriorate but well after the child’s problems first became obvious in 2014. A question then arises as to what, if any, link there was between the substance of the child’s allegations and her behavioural issues.
January 2017
In January 2017, the child and the father spent time at the mother’s holiday house at QQ Town.
The child told the father that “[Z] touched me on the underpants” (at [147]). Z, then aged 9 or 10, was the son of Ms D, the mother’s friend and former business partner.
Shortly after, on 9 February 2017, Ms D and her children, including Z, moved to live in the mother’s house.
The father told the mother about this allegation on 22 January 2017.
It seems that neither party placed much weight on the child’s statement in relation to Z. The father conceded that he never believed that any touching by Z had occurred. Notwithstanding that view, however, on 1 March 2017, several weeks later, the father repeated the comment to a teacher at the child’s school and added that the boy who had touched her was now living in the same house as the child.
The father said in cross-examination that he told the child’s teacher this as “punishment” for the mother and agreed that it was “vindictive retribution” (Transcript 18 March 2019, p.62 lines 35–43).
Unsurprisingly, the child’s teacher spoke to the child. The child repeated the complaint to her and added that she had seen Z touch his sister on the private parts and that her two adult step-brothers used to touch her on her private parts when they came to visit.
The deputy principal of the child’s school reported these matters to the Child Protection Helpline on 6 March 2017, along with her concerns about the behaviour that the child was exhibiting at school. This was the first of many reports that were made but there is no value in describing them all.
The primary judge found that Z had not inappropriately touched the child (at [161]). The child had however made that complaint to a teacher, although the primary judge suspected that the father had manipulated her into doing so. Nonetheless, it was an allegation made by the child that had apparently no basis in fact and the father’s suspected role in it was a factor that bore directly on the plausibility of the other allegations made by the child.
March 2017
On 6 March 2017, the mother was informed of the notification that had been made in relation to the child’s allegations. This led the mother to ask the child “Has anyone touched your vagina?” to which the answer was “No” (at [158]). The mother pressed the child and said that someone had told her so. The child said “No mummy, no-one has. Daddy told me to tell [three] of my favourite teachers that [Z] did” (at [158]).
The mother later returned to the issue and asked the child again what had happened. The child said:
159.… ‘Daddy told me to tell [three] of my teachers that [Z] touched my vagina but he didn’t. When Daddy took me shopping to get my new pink shoes he took me to the everybody toilet and he showed me how to show the teachers what [Z] did to me”…
(As per the original)
The mother said that the child then demonstrated to her what she did and stood with her legs apart, knees bent and used a full open hand movement that went from front to back whilst saying “Back to front” and “Dad said he was going to give me [two] jelly snakes” (at [159]).
On 7 March 2017, the Child Abuse Squad in City H attempted to interview the child but she declined to take part. The child did however speak to a caseworker in the presence of the mother. The child said that Z had not touched her but that the father had asked her to tell her three favourite teachers about Z. When asked if anyone had touched her in a way that had made her feel uncomfortable, the child said that both the father and the paternal grandfather had done so. When asked where they had touched her, the child pointed to her vagina. Although the child said that this took place in a kitchen, she could not identify the house or remember anything else that took place.
The mother told the counsellor that the child would lie, for example, to get attention from her favourite teachers at school. The mother also said that she had taught the child “to be hypervigilant about inappropriate touching” (single expert’s report dated 18 May 2018, p.28).
The child did not repeat her complaints about her two adult step-brothers. The mother did not consider that they had behaved inappropriately.
The initial response of the child to the mother’s questioning was to deny any inappropriate touching. It was only after the mother asked the child leading questions that further allegations appeared. That does not mean that those allegations must be discounted but they must be considered in the full context of what occurred.
27 March 2017
On this day, the school counsellor recorded the child saying that she could not see the father until she was older “[b]ecause we went to the police about him” (at [168]). When the child was asked what that was about, she said that she did not remember but she thought it “was when [the father] touched [her] on [her] private parts” (at [168]). Again, the child said that she did not remember but knew about it because “Mummy keeps reminding me” (at [168]).
This is a statement by the child that is relevant to the weight to be given to other things said by her because it raises concerns as to what was the actual recollection of the child.
28 March 2017
On 28 March 2017, the mother decided to show the child the “Angry Birds” movie, which the child had watched with the father and the paternal grandfather on 29 May 2016, in an attempt to trigger memories as to what may have occurred on that day.
After watching the movie, the following exchange took place, as described in the mother’s affidavit filed on 11 February 2019, which was recorded by the primary judge at [170]:
155.… I said to her “It’s important for you to remember what happens to you. Do you remember what happened in Sydney when you came home and said that [the paternal grandfather] touched your vagina? You might actually remember being somewhere else and not in the kitchen and just because you remember something happening and it wasn’t in the kitchen it doesn’t mean that it didn’t happen, so maybe you can remember being in any other rooms in the house?”
156.She said “I do remember what they had done”. All of a sudden she stood up on my bed and pulled her pyjama pants down (she does not wear underpants to bed) so that the lower half of her body was naked. She said “Do you want me to show you?” I said “Yes”. I then saw [the child] pull the pubic mound up so her genitalia was exposed.
She said “They did [two] things”. As she said this she demonstrated [two] finger stimulating movement that went up and down along the middle of her vagina. She also said “There’s another thing they did but it’s harder to show”. She repeatedly tapped the middle of her vagina.
157.I said “Who did this?” She said “Daddy and [the paternal grandfather]”. I said “So Daddy did it to you?” She replied “Yes”. I repeated “Daddy did it too?” She replied “Yes”. I said “Did they do this to you at the same time?” She said “No. Daddy did it first then [the paternal grandfather]”. I said “Were they together?” She replied “No”. I was in the garden with Daddy while [the paternal grandfather] was inside”. She also said “There was a really tall fence”. She tried to make a reference to how tall the fence was by comparing it to how many televisions tall it would have been. She said ‘So, if you put six or maybe eight of [Mr G’s] televisions on top of each other ... It was about eight televisions’. She pointed to [Mr G’s] TV which is a large flat screen. I was surprised by this as I couldn’t imagine a fence that tall. She also said ‘It had pointy bits’ and gestured with her hand in a vertical upright direction. I imagined a picket fence but couldn’t imagine a picket fence that tall. She said “[the paternal grandfather] did it to me in the house”. She said ‘Daddy rubbed me first then [the paternal grandfather]. Daddy sat on the big lounge. I asked ‘Did you have your knickers on?’ She said “No, daddy left them off.’ I asked ‘So when did you get your knickers back on?’ She said ‘After [the paternal grandfather] did it.’ I said ‘Okay.’
158.I was quite upset and shocked when she was telling me all this. I was trying to process that [the father] was a part of this. I do remember her saying words to the effect of “It happened more than once and it happened on Tuesdays when Daddy took me swimming in [LL Town]”. I had forgotten at that stage that [the father] had cared for her on Tuesdays and when I moved to [City H] that he had taken her to swimming lessons in [LL Town]. She would have only been at [OO Childcare] at that stage so that meant she was under the age of 5 years. She said to me “[the paternal grandfather] had done it sometimes but Daddy always did it”.
(Mother’s affidavit filed on 11 February 2019) (As per the original)
1 April 2017
At [177], the primary judge recorded this aspect of the mother’s evidence:
169.Later that night [the child] was in my bed with me reading books. She said “Daddy touched my vagina in this bed”. She pointed to the bed that we were in at the time and she said “the bunk bed”. [The child] said “He slept with me in the bunk bed and slept with his hand on my vagina” [The child] then showed me what he did. She showed me with her hand that he put his flat hand cupped around her pubic region. She said “But I climbed out of bed when he [was] asleep”.
170.Over the course of the weekend [the child] made a number of other disclosures to me. She described other locations where she says [the father] touched her on the vagina including on a chair, on his lap, the lounge at my home at [the father’s] family home in [Suburb KK] in Sydney, the toilets, her bed at home, my bed at home, [the father’s] bed at [Suburb KK] and in the garden at [Suburb KK]…
171.I recall [the child] describing a chair in [Suburb KK]. She said ‘They have two types of chairs. They have a big chair like we do but they have a little chair like we do but it goes up but it’s a machine one that you can have a rest on. And it can go all the way like a bed.’ She said words to the effect. ‘He made me go like a ‘w’ or ‘m’ so he could easily put it right in there.’ She showed me the ‘w’ shape while she was trying to explain. [The child] was sitting with an upright back and with her knees wide apart and the lower part of her legs were bent backwards and flat on the seat of the chair and was pointing to her well exposed vagina.
172.I asked ‘So did he ask you to make a ‘w’ or an ‘m’?’ She said ‘No, he doesn’t normally do that he just makes me do that – he gets my legs into that position. He doesn’t say anything. He just touches my vagina in the middle and does what he normally does’. I said ‘Okay.’ She also described how [the father] makes [the child] sit on his and [the paternal grandfather’s] lap. She said ‘He makes me sit in daddy and [the paternal grandfather’s] lap. Sometimes ‘w’, sometimes normally, sometimes like this and sometimes kneeling and sometimes ‘m’ and ‘w’. She demonstrated these as she spoke. The ‘w’ shape was as before, the ‘m’ shape was a straddled position with legs bent and knees pointing up, the normal position was legs closed, the ‘like this’ was a straight straddle and legs in a downward relaxed dangle, and the ‘kneeling’ was with both lower parts of the leg flat and her upper legs vertical so she was upright’. We were in my downstairs bedroom at [QQ Town] and she used the little brown wooden chair in the room to act out the positons.
173.She also said to me “Daddy would whisper in my ear do you want a little tickle or can I give you a little tickle?” When she said this to me she was quiet and hunched her body and looked down and looked like she was ashamed.
174.I said to [the child] “Didn’t you tell me that [the paternal grandfather] did something to you in the garden?” She became very angry and said to me words to the effect of “Don’t you remember. I already told you this. It was Daddy that touched my vagina in the garden not [the paternal grandfather]”.
(Mother’s affidavit filed on 11 February 2020) (As per the original)
This was the last time that any allegations were made by the child against the paternal grandfather. This and the range of inconsistent allegations made about the father again raise questions as to their plausibility.
2 April 2017
The child drew a picture and told one of her adult step-brothers that “Daddy touches my vagina” (at [178(a)]).
3 April 2017
The child was at the mother’s friend’s house masturbating whilst watching television. After being asked to stop, the child drew a picture and said “That is Daddy and that is me… He is trying to touch my vagina” (at [178(c)]). She added “Daddy touched my vagina in the toilets, at the swimming pool and in the house. In both houses” (at [178(c)] (the date of 2019 recorded in that paragraph is incorrect)).
When asked which houses, the child nominated three, including the QQ Town property and the father’s house in Sydney. As to why there were so many toilets in the picture, the child said “Because he’s done it in lots of different toilets – disabled ones, the ones where only boys are only allowed to go to and the ones that have two toilets in them a little toilet and a big toilet, the ‘everybody toilets’” (at [178(c)]). The child said that none of these toilets was at home.
On the same day, the school counsellor recorded that the child used dolls to represent herself straddling the father’s lap in the car and as saying “Daddy always touches my vagina, we sit like this so he can touch my vagina. He has touched me 81 times. At swimming” (at [178(e)]).
The child also told the school counsellor and a teacher that her father had come to school the previous Friday at lunchtime and touched her on the vagina.
The primary judge found that this had not occurred because at that particular lunch time, the child had been detained in the quiet room.
The last allegation against the father described above was found to be unsustained, yet it was made to both a teacher and the school counsellor, seemingly without any prompting. The fact that an allegation had been made by the child as to very recent events that was demonstrably wrong raises a question as to how the other allegations might be accepted.
17 April 2017
As recorded at [178(g)], the mother described the child’s allegations made at this time in the following terms:
181.On Monday 17 April 2017, at about 7pm when we were driving to the Esplanade for dinner, we were all sharing bad driving stories. [Ms D] had just finished a story about her [grandfather]. [NN] asked “Was that the grandfather who put his penis on your vagina?” [Ms D] and I were shocked by [NN’s] frank question. [Ms D] said “Yes it was” in a matter of fact way. I had forgotten [Ms D] had privately explained to [NN] that she had been sexually harmed by her grandfather. This was a conversation that was initiated by [NN]. [The child] instantly interjected by saying “At least he didn’t try and put his penis in your mouth. My daddy tries to make me lick it and put it in my mouth. He wants me to lick his penis and bite it.’ I was completely shocked by this. I can recall something about her trying to trick [the father] by saying she ‘wasn’t ready for it’ and ‘maybe next time’. I asked ‘When did this happen?’ [The child] said ‘Last time I went to Sydney. I’ve been to his house twice. Daddy made me do it the first time too.’ I asked “Has it happened other times?” [The child] answered “Yes, in his car. Maybe eight, maybe more.” [Ms D], [Z], [NN], [the child] and I were all in the car.
182.… [Ms D] parked the car and we all walked to the restaurant. We sat at the back of the restaurant near the toilets where it was quiet. I asked [Ms D] to write down what she could remember. I said, ‘I feel sick. Can you write down what she said? I feel like I don’t think I remember everything. My brain was going in and out.” [Ms D] sat and wrote notes into her phone.
183.[NN] and [the child] went to the toilet…When the girls got back [NN] said ‘[the child] just told me that her Dad had made [the child] touch his wee’… I said ‘So he makes you touch his wee?” [The child] said ‘Yes. He takes me into the toilet and made me touch the blood bit of his wee and the other normal wee bit too. Stuff comes out of the blood bit”. I said ‘What colour was it? [The child] responded ‘It was a bit yellowy and a bit like vomit”.
(Mother’s affidavit filed on 11 February 2020) (As per the original)
This allegation is of a markedly different and more severe nature than the others ever made by the child.
The single expert noted that this incident seemed “to have an attention seeking quality, in other words, when Ms [D] rather injudiciously talked about her own sexual abuse, the account then reads very much as if [the child] chimed in with a bigger and better story” (single expert’s report dated 18 May 2018, p.42). This, if accepted, casts doubt on the veracity of the allegations.
30 May 2017
The child was interviewed by two detectives and a caseworker from the Department of Communities and Justice in the presence of the principal of the child’s school. The notes of the caseworker were tendered at the hearing before the primary judge (Exhibit H). They record as follows (at [180]):
… [The child] was reassured that it would be ok to tell because our job is to make sure kids are safe. [The child] said that it was because her dad played with her vagina. When asked when this happened [the child] said that she can’t remember when it was but it happened in Sydney when she was with him at [the paternal grandfather’s] house. The house in in [sic] [Suburb KK] and her dad lives with his dad because he has not got enough money to live on his own. [The child] was asked what she was doing when the touching happened and she said that she was cooking cup cakes with [the paternal grandfather] ... [The child] was asked to describe what happened in free narrative and she said that she was getting the mixture and was going to pour it in when he started playing with it. [The child] was standing on a stool near the bench with the stove underneath and her dad was standing right next to her. [The paternal grandfather] was in the kitchen too and was standing on the other side but he didn’t see because he was too busy putting the mixture in the cupcake wrappers. [The child] drew a diagram depicting where she was standing and where her dad and [the paternal grandfather] were in the room – she used pink highlighter for herself and green for her dad and [the paternal grandfather]. [The child] said that she was wearing a skirt and top and had underwear on. Her dad’s hand went under her skirt and he rubbed her vagina outside her underpants. [The child] said that she turned her face around and was facing her dad. She then got off the stool and went to the toilet. Her dad showed her where it was because she had not been to that house before. [The child] was asked what she could feel when her dad did that and she said that she could feel him playing with it, mostly sliding up and down. [The child] indicated on a body chart where her dad touched her. [The child] said that she went to the toilet and when she came back she said to her dad “did you touch my vagina” and he said “no”. [The child] thinks that she was [four] when that happened because it was the year before last and she thinks that she went to preschool down near [Ms D’s] work. When asked if she told anyone she said that she told her mumma after she got home. [The child] thinks that her mum said “we will go to court about that”.
[The child] then said that another time she was with her dad in a park that does not have any equipment in it – just grass and they were flying a kite. It was the same day as the cupcake day except later in the day. [The child] said that she was running and her dad was trying to get her so he could play with her vagina. [The child] said that she knew he was trying to do that because her [sic] was reaching near her bottom. When asked if he did touch her she said ‘no’. [The child] said that she ran again because he kept trying to do that. She then said that his hand only touched her bottom for a quick second. She knows he did that because she saw his face and saw his grin and she knew he was lying. When asked what he was lying about she said ‘about touching my vagina’. [The child] said that she felt a little soft touch and when she turned around he wasn’t touching it anymore. After that she was still running with the kite until her legs got tired and she stopped. [The child] was asked who she told about that time and she said that she told mostly everyone she lives with. [The child] said that it only happened those two times. [The child] then said that another time when she was [five] it happened at her mum’s holiday house in [QQ Town]. She and her dad were at the house in [QQ Town] for [one] night. They didn’t have dinner there but they ate at dad’s cousin, [Mr UU’s] house. The next day they went swimming at high tide and rode some waves when it was low tide. [The child] said that her dad slept in the same bunk and touched her vagina while she was asleep and she knows that because she felt him do it but she did not wake up because she was too sleepy. She did not say anything to her dad and only told her mum about it later. She cannot remember what her mum said. [The child] was asked if anything else has happened and she said ‘no’. She was asked if there are any other times and she said ‘no’. [The child] was asked if she has been touched on her body by any other people and she said ‘no’ – she was then asked directly if anyone else has ever touched her vagina and she said ‘no’. [The child] was asked if she has ever been touched on the vagina at school and she said ‘no’. Her dad has never been to her school at lunch time and has only picked her up or dropped her off. [The child] was told that someone said her dad touched her at school and she said ‘no – they might have seen someone who looks like him”. She was then told that someone said her dad touched her in a car and she said ‘no he hasn’t – how do they know that?’.
[The child] was told that someone said that something happened in a pool and was asked if that has ever happened. [The child] said that she was at [LL Town] pool with her dad and [the paternal grandfather] was there and he dived down and touched her vagina under the water. [The child] was [four] when that happened and she was having swimming lessons at [LL Town] pool. Her dad took her down there because her mum was at work. Her dad and [the paternal grandfather] were both in the water there was no one else there. When she went to the toilet her dad touched her on the bottom while she was in the cubicle. [The child] said to him ‘you touched me on the vagina’ he said ‘no I didn’t’. [The child] said that she felt it on her bottom when he touched her – she was asked why she said to him “you touched my vagina” and she said that she thought that he did that and she remembers that happening. She was then asked about the touching underwater and she said that it happened in two places at the pool on different days. One time in the toilet and then another time he was going swimming underwater and he touched her vagina while she played with a ball in the water. She was looking up at the roof and she was [sic] him out of the corner of her eye, touching her vagina with his hand and playing with it. She was asked if dad’s hand was still or moving and she said that it was rubbing it. The only person she has told about that is her mummy and no-one else.
[The child] was asked again if anyone else has ever touched her vagina and she said ‘no definitely no-one else’. She was asked if [Z] has ever touched her vagina and she said ‘no he hasn’t’ – she was if [sic] [Mr F] has ever touched her vagina and she said ‘no’ – she was asked if [Mr G] has ever touched her vagina and she said ‘no he didn’t’ – she was asked if [the paternal grandfather] has ever touched her vagina and she said ‘he hasn’t – he hasn’t”.
…
Truth and lies were revisited – [the child] said that she has only told the truth today and has not told any lies.
(As per the original)
We note here that many of the child’s earlier allegations were not repeated. Rather, a new series of allegations was made, but inconsistently and amongst statements that no one had touched her. Again, prompting was involved. Each of these matters bore upon the acceptability of the child’s allegations.
The primary judge’s reasons for judgment
As can be seen above, we consider that the many allegations made by the child had different probative value. Some were simply wrong, and accepted by the mother to be so, whilst others warranted greater scrutiny because of the manner in which they were obtained or because of the nature of the allegations themselves. The comments that we have made above demonstrate that not all of the child’s allegations were equally supportive of a finding of an unacceptable risk of sexual abuse and, indeed, those that were found to be implausible or frankly wrong pointed persuasively in the different direction.
In Britt & Britt (2017) FLC 93-764, the Full Court said:
34.In this regard it is important to note that the probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence. This is particularly so where the court is asked to draw an inference from all of the evidence, that is to say, all of the circumstances of the matter. This is because one piece of evidence may affect the probative value of another and a number of pieces of evidence when considered together may have a probative value greater than if each is considered individually.
Thus, a Court might more readily accept an allegation, if similar allegations were readily established. Conversely, the fact that similar allegations were proven to be wrong, may well call for greater scrutiny of those still in issue. The acceptability or otherwise of each allegation made by the child was capable of informing the view to be taken about other allegations.
With those comments in mind, we turn to the relevant parts of his Honour’s reasons for judgment.
The primary judge noted that the child’s evidence “creates a confusing and confused picture” (at [184]) and that “[t]he inconsistencies and discrepancies in the various disclosures made by [the child] obviously diminish their plausibility” (at [200]).
His Honour also accepted that “the most graphic disclosures” were made to the mother after she “had quite deliberately tried to trigger a response in [the child] to think about abuse” (at [185]).
After referring to the evidence of the single expert and deciding not to accept it, the primary judge said:
203.In stating my conclusion concerning the question of unacceptable risk of harm, I accept that [the child’s] disclosures were generally marked by numerous inconsistencies. I accept that [the child] may have been induced by the mother on specific occasions to make disclosures and she may have embellished her disclosures to say what she thought the mother wanted to hear. I accept that the force of any disclosures by [the child] was diminished by her record of fanciful or untruthful statements. I accept [the single expert] did not believe [the child] had been sexually abused. Nonetheless, these observations serve to highlight that a central element of consistency in the various disclosures given by [the child] was that she repeatedly named the father as a perpetrator, and in doing so made graphic demonstrations of highly sexualised behaviour in connection with him.
The primary judge, respectfully, was aware of the evidentiary difficulties. His Honour resolved these difficulties in the following paragraph, which was the focus of the appeal:
206.This is a case in which it may be said, as the Full Court held in Johnson & Page (supra), embracing the principles enunciated by Mr Fogarty, that the components which go to make up the conclusion of unacceptable risk cannot each be established on the balance of probabilities. Nonetheless I have reached a conclusion of unacceptable risk from the accumulation of factors, some only of which, are proved to that standard. I have reached this conclusion after a careful assessment of all the evidence and in light of the lengthy discussion in the preceding paragraphs of these reasons, as well as being fully aware my conclusion is at odds with the conclusions of [the single expert]. I have squarely kept in mind the “grave” and “haunting” consequences for [the child], referred to by Murphy J in Whitman & Burr (supra), of erroneously making a finding of no unacceptable risk. Although I have relied upon all the material discussed above, five factors especially, namely:
a)my adverse view of the father as a witness;
b)the father’s likely manipulative role in [the child’s] allegation about [Z];
c)[the child’s] serious behavioural problems generally, and her highly sexualised behaviour particularly, in front of the mother and others;
d)the mother’s identification of some of [the child’s] sexualised behaviour as almost identical to sexual actions of the father towards the mother while they were in a relationship; and
e)a reasonably consistent nomination of the father as a perpetrator.
seen against the background of all the allegations and disclosures of [the child], overall justify a conclusion that there may be in the future an unacceptable risk in the care of the father.
In short, the father submits that the primary judge did not explain how the five factors bore on the ultimate finding of unacceptable risk of harm to the child and the weight given to each. We also note that these findings did not include a discussion and weighing of each allegation which, as we have indicated, clearly arose.
The primary judge’s adverse view of the father as a witness
The primary judge found that the father was an unreliable witness whose evidence was to be approached with “considerable caution” (at [72]). Not all of the father’s evidence was to be rejected, however, “some of it [was] clearly suspect” (at [72]). As well as noting that the father had a “tendency to be protracted” in answers, the primary judge found that the father had an “implausibly precise recollection” and treated his answers “as an opportunity to advocate for his case” (at [61]).
However, three matters in particular led to the primary judge’s finding of the father as an unreliable witness:
·the father gave “inconsistent and unconvincing” answers as to whether he kept a diary in 2012 and what was recorded in it (at [67]);
·the father said that he recorded “stand out” events in his diary but did not record the child telling him that Z had touched her (at [69]); and
·in an interview with a caseworker from the Department of Communities and Justice in July or August 2017, the father deliberately and falsely insinuated that the mother had made similar allegations about previous partners (at ([70]).
His Honour does not say why the lack of credit on these issues, which were not central to the issues before the Court, bore upon the finding of unacceptable risk of harm to the child. We do not know what evidence of the father was not accepted. If it was his denials of any sexual impropriety, we do not know how that was weighed in the balance. Even if the father’s denials were rejected, the child’s allegations and what they meant remained to be considered.
In short, the primary judge’s reasons for judgment do not explain why this was relevant to his Honour’s ultimate determination and what weight was given to it.
The father’s likely manipulative role in the child’s allegation about Z
The primary judge’s finding as to the father’s likely manipulative role in relation to the child’s allegation about Z was made in the following paragraphs:
160.On 7 March 2017, [the child] attended a meeting with the [Child Abuse Squad in City H] however refused to be formally interviewed. Although [the child] refused to be interviewed, Exhibit “8” does record that during an informal “welfare discussion” with the caseworker, [the child] said “My Daddy told me to say that about [Z]” and later stated that at no time did [Z] hurt or touch her inappropriately. Exhibit “8” continues: “She [the child] stated that her father told her that she had to choose three of her favourite teachers at school and tell them that [Z] had done this”.
161.This evidence, which was not challenged, raises the possibility that the allegation about [Z] was generated by pressure from the father on [the child]. If taken at face value the evidence suggests possible inappropriate conduct by the father. I am not satisfied that [the child] suffered any inappropriate touching by [Z]. I consider it likely that the father instigated this allegation. Such instigation may have been an attempt by the father to divert attention, or it may have been a retaliatory measure against the earlier allegation made against [the paternal grandfather]. Whatever the motivation it demonstrates a degree of manipulation.
As can be seen, his Honour postulates alternatives as to why the father’s likely manipulation may have occurred. The first suggests a consciousness of guilt by a perpetrator attempting to divert attention from his own misbehaviour. The second has no such connotation and is merely very poor behaviour. One supports a finding of unacceptable risk of harm to the child, whilst the other does not bear upon it. It was accepted by counsel for the mother and counsel for the Independent Children’s Lawyer that his Honour did not identify which hypothesis made at [161] was taken into account.
The primary judge did not expand on this further so that when the father’s “likely manipulative role” in the allegation about Z is taken into account as a critical matter, the reasons for judgment do not identify the father’s behaviour and explain why it carried weight.
The child’s behavioural problems and highly sexualised behaviour, and the identification by the mother of that behaviour being identical to the father’s sexual actions towards the mother
It is convenient to deal with these matters which arise at [206(c)] and [206(d)] together.
We accept that the subject matter of this discussion is relevant and important. However, as we have observed, not all facts or allegations are equal.
For example, the child’s behaviour deteriorated in 2014. Whilst it is true that the child’s sexualised behaviour was first observed in 2016, the only allegation made that year by the child was against the paternal grandfather.
The single expert said that the child’s behaviour “[c]ould be consistent with her being abused” (Transcript 22 March 2019, p.33 line 8) but it was also consistent with other possibilities, which he indeed favoured.
However, the point is not to promote the single expert’s evidence but to highlight the obligation of the primary judge to explain which particular facts were taken into account and why it was those that supported his Honour’s findings. In doing so, the primary judge had to deal with the substantial body of evidence.
Was there a link between the child’s behaviour and the allegations that had been made by her? Was it consistent or inconsistent with them? Could the child’s behaviour be reasonably explained in a way that supported or did not support the likelihood that the allegations were based upon real events? There was no discussion which explained whether these issues were taken into account and, if so, how they would have supported the ultimate conclusion made by his Honour.
Some of the evidence demonstrated that allegations that had been made, including an allegation against the father, were wrong. The allegations against Z and the child’s two adult step-brothers were accepted by the primary judge to be wrong. Others were found to have been influenced by the questioning of the mother.
We do not know whether or how these matters were taken into account.
This was a case where the child’s allegations were confusing and varying in nature. A close analysis as to what each allegation actually meant, in the light of all of the evidence, including the other allegations, was required. Regrettably, there was none.
A reasonably consistent nomination of the father as a perpetrator
The father was frequently named by the child as a perpetrator. However, that included allegations accepted to be wrong.
As we have been at pains to point out, many issues arose for consideration in relation to many of the child’s allegations. More repetition of a complaint, does not itself necessarily establish veracity. Here, of course, the position was much more complicated than that. If the primary judge considered that there was a consistent set of allegations against the father, that consistency should have been identified and explained.
Conclusion and costs
For these reasons, the appeal must be allowed and the matter remitted for rehearing. Therefore, it is neither necessary nor desirable to deal with the remaining grounds of appeal (Boensch v Pascoe (2019) 375 ALR 15 at [7]–[8]).
The question then arises as to the fate of the orders made by the primary judge. The parties and the Independent Children’s Lawyer agreed that the existing orders should remain in place until the matter is listed before another judge of the Family Court of Australia. Accordingly, we shall set aside Orders 2–3 and 5–8 made on 27 September 2019 from the first mention of this matter before a judge or Senior Registrar of the Court.
No order was sought as to costs in the event that the appeal was allowed. It is appropriate to grant costs certificates pursuant to ss 6, 8 and 9 of the Federal Proceedings (Costs) Act1981 (Cth) to the parties and the Independent Children’s Lawyer for both the appeal and the rehearing.
Austin J
I respectfully disagree with the conclusion reached by Ainslie-Wallace and Aldridge JJ that the primary judge’s reasons were inadequate to explain the result at trial.
Central to the resolution of the parties’ dispute about whether or not, and if so how, the child could spend time with the father were the child’s multiple disclosures of the father interfering with her genitals in ways which were inconsistent with her ordinary hygienic or therapeutic care. If literally true, the child’s disclosures and accompanying demonstrations could only rationally be interpreted as reports of her sexual abuse by the father.
As the majority observes, numerous anomalies were exposed in the child’s allegations about the father, but the primary judge expressly acknowledged such anomalies “diminish[ed] their plausibility” (at [165], [173], [174], [184] and [200]). Moreover, as the primary judge observed, the child’s verbal allegations against the father could not be properly assessed in isolation from the demonstrations of her intimate physical encounters with him (at [201]).
As the primary judge correctly found (at [190] and [203]), the father did not dispute that the child actually did allege she was sexually abused by him to numerous different adults, including the mother, her school counsellor, and the investigating child welfare officers. Nor did the father dispute the evidence of how the child graphically demonstrated the manner in which she was sexually molested by him, which included spreading her legs and using her hand to touch or manipulate her genitals.
The absence of controversy over those underlying facts was succinctly settled during final submissions in this way:
HIS HONOUR: [Counsel for the father], as I understand your client’s case, he doesn’t challenge the disclosures were made by [the child] to her mother. Is that correct?
[COUNSEL FOR THE FATHER]: Well, he’s not in a – he doesn’t challenge.
(Transcript 28 May 2019, p.32 lines 27–30)
Rather than contesting such underlying facts, the father’s case was instead that the child’s representations about his sexual misconduct with her were fabricated by the child, the most likely explanation for which was the mother “coaching” the child to make them, though the argument was not developed during the trial to finesse what form her alleged “coaching” took.
During final submissions, when dealing with the allegation of the mother “coaching” the child, the father’s counsel vacillated between assertions of the mother simply lacking the insight to desist from the child’s interrogation and her “putting words in [the child’s] mouth”. His Honour was unsure precisely what the father’s counsel’s submissions were meant to convey, so asked directly about them in this fashion:
HIS HONOUR: Am I understanding your argument correctly, [counsel for the father]. You say that the mother prompted the child on a number of occasions.
[COUNSEL FOR THE FATHER]: Sorry, your Honour.
HIS HONOUR: You say that the mother prompted the child towards particular answers on certain occasions. Are you saying the mother coached the child or something else?
[COUNSEL FOR THE FATHER]: So, your Honour, the question was put to her in the witness box and [the mother’s] answer was interesting because it depended on the occasion. I asked her did she, you know, realise that it doesn’t exist – you understand the nature of a leading question. It’s sort of fairly common knowledge that if you ask leading questions you’re suggesting the answer. And we’re talking about dealing with a child. And that if you actually wanted – actually get to the whole criminal law is based around. You want to actually get to what really happened. You do your best not to contaminate the evidence but to find out what was really happening for [the child].
And [the mother], she’s [an educator] – many years … dealing with children. She’s running this [community organisation]. So my respectful submission is that the mother is capable of thinking about how she deals with [the child], relating to these kinds of allegations, not that the father is going to be vulnerable in the future to [the child] saying this because [the child] is older. She’s having counselling. She’s seeing [the child’s counsellor]. She’s doing well. Part of the tender bundle is school reports. [The child] is presenting – her school reports show that she’s doing well. When she’s interviewed on 30 May, as a result of all these allegations made by the mother, she’s happy, smiling. She presents well. [The single expert] said she doesn’t have the demeanour of an abused child.
HIS HONOUR: Well, I’m not sure what that means…
(Transcript 28 May 2019, p.29 line 44 to p.30 line 25)
As can be seen, his Honour could not get a straight answer to a simple question, so the exact nature of the father’s forensic attack upon the mother for “coaching” the child remained elusive and inchoate.
Although the father contended the child’s oral representations were “coached”, he made no attempt at all to explain how or why the child (who was then barely six years of age) would falsely demonstrate his sexualised interference with her genitals.
Faced with uncontroversial evidence about the nature of the child’s rather extraordinary statements and behaviour, the primary judge sought a reasonable explanation for just how it was that her statements and behaviour could be construed benignly. His Honour derived little assistance from the father, whose failure at the trial to come to grips with how the child’s revelations about him and her abnormal sexualised behaviour could be feasibly explained came to feature prominently in the primary judge’s eventual finding about the existence of an unacceptable risk of harm. The father’s conduct of the appeal in relation to the same issue was similarly opaque.
Upon formal investigation of the child’s allegations, the investigating authorities did not substantiate the allegations and so the father was not prosecuted. Of course, that did not mean the father was exonerated; only that the authorities did not consider the evidence was strong enough to warrant him being charged with any criminal offence. The authorities considered the mother’s “interrogation” of the child may have played a “very significant role” in the child’s disclosures. Picking up on the same theme, the single expert who was engaged in the proceedings before the primary judge opined the child was “very susceptible to leading questioning”. The father placed heavy emphasis on the conclusions of the investigating authorities and the opinion of the single expert to corroborate his denial of any sexual impropriety, but none of those considerations was overlooked by the primary judge (at [189]).
As the majority observes, it was open to the primary judge to reject such evidence. The question of unacceptable risk of harm is a question of fact, which is squarely the domain of the primary judge. The investigating authorities were only interested in whether the evidence would sustain a criminal conviction. Even if the single expert’s opinion evidence about such a discrete factual issue was able to carry some probative weight, having seen and heard the whole body of evidence tested at trial, his Honour was far better placed to make the factual finding. The single expert’s opinion evidence was not dispositive; just another piece in the puzzle (Albert & Plowman [2020] FamCAFC 23 at [15]–[38]).
The mother conducted the trial accepting the evidence was not strong enough to positively establish the father had sexually abused the child by reference to the civil standard of proof imported by s 140 of the Evidence Act 1995 (Cth). Instead, she conducted a case to the effect that the body of evidence adduced at trial was still sufficiently persuasive to establish the child was at unacceptable risk of sexual abuse by the father, which distinction the primary judge well understood (at [104], [111], [130], [196], [197] and [200]). His Honour referred to and applied the authoritative principles concerning findings of unacceptable risk of harm (M v M (1988) 166 CLR 69).
The eventual finding made by the primary judge about the unacceptable risk of harm to the child was expressed and explained essentially in these terms:
190.… This is uncontradicted evidence of what [the child] said to Police Officers and a [Department of Communities and Justice] caseworker. I accept that on balance the disclosures were made and the behaviour took place. Accordingly, these disclosures are highly concerning evidence of possible abuse of, and actual sexualised behaviour by, [the child].
…
201.However, in my view, while the disclosures and their implications pose questions which are very difficult to answer on the available evidence, they cannot be dismissed or ignored, especially in light of the highly sexualised behaviour exhibited by [the child].
202.After carefully weighing the evidence I conclude that a case of unacceptable risk has been established to the requisite standard. This is a conclusion of some magnitude for the father.
203.In stating my conclusion concerning the question of unacceptable risk of harm, I accept that [the child’s] disclosures were generally marked by numerous inconsistencies. I accept that [the child] may have been induced by the mother on specific occasions to make disclosures and she may have embellished her disclosures to say what she thought the mother wanted to hear. I accept that the force of any disclosures by [the child] was diminished by her record of fanciful or untruthful statements. I accept [the single expert] did not believe [the child] had been sexually abused. Nonetheless, these observations serve to highlight that a central element of consistency in the various disclosures given by [the child] was that she repeatedly named the father as a perpetrator, and in doing so made graphic demonstrations of highly sexualised behaviour in connection with him.
…
205.I also take account of the evidence, discussed further below under s 60CC(3)(b) that the father appears to have better and more intuitive parenting skills than the mother, and [the child’s] attachment to him show more features of security and she seems relatively free of anxiety in his care… I accept the warmer relationship between [the child] and the father does not rule out the occurrence of abuse, and, logically, nor does it rule out future risk.
206.This is a case in which it may be said, as the Full Court held in Johnson & Page (supra), embracing the principles enunciated by Mr Fogarty, that the components which go to make up the conclusion of unacceptable risk cannot each be established on the balance of probabilities. Nonetheless I have reached a conclusion of unacceptable risk from the accumulation of factors, some only of which, are proved to that standard. I have reached this conclusion after a careful assessment of all the evidence and in light of the lengthy discussion in the preceding paragraphs of these reasons, as well as being fully aware my conclusion is at odds with the conclusions of [the single expert]. I have squarely kept in mind the “grave” and “haunting” consequences for [the child], referred to by Murphy J in Whitman & Burr (supra), of erroneously making a finding of no unacceptable risk. Although I have relied upon all the material discussed above, five factors especially, namely:
a)my adverse view of the father as a witness;
b)the father’s likely manipulative role in [the child’s] allegation about [Z];
c)[the child’s] serious behavioural problems generally, and her highly sexualised behaviour particularly, in front of the mother and others;
d)the mother’s identification of some of [the child’s] sexualised behaviour as almost identical to sexual actions of the father towards the mother while they were in a relationship; and
e)a reasonably consistent nomination of the father as a perpetrator
seen against the background of all the allegations and disclosures of [the child], overall justify a conclusion that there may be in the future an unacceptable risk in the care of the father.
207.I am not satisfied that the plain deficiencies in much of the evidence originating from [the child] herself or the other available evidence in the case, including negative aspects of the mother’s parenting, discussed under s 60CC(3)(b), either neutralise the force of this conclusion or otherwise weigh more in favour of a finding that there is no unacceptable risk. My conclusion is not altered by the father’s strong denials of the allegations about him. Although, in light of my general view of the father as an unreliable witness, there is reason to disregard the father’s denials, I have nonetheless taken them into account.
208.I am also acutely conscious that the father will be offended by my conclusions. He may believe he has been treated unjustly. However, this does not detract from the reality that his daughter has made him the object of serious allegations with some consistency, and also, I emphasise, seems to believe he has abused her. Nor more importantly, does any response of the father change the fact that the impact of the Court’s orders on the father is subservient to the best interests of [the child], as the paramount consideration.
209.In addition, I take account of the argument of the mother that whatever the truth of the allegations by [the child], she has demonstrated a consistent pattern in making them. The mother argued that this propensity to make allegations is itself a source of risk. I agree. She argued that if [the child] makes further disclosures nominating her father, in the absence of supervision, the result would be further investigations, and further interviews of [the child]. None of this would be in [the child’s] best interests, especially in light of range of her problems identified by [the single expert]. Although the evidence makes a definitive conclusion impossible, the present case appears to involve a situation of the father being a person “whom the child believes to have sexually abused her” and here, as elsewhere in these reasons in relation to disclosures, I am called upon to assess and evaluate the likelihood or possibility of events or occurrences which if they come about, will have a detrimental impact on the child’s welfare: M & M (supra) at 77, [24].
(As per the original)
As can be seen, the primary judge took into account and synthesised all of the countervailing features of the evidence which both parties emphasised as being important.
From the father’s point of view, his Honour took into account: the child’s disclosures of sexual abuse were generally marked by numerous inconsistencies; the child may have been induced on specific occasions to either make or embellish allegations against the father; the child had a record of fanciful or untruthful statements; the single expert considered it improbable the child had been sexually abused; and the father’s strong denials of the allegations.
From the mother’s point of view, his Honour took into account: the concerning nature of the child’s disclosures of sexual abuse by the father; the concerning nature of her graphic physical demonstrations of the alleged sexual abuse; the mother’s perception and description of the similarity between her own past experience of the father’s sexual techniques and the form of the father’s sexual abuse which was demonstrated by the child; the sexualised behaviour of the child with other children; the child repeatedly naming the father as a perpetrator; and the father’s comparative lack of credit as a witness.
When those evidentiary features were considered in aggregation, his Honour was persuaded to find the father did pose an unacceptable risk of harm to the child. The father’s attack in the appeal, which focussed primarily if not exclusively upon the content of the reasons contained within [206], was too narrow to do the reasons overall justice.
Although the appeal entails many grounds, save in one respect (Ground 19), it was not alleged that the primary judge failed to take into account an important piece of evidence in reaching that finding. The gist of the father’s appeal is just that the primary judge reached the wrong conclusion on the available evidence and failed to adequately explain it. But Ground 19 has no bearing at all upon that contention because it asserts the primary judge erred by failing to take into account “issues of credit in relation to the mother”. The mother’s credibility as a witness was quite immaterial to the issue of whether the father posed an unacceptable risk of harm to the child because her factual evidence of what the child did and said to implicate the father in sexual impropriety was completely uncontroversial. Only the credibility of the father was relevant, because it bore upon the reliability of his denial of the sexual abuse allegations.
The High Court of Australia has said that the appellate scrutiny of a primary judge’s reasons should not be “overly critical, or pernickety” when the judgment under consideration, like this one, involves a “large element of judgment…and intuition” (AMS v AIF (1999) 199 CLR 160 at [150]; U v U (2002) 211 CLR 238 at [117]). Perceptions, predictions and intuition are all liable to play a real part in decisions of the type required of the primary judge (CDJ v VAJ (1998) 197 CLR 172 at 218, 236–237). Even in other jurisdictions, it has been authoritatively said that reasons for judgment “may partake as much of intuition based on experience as on formal and deductive reasoning” (Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160, 171, 182-183; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 274).
The required content and detail of reasons for judgment varies according to the nature of the jurisdiction being exercised and the particular matter which is the subject of the decision. There is no one universal standard. At one extreme, reasons for judgment will not be inadequate merely because they fail to undertake a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. At the other extreme, reasons will often be inadequate if the judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, and their significance to the course of the trial (DL v The Queen (2018) 266 CLR 1 at [32]-[33]). However, several propositions are beyond reproach: no judicial reasons can ever state all of the pertinent factors, nor can they express every feature of the evidence which causes a judge to prefer one conclusion over another (Fox v Percy (2003) 214 CLR 118 at [41]), nor is it necessary for the reasons to mention every fact or argument relied upon by the aggrieved party in relation to an issue in contest (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]).
Fitzwater v Fitzwater is neither influential nor determinative of this particular ground of appeal about the sufficiency of reasons. Nothing said in that case, either by the majority or the dissentient, qualifies or detracts from the High Court’s binding statements of the law about findings of unacceptable risk of harm (M v M), the undesirability of undue fastidiousness when evaluating reasons given for discretionary decisions under the Family Law Act 1975 (Cth) (CDJ v VAJ, AMS v AIF and U v U), or the sufficiency of reasons for judgment more generally (DL v The Queen, Fox v Percy and Whisprun Pty Ltd v Dixon).
In this instance, the reasons for judgment coherently and transparently explain the resolution of the prime issue and how it affected the outcome embodied in the appealed orders. His Honour correctly recorded that the dispute over whether the father posed an unacceptable risk of harm to the child was critical to the outcome (at [3], [37], [104], [111] and [130]), evaluated the evidence concerning that specific issue (at [162]-[183]), explained the ultimate finding to resolve the issue (at [184]-[209]), then explained the manner in which the finding influenced the form of the appealed orders (at [262]-[270]).
That the primary judge could have spent more words dissecting and discussing the shortcomings of the child’s verbal allegations, as but one aspect of the evidence bearing upon the critical issue, does not rob his Honour’s reasons of overall sufficiency. In my view, the path by which the primary judge reached the conclusion about the existence of the unacceptable risk of harm posed to the child by the father and how that conclusion consequentially influenced the orders was reasonably clear and so the ground of appeal challenging the sufficiency of reasons should be rejected. Although it may be trite to observe, it is quite immaterial to this ground of appeal that another judge might have reached a different conclusion on the same body of evidence.
It is unnecessary for me to consider any of the other grounds of appeal in view of the majority decision to remit the proceedings for rehearing due to the error of law manifest from the insufficiency of reasons.
I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Austin JJ) delivered on 23 October 2020.
Associate:
Date: 23 October 2020
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