· 2022-07-12T06:11:07+0000 · 664 posts

Father Opposes Finding of Unacceptable Risk Against Him Based on Tendency Evidence

Isles & Nelissen [2022] FedCFamC1A 97 (1 July 2022)

The primary judge ordered that the children should live with the mother and could spend only supervised time with the father. The father disputes the finding that he posed an unacceptable risk of harm to the children. The Court, in resolving this dispute, considered the primary judge's reliance upon evidence and its bearing on the assessment of risk.

Facts:

The appellant is the father, and the respondent is the mother. They are the parents of the four children. The eldest was aged 10 years at the time of judgment. In April 2018, when the eldest child was nearly seven years of age, he alleged that the father sexually assaulted him by penetrating his anus with a finger. There is no dispute the child actually made the allegation, because he made it in the presence of several adults and children, prompting the mother to challenge the father about the allegation at her home two days later on 20 April 2018, when he denied it.

The child was interviewed three times by police: first on 19 April 2018, when he made no disclosure of sexual abuse by the father; secondly, on 20 April 2018, when he did repeat the earlier allegation of his digital penetration by the father; and thirdly in November 2018, when he confirmed the alleged apology to him by the father on 20 April 2018. The father was charged with the child’s rape, but the prosecution was later withdrawn by the State Director of Public Prosecutions in June 2019 due to the “lack of specificity” in the evidence. The allegations against the father caused the mother to withhold all the children from him.

The father, dissatisfied with that situation, commenced proceedings under Pt VII of the Act in July 2018, seeking orders in respect of the children. Interim orders were subsequently made for the children to spend supervised time with the father. In September 2020, final consent orders were made for the children to live with the mother and to spend unsupervised time with the father following a period of graduated supervision, but those orders did not take effect. The designated representative of the State child welfare agency stepped in and commenced child welfare proceedings before a State magistrate, securing orders for the children to live with the mother and to spend only supervised time with the father.

The father commenced fresh proceedings under Pt VII of the Act, in response to which the child welfare agency agreed to participate as a party and abandon the welfare proceedings still pending before the State magistrate. The primary judge ultimately found out that the mother was induced to consent to the orders in September 2020, enabling the children to spend unsupervised time with the father, once she had been told by staff of the child welfare agency that they would never allow that to occur.

During the course of the litigation, the eldest child repeated his sexual abuse allegations against the father to third parties, including the single expert psychologist (at [87]–[88]), the Family Consultant (at [111]), and a paternal uncle (at [146]). The primary judge concluded the children should live with the mother and could spend only supervised time with the father.

Issue:

Whether or not the father posed an unacceptable risk of harm to the children.

Applicable law:

Evidence Act 1995 (Cth) s 140 - provides that the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities.

Family Law Act 1975 (Cth) Pt VII s 60CC - obliges courts to heed any need to protect children from physical or psychological harm through their subjection or exposure to “abuse”, “neglect” or “family violence”, for which purpose the terms “abuse” and “family violence” are very widely defined in ss 4(1) and 4AB of the Act respectively.

Family Law Act 1975 (Cth) Pt VII s 60CG - exhorts courts to avoid making orders which expose any person to an “unacceptable risk of family violence”.

Family Law Act 1975 (Cth) Pt VII s 64 - required the court to make parenting orders by reference only to the paramountcy principle, the child’s wishes and the desirability of avoiding further litigation.

Family Law Act 1975 (Cth) Pt VII s 69ZT - provides that a court exercising jurisdiction under Pt VII of the Act always has the option of ordering that one or more of the excluded provisions of the Evidence Act should apply if certain conditions are met.

Amador v Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196 - has pronounced that s 69ZT(3) will likely be invoked when one party seeks a positive finding of criminal conduct.

Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222 - provides that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk.

Blann v Kenny (2021) 64 Fam LR 120; [2021] FamCAFC 161 - where the trial judge made no positive findings of abuse and found that no unacceptable risk of harm was established, so orders were made for the children to spend time with the father.

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 - endorses an earlier enunciation of the common law principle of the civil standard of proof, now enshrined within s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”).

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 - provides that sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment.

Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251 - asserts 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 (Cth).

Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235 - where the trial judge found no unacceptable risk of harm to the child was posed by the father and made orders for the child to spend unsupervised time with him.

M v M (1988) 166 CLR 69; [1988] HCA 68 - emphasised the distinction between two very different things: on the one hand, proving alleged sexual abuse according to the civil standard of proof and, on the other, establishing the risk of the feared sexual abuse occurring in the future.

Maluka & Maluka (2011) FLC 93-464; [2011] FamCAFC 72 - provides that in exercising the power under s 69ZT(3) of the Act, the court is permitted to apply one, some, or all of the excluded parts of the Evidence Act to one, some, or all of the issues in the proceedings.

Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20 - provides that courts exercising federal jurisdiction and wielding discretionary power in family law proceedings are constrained by the terms of the governing statute.

N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139 - where the trial judge found the allegations of the father’s sexual abuse of the subject child were not established on the balance of probabilities.

Napier and Hepburn (2006) FLC 93-303; [2006] FamCA 1316 - where the trial judge was unable to make a positive finding that the father had sexually abused the child, but concluded the child would be exposed to an unacceptable risk of such abuse if he was to have unsupervised contact with the father.

Nikolakis & Nikolakis [2010] FamCAFC 52 - where the mother conceded the father had not sexually abused the subject children but alleged he posed an unacceptable risk of harm to them because of his “predatory sexual behaviour” towards other children.

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 - provides that a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result.

Potter and Potter (2007) FLC 93-326; [2007] FamCA 350 - where the trial judge positively found the child had been sexually abused but was unable to make a finding identifying the culprit as between the father and the maternal grandfather.

Re W (Sex abuse: standard of proof) (2004) FLC 93-192; [2004] FamCA 768 - where the trial judge found the father probably did sexually abuse the child and made orders prohibiting any contact between them because the benefit the child might receive from supervised contact was outweighed by the detriment.

W and W (Abuse allegations; unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892 - where the trial judge found the child’s alleged sexual abuse by the father could not be proven on the balance of probabilities, but there was an unacceptable risk of the child being abused if she had unsupervised contact with him.

WK v SR (1997) FLC 92-787; [1997] FamCA 57 - where the Full Court found the trial judge’s positive finding of sexual abuse was not open, as the evidence upon which the finding was based was insufficiently probative to satisfy the civil standard of proof.

Analysis:

The primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.

The primary judge inferred the existence of an unacceptable risk of harm to the children from a combination of facts and circumstances, including the elder child’s plausible but unproven allegations of sexual abuse by the father; the evidence of the father’s sexual interest in other adolescents; and evidence of the father’s interest in child exploitation material. Risks of harm are not susceptible to empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of “unacceptable risk” cannot be measured by the civil standard of proof.

From the way in which the order is couched, it purports to apply all of the excluded parts of the Evidence Act(1995) to all of the issues in the proceedings. That may not be what his Honour actually intended, but it is the objective effect of the order. The primary judge signaled an intention to apply the rules of evidence and to take and deal with objections as objectionable evidence arose. The father took no objection to the evidence adduced at trial.

In deciding whether or not the allegations of the father’s sexual abuse of the eldest child were positively proven, besides the direct evidence and inferences ordinarily available on that issue, the primary judge took into account as tendency evidence allegations about the father’s apparent past sexual interest in adolescents and his alleged interest in child exploitation material.

When taking that evidence into account, the primary judge found the father’s alleged sexual abuse of the eldest child still could not be proven to the civil standard of satisfaction. The father, therefore, suffered no prejudice, as no adverse positive finding against him followed from the admission and the reliance upon such evidence. Although the father may have disputed it, there was evidence adduced of his possession of child exploitation material on two different occasions, years apart in 2007 and in 2013.

Conclusion:

The appeal fails for lack of merit. The parties and the ICL were all recipients of grants of legal aid in the appeal. There should be no orders for costs.

#Appeals #Parenting