Russell v Close Appeal [1993] FamCA 62 (25 June 1993) SA45 of 1992 (unreported)
FAMILY COURT OF AUSTRALIA
BETWEEN: R
APPELLANT/HUSBAND
AND C
RESPONDENT/WIFE
Appeal No SA45 OF 1992
No. AD449 OF 1988
Number of pages – 12
Access
COURT
IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA
FOGARTY, BAKER AND LINDENMAYER JJ
HEARING
ADELAIDE, 31 March 1993
25:6:1993
Mr D Haines, instructed by Greg McGee, Solicitor, appeared on behalf of the Appellant Husband.
The Respondent Wife appeared in person.
Miss Ross, instructed by Legal Services Commission, appeared on behalf of the Separate Representative.
ORDER
Appeal dismissed with costs.
DECISION
FOGARTY, BAKER AND LINDENMAYER JJ This is an appeal from orders made by Justice Bulbeck on 9 October 1992, defining access by the husband to the two children of the marriage, M and A. The relevant orders were:
“3. That the wife do give and the husband do have access to two infant children of the marriage now dissolved on alternate Saturdays from 9.00 am to 6.00 pm on and from the 10th day of October 1992 and from 9.00 am to 6.00 pm on alternate Sundays on and from the 11th day of October 1992.
4. That the wife do give and the husband do have access to the said children during each school holiday period between the hours of 9.00 am and 6.00 pm on such days as agreed between the parties to the intent that the total access does not exceed one half of each such school holiday period and in default of agreement on such dates to the same intent as may be ordered by the Court.
5. That the parties do attend to effect the delivery and return of the said children at the commencement and conclusion of all access periods at the police station at Glandore in the State of South Australia unless the parties shall have agreed in advance in writing to effect such delivery and return elsewhere.”
HISTORY
2.The husband was born in England in 1948 and the wife was born in Thailand in 1955. The parties were married in Thailand on 3 June 1982. The parties moved to Australia shortly thereafter and separated in January 1988. There were two children born to the union, M in September 1984 and A in August 1986.
3.Following the separation the parties agreed that the husband have access to the two children each Saturday afternoon and in April 1988 the access arrangement was varied, whereby the husband exercised access each weekend from 10.00a.m. on Saturdays until 1.00pm on Sundays. In April 1989, access was again altered by agreement of the parties, as a result of which the husband exercised access on alternate weekends from 10.00 am on Saturday until 1.00 pm on Sunday.
4.In October 1988 the husband gave an undertaking, without admissions, that he would not, during access or otherwise, give alcohol to the children, swear at them or at the wife, or attend unannounced at her premises.
5.The husband continued to exercise alternate overnight weekend access until, on 27 September 1991, after an argument between the parties concerning the husband’s smoking in the presence of the children, the wife refused to allow the husband access to the children.
Thus, alternate weekend access ceased shortly before the wife married Mr C in October 1991.
6. The present dispute between the parties arose because of the wife’s belief that A has been sexually abused by the husband and it is necessary therefore to record the history of events which led up to the allegations being made and the various investigations which then took place in relation thereto.
7. On 29 April 1990, at the conclusion of an agreed access period, A complained of pain in her vulval area and a sore throat. The child was taken to the Flinders Medical Centre where she was seen by a Dr Murray who, as one of several possibilities, suggested that the child may have been sexually abused. The wife subsequently spoke to a social worker at the Department of Family and Community Services and appointments were then arranged for a consultation with Dr Blake, a paediatrician, on 2 May 1990. Dr Blake’s report, which appears at pages 1 and 2 of volume 2 of the Appeal Book, contains the following conclusion:-
“While it could have been a congenital variant and therefore of no significance it is more likely that there has been some direct trauma from interference to the hymen with some distortion of the hymenal edge.”
8. The child was interviewed by Mr Mulhearn, a senior assessment worker attached to the Child Protection Service at the Flinders Medical Centre, on 4 and 5 May 1990. Mr Mulhearn’s report, which appears on pages 7 to 10 of volume 2 of the Appeal Book, contains the following conclusion and recommendations:-
9. Early in July 1990, the wife informed Mr Mulhearn that A may have been interfered with two years earlier at a child care centre. As a result Mr Mulhearn again interviewed the child. Mr Mulhearn’s second report appears at pages 11 to 15 of volume 2 of the Appeal Book and at the end of that report, the following conclusions and recommendations appear:-
“This assessment was the second invitation I have given to A to talk about touches. She was comfortable with the interview setting and had ample opportunity to refer to abuse if it was a current problem for her. Nevertheless, A has not made any allegations of sexual abuse. Her clear reluctance to answer questions about touches to the genital area can be a symptom of previous abuse, but can also be adequately explained by embarrassment about discussing the topic. The assessment of M Russell raised no concerns that he had been abused. Nor did M give any reasons for his recent refusal to go on access to his father.
He conceded that he wants to visit his father sometimes, but not all the time. I recommended that Mrs R periodically talk with A in particular, about protective behaviours. I also made sure that Mrs R knew how to contact FACS and how to seek help out of hours if the need arose. Otherwise, no further action was planned.”
10.The husband instituted proceedings on 13 November 1991 seeking orders for defined access from 5.30 pm on Friday until 6.00 pm Sunday each alternate weekend and for half of all school holiday periods. On 19 November 1991 resumption of previous overnight alternate weekend access by the husband to the children was ordered in respect of two dates during the period of adjournment.
11.On 17 November 1991 the wife swore but did not file her first answer and cross-application which gave four reasons for opposing the orders which the husband sought as follows:-
(a) The husband’s flat contained only two bedrooms, one of which was sublet, and the children therefore slept in the same bed as the husband;
(b) The husband failed to ensure the cleanliness of the children;
(c) The husband was contributing to a superannuation scheme rather than paying maintenance for his children; and
(d) Whilst the husband had apparently adhered to the promise not to give the children alcohol, the husband had failed to honour his promise not to swear at the wife.
12. The document made no reference to alleged sexual abuse of A by the husband. It was argued on appeal by the wife that the reasons for this omission were that the wife felt that there was as yet insufficient proof to support such an allegation and that Mr C did not at that stage believe the allegations made by the child to be true. The trial Judge found that the husband was unaware of any suggestion of sexual abuse concerning A until he was served with the wife’s revised answer which was sworn and filed on 10 December 1991. Information regarding alleged sexual abuse was first brought to the attention of the husband and the court by way of this document.
13. On 5 June 1992 the Legal Services Commission, acting on behalf of the separate representative of the children, sought information from the Department for Family and Community Services in relation to that Department’s investigations of allegations of sexual abuse concerning A.
14. On 5 August 1992 the Department of Family and Community Services, by letter, gave particulars of the Departmental investigations into the allegations of sexual abuse. The relevant part of the said letter was as follows:-
“The assessment indicated some ambiguity as to the occurrence of sexual interference. Also, as there had been no disclosure from A, we were unable to conclude the identity of the alleged perpetrator. However, given the findings of the medical examination and Dr Blake’s reference to the possibility of sexual interference, it was decided that the allegations should be registered as sexual abuse of A Russell.
This office decided to take no further action due to the inconclusive outcome, lack of disclosure by A and Mrs R’s request that her ex-husband NOT be informed of abuse allegations. Mrs R indicated her fear of reprisal from Mr R, given allegations of a
history of domestic violence and intimidation.”
15. As a result of a letter written to Dr Blake by the wife’s husband, Mr C, Dr Blake again interviewed A on 24 June 1992 at the Flinders Medical Centre. Dr Blake’s report, which appears at pages 3 and 4 of volume 2 of the Appeal Book, reached the following conclusion:-
“My conclusion (is that) the hymenal opening appeared larger than normal for her age and the hymenal tissue appeared to have been stretched. This would indicate that interference in the past is the most likely cause for the hymenal changes. The hymenal changes did not appear to be due to a congenital variant.”
“A was re-referred to the Child Protection Service to assess an allegation of sexual abuse by her biological father, Mr R.
This re-assessment occurred because it was claimed by A’s mother and stepfather that A had alleged that Mr R had touched her vulval area, on many occasions. Further, a medical re-examination of A had concluded that the physical evidence obtained was more consistent with an explanation of physical interference than congenital variation. A made an allegation at the Child Protection Service, in response to direct questions, implying that Mr R had touched her vulval area.
The reliability of A’s allegation of sexual abuse by Mr R cannot be established, in my opinion. Unfortunately, the truth of this matter is obscured by the context in which A made this allegation. She has been interviewed about concerns of sexual abuse, albeit generally, on three occasions over a two year period. There was an overt acceptance by A’s mother and stepfather that sexual abuse by Mr R had occurred, and evidence that this matter had been discussed with A on more than one occasion. This most recent assessment occurred after a problematic series of Family Court hearings, which had been unsuccessful in establishing the nature and frequency of access visits. Nonetheless, elements of A’s allegation were logical and presented in a way that suggested she was describing an actual experience. While little information was given spontaneously, and there were some inconsistencies in her allegation, there are plausible explanations for these factors that could be consistent with A’s claim that sexual abuse occurred. The medical evidence further suggests that, at some time in her life, A’s vulval area has been physically interfered with. As such, it is my opinion that the allegation of sexual abuse of A by Mr R cannot be definitively confirmed. This does not mean that sexual abuse of A has not occurred. However, the context in which A made a disclosure of sexual abuse was potentially influential, while I accept that any such influence may well have been unintentional on the parts of Mr and Mrs C. The most problematic aspect of this ambivalent conclusion is establishing how to protect A in the future. She has made an allegation of sexual abuse about her biological father which may be true, but cannot be established. If the allegation is true, then it is important that A experiences being believed, and that she is protected from further abuse. If the allegation is not true, perhaps as a consequence of A feeling pressured to say something about her father, then protection is obviously less of an issue. While A was generally reticent to discuss her experiences of her family, there were indications that her father features in a positive way in her life. Therefore, considerations of future safety need to be balanced with A’s apparent desire to continue to have contact with her father. To balance her safety and her wish to see her father, supervised access may be required.
There was also discussion with Mr and Mrs C about the level of care A (and M) received while on access visits with their father.
It is my understanding that this issue had been recognised by the Family Court with a recommendation made that Mr R contain his drinking and smoking behaviour when the children are in his care.
I have not yet met with Mr R, for the reasons previously explained and therefore cannot comment on the extent of his drinking behaviour. If, however, this is an identified problem, then it would be useful to request that Mr R obtain appropriate support to change this behaviour. His commitment to taking this action, if required, would further contribute to A’s (and M’s) safety when in his care. Obviously, if Mr R’s drinking behaviour is not an identified problem, then such steps are unnecessary. Regarding A’s emotional status, there were no indications of major concern at this point in time. It is my understanding that Angel is managing well at school, while experiencing some difficulty with friendships. The main concern I have is the emotional effect on A of the protracted negotiations about access. It is essential that this matter be settled and that the decision be accepted, at least in front of the children. Ongoing discussion in front of A (and M) by either Mr and Mrs C or Mr R is at the least confusing, and probably detrimental in the long term to the children’s ability to develop the relationships they need with their parental figures.”
17.The trial commenced on 17 September 1992 and proceeded for five days. Her Honour reserved judgment and judgment was delivered on 9 October 1992.
GROUNDS OF APPEAL
18.In the course of his submissions to us, Mr Haines for the appellant husband, raised three main issues, which we now record and deal with seriatim.
19. That the trial Judge, having found that the husband had not sexually abused the child, erred in refusing overnight access and, in any event, that it was illogical on the one hand to deny the husband overnight access, yet on the other to allow daily access by him to the children to be unsupervised. 19. In her reasons for judgment, the trial Judge recorded the history of the access arrangements subsequent to separation and then dealt comprehensively with the sexual abuse allegations in relation to A, their effect upon the child and, in particular, the impact which they have had upon the wife’s attitude to access, particularly with regard to overnight access.
20. The trial Judge’s findings in relation to the sexual abuse issue appear in the following passage at page 29 of volume I of the Appeal Book:-
“However, the husband is now in a position in which it is established A was, at least once at some time in her life up until about three weeks before 24/6/92, sexually abused on at least one occasion. As the wife said similarly in her affidavit, Mr C said to Miss Tucker that A told the wife that not the husband, but a boy across the road (presumably from the husband’s residence) “touched” her but he and the wife believed the child was prompted by the husband to say so. The evidence on this alleged statement by A on 6/2/92 is uncertain and no definite reliance could be placed upon it. The husband has, however, perhaps been too optimistic that the children would be suitably supervised by the 14 year old boy in the play area as once, recently, the children spoke of a strange man in the area and on another occasion a woman hitting her child. The husband went immediately to the play area but saw no such person. However, with hindsight, it could have been wise for him to take the precaution of always supervising the children himself, or another suitable adult if for some unforeseen reason he could not do so. He knew of the wife’s stance from her 10/12/91 answer.”
21. Although her Honour accepted the medical opinion of Dr Blake, she was not satisfied that the husband was the person who had sexually abused the child on at least one occasion, as Dr Blake asserted. Having found, therefore, that the child had been sexually abused on at least one occasion and, at the same time, it not having been established to her reasonable satisfaction that the husband was the abuser, it was then necessary for her Honour to consider what would be the appropriate access order. The trial Judge was required, as far as was possible, in order to protect the child from further abuse, to assess the risk to the child if access to the husband were to proceed on an overnight and an unsupervised basis.
22. Her Honour’s reasoning process in reaching her final conclusions may be found in the following passages from her reasons for judgment, which appear at pages 30-32 of volume 1 of the Appeal Book:-
“Both Miss Tucker and the welfare officer agreed in no objection to overnight access if no sexual abuse by the husband occurred, plus per Miss Tucker if there were no other concerns and per the officer if the children wished such. The children have indicated by implication that they envisage overnight access in their contemplation of access which they wish to maintain with the husband. The court must place the best interests and the welfare of the children as first priority and not the wishes or feelings of either parent. I am not satisfied that the husband was the person who sexually abused the child on some at least one occasion found to have occurred in the medical opinion of Dr Blake.
However, the wife has convinced herself that it was the husband who has sexually abused the child and she obviously does not wish to even contemplate that someone else may have caused the signs of past such interference observed by Dr Blake.
The children under the current situation must live with the wife and Mr C as well as visit the husband. Although I do not find a specific ground for refusing overnight access to the husband, I consider it is unsafe for the husband to have overnight access at present in the sense that I am satisfied she would use such occasions to make more allegations against him, and even if she had no valid ground at all to do so, as to current events. Thus, having heard the wife’s evidence, there is a high probability of further accusations from her if the husband cared for the children overnight in the immediate future without a reliable witness being present and the husband said, in effect, he could not arrange such person to be always present. I take this to include that he could not arrange that a reliable person, eg, a woman, sleep in the same room as A overnight. This would be one way in which the wife’s possible future accusations could be refuted. There may be other methods, but no such proposal was put forward by the husband. I consider it is to the benefit of both children to continue regular contact with the husband. I do not consider it is to their benefit that they run a risk of the wife, in an hysterical and deliberate pattern of behaviour, causing further scenes to which overnight access would lend fuel. I am satisfied on the evidence as presented that there is not an unacceptable risk on this topic if day access is granted and the husband personally always supervises the children.”
And then at p 33
“The children have to live with a mother who can be extremely hysterical and with a step-father who appeared on his evidence to be antagonistic and also uncharitable towards the husband in unnecessarily adding derogatory remarks about the children’s father in his evidence.”
(…)
As above, I consider there is no need for supervision by the day as the wife’s convinced suspicion of the husband will have less effect even upon her therein. Also, I am satisfied there is no unacceptable degree of risk for the children in any event in my proposed order. By such day access it is hoped that even if the wife does believe her allegations against the husband are true, she will be less likely to repeat such matters in front of the child.”
23. Before deciding what the appropriate order for access should be, the trial Judge was required, having regard to those findings, to consider, inter alia, the following factors:-
(a) That the child had probably been sexually abused on at least one occasion;
(b) Her Honour’s finding that she was not satisfied that the husband was the abuser;
(c) That the husband sought unsupervised overnight access;
(d) That the wife believed that the husband had abused the child;
(e) That the wife opposed overnight access, whether supervised or not; and
(e) The likely reaction of the wife to any order for access, and the impact upon the children of her reaction.
Cases involving allegations of sexual abuse of children.
24.The principles governing cases involving allegations of sexual abuse of a child or children of the marriage were recently discussed at length by the Full Court in the decision of B and B (1993) FLC 92- 357. The Court in that case considered the test laid down by the High Court in M and M (1988) FLC 91-979 at page 77,081 for determining whether to grant custody or access to a parent. The High Court determined that in order to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access, the test was “best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.” With respect to that test, the Full Court in B and B (1993) highlighted a number of issues of relevance to this case.
25. Any finding that the allegation is proved or not proved, or that there is insufficient evidence to make a finding either way “may not necessarily be the determinant factor in the ultimate decision”. (at page 79,777). In this regard, the High Court in M and M stated that there are strong practical family reasons why the Family Court should refrain from making a positive finding that sexual abuse has actually taken place, unless it is impelled by the particular circumstances to do so. (M and M at page 77,081).
26. The Full Court emphasized that whilst the High Court in M and M acknowledged that findings in relation to a disputed allegation of sexual abuse will “have an important, perhaps a decisive, impact on the resolution of that issue” (M and M at page 77,080), the “unacceptable risk” test established by that decision must be employed within the wider context of the case, that is in determining whether the making of the orders sought is in the interest or welfare of the child. Specifically, the High Court stated at p 77,081: “It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.”
27. In addition, the Full Court in B and B (1993) noted that the High Court made it clear that the existence of an “unacceptable risk” does not refer exclusively to the risk of sexual abuse occurring. Rather, the existence and magnitude of the risk of sexual abuse was to be considered along with other risks of harm to the welfare of the child. Thus the High Court in M and M considered at p 77,081 that even in a case where supervised access is contemplated, there may nevertheless 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”.
28. The Full Court in B and B (1993) also noted the further statement of the High Court in M and M that “in access cases, the magnitude of the risk may be less if the order in contemplation is supervised access”. (at page 77,081).
Relevance of custodial parents beliefs.
“This means that she will be an anxious parent and this will impair her mothering capability.”
The Full Court in B and B (1993) at page 79,780 stated:
“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 adversely on that parent’s ability to care for the children.”
32.The responsibilities and obligations of courts exercising jurisdiction under the Family Law Act in relation to children were set out at length in B and B (1993) at page 79,799. In summary, it was stated by the Full Court that:
“it can be seen that the obligation cast upon the Family Court by statute is not only to promote children’s welfare (the content f which varies with changing social values regarding children) but also to uphold children’s rights (including the fundamental common law right of personal inviolability and the right to protection from physical and mental abuse laid down in the Rights of the Child Convention and implied by s64(1)(bb)(va) and ss70BA and BB of the Family Law Act).”
In upholding children’s right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on that parent’s caregiving ability.
33. In taking into account the belief of the custodial parent of abuse by the non-custodial parent of the children and the effect of such belief on that parent as primary caregiver of the children, and consequent harm to the children, a subjective test is employed. However, it must be shown that such belief on the part of the custodial parent is genuinely held. Where it appears on the whole of the evidence that such belief is entirely irrational and baseless, the genuineness of the subjective belief of the custodial parent will clearly be open to doubt.
34. In the present case, there was evidence upon which the wife’s belief that the younger child had been sexually abused by the father could have been based and we are satisfied that this belief was genuinely held.
35. The trial Judge, as we have said, made a specific finding of fact that it was unsafe for the husband to have overnight access at present, as the wife would use such occasions to make more allegations against him. She also concluded that it would not be to the children’s benefit to run the risk of subjecting them to “a hysterical and deliberate pattern of behaviour” by the wife in relation to such further allegations, which would cause “further scenes to which overnight access would lend fuel”.
36. Counsel for the husband contended that there was no evidence before her Honour to support either of those conclusions. He submitted that there was no evidence of any hysterical behaviour by the wife outside the court, and no evidence that the children had been affected adversely to date by any statements or actions of the wife. He submitted that it was a “quantum leap” for her Honour to move from the wife’s admitted hysterical comportment in the courtroom (during cross-examination about her raising of the sexual abuse allegations) to a conclusion that she would behave hysterically outside the court-room, on or in relation to access occasions, if the husband were granted overnight access, and that such hysteria would impact adversely upon the children’s welfare.
37. Her Honour had the unique advantage of hearing and observing the behaviour and demeanour of the wife in the courtroom during the proceedings, and particularly whilst she was under cross-examination. That advantage is of even more significance in this case than it is in most appeals because a copy of the transcript of the proceedings before her Honour was not included in the Appeal Book. We do know, from passages in her Honour’s judgment, that the wife at times behaved quite uncontrollably and inappropriately during the hearing. For example, at p 10 of the Appeal Book her Honour refers to the fact that the wife “several times became excessively antagonistic and from the witness box became verbally aggressive towards the husband to the extent of interrupting the hearing”. Similarly, at pp 26-27 her Honour recorded that “the wife at times also very obviously became tearful when she seemed not to want to answer a question directly”, and that “at other times in evidence her tears seemed to be more those of anger and she became very hysterical and aggressive in her words, manner and gesture in court, mainly towards the husband, but occasionally towards his counsel”. At p 33, her Honour referred to the fact that the children “have to live with a mother who can be extremely hysterical and with a step-father who appeared on his evidence to be antagonistic and also uncharitable towards the husband”.
38. Judges are entitled, and are frequently called upon, to draw inferences as to the likely future behaviour of a party to proceedings from that party’s past behaviour, as revealed by evidence in those proceedings. There is no difference, in principle, between behaviour of a party as revealed by evidence in the proceedings and behaviour of that party as revealed to the court directly in the course of the proceedings. No doubt when considering whether the behaviour of a party in court during the hearing of proceedings is a reliable guide to likely future behaviour by that party out of court, a judge will take into account the context in which the former behaviour occurred, and make due allowance for the fact that the surroundings and atmosphere of the courtroom are novel and perhaps stressful for the party and quite different from the context in which the party normally functions. Nevertheless, we are of the opinion that it is open to a trial judge to draw inferences as to a party’s likely future conduct in another context from the conduct which that party has displayed in the courtroom during the hearing of the proceedings. That is what her Honour did in this case, and we are unable to conclude that, in doing so, she erred in any way.
39. Having thus properly concluded that the wife’s likely reaction to an order for overnight access by the husband would be to indulge in a “hysterical and deliberate pattern of behaviour” involving further allegations of sexual abuse leading to “further scenes” between the parties, her Honour was entitled also to infer that such “hysterical behaviour” and “scenes” would be likely to impact adversely upon the children’s welfare, notwithstanding the absence of direct evidence of any such impact to date. Judges are entitled to bring to bear, upon the evidence before them, their ordinary common sense and general knowledge and experience of human nature and conduct. It seems to us that no direct evidence is required to entitle a judge to conclude that if children are constantly subjected to overt conflict between their parents over access, particularly where the custodial parent indulges in hysterical outbursts directed to the other parent involving allegations of sexual abuse, the children’s welfare is likely to be adversely affected.
40. We are therefore of the opinion that her Honour’s finding about the wife’s likely reaction to an order for overnight access and her conclusion as to the impact of that reaction upon the children were open to her upon the evidence, including the evidence which her Honour herself witnessed, in the form of the wife’s conduct and demeanour in the witness box in the course of the proceedings.
41. It was further submitted by the husband’s counsel, and by counsel for the Separate Representative, that it was quite illogical for the trial Judge, on the one hand to order unsupervised daytime access, and on the other to refuse to permit overnight access, whether supervised or not. It was therefore contended that her Honour’s discretion was not exercised “according to the rules of reason and justice”, but rather according to “private opinion” or “humor” (see Dwyer v Kaljo (1992) 27 NSWLR 728 at 744.)
42. We consider that this argument misconceives her Honour’s course of reasoning which led her to the conclusion reflected in her orders. Her Honour was not so much concerned with logic, as with reality, and she was obliged to regard the welfare of the children as the paramount consideration. She was faced with a very difficult choice. The children’s mother, their unchallenged custodian, believed that the younger child had been sexually abused by the husband. She was therefore, understandably, vehemently opposed to the husband’s having overnight access to the children. Her Honour was satisfied that the child had been sexually abused on at least one occasion at some time in the past, but was not satisfied that the perpetrator of such abuse was the husband. Notwithstanding her Honour’s finding about that,
she concluded (as we have found she was entitled to do) that the wife would be likely, if overnight access were granted, to indulge in hysterical behaviour, make further allegations of abuse by the husband, and create “scenes” in relation to access which would be likely to impact adversely upon the children’s psychological welfare.
43. At the same time, her Honour was of the view that the children desired to continue to have access to their father, and that some access to them by him was in their interests. Her assessment of the wife was that she would be less concerned about the possibility of further sexual abuse if access were limited to daytime access only. She therefore concluded that there was no unacceptable risk of psychological harm to the children if daytime access only were ordered, even if it were not supervised. Although she did not say so expressly, it is clear that she considered that the risk of such harm, if overnight access were granted, was unacceptable and that the likelihood and magnitude of such harm was so great as to outweigh any benefit to the child from the continuation of overnight access. Further, in our view, the magnitude of risk found in the present circumstances must be considered in light of the orders contemplated. The trial Judge ordered that the amount of access by the husband not be reduced in any way, save that such access be limited to daytime access. In our opinion, on her Honour’s findings, that order was open to her as a proper exercise of her discretion in the unusual circumstances of this case and it is not open to this court to interfere with it. In addition, the wife has not challenged the order for daytime, unsupervised, access.
44. The assertion in ground 1(d) of the Notice of Appeal, that instead of limiting the husband to daytime access (because of the wife’s likely response to overnight access) her Honour ought to have restrained the wife, by injunction, from “uttering expressions to the children concerning sexual abuse”, in our view has no merit. Such a suggestion overlooks the reality of the situation and the fact that such an injunction would be practically incapable of enforcement.
Whilst such an injunction might prevent the wife from uttering such expressions to the children in the presence and hearing of the husband, it could not, in any practical sense, prevent her from doing so at other times when he is not present. Attempts by him to have the wife dealt with for breach of such an injunction would involve the parties and the children in further conflict to the ultimate detriment of the children’s welfare. In any event, it is far from clear to us that the husband actually sought such an order from her Honour at the trial.
2. The second issue raised by counsel for the appellant was that, because of the acrimony between the parties and, in particular, the wife’s aggressive manner, any prospect of agreement between them in relation to access issues would be extremely unlikely. In Mr Haines’ submission therefore, the trial Judge should have specified, in her Order No.4, that portion of the school holiday periods during which the husband is entitled to exercise daytime access.
45. Given the high level of hostility between the parties, we agree that the trial Judge ought to have specified that portion of the school holiday periods during which the appellant should have access to the children. We therefore propose to allow the appeal in this respect and specify the first half of all school holiday periods as being the period within which the husband shall be entitled to have access to the children.
3. Finally, in relation to her Honour’s Order No.5, we were informed by Mr Haines that there is in fact no police station at Glandore and therefore that it is necessary to substitute another venue because of the difficulties which the parties have experienced in reaching agreement on any issue relating to the children’s welfare. 46. It was agreed by the wife that there is in fact no police station at Glandore and in the course of the appeal the parties ultimately agreed that the access changeover point should be at the Adelaide Police Station, 1 Angus Street, Adelaide and there will therefore be an order by consent in those terms.
47. The wife appeared in person assisted by her husband, Mr C. In light of the wife’s very limited ability to communicate in English and the complexity of the matter, Mr C was permitted to appear for her in the nature of an informal advocate in order to present the wife’s argument to the Court. Mr C made both oral and written submissions on the wife’s behalf and an interpreter attended to translate the proceedings into the Thai language.
48. Essentially, the wife’s argument was that whilst she approved of the orders made by the trial Judge, she opposed a number of her Honour’s findings of fact, and in particular her finding that although she accepted the medical opinion of Dr. Blake that abuse had occurred on at least one occasion, there was insufficient evidence that the husband was the person who had sexually abused the child. She therefore argued that her Honour reached the right result, but for the wrong reasons. Such a course is open to a respondent, who may support the orders appealed from on any grounds available on the evidence, but a respondent in that position is faced with the same problem as an appellant who seeks to have the appellate court overturn the trial Judge’s findings of fact. Relevantly here, those findings of fact may be overturned on appeal only if the appellant (in this case the respondent) discharges the onus of satisfying the court that they were plainly wrong. As Kitto J said in Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at 532-3, that onus
“is particularly heavy where an attack is made upon findings of fact made by a judge who had the advantage of seeing and hearing the witnesses; in such a case each judge of the appellate court must put to himself the question: “Am I – who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case – in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong?’: Watt or Thomas v Thomas (1947) AC484, at p 488.”
49.In this case, the notion that we could overturn, or even cast significant doubt upon, her Honour’s findings of primary fact (especially her finding on the sexual abuse allegation) not only without having seen or heard the witnesses but also without the benefit of the transcript of the proceedings before her Honour, is patently untenable. However, we think it desirable to refer to some aspects of those submissions.
50. In particular, the wife referred to the statement by the trial Judge at page 28 of volume 1 of the Appeal Book that “The wife’s assertion that she only allowed access to continue without interruption in 1990 and until September 1991 after the 29/4/90 incident because she was very frightened of the husband, must be open to doubt. It was the wife who asked the husband to mind the children for about four days at one stage so she might attend a religious meeting in Melbourne.” The wife pointed out that this access visit occurred in June, 1989, before the wife had any reason to suspect sexual abuse had occurred and that she had allowed access to continue from April, 1990 to September, 1991 as she could not at that stage provide convincing proof of the allegations. Even allowing for the limited material before us, it appears that her Honour erred in treating this as an example of her doubts concerning the wife’s allegations. However, whilst this matter may have had some influence on the trial Judge, the fact is that the trial Judge concluded that it was in the child’s best interests that overnight access should not occur.
51. The wife also went to some length to explain her responses during cross-examination to a series of questions which can be found at pages 26-27 of the transcript. The husband’s counsel had suggested that the wife and Mr C had “told A to tell these stories on her father”.
The wife asked that the question be repeated and subsequently answered affirmatively the rephrased question “you and Mr C have told A to tell people that her father has sexually abused her. Yes or no?” The wife sought to explain that she was unclear as to the meaning of the word “stories” and answered “yes” to the rephrased question as she and Mr C had sought to reassure A before her interview with the clinical psychologist and had “simply told her to tell the truth about what happened when Daddy hurt her.” It is impossible for us to express any view about this because it largely depended on seeing the wife give these answers and because of the absence of the overall transcript.
52. The wife referred to various other evidence, particularly that found in the interview between A and Ms Tucker, the clinical psychologist, at pages 27 – 34 of volume 2 of the appeal book, and asserted that there had been convincing proof available to the trial Judge that the husband had sexually abused the child. The main concern of the wife was the lack of a positive finding that the husband was the person who had sexually abused the child on at least one occasion. Again, in the absence of the transcript, especially of the cross-examination of the witnesses, it is quite impossible for us to evaluate these matters. In addition, as there is no cross-appeal, no purpose would ultimately be served by our undertaking any such analysis of these issues.
COSTS
53.At the conclusion of the hearing of the appeal, we invited each of the parties to make submissions in relation to costs.
54. Mr Haines indicated to us that, whatever the outcome of the appeal, his client did not seek any order in relation to costs. He conceded, however, that in the event that the appeal was unsuccessful, his client could hardly resist an order for costs being made against him.
55. Counsel for the separate representative made no submissions in relation to costs.
56. The wife submitted that in the event the appeal was unsuccessful she should have an order for costs.
57. Neither the wife nor Mr C are legal practitioners and it is therefore difficult to envisage what costs they may have incurred in a legal sense in opposing the appeal. There may nevertheless have been costs, in the form of outlays, incurred by the wife and it will be for the taxing officer to determine whether in fact any such costs are payable by the husband to her should an order be made.
58. As the appeal did not succeed in relation to the main issue, we are of the opinion that the husband should pay the wife’s costs of and incidental to it, as may be taxed by the appropriate officer of the court.
59. IT IS ORDERED:
(1) That the appeal be allowed in part;
(2) That Order 4 of the orders of 9 October 1992 be discharged and the following order be inserted in lieu thereof:-
“4. That the wife do give and the husband do have, access to the said children during the first half of each school holiday period, between the hours of 9.00 am and 6.00 pm each day.”
(3) That Order 5 of the orders of 9 October 1992 be amended by the deletion of the word “(Address)” and the insertion of the words “(Address), Adelaide”.
(4) That the appeal otherwise be dismissed.
(5) That the appellant husband pay the respondent wife’s costs of and incidental to the appeal, as may be taxed by a Registrar of the Court.
