Did it happen? Family Law Courts and allegations of child sexual abuse

Did it happen? Family Law Courts and allegations of child sexual abuse

This is a paper I recently presented for Australia’s CEO Challenge

1. Introduction

In terms of a legal response, child abuse, especially child sexual abuse, can be a very difficult matter for the Family Court of Australia or the Federal Magistrates Court of Australia to determine. I will be referring in this paper to both courts as the Family Law Courts. In this paper I will be focusing on child sexual abuse.

2. Why?

Child sexual abuse has a number of taboos.

Most, if not all, people know that it is immoral, improper and against the law to sexually abuse a child. It is, except in some subcultures within our society, considered to be a shameful act and for the perpetrator, if discovered, the removal of the object of his or her pleasure, the child, there is always the consequences of discovery. It is therefore a secret.

How often have we seen perpetrators threaten their victims with punishment or retaliation if discovered, to emphasis to the victim the secrecy of the encounter?

Because it is a secret act and is therefore often capable of being denied, it is therefore easier for the perpetrator to deny the existence of any such child abuse.

B. Children as Part of Families

Child abuse allegations in the Family Law Courts, as one would expect, typically involve members of family, whether extended or nuclear. From my experience, it is very rare indeed for allegations to be made in the Family Law Courts of non-familial child abuse.

Children by their nature are younger, more impressionable about the world, more naïve, less cognitively developed than adults, loving of the adults in their lives and therefore as a general rule more vulnerable to being sexually abused than adults.

In terms of issue of proof of the allegations, often the most difficult cases to deal with involve the youngest children (i.e. preschool and younger), simply because they are considered to be more impressionable, less cognitively developed and less accurate therefore in their recollection of events.

Because the alleged perpetrator in these cases is a member of the family, then the chances of a child making full disclosure of being sexually abused one would expect to be considerably lower than if the child had been sexually abused by a stranger.

Correlation of Domestic Violence and Sexual Abuse
There is ample research, both in Australia and overseas of a high correlation between these two issues. What I have seen regularly is that when allegations of sexual abuse are made then commonly (though not always) they are made in the circumstances of allegations of domestic violence also being made; in circumstances where it is alleged in effect that there are multiple abuses occurring. Because of these circumstances of multiple abuses and domestic violence, at times this can cause even greater difficulty in determining the truth or otherwise of the sexual abuse. It is important in considering the issue of child sexual abuse not to deal with it solely in isolation, as often happens, but in the context of issues of other abuse, family violence or neglect

Typically the alleged perpetrator will deny the allegations of sexual abuse and family violence. Sometimes the alleged perpetrator will admit but in a minimal form that family violence has occurred and usually denies abuse allegations relating to the children.

Physical/Other Proof
All too often, as one only has to attend a District Court on a daily or almost daily basis, it would appear that the most common form of child sexual abuse is what is called in Queensland “indecent dealing”, i.e. touching, groping, feeling, without penetrative acts.

So far as penetrative acts on children of the anus and vagina are concerned, (from what I have seen of experts giving evidence) ordinarily these are easily able to corroborated medically.

The difficulty comes when penetrative acts of the anus and vagina are not alleged. Justice Fogarty (albeit in a dissenting judgement) in N and S and the Separate Representative (1996) FLC 92-655 gave a long but useful discussion about sexual abuse matters. At page 82,709 and 82,710 his Honour states:

“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.

(His Honour then goes on to cite statistics and comparative overseas cases …)

Courts must be aware that the occurrence of sexual abuse is not confined to certain socio-economic groups, and that its perpetrators are not easily identifiable. Experience shows that there is nothing incongruous about a sexual abuser being otherwise widely respected and admired by his or her peers or community … It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often flow 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 a most serious denial of their rights to personal growth and development. Its effects, both in the short and long term, can be devastating … where a child has been sexually abused by a parent, that fact will have an enormous impact on any decision that must be made by a Court regarding the welfare of that child, and involving the parents. However, in reality, there are only a limited number of cases in which a Court will be able to say with certainty that the allegations of sexual abuse are true. Most fall within … “the grey area in which a confident conclusion cannot be reached either way”. Often there will be limited evidence of the sort which those in the legal profession are accustomed to recognising as prohibitive of the occurrence of an event. The secrecy which usually surrounds sexual abuse, the nature of the offences which it involves, and the nature of the relationship between the perpetrator and the child all militate against the furnishing of the type of evidence with which lawyers like to work. Of course, the lack of that type of evidence may say less about whether an alleged event did or did not occur than it says about the appropriateness of the legal concepts used to test the allegations, especially in the context of a case which centres on the welfare of the child.”

In SvS [1993] NZFLR 657 at P.659 Justice Thomas of the New Zealand High Court (referred to in N and S and the Separate Representative) stated:

“Allegation in custody and access cases where a child has been sexually abused are not uncommon. They pose an acute problem for the Courts simply because of the difficulty of determining whether the sexual abuse has taken place. This is particularly so in the case of preschool children. Such children are not likely to be able to provide a coherent account of what, if anything has happened. In the result, the allegations frequently are neither conclusively proved nor disproved.

In the state of uncertainty which results, it would be easy for the Courts to find that the allegations of sexual abuse have not been established to the requisite standard of proof and dismiss them from contention. But to make that finding and no more may result in the child being exposed to an unacceptable risk of being sexually abused while in custody or during access visits. Having regard to the fact that the child’s welfare is the first and paramount consideration to be taken into account by the Courts that risk clearly cannot be accepted. The ordinary evidential rules governing the proof of matter in issue in civil cases can be seen at once to be appropriate.”

The Court’s dilemma was graphically described by Hardie Boys J in Gooch v Gooch (High Court, Christchurch M156/82, 22nd April 1983). The Learned Judge said (at p28):

“It would of course be a terrible thing for the children if I were to entirely reject their allegations and order their lives on the basis that there was no substance in them and yet in fact for them to be true.”

At page 660 Justice Thomas continued:

“The immaturity of the child is not the only problem in cases such as this. Difficulties also arise because the allegations were made in the context of a custody or access dispute. Generally speaking and it is the case here, the mother who suspects the child is being sexually abused voices her concern and reports the perceived disclosures that have been made to her by the child to the authorities and the Family Court. Her account is at once seen as ‘allegations’ or an ‘accusation’ of sexual abuse and her motives are viewed with suspicion. It is suspected that she is seeking to discredit the father and so advance her claim to custody or to restrict the father’s access. Her credibility is put squarely in issue. Although the mother may do no more than report the unusual behaviour she has witnessed in her child and the perceived disclosures which the child made to her, the somewhat dated aphorism that such allegations are easily made and difficult to refute may still prevail.

The matter is somewhat more complex. The reality is that child sexual abuse is often as difficult to prove as it is difficult to refute. Studies have explored the reasons why allegations of sexual abuse tend to surface in the context of custody or access dispute … at the same time it must be borne in mind that false allegations or total fabrications of child sexual abuse are regarded by many experienced child psychologists and psychiatrists as being somewhat rare … This does not mean, of course, that allegations of sexual abuse are to be approached on the basis that they are true or likely to be true. Indeed, it is recognised that a relatively small but significant percentage are likely to be false. The pint merely serves to demonstrate the difficulty of reaching a firm conclusion as to whether sexual abuse has or has not occurred and the necessity to proceed with great care and caution before finding that such allegations have been established or finding that they are without foundation. The Court’s concern must be to adopt an approach which will be just and which will place the welfare of the child ahead of all other considerations.”

As Justice Fogarty went on to say in N and S and the Separate Representative (1996) at p.82,711:

“(C)ourts 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.

Those latter factors give rise to concerns about the ‘rights’ of the parent and the suggestion that allegations of sexual abuse only have to be made for those rights to be lost or unfairly compromised. The Courts have to be vigilant about this, but in the ultimate the only issue is the welfare and protection of the child.

The overall problem is accentuated by the circumstance that, in general, lawyers and judges do not have a specialist understanding of the intricacies of child psychology and development. In addition, these cases must ultimately be conducted within a legal framework with resort to familiar legal terms, concepts and attitudes. That the fact that the concept of justice thus involved is inexplicably linked with those legal concepts and attitudes represents a problem in cases of this type which is difficult to articulate or compensate for.

On the other side of the equation the great benefits that can be enjoyed by children through contact with both parents, a healthy parent-child relationship can bring to a child a unique richness and warmth of experience which is vitally important to the child’s future development. The forced severing of ties between a child and a non- abusive, loving parent can have profound effects.

This is where the dilemma arises. Does one take the step of terminating or limiting that relationship where one does not know whether the alleged events took place? And how does one sufficiently account for the fact that because of the nature of the offence any real degree of certainty may be impossible to achieve, and that in any event, the ultimate determinate is the welfare of the child?”

Carmody J said in Murphy and Murphy [2007] FamCA 795 at [141 – 142]:

“An assertion that a child has been abused, whether it is true of not, may be relevant in different ways in parenting proceedings. If it is, or might be true, then it may be necessary for the court to make an order that will protect the child against the risk of further abuse. The court may also want to make orders designed to help the child recover from the consequences of the abuse. If the allegation is false it might nevertheless be pertinent. The fact that a person has made a false allegation might itself be significant in assessing the suitability of that person to raise a child. It can indicate a high level of hostility, or a willingness to use the child as a weapon against the other parent. It could, in some circumstances, reflect delusional thinking or even mental illness. Depending on the circumstances the court may reasonably feel that it should not make an order in favour of a mother who has made false allegations of abuse, or it might even reverse existing arrangements so as to preserve the child’s relationship with the innocent father and protect him or her from the mother’s bad influence …

“The ultimate judicial responsibility in family litigation is to make a parenting order in the child’s best interests which is another way of saying not to expose a child to an unacceptable risk of abuse or other relevant harm. The central focus of discretion to make best interest based orders is on the assessment of risk of harm in the future more that the investigation of the past sex abuse issue. The resolution of that issue is a ‘subservient and ancillary’ one.”

Carmody J stated at [144]:

“[C]hild sex abuse is one of the most vexed issues in family litigation. A wrong decision, either way, can have serious deleterious and long lasting consequences for all concerned. If it is true, but wrongly rejected by the court, there is a risk of systems as well as further physical abuse of the child. If it is false but mistakenly accepted by the court as true, the child may not only be denied a valuable relationship with a parent or other person, but may even be placed in the care of the least appropriate party.

Sexual activity recounted by very young children is often assumed to reflect knowledge acquired not from imagination but from first hand experience because, they could not have invented such accurate descriptions. Thus, in most cases, if an intelligent child of this age makes an allegation of sexual abuse then, in the absence of finding that he/she has been coached or is acting maliciously, it would be rare for a judge to make a negative finding even though he or she could not make a positive finding that abuse has definitely occurred either.

The dreaded accusation can be, but is not always, easier to make than refute. On their face, incriminating disclosures of young children about a trusted adult might sound dubious, but, then again, so to does the very idea of child sex abuse. Regrettably, the statistics and reported cases show that sometimes adults do just that.

However, it is not unheard of for parents in the heat of litigation to make damaging claims (and counter claims) against each other. The making of the allegation may be a deceptive strategy for achieving perceived forensic advantages. It may – and often will – be true that so called disclosures and related behaviours can be misrepresented, misreported, misconstrued, misunderstood, misleading or mistaken especially when there is already heightened and a climate of mutual suspicion. Innocent explanations may not be as fully investigated as they might be because emotions quickly take over.

While a sudden onset of abuse following a parental break-up may strike many as unlikely, separation may, in a particular case, provide the necessary conditions for either or both abuse and delayed disclosure. Children’s accounts of experiences might be influenced to some extent by their involvement in the processes of family disintegration and reorganisation. This is a much more common reason for an abuse allegation to be made than deliberate falsification by the parent and/or the child. But it may also give rise to recriminations which did not previously exist.

It is possible, to, that under the stress and strains of family break-up a parent may tend to draw the worst inferences from behaviours or situations which would otherwise pass without comment.

Thus, care is needed to ensure that symptoms caused by other problems are not mistakenly put down to alleged abuse. No safe conclusion can be drawn on the extent to which children may allege abuse which has not happened. There are numerous conditions that can lead to or induce the making of such a complaint of sexual abuse that did not occur, including: a young child’s immature social and communication skills; a parents’ lack of knowledge of normal sexuality; misperceptions, eg of borderline situations such as sleeping or bathing with the child; confusion about separation anxiety in young children; an over anxious child with an anxious parent; presence of other types of family violence, abuse attributed to the wrong person; child lying, for example, to seek alternate placement; psychopathology of child or parent; coaching by parent; influence on parent of media exposure about sexual abuse; hostility and mistrust between the parents; child being exposed to pornographic materials; child witnessing adult or animal sexuality; sex play with peers; leading and coercing interviewing techniques; excessive interviewing; poor documentation; and cross-germination.

False memories can be implanted or imagined. Children can be coached or unwittingly induced to make false allegations. Both parties are likely to have a motive to lie. So might a child. Sometimes the ulterior purpose will be obvious but often it won’t be. There is no reason to think that these would not involve untrue allegations of child abuse.

The suggested reasons for making false allegations of child abuse have been identified as: maliciousness; to eliminate the former spouse from the parent’s life; or annoyance about custody arrangements and a wish to abolish access. Green describes four situations in which false disclosures arise: ‘brainwashing’ by a vindictive parent persuades the child to claim molestation; the child is influenced by a delusional parent who projects his or her own unconscious sexual fantasies onto the spouse; allegations arise from the child’s own sexual fantasies; motives of revenge or retaliation lead the child to accuse her, or less often, his father of incest …

Child sex cases frequently involve allegations of persistent offending over prolonged periods of time, are typically made against a close relative or family friend. In most instances the person making the complaint is still a child, commonly of pre-school age.

Behavioural indicators, physical or clinical or medical examination may be inconclusive. However, just because there are not unequivocal physical, behavioural or emotional indicators of abuse does not mean it did not occur. The kind of interference alleged is not normally likely to leave any tell tale physical signs. Thus, the absence of any external confirmatory material should not automatically be treated as a form of negative evidence that there has been none.

Emphatic and indignant denials of wrongdoing by suspects or alleged perpetrators of such shameful conduct are to be expected. They may, but do not necessarily, have any probative value. Often they will merely be self serving. Because, there are commonly no witnesses or clear corroborative evidence of what is claimed to have taken place, it often becomes a question of word against word, making it extremely difficult, if not impossible, for a conscientious fact finder to work out whether it is the complain that is false or the denial.

Even cross examination may not assist, because like any forensic tool it is as good as the person using it. Inconsistencies or internal contradictions may be indicative of falsity may equally be explained by the stress of the witness box. Untruthful witnesses can be convincing, while those telling the truth may appear evasive of untrustworthy. Preconceived notions of how a liar behaves may be psychologically unfounded. Expected or assumed responses questionable. The guilty can appear innocent while the innocent look guilty.

There is no reason to suppose that statements by children are intrinsically more cogent or more truthful than those made by adults.

By the same token, the view that children, especially younger ones, are prone to making up stories of sexual abuse, are poor historians, have less dependable memories and cannot be relied upon to give an accurate account of events in which they have been personally involved has shown to be incorrect in a wide range of research studies.

The NSW Chief Justice, Spigelman CJ recently queried the ‘legal tradition that treated children as unreliable witnesses’ and in R v FAR Fitzgerald P of the Queensland Court of Appeal formulated the following broad propositions in relation to the reliability of children’s evidence in criminal cases:

The ability of children to give reliable evidence depends on the complex interactions between life experiences and age related factors, such as recognition, recall and articulateness.
While children do not generally experience full cognitive development until 14 years of age, children, even children of tender years, can give reliable evidence if questions are tailored to their cognitive development.
With younger children, recall is less likely to be organised because of underdevelopment of concepts such as time, space and distance. From about age 6 onwards children generally do not have a less accurate memory than adults, although children’s memories of familiar events will be more accurate than their memory of unfamiliar events. Recall is more likely to decline with time for children than for adults, and children are likely to recount much less detail than adults.
Children have the ability to distinguish between fact and fantasy, and the danger of a child fabricating allegations without the encouragement of an older person is minimal. However, children are suggestible.
Children, especially younger children, are vulnerable to leading questions in the course of interview or evidence.
Children may experience difficulty in supplying information at a particular time … This concern is exacerbated by the use of inappropriate techniques to question children in the investigation phase or in recording evidence.

These guidelines are no less applicable in family law proceedings.

[E]xtreme care needs to be taken in interviewing children to achieve the best evidentiary outcome and to avoid the risks of suggestibility and other causes of unreliability. How and how many times questions were asked or repeated, the expectations of the person asking the questions, the kinds of questions asked and whether they contained any implicit or explicit hints or cues are all relevant in this enquiry. Most of all, interviews conducted by police or departmental officers must involve open ended questions, support and encourage the child without confirming or reinforcing false or unreliable assertions.

Children sometimes see adults as authority figures and, being overawed or wishing to please, are often unable to understand what is being said or express themselves clearly and thus are misunderstood. If the fundamental goal of questioning a child is to uncover rather than suggest the truth it needs to be done in a way that enhances accuracy of recall. Consequently it is always of first importance to enable a child to be given the maximum possible opportunity to recall freely, uninhibited by questions, what they are able to say and to take a careful note of the questions asked as well as the answers given.

It is vital that those who question child victims have an understanding of their linguistic abilities and be aware of the recent research on memory and reliability so they can interview them in a way that enable the best chance of an accurate and truthful account being given. This involves developing skills that will enable them to assist children to give an accurate account of what has happened to them without confusing them or forcing answers which may be incorrect.

The secretive nature of sexual abuse makes the child in sexual assault cases the central and often only witness.”

Justice Carmody then goes on to say that he believes that with appropriate measures in place, children should have the opportunity to give evidence in family law court proceedings. He then goes on to say:

“What is clear, however, is that without the alleged victims giving direct evidence, the forensic investigation of the sexual abuse issue may well be inadequate, and the evidence insufficiently exact, definite or precise enough to meet the requisite standard. Without any independent source of substantiation or corroborative confirmation of the alleged abuse, secondary evidence of untested disclosures of alleged child victims, will rarely satisfy the court on the balance of probabilities of anything. The evidentiary bar will almost always be set too high. In many, perhaps most child sex abuse cases, the court will be unable to reach a conclusive or confident conclusion one way or the other. It is in that situation that a future evaluation must be made about whether making a particular parenting order will expose the child to any and what risks of related abuse or other relevant harm in the future.

As Lord Parker once said, courts dealing with children need all the help they can get. The law in the area of expert evidence is well settled in Australia and the Full Court of the Family Court has clearly defined the role and responsibility of forensic experts in child sex abuse cases. The study of human behaviour, including psychology, is an accepted scientific discipline. Many professionals claim expertise in this regard. It is appropriate and highly desirable that such evidence be available to the decision-maker to help in the assessment of the credibility of the witness.

Experience has shown that common behavioural indicators include aggression, pseudo mature attitudes, persistent inappropriate sexualised play with peers or toys or with themselves, detailed and age inappropriate understanding of sexual dynamics, poor social skills, trustlessness, restlessness and poor concentration, dramatic personality changes, overt familiarity with morbid fear or men or boys, insomnia, withdrawal, depressed mood and eating and sleep disorders. Yet despite the breadth of the expert opinion rule in s.79 of the Evidence Act 1995 (Cth) there is a continuing reluctance to offer (and admit) evidence of child development and behavioural science ostensibly because [it] is seen as too unreliable or being relevant only to the complainant’s credibility or not a proper subject for court evidence; that is, it is matter of common knowledge or experience or because the expert is not properly qualified to express the opinion.

It is also said that this sort of information invites the decision-maker to illegitimately reason that if some children behave in a certain way when they have been abused and the complainant behaves in a similar way as others who have been abused, therefore the complainant is likely to have been sexually abused and/or is likely to be telling the truth about sexually abused (sic). Conversely, the child who acts inconsistently with the way others who have been sexually abused behave may not be accepted. In fact, many experts consider that the reactions of children to sexual abuse are diverse and idiosyncratic. Some children even act counter intuitively. A child continuing a relationship with an alleged offender may, for example, delay making a complaint or having made one, may give inconsistent accounts of what happened. This does not mean they have not been abused, but it makes it extremely difficult to find that they probably have according to judicial standards and methods.”.

Justice Carmody stated at [86] to [96]:

“Marital or criminal misconduct itself does not create an automatic or absolute bar to contact. There is no presumption or a priori rule that even gross misbehaviour such as child sexual abuse of family violence disqualifies the offending parent or puts up an insurmountable barrier in the way of having contact with the child victim. While domestic violence is always unacceptable and never justified or excusable, not all men with anger management problems or those who have unlawfully beaten their wives (or visa versa) are dangerous to their children. But some certainly are. Violence in the home is one highly relevant and influential factor in the difficult balancing exercise. It is not decisive. Nor is either proven child abuse or neglect.

In V and R the Full Court identified the real issue in a parenting case in which abuse (or violence) is alleged as whether or not the benefits of contact outweigh any apparent detriment to the children. The starting point in answering that question is a proposition (still enshrined in s.60B(1))that unless the welfare of the child otherwise dictates, he or she is entitled to have proper parental relationships. The next step is to determine what form that relationship should take and whether the circumstances of the case contain the necessary elements to justify limiting that relationship or even terminating it, either permanently or temporarily.

Emotional stress or disturbance to the child is a common ground for refusing contact. In Rossi Fogarty J said: ‘In the interests of the child, access ought not to be compelled where it would be attended by circumstances of real stress and pressure to the children’.

Litchfield is an example. There contact was denied because the 9 year old daughter of the applicant father regarded him as an ‘evil person’ who should be shunned and was put under considerable stress and anxiety at the thought of having to see him. However, distress and agitation should not have a disproportionate relevance. Some children can overcome initial resistance to contact or anxieties about seeing an unknown parent if able to see him or her in a safe situation in which they are in control or assisted by a trained person. It is imperative, therefore, for the court to consider the long term benefit to the child of contact rather than focusing solely on the short term difficulties associated with it.

Another reason for decreasing or regulating parenting time may be the genuine belief of the custodial parent, and perhaps also the child, that abuse has occurred even if it cannot be legally proved. Whether or not it is reasonable or justified, such a belief may, as in B, make parenting time damaging to the child. The harmful psychological consequences of a fearful child having unsupervised contact with a person who has, or may have or is believed by the other parent and/or the child to have abused the child also need to brought into the balance in determining what parenting order will best advance the best interests of the child.

On the other hand there is little purpose in perpetuating unreasonable or false beliefs just to appease a parent or child.

In S and P the Full Court found it appropriate for the trial judge to have acted on the wife’s attitudes and concerns in considering whether or not “access” would be to the ultimate benefit of the child. Continued contact even under supervision may mean that the mother cannot cope in two ways. First, she may not be able to force the children to attend contact, and secondly, may not be able to appropriately deal with their emotions or even her own as contact continued and that this may affect her parenting ability.

In F the Full Court recognised that in some cases the inability of the resident parent to support a contact regime is a factor to be taken into account and in that circumstance it is relevant to consider whether the residence parent has a genuine and firmly held sometimes unrelenting belief that contact will involve risk of harm to the children and to what extent, if any, the ordering of contact in such circumstances may affect the ability of the resident parent to adequately parent the children.

However, it would be wrong to draw a conclusion that an anxious mother might be so overborne as to be unable to function adequately in a capacity as a principal caregiver without expert evidence as to the manner in which she may be affected if contact continued.

When abuse has been established there are many other factors to consider, in particular, therapeutic issues for the child who may need a significant amount of time away from the perpetrator in order to heal. Supervised contact, at least for a time, can provide a solution in equivocal cases of alleged abuse.

Still, supervised time is onerous and inconvenient. It carries with it implications of dangerousness and suggestions of risk against the supervised parent. It can also be costly for parents and demanding on children, both physically and emotionally, to have to have visits at a contact centre every week or so. Supervision should, therefore, only be ordered where it is really needed, likely to be effective and beneficial to the child. Otherwise it is not only unfair on both parent and child, but could be counterproductive or, worse still, positively harmful.”

Corroborating Evidence
It is always useful to have corroborating evidence if allegations are being made of child sexual abuse. This evidence can take many forms but include:

(i) Interviews of the child or alleged perpetrator by officers of the statutory authority (in Queensland, the Department of Child Safety) or Police (preferably specialised officers from a Child Protection Investigation Unit).

(ii) Statements made by the child to others such as parents, relatives, friends, teachers or doctors.

(iii) Observations of indicia or possible sexual abuse of the child by others, such as parents, relatives, friends, teachers or doctors.

It is always wise to be cautious about corroborative evidence other than clear medical evidence. This is because:

(i) The allegations may be false.

(ii) Statements of the child taken by the statutory authority and/or police may be unsatisfactory.

(iii) The child’s statements may be ambiguous and the process involved in questioning the child may be flawed.

Case Example

I acted for the father. He was having contact with his daughter when she alleged to him that she had been sexually assaulted by her half brother. The father believed the child’s complaint and immediately notified the Department of the complaint and commenced court proceedings for residence. When the mother was served with the father’s court material, she immediately complained to the Department that the father had sexually abused the daughter. Approximately one week later a Departmental and a police officer interviewed the child at home, the interview being tape recorded but in which questions were fully put. The Department formed the view that the father had sexually interfered with the child. No investigation occurred as to the father’s original complaint! The father then received supervised contact although the mother inexplicably sometimes agreed to the father having unsupervised contact and sometimes volunteered that. At no time was any pressure placed by the father on the mother to have unsupervised time. At the trial, it became apparent that the child had never been sexually interfered with by the father and that the Departmental and police interview was in turn fundamentally flawed. Halfway through the trial, the mother agreed to an order that the child reside with the father.

Criticism of Indicia
While indicia, like bedwetting, could be indicia of some sexual or other abuse, it is not considered proof but merely indicia; when one’s mind has to remain open to the possibility that what one is observing is not indicia of sexual abuse at all, but something that could be completely innocent.

Police May Decide Not to Charge the Alleged Perpetrator
If the alleged perpetrator has been charged and is then convicted of the offences it is very easy to prove that there has been child sexual abuse. There may be no need to bring proceedings because the father is in prison.

Case Example

A client of mine found out that her husband had been sexually abusing her two children (his step-children) out of the blue. One day he told her in the kitchen: “The police are about to come here and take me away.” When she said: “You’re kidding.” He replied: “No, I have fiddled with them.” Luckily for him the police did arrive as my client had thrown one chair at him and various other household objects and was about to belt him around the head with another chair. It transpired that he abused the children whilst out driving the children (while my client was at work). My client did not know anything about the abuse. There was a great difficulty in dealing with Department officers, who were initially of the view that because of the scale of the abuse my client must have known. The children stayed with my client, did not see their step-father, who was imprisoned. My client obtained orders in the Family Court preventing the father having any contact with them.

If police decide not to charge or proceedings are discontinued or dismissed:

The alleged perpetrator will present this as a victory for innocence.
The other party and the court will be left to deal with the possible lack of evidence.

False Allegations
Various studies have demonstrated that, despite the beliefs of many lawyers , judges and some social services, the propensity of mothers to lie about child abuse in Family Court proceedings for the purpose of denying contact or to obtain residence is no greater than that which occurs in the broader community and is therefore at a low rate. Thea Brown et al “Child Abuse in the Family Court: (1998) 91 Trends and Issues in Crime and Criminal Justice; Marie Hume “Study of Child Sexual Abuse Allegations within the Family Court of Australia 1995”; Marie Hume “Child Sexual Abuse Allegations in the Family Court 1997”.

Nevertheless false allegations by the father, mother or child do not occur and, in the grey area of the law, can be difficult to dispose of.

Case Example

The parties separated after their daughter, 10, alleged that the father had sexually assaulted her. The mother was at first shocked and disbelieving that it had occurred, but nevertheless followed through with various protective behaviours; including notifying the police and having them interview the child. After Family Court proceedings commenced, a psychologist was called upon to prepare a family report. During the course of this he interviewed the girl and formed a very strong view that the child had been sexually interfered with, and that it appeared that the perpetrator was the father.

The mother’s reaction was that of shock to discover something which she believed could not be true, appeared to be in fact true, and was told to her by an expert, i.e. that her husband had sexually assaulted their daughter.

The father’s reaction was shock as he always maintained his innocence. Through his solicitors the father sought to obtain his own psychiatric evidence, being a critique of the family report.

The father’s experts suggested that the process was flawed and that it was incomprehensible that the psychologist had not viewed the video taped police interview of the girl as it lead to grave concerns in the view of that psychiatrist as to whether or not the girl was telling the truth.

The psychologist, however, “dug in”, rejecting this approach and formed an even stronger correlation between the father and child for sexual abuse.

Many months later, shortly before the matter was listed for hearing, the psychologist on the father’s solicitors and experts continued urgings, eventually viewed the video taped police interview of the girl. When he did so, he formed the view that the allegations might not be true after all and he recommended that the girl be psychiatrically examined as she may have a psychiatric disorder. When the girl then attended an independent child psychiatrist, the diagnosis was that she did indeed have a psychiatric disorder which featured a propensity to tell lies and seek attention. The matter was then settled on the basis that the child had usual contact with her father. Subsequently, because of the child’s ongoing behavioural problems the parties agreed that the girl should live with the father.

Both parties looked at suing the psychologist whose recommendation in effect cut off all contact, but luckily for the psychologist a time limit applied and both parties were out of time.

3. The Test

The test that the Family Law Courts employ is as follows:

Family Law Act
Positive Finding of Abuse
Unacceptable Risk
State of Mind
Best Interests
Supervised or none at all?
Family Law Act

Section 43
Section 43 provides relevantly:

“The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of their jurisdiction, have regard to:

c) The need to protect the right of children and to promote their welfare; and

ca) The need to ensure safety from family violence.

Section 60B
This provides relevantly:

“(1)The objects of this part [Part VII] are to ensure that the best interests of children are met by:

Ensuring that children have the benefit of both of their parents having meaningful involvement in their lives, so the maximum extent consistent with the best interests of the child; and
Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence; and
Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
Ensuring the parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlining these objects are that [except when it is or would be contrary to a child’s best interests]:

Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to the care, welfare and development [such as grandparents and other relatives]; and
Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
Parents should agree about the future parenting of their children; and
Children have a right to enjoy their culture [including the right to enjoy that culture with other people who share that culture].”

Section 4(1)
This section provides relevantly:

“In this Act, the Standard Rules of Court and the related Federal Magistrates Rules, unless the contrary intention appears: …

abuse, in relation to a child, means:

An assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurred; or
A person involving a child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first- mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person.”
“family violence” means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the persons family that causes that or any other member of the persons family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

Note: A person who reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.”

When one looks at these definitions, one immediately sees limitations:

“Abuse” is defined very tightly as meaning an assault, including a sexual assault.
“Family violence” is drawn widely, but the key to the definition is that the fear or apprehension is “reasonable” ie, in an objective sense, but it has to be “in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about …” In other words, if a reasonable person put in the shoes of the person claiming to be afraid of family violence, having regard to the particular circumstances of that person.

Carmody J in Murphy and Murphy [2007] at [128] – [131]:

“Formerly s68F(g) which was inserted by the Family Law Reform Act 1995 (Cth) No.167 commencing June 1996 is now superceded by the 2006 amendments, required the court to have regard to inter alia ‘the need to protect the child from physical or psychological harm caused, or that may be caused, by abuse, ill-treatment, violence and other behaviour.

Currently both ss.60B(1)(b) and 60CC(2)(d) refer to the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

By contrast the presumption in s.61DA is concerned solely with past (neither with current nor future) events.

Curiously then, the risk of future harm is no longer explicitly mentioned in the legislation and no distinction is drawn between actual and potential harm.

Although the question ‘did it happen or not?’ invariably has to be asked and answered, the necessity to make a backwards looking probability finding whether alleged or suspected sexual abuse has in fact occurred can tend to distract attention from the primary and forwards looking issue of what order is required to meet the best interest needs and to protect the welfare of the child.”

Section 60CA
This provides:

“In deciding in whether to make a particular parenting order in relation to the child, a court must regard the best interests of the child as the paramount consideration”.

Section 60CG
This provides in part:

“(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:

Is consistent with any family violence order; and
Does not expose a person to an unacceptable risk of family violence.”

Section 60CC
This is the key shopping list provision that sets out both primary considerations in determining what is in a child’s best interests, and additional considerations.

Subsection 2 sets out the primary considerations which are:

“The benefit to the child of having a meaningful relationship with both of the child’s parents; and
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out paragraphs 60B(1)(a) and (b).”

The additional considerations are set out in subsection 3 which are relevantly:

“Any views expressed by the child and any factors [such as the child’s maturity or level of understanding]that the court thinks are relevant to the weight it should give to the child’s views; and
The nature of the relationship of the child with:
Each of the child’s parents; and
Other persons [including any grandparent or other relative of the child];
The willingness and ability of the each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; and
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
Either of his or her parents; or
Any other child, or other person [including any grandparent or other relative of the child], with whom he or she has been living;
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis; and
The capacity of:
Each of the child’s parents; and
Any other person [including any grandparent or other relative of the child];
to provide for the needs of the child, including emotional and intellectual needs; and

(g) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents; and

(h) Any family violence involving the child or a member of the child’s family; and

(i) Any family violence order that applies to the child or a member of the child’s family, if:

(i) The order is a final order; or

(ii) The making of the order was contested by a person.”

The sting in the tail is contained in subsection 4 which is moderated to some extent by (4A):

“(4) Without limiting paragraphs (3)(c) and (i),the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

Has taken, or failed to take, the opportunity:
To participate in making decisions about major long-term issues in relation to the child; and
To spend time with the child; and
To communicate with the child; and
(b) Has facilitated, or failed to facilitate, the other parent:

(i) Participating in making decisions about major long-term issues in relation to the child; and

(ii) Spending time with the child; and

Communicating with the child; and
(c) Has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4A) If the child’s parents have separated, the court must, in applying subsection (4), having regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.”

Friendly Parent Concept

One can immediately see when one looks at (3)(c) when combined with (4)(b) the ability of an abusive parent to criticise the other parent for not being friendly.

This provision is an adoption of what is known as the friendly parent concept. It is interesting to see this concept reflected in the legislation. In 2003, Dr Elspeth McInnes in “Parental Alienation Syndrome: A Paradigm for Child Abuse in Australian Family Law” argued:

“that the absence of a publicly funded investigative capacity in the Family Court of Australia when there are allegations of child abuse by a parent, creates the conditions for the de facto operating presumption of the Parental Alienation Syndrome paradigm in the courts. This paradigm, at its simplest, insists that claims of serious child abuse are invented and that children’s statements are manifestations of fear by the outcome of parental coaching. Without a publicly funded professional child protection investigative service available to perform in the Family Court, the private adversarial system of family law commonly fails to substantiate allegations of child abuse, thereby systematically producing the outcome that child abuse allegations will be deemed to be false.”

The friendly parent concept was critiqued by Dore (1) who says:

“The so called “friendly parent” concept presents what seems to be a reasonable idea for the resolution of child custody disputes. Children are

thought to do better when allowed or encouraged to maintain a close relationship with both parents. Therefore, custody should be awarded to the parent most likely to foster the child’s relationship with the other parent, i.e., ‘the friendly parent’.

The friendly parent concept is sometimes referred to as the friendly parent doctrine. It is codified in child custody statutes requiring a court to consider as a factor for custody, which parent is more likely to allow ‘frequent and continuing contact’ with the child and the other parent, or which parent is more likely to promote the child’s contact or relationship with the other parent. …

On closer examination, the friendly parent concept presents a paradox. This is because in a child custody dispute, the parents are in litigation against each other. The purpose of this litigation is to take custody away from the other parent, which by definition does not foster the other parent’s relationship with the child. The friendly parent concept, however, requires parents to make the opposite showing, that they will ‘most likely foster … the other parent’s relationship with the child’.

With this inherent contradiction, the results of a friendly parent analysis are unpredictable and at times, bizarre. The friendly parent concept also encourages litigation and conflict between parents; it renders parents unable to protect themselves and children from abuse, violence and neglect at the hands of the other parent. …

In practice, courts making the friendly parent determination examine parental conduct. Under the most common analysis, ‘friendly parents’ are those who do not make allegations about the other parent, who do not withhold access to

the child, and who are cooperative. ‘Unfriendly parents’ are those who make allegations, who are ‘alienating’ and who withhold access. The ‘friendly parent’ is the parent more likely to get custody, or at least, more time with the child …

(1) Margaret Dore: “The ‘Friendly Parent’ Concept: A Flawed Factor for Child Custody”, 6th Loyola Journal of Public Interest Law 41”.

Judicial application of the friendly parent concept can be viewed as a reward and punishment paradigm. Courts punish parents engaging in ‘unfriendly behaviour’ be denying them custody or time with their children. Thus, children’s needs are subordinated to penalties against the parent. …

Domestic violence victims … for the safety of the children and themselves, take active steps to minimise contact and relationships with the abuser. By doing so, these protective parents are more likely to be labelled ‘unfriendly’ so that custody will be awarded to the abusive parent. Family law attorney, Richard Ducote, describes this practical effect of the friendly parent concept:

‘The generalisation is frightening, but like all broad statements there are many exceptions:

After 20 years in family law courtrooms throughout the country, I confidently say that no woman, despite very abundant evidence that a child has been sexually molested by her ex-husband or that she has been repeatedly pummelled by the violent father of a child, can safely walk into any family court in the country and not face a grave risk of losing custody to the abuser for the sole reason that she dared to present the evidence to the judge and ask that the child be protected …’

A similar sentiment is echoed by Joan Zorza, editor of the Domestic Violence Report. She states in that report (2007):

‘[F]riendly parent provisions effectively chill the right of any parent to raise even the most meritorious claim.’ …

The friendly parent concept also puts children and their protective parents at risk because is encourages courts to view evidence of violence, abuse and neglect as mere ‘conflict’.”

Zorza states:

“The FPC is based on many of the same myths as Parental Alienation Syndrome, namely that:

DV is rare, not that serious, often mutual, raised by mothers for tactical gain, and ends following the divorce or custody case; and
Incest is rare and raised by mothers for tactical gain.

FPC supported by many mental health professionals.

Most mental health professionals have been schooled in the family system dynamic theory that judges mothers far more harshly than fathers and perceives DV and other abuse problems as the fault of both parties, generally caused by a failure in their communication. These professionals are not trained to understand that DV, child abuse and incest are crimes, solely the fault of the perpetrator. Because these mental health providers are blind to the criminal nature of abuse, and see it as a family dysfunction, both PAS and the FPC theories intuitively resonate with them. Only the recent debunking of PAS has made some of them abandon PAS, although most of them use the idea renamed without the ‘syndrome’ as in, Parental Alienation (PA). Some have reformulated it as ‘estrangement’, a concept that does, at least, ask if the estrangement is legitimate due to abuse. Unfortunately, many mental health providers are incompetent to perform an abuse analysis, so find the abuse not legitimate, and conclude that the estrangement is caused because the mother is alienating the child from the father.

The FPC also has many of the same major problems as PAS … specifically, the FPC:

(1) is punitive, particularly in cases where there is DV or incest;

(2) is gender biased;

(3) encourages abusers to accuse their partners of unfriendly behaviours;

(4) chills women from raising abuse concerns;

(5) further empowers abusers;

(6) allows abusers to re-litigate what should be resolved issues;

(7) impedes healing;

(8) fails to protect women and children, or act in the best interests of the child; and

(9) encourages courts and those working with them to be lazy and more gender biased.”

Goode and Goode [2006] FamCa 1346 sets out the further procedure following the 2006 amendments to the Family Law Act, which is then to:

“Decide whether the presumption in section 61DA applies;
If the presumption does apply, deciding whether is it rebutted because application of it would not be in the child’s best interests;
If the presumption applies and is not rebutted, consider making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the factors in section 60CC, or impracticable;
If equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in secton 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the factors in section 60CC, or impracticable;
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of consideration of one or more of the factors in section 60CC;
If the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the factors in section 60CC and;
Even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the court considers after affording procedural fairness to the parties it to be in the best interests of the child.”

One of the significant features in Goode and Goode was (at [86]):

“In this case, his Honour did commence with the consideration of the application of the presumption [of equal shared parental responsibility for major long-term issues] and found that it did not apply by the application of s61DA(3). In particular his Honour found that as a result of allegations about family violence, which he was unable to make positive findings about as a result of the evidence being untested, it would be inappropriate to apply the presumption. In our view his Honour correctly the structure of s61DA and was not in error in his approach.”

Section 61DA

This provides in part:

(1)“When making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

Note: The presumption provided for in the subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents [this issue is dealt with in section 65DAA].

(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child [or a person who lives with a parent of the child] has engaged in:

Abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
Family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)The presumption may be rebutted by evidence that satisfied that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.’

Section 61B defines parental responsibility:

“In relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

Section 61DB

This provides:

“If there is an interim parenting order in relation to a child, the court must, in making a final parenting order in relation to the child, disregard the allocation of parental responsibility made in the interim order.”

The court does not get to considering whether there should be equal time or substantial and significant time under section 65DAA unless a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility: s.65DAA(1). However, this section has a warning dealing with allegations of sexual abuse, which is contained in section 65DAA(5):

“ In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable to spend equal time, or substantial and significant time, with each of the child’s parents, the court must has regard to: …

(c) The parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind …

Note: 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the bests interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:

The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)). …”

(x) Section 117AB

This provides:

“(1) This section applies if:

(a) proceedings under this Act are brought before a court; and

(b) the court is satisfied that a party to the proceedings knowingly made a false allegation or statement in the proceedings.

(2) The court must order that party to pay some or all of the costs of another party, or other parties, to the proceedings.”

Positive Finding of Sexual Abuse

Carmody J in Murphy and Murphy [2007] FamCA 795 said [at 125-6]:

“Strictly speaking protecting children on an ongoing basis and enforcing the laws against child sex crimes is a State, not Federal, government responsibility. However, child safety remains an important object of family law and a primary best interests consideration. Once an abuse allegation has been raised it is impossible to ignore it. Its resolution can have serious consequences for both accuser and accused. The proof or risk of child abuse is not only relevant to the allocation of parental responsibility but also affects the question of whether time and communication should be allowed, either supervised or not, but also influences, both directly and indirectly, the calculation of the amount of that time and the conditions under which it is to occur.

It follows then that when … there is a family dispute between parents about whether a child has been, or is at risk of being, abused or harmed a normal task of a judge considering whether and what parenting order to make is to investigate and – where possible and appropriate – either substantiate or reject a claim. That is, the validity and credibility of the complaint often (but not always) has to be determined.”

As Justices Fogarty and May stated in re: C & J (1996) FLC 92-697 at p.83,334:

“(In) the cases of this type which go through to trial, the evidence is always conflicting and likely to be less than exact or overwhelming. The nature of the sexual abuse is that it is committed in secret. Children are at times regarded as inexact or unreliable witnesses, admission by an abuser are rare, and often there is an absence of corroborative evidence. Almost by definition, cases which come through to trial and appeal represent the most acute end of that graduating scale. In cases where investigation or other evidence indicates that the allegations are without foundation or they indicate the likelihood that they have validity are likely to fall out of the system at a much earlier point. For those cases which proceed through to trial, the evidence in support of the allegations is often constituted by evidence of the parent by the personal statements made by the child, statements made to subsequent investigating personnel and the opinion of experts.

So far as the alleged abuser is concerned, it is rare that he or she is able to produce positive evidence negativing the allegations. He or she can usually do little more than deny the assertion and make him or herself available for the inevitable investigation in cross examination. There is no objective way of identifying a sexual abuser; they come in all shapes and sizes from different strata of society.

These problems are not unique to Australia. They have been grappled with in most courts of most comparable western countries.”

In M and M (1988) FLC 91-979 at p.77,080-77,081 in a joint judgement Chief Justice Mason, Justices Brennan, Dawson, Toohey and Gaudron of the High Court held:

“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 CLR 336 at p.362. There Dixon J said:

‘The seriousness of an allegation made, the inherent likelihood 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 inference.’”

This does not mean that the Court should not investigate the allegations even if they be the possible subject of criminal proceedings. A and A (1998) Fam CA25; FLC 92-800 is a good example, although it is not a case of sexual abuse. The Full Court of the Family Court consider the circumstances in which when the children were in contact with their father, the wife was violently assaulted in the home and would be an attempt to murder her. The considered that the husband was the assailant and that there was a risk to the safety of the children if the husband was to continue to have contact. The husband denied any involvement in the assault. The police had extensively investigated the matter but no person was charged with the crime. There was no dispute about the wife’s injuries. They were as follows:

(i) Left hand side of the had from approximately 3 inches above her left temple across her forehead through the right eye socket extending to below the temple on the right had side was grossly opened exposing part of the wife’s brain. The frontal skull was fractured with disruption to her front sinus.

(ii) Her right cheek bone was smashed, also damaging her sinus.

A gash running completely across the top of her head approximately an inch behind her hairline above the left eye to above her right eye.
A gash of approximately 1 inch on the left had side of her head forward of her ear.
Both her eyes were badly beaten and swollen. Both eyes were closed. A haematoma developed protruding from under her right eyelid so that when the swelling subsided the eyeball was distended form the socket outwards toward the wife’s cheekbone.
Her face was blackened and swollen down both cheeks and extending under the chin.
Approximately two days after the attack, bruising developed at the base of her throat extending both sides of her throat almost to her ears.
There was severe bruising to her right shoulder and right upper arm.
The second and third fingers on her right hand were broken.
Bleeding from the vagina. (It was suggested, but objected to, that she had been assaulted in the vaginal area of her body with a blunt instrument).

The wife was of the view that the husband was the perpetrator because, she asserted:

(i) He admitted that he called at the home that morning to return the lawnmower which he had borrowed from the wife the previous day. The time of the return of the lawnmower was within the time frame police witnesses asserted that the assault had taken place.

(ii) He conceded that he had left the children at his residence for a period in excess of half an hour on the occasion that he returned the lawnmower. He could not recollect the route he had taken to and from his home to the former matrimonial home. He conceded he had not left the children alone on any other occasion for more than a few minutes.

The husband gave the wife a cheque for child support on the previous day. Following the assault the wife’s handbag was taken by the mother and retained until after the wife had been released from hospital. The cheque reappeared approximately two months later in a bowl on the kitchen bench of the former matrimonial home. Although the husband had denied that he had returned the cheque the wife believed that he took it from her handbag at the time of the assault and surreptitiously returned it sometime afterwards.
There was no evidence that any doors or windows of the home had been forced or that the property had been damaged or trashed in any way. The window to the child’s bedroom was found to be open and the husband conceded that he was aware that the window could not be locked. No evidence was found of any damage having been caused to the property or that its contents had been trashed.
Following a close inspect of the property following the assault, some items were found to be missing:
The wife’s diary;
The boy’s birth certificates;
12 photographs of the children.
The wife contended that the only person who might have had any interest in those items was the husband. The wife had $400 in cash in her possession. Neither this nor any other valuables was stolen. The telephone wires had been cut at the junction box. It is asserted that the wires could only have been cut by a person with knowledge of the precise location of the junction box and it was the wife’s belief that the husband was that person.

The independent psychiatrist gave evidence that the horrendous nature of the injuries inflicted upon the wife suggested to him that the perpetrator was a person filled with a malevolent form of hatred, whose desire was to humiliate and debase his victim and the injuries which the wife suffered were, firstly, an attack upon her body and hence her life, and secondly, the sexual assault was an attack upon her soul.
Although the parties were estranged at the time of the assault having separated five months before, nevertheless, the husband at no time made any enquiry in relation to the wife’s physical condition, or her prognosis. His only concern appears to have been to ascertain whether the wife had been able to report precisely what had occurred at the moment of the assault.
The husband inspected the wife’s medical records from the hospital at Court, though he was not entitled to do so. He also made notes from those records which had more to do with the wife’s psychological and/or psychiatric condition and whether she had been able to recall past events, rather than any prognosis of her medical condition.
He admitted he had made a telephone call to another hospital to enquire about whether a person who had suffered severe injuries in say, a motor vehicle accident, would have the ability to recall at some subsequent time what had occurred.
Police had found blood on the husband’s jogging shoes which had been subjected to forensic tests which were not yet complete. When asked what shoes he was wearing on the day of the assault the husband replied equivocally “probably my masseur shoes”.
The husband conceded that he had called at the hospital in order to see the doctor. This was to ascertain whether the injuries his wife had suffered were likely to affect her ability to recall what had occurred. On the occasion in question, the husband gained admission to the brain injury unit at the hospital when he passed through the security door with another family.
Although the wife was unable to recall what happened to her on the day of the assault or any statements made in relation to it subsequently, she made the following statements:
Miss H arrived at the wife’s home on the morning of the assault. Having seen the condition the wife was in Miss H said to her: “Why did he do it?, what has he done? Why did he hit you?” to which the wife replied: “Who?”. Miss H then indicated the husband to which the wife replied “No”. Miss H said: “If he didn’t, who did?” to which the wife replied: “He didn’t, I fell”.
Within two days of the incident the wife had told three other witnesses that her husband was the person who had assaulted her.
On the day of the assault one of the children said to another witness “Mummy has sore fingers”. This information could only have been gleaned from the husband and would have been communicated by him to the child before his arrest at a time when the husband himself had little knowledge of the wife’s injuries and what had caused them.
The husband was aware that the wife’s boyfriend was due to arrive from the United States early in the morning of the day of the assault.
The investigating police officers have told the wife that the husband is the main and only suspect.
There is evidence that the husband had singled one of the children out during contact and pressured him to make sure that he “tells the truth”.

The husband denied the assault and evidence towards such denial included:

That he had not made any application for residence order since separation until after the assault.
He was having regular and frequent contact with the children. He had no prior convictions. Fingerprints found in the junction box were not his.
Telephone wires to the house had been cut but the wife had, to his knowledge, a mobile phone.
The property was remote from its surroundings.
He was “quite shocked” on being informed of the assault.
He agreed to an inspection of his home without a warrant and voluntarily provided a blood sample.
He agreed to be interviewed by the police and no admissions were made by him.
He was not charged with any offence arising out of the events.
There was no evidence in the analysis of the blood on the husband’s shoes.

Police declined to answer a number of questions on the grounds it may prejudice their ongoing investigation of this crime.

The Trial Judge said that the hearing had been conducted “by the parties as a criminal trial … being invited to find the husband guilty or innocent of the crime in question”.

His Honour went on to say:

“It is not for the Family Court to usurp the role of the criminal authorities and investigate criminal activity, even although such activity may have a direct bearing on the issues which the Court is called upon to decide and the result which is actually achieved. The danger of adopting such a course may be that if a person were to be found upon the civil standard to be engaged in some criminal activity, the result for him or her may be for example, a complete suspension of contact, or, in the event that such person is found not to be engaged in a criminal activity referred to, then the Order which the Court makes might be as sought by the person alleged to have undertaken the particular criminal activity. Such a course, in my view, is completely unrealistic, and that it ignores completely the provisions of Section 68F of the Family Law Act in general, and the best interests of the children, in particular”.

Thankfully, the Full Court criticised that approach and stated at [3.10]:

“Neither the High Court nor this Court has stated that the Family Court must not investigate or form a conclusion about the question whether the respondent committed the acts in question in a case of this type.”

The Full Court said at [3.22]:

“Whilst it is correct to say that the Family Court is not a criminal court, and its primary task is not to determine guilt or innocence, that is entirely different from an approach which declines to examine that issue at all. The whole emphasis of the decision of the High Court in M and M is its identification of the essential issue in cases of this sort as being whether the evidence establishes ‘a non-acceptable risk’.”

In Re: W (Sex Abuse: Standard of Proof) [2004] FamCA 768; (2004) FLC 93-192 the court in dealing with a positive finding citing another case said:

“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.”

The Full Court of the Family Court in WK v SR (1997) FLC 92-787 said at p.84,694:

“[T]he 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 that they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s.140 of the Evidence Act 1994 (Cth). Inexact proofs, indefinite testimony or indirect inferences are insufficient to ground a finding of abuse.”

In Re: W (Sex Abuse: Standard of Proof) at p.79,226 the Full Court said:

“In our view if a trial judge finds it appropriate to make a positive finding that abuse has occurred, that finding needs to particularise, as far as possible, just what that abuse consisted of. Unless such findings are made it is impossible for the alleged perpetrator to challenge the findings or for an appellate court to properly review the evidence to see if the findings are safe. The failure of the trial judge to provide such particulars makes his generalised findings that ‘abuse’ has occurred all the more unnecessary and inappropriate in this case.”

The Full Court of The Family Court said in Potter and Potter [2007] FamCA 350:

“There is little doubt that in a case where there are no specific allegations, the opportunity to the accused person to meet or refute the allegations disappears. However, it must also be remembered that these cases are generally about young children and where there is abuse it occurs without witnesses. Specific allegations are difficult to obtain.”

Carmody J in Murphy and Murphy [2007] FamCA 795 stated:

“There are really two separate questions when determining whether or not a positive finding is open on the admissible evidence:

Has the child been sexually abused, and
Is the alleged or suspected parent or party the likely perpetrator?

This process logically if not legally involves being persuaded that:

The allegations are fabrications;
There is no innocent explanation for the child’s disclosures or behaviours; and
The abuse could not have been committed by any other person other than the alleged perpetrator.

The Full Court decision in WK v SR [1997] FLC 92-787 makes it clear that a rigorous approach is to be taken to the forensic investigation of these issues. There must be sufficient and satisfactory proof.

Direct evidence is preferable to circumstantial inferences and independent confirmation of both the abuse and identity issues is highly desirable. However, specific allegations and corroboration from other sources, especially eyewitnesses, are difficult to obtain and rare in these sorts of cases.

Because the hearing process if fallible and can be used to conceal rather than reveal the truth, it is not uncommon for the combined weight of the available evidence [to] fall short of supporting a probability finding for or against past abuse.

When that happens it is difficult to know whether when in doubt it would be better for the court to incline to accepting or rejecting the allegations as true because:

Just as it would be a terrible thing to make a positive finding of guilt when the evidence was insufficient for that purpose, so it would be equally terrible to create a situation of risk for a child when the evidence justified [reasonable] suspicions.

Branding a father with the indelible stigma of incestuous paedophilia (of either a hetero or homo sexual type) is an extreme step and a conscious effort must be made not to be too uncritical or overly protective before taking it. This would normally only occur in cases where the evidence of abuse is so strong that a finding to that effect may be seen as essential on issues of fact and credit and as providing a satisfactory explanation of the orders.

[T]here is no special standard of proof in family matters where criminal or other serious misconduct is alleged. There are not two distinct standards: the Briginshaw approach and the ordinary civil standard. There is only one constant standard of proof in civil cases. That standard is the balance of probabilities …

In other words, as a general forensic rule the usual is more likely to occur than the unusual, but the unlikely sometimes happens though not very often. Once the likely is rejected then the unlikely may be more likely to be true.

The civil standard takes account of the instinctive judicial feeling that even in civil proceedings the court should be surer before finding serious allegations proved than when deciding less serious or trivial matters. Civil proof, therefore, is not a simple matter of grave suspicion or belief but of ‘reasonable satisfaction’ following a search for the truth and properly evaluating the evidence … in the light of the parties’ respective power to produce or capacity to contradict it.

Consequently, the court cannot legally be satisfied that the case of child sexual abuse has been proved on the balance of probabilities (a positive finding about the allegation) until it has exercised due caution and carefully examined the whole of the evidence.

However, the law looks for probability not certainty. In many aspects common sense and worldly experience may be a good a guide as any. A good starting point is the supposition that fathers do not normally sexually abuse their children. That assumption prevails unless and until the contrary is firmly and adequately established. An allegation or case is not proved where the competing possibilities are of equally likelihood or the choice between them can only be resolved by conjecture.

It is, of course, not necessary for each and every evidentiary fact to be proved on the balance of probability. In fact, it is quite wrong to consider each item of evidence separately and disregard the unlikely because, of course, one piece of evidence may resolve doubts about another. For s.140 [of the Evidence Act] purposes the evidence must be considered together at the end of the case.

It is the weight to be given to the united force and mutually reinforcing effect of all the circumstances put together that must be considered. With circumstantial – as distinct from direct – evidence is relied on, all the facts have to be considered together at the final stage of the reasoning process and it is sufficient if the evidentiary circumstances must give rise to ‘a reasonable and definite inference’. It does not have to be the only rational explanation available.”

C. Unacceptable Risk

In M and M (1988) the High Court stated at p.77-080:

“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 range in discretion decide what is in the child’s best interest 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 rejections of the allegation of sexual abuse on the balance of probabilities.”

At p.77-081 the High Court went on to say:

“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 at 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 that are 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 the child who is compulsorily brought into contact with a parent who ha sexually abused her or whom the child believes to have sexually abused her … to achieve a proper balance, the test is best expressed by say 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.”

Carmody J in Murphy and Murphy [2007] FamCA 795 stated:

“The ‘unacceptable risk’ test is used to achieve the balance between the risk of detriment to a child from sexual abuse and other forms of harm and the possibility of benefit to the child of liberal contact. A finding of unacceptable risk is a finding that continued or unregulated contact might do more harm than good or a conclusion that its perceived advantages of unsupervised time are outweighed by the potential disadvantages. That assessment may lead to a decision that there should be no further contact between parent and child or to an order that there should only be access that is closely monitored or otherwise controlled.

A finding of unacceptable risk is neither a standard response nor a default option in child sexual abuse cases. The power to limit parental responsibility and parenting time is to be exercised sparingly and only in genuine cases of a proven probable future risk of harm, not merely a past abuse. Protective parenting orders are justified only to the extent the harmful consequences make risking the safety of someone’s child unconscionable or too high to take without adequate and effective safeguards or practical guarantees.

A finding of unacceptable risk without further explanation of the degree of risk and the basis of that conclusion would be too ambiguous and a desire not to be too dogmatic may come at to higher [sic] price.

Unsupervised contact with the father can rationally be found to pose an unacceptable risk where no positive finding that it was more likely than not that [he] was the perpetrator or the more likely of two or more potential culprits. It is sufficient in the assessment of risk that the child was probably abused (or possibly) and the father might have been responsible.

There is no rule of law or logic that only facts found to exist on the balance of probabilities can be taken into account. The court is entitled to take heed of factors which are not proved but which nevertheless raise issues of concerns …

Neither the existence of the risk in the future nor alleged sexual misconduct in the past or other risk indicators have to be established as probabilities. It is enough that either or both are merely possible. Probable previous offending can sustain a possible risk in the future or, alternatively, possible past behaviour may support a probable future risk finding. In either case the risk can be legitimately characterised as an unacceptable one and justify the loss or limitation of contact.

In my respectful view it is inappropriate and highly dangerous in the context of parenting proceedings to treat a probability as a fact, while a real possibility if regarded as not having happened at all. In citing another judge examples were given of a combination of profoundly worrying features affecting the care of the child within the family that might establish a real possibility of future harm where allegations of past abuse had either not been made or were not proven. These included:

… The alleged perpetrator has a history of abuse; a history of members of the family; the state of relationships within the family; proposed changes within the membership of the family; parental attitudes; omissions which might not reasonably be expected; actual physical assault; threats; abnormal behaviour by a child; and a unsatisfactory responses to complaints or allegations; and other facts which may seem minor or trivial if considered in isolation, when taken together may suffice to satisfy the court of the likelihood of future harm …

Carmody J in Murphy and Murphy [2007] FamCA 795 goes on to say:

“Other examples of current events or circumstances include isolation ‘grooming [sic] of a child, poor boundary recognition, behaviour such a ‘peeping tom’, accidental touching and use of unsuitable videos or DVDs in the presence of children. Another important example is the possession of child pornography which is suggested as a real indicator of risk. These images are highly exploitative, degrade and amount to abuse of children. Their possession may say a great deal about the sexual values of an individual. By itself, possession of hard core pornography, child or adult, may say nothing about the risk of child abuse, but combined with other factors it may.

As I already mentioned, facts that may provide helpful guidance about potential harm and future risks might not even be admissible or carry much probative weight in determining whether abuse actually occurred.

Evidence of prior abuse of another child, for example, is admissible on the future risk question and may be significant on that issue, but is not corroborative of past sexual abuse.

A positive finding of sexual abuse can, but does not always, decisively constitute an unacceptable risk of potential future harm if unsupervised time is ordered in respect of a child. There is, however, nothing illogical on a negative future risk finding despite a positive finding of misconduct in the past. Previous behaviour is not always the best or even a reliable predictor of future conduct. People and circumstances change. The converse, however, is not necessarily true and the failure to establish an allegation of past abuse does not determine the wider and ultimate issue of what parenting order, if any, is in the best interests of the children.

Thus, the unacceptable risk enquiry involves a real and substantial consideration of whether or not, and why or why not, particular facts raise an unacceptable risk.

The risk that abuse might have occurred has to be weighed against the loss or detriment the child might experience if contact is refused or limited. That is, where there is a tension between the primary considerations in s.60CC(2) it has to be relieved somehow and where they cannot harmoniously coexist one must give way to the other, or an acceptable compromise negotiated between the two.

Section 60CC(2) – (3) raise social questions in the context of the protective needs of the child and the avoidance of relevant risks. Judges need to pay attention to how the world works. They have to make value judgements about what a child needs at particular stages of their development, what and how much of a risk to the safety and welfare of a child poses in a given set of circumstances, how likely is future abuse related harm to occur on unsupervised contact in the circumstances and what precautions can be taken if any to effectively eliminate or mitigate the level of risk. What emotional and psychological harms, if any, are likely to occur to a child was sexually abused by a parent?

Common knowledge, at the least in the context of a risk assessment in family proceedings, is admissible … and can certainly assist but childhood sex abuse is a human phenomenon full of contradictions and improbabilities. Thus, to properly discharge the court’s obligation to take into account the inherent likelihood (or unlikelihood) of what has been asserted and the considerations mentioned in the previous paragraph, judges need to be aware of at least the broad findings of research in this area. Children can deny that abuse has occurred when in fact it has, or claim that it has occurred when it has not. Without relevant and reliable information about such matters to assist it is easy to make false assumptions about a child’s veracity or the source and motives of a reported disclosure and what behaviour is or is not to be expected.

Social, behaviour and possible, rather than probable historical facts, that may play a role assessing the unacceptable risk question include: behaviour and attitude of the alleged perpetrator towards the subject child falling short of sexual abuse but raising legitimate concerns about relevant conduct towards another child and any characteristics of the alleged perpetrator which might indicate statistically a greater risk of sexual abuse occurring than in the general population.

Sources of social facts include published research and social science literature. Expert testimony can also be a valuable fund of information on such things. Some judges rely on their private knowledge or beliefs about social facts. Proof is not required about matters of common knowledge not reasonably open to question but there are obvious limits to the legitimacy of judges going outside the evidence presented by the parties in adversarial litigation and acting on information privately obtained, which the parties have had no chance of challenging or commenting on.

However, the cases suggest that judges are relatively free to consult accredited writings and make their own extrinsic enquiries from non-legal materials in forming and applying their own views on social issues. There is probably no other convenient or expedient way of doing it in this jurisdiction.

Social facts and findings should not be used to contradict expert opinions given in the proceedings, but they may inform legitimate questions and fill in evidentiary gaps where that can be done without unfairness.”

Carmody J in Murphy and Murphy [2007] FamCA 795 goes on to deal with social science literature about profiles of perpetrators. He says:

“The most, I think that can be safely said is that there are certain characteristics which are more commonly found in perpetrators: many incestuous fathers appear to be passive, dependent, isolated, somewhat paranoid, and lacking a core masculine identification. Many have been maltreated in their families of origin and report rejection, particularly by their fathers. Many have poor marriages and a low level of satisfaction and arousal with adults. Many have difficulty feeling empathy, particularly with their children, and they report being uninvolved in child caretaking. However, here again, few of these characteristics apply to the majority of offenders. Moreover, the studies have not indicated whether or how these characteristics tend to coalesce.

In a recent paper the Honourable John Fogarty AM ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249 his Honour sets out the principles emerging from M and M as follows:

“The decisive issue is and always remains the best interests of that child. All other issues are subservient.
The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation on the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on the issue. Where, however, that is done the Briginshaw civil standard of proof applies.
The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
The concentration on these cases should normally be upon the question of whether there is an unacceptable risk to the child.
The onus of proof in reaching that conclusion is the ordinary civil standard.
But the components which go to make up that conclusion need not each be established on the balance of probability. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.”

In S v S Thomas J warned of the possible consequences of elevating the “test” beyond the function it is designed to serve. At p.664 he said:

“If the Court works to a prescriptive test there must always be a danger that, in the circumstances of a particular case, the interests of the child will not be served by the strict application of that test. Any test which is articulated, therefore, must necessarily be subordinate to the interests of the welfare of the child.”

And at p.670:

“This phrase should not be permitted to take on a life – and meaning – of its own”.

As commented on by the Full Court in M and M and then by Justice Fogarty in N and S and the Separate Representative at p.82,712:

“The term ‘unacceptable risk’ itself may be read as conveying the notion that a genuine risk is capable as being viewed as ‘acceptable’. That could not be so …”

As Justice Fogarty went on to say at p.82,713:

“The High Court’s decision must be read as taking a cautious approach to the issue, in light of the paramountcy of the welfare of the child and the gravity of the possible effects of sexual abuse. Largely it means that if there is an ascertainable risk of harm, the Court must mould its Orders so as to avoid exposure of the child to that harm. It would be unthinkable to take a risk with the child’s welfare or to ‘experiment’ in such cases.”

Asking the Unacceptable Risk Question

Justice Fogarty stated at p.82,713 – 82,714 in N and S and the Separate Representative:

“One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Thought the purpose behind the notion is to assist a Court in determining what is in the child’s best interest, the importance of asking the question separately lies in its specific guidance to Courts faced with the difficulties which cases of sexual abuse raise. There is the danger that it will be treated just as an expression which must be ritually used in judgements which involve questions of sexual abuse, that give substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration … the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration of the facts of the case, and to decide whether or not, or why or 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 it direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.

In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such question 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 it? 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 in 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.

In answering the unacceptable risk question the Court must undertake a qualitative analysis … (T)he essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development as well as the effects of future contact with the party, e.g. A and A not surprisingly the Full Court formed the view that there would be unacceptable risk to the children if unsupervised contact was to occur.”

Although Justice Fogarty’s decision in N v S was a dissenting one, those words were followed with approval, for example, in Napier and Hepburn [2006] FamCA 1316.

In Napier and Hepburn Justice Warnick stated at [114]:

“I also wish to add some comment on what I perceive a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of ‘unacceptable risk’ of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect thought the process leads to that result may be, the finding can come down between parent and child like an iron gate that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of ‘unacceptable risk’ can eliminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change.”

D. State of Mind

It is not yet clear whether the parent’s belief as set out in Russell and Close will be adopted following the 2006 amendments.

If the Trial Judge has made a positive finding that there has been no sexual abuse then the Judge needs to turn to the separate question of the residential parent’s belief as to whether or not the child has been sexually abused. This test was first formulated by the Full Court in Russell and Close (1993) and referred to more recently in cases such as Re Andrew (1996) FLC 92-692 and A and A. As stated in A and A where there has been no unacceptable risk of sexual abuse of the child:

“If the wife has such a belief, it is not a necessary component that the belief should be reasonably and objectively based. What is required at this level of the enquiry is that is was genuinely held. The reason for that, as explained in Russell and Close and in cases which have followed that since, is that if the wife genuinely holds a belief that may so impinge upon her capacity as the primary carer of the children to look after them that the question arises whether in the interests of the children, contact should continue and/or whether it should be supervised to ally those apprehensions.”

At paragraph 3.29:

“The first enquiry is whether there is subjectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the residence parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.”

At paragraph 3.47:

“His Honour concluded that the wife ‘possess a strong personality and will be able to cope with the Orders which I propose.’

We think His Honour attributed to the wife a degree of stoicism which is unjustified. She has made a remarkable recovery physically and emotionally. This is emphasised by the preparedness to return to the home where she was assaulted, generally to get on with her life, and her ability to restrain herself from making negative comments about the husband to the children. Nevertheless, as her evidence indicates, she has grave concerns and fears for her own safety and that of the children. Whilst she is to be admired for the way she has faced there problems, we think that His Honour placed too much emphasis upon that. She has steeled herself to return to the home and get on with her life and has coped this far with supervised contact. This, however, is quite different from her capacity to cope if contact is unsupervised and is for extensive periods such as His Honour ordered. It could not confidently be predicted that she could continue to cope. We think that this may impose upon her an altogether intolerable strain which may have a drastic, long term impact on the children, a risk which should not be taken.”

In Re: W and W; Abuse Allegations: Expert Evidence [2001] FamCA216: (2001) FLC 93-085, the eldest child told the wife that she has been sexually assaulted by the husband. The husband was consequently charged with two counts of sexual penetration of a lineal relative and four counts of indecent dealing. He pleaded not guilty to those charges. The husband sought that the children live with him. He argued that the wife’s spiritual beliefs (New Age) had influenced the child to make false allegations and that they affected the wife’s ability to appropriately parent the children.

In August 1999, after the child had been extensively cross examined in the criminal proceedings, the Crown discontinued the charges against the husband.

Two months after the hearing had concluded the trial judge asked the wife through her counsel whether she still held her beliefs regarding the child’s allegations. The wife responded that did not know.

In his Honour’s reasons for judgement the trial judge did not accept the child’s allegations of sexual abuse. His Honour made adverse findings against the wife’s credit, holding amongst other things that she sought to minimise her behaviour in relation to her spiritual beliefs, which she conceded could be considered “bizarre”, and that the wife had actively encouraged the child to become involved in her beliefs and they influenced the child’s sexual abuse allegations.

His Honour considered that the wife could not appropriate provide for the emotional needs of the children. As the wife continued to accept the veracity of the child’s allegations, there was a possibility that she would not attempt to dissuade the child from her belief that sexual abuse had occurred. His Honour perceived that if the children were to reside with the wife, they would grow up believing that their father and paternal grandparents had sexually abused the child and, as such, there was a real danger that they would be subjected to psychological harm.

His Honour ordered that the children reside with the husband and the wife have weekly supervised contact.

Not surprisingly, the wife appealed.

On appeal, two judges considered that the trial judge was wrong in drawing an adverse inference against the wife in any event, because the wife, in forming her belief that sexual abuse was likely to have occurred was aware of the contents of inadmissible statements made by the husband to a counsellor.

There was a very real danger that the children, and in particular the eldest child, would suffer psychological harm if they resided with the wife. These findings were dependent upon a finding by the trial judge that the allegations of sexual abuse were false, and that falsity was probably brought about by the wife, as a result of her New Age beliefs, having unconsciously influenced the child to make the false allegations. Although the trial judges finding that sexual abuse had not occurred were not the subject of direct attack, the link between that finding and a finding adverse to the wife was dependent upon the evidence of an expert called by the husband, Dr. W. In substance, Dr. W. asserted that the wife, by involving the child in her New Age beliefs had effectively brainwashed the child into a state of mind where she was likely to make false allegations against the husband. He also asserted that she was likely to continue to do so. He further claimed that if the husband made admissions to a counsellor about aberrant behaviour on his part, this was likely to have been a false admission brought out by a folie a deux [meaning that the husband had been induced by the actions of the wife and/or the child to believe that he had been guilty of improper sexual behaviour to the child, and to make admissions accordingly] as a result of the wife’s influence and that of the counsellor.

The trial judge had found that the wife was genuinely concerned about the welfare of the children, and found that she had not acted maliciously. Therefore to support the findings about the wife’s ability to provide for the emotional needs of the child and danger to the children it was necessary to link the wife’s attitude to the issue of false allegations of sexual abuse with her New Age beliefs and it was only Dr. W. who did this.

Their Honours were of the opinion that Dr. W. had demonstrated bias and thus little, if any weight, should have been attached to his opinion. He was brought in to the matter at an extremely late stage, had seen none of the parties or the children, and had stepped out of the role of an expert witness and assumed the role of advocate for the husband.

Case Example

The mother has been assaulted by the father including sexual assault. The mother had formed the view that the children may well have been sexually interfered with by the father. The mother obtained a referral to a Counsellor. The Counsellor informed the mother that the children had been sexually interfered with. The mother believed what the Counsellor had told her as it also accorded with her suspicions. The Trial Judge made a positive finding that there had been no sexual abuse but nevertheless ordered that contact be supervised because of the mother’s belief and the related concern that if contact were to be unsupervised, false allegations of sexual abuse might be made against the father.

E. Best Interests of the Child

As the High Court stated in M and M the test is seen through the prism of what is in the best interests of the child both in a general sense and the shopping list now contained under section 60CC. This step needs to be considered carefully and should not be brushed over.

Case Example

The father had in the mother’s case terrorised her and her son from a former relationship including having the son hold out his penis on a barrel to be hit by the father’s hammer. (It was never hit). The parties had a three year old daughter and the mother raised serious concerns (assault and neglect) regarding care by the father. The father denied the allegations. The mother also made extensive allegations about domestic violence. A report was obtained from the Contact Centre where the father was exercising supervised contact. It showed that in effect whatever the truth of the other matters (and on those the Trial Judge found in favour of the mother), the father had not in any case bonded with his daughter at the Contact Centre, merely attending like a disinterested observer. In that case even if the father had been successful in every other element one would have to question whether in the ultimate result he would have spent time with his child in light of that behaviour.

F. Supervised or No Contact?

Often parents who bring forward these allegations are loathe to suggest that there be no contact. There are a variety of possible reasons for this, but they include that of being seen to make false allegations and the associated threat of removal of the child from that parent’s care, e.g. in Re David (1997) FLC 92-776 the mother made allegations that the father had sexually interfered with the child. The mother was not believed by the Trial Judge. The child was placed in the father’s care with the mother to have the most limited contact. During the course of the appeal the mother admitted that the allegations that she made were false. Not surprisingly the Full Court ordered that the child remain in the father’s care.

In A and A at the trial the mother sought an Order that the father have no contact with the child. The Trial Judge ordered contact at weekends and school holidays to be supervised for nine months and thereafter unsupervised but with the qualifier that the independent psychiatrist could talk to the children about the assault, and the mother’s belief that the father was responsible for the assault and the father’s denial of the assault. Obviously one effect of such attendances might be that the children did not want to see their father anymore.

On appeal, the mother, although she opposed contact, sought as a great reluctance a second option that the father have supervised contact. The husband’s position was that the Orders of the Trial Judge should continue. The children’s representative supported the husband’s position. The children’s representative stated that the events of the assault were a ‘one off incident’, that the circumstances were unknown, that the assault was not against the children, and that there was no history of abuse of the children by the husband and evidence suggesting a ‘propensity’ for abuse towards them. She submitted there was no unacceptable risk to the children and emphasis the benefits which, she submitted, would flow to the children by continuing to have contact, unsupervised after an initial period. Whilst the children’s representative stated it was a ‘one off incident’ it was apparent that there had been previous assaults by allegations made by the wife of violence perpetrated upon her by the husband previously. Both the Trial Judge and the children’s representative did not concentrate on those but in the circumstances, not surprisingly, tended to focus solely on the last assault with the children’s representative incorrectly described as ‘one off’.

The Full Court ordered that the father has supervised contact at a Contact Centre each Saturday between 9.00am – 5.00pm or such other person agreed to by the mother.

At paragraph 4.5:

“We emphasise, however, that the supervision needs to be by a person or persons who will endeavour to ensure that the risk which we have identified is eliminated.”

The Full Court adopted the Trial Judge’s Orders relating to the psychiatrist attending upon the children.

One can only wonder that if the mother had stated at the appeal that she was completely opposed to supervised contact, whether it would have been ordered.

Going back again to Carmody J in Murphy and Murphy [2007] at [96]:

“When abuse has been established there are many other factors to consider, in particular, therapeutic issues for the child who may need a significant amount of time away from the perpetrator in order to heal. Supervised contact, at least for a time, can provide a solution in equivocal cases of alleged abuse.

Still, supervised time is onerous and inconvenient. It carries with it implications of dangerousness and suggestions of risk against the supervised parent. It can also be costly for parents and demanding on children, both physically and emotionally, to have to have visits at a contact centre every week or so. Supervision should, therefore, only be ordered where it is really needed, likely to be effective and beneficial to the child. Otherwise it is not only unfair on both parent and child, but could be counterproductive or, worse still, positively harmful.”

Case Example

TF and JF and the Child Representative [2005] FamCA 394

There were three children of the marriage, C, H and A aged 10, 9 and 7 who lived with the mother.

The father had fortnightly contact with the children, supervised at a contact centre as well as weekly telephone contact.

The father suffered from a sexual addiction and had two diagnosed sexual conditions: Fetishism and Tranvestic Fetishism. He denied paedophiliac tendencies, in particular he denied that he sexually abused any of his children or that he accessed child porn websites.

The mother said that A and H had said that the father had subjected them to sexually inappropriate behaviour. The mother also reported that C had reported seeing porn on the father’s computer. The mother was fearful of the father spending any time with the children.

Both A and C had expressed wishes not to have contact with the father, whereas H expressed the wish to continue to spend time with the father.

The supervisor at the contact centre said that contact had been successful and each of the children appeared to enjoy their time with the father.

A psychiatrist gave evidence that a diagnosis of paedophilia would be difficult to substantiate and that the father had a low potential for abusing his children. He concluded this was a complex case where the father’s sexual problems would not necessarily indicate a risk to the children but there was a need for supervision away from the father’s home to protect the children from accidental exposure to porn.

The trial judge found there was ample evidence to support the view H and A believed their father had sexually abused them. She relied on M and M in that “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 …”.

Her Honour accepted the mother’s evidence that in the period shortly before separation, she left A in the care of the father whilst the mother worked outside the home and during that period, A became noticeably withdrawn and anxiously asked questions as to whether she was to be left with the father. Her Honour relied on this evidence, together with A’s feelings of discomfort towards the father expressed in the family report, in finding it is more likely than not A believes the father sexually abused her.

Two experts reported that the children’s wishes, despite their young ages, should be taken into account. The reports did not support the mother’s position that H believed the father had done the things described in her disclosure and H expressed a positive wish to have contact with her father.

Her Honour said: “there would be an unacceptable risk of emotional or psychological harm to each of the children if supervised contact were ordered”. In making this decision, her Honour also had regard to the children’s wishes and the mother’s capacity to provide for the needs of C and A if contact were ordered in circumstances where they continuously expressed they did not wish to exercise contact and the mother held a not unreasonable belief the children had been sexually abused by their father.

Her Honour declined to order telephone contact on the basis it might cause upset and confusion to the children.

In relation to the provision of school reports and medical reports to the father, her Honour concluded “there is no basis to think that these orders would be in the children’s best interests”.

The majority held that her Honour was in error in her finding relating to the probability the children believed that the father had done the things which were the subject of their disclosure due to the ambiguity of the evidence. The meaning of the words used by H was not the subject of cross-examination and could not be adequately understood as to draw any adverse conclusions about them relating to the father. There was no evidence to conclude A had any memories of the events themselves despite her negative feelings towards her father. Also, “H’s behaviour in wanting to spend time with her father and seeking him out could belie any findings that the child believes the father has in fact acted towards her in an inappropriate manner.”

Her Honour did not explain her conclusion that it was not in the best interest of the children to provide the father with the children’s school reports and medical reports. The capacity for a parent to meet the requirement of parental responsibility must carry with it some knowledge as to the progress of the children and their needs. “[U]nless it was positively demonstrated that the provision of such information might be detrimental to the child, that information should be made available.” The mother was ordered to keep the father informed of medical and health issues in relation to the children and authorise any schools to provide copies of reports, photographs and awards obtained by the children.

There was no evidence “the mother’s parenting capacity would be so adversely affected by the continuation of contact that the children’s welfare would best be served by acceding to the mother’s wishes”. The children were prospering academically and socially at school, which reflected well on the mother’s capacity to parent.

Given C’s age and her wishes as related by both the mother and the counsellor, the Court would not interfere with the trial Judge’s decision in relation to C. The orders were set aside in so far as they provided no contact to H and A; the father to have contact to H and A for three hours on the second and fourth Sunday of each month at the contact centre.

G. Who Should Supervise?

Ordering an agreement to supervise is not enough. Thought should be given about practical issues:

Availability, such as a Contact Centre;
Safety: and

In B and B (1993) FLC 92-357 the Full Court stated on page 79,780:

“In our opinion, a Trial Judge who has made a finding that an unacceptable risk of sexual abuse exists, or that sexual abuse did occur should look to the level of trauma, in the widest sense, that has been occasioned to the child or children or may be occasioned in the future, to determine whether supervised access is appropriate. If there was an unacceptable risk of the child or children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised access is not appropriate because of the Court’s obligation to protect children from such harm.

In circumstances where abuse has occurred or when there is an unacceptable risk of such abuse, access should be suspended until such time as the access parent can show that there is no longer an unacceptable risk in access recommencing. In some cases this will involve an acknowledgement by the access parent that abuse has occurred together with evidence of appropriate treatment. In most cases, other family members must have the opportunity to resolve the effects of the trauma to the children and the children have the opportunity to recover from the effects of any such abuse. Without that ‘time out’ and counselling/treatment, the children’s feelings of distress and fear may well be re-stimulated by contact with the access parent, despite the alleged assurance of safety provided by a supervisor. Supervised access may then be capable of being ordered for the time limited purpose of re-establishing a relationship between the access parent and the children. Supervised access is not appropriate as a long measure [emphasis added].

Suspension of access for a period of time may be important for the custodial parent as well as for the children. It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact on the parent’s ability to care for the children.”

In B and B p.79,780 – 79,781 the Full Court stated:

“Both social science literature and experience demonstrate that it is generally inappropriate to have friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists … Family and friends are not neutral but were usually, as in the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense they cannot always be present and may fail to respond protectively to complaints of abuse of distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children’s behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.

For the above reasons, it is in most cases undesirable for friends or family of the access parent to supervise the children during access periods in circumstances where abuse has been found to have occurred or where there is an unacceptable risk of abuse occurring.”

4. Conclusion

Carmody J said in Murphy and Murphy at [112]:

“[F]amily law parenting orders are really never final. People and circumstances change. Many relationships develop and deepen; some deteriorate. Risks reduce and what might not have been once possible may be at a future time. … Supervision can enable assessment of the developing relationship between parent and child. With subsequent reporting back to the court it can be a useful diagnostic tool in cases in which there was real doubt about whether contact ought to go ahead at all, or if an when unsupervised parenting time should be reintroduced. In these cases the supervision order is neither final nor interim.”

As an American colleague of mine recently said:

“The problem, as always, is that too many lawyers, evaluators and judges–assuming they have even a basic understanding of DV–just don’t deal well with the articulate, manipulative batterer on one side and the traumatized victim on the other. They don’t make the connection (evaluators and judges, that is) between battering behavior and a) child abuse in the home, b) exposure of children to DV and c) the very high likelihood that the batterer will not ever change his controlling and abusive behaviors. The evaluators (and this is a generalization, of course; some actually get it) actually believe the abuser will change so they naively recommend shared custody because they didn’t bother to read … books that say it’s often NOT a good idea. The judges, who are charged with making really difficult decisions in these cases, see the evaluators’ recommendations as a magic bullet that will make everyone happy, then follow the recommendations. And these events are all in the context of a great set of statutes and some pretty good appellate case law … on DV issues.

We see an increasing number–but not yet even a simple majority–of evaluators and judges who don’t seek the magic bullet and do the right thing. It’s just that change comes so slowly.

I am constantly amazed that people who are supposed to be practicing family law don’t know how to draft an affidavit that presents the nitty-gritty facts of abuse to their judges, so that the judges get an early opportunity to understand the cases. (This is also critical, of course, if the case is later appealed, but that’s another lesson.)

Another problem that’s actually caused by our great statutes is that enactment of the presumption against placing a child in custody of a batterer has, in effect, raised the bar for proving DV in protective order cases where there are custody issues because (as I see it, as a mere lawyer) the judges don’t want to pre-decide custody based on preponderance DV findings when they will later have to analyze the facts under our best-interests custody statute. Under those circumstances, most (but not all) of our judges bend over backwards to avoid finding that DV occurred. I have even seen protective orders denied after I presented enough evidence that I could have convinced a jury beyond a reasonable doubt back when I was a prosecutor!”

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