B v B [1988] HCA 66; (1988) 82 ALR 584; (1988) 63 ALJR 112 (8 December 1988)

HIGH COURT OF AUSTRALIA

B. v. B.
F.C. 88/064

High Court of Australia
Mason C.J.(1), Brennan(1), Dawson(1), Toohey(1) and Gaudron(1) JJ.

CATCHWORDS

HEARING

Canberra
8:12:1988

DECISION

MASON C.J., BRENNAN, DAWSON, TOOHEY AND GAUDRON JJ. This application for special leave to appeal was heard together with the appeal in M. v. M., both matters involving the same substantive issue. The application is by the husband and it relates to an order of the Full Court of the Family Court (Baker and Maxwell JJ.; Nicholson C.J. dissenting) dismissing the husband's appeal from an order of Burton J. made on 9 December 1987, on the wife's application, suspending an order for access made on 2 May 1986 in favour of the husband in relation to children of the marriage, Rebecca born on 12 July 1981 and Joshua born on 7 June 1983. The order for access was on alternate weekends from Friday evening until Sunday evening.

2. The wife sought the suspension of access on the ground that the husband had sexually interfered with Rebecca during overnight access. The wife's case was supported by the expert evidence of Dr Moody who had examined the child. Dr Moody concluded that the child had been sexually abused but was unable to say that the husband was the perpetrator. Dr Vimpani, who was retained by the husband, also examined the child. He considered that the condition of the child's vagina was consistent with masturbation or sexual abuse. Burton J. found from the evidence of the two doctors that there was "no plausible explanation for (the child's) physical condition apart from some external sexual interference".

3. Dr Gerrard, who interviewed Rebecca, also gave evidence for the wife. He concluded that she had been sexually abused and that the husband was "capable of the matters alleged". Burton J. was strongly critical of Dr Gerrard's methods and reasoning and was unable to attach much weight at all to his evidence.

4. Dr Le Page, an experienced psychiatrist, and Mr Whitford, an experienced psychologist, gave evidence for the husband. They were critical of the methods employed by the experts who gave evidence for the wife, particularly Dr Gerrard. The evidence of Dr Le Page led the primary judge to criticize Dr Gerrard and to a lesser degree the methods adopted by Dr Moody.

5. In the result his Honour expressed his findings in this way:
"I find that because of the state of the evidence
supporting the allegation of sexual abuse by the
husband that I am unable to find on the balance of
probabilities that the husband has sexually abused
his daughter. The evidence is so flawed that I
believe it would be unsafe to make a positive
finding against the husband.
Notwithstanding my inability to make such a
finding there are a number of matters which cause
me considerable disquiet. I take my duty in
deciding this matter to place the interest of the
children as the paramount consideration. I
consider this to mean that the Court should not
make an order which might place the child at risk.
I do not consider that I should place a child at
risk of abuse simply because of the inadequacy of
the methods of investigation of the complaint. I
am of the opinion that if after considering all the
evidence I have some lingering doubt whether or not
the husband has molested the child that it is my
duty to err on the side of caution and safeguard
the child even if this appears to be unjust to a
husband who has not been proved to have molested
the child. However access is not a right of a
parent. It is to be granted when it is shown to be
of value to the child and in its best interests."
6. His Honour noted that the husband provided very unconvincing explanations on two relevant matters. First, although before separation he enforced a rule that the children not get into bed with their parents, when overnight access began he slept with his daughter clad only in his underpants. Secondly, he circulated a rumour that he was simultaneously sexually involved with two women. Finally, his Honour attached some importance to statements made by the daughter which implicated the husband. His Honour acknowledged that the strength of this evidence was weakened by the circumstances in which the statements came to be procured.

7. The division of opinion in the Full Court of the Family Court reflected the division of opinion in M. v. M. The majority held that "(i)f a trial judge considers, upon the balance of probabilities, that the welfare of a child may be endangered or there is a risk that a child may be physically, sexually or emotionally harmed if access were to occur, then a trial judge may, in our view, suspend access." Their Honours concluded that Burton J. determined as a matter of practical reality that there was a risk of sexual molestation to the child if access were to occur.

8. For the reasons we expressed in M. v. M., we think the majority in the Full Court was correct in concluding, on the findings of fact made by Burton J., that the appeal should be dismissed. On those findings there was an unacceptable risk of sexual abuse occurring if the husband was to continue to have access to the child.

9. As the argument upon the important principle decided in M. v. M. was presented in this case as well, we would grant special leave to appeal. For the reasons already given, the appeal must be dismissed.

ORDER

Application for special leave to appeal granted.

Appeal dismissed.