Supreme Court of the ACT|1996-05-31|Before: Higgins J

A and B v Director of Family Services [1996] ACTSC 48 (31 May 1996)

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Appeal - appeal from orders of Magistrate making two children wards of the Director of Family Services - original orders invalid as made on applications which had lapsed.

Evidence - Rules of Evidence not binding in care proceedings - nonetheless applicable unless dispensed with for sound reason - consideration of compliance with rules of evidence first requested - hearsay rule - admissibility of expert evidence - experts exceeding area of expertise - explanation of limitations on role of expert evidence - credibility not a matter for expert pinion - weight to be given thereto.

Pearce v Button [1986] FCA 51; (1986) 65 ALR 83

Bannon v R [1995] HCA 27; (1995) 70 ALJR 25

Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486

Straker v R (1977) 15 ALR 103

R v Dainer, ex parte Crawford (1989) 91 ACTR 11

M v M [1988] HCA 68; (1988) 166 CLR 69

Instructing solicitors: Australian Government Solicitor

2. The Orders made by the learned Magistrate on 30 August 1995 that the children, C born 10 August 1990 and D born 29 March 1992, be wards of the Director of Family Services until the age of 18 years, be set aside.

3. The Declarations made by the learned Magistrate on 30 August 1995 that the said children are children in need of care be set aside but that it be declared that, as at 15 February 1996, the said children were in need of care.

4. Pursuant to s5(2) of the Children's Services Act 1986,

(i) the said children reside with their parents, the first and

second appellants herein, as and from 3 March 1996 with prior

access as set out in the Report of Ms Tuck dated 14 February 1996,

provided that prior to that date the children remain with the

present carers.

(ii) The residence of the said children with their parents

referred to in order 4(i) herein be supervised for a period of

three months from the date of these orders subject to conditions

1-10 inclusive as set out in the Report of Ms Tuck dated

14 February 1996.

5. There be liberty for either party to this appeal to relist the matter

before the Supreme Court at short notice if, during the period of three months from the date of these orders, either of the supervisors is of the opinion that continued residence of either child with their parents is detrimental to the welfare of that child or those children.

6. The publication of the names of the parents and the children or any matter likely to identify them is prohibited.

HIGGINS J On 15 February 1996, I upheld an appeal from a decision of Magistrate Fryar making wardship orders in respect of two children, C and D. The appellants are the parents of those children. I will refer to them as the father and the mother respectively.

2. At that time I indicated that I would deliver reasons for my decision later. These are those reasons.

3. Magistrate Fryar's orders, made 30 August 1995, followed an application by the Director of Family Services for a declaration, pursuant to s78 of the Children's Services Act 1986 (CSA), that the children were in need of care and that they be made wards of the Director until age 18. C's date of birth was 10 August 1990. D was born on 29 March 1992.

4. The application for a declaration that each child was in need of care was dated 20 February 1995.

5. Although counsel did not advert to it, I note that the orders made, on their face, were made invalidly, being made more than six months after the date of the application, see s80(4) CSA. It follows that the orders were made on applications which had lapsed.

6. However, there are, in my view, substantive reasons why the orders should not have been made. I will, therefore, proceed to set out those reasons.

7. Section 5 CSA requires,

(1) In any proceedings in a court having jurisdiction in the

Territory, whether the proceedings are under this Act or under

some other law, being proceedings against or concerning or

affecting a child, the court shall, in the exercise of its

jurisdiction or powers, seek to procure for the child such care,

protection, control or guidance as will best lead to the proper

development of the personality of the child and to the child's

becoming a responsible and useful member of the community.

(2) In the exercise of a power, whether under this Act or

under some other law of the Territory, by a body, authority or

person, being a power the exercise of which affects or concerns a

child, the body, authority or person shall seek to procure for

the child the matters referred to in subsection (1).

(3) For the purpose of subsections (1) and (2), the court,

body, authority or person shall have regard to such matters as

seem to it or the person to be appropriate and, in particular, to

such of the following as are appropriate:

(a) the need to strengthen and preserve the relationship

between the child and his or her parents and other members of his

or her family;

(b) the desirability of leaving the child in his or her own

home;

(c) the desirability of allowing the education, training or

lawful employment of the child to be continued without

interruption or disturbance;

(d) the desirability of ensuring that the child is aware that

he or she must bear responsibility for anything that he or she

does that it contrary to law; and

(e) the need to protect the community or a particular person

from the violent or other unlawful acts of the child.

8. That section applies as much to this appeal as to the original proceedings before Magistrate Fryar.

9. A finding that the children were in need of care is subject to s80(2) and (3) CSA, that is,

(2) The Court shall not make a declaration that the child is

in need of care unless the Court is satisfied that the child is

unlikely to receive suitable care unless the Court makes an order

of the kind referred to in subsection 83(1).

(3) The question whether a child is in need of care or is

unlikely to receive suitable care shall be decided on the balance

of probabilities.

10. The grounds for the applications were, in respect of C, that she,

(a) (i) has been physically injured (otherwise than by

accident);

(ii) has been sexually abused, by one of the child's parents

or by a member of the household in which the children (sic,

should be 'child') (sic, is 'are living' omitted?) or there is a

likelihood that he or she (sic, should be 'she') will so suffer

such physical injury or sexual abuse; and/or in the alternative

(sic, 'and/or' would do),

(b) (i) has been physically injured (otherwise than by

accident); or

(ii) has been sexually abused, by a person other than a

person mentioned in paragraph (a) or there is a likelihood that

the child will so suffer such physical injury or sexual abuse,

and the child's parents are unable or unwilling to protect her

from the injury or abuse and, or in the alternative (sic),

(c) by reason of the circumstances in which the child is

living, has lived or is reasonably likely to live or in which the

child is found -

(i) the health of the child has been impaired; or

(ii) the child has suffered, or is likely to suffer,

psychological damage of such a kind that her emotional or

intellectual development is or will be endangered.

11. That statement repeats verbatim, or nearly so, most of the grounds set out in s71 CSA. It is, to my mind, both confusing and unfair simply to set out the various available grounds without specifying which of them are contended to be applicable, in fact, and the facts and circumstances by reason of which that contention is made.

12. The grounds relating to D were a little more restricted. They were that he,

(a) has been physically injured (otherwise than by accident)

and/or in the alternative;

(c) by reason of the circumstances in which the child is

living, has lived or is reasonably likely to live or in which the

child is found -

(i) the health of the child has been impaired or there is a

likelihood that it will be impaired; or

(ii) the child has suffered, or is likely to suffer,

psychological damage of such a kind that his emotional or

intellectual development is or will be endangered.

13. It will be noted that no suggestion appears from these grounds that there had been, or was likely to be, any risk of sexual abuse in relation to D.

14. In the event that a declaration is made, the Court is directed to make one of the orders referred to in s83 CSA.

15. The only such order sought was that referred to in s83(1)(e), that is,

... an order that a child become a ward of the Director.

16. Section 83(3) provides,

An order of the kind specified in paragraph (1) ... (e) shall

not be made unless the Court is satisfied that no other order

specified in subsection (1) would be in the interests of the

welfare of the child.

17. Her Worship interpreted this provision as if it read 'in the best interests' of the welfare of the child. There is no warrant for such a gloss on the clear terms of s83(3). The purpose of the Act is clearly spelt out in s5 CSA. It is not the purpose of s83(3) to find the best possible alternative for children. It is not to protect them from all foreseeable risk. Parents vary greatly in their perceived competence and skills in parenting. Welfare and other authorities need to be careful of cultural and professional arrogance. A family thought to be dysfunctional by welfare authorities may well be a better alternative than imposed foster care. The example of past welfare intervention in Aboriginal families serves as a warning against too ready intervention.

18. The legislation is designed to foster and support the family unit rather than to undermine it. The preferment of the interests of a child to those of the parents where the same are in conflict is not inconsistent with the view that courts and welfare authorities should support the maintenance of the family unit unless that would pose a clear risk to the welfare of the relevant child or children.

19. As a result, it is my opinion that a wardship order, effectively depriving a parent of all parental rights, is to be regarded as an order of last resort. It should be made only if the risk to the child, established on the balance of probabilities, can only be reduced to an acceptable level by no other means.

20. Further, it is contrary to the interests of justice to regard the interests of children as 'paramount', if that means disregarding the right of their parents to be responsible for their care and control. Section 5, CSA and the Universal Declaration on the Rights of the Child clearly indicate that such rights are not granted for the personal benefit of the parents but are in the longer term interests of the child.

21. Her Worship came to a number of conclusions adverse to the appellants. These were,

. That the relationship of the appellants 'has been

dysfunctional throughout most of its existence'.

. That the attendance of each of the parents at counselling

and other similar self and parenting improvement courses was 'for

the purposes of these proceedings rather than any real

understanding of the need for change or a desire for

self-improvement'.

. That the evidence of the parents relating to 'earlier events

involving injuries to both the children' caused her 'great

concern'.

That reference appears, in the case of C, to refer, firstly,

to a fall from a balcony which she suffered in 1991. The mother's

explanation was said to be 'full of discrepancies, totally

incredible'. It appears also to refer to a serious assault by the

father on C in 1992. The parents are said to have put forward

'various versions', inconsistent with the injuries sustained by C,

minimising the seriousness of the incident and resulting in a

delay in seeking treatment for C following that assault.

In relation to D, the reference appears to be to an incident

in 1992 when he crawled under the wheels of a van. The mother is

said to have 'presented inconsistent versions, none of which seems

to accord with the reality of D being taken to hospital in an

ambulance having apparently suffered injuries enough to cause such

concern'.

. That there had been a sexual assault on C, notwithstanding

the doubts expressed by one expert as to the sufficiency of the

evidence thereof. Her Worship found that, '... the perpetrator

must have been a member of the household or at least a person well

known to C. In that respect, her Worship accepted certain

'conclusions' she attributed to Dr Packer, a paediatrician.

. As to certain statements attributed to the children whilst

in foster care, her Worship concluded,

... I also do not accept that the disclosures of the children

have been so tainted by their exposure to doctors or the actions

of their carers to consider them total fabrications.

In relation to those 'disclosures', her Worship accepted the

so-called 'expert evidence' of Dr Packer and of Mr Madison, a

consulting psychologist. That evidence, on the face of it, seemed

to regard those 'disclosures' as conveying substantial factual

truth. If so, it would have supported a conclusion that the

children had been habitually physically and sexually abused by

both of their parents.

It is not clear from her reasons whether her Worship intended

to convey acceptance of that proposition on the balance of

probabilities. If some part was rejected, her reasons do not

identify that part.

22. Based on those conclusions, her Worship made the following findings,

1. that on or about 2 September 1994 C was sexually abused by

male person unknown. After weighing all the evidence carefully I

am also satisfied that the perpetrator was either a member of the

household or at least someone who was well known to C (and

therefore to her family);

2. that the damage to C's genital area is indicative of the

fact that she has been subjected to repeated abuse over a period

of time and that it could not have been caused by a one-off

incident;

3. that the parents have either been unwilling or unable to

protect C from such abuse;

4. that since being in care both C and D have made

disclosures implicating both their father and mother in physical

and sexual abuse perpetrated on the children;

5. that there have been sufficient substantiated incidents

involving injuries to the children throughout their lives whilst

in the care of either their mother or both their mother and

father to justify doubts as to the parents' ability to adequately

protect and foster the welfare of the children and despite

evidence of courses undertaken by the parents there is not

sufficient evidence (sic) before me to convince me that there

would be any decrease in risk in the foreseeable future;

6. that both children have special needs in relation to both

their physical and emotional or psychological health.

23. As a result of those findings, her Worship concluded that the children were in need of care. She further concluded that any option involving the return of the children to the care of their parents,

... would expose the children to unacceptable risks in

relation to their physical and emotional well-being

and, therefore, the only order 'able to protect and promote the best interests of the children' was a wardship order.

24. This appeal was commenced by notice dated 19 September 1995.

25. Apart from the challenges to the specific factual findings made by her Worship, the appellants also challenge the admission and reliance upon hearsay evidence and the reliance upon so-called 'expert' opinions from social workers, psychologists and medical practitioners.

26. Section 93(3) CSA provides, in respect of care proceedings,

The Court is not bound by the rules of evidence and may inform

itself in any manner it thinks fit.

27. This provision is not uncommon in relation to administrative proceedings and other non-curial determinations including arbitrations. However, it should be recognised that such provisions do not render the rules of evidence irrelevant. They should still be applied unless, for sound reason, their application is dispensed with.

28. In these proceedings, it seems to have been assumed that the rules of evidence relating to both hearsay and to expert evidence had no application.

29. The proper approach to the application of the rules of evidence in the face of such a provision was considered by Lockhart J in Pearce v Button [1986] FCA 51; (1986) 65 ALR 83, at 97. His Honour said,

... a judge should be slow to invoke it (a power to dispense

with compliance with rules of evidence) where there is a real

dispute about matters which go to the heart of the case.

30. The High Court has recently re-affirmed the underlying justification for the hearsay rule in Bannon v R [1995] HCA 27; (1995) 70 ALJR 25. Although that decision considered the place of the hearsay rule in a criminal trial, the same principles are applicable to civil hearings.

31. The words of Brennan CJ, at 26, are, in my respectful opinion, most apt,

To admit hearsay evidence whenever the judge forms the

opinion that the evidence is sufficiently reliable would be to

transform the nature of a criminal trial. If the judge's opinion

be based on no specific criteria but only on an appreciation of

the circumstances generally, the judge would have to exercise a

lively discretion to exclude evidence that the judge thought to

be reliable in order to prevent undue prejudice to the accused

who could not cross-examine the maker of the out-of-court

statement. The judge would have to determine the scope of the

evidence in the Trial not by an application of legal criteria but

by reference merely to reliability on the one hand and undue

prejudice on the other. Admissibility would reflect no more than

the judge's opinion of the fairness of exposing the accused to

the risk of conviction on the hearsay evidence. That is not an

appropriate power to vest in a trial judge who has not heard the

declarant making the statement and ordinarily would not have seen

the declarant.

32. Dawson, Toohey and Gummow JJ, at 35, put the matter succinctly and forcefully as follows,

Out of court statements are not evidence of the truth of what

is said unless the statement falls within an exception to the

rule against hearsay.

33. That statement is not merely one of arcane legal principle. It highlights the general risk inherent in drawing an inference of factual truth from untested out-of-court statements by unseen declarants. It also implies that, generally, to rely on such statements as representing the truth is not only unsafe but also unfair as against parties who were not present when the declarations were made. This is particularly so when the truth or otherwise of the content of the declaration is an important issue in the trial.

34. There is also a rule of evidence which excludes evidence of opinions as to the existence of a fact unless given by a duly qualified expert. Opinion evidence may be given where the special skill or knowledge of an expert are needed to draw an inference from proved facts which the fact-finding tribunal would not otherwise be equipped to draw, see Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486, at 491 per Dixon CJ, now, also see ss76 and 79 Evidence Act 1995 (Cth).

35. Nevertheless, the possession of expert knowledge does not permit a witness to engage in mere speculation. Thus an expert opinion as to what inferences are possible from established facts would ordinarily be merely speculative unless the factual inference sought to be proved can be supported by other evidence, see Straker v R (1977) 15 ALR 103.

It is true that in many circumstances an expert witness is

entitled to explain the steps by which he (or she) reaches his

(or her) expert opinion. But he (or she) is not entitled to

speculate on a possibility directly relevant to the issue or to a

fact in issue when the speculation is adverse to the accused

person and where there is no evidence which would support a

conclusion that the fact was established.

37. Again, that statement is as much applicable to civil as to criminal proceedings.

38. If an expert concludes merely that certain signs are 'consistent with' a certain cause or range of causes amongst others and that cause is in issue, the evidence is not admissible to support an inference as to the existence of that cause unless there is other evidence to support such a finding. Thus, for example, to say that an injury could be either accidentally or deliberately inflicted does not assist the inquiry if the issue is whether the same was inflicted deliberately. It does depend on the issue. Such evidence may be useful to exclude certain causes if there is an issue to which the exclusion of those causes would be relevant.

39. That rule of admissibility is not based on some quaint restriction imposed by some outdated and irrelevant technical rule but on the sound principle that such evidence is, if speculative only, of little or no probative value and may be unfairly prejudicial.

40. Much of the evidence offered in this matter and admitted by her Worship, whilst she was entitled as a matter of law to dispense with the rules of evidence so as to admit it, should have been rejected or, at least, disregarded by reason of the breach of one or other of those rules. Indeed, the proper conduct of the case should have led to such evidence not being presented at all. Further, there was no consideration given as to whether there was any reason to dispense with compliance with the rules of evidence, particularly as to matters in real dispute going to the heart of the case.

41. I now consider the evidence relating to the various factual findings.

43. The mother deposed that she was then living with the father's mother and sister in a flat at Balmain. It seems that there was a balcony with a broken concrete barrier off a room in which C was temporarily left by the mother. C got out onto the balcony and fell off it to the ground. The distance is variously said to be 9 feet or 15 feet. The mother claimed to have checked all the doors before she had left the room. She took the child to hospital immediately. Tests were performed but no significant injury was detected. This tends to suggest the distance was less rather than greater.

44. Subsequently, the child exhibited migraines and had 'wobbly turns'.

45. Later expert medical opinion has determined that those subsequent migraines and 'wobbly turns' were not related to the fall.

46. Cross-examination of the mother was directed at whether she had, in fact, overlooked that a door she may have assumed latched was not latched.

47. It was certainly open to conclude that the mother had not checked the doors carefully enough. However, that conclusion did not warrant an inference that this was more than a temporary lapse in vigilance on her part.

48. Such an incident would be relevant to a declaration that a child was in need of care only if it appeared that such an incident was likely to recur. No such conclusion would rationally have followed without a great deal more.

49. To conclude that a child is in need of care is a conclusion which must be based on current, not past circumstances, see R v Dainer, ex parte Crawford (1989) 91 ACTR 11 per Kelly J. That is not to say, of course, that past history is not relevant to an appraisal of present circumstances.

50. The concern expressed by her Worship as to this event was supported by reference to prior inconsistencies found in various contemporaneous documents. That seems to found her Worship's criticism of the mother in this respect.

51. However, the use of statements in documents purporting to be a medical or other history to contradict the mother's account was, in itself, a serious error. Whilst a prior inconsistent statement might be useful to test the mother's evidence, the out-of-court declaration of a doctor or other person as to a given history does not prove the truth of the proposition that such declaration was made by the mother without, at least, evidence from that doctor or other person to that effect. Even then, given that no safeguards are usually taken to ensure the accuracy of such histories, it would be unsafe to use such a history to contradict sworn evidence, the effect of which is that the history taken does not accurately reflect what the doctor or other person was told.

52. This occurred when D was about five months old and crawling. He was snatched from beneath the rear of the front wheel of a van about to reverse out of a driveway of a neighbour's house at Lithgow.

53. A vigilant nine year old alerted the driver to the situation and snatched the child out from that position. The mother was immediately on the scene. D suffered some minor lacerations and grazes as a result of his rapid removal. He was taken to the hospital immediately by the mother.

54. An issue was raised as to whether the wheel ran onto or over the child. The relevance of a conclusion one way or the other is not apparent to me. The relevant question was whether it illustrated a lack of care on the part of the mother. That issue does not seem to have been addressed. Certainly, there would seem no reason to conclude otherwise than that the incident was an illustration of the well-known capacity of small children to elude their carers.

55. The citation for bravery of the nine year old boy who rescued D stated that the latter had,

... quickly pulled the child from under the van just as the

front near side wheel started to apply pressure to the baby's

body,

... the infant suffered minor lacerations caused by the

wheel.

56. That statement is not inconsistent with the mother's perception as given by her in evidence.

57. The hospital records note that the child suffered only abrasions. He was checked for other injury. The history is variously recorded as,

Knocked down by car yesterday ...

Hit by a car yesterday.

Hit by front wheel of car.

Hit by car.

Hit by front wheel of car in friend's driveway.

58. None of those statements could or should properly have been used to contradict the mother's evidence which was to the effect that the wheel did not hit the child in any meaningful way.

59. It follows that the assumption that those accounts contradicted the mother's evidence was unwarranted. If they varied from each other they are more likely to have reflected the imperfect understanding of the record taker. They should have been disregarded.

60. Further, her Worship's conclusion that the hospitalisation itself supported a view that the injury was more serious than the mother was prepared to concede was unfair. It did not take account of the fact that the child's admission was for observation only. The mother did not claim that she was sure from the outset that there had been no damage to the child from the wheel. She would, however, reasonably have formed such a view after the tests and examinations performed at the hospital led to the conclusion that the child suffered no harm from any contact there may have been with the motor vehicle.

61. There could have been no reason to criticise the mother's response to the trauma.

62. It would be an unduly harsh judgment on any parent to conclude that their children might be 'in need of care' as a result of the previous two incidents or either of them.

63. It is not clear what weight her Worship accorded them. She should not have given them any weight at all as indicating or supporting any 'need of care' for either child.

64. The father conceded that whilst under the influence of liquor, he got angry with C and hit her with a kettle cord. She was refusing to eat her dinner. He had intended, he said, to strike the back of the chair to frighten her into compliance, but missed.

65. He did not concede that he had previously beaten the child or that all bruises she then had were caused by him. Having regard to the frequent occasions when C suffered bruising and abrasions as a result of her physical clumsiness whilst in Welfare approved foster care, it was not an unreasonable hypothesis that some of the bruising observed on C on this occasion had been due to such accidental injury.

66. The mother took the child to the hospital the following morning. She reported the assault to police. She gave evidence against the father in court. The father received a six months gaol sentence.

67. The history taken by Dr Dwyer, who examined the child following the assault, suffers from the defects inherent in hearsay evidence. The mother, he stated to police, said to him that,

... the father had slapped the child across the face the

previous day and had hit the child on the back within the

last two weeks.

68. The mother admitted she may have referred to other assaults being perpetrated by the father, not because they had occurred but out of a desire to prejudice him because of her anger at what he had done. This was an understandable reaction on her part although not entirely ethical.

69. There was no evidence, contrary to some reports, that the child was kicked in the back by the father in the course of the assault. Not even when the mother was attempting to exaggerate the father's violence did she allege that. The description of the bruise to C's back being 'like' that made by a shoe, was speculative. It did not warrant an inference that it was so caused, in the face of sworn testimony to the contrary. Indeed, it was more likely that it was caused by the loop of the cord which the father had admitted to having used and which clearly struck C's back.

70. The assault was a serious one. It legitimately raised concern as to the father's capacity properly to care for the children. However, the relevance of that event was as to the risk it represented as to the father's future conduct. It might well have been fair comment that the parties had 'minimised' the seriousness of the assault by the father on C. However, on no view of the facts could it have been concluded that the father had intended to cause the injuries to C that he did cause or that he was in the habit of using physical violence. The 'minimisation' was, to some extent, a reaction against the exaggeration of the incident by some persons.

71. The risk of future harm to the children, it was suggested, was supported by 'a history' of domestic violence and by the frequency of 'notifications' to welfare authorities, indicative, presumably, of abuse.

72. The parents conceded that, until they married on 23 February 1995, they had, since their first cohabitation in 1989, separated and then reconciled on a number of occasions.

73. The details as to the periods of separation and cohabitation were not themselves challenged. Such changes in a young child's life are likely to be upsetting and stressful. However, it could not be suggested that such a situation would warrant welfare intervention unless neglect or abuse otherwise was established.

74. There were records of eight 'notifications' concerning the children,

1. 16/12/90 - There was a report that C had bruising. She was

examined. No bruising was found.

This 'notification' was, therefore, not merely 'unsubstantiated',

it should have been regarded as unfounded and disregarded

accordingly.

2. 10/8/92 - The assault by the father on C. It was described

as 'a closed fist to the head and a kick to the back'.

That description was contrary to the evidence presented to the

court which sentenced the father. The assault was serious, but

not as vicious as this statement implied.

3. 11/9/92 - A small bruise was observed on C. She was said

to 'fall down a lot'.

That statement is consistent with the observations of foster

carers. This 'notification' could not, even if factually correct,

reflect adversely on the mother any more than a similar finding

would have reflected adversely on the foster carers.

4. 4/3/93 - A vague and unsubstantiated suggestion that the

mother had used a jug cord to discipline C.

There was an admission by the mother that, whilst at Monica

House, a local refuge supervised by Ms Armstead, she had smacked C

on one occasion with a jug cord. Whether this is the occasion is

unclear.

5. 10/6/93 - Again a reference to a jug cord and to verbal

abuse.

Save for the one instance referred to, it is clear from Ms

Armstead's evidence, which was unchallenged, that there was no

pattern of such conduct. There was one isolated instance.

6. 25/6/93 - Another unsubstantiated reference to 'verbal

abuse'.

There is also a reference in this entry to D having been 'run

over' and not taken to physiotherapy. Other evidence disclosed

that the mother had addressed D's leg problem by alternative

medical means. The leg problem was not related to the van

incident. This 'notification' was obviously factually confused

and of no evidentiary value.

7. 2/7/93 - C reported to have 'welt marks' as a result of a

jug cord.

This is unsubstantiated. The evidence was that there never

were any 'welt marks'. Ms Armstead's evidence made it plain

beyond doubt that complaints concerning the mother whilst she

resided at Monica House were often, if not entirely, malicious and

without foundation save as to the one occasion mentioned by the

mother herself in relation to a jug cord. That occasion is not

demonstrated to have resulted in any 'welt marks'. Indeed, the

evidence is to the contrary.

8. 2/9/94 - Sexual assault on C.

The actual notification inaccurately stated that police

believed the assault had occurred at home. Police evidence denied

any such belief on their part. The note of 12/9/94 says that this

conclusion was formed 'after disclosure from C'. There was no

such statement from C in existence as at that date.

75. In this respect it must be emphasised that the fact, if it be so, that C was sexually assaulted by an unknown male person would have provided no ground for Welfare intervention unless it appeared that the perpetrator was a person with whom the mother intended the child to have continuing contact or that she was otherwise carelessly or deliberately placing the child at risk of such assaults.

76. That is not to say that, whilst the question of responsibility for the assault was genuinely in doubt, protective measures should not have been taken, if necessary, with Welfare assistance.

77. It was not disputed that, on being informed that it appeared that C had been sexually assaulted, the mother had acted appropriately to protect the child from the effect of or possible repetition of that presumed sexual assault. She even accepted isolation of the child from her previous associations while forensic tests were being performed.

78. There were also records of police interaction with the father. These were as follows,

1. 7/8/92 - Complaint of assault on C associated with a

drink-driving charge and a domestic violence order.

These were all related. The domestic violence order was

directly related to the assault complaint.

2. 5/5/92 (sic, 1994?) - C was found by police near the Rose

and Crown Tavern in Weston.

The father was supposed to be in charge of her. His evidence

as to the incident could rightly be characterised as confused and

inconsistent. It was open to her Worship to conclude that he left

her in the vehicle in question (not a 'red ute' as alleged) for an

excessive time without proper supervision.

3. 21/8/94 - Father assessed as 'intoxicated' at Ainslie

Village.

He denies he was 'intoxicated'. No objective test was applied

to him to test that hearsay opinion.

4. 30/9/94 - The father was interviewed, with the mother,

concerning the sexual assault on C. The note thereof was,

The couple gave several explanations in relation to the

assault on C, including that the family dog had done it, or a

stranger at the school.

That is not a fair summary of the evidence given by police of

the content of the interview. It again illustrates the error of

relying on hearsay evidence, particularly when it purports to be a

summary of what the declarant is believed to have been conveying

as opposed to the verbatim statement of the declarant.

79. It is clear that the real reason for the children being placed in foster care by the Director of Welfare was the unexplained apparent sexual assault on C. The above matters have been relied on to give ex post facto justification for that decision. Whilst the conduct of the father, insofar as it was proved, reveals cause to conclude that he might have a drinking problem and, hence, be an unsuitable custodian of a small child, it hardly amounts to 'a history' of domestic violence if that implies habitual violence whether when intoxicated or otherwise.

80. At the time of this assault, the parents had been separated since July 1994. They had reconciled after the father's release from prison in June 1993 but separated again in July 1994.

81. According to the mother, although the father's drinking was a source of irritation to her, she brought the separation about because she was 'fed up' with him. She denied he was habitually intoxicated or, save on a few isolated occasions, physically violent. The only serious violence of which there was evidence, was the assault on C.

82. The question of sexual abuse arose as a result of the observations of Ms Roberts and Ms Ingram, carers at the child's pre-school. They had noticed blood on C's panties. There was no complaint by C of soreness or any disturbed behaviour of any kind. There was no indication that the carers had noticed anything else consistent with abuse of any kind, physical or sexual.

83. Ms Schroeder was, between 8 August 1994 and 2 September 1994, the Family Day carer for the children. The blood spots were reported to her by the pre-school carers and she reported that to the mother. The mother took immediate action to refer the child for medical assessment.

84. The next day, following the initial examination, the mother discussed with the day carer the fact that sexual assault on C was suspected. Neither of them could think of any way such a sexual assault could have occurred.

85. Ms Schroeder had noticed no unusual behaviour by either of the children whilst in her care. There was no apparent fear by them of the father when he picked them up, as he occasionally did.

86. When the mother was informed by Ms Schroeder of the blood spots, she immediately took the child to Dr Anna Ostberg, a general practitioner. The latter considered the child's appearance to be 'consistent with forcible vaginal penetration'. It should be noted that such an opinion does not, without more, support the drawing of such an inference. Mere 'consistency' raises that hypothesis as 'possible'. It does not support a conclusion that such an hypothesis is either 'probable' or otherwise proved.

87. Dr Ostberg 'wondered' if C had a prior nasal fracture. That was sheer speculation. It was Dr Ostberg's impression that the 'interference' such as there may have been, had occurred within the previous 24 hours.

88. It is not suggested that the father was the perpetrator of the interference. The opinion of Dr Ostberg's, if correct, would have excluded the father as the perpetrator. There was no evidence of access by him to C in the previous 24 hours.

89. Dr Ostberg's opinion did not enable an inference of sexual penetration of C to be drawn. She should not have been permitted to give the speculative evidence she did about nasal fractures. Insofar as it was given, her Worship should have expressly disregarded it.

90. C was then referred to Dr Sinn, a paediatrician, for examination. He noted acute inflammation in the vulva/vaginal and peri anal areas. The hymen was inflamed but not torn. He considered her appearance to be 'consistent with' non-accidental injury or with infection.

91. He also stated that he considered 'the ease at which C would turn around from a supine position to a knee/chest position' to be 'of major concern'.

92. Neither of these statements had any evidentiary value and should have been disregarded.

94. Mr Muir, a scientific officer, examined the material on the swab. He described that finding, albeit inaccurately, as 'a very occasional non motile sperm'.

95. Ms Letton, another forensic scientist, tested the blood sample but could only identify it as C's. Dr Atchison confirmed that finding on 7 November 1994.

96. These tests occurred on 5 September 1994. Unfortunately, the forensic material was lost before it could be compared with samples from all possible suspects police had identified. That group of persons, including the father, had volunteered body samples. Had they been found inconsistent with the forensic material collected by Dr Sinn, their innocence could have been proved beyond reasonable doubt. Their voluntary submission to provision of bodily samples is some evidence supporting the view that they did not fear that those samples would implicate them.

97. The child was taken into protective care, with the mother's consent, on 8 September 1994. This was not because of any fear of repetition of the sexual assault but because she was finding it difficult, as a separated parent, to cope with the trauma of the assumed sexual assault and the subsequent round of investigations and consultations.

98. C then came under the care of Mr and Mrs Rugendyke. The latter, on 9 September 1994, heard C say,

Mrs Rugendyke: Does he live at your house?

C: No.

Mrs Rugendyke: Did you go to Stephen's house?

C: No, sometimes he sleeps at my house. He sleeps in

Mummy's bed. I get cranky because I like to sleep

in Mummy's bed. I don't like Stephen.

100. This conversation was reported to police who regarded it as 'a disclosure'.

101. The latter term seems, in the mind of some witnesses, to have assumed some special status. Her Worship has clearly treated these and other 'disclosures' as having some special evidentiary force. Insofar as such statements may provide a clue to investigators, it is appropriate for them to be noted and considered. They do not, however, form proper material upon which a court of law can infer the truth of the matters so stated.

102. In fact, the statement made is almost certainly non-factual insofar as it asserts that a person called 'Stephen' was ever 'in Mummy's bed'.

103. It is pure speculation to attempt to infer what the child meant by her statement or what she was referring to in making it.

104. C next spoke with Constables Ball and Nihill on 12 September 1994. They questioned her about 'Stephen'. The record of their questioning was assessed by a child psychologist as 'inappropriate'. The police officers, nevertheless, reported that C,

... made a disclosure to us in relation to a person by the

name of Stephen who had hurt her bottom.

105. After that interview (it seems to have been the same day), C told Mrs Rugendyke that there was 'a cranky man that lived at Daddy's' who 'had a fight with Daddy'. She referred to a person, 'at Mummy's' who was,

... naughty and broke Mummy's things and Mummy got cranky and

Mummy said, '... go on and get out of here, piss off.'.

106. There is no evidence to support the happening of any such event or events. Whatever C may have been referring to or whatever she was expressing, she was clearly not reporting an actual occurrence.

107. Sergeant Bailey gave evidence of his interviews with the parents concerning the alleged sexual assault. That was permissible and proper evidence.

108. However, he went further. He was permitted to give evidence of his opinion of the mother's attitude. He spoke to her on 16 September 1994, and stated that he then considered that she was 'evasive and untruthful'. As a result, he concluded that she had 'hindered' the investigation.

109. While Sergeant Bailey was entitled to his opinion, it was of no evidentiary value and served no other purpose than to prejudice her Worship against the mother and give the entirely improper impression that the mother was protecting someone, possibly the father.

110. There was only one factual statement which could have supported such a conclusion. The mother said the father was last at the house on 27 August 1994. He said it was 30 or 31 August 1994 when he was last at the house. That latter statement was apparently accurate. However, it is not apparent that the mother was deliberately telling an untruth.

111. Sergeant Bailey did concede the mother appeared to be genuinely protective of the child and was, after 16 September 1994, more cooperative. He seemed to have been aggrieved that the mother did not believe that any of his suspects were responsible for the assault on C.

112. Sergeant Bailey's statement in evidence, at T747, illustrates this,

... it is most certainly likely to be one of the five people

identified or another person known to Ms Anderson who, for

some reason, she has not informed us.

113. This was not an expert opinion. It was sheer speculation. It should not have been either led or given.

114. The witness was also permitted to assert that the mother had experienced 'violence' from the father.

115. There was no warrant for that view so far as AFP records were concerned. Nor was there any other information to which Sergeant Bailey could have had access which would have supported such a conclusion. It was, at best, unsourced hearsay evidence which should not have been led or given.

116. The records which were produced concerning the father have been referred to in considering the information obtained by Welfare Branch.

117. The first incident involving the father, as recorded by the AFP, was the 'Rose and Crown' incident of 5 May 1994. Whilst reflecting badly on the father, there was no 'violence' towards anybody.

118. Police were called to remove the father from the mother's home on 21 August 1994 and on 16 September, 1994. On each occasion he was said to be 'intoxicated', but there was no suggestion of 'violence', verbal or physical. The mother complained only of the father's refusal to leave until asked by the police to do so. That could not be construed as 'violence'. They were the only events which involved adverse attention by police towards the father.

119. These examples illustrate the danger of asking a witness to give evidence of out-of-court statements or reports by others. It is more dangerous when all that is given is the witness' interpretation or summary of such reports. In this case, the purported summary was also inaccurate.

120. Enough has been stated so far as the sexual assault on C is concerned to show that there was no evidence to support the view that the perpetrator of the sexual assault, accepting that there was one, was a member of the mother's household, even if the father be so included at the relevant time though living apart from the mother.

121. There was nothing, save for his possible proximity to the child, to support the father's status as a suspect. His behaviour, and that of the mother, was inconsistent with his guilt.

122. None of the other named suspects seems likely to have been the perpetrator either. Indeed, the only ground for their status as suspects was possible proximity to the child.

123. It followed that only two possible conclusions remained. Either the conclusion that a sexual assault had taken place was wrong, or the perpetrator was an unknown person who had gained access to the child away from the home, perhaps while she was at day care or at pre-school.

124. Her Worship was entitled to accept that there had, on the balance of probabilities, been a sexual assault although the evidence for it was, as a result of the carelessness of those conducting the forensic examinations, less persuasive than it might have been. She was not entitled to conclude that there had been a sexual assault by someone in the mother's household or by someone known to the family. There was no rational basis for that conclusion, unless the 'disclosures' of the children were to be regarded as warranting or supporting it.

125. What seems to have led her Worship to adopt the conclusion referred to was her acceptance of the evidence of Mr Madison, a psychologist, and of Dr Packer, a paediatrician, concerning 'the disclosures' made by C and D.

126. I will refer first to 'the disclosures' and then to that evidence.

127. It should be noted that the very term used is judgmental and prejudicial. In fact it refers to a report of the unexplained and untested out-of-court statement of a child too young to give meaningful testimony. To call it 'a disclosure' is to assume it to be factually accurate. It is, in fact, inadmissible hearsay. A 'disclosure' may form part of a child's behaviour which leads a suitably qualified expert to infer that the child is disturbed or otherwise in need of therapy.

128. In this case the 'disclosures', first made on 9 September and 12 September 1994, became more and more dramatic following those dates. At first they emanated only from C. Later on, D joined in.

129. The statements made and behaviour exhibited by the children after they were taken from their parents and then detained was, nevertheless, clearly most concerning and disturbing.

130. The possibility of such behaviour being the result of parental abuse did need to be considered. However, it also needed to be considered that the disturbed conduct arose from the separation of the children from their parents and from the circumstances leading up to and following that separation rather than any conduct such as that described by the children.

131. The real question is whether it was permissible to use the observations of 'disclosures' and disturbed behaviour on the part of the children to support a conclusion not merely that the children had become psychologically disturbed, but that the 'disclosures' could be relied on as being factually accurate.

132. Not only would such a use technically offend the hearsay rule, it also offends against the substantive justification for applying it. It does so in relation to a matter very much in dispute and going directly to the heart of the case.

133. The 'disclosures' recorded by Ms Shirley Taylor, foster carer after Mrs Rugendyke, illustrate the point. Some of the statements were so vague as to be factually meaningless. I will refer, therefore, only to the more factually explicit ones.

19/9/94 - C: The man that came to our house was a boogie man.

He hurt D and made him cry.

He came into my bedroom at night in my bed and hurts me.

Mummy said the boogie man will put me in gaol.

20/9/94 - C: He came into my bedroom and hurt me. He broke my

pram and my TV. Mummy had to buy me a new one. The boogie man

broke Mummy's TV too.

Mrs Taylor: How did you get the scratches?

C: From Mummy.

27/9/94 - C: We'll be going home next week. Mummy had a fight

with the boogie man. He's still at home but he'll be in gaol

soon.

Nicole: The boogie man calls me 'wat' ('rat'). He's got two

names too. Stephen and boogie man.

28/9/94 - C: I saw the boogie man out there in the hall (at

Mrs Taylor's home).

Nicole: I didn't hear the motor bike. The one the boogie man

rides. I hide under the blankets when I hear the motor bike

coming so the boogie man won't find me.

30/9/94 - D: (Re scab from blister on hand) The boogie man

gave me the sores.

C: The boogie man hurt D.

3/10/94 - (C accidentally locked in the toilet - gets

hysterical.)

11/10/94 - C: I've been a good girl 'cause I told you that the

boogie man did nothing. That's what Mummy said, 'I'm a good

girl'.

9/11/94 - C: The boogie man is not going to get my lollies

cause I'm going to sleep in Mummy's bed. The boogie man sleeps in

my bed.

134. The references to a man at the mother's house and his actions are, so far as it is possible to tell, entirely fictitious. Otherwise, they are not supported by any evidence. For example, it is clear no 'man' gave, or could have given, the children the 'sores' they had. The reported conversations are also fictitious. C had not said to Mrs Taylor that the boogie man did nothing and did not tell her mother that she had.

135. The children were subsequently placed with Ms Julie Rees and her husband. Whilst in their care, the statements and behaviour of the children became more alarming. The children also began to engage in sexually explicit behaviour. They had not exhibited any such behaviour whilst in the custody of the previous two sets of carers. There is no evidence that they did so prior to that time whilst still in the custody of their mother.

136. It should be noted that the fact that the children, particularly C, engaged in such behaviour only during the time they were in Ms Rees' care does not cast any doubt on the latter's evidence. Her Worship accepted it and that was entirely open to her. The real issue was whether there could, as a result of those behaviours and utterances, be any inference drawn adverse to the appellant parents.

137. Some of the utterances were impossible to corroborate, for example,

15/12/94 - C: ... my Mummy and Daddy have a boogie man and

Mummy and Daddy hit me and D with a big stick.

The only evidence as to the existence of a cubby house was that it had no locks. It had only been erected two weeks before the children went into care.

139. There was frequent reference by both children to 'touching' and hurting.

140. Some of the utterances were obviously self-contradictory. For example, on 25 December 1994, D was pulling his penis and, when told not to, said, 'B2 and A do that to me'. He was asked 'Who is B2?'. He replied 'My Mummy and Daddy'. For all of D's conscious life, his mother was known as 'B'. The parents did not refer to themselves with the children, nor, it is clear, did the children at other places or in other circumstances, refer to their parents by their forenames. Obviously, 'B2' cannot refer to both parents.

141. Apart from the inherent improbability of many of the utterances of the children as relayed to foster carers, contrary utterances were heard by the supervisor whilst the children were on supervised access with the parents. The supervision extended to monitoring of conversations between the parents and the children.

142. For instance, on 3 January 1995, C said to Ms Rees after being told to stop molesting D, 'Mummy was angry with me for telling you about the boogie man and boogie lady'. No such conversation in fact took place during supervised access.

143. On 15 January 1995, after a supervised access session, C said to Ms Rees,

... my Mummy and Daddy took me and D to play cricket. I

didn't want to play. I went too far away and fell into some

water. When they got me, Steve hit me with the bat. I

cried. He hurt me.

144. There is no evidence of any such event occurring whether at access or otherwise. It is inherently improbable in any event.

145. The 'disclosures' subsequently merge the person 'Steve' with 'Daddy'. There is reference to a motor cycle. The only basis for that latter reference seems to have been a fear exhibited by C of an uncle when the latter had visited the family whilst wearing a motor cycle helmet. Utterances as to the father hurting the children with motor cycles were plainly baseless. If he had ever owned a motor cycle or had even a licence to ride one, the respondent would have adduced evidence of it.

146. Even events which had a clear factual basis suffered gross distortion when referred to by the children.

147. For example, C told Ms Rees that, despite her protests, her father had pushed a swing she was riding too high so that she fell off. This event had occurred on 25 November 1994 at a supervised access visit. The supervisor reported that C did fall off a swing when her father had been pushing it. However, according to the supervisor, the fall occurred because the father gave in to demands from C that he keep pushing her higher.

148. To give another example, on 25 January 1995, Ms Rees dropped an ashtray. The broken glass caused a small cut on C's ankle. At the access visit on 30 January 1995, the supervisor heard C tell her parents that 'Julie' (Ms Rees) had cut her foot with a glass.

149. C reported to her parents that she did not like her foster carers and then told the carers that 'Mum said you and Phil, Bruce and Kim are all yucky'. Neither of these statements was apparently true. The parents did not say anything of the kind. C's behaviour at access and whilst in foster care gave every indication of genuine love and affection towards both her parents and her foster carers.

150. On any view as to whether the reported utterances should have been given any value as representing the facts they seemed to refer to, such a suggestion would have been required both by reason and principle to have been rejected.

151. But for her acceptance of the evidence of Mr Madison and Dr Packer, her Worship would, no doubt, have recognised this and treated the evidence as establishing no more than that the children were exhibiting psychologically disturbed behaviour after being taken into care.

153. The first point that needs to be noted, of course, is that there could be no adverse inference drawn as to the credit of these witnesses. It is apparent to me, reading their evidence, and no doubt her Worship was of a similar mind, that these witnesses were motivated by a desire to expose child abuse and protect the victims of it. No doubt they would have their own hypotheses as to what may or may not be indicative of or consistent with abuse.

154. However, court proceedings have a different focus and address issues which are not co-extensive with the approach of a medical or para-medical professional. The issue before her Worship was not whether it was possible that the children had been subjected to abuse, but whether it was more likely than not that they had been so subjected by their parents. The issue concerning C was whether it was more probable than not that, if she returned home to her parents, she would be subjected to an unacceptable risk of sexual or physical abuse. With D, the issue was confined by the respondent to a risk of physical abuse. The onus was, of course, on the respondent to establish those propositions on the basis of admissible evidence subject to the discretion conferred upon the court by s93(3) CSA to which I have already adverted.

155. Reference should be made, in approaching this issue, to the High Court case of M v M [1988] HCA 68; (1988) 166 CLR 69. That case concerned Family Court proceedings between husband and wife, but the issues raised in that case have some points of similarity. Perhaps the major point of difference between that case and the present was that, in that case, the trial judge could not find, on the balance of probabilities, that the husband had not sexually abused the child. There was evidence of 'disclosures' and expert evidence concerning the inferences to be drawn from them. It is significant that the trial judge accepted 'disclosures' as warranting no more than a conclusion that abuse had probably occurred but not as evidence of the identity of the perpetrator or as to what had, in fact, happened. Taken at face value the 'disclosures' would have implicated the father. The evidentiary value of the 'disclosures', therefore, was not taken to be evidence of any fact stated. This is consistent with my view of the 'disclosures' in this case.

156. Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ pointed out that where an allegation of sexual abuse of a child is made, the issue is not simply whether a perpetrator can be identified.

157. The issue was whether it was in the interests of the child to make orders as to custody, guardianship or access. For that purpose, it was necessary to assess the magnitude of the risk of future harm. That included drawing inferences as to what had happened in the past. In the case of C, the identified risk was of sexual assault. Assessing such a risk will often be a difficult task, particularly where no offender is identified even as a notionally likely suspect. The assessment of such a risk will vary depending on the stage which investigations concerning relevant facts and circumstances have reached. A suspicion may, on investigation, prove unwarranted or so slight as to be appropriately ignored. By reason of the apparent negligence of those given charge of the biological samples taken from C, it remains possible, though it is, in my view, extremely unlikely, that the perpetrator of the apparent sexual assault was a person who might in future gain access to C. However, I regard that prospect in the circumstances as so slight that it can be dismissed as fanciful.

158. There would, however, have been concern as to the risk of physical abuse from the father when he was intoxicated. Given the proven history of assault by him on C, and the instance of neglect on at least one occasion, such concern could not have been dismissed as fanciful.

159. The latter concern was, however, reduced to acceptable levels in the light of the father's abstinence from intoxicating liquor. The proved instances of violence or neglect were, in fact, considerably less in number than seemed to have been assumed on the basis of rumour or hearsay. It was unchallenged that he was, otherwise than when intoxicated, a friendly and well-adjusted person. However, that was not the hypothesis supported by the evidence of Mr Madison and Dr Packer.

160. Her Worship seems to have been persuaded by that evidence that there had been chronic abuse of both children. It is not clear, however, whether that was in each case both physical and sexual abuse. It would have followed from the reported 'disclosures' of the children that it was both. None of the other evidence would, however, have supported that conclusion. Her Worship seems to have accepted the 'disclosures' as indicative of abuse by the parents but it is not clear whether she accepted them as evidence of the truth of the matters asserted as Mr Madison seemed to do.

161. Despite the content of the 'disclosures', no application was made by the respondent to widen the grounds of the application in respect of D so as to include sexual abuse. That causes some doubt as to the respondent's position on that issue.

162. Mr Madison was presented as a clinical psychologist. He based his views entirely on the affidavits of some of the social workers and of the foster carers. He accepted all the 'disclosures' those affidavits referred to as being accurately reflective of the facts they purported to recount, albeit with some overtones of suggestive imagery.

163. He was not, apparently, briefed with evidence that, before 2 September 1994, notwithstanding the instability of the parents' relationship, the children had displayed no abnormal behaviour with carers or others and appeared generally to be well looked after and well adjusted, albeit with some relatively minor health problems.

164. His conclusion was that the disturbed and sexualised behaviour of the children after separation from their parents was merely the acting out of the behaviour they (the children) had experienced, presumably while in the care of the mother or of both of the parents as the case may be. He also expressed the opinion that 'taken overall, the children's reports are reliable and truthful'. That conclusion was clearly seriously flawed. Given the proved factual unreliability of what the children had said, although that was then not immediately apparent, of course, to Mr Madison, it was, to my mind, dangerously irresponsible for him to express such a conclusion as if, rather than pure speculation, it was an 'expert opinion'. In my opinion, it was entirely outside the area of Mr Madison's expertise. It was, or should have been, had the evidence been admitted at all, a matter for the Court to decide whether a statement made by a declarant was factually 'reliable and truthful'.

A and B v Director of Family Services [1996] ACTSC 48

At a glance

Court

Decision date

Before

Source

Judgment (243 paragraphs)

A and B v Director of Family Services [1996] ACTSC 48 (31 May 1996)

Parties

Legislation Cited (2)

Cases Cited (5)