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The trial Judge provided a detailed judgment finding that:
on the balance of probabilities, a finding that the father had sexually abused E could
not be made, and
there was an unacceptable risk of sexual abuse to E if E was to have unsupervised
contact with the father.
SIGNIFICANT JUDGMENTS Part 5
Her Honour accepted the ‘preponderance of expert evidence’, finding the mother had
not alienated E from the father and discounted the evidence of Mr B due largely to his
inconclusive findings. Her Honour made orders for regular supervised contact, to be
increased over time and reviewed after three years at which time a further report was
to be obtained.
In his appeal, the father submitted, inter alia:
Ms M’s evidence was outside her area of expertise and she was biased towards the
mother
her Honour implied a finding of sexual abuse, which was damaging to the father and
not supported by evidence
the certainties of proof were not attained
her Honour failed to properly weigh the importance of the relationship between
E and her father, and
her Honour failed to focus on a number of critical matters in determining the issue of
sexual abuse to the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336),
including that the father had lived in a house with two young step-daughters
without suggestion of improper conduct towards them.
Held: Appeal dismissed.
1. In relation to whether there has been an unacceptable risk of abuse, a number of
cases were considered, in particular the High Court judgment of M v M (1988)
FLC 91‐979.
2. A finding of sexual abuse should not be made unless a Judge is satisfied to the
highest standard on the balance of probabilities abuse has occurred. It was
reasonable on the evidence and given the complexity of the case for her Honour
to reach the conclusion that she could not make a finding of sexual abuse. The trial
Judge’s statements did not constitute, by implication, a finding of sexual abuse.
3. Her Honour was not required to consider evidence in relation to the father’s
relationship with his step daughters.
4. Her Honour gave due consideration to all factors regarding Ms M’s expertise and
correctly assessed her as an expert for the purposes of the evidence she gave to
the Court.
5. ‘[I]t is impractical for a trial Judge to deal with each and every aspect of each
witnesses’ evidence. We are satisfied that the trial Judge did not omit or fail to cover
evidence that was relevant.’
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Family Court of Australia Annual Report 2005–2006