In a recent Appeal of a decision of the Family Court of Australia, the Appellant Court reviewed orders between the parties in respect of their two children under Pt VII of the Family Law Act 1975.
The orders made provision for the children to live with the mother and for her to have sole parental responsibility for them.
Relevantly, however, the orders also made provision for the children to spend time and communicate with the father and required the parties to ensure the children’s consultation with a psychologist appointed by the Independent Children’s Lawyer.
The orders which require the children to spend time and communicate with the father were intended to resolve those issues until that discrete aspect of the parties’ dispute was given further consideration about six months ahead. While the orders did not therefore finally determine those issues, it is clear from the reasons for judgment that the primary Judge was only intending to contemplate the expansion, not constriction, of the children’s interaction with the father after December 2021.
The mother appealed this judgment.
The central challenge in the appeal was that the primary judge erred at law when assessing the risk of harm posed to the elder child as “low” and to the younger child as “even less [than low]” as a consequence of their prospective sexual abuse by the father or a member of his family and, further, by finding the children would not be exposed to an unacceptable risk of harm by spending unsupervised time with the father.
The mother’s appeal was supported by the ICL, but resisted by the father.
For the reasons which follow, the appeal was dismissed.
The mother made allegations about the father’s physical (but not sexual) abuse of the elder child, causing the doctor to make a mandatory report of her allegations to the New South Wales child welfare authority. As a consequence, the elder child was then referred to a psychologist for counselling.
The mother withholding child from father Australia altogether, ending the arrangement she initially implemented for the children to spend time with the father if supervised by the maternal grandfather.
Relying upon statements made by the elder child to the mother and the maternal grandmother, the mother concluded he had been sexually abused by the father. Consequently, the mother brought an urgent application to immediately suspend the existing interim orders and stop the children from spending supervised time with him. Those orders were suspended in May 2019. Neither child saw the father after that.
The trial was heard by the primary Judge over five days in August 2020, with the pre-eminent issue being whether the father posed an unacceptable risk of harm to the children.
The mother’s case was that the father posed an unacceptable risk of harm to the children because, historically, he had physically and sexually abused the elder child. She sought an order mandating that the children spend “no time” with the father because, as she contended, it was more important to protect them from the risk of harm he posed than to ensure they derive benefit from their relationships with him
The father’s case was that he had not physically or sexually abused either child, he had always enjoyed close and loving relationships with both children, and their interests were best served by immediate re-introduction to him to avert any detriment to their emotional welfare, which would otherwise occur if their estrangement was allowed to continue. Realising the children had been withheld from him for well over a year by the time of trial, the father proposed their staged re-introduction to him, beginning with supervision so as to abate any anxiety which may be experienced by either them or the mother. He also suggested, as an alternative option, that the orders be reviewed some six to twelve months ahead, after the family therapy proposed by the ICL had begun.
The orders made by the primary Judge reflected the primary Judge’s acceptance of the father’s case and rejection of the mother’s case. Specifically, the primary judge rejected the proposition that the father posed an unacceptable risk of harm to the children.
In the Magellan Family Report the family consultant said as follows:
[The elder child] has reportedly made a number of statements since March 2019, which suggest that he has been sexually abused by [the father]. When a young child makes a disclosure indicative of sexual abuse, it is always important to consider what the child has said, and the context for the child making such a disclosure. This is important as children do not have a mastery of language, and a simplistic view of the world, and they may thus not be able to provide and accurate description of events, and this may give way to misinformation.
Furthermore, children can also be vulnerable to suggestions, and they may also be inclined to try to please adults, and this means that children can sometimes agree with false statements or make false statements they have been lead to believe an adult wishes to hear.
For example, if an adult asks a child whether a particular person has touched them inappropriately, a child may be vulnerable to answering in the affirmative, even if the event has not taken place, particularly if they have been asked this question a number of times and the adult asking has not appeared contented by their pervious responses. There is also the possibility that a child can come to believe that something has occurred if they are repeatedly questioned about certain events, or repeatedly asked to say that certain events occurred.
While it is sometimes difficult to determine whether child sexual abuse has occurred because a child has provided an inadequate description about what has occurred, the statements reportedly made by [the elder child] seem to be very clear disclosures that sexual abuse has occurred. Notably, [the elder child] has reportedly clearly stated, amongst other things, that his father and his [the paternal uncle], put their penises in his bottom and, on a separate occasion, that his father put [the elder child’s] hand on his [the father’s] penis and in his [the father’s] bottom.
From the information provided by [various witnesses] in affidavit material, [the elder child’s] statements regarding sexual abuse were unprompted. It does not appear that [the elder child] was ever asked directly by any of them whether [the father] engaged in sexual acts. From what is detailed in affidavit material, it does not appear that [the elder child] was subjected to any probing utterances that might have lead him to make a false statement about sexual abuse. If it is accepted that [the elder child] has disclosed information in the manner stated, there would be little concern that [the elder child] has inadvertently been influenced to make these statements. It is, however noted that it might very well have been difficult for [the witnesses], to recall exactly what [the elder child] said at the time of [the elder child] allegedly disclosing such information.
It is also noted that in the Project Magellan report that [the maternal grandmother] acknowledged some of her questions to [the elder child] were leading. In one discussion with [the elder child], fantasy was used in an attempt to support [the elder child] to talk about disclosures. If this has occurred, there may be some question about whether [the elder child] has accurately stated what has occurred, or whether he may have been inadvertently led to make a false disclosure. Consideration about whether [the elder child] might have inadvertently been led to make a false disclosure of sexual may need to account for what leading questions and fantasy scenario [the maternal grandmother] might have put to [the elder child], and when this occurred.
Unfortunately, the Family consultant was unable to find any further information about this in what was able to be viewed of the DCJ file. The multitude and variety of statements made by [the elder child] to various people, however, might ward against believing that [the elder child] has been inadvertently caused to affirm that sexual abuse has occurred.
(Emphasis added)
The primary Judge’s decision was appealed by the mother
The question of whether or not an unacceptable risk of harm is posed to a child is determined by application of the civil standard of proof under s 140 of the Evidence Act 1995
.. In determining what orders will be in a child’s best interests the Court must consider the matters in s 60CC(2) and (3) of the Act. When considering the matters in s 60CC(2) the Court is required to place greater weight on the need to protect a child from physical or psychological harm, and from being subjected or exposed to abuse, neglect or family violence.
Unacceptable risk requires two separate steps. Is there a risk, and is it unacceptable? The concentration is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’.
Since the children had not seen the father for about two years preceding the pronouncement of the appealed orders, the primary judge was satisfied the children should be initially supervised with the father to reassure the mother, to support their re-introduction to him (which would also be facilitated by family therapy with a psychologist) and to restrict the chance of further allegations being made against him.
The Appellant Court decided that the mother failed to establish her case that the father poses an unacceptable risk of harm to the children
The appeal will be dismissed.
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