Mother Alleges Sexual Abuse of Child Against Father
Allegro & Oswald [2021] FCCA 1442 (21 January 2021)
The mother opposes the father's application for unsupervised time with their children. The mother alleges that their child Y has made disclosures that the father sexually abused her. The mother applied to strike out evidence provided by the jointly appointed Court expert.
Facts:
The mother alleges that Y has made disclosures that the father has touched her inappropriately, that such poses an unacceptable risk of harm for this child spending any unsupervised time with the father.
The father seeks an order that both children live primarily with him.
With regard to the evidence, the father and the Independent Children's Lawyer argue that the Court should make an order applying subsection 69ZT(3)(iv).
Senior Counsel for the mother argues that the Court should apply section 79, section 102 and section 135 of the Evidence Act which do not fall within the exclusion of section 69ZT, subsection (1) of the Family Law Act.
The mother, through her Senior Counsel, has invited the Court to strike the two affidavits from the jointly appointed Court expert, Mr B, annexing his family reports. Such evidence expressed that it is unlikely that the father sexually abused Y. The argument raised by Senior Counsel was that Mr B, in his reports, advances opinions inadmissibly that fall within the sole domain of the Court.
Issue:
Whether or not the child has been sexually abused by the father.
Applicable law:
Family Law Act 1975 (Cth) ss.69ZT, 117 - provides that the Court may apply rules of evidence if it is satisfied that the circumstances are exceptional and has taken into account its important, the nature of subject matter of the proceedings, the probative value of the evidence, and the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
Evidence Act 1995 (Cth) s 79 - provides that if a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person.
Evidence Act 1995 (Cth) s 102 - provides that credibility evidence about a witness is not admissible.
Analysis:
The case provides for circumstances that are considered exceptional because the allegations raised by the mother are serious in their implications for the child’s relationship with each of the parents – but particularly the father. With the best evidence available to the Court, there either has been some sexual abuse of this child or there is some risk of it or there has not been.
Contrary to the argument that was advanced alleging that the family report writer did not satisfy the test in relation to opinions expressed being wholly or substantially based on the specialised knowledge, Mr B, the jointly appointed Court expert, in his curriculum vitae, set out in his affidavits, indicates extensive experience in addressing issues of the risk of sexual violence by alleged perpetrators. However, Mr B has failed to set out in his report the basis of his conclusion of the factual issue that there was unlikely to have been any sexual abuse of Y by the applicant or that there is unlikely to be a risk of him doing so in the future.
Conclusion:
The Court concluded that application of rules of evidence is warranted in this case. Mr B's part of the evidence alleging that there sexual abuse was unlikely is deemed inadmissible.
The Court ordered that the applicant father should not be permitted to personally cross-examine the respondent mother; and the respondent mother not be permitted to personally cross-examine the applicant father.
The parties and the children are ordered to attend upon a Family Consultant as directed by the Manager Child Dispute Services on a date and time to be advised for the purposes of preparation of a family report. The Federal Circuit Court of Australia is responsible for payment of the cost of preparation of the family report.