Johnson & Page 2007 FamCA 1235

The case involved an appeal by a mother of a 6 year old girl against a ruling by a trial judge who found that the risk of sexual abuse did not pass the test of an unacceptable risk in a case where a father was allowed to spend unsupervised time with the girl (assess risk).

When the girl was aged 3 years she had spent alternating weekends with the father.  At age 5 years the girl was found to have a vaginal infection after a visit with the father.  The girl subsequently reported that the father had touched her all over including on her bottom.  The case was referred to a Child Sexual Abuse Unit that was unable to substantiate a risk of abuse.  The girl informed the Sexual Abuse Unit that the father had placed various objects in her bottom so that people would laugh at her.  An expert raised a question of whether the girl might have been coached in what she said.  There was no evidence of disturbed behaviour by the girl.  No direct evidence was produced of coaching, or that the father had molested the girl.

The mother had re-partnered and the father requested an order prohibiting the mother from leaving the daughter in the unsupervised care of her new partner, a stepparent who was alleged to have emotional difficulties of depression.  The ICL supported similar restrictions.

The trial judge restricted child care activities by the stepfather to relieve the biological parent (father’s) anxiety and the mother appealed against this order (parental distress).

The Appeal Court noted various qualifying words that have been used in judgments about  how to assess risk including ‘risk of serious harm,’  ‘an element of risk,’ ’an appreciable risk,’ and ‘a real possibility.’

The appeal court quoted a ruling from a New Zealand appeal court that, “In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned.  It must be more than mere conjecture and need not go as far as the proof which would justify a conviction.  From that it will be seen that there are two emphases to be kept in mind.  The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child.  In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.”

In asking whether the facts of the case establish an unacceptable risk the court will often apply a test of unacceptable risk so that questions such as the following are asked: 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 them?  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?

The Appeal Court ruled that the trial Judge did not incorrectly elevate the standard of proof required to support a finding of unacceptable risk, and that the grounds directed to incorrect or excessive evidential burden accordingly were not established.

The Appeal Court ruled that there was insufficient evidence to make an order restricting the child care activities of the stepfather who was not a party to proceedings.