Young and Young
[2007] FMCAfam 615
•17 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| YOUNG & YOUNG | [2007] FMCAfam 615 |
| FAMILY LAW – Parenting Orders – interim – allegations of sexual abuse – father’s time to be supervised or no time at all? |
| Family Law Act 1975, ss.60CC, 69ZT, 69ZV, 100A |
| Goode & Goode (2006) FLC 93-286 Re W (Sex Abuse: Standard of Proof) FLC 93-192 Vasser & Taylor-Black [2007] FamCA 547 W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892 WK v SR (1997) FLC 92-787 |
| Applicant: | MR YOUNG |
| Respondent: | MS YOUNG |
| File Number: | WOC296 of 2007 |
| Judgment of: | Altobelli FM |
| Hearing date: | 20 July 2007 |
| Date of Last Submission: | 20 July 2007 |
| Delivered at: | Wollongong |
| Delivered on: | 17 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms O’Donnell |
| Solicitors for the Applicant: | Legal Aid Commission of New South Wales |
| Counsel for the Respondent: | Ms Bailey |
| Solicitors for the Respondent: | Heard McEwan Lawyers |
| Counsel for the Independent Children’s Lawyer: | Ms Volk |
| Solicitors for the Independent Children’s Lawyer: | Williamson Isabella |
ORDERS
That, pending further Order, the children are to live with the mother.
That the children S (born in 2000) and K (born in 2003) are to spend time with the father as follows:-
(a)For two (2) hours each week at such times and on such dates as are nominated by the [X] Contact Service (‘the Service’), with such visits to take place at the Service in Wollongong, with the parents to take the first supervised visit times available at the Service in Wollongong, and with such visits to be supervised by staff members of the Service.
(b)At such other times as are mutually agreed to between the parents.
For the purposes of Order 2 above:-
(a)The parents, who the Court notes are currently on the waiting list for supervised visits at the Service, are to do all acts and things necessary to ensure that they remain on the waiting list for supervised visits at the Service until a place becomes available.
(b)The parents are to consider participating in any course, programme and/or counselling session(s) nominated or suggested by staff at the Service in the lead-up to the commencement of the supervised visits between the father and the children and also during the period of time that the supervised visits take place.
That the parents are each to ensure that the other parent is kept informed as soon as is reasonably practicable of:-
(a)any serious medical problems or illness suffered by the children;
(b)any medication that has been prescribed for the children that needs to be taken during the time the children are with the other parent;
(c)any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
(d)any social, school or religious functions which the children are to attend;
(e)the telephone contact number of the parent;
(f)any other matter relevant to the welfare of the children.
That each of the parents are to provide full particulars of any medical practitioner, health service provider or institution attended by the children and provide any authority or direction necessary to enable the other parent to obtain all necessary information concerning the children.
That each of the parents are to be permitted to liaise directly with the children’s school(s) and sporting bodies to obtain any necessary information about the children’s progress and that both parents are to authorise the school(s) and sporting bodies to facilitate this.
That both parents are to provide the necessary authorities to the Principal of each school attended by the children to ensure that the school forwards to both parents copies of the children’s school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.
That the father is to refrain from making critical or derogatory remarks about the mother or members of her family in the presence or within the hearing of either of the children and that the father is to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the mother or members of her family in the presence or within the hearing of either of the children.
That the mother is to refrain from making critical or derogatory remarks about the father or members of his family in the presence or within the hearing of either of the children and that the mother is to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the father or other members of his family in the presence or within the hearing of either of the children.
That both parents are to refrain from discussing these proceedings with either of the children or with any person in the presence or within the hearing of either of the children.
That both parents are to be restrained from removing the children from the State of New South Wales, or from allowing another person to remove the children from the State of New South Wales, without the prior consent of the other parent, and that in the event that such consent is given, the parent removing or allowing another person to remove the children from the State is to provide to the other parent full travel particulars including but not limited to departure and return dates, and accommodation contact details.
Both parents to do all things possible to ensure the children continue to attend at [U], Wollongong Sexual Assault Service. Both parents are restrained from causing the children to see any other health professional in relation to issues raised in these proceedings, other than Dr Quadrio, or as permitted by the Independent Children’s Lawyer or the Court.
Except as provided for in these Orders the Father is to have no other contact or communication with the Children.
Leave is granted to relist the matter on seven (7) days notice.
The matter be adjourned to 5 March 2008 at 10.00am for a two day final hearing.
The Applicant pay the hearing fee or obtain a waiver of that fee by no later than 5 February 2008.
Each party file and serve any affidavits on which they intend to rely by no later than 5 February 2008.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which the party will rely at hearing; and
(b)The Orders sought at hearing.
IT IS NOTED that publication of this judgment under the pseudonym Young & Young is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
WOC296 of 2007
| MR YOUNG |
Applicant
And
| MS YOUNG |
Respondent
REASONS FOR JUDGMENT
Introduction
S was born in 2000 and is seven years old. His sister K was born in 2003 and is four years old. Mr Young is the father of the children and he has filed the application that brings this matter before me. Specifically, on the day when the interim hearing was dealt with by me in Wollongong on 20 July 2007, the father sought interim orders for him to spend time with the children, in a carefully structured fashion and on the basis that that time is supervised. The children's mother,
Ms Young, seeks orders on an interim basis for sole parental responsibility, that the children live with her and that the father be restrained from contacting the children in any way.
This is a complex, difficult case. There is clear evidence that the children have made disclosures of abuse, both physical and sexual. Those disclosures implicate the father. The disclosures by the children were made to a number of people, including various professionals with whom they were brought into contact as a result of the disclosures. Of course, I am not in a position at an interim hearing to make any findings about whether the allegations, the subject of the disclosures, are true or not. The Department of Community Services is involved. JIRT was previously involved, but is no longer involved. The children continue to receive counselling arising out of the disclosures they have made.
An independent children's lawyer has been appointed, and on 20 July 2007 an order was made appointing Dr Carolyn Quadrio to be the single expert, to prepare a report for the benefit of the Court and to specifically consider the matters that are stated in the order. I note that Dr Quadrio was specifically asked to consider whether the children are at risk of being exposed to any physical or psychological harm from being subject to or exposed to abuse, neglect or family violence. All the parties agree that I should defer making orders for parental responsibility.
Issues
There is really only one issue that I need to decide – should the children have supervised time with their father (as the father and independent children's lawyer propose), or should the father be restrained from having any contact with the children at all (as proposed by the mother)?
As indicated above, the mother's position is that there should be no contact between the father and the children. I also understood it to be her alternative position that if I was to make an order for the children to spend time with their father, it would be at a supervised contact centre operated by Centacare in Wollongong. The father's position, and that of the Independent Children's Lawyer's, is that if time is ordered it should be for two hours per week at that centre.
Background
It is common ground that separation took place in February 2006, and that the father has not spent time with the children since March 2006. Accordingly, even if there were not issues about abuse, the manner in which the children were reintroduced to time with their father would need to be carefully managed and structured. In many ways the orders sought by the father reflects careful consideration to how this would be done.
In March 2006 apparently the parties attended a Legal Aid case conference at which agreement was reached for the father to spend time with the children each alternate weekend, and one extra afternoon per week. He was also required to attend an anger management course. Whilst some of the mother's concerns, and the children's disclosures, relate to abuse other than sexual abuse, it seems that all, if not most of the allegations of sexual abuse, arose after March 2006. The JIRT team conducted an investigation, but in effect closed their file in January 2007.
Submissions
The allegations are very serious, and it is to the credit of both the father and his legal representatives that they adopted a very realistic stance in the interim proceedings, by only seeking time with the children two hours once a week, at a supervised contact centre.
From the father's perspective, these allegations are strenuously denied, and the substance of the submissions made on his behalf by
Ms O'Donnell, his solicitor, is that the timing of these disclosures, some inconsistencies in relation to them, and the fact that the JIRT investigation has been discontinued, all indicate that whilst the children made disclosures there is little substance to them. Having regard to that, the most appropriate way of dealing with the matter is to have short periods of supervised time in the highly structured and monitored environment of a supervised contact centre, whilst the children continued to be supported in their counselling.
As indicated above, the independent children's lawyer supported the father in this regard.
On behalf of the mother, Ms Bailey emphasised the seriousness of the allegation and the mother's genuine belief in relation to the need to protect the children.
Evidence
In the very substantial quantity of subpoenaed documents to which I was referred, Ms Bailey puts particular emphasis on two letters from the South-Eastern Area Illawarra Health Service. The first letter is dated 27 April 2007, and it is signed by Ms R, a social worker, working at [U], the Wollongong Sexual Assault Service. The letter refers to the child S having been referred to the service on 22 March 2007, that S had made certain disclosures to Ms R. The final two paragraphs of this letter are particularly important in this context:-
"For children, like S, to recover from a traumatic event, they require ongoing safety and stability in their life. To reap the benefits of therapy, children require ongoing safety from the person who has hurt them. Otherwise these children, are unable to discuss their feelings, fears and worries about the trauma they have experienced, and the subsequent difficulties they are experiencing in their life.
In my opinion, it would be imperative for S's long term recovery from trauma, for his ongoing safety and to help him reduce his fears, that S (and his mother and sister) not have any contact with Mr Young. I believe an apprehended violence order (AVO) will assist them, in this respect."
The second letter relied on by Ms Bailey on behalf of the mother is a similar letter dated 3 May 2007 in relation to K. This one is signed by Ms C, senior clinical psychologist at [U]. The final paragraph of the letter provides as follows:-
In my opinion, it is extremely important for K's ongoing sense of safety and ability to recover from her sexual abuse that she and her brother not have any contact with Mr Young. It is extremely difficult for the children to discuss their fears, feelings and worries about their sexual abuse in counselling if they know that they have to have contact with the offender. I believe that an apprehended violence order is an important requisite for these children and their mother to be able to re-establish a sense of safety and to make necessary progress in their counselling."
Both of these letters have emphasised the importance to the children from the perspective of recovering from their trauma, not to have contact with their father. Both of the letters were clearly written in the context of supporting an application for an apprehended violence order. Neither of the letters contemplated that the children would have contact with their father in the highly structured context of the supervised contact centre where (all parties acknowledged) the interaction between the children and their father would be carefully monitored, recorded, and then the subject of a report. Indeed, Ms Volk, the independent children's lawyer, submitted that even though [U] had expressed the views articulated in the letters, they had indicated that they would be continued to support the children with counselling, even if an order for supervised time were made.
Allegations of sexual abuse: the applicable law
A comprehensive statement of the applicable law in these difficult cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] Fam CA 892; (2005) FLC 93-235; (2005) 34 Fam LR 129, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 C.L.R. 336 at p. 362. There Dixon J. said:
‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.
In WK v SR (1997) FLC 92-787, 22 FamLR 592 the Full Court emphasised the standard of proof that applies in these cases at para 47:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, FLC 93-192, in referring to WK v SR the Full Court observed at paras 18 and 19:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. 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 be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras 38 and 39:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.
45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.
It is frequently the case that allegations of sexual abuse are raised in interim proceedings. Wherever possible it is important for the evidence of the protagonists, usually but not always parents, to be tested by cross-examination in some limited fashion. This enables the Court to form an impression, albeit only an impression, about the veracity of the claims made and of the character of the parents. Notwithstanding this, a Court should be wary about making findings of credit after only an abbreviated hearing.
Often it will not be possible to test the evidence in interim proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings:
At paragraph 5 of her written submissions counsel for the independent children’s lawyer, having earlier referred to the test set out in M and M (supra) namely, “the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”, submitted:
When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent. In order to weigh the competing risks, the court should analyse what the risk is. To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk. (paragraph 5).
It should also be remembered that Division 12A of Part VII of the Act applies as much to proceedings involving these serious allegations as it does to other child-related proceedings. In each case consideration needs to be given as to whether s.69ZT(3) should be invoked, thus reinstating the application of certain provisions of the Evidence Act 1995, in whole or in part, as regards an issue in the proceedings. The Court needs to give consideration to this, whether or not it is raised by the parties, but the Court also needs to have regard to the need to protect the child from harm, as well as protect the rights of those against whom serious allegations are directed. The Court must also not lose sight of the fact that even though s.100A of the Act has been repealed thus potentially excluding evidence of disclosures made by children if s.69ZT(3) is invoked, s.69ZV seems to be intended to, in effect, reinstate s.100A.
Application of the Law
In her submissions to me, Ms Volk correctly identified the legal dilemma that is presented in this case - how to balance the primary considerations set out in s.60CC(2) when they potentially conflict with each other? In other words, how to make an order that ensures that the children do have a meaningful relationship with their father, whilst protecting them from the risk of harm? The risk of course, is the risk of further abuse, and the risk of further allegations of abuse.
Ms Volk emphasised that from her perspective as Independent Children's Lawyer, there was no criticism at this stage of how the mother had responded to the disclosures made by the children, but the fact remained that these allegations were untested. She was of the view that provided the children continued to be supported by way of counselling from [U], a supervised time arrangement would protect the children. Also, having regard to the length of time since K last spent time with her father, there was the risk that she would not even remember him, and thus the process of reintroduction needed to occur in the supervised and supported environment that was being proposed. On balance, Ms Volk submitted, the order for supervised time was in the children's best interests.
I agree with the submissions of Ms Volk. The children can never have a meaningful relationship with their father unless they spend some time with him. I am satisfied that an order for supervised time at a supervised contact centre is the best way of trying to provide the opportunity for a meaningful relationship between the children and their father whilst protecting them from harm. In the closely monitored environment of a supervised contact centre, if the children are not coping I am satisfied (as are all the parties) that the supervising staff will intervene. In any event, the children will continue to be supported by [U].
Accordingly, I will make an order that the parties do all things necessary to utilise the facilities at the [X] Contact Service in Wollongong as soon as possible. The children should spend time with their father for two hours each week at the time and on the date that can be supervised through the said centre. I will give leave to restore on 48 hours notice should it be necessary to reassess how the children are progressing in that environment.
Pending further order of the Court, it is appropriate to make an order that the children live with their mother, a position that is not opposed to by the father.
Having regard to the complexities of this case, the length of time since the children have had anything to do with their father, the serious allegations raised, and the fears that the mother has of the father, I will not make any other orders for contact or communication between the father, and the mother and children. The only exception to this is that I make orders that require the mother to keep the father informed of issues relating to the children, in terms of orders 9 and 10 of the orders sought by the father. There is no reason for the father not to obtain information about the children's progress directly from the school, and accordingly I make orders 11 and 12. For the time being, however, it is not appropriate for the father to actually attend events involving the children.
Orders 14, 15 and 16 proposed on behalf of the father contain restraints about discussing these proceedings, or making critical or derogatory comments. Order 16 refers to the children being removed from New South Wales. I make orders in these terms, and further restrain the mother from discussing these proceedings with the children, or indeed from discussing these proceedings, or any aspect of them, with any other person. The allegations against the father are serious, but they are untested.
I also make an order, the effect of which is that the children continue to receive the counselling that they are currently receiving from [U] at Wollongong, but apart from that support, and apart from the children's involvement in the preparation of the expert's report by Dr Quadrio, they should not be taken to any other professional person in the context of the allegations arising out of this case unless both parents and the Independent Children's Lawyer agree.
I also make orders setting this matter down for hearing at the earliest possible time.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Altobelli FM
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