B & J - [2009] FamCAFC 103

FAMILY COURT OF AUSTRALIA

B & J

[2009] FamCAFC 103

FAMILY LAW – APPEAL - PARENTING – In an appeal from the Family Court – Appeal from orders made that the children live with their father and spend limited time with their mother – Application of issue estoppel principles – Application of Rice and Asplund principle – Whether the trial Judge erred hearing matter on a de novo basis – Whether the trial Judge should have taken steps to ensure that the mother could provide medical evidence in support of sexual abuse allegations against the father

FAMILY LAW - APPEAL – PROCEDURAL FAIRNESS – Litigant in person – Obligations of the trial Judge

FAMILY LAW - APPEAL – PARENTING – ADEQUACY OF REASONS – Whether the trial Judge failed to provide adequate reasons in rejecting the issue estoppel argument – Whether the trial Judge failed to provide adequate reasons for hearing the matter on a de novo basis

FAMILY LAW - APPEAL – Appeal dismissed

COSTS – The respondent father sought costs of the appeal against the mother –The Independent Children’s Lawyer did not seek costs - No order as to costs

Family Law Act (1975) Cth

Bennett and Bennett (1991) FLC 92-191
Blair & Ors v Curran & Ors (1939) 62 CLR 464
Carl Zeiss Stiftung v Rayner and Keeler Ltd.(No. 2) (1967) 1 A.C. 853
Hartnett v Sampson [2009] FamCAFC 1
Hungerford and Tank [2007] FamCA 637
Re B (minors) (care proceedings: evidence) [1997] 2 All ER 29
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Re S (discharge of care order) [1995] 2 FLR 639
Rice and Asplund (1979) FLC 90-725
Schorel, In the Marriage of (1990) FLC 92-144
SPS and PLS (2008) FLC 93-363

APPELLANT:

MS B

RESPONDENT:	MR J
INDEPENDENT CHILDREN’S LAWYER:	CHRISTINE VACHON

FILE NUMBER:

BRF

9948

1999

APPEAL NUMBER:

2008

DATE DELIVERED:

19 June 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Thackray, Strickland JJ

HEARING DATE:

13 November 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 March 2008

LOWER COURT MNC:

[2008] FamCA 184

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Hogan

SOLICITOR FOR THE APPELLANT:

Barry & Nilsson

COUNSEL FOR THE RESPONDENT:

Mrs Pack SC

SOLICITOR FOR THE RESPONDENT:

Bill Cooper & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dr Sayers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Christine Vachon Solicitors

Orders

The appeal be dismissed
No order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym B & J is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 38 of 2008
File Number: BRF 9948 of 1999

MS B

Appellant

And

MR J

Respondent

REASONS FOR JUDGMENT

May & Strickland JJ

This is an appeal by the mother against parenting orders made by Bell J on 19 March 2008. The orders provided that twin boys, WB and WJ, born in June, 1998 were to live with the father, and have limited time with the mother. The orders have the effect of reversing a previous order of this court.
This matter is complicated for many reasons including the long history of the litigation. Terminology in this judgment reflects that used in the Family Law Act1975 (Cth) (“the Act”) at the relevant times.
The mother and father separated in January 1999. In December 1999 they consented to orders which provided that the children reside with the mother and have unsupervised contact with the father. In July 2001 the mother filed a notice alleging risk of child abuse by the father. The father’s contact with the children then ceased.
After a part heard trial before Jerrard J in 2001, interim orders were made that the children have unsupervised contact with the father. As those orders were interim only, until a trial, there was a further hearing before Lawrie J which culminated in orders made on 8 August, 2003. The reasons for judgment were not delivered until 20 May 2004. Lawrie J ordered that the children reside with the mother and that the father have supervised contact each alternate Saturday at a contact centre.
The father appealed from those orders. The appeal was heard by the Full Court on 1 October 2004, with judgment delivered on 30 November 2005. The father was unsuccessful in that appeal.
This is an appeal following the most recent trial, heard before Bell J over a period of eight days. The initial hearing commenced in November 2007 and concluded in January 2008. At various times during that hearing one of the parties was not legally represented.
This appeal is concerned with the approach of Bell J to the hearing and whether he should have come to different conclusions from those of Lawrie J about the alleged sexual abuse of the children by the father and the mother’s mental health in so far as it effected her parenting. Central to the appeal is the question whether his Honour incorrectly dealt with the application of issue estoppel and the rule said to be established in Rice and Asplund (1979) FLC 90-725.
The submission made on behalf of the appellant mother is that Bell J “impermissibly departed from the findings of fact made by Lawrie J … and in respect of which those findings of fact provided to her Honour a basis for a conclusion that there was an unacceptable risk to the children of them spending unsupervised time with the father.” It is submitted that this departure “amounts to a grave error which infected the entirety of the hearing process undertaken by his Honour”. (Transcript 13.11.08 p.2)
In order to understand these issues and the other, less fundamental points raised by the mother’s grounds of appeal, it is first necessary to recall the history of litigation in this court.

Procedural History

It is intended to refer at some length to the findings and conclusions made in the two earlier cases. Whilst usually this would be of only marginal significance, as a background matter, in this case it loomed large both at the trial before Bell J and on appeal. The evidence, especially from those other than the parties, relied upon by the two previous trial Judges is also of some significance. The judgments of the two previous trial Judges, the order of May J (where directions were made about the trial before Lawrie J ), various earlier orders and the judgment of the Full Court were tendered as exhibits before Bell J.

Proceedings before Jerrard J

Cross-applications for residence (as the legislation then described such parenting orders) came before Jerrard J on 27 November 2001. Both the parties and the children were legally represented. Orders were made on 30 November 2001 that the children live with the father at various times gradually increasing to 9.00am Saturday until 9.00am Monday on each alternate weekend and otherwise with the mother. No order for supervision was made. Paragraph 7 of the orders provided:
(7)That the interim residence orders in the MOTHER's favour made herein are conditional upon the MOTHER's receiving psychotherapy and counselling from a psychiatrist acceptable to the CHILDREN's REPRESENTATIVE and that, unless otherwise agreed, that psychiatrist be Dr. Webster.
Due to the number of issues raised in the proceedings before Jerrard J he said it was not possible to complete the hearing in the four days available. Consequently, his Honour decided to determine only the question of whether unsupervised contact between the children and the father would present an unacceptable risk of abuse. He expressed the orders on an interim basis.
His Honour’s conclusion was that the father did not present an unacceptable risk to the children. To appreciate the allegations made by the mother and the reasons of Jerrard J it is necessary to set out parts of the judgment:
38.I have seen and heard the father in the witness-box, and I did not think, from his manner of giving his evidence, that I should disbelieve his denials that he has engaged in sexual abuse in the gross form asserted by the mother. I think it is significant that the children are not described as being in any way fearful of their father, and I simply do not understand how he could have done what the mother believes he did without the children exhibiting, on assessment, conduct showing fear or apprehension of him.
39.In the circumstances, I am satisfied that the statements the children make about their father inserting toys into the anuses primarily of [WB] and, to a lesser extent, of [WJ], are statements that are explicable by, and very likely to reflect, beliefs of anal abuse of the children held by their mother. It is clear she has held a deep suspicion about that for close on a year and a half, and I think it is very likely that there is discussion about that in her household. She may well endeavour to keep those from the children, but it is almost impossible for her to do that. …
40.Weighing this all up, I say that I am more than satisfied on the evidence that the father has not inserted toys into the anal passages of either of his children. I think that the children's statements clearly made to their mother, to their father, their grandmother, to two separate doctors, and to their play-care centre, saying that he has, do not describe events which have actually happened to them in their lives. I think the fact that I am confident in that view also makes it very unlikely that the other statements made by the children and quoted herein described events which have actually happened to them in their lives; and accordingly I express my comfortable satisfaction that the evidence does not establish that the father has abused his children in any other ways suggested by what the children have said or what the mother has suspected or described about the children.
41.These include his supplying them with drugs, demonstrating masturbation to them, permitting or inviting the children to touch his penis, or having or simulating anal intercourse with the children. I am therefore satisfied that unsupervised contact would not expose the children to any unacceptable risk that the father would sexually abuse them, or abuse them with drugs or in other ways on unsupervised contact
Jerrard J then considered an application by the father for an interim residence order. That application was ultimately refused because the father’s case for residence seemed “under-prepared” and it was concluded that a change of residence for the children at that time was not appropriate. In refusing the application, his Honour stated:
45.There is clearly an ongoing risk of psychological abuse to the children whilst remaining in their mother's care, resulting from the simple fact that she has persisted for some time with an increasingly firm conviction that the children's difficult, demanding, wearying, incredibly stressful behaviour can be explained by the pleasantly simple explanation that their father has abused them. I am satisfied on the evidence that that explanation is not open, which means that there are a myriad of complex explanations as to why these children behave as they do. It is clear that their conduct has caused their mother great stress, and that she has searched for an explanation for it; and my judgment today did not give her one. I think the fact that she will continue in all likelihood to prefer the simple one which I consider to be wrong, does mean that these children are at risk of psychological abuse in her care. But the risk that undoubtedly exists for the children and which has for some time, and which results from that tragic but wrong belief, has to be weighed against other risks.
46.I am satisfied that an immediate change of the children's care now to their father, and supervised contact only with their mother as urged upon me, would have disastrous consequences for these children. They are used to her sole care, and listening to the tape-recording which is exhibit 4, in most circumstances she is extraordinarily patient and giving to them. I have yet to be satisfied that the father would be able to match that on a day after day, hour after hour, night after night basis with these children in the way that she has managed to.
47.Clearly they need at least a high level of constant care. I think that a change of residence, if necessary and if in the children's best interests, would be ordered by the Court, but that the traumatic consequences that would flow from that should be avoided until it becomes an order that is the only order that can be made in the best interests of the children. I am not satisfied on the evidence that that stage has been reached. Particularly I say that there is no clear evidence before me at the moment of the father's capacity to care for these children as a sole parent, and that that is a significant fact in deciding not to change residence at this stage.
...
49.I need to make orders for contact. I propose to follow to some extent the suggestions made by Mr Page. I think that [the mother] deserves the opportunity to experience the children going for increasingly lengthy periods to their father's care, unsupervised. I think it would be an extraordinarily good idea if [the father] took great care to ensure that at all times either his mother or some other person was in his company when he had the children in his care. If [the father] was able to swear on oath, and call witnesses, on the resumed hearing that that had always been the position, he would have an extremely strong answer to make to the further assertions of sexual abuse, which is all likelihood will emerge between now and the resumption of the hearing. Simply as an intelligent forensic exercise it would be highly desirable that he is not alone with the children on unsupervised care. That would protect him from the allegations that will be made, and it will make clearer the order that is necessary for the children's best interests next time when the full issue of residence is considered.
His Honour was appointed a Judge of the Supreme Court of Queensland before the hearing could be resumed.

Directions hearing before May J

The matter came before May J on 16 April 2003 for directions. In a pre-trial conference before a Registrar it had been established that a hearing would take at least twelve days. It was submitted that Legal Aid (Qld) would not fund the matter for that length of hearing.
Discussion with the lawyers focussed on an approach intended to curtail any unnecessary and protracted re-hearing of the evidence which had already been put before Jerrard J. This approach was agreed by the legal representatives of both the parties and the children.
At the request of the Independent Children’s Lawyer an order was made that all parties be provided with a copy of the transcript of proceedings before Jerrard J, without charge. As her Honour explained:
8.… The purpose of such order of course is to ensure that it is not necessary for there to be a rehearing of all of that evidence. In saying that, I would like to make it clear that the trial Judge is not bound by the conclusions on the facts made by Jerrard J, but would have that evidence before them from the transcripts. Submissions could be made about the evidence. Likewise, each of the parties could read as part of their list of documents any of the affidavits that were before Jerrard J but it would not be necessary other than to deal with the matter historically or to place present allegations in context to have cross-examination about the contents of each of those affidavits. For the trial Judge to properly understand what has happened it will of course be necessary for there to be some cross-examination, otherwise there would be an absurdity of the facts and allegations since November 2001 being dealt with in isolation.
9.The mother’s present position in resisting unsupervised contact must relate to facts that occurred before 30 November and the Court will have to make some assessment of it. However, to put the parties and the Court and the Legal Aid Office through a process whereby all that evidence is given all over again seems to be unsustainable and not necessary to make a determination of what is in the children’s best interests.
10.The appropriate approach it seems to me, allowing that the trial Judge may have some views about the extent to which cross-examination will be allowed and I do not wish to bind her in any way, is that orders be made in terms of pars 1, 3, 4 and 7 so it is clear that the mother’s evidence-in-chief would comprise really (sic) of the following:
·Her affidavits filed in the previous proceedings;
·Her evidence given in the previous proceedings; and
·Her evidence provided by way of affidavit filed in recent times.
The same is to be said of the father. The cross-examination then should be largely limited to the affidavits filed since November 2001 and any important matters from the past upon which there must be cross-examination to give the current situation some context. Otherwise I can see no reason why counsel and solicitors in each case could not refer Her Honour to the evidence that had been given in November 2001.
May J then made orders that the matter be set down as an eight day trial. It was ordered that both the mother and the father’s evidence-in-chief be restricted to events that had occurred since 30 November 2001.

Trial before Lawrie J

The hearing of the cross-applications for residence of the children commenced before Lawrie J on 2 June 2003, and concluded on 1 August 2003. During the trial, the father and the children were legally represented. The mother appeared without legal representation.
Lawrie J ultimately made orders that the children should reside with the mother and have supervised contact with the father. She explained that the matter before her proceeded on the basis that:
16.…[T]he transcript of the previous hearing and the exhibits were evidence before me, and that it was accepted that His Honour’s findings were not binding. It may however be helpful in explaining the decision I have come to, to indicate where I have diverged from His Honour’s conclusions.
Her Honour stated that she would not evaluate the statements of the children regarding the alleged abuse by the father in the same way as she would statements by adults (paragraph 19). She further noted that it was “unlikely that what the children said was literally true” (at paragraph 20). However, she observed that:
31.There is no doubt that the children have spoken about their father putting toys into their bottoms. …
32.These complaints have occurred in a context of disturbed and sexualised behaviour. There has been anal bleeding.
33.This is not to say that I am comfortably satisfied and can make a finding that this intrusion of something into the children’s anuses has actually occurred, rather that I would not, as his Honour did, exclude as a real possibility, that the children’s descriptions do, however inaccurately, refer to something which has actually occurred to them.
34.There was no dispute that the children had had some anal bleeding. … The mother believed that this was consistent with the children’s (but most particularly [WB’s]) claim to her that things had been put in their bottoms. Medical evidence suggested that one thing which could cause anal bleeding was constipation.
Lawrie J then considered the father’s evidence in relation to the children’s alleged constipation. After canvassing the evidence, her Honour explained why she was not prepared to accept the father’s claim. She said:
46.After hearing the evidence of Dr Cohn as to his examinations of the children and the absence of any hard motions and the evidence about the mother’s conscientious care of the children’s physical care, taken with the evidence of Dr Crawford about the time taken for constipation to develop to the stage the husband claims to have observed, I have come to the conclusion that it is unlikely that the evidence of the father is correct as opposed to that of the mother.
47.I think it most likely that the children do not and did not suffer from constipation just as the mother has always maintained and that that was not the explanation for the bleeding.

The evidence of Dr Cohn was not before Jerrard J. Of his evidence, Lawrie J said (footnote omitted):
92.Dr Cohn presented as a careful witness. His internal examination took place after the interim hearing and such evidence was not before Justice Jerrard. He is the only doctor who undertook any investigation of the interior of the bowel of [WB], and he found on such examination a tear on lateral aspect which he described as a split, the cause of which could not be determined. (tear on the right side of the anus) split on the lining of the bowel.
93.He agreed that such a tear could be caused by constipation, but said that generally when there was a tear on defecation there will pain.
94.When he examined the anus of [WB] there was no resistance to the entry of the oroscope which he found unusual, and “It was my concern that he might be used to anal examination.” He was concerned at the lax anus. He was aware of the pitfalls of reading too much into it, and aware of the English cases where too much significance had been placed on it, and agreed that on its own it was not enough evidence, but he was concerned.
95.The fact that a careful Doctor did find some physical signs that could be consistent with what the children had told her, and that he also did express concern would also strengthen the mother’s belief that something was seriously wrong.
Her Honour could not “exclude the possibility that (the children) had been exposed to their father masturbating”, and that it was possible that they had had access to pornography at his home. (paragraphs 48 and 49)
Lawrie J also considered the assertion of both the father and the child’s representative that the mother, motivated by dislike, had concocted false allegations of sexual abuse in order to discredit the father. Her Honour’s conclusions in relation to this matter are reproduced below:
62.Thus two psychiatrists who have examined the mother, even after the finding of Justice Jerrard, and in the case of Dr Varghese a pessimistic forecast of the mother’s behaviour at about that time, have both come to the conclusion that they cannot say that the mother has any psychiatric basis for her behaviour. The longer the time the psychiatrists have spent with the mother, the more positive they have become about her.
63.The father and the child’s representative contend the mother is motivated by her intense dislike of the husband in making the allegations at the centre of this dispute and that she has put words into the children’s mouths. It is either deliberate behaviour arising from malice, or beyond her control because of psychological problems. A strong attack was mounted on the mother’s credit by both the father and the child’s representative claiming that she was so antipathetic towards the father that this had led her to make an untruthful allegation that the father had been abusing the child.
…
68.In terms of her reporting what the children have said to her and done however my impression is that she has conscientiously tried to report what the children have said to her and what she has observed. Her evidence was consistent over a long period with a lot of different matters being discussed.
69.If in fact she did indeed know that the children had suffered from constipation which could explain any bleeding, and was fabricating evidence and putting words into the children’s mouths she would be taking an enormous risk to the point where her behaviour is almost irrational. She does not present as someone who is likely to do that. She is very conscious of the fact that there is a real risk of loosing the care of the children in such a situation, and this causes her great anxiety. She has no confidence that she will be believed where her evidence conflicts with the husband. If she is not motivated by some disorder, as the psychiatrists seem to indicate, then the reason for her adoption of her stance may well be that what she is reporting as to the children’s behaviour, statements, physical condition and health, is accurate, and that she is doing what she sees as her duty to do everything she can to protect the children from harm.
70.The father had said that the mother was making the claims because there was something wrong with her. This is not supported by the two psychiatrists. The mother has also impressed a number of other professionals who have dealt with her as intelligent and concerned about the children.
71.I am not satisfied that the mother is suffering from a psychological state which would cause her to put the satisfaction of her dislike of the father above the welfare of the children, to whom all who have seen her with them, have described her as being a conscientious and caring mother.

(emphasis added)

In relation to the father’s truthfulness, her Honour noted that:
121.After seeing and hearing the father there are some aspects of his evidence which suggest that he is at least a witness whose statements can give a misleading impression, and that care should accordingly be exercised.
In determining what was in the children’s best interests the conclusions of Lawrie J were as follows:
125.The nature of the relationship of the child with each of the child’s parents and with other persons.
The mother has been the primary carer for the children and has the closest attachment to them. The father has been having contact with the children which has provided some enjoyment to the children. It is possible that there is an element of restraint in [WB’s] relationship with his father, but [WJ] says he misses his father if he does not see him.
…
128.The capacity of each parent, or of any other person, to provide for the needs of the child including emotional and intellectual needs.
I am satisfied that the mother has a good capacity to provide for the physical and intellectual needs of the children. She is described by the occupational therapist Ms K as follows: “She parents both boys very conscientiously and very sensitively. I could not criticise the way she parents them.”
129.I am not satisfied that the father has the capacity to provide for the physical needs of the children without assistance. …
130.Although it was the mother’s psychological stability which was the focus of the child’s representative’s attention, the mother has not ever required psychiatric treatment. The father has had at least two periods in his life before this case when he has been referred for psychiatric treatment. One occasion was when a sister was killed, and another was over an unsuccessful relationship which overlapped with that with the mother. In the courtroom the father was labile, and it is reported that he has been tearful at the contact centre.
…
132.The need to protect the child from physical or psychological harm caused, or that may be caused, by: (i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour or; (ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person.
133.As indicated there is an unacceptable risk that the children have been and will be subjected to abuse, violence and other behaviour including inappropriate exposure to masturbation and pornography whilst in the care of the father, and that they have been exposed to abuse, ill treatment and violence of the father to the mother which has also caused them psychological harm which is evidenced by their extreme aggression to their mother.
134.There is also evidence that the mother’s actions in seeking assistance from various bodies for the children which I believe have been conscientious in their origins have now reached the point where they are in themselves causing psychological harm to the children. Supervision of contact would avoid the possibility of such actions continuing.

(emphasis added)

Having made these findings, her Honour concluded:
141.In all of these circumstances I consider that the best interests of the children will be served by living with the mother and having supervised contact with the father.

The appeal to the Full Court

The father appealed against the judgment of Lawrie J. The appeal was heard before the Full Court on 1 October 2004 and dismissed on 30 November 2005 when the reasons were delivered. Of considerable interest now, to this appeal, the Full Court observed that:
46.…[T]he primary point of the appeal is directed to Lawrie J’s departure from Jerrard J’s determination that the father posed no risk to the children. Put simply, it was the father’s case before us that he came to the hearing before Lawrie J on the understanding that the allegations that he had abused the children or that they would be at risk of abuse in his care had been disposed of in his favour.
Their Honours first considered the status of Jerrard J’s findings in the proceedings before Lawrie J. The Court was clearly aware of the “somewhat unusual” course of the proceedings, and acknowledged that this had led to “some confusion at the outset of the trial before Lawrie J as to the approach to be adopted...” (paragraphs 47 and 51) .
However, the Full Court rejected the father’s assertion that he had been denied procedural fairness. In reaching this conclusion, the Full Court referred to the judgment of May J which expressly stated that Lawrie J was “not bound by the conclusions on the facts made by Jerrard J.” Their Honours noted that:
49.That position was re-enforced by May J then saying that submissions could be made about the evidence (which had been before Jerrard J and would be before the trial Judge in transcript form). It is perhaps trite to say that there would be no purpose in permitting submissions to be made on the evidence, if it was intended that there was to be no departure from the findings already made on that evidence. It is important to note that there was no appeal against May J’s orders which were apparently made in the presence of the father’s solicitor.
The Full Court referred to a written submission made to Lawrie J on behalf of the father that clearly indicated his awareness that her Honour was not bound by Jerrard J’s conclusions. Rather, it was the father’s case that her Honour should have reached the same conclusion as Jerrard J in relation to the abuse allegations.
The Full Court observed that:
54.…[T]he position for which the father contended in respect of the status of Jerrard J’s finding would have embedded and exacerbated in the proceedings before Lawrie J, the conceptual complexities inherent in the process followed by Jerrard J. In posing in paragraph 3 of his judgment (see paragraph 6 of this judgment) for determination the question “...whether or not unsupervised contact with the children and their father would present for the children an unacceptable risk that he would sexually abuse them, or in other ways deliberately abuse them...” when applications for residence were “...half heard at best”, his Honour set himself a task difficult enough when all the evidence about parenting issues is available: but one fraught with danger when treated as a preliminary issue.
55.As we will later discuss, the questions of sexual abuse and unacceptable risk are but part of an enquiry into the orders which serve the best interests of the child or children, and matters relevant to that, but not directly to the questions of abuse or risk, may nonetheless help reach answers to those questions. However, when Jerrard J determined the issue, as he himself said (at paragraph 44 of his judgment):
I think that there has not yet been an assessment of the kind I want to hear of the father’s capacity to care for these two young children in his sole care.
The Full Court then considered Lawrie J’s use of the evidence before Jerrard J. The Court recognised that Lawrie J’s “reasons are unusual in structure – fairly obviously…because of the unusual “structure” of the proceedings” (paragraph 56). They said:
57.As she explained, Lawrie J used the reasons of Jerrard J and her points of disagreement with his assessment of the evidence before him, to explain her own conclusions. However, the result of that approach is that her Honour has not, as more usually happens, herself recounted and analysed the evidence upon which she relies for her ultimate conclusion of unacceptable risk, but rather has discussed that evidence incidentally, sometimes indirectly and inferentially, when addressing the approach taken to it by Jerrard J. Nonetheless, we think, in the unusual circumstances of this case, that her Honour must be taken to have had regard to that evidence as support for her conclusions.
58.One of the complaints in the father’s case before us was that Lawrie J made her findings which were contrary to those made by Jerrard J on the basis of evidence given before his Honour, but without having seen and heard the witnesses give that evidence. It is of course true that her Honour did not see and hear the evidence given before Jerrard J. But it has to be remembered that her Honour did see and hear the father give other evidence before her. Indeed he was cross-examined for some 100 pages of transcript before her Honour and that cross-examination did cover (albeit briefly) the allegation of the insertion of toys into the children. It must also be remembered that her Honour reached her own somewhat adverse conclusions about the father, notably in paragraph 121 of her judgment.
59. We consider that there can be no substance in any complaint by the father that Lawrie J reached her conclusion on the basis of the same evidence which was before Jerrard J and in the absence of any significant new evidence. We take this view because as her Honour recorded in paragraphs 92 to 95 of her judgment ... she had the evidence of Dr Cohn who had undertaken an internal examination of [WB] after the hearing before Jerrard J and, unlike the witnesses before Jerrard J, had found some cause for concern and some support for what the children had told the mother. In our view this was significant new evidence, which provided substantial support for her Honour’s ultimate conclusion.

(emphasis added)

Turning to the matter of other new evidence before Lawrie J, the Full Court acknowledged that there were some concerns about how her Honour dealt with the extensive new material, largely presented by the mother, which related to statements made by the children subsequent to the hearing before Jerrard J (paragraph 56). The issue identified by the Full Court was “whether the trial Judge needed to consider the evidence and issues raised and expose that consideration in her reasons” (paragraph 66).
After considering and extracting at length portions of Lawrie J’s reasons, the Full Court concluded:
70.Our examination of the relevant evidence and relevant passages from her Honour’s judgment has persuaded us that overall the complaint by the father that the trial Judge made no findings in relation to allegations subsequent to the decision of Jerrard J is not maintainable, although it is again true that her Honour has dealt with a great body of evidence by reference, sometimes tangential reference, in broadly expressed conclusions. While this manner of dealing with the evidence may leave a reader of the judgment wondering just how her Honour has viewed particular passages of the evidence, again it does not necessarily mean that the path of her Honour’s reasoning to her conclusion is not discernible or that she cannot be seen to have taken account of an important body of evidence. We will return shortly to the issue of the adequacy of her Honour’s reasons.
A second concern raised in relation to the new material before her Honour was that the expert evidence presented was “prepared on the basis that the father had already been found by a Judge not to have abused the children” (paragraph 71). However, the Full Court found no merit in this argument.
In the present appeal, there is criticism of the adequacy of the trial Judge’s reasons. It is of interest to refer to what the earlier Full Court said about the reasons of Lawrie J. After referring to Bennett and Bennett (1991) FLC 92-191, it was concluded that:
77.In considering the sufficiency of her Honour’s reasons, it must be borne in mind in our view that the applications before her Honour related to parenting orders for residence and contact. The issue of sexual abuse was perhaps the most significant part of that investigation but not the only part. In [F and B] (unreported, [2000] FamCA 676) the Full Court of this Court said:
109.… Her Honour’s obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the relevant matters referred to in s 68F(2) of the Act, which of those proposals would be more likely to advance the child’s best interests, which she was required to regard as the paramount consideration. Her further obligation was to give adequate reasons to enable the parties, and any appellate court called upon to review her decision, to understand how she arrived at her decision and to demonstrate that in arriving at it she did indeed regard the child’s best interests as paramount and did consider the relevant matters arising under s 68F(2). …
Having regard to that statement, and other authorities, the Full Court did not consider Lawrie J’s reasons to be inadequate.
Ultimately, the Full Court concluded that:
83. We are thus satisfied that, and contrary to the assertions contained in the father’s grounds of appeal, there was evidence to support her Honour’s conclusion that unsupervised contact with the father would pose an unacceptable risk to the children. We have also concluded for the reasons given earlier that it was open to her Honour both to rely on evidence given before Jerrard J and also to reach a different conclusion from that reached by his Honour. We have not been persuaded that her Honour failed to have regard to any relevant evidence, or failed to give adequate reasons for her decision, or that she otherwise erred in any way which would justify our interference with her discretionary decision. This case can perhaps be seen as providing a useful illustration of the principle that in residence and contact cases different Judges may reach different conclusions on the same evidence, without attracting appellate interference.

(emphasis added)

Trial before Bell J

The father’s application was filed on 24 January 2005 (prior to the delivery of reasons and orders by the Full Court) and amended on 7 August 2006
The amendment to the father’s application was made after the mother, despite the court’s order, removed the children from Queensland. It had previously been noted by Dr Varghese (during the hearing before Lawrie J) that the mother might abscond in such a fashion. The mother concealed herself and the children in Melbourne for some nine months. She changed the children’s names, enrolled each of them in different schools and forged the necessary certificates which allowed her to do so. This precluded the father from any contact with the children pursuant to the orders of Lawrie J. The mother and children were eventually discovered. A warrant for her arrest issued in early 2007. She and the children returned to Queensland in about March 2007.
The proceedings commenced on 19 November 2007. As a result of his Honour’s concern as to the mental health of the mother arising from the report of the psychologist, Ms Britton, and the report of Dr Varghese, a psychiatrist, orders were made for the children to be presented to the court. The matter was stood down. Arrangements were made through counsel for the mother, with the support of the Independent Children’s Lawyer. The children were temporarily placed with the mother’s uncle and aunt.

The hearing resumed the next day. The question of issue estoppel was raised by Bell J. There was discussion with counsel as to the applicability of that principle but no conclusions were reached at that time.
The father’s case proceeded. His current wife gave her evidence and was cross examined. The mother’s evidence then commenced. She completed her evidence in chief, was cross examined by the father who appeared for himself and by Dr Sayers, counsel for the Independent Children’s Lawyer. The cross examination of the mother by the Independent children’s Lawyer was not completed.
At the commencement of the third day, 21 November 2007, his Honour raised the question that there was no evidence before him about the sexual abuse of the children. (Appeal Book 1,165) His Honour was clearly aware that the mother was particularly concerned about whether or not the children had been abused by their father and was resisting unsupervised time with him.
Counsel for the mother argued that the father was estopped from bringing his application by the judgment of Lawrie J, which it was said finally determined that the father posed an unacceptable risk to the children.
At this initial hearing before Bell J, it was the father’s position that there had been a significant change in circumstances and therefore his application should be re-considered by the Court. This was largely dependant on allegations of the mother’s apparent mental health problems and her flight to Melbourne with the children.
Dr Sayers, counsel for the Independent Children’s Lawyer, submitted that there were three alternative ways to deal with the matter. These alternatives were described in paragraphs 17-20 of the judgment:
First, notwithstanding that an estoppel is raised, the facts and evidence at issue are sufficiently different that the estoppel does not operate to deny the hearing of this application;
Secondly, although estoppel by judgment can apply in this jurisdiction, for public policy reasons it ought to be found that it does not operate. In support of this proposition, reference was made to In the Marriage of Schorel (1990) 14 FamLR 105 and Re B (Minors) (Care Proceedings: Evidence) [1997] 2 All ER 29;
Finally, that the matter would be more properly considered in the context of Rice and Asplund.
Bell J ultimately settled on the third proposal by reference to the submissions of the Independent Children’s Lawyer, and noted that:
20.Third, it was suggested that notwithstanding the potential for an issue estoppel to arise in the instant circumstances, that the matter would more properly be considered in the context of Rice and Asplund. The matter proceeded along this last proposal for reasons set out separately below. In any event, it was apparent – having regard to the public policy reasons outlined in the cases referred to – that whilst it may be entirely possible for an issue estoppel to arise on the facts as presented, that there were compelling reasons to disallow it in the instant case.
His Honour then considered the application of the rule in Rice and Asplund beginning with the following quote from the judgment of former Chief Justice Evatt (at p.78,905 – 78,906):
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for…change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant, that, to quote Mr. Justice Barber, there is some changed circumstance which will justify such a serious step some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman, at page 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of s.64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the Court, the reason for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the Court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard.
A confusing element arising from this part of the reasons of Bell J is whether Rice and Asplund was raised by anyone during the initial hearing before his Honour. In any event, his Honour had regard to it as a principle which the circumstances of the case required him to consider, as was said to be permitted in Hungerford and Tank [2007] FamCA 637. Consequently, his Honour determined that (footnotes omitted):
22.Whilst the issue of Rice and Asplund was not raised by anyone at the Bar table, it is upon the trial Judge to have regard to the principles therein where the circumstances of the case so demand. As was explained to the parties when the matter originally came on for hearing during November 2007, there was sufficient evidence before the Court that prima facie the circumstances have changed significantly that warrant a revisiting of the parenting orders in operation. That change is that the Respondent Mother's mental condition poses a significant danger to the children in her care, as evidenced by expert testimony that is reviewed below.
23.It was thus resolved that the Applicant Father was at liberty to press his Application for Final Orders. At the conclusion of the initial hearing in November 2007, it was agreed amongst the Bench and the legal representatives that it was suitable for the matter to be listed for a new defended hearing. The matter was accordingly listed for January 2007 [sic]. (Emphasis added)
As a result of this determination, the proceedings were on what was said to be a hearing de novo basis. His Honour also noted that (footnotes omitted):
28.The Father's Application for Final Orders was filed 24 January 2005. The matter does not fall within the Less Adversarial Trial process. On that basis it has remained for its duration an adversarial proceeding and, as a consequence, the rules of evidence apply with full rigour. In accordance with Rice and Asplund, this was a hearing de novo. As Chief Justice Evatt stated therein: "While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child." These reasons for judgment are based solely upon the evidence that was tendered to the Court during the proceedings before me, commencing in November 2007 and concluding, finally, at the beginning of February 2008.
29.As a matter of establishing the parameters of the proceedings, various points need to be settled. First, it was indicated by the Bench to the parties that the final hearing in January 2008 incorporated the days heard during November 2007, and that the evidence and argument thereto formed part of the hearing de novo. Second, there was neither evidence before the Court in the instant proceedings about neither [sic] any anal injury on the part of either child, nor past or present allegations of sexual abuse that fall to be considered in this case. Third, given that the Applicant Father has not spent any time with the children unsupervised since the Orders of Justice Lawrie, there has been no opportunity for the commission of sexual abuse upon the children since the time of the original allegations, such that no fresh allegations can be made. Fourth, the Department of Child Safety has also "deleted the outcome of substantiated risk of sexual harm of the children by their father". Having considered the totality of the evidence before the Court, and having particular regard to the matters just stated, I am not satisfied that there is sufficient evidence before the Court that the Applicant Father has sexually abused the children as alleged or that he poses an unacceptable risk to the children. (Emphasis added)
When the hearing was resumed on 14 January 2008 Mrs Pack appeared for the applicant father and Ms B appeared for herself.

The evidence before Bell J

The first important question raised in this appeal is the argument about issue estoppel. This issue requires a consideration of what different evidence did Bell J have compared to that before Lawrie J? The answer, primarily is that Dr Cohn was not called to give evidence before Bell J, but his Honour had the evidence of Dr Varghese and Ms Britton which was much more concerning about the mother.
The Independent Children’s Lawyer arranged for a report (dated 8 January 2008) by Dr Wilson, a psychiatrist who interviewed both parents and the children. In addition to his Honour having the report, the doctor also gave oral evidence and explained that he made no positive finding in relation to abuse by the father.
Counsel for the Independent Children’s Lawyer relied on the evidence of Dr Crawford including her report dated 20 November 2001 which was before Lawrie J and also Bell J. Dr Crawford, a consultant paediatrician, was of the opinion that there was no evidence of physical interference of the kind consistent with the disclosures that the children had made.
It is of some moment to appreciate that during the November 2007 hearing, the mother was legally aided and had counsel who appeared for her. However, at the commencement of the January 2008 hearing, counsel requested leave to be excused. As his Honour put it (footnotes omitted):
41.…[N]otwithstanding that a grant of aid had been made, the Respondent Mother chose not to engage Legal Aid Queensland to represent her. Instead she represented herself and sought leave for a McKenzie friend to be appointed, which is discussed in greater detail below.
A significant element of the argument on behalf of the appellant is that the trial Judge heard the proceedings without an essential witness, Dr Cohn. As correctly identified by his Honour in his reasons for judgment, the evidence of Dr Cohn was “fundamental to the findings made by Justice Lawrie” (paragraph 45), and therefore necessary to support the mother’s allegations that contact with the father posed an unacceptable risk of sexual abuse to the children. Dr Cohn was not called by the mother as a witness in her case. His Honour said (footnotes omitted):
45.…It is considered necessary, however, having regard to the weight attributed to Dr Cohn's evidence at the trial before Justice Lawrie, to labour the point – oft repeated throughout the course of these reasons – that it was fully explained to the Respondent Mother that it was upon her to ensure the attendance of Dr Cohn, and that the guidance offered to her from the Bench met the standards identified by the Full Court in Re F (Litigants in Person Guidelines).
46.At the commencement of proceedings in January 2008, Mrs Pack of Counsel for the Applicant Father drew the Court's attention to the fact that the Respondent Mother had not been furnished with a copy of the Re F guidelines. The Court adjourned over the lunch break, during which time the Respondent Mother was asked to consider and fully inform herself with the guidelines. Upon resuming proceedings, the Respondent Mother reported to the Bench that she had in fact been served and understood the Re F guidelines.
47.Upon reviewing the list of proposed witnesses at the commencement of the trial, it was raised by Dr Sayers for the Independent Children's Lawyer that the Respondent Mother had subpoenaed Dr Cohn, but it transpired that he had in fact been subpoenaed by the Independent Children's Lawyer herself, who was not pressing the matter. It was revealed, however, that the Respondent Mother herself was not relying upon him as a witness either. In this relation I informed the parties of the empty value of Dr Cohn's evidence otherwise:
His work – his paper – his evidence … is weightless because he is available to be called and if he is available to be called by the person allegedly relying upon his evidence and he's not, I am entitled to be bold.
The Respondent Mother agitated that she wished to attempt to serve him with the subpoena again to compel his attendance. The Bench informed her that it was upon her to ensure his appearance at Court.
This issue arose again on the third day of the hearing before Bell J, where his Honour said to the parties (the transcript is extracted and repeated at paragraph 49 of his reasons):
Dr Cohn is the only person, as I understand it, of the experts, who says that there was some injury to the anus of both or one? … There is no evidence that there's been any injuries to the boys' anuses, either of them, as it stands at present. The only evidence that will be put before me, as I understand if I allow it, is Dr Cohn's notes. And what weight do they have if I know he's available and won't come to give evidence? One would've thought I can be bold and say, how can I put any weight upon him at all? I just can't understand it. … I will not allow them in at this stage.
His Honour also expressed concern about the evidence in general, stating (Transcript 238.28 16/01/08):
BELL J: …A thing that concerns me a lot is that people are mentioning evidence and exhibits which have been put before Lawrie J which are not before me. Notwithstanding the rules of evidence seem to be somewhat in doubt, I consider that this is still – and notwithstanding that it’s a less adversarial trial – that the rules of procedure should be complied with and that requires me to be informed specifically of matters on which the parties intend to rely…
Dr Cohn never appeared before the Court to testify and his notes were not admitted into evidence. As to his unavailability, his Honour further commented (footnote omitted):
50.…To overcome the difficulties in respect of the unavailability for Dr Cohn to be cross-examined on his evidence, Dr Sayers purported to put before the Court segments of the transcript of proceedings before Justice Jerrard in relation to disclosures of sexual abuse and sexualised behaviour. Those segments were not admitted into evidence either. Therefore, notwithstanding that the Respondent Mother was afforded every opportunity to present Dr Cohn for examination at Court, she was unable to effect his appearance and his evidence of sexual abuse was not before the Court. To that end, it is reiterated that there were no findings of sexual abuse whatsoever presented to the Court.
The mother attempted to tender into evidence the appeal books prepared for the previous Full Court, it was not allowed. In his reasons, his Honour stated (footnotes omitted):
106.…It is necessary to reiterate that the immediate proceedings are not a re-hearing of the appeal that was before the Full Court. It is a fresh trial, completely anew. The appeal books were refused on the basis that the constituent documents – affidavits, reports, transcripts – were all available to be tendered in their own right. Much of the documentation had, in fact, been tendered by the other parties to the proceedings. Further, Dr Sayers of Counsel for the Independent Children's Lawyer prepared an indexed digest of the appeal books that was distributed to the parties so that they could more easily locate any individual documents that they wished to tender. It was upon the Respondent Mother to identify those particular documents that best advanced her case and tender those before the Court.
107.To the extent that the Respondent Mother refers to appeal books in the course of her written submissions, regard is only had to that material that has otherwise been tendered to the Court. That is, where the Respondent Mother refers to a document contained in the appeal books, which has not independently and of itself been put before the Court, that evidence has not been admitted and no argument can be led in respect of it. Those matters raised by the Respondent Mother to that end have not been considered.
The second significant evidentiary matter relevant to this appeal concerns the mother’s mental health. His Honour noted that the crux of the Independent Children’s Lawyer’s case was that (at paragraph 68):
… if the mother then now is assessed as mentally unwell; if the mother now continues to say the same things as she did then about the allegations, then the quality of her perceptions is an important factor in assessing the gravamen of the potential risk.
In support of this argument, counsel for the Independent Children’s Lawyer relied on the evidence of expert witnesses, including Dr Wilson, Ms Britton and Dr Varghese. His Honour’s treatment of the evidence of these witnesses in particular is relevant to the appeal and central to his judgment.
Although Dr Wilson interviewed both parents, he did not conduct a formal psychiatric assessment of either parent. The doctor did report that neither parent presented as being psychiatrically disturbed.
Bell J summarised Dr Wilson’s evidence and noted (footnotes omitted):
83.Dr Wilson also made mention that he had made no positive finding himself in respect of abuse on the part of the Applicant Father. He relevantly stated: "I have not, until this time, come to an opinion that the father is an abusive person. Now, I am open to persuasion by any facts that are present in the Court". It is noted that Dr Wilson, in all the opinions he expressed during the course of his testimony, expressed the view that he was entirely open to change his apparently tentative perspective having regard to the limited exposure he had to the parties and the children, and any other evidence that might be presented before the Court, including contrary findings by other experts.
Ms Britton, a clinical psychologist, in her evidence before Bell J was directed to the initial period in which the matter proceeded before Jerrard J by way of comparison to the state of affairs before his Honour. Referring to her evidence, his Honour stated (footnotes omitted):
86.The thrust of Ms Britton's assessment during 2001, however, when the original allegations were made against the Applicant Father is in accordance with the views espoused by Ms Bobir – whose evidence appears above – and Dr Frank Varghese, whose evidence follows and who also examined the parties and the children over the course of these proceedings. Those views, as stated by Ms Britton in the first family report, are thus:
… others of [the Respondent Mother's] concerns, namely the concerns about possible sexual abuse, paedophilia, and even bestiality are extreme and do not appear to be well-founded. Obviously [the Respondent Mother] has been unable to obtain any substantive medical evidence to support these serious concerns. Should [the Applicant Father] have been engaging in any sexually inappropriate behaviour with the boys, which was physically painful or frightening for them, I would have expected there to be some evidence of this in the way that the boys related to him. In my opinion, there was not.
Ms Britton significantly continues:
There is a very real risk, in my opinion, of the boys being alienated against their father by their mother. Her attitude to the boys referring to their father as "daddy" only because he demanded it of them is evidence of this.
87.Ms Britton also prepared a family report, which was filed on 25 October 2002, wherein she states: "The mother has clearly not accepted [Justice Jerrard's] findings or the opinions of most of the medical and other experts involved." Indeed, Ms Britton went so far as to maintain her stance against the Respondent Mother – suggesting that she may be diagnosed with Delusional Disorder-Persecutory type – in opposition to Dr Varghese's apparently alleviated concerns at the time.

In the report dated 7 November 2007, Ms Britton provided three options for the court should the mother’s allegations about abuse by the father prove not justifiable. The orders made by his Honour were consistent with one of those options.
In a letter dated 13 November 2007 to the Independent Children’s Lawyer, Ms Britton said that she had “grave doubts” about releasing hers and Dr Varghese’s reports to the mother whilst the children were in her care.
Dr Varghese is an Associate Professor in the Department of Psychiatry at the University of Queensland. He holds several other senior appointments in psychiatry. Dr Varghese also consults on a private basis and prepared three reports for the Court in this matter. In particular, Dr Varghese’s evidence was directed to the question of whether the mother’s mental health had deteriorated. The essence of his written report dated 2 November 2007 is as follows:
Her behaviour since the decision of the Court suggests that there is a more ominous process going on and that she is quite unwell. It seems that her ideas about the father have a delusion-like fixity and moreover are held so strongly that they effect her behaviour and perceptions and moreover are impacting on the behaviour of the children in a way that is likely to be harmful to them in their psychological development.
The relevant portions of Bell J’s reasons are extracted below (footnotes omitted):
89.… Dr Varghese, whilst noting that the question of whether or not the children are at risk from the Applicant Father is "the important issue", he also states that the children have an unhealthy and anxious attachment to the Respondent Mother contingent upon their adopting a particular attitude toward the Applicant Father, expanding upon the observations made by Dr Wilson.
90.Dr Varghese explains the Respondent Mother's mental state in an explicit departure from the views relied upon by Justice Lawrie in her reasons for judgment in the following terms:
I would have to say that the mother's beliefs have that fixity and, moreover, they … influence her behaviour to a significant extent, such as taking the children to Melbourne. And more – and furthermore, there is evidence from the data that she actually distorts reality. It's not exaggeration. … This is actual distortion of reality. That she knows things occur at the … supervised contact which are clearly not what is occurring. … So the impression I get is that this is not mere exaggeration or hyperbole but actual distortion and that … makes me think that there is a more ominous process than mere socio-culturally determined belief.
…
92.Alarmingly, Dr Varghese prophesised again the potential consequences that might arise given the distorted beliefs he attributes to the mother thus:
… from a psychiatric point of view, … if a parent believes absolutely, with great conviction, that cannot be reasoned, that cannot be contradicted, that their children are at risk of sexual abuse if they're in the care of another parent, then it is difficult to see how they would allow contact to occur and, if contact was forced, … there would have to be the possibility, however remote and theoretical, of unfortunate occurrences.
An important part of his Honour’s reasons appears at paragraphs 112 and 113:
112.… the inquiry in the present proceedings was expressly directed to determining whether the Applicant Father was engaged in sexual or other abuse of the children, or the Applicant Father posed an unacceptable risk to the children into the future.
113.No evidence was tendered as to present sexual abuse. … Absent any evidenced complaint of sexual abuse it is difficult to articulate how the Applicant Father might pose an unacceptable risk into the future. The discussion and analysis that follows addresses these points in greater detail.
As we have already mentioned, it should also be emphasised that the evidence of Dr Crawford, a paediatrician, was that she could find no physical evidence of sexual abuse. Dr Crawford’s reports are dated 8 February 2001 and 20 November 2001. The doctor is a senior staff specialist at the Royal Children’s Hospital, Brisbane working in the child advocacy service and in general paediatrics. The boys were referred to Dr Crawford by Dr Cohn, who is a general practitioner, after he physically examined them.

Bell J’s conclusions

Having considered the evidence before him at some length, Bell J then turned to the various factors which he was required to consider under sections 60CC, 60CB and 61DA of the Act. The portions relevant to this appeal have been extracted and appear below (footnotes omitted):

The benefit to the child of having a meaningful relationship with both of the child's parents
115.It is clear from the changed provisions that the Parliament of the Commonwealth of Australia believes that there is a prima facie benefit to a child having a meaningful relationship with both of its parents. This is a compelling consideration in the present case insofar as the Applicant Father has been denied any kind of relationship with his children for many years. It is the children, however, who have lived without a father or suitable male role model, and would benefit from a relationship with him. The children would also, of course, benefit from a meaningful relationship with their mother, but one must question how meaningful any relationship with the Respondent Mother would be given her exacerbated condition. That said, it is imperative for the successful implementation of any parenting orders that issue with this judgment that the children continue to have some involvement with their mother, though any communication or time spent must be carefully monitored.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
116.Reiterating the holding of Chief Justice Evatt in Rice and Asplund to the effect that a subsequent adjudicator is not bound by the previous findings of fact when hearing a case de novo, and only on that understanding, are the observations of Justice Lawrie in assessing the Respondent Mother's credibility as a witness, particularly as the font of the children's accounts, referred to. Her Honour commented:
If she is not motivated by some disorder, as the psychiatrists seem to indicate, then the reason for her adoption of her stance may well be that what she is reporting as to the children’s behaviour, statements, physical condition and health, is accurate, and that she is doing what she sees as her duty to do everything she can to protect the children from harm. (author's emphasis)

117.That is, Justice Lawrie was minded to think that the psychiatrists, at the hearing before her Honour, were minded to suggest that the Respondent Mother was not motivated by some disorder. In their testimony, both Ms Britton and Dr Varghese did in fact express concerns about the Respondent Mother's mental well-being. These experts attested to the possibility that if the Respondent Mother were in fact tainted by some kind of delusional illness whereby she maintains a belief that the sexual abuse occurred notwithstanding surmountable evidence to the contrary, she would pose a serious risk to the children's psychological health and would foreclose the possibility of any kind of meaningful relationship developing between the children and their father.
118.Further, whilst the Respondent Mother was unrepresented for much of the instant proceedings, mention was made during the course of the trial in cognisance of the guidelines promulgated by the Full Court in Re F (Litigants in Person Guidelines). Concern was expressed by the Bench that the Respondent Mother had not led evidence of Dr Cohn, whose testimony appeared to be fundamental to Justice Lawrie's finding in her favour. The Bench indicated to the Respondent Mother that a subpoena could issue to Dr Cohn to compel his attendance, but she declined the opportunity. On that basis I am confident in concluding as I have on the evidence available to the Court.
119.This is not an appeal from Justice Lawrie's decision and I am not minded to frame my reasons in response to, or in assessment of, her Honour's own findings and conclusions. That notwithstanding, her Honour placed much weight upon the Respondent Mother's credibility as a witness moving from the first premise that she was not psychologically unsound. That can no longer be said with any degree of certainty. Expert evidence presented in the instant proceedings clearly demonstrates that not only is the Respondent Mother severely mentally unwell at present, but that illness has developed and become all the more consuming since her original appearance before Justice Lawrie. In light of this evidence, one can only conclude that the allegations made at the first proceedings are, whilst possibly founded in reality, the questionable outgrowth of an unsound and dangerous mind. On that basis, in the absence of any evidence before the Court in the instant proceedings as to the original sexual abuse allegations against the Applicant Father beyond the continued assertions of the Respondent Mother, I cannot make a finding that the children will be subject to or exposed to abuse from their father at this time or into the future.
120.As alluded to above, however, there is considerable evidence that if the children remain in the care of the Respondent Mother they will be subject to severe psychological harm. It is a matter close to certain, particularly having regard to Dr Varghese's testimony delivered under cross-examination from the Respondent Mother herself insofar as she considers her behaviour to be that of a normal mum acting as a protective parent, whereas Dr Varghese clearly states that the children's psychiatric condition amounts to a medical emergency that the Respondent Mother chose not to act upon.
121.It is immediately apparent that the children must be removed from the care of their mother despite the findings made in respect of the secondary considerations under s. 60CC, outlined below.

…
The nature of the relationship of the child with each of the child's parents
125.The children have an extremely close connection with their mother, who has cared for them for many years. That strong bond is tainted, however, by the manner in which the Respondent Mother has precluded the development of a relationship between the children and their father. The relationship between the Applicant Father and his sons can only be described as unfortunate. He has had little interaction with his children during the course of this years-long litigation because of the adverse findings previously made. Unfortunately, the Respondent Mother is largely responsible for the venomous climate that the parties now find themselves in.
126.In making the Orders that issue, a central object is to rebalance the relationships between the children and each of their parents, individually and taken together, to promote the healthy mental development of these children. The boys must be afforded a genuine opportunity to cleanse themselves of the psychological torment that is their mother's mental illness, and to reconnect and develop a paternal relationship with the Applicant Father. At the same time, however, there must be a commensurate dilution of their relationship with the Respondent Mother. The mental control that their mother has exerted for many years has left them confused and befuddled in their perceptions of reality. It is hoped that the realignment between their respective parental relationships will facilitate the healing process.

The willingness and ability of each of the child's parents to facilitate, and encourage, a close and meaningful relationship between the child and the other parent
127.There is a continuing obligation upon the resident parent to encourage and facilitate a close and meaningful relationship between the children and the non-resident parent. Unfortunately there is every reason to believe that the Respondent Mother is entirely unwilling and incapable to comply with that obligation. The Respondent has instructed the children from a young age to refer to their father by his first name, thereby distancing him from his parental station. Notwithstanding her previous undertaking not to leave the jurisdiction, the Respondent Mother absconded to Melbourne with the children, where she enrolled the children at different schools under false names.
128.During the interim period between November 2007 and January 2008 where Orders were in place to provide for the Applicant Father to spend time with his children, who he had not seen for many years, the children fled from the facilities in the court complex. This was despite prior interactions between the children and their father that proved promising. In disregard for his undertaking to the Court, the Respondent Mother's brother and the children's uncle – who had offered to care for the children during the interim period as agreed by both parties – returned the children to the Respondent Mother following the incident. The result of that action was to render the interim orders futile: the South Bank excursion, discussed above, did not go ahead. It is apparent that the Respondent Mother has a strong influence over the children but does not choose to utilise that influence to encourage a positive relationship with their father.
129.Whilst the interim period did not reflect well on the Respondent Mother, it did allow for positive omission by the Applicant Father. In his failure to insist upon the South Bank excursion, he demonstrated an astute understanding of the delicate dynamic at play – that any untoward pressure or force on his behalf will ultimately fortify the children's apparent reluctance to engage him as a father figure. The Applicant Father's continued pursuit of a parental role in his children's lives, however, is noted. He has expressed what are perceived to be sincere views in support of maintaining and promoting a meaningful relationship between the children and their mother should he become the resident parent. In this regard the Applicant Father appears cognisant of the fact that failure to do so would only further damage an already crippled relationship between himself and his children.

…
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
133.These proceedings have endured over the course of almost ten years. There must be an endgame. There must be a conclusion. There must be finality. The parents of these two children must rise above this conflict and focus on the best interests of their children, as the Court has endeavoured to do. The best interests, however, are not served by languishing in litigation over the duration of their teenage years and adolescence. There is no doubt that the Respondent Mother will not accept this decision or the reasons for it. There is no doubt that the Respondent Mother will appeal the decision. There is no doubt that the Respondent Mother will make every effort to re-litigate the decision. Assuming for argument's sake that these orders and the reasons supporting them are adequate, the Respondent Mother will need to overcome the rule in Rice and Asplund just as the Applicant Father has done in these proceedings. Were she to do so, it would be entirely appropriate to reconsider the matter. Until such time, however, it is imperative for the well-being of all involved that the proceedings cease as soon as possible.

The presumption of equal shared parental responsibility
134.Section 61DA of the Act relevantly provides that absent abuse of the child or family violence, there is a presumption that it is in the best interests of the child that both parents have equal shared parental responsibility for the child. It is absolutely imperative, however, to take notice of the fact that no evidence whatsoever of sexual abuse by the Applicant Father unto the children has been put before the Court in these proceedings. That is, notwithstanding the allegations and evidence put before their Honours Justice Jerrard and Justice Lawrie in the proceedings before them, in this hearing de novo there were no fresh allegations of sexual abuse made against the Applicant Father by the mother – understandably given the cessation of contact some years ago – and no new evidence in respect of the original allegations.
135.Therefore, in the absence of evidence of sexual abuse by the Applicant Father, and an unwillingness to accept the allegations of the mother as persuasive, there exists no positive basis for either a finding that such abuse occurred in the past, or that there is an unacceptable risk it will occur into the future. In such circumstances, the presumption in s. 61DA of the Act applies, which provides that it is in the best interests of the child that the parents hold equal shared parental responsibility. "Abuse" is not restricted to sexual abuse, however, and it is suggested that if the children continue to live with the Respondent Mother, she will – possibly unwittingly but nonetheless assuredly – poison the children against their father. The evidence that speaks to this point is reviewed above in respect of the relevant s. 60CC factors. This amounts to psychological abuse and is sufficient to rebut the legislative presumption.

(emphasis added)

The orders made by Bell J were that the children live with the father and have time with the mother, increasing after various intervals. Assuming that the plan provided in the orders proceeded, the current position is that the mother is to spend unsupervised time with the children in North Queensland (where the father lives) as follows:
(4)On the completion of the six (6) months of supervised time spent between the Mother and the children pursuant to Order 3 herein the Mother is to spend unsupervised time with the children at all times as may be agreed between the parties in writing (including e-mail or SMS text) and failing agreement not less than as follows:
(a)At all times as the Father maintains his residence in the North Queensland area:
(i)On the first Saturday and Sunday of each month from between 9:00 am and 5:00 pm commencing on 3 January 2009;
(ii)From the second Saturday in 2009 and thereafter on the second Saturday of each month, from 9:00 am on Saturday to 5:00 pm on the following day, Sunday;
(iii)The time the Mother is to spend with the children pursuant to Order 4(a)(i)-(iii) herein is suspended during school holiday time;
(iv)For the first half of all end-of-term school holidays (excluding Christmas school holidays) in 2009 and in all odd-numbered years thereafter commencing at 9:00 am on the first day the children are not required to attend school and concluding at 5:00 pm on the second Sunday of the holidays;
(v)For the second half of all end-of-term school holidays (excluding Christmas school holidays) in 2010 and in all even-numbered years thereafter commencing at 9:00 am on the second Monday of the holidays and concluding at 5:00 pm on the day prior to the day the children are required to attend school;
(vi)For the 2009 Christmas school holidays and in all odd-numbered years thereafter commencing at 9:00 am on the first Saturday of the holidays until 5:00 pm on 27 December that year;
(vii)For the 2010 Christmas school holidays and in all even-numbered years thereafter commencing at 9:00 am on 27 December that year until 5:00 pm on the last Sunday of those holidays;
(viii)All changeovers of the children between the Mother and the Father are to occur at a contact centre nominated by the Father, which may include a contact centre in Brisbane at the Father's discretion, with the Father to pay all costs as may be charged by the contact centre to either parent for that service;
(ix)The nominated changeover dates and times are subject to the availability of the contact centre.

On the third day of the resumed hearing (the day after his Honour said the “remedy” was in the mother’s hands), the following interchange occurred between his Honour and senior counsel for the father (Mrs Pack SC) concerning the admissibility of an affidavit of another medical witness sought to be relied upon by the father (Transcript of proceedings 16 January 2008 page 214):
HIS HONOUR: Thank you. Let me read it. Where does it take us, Ms Pack?
I mean, he's [i.e. the other medical witness] not - as Ms [B] said, he's not examined the children. What he's stating is from his experience the symptoms in relation to constipation, is it not? And I would've thought that he is - would be - wait a jiff, he's coming on to something. I find it's very difficult to read. Well, I - Ms Pack, there may be something in what Ms [B] says. Could you assist me? I mean, Dr - - -
MS PACK: Your Honour, one - - -
HIS HONOUR: I understand - - -
MS PACK: - - - of the issues - - -
HIS HONOUR: - - - Dr Cohn's not coming.
MS PACK: Well if - - -
HIS HONOUR: Everybody's attempted to get him and he's not approachable at all.
MS PACK: Well if there's no evidence from Dr Cohn - - -
HIS HONOUR: Well that's what I mean.
MS PACK: - - - your Honour, I don't press then - - -
Later on the same day, his Honour said (Transcript of proceedings 16 January 2008 page 238):
HIS HONOUR: … A thing that concerns me a lot is that people are mentioning evidence and exhibits which have been put before Lawrie J which are not before me. Notwithstanding the rules of evidence seem to be somewhat in doubt, I consider that this is still – and notwithstanding it's a less adversarial trial - that the rules of procedure should be complied with and that requires me to be informed specifically of matters on which the parties intend to rely. There are 16 exhibits, at least, before Lawrie J and only one has been put before me, that is the exhibit for the motor mower. There is no evidence from Dr Crohn [sic]. There appears as though there is going to be little likelihood because he won't come, according to Mrs [B], and Dr Sayers has - the independent children's lawyer has found the same thing. If there is no evidence from Dr Crohn or Cohn is it?
Cohn, I think, perhaps. Yes. It's not the Cohn that I thought it was. I have no worries about that then. There's no evidence of there - of any question of interference anally with these children, acceptable evidence, let's put it that way. There is evidence from the mother where she says “This is what happened", but there's no clinical evidence. Perhaps I should put it that way, specialist evidence. I'm just making that clear now and this is the third day of the trial…
At the commencement of the mother’s case later that day, his Honour revisited the mother’s list of witnesses. Working his way through the list, his Honour once again came to Dr Cohn, whereupon the following brief interchange occurred (Transcript of proceedings 16 January 2008 page 250):

HIS HONOUR: Dr Cohn is being recalcitrant.

MS [B]: Yes
HIS HONOUR: You know that would upset Mohamad Mahathir…

When the mother commenced her evidence, objections were taken to the tender of various documents, including some of the exhibits that had been in evidence before Lawrie J. In the course of this process, the following exchange occurred between his Honour, counsel for the Independent Children’s Lawyer and senior counsel for the father (Transcript of proceedings 16 January 2008 pages 263 to 267). The mother’s views on the acceptance or rejection of these documents appears not to have been sought.
DR SAYERS: With respect, your Honour, it looks as if Equipoise Total Health Toowong contains Dr - is Dr Cohn. That's where he was practising, by my reading of it, and therefore these are the medical notes of the boys. And subject to your Honour overruling this, my approach was, in the absence of Dr Cohn, was to put his medical notes and his evidence before Dr Crawford, or other appropriately qualified people, for comment. The difficulty being that the extension to which - - -
HIS HONOUR: Dr Cohn is available. He won't come.
DR SAYERS: Yes, your Honour.
HIS HONOUR: I mean by "available", I mean he's within the jurisdiction.
DR SAYERS: Yes.
HIS HONOUR: He is not dead.
DR SAYERS: No.
HIS HONOUR: He just is being difficult and recalcitrant.
DR SAYERS: Mm.
HIS HONOUR: Well how can you do that? How can you put - it doesn't come within the Evidence Act. I suppose if it's a LAT matter, perhaps it's got to put it in that way.
DR SAYERS: Yes. The - if I am reading correctly, the case law which my learned friend prepared for Monday, on the question of "How do we proceed from here?", then part of the exercise is to assess what findings were made by the previous trial Judge and - - -
HIS HONOUR: I thought I'm said I'm hearing it de novo.
DR SAYERS: Yes. However the case law which justifies that ruling speaks of the need to, in a preliminary way, look at what were the findings and the evidence that supported it. To the extent to which Dr Cohn's - - -
HIS HONOUR: Of who's Lawrie's or Jerrard's?
DR SAYERS: Lawrie's because - - -
HIS HONOUR: Why not Jerrard?
DR SAYERS: Well that's an interesting question of logic.
HIS HONOUR: I mean, why is it - - -
DR SAYERS: But it's Lawrie's - - -
HIS HONOUR: - - - his are rejected.
DR SAYERS: It's Lawrie that - - -
HIS HONOUR: He was a man who made specific finding - - -
DR SAYERS: Yes.
HIS HONOUR: - - - notwithstanding, as I understand, the case was what, part heard at that time?
DR SAYERS: Yes. He - on a - - -
HIS HONOUR: On an interim basis.
DR SAYERS: He eventually embarked on a threshold issue.
HIS HONOUR: On an interim basis - - -
DR SAYERS: He said, "We've done this and - - -
HIS HONOUR: - - - he made findings.
DR SAYERS: Yes.
HIS HONOUR: Which were totally - well not ignored. They were found to be wrong, in effect - - -
DR SAYERS: Yes.
HIS HONOUR: - - - by Lawrie J.
DR SAYERS: Yes.
HIS HONOUR: Whose do I look at, his, hers or no ones?
DR SAYERS: There - - -
HIS HONOUR: Why can't I look at his?
DR SAYERS: There's no reason why you can't, your Honour.
HIS HONOUR: Well why - you were - you seem to be suggesting it's only Lawrie, or Lawrie J - - -
DR SAYERS: No.
…
DR SAYERS: The point being though that to the extent to which the findings of Lawrie J are more problematic for my case, at least in terms of the recommendations of the majority of my experts, then I need to at least address that issue, except if your Honour's to make a ruling along the lines of - - -
HIS HONOUR: What?
DR SAYERS: - - - that Dr Cohn's - - -
HIS HONOUR: Dr Cohn is the only person, as I understand it, of the experts, who says that there was some injury to the anus of both or one?
DR SAYERS: One.
WITNESS: One.
HIS HONOUR: One. [WB], was it?---Yes. [WB].
DR SAYERS: Yes.
HIS HONOUR: No one else has found - Dr Crawford said "No". Dr Fenner - no, it was that one that I rejected.
DR SAYERS: Dr Fenner didn't examine - - -
HIS HONOUR: There was the one I rejected, yes. There is no evidence that there's been any injuries to the boys' anus, either of them, as it stands at present. The only evidence that will be put before me, as I understand if I allow it, is Dr Cohn's notes. And what weight do they have if I know he's available and won't come to give evidence? One would've thought I can be bold and say, how can I put any weight upon him at all? I just can't understand it. However, that's what you would like to do, Dr Sayers? You have received instructions to that effect and we'll have to wait till Dr Crawford comes. But I will not allow them in at this stage.
DR SAYERS: At this stage. Thank you, your Honour.
HIS HONOUR: At this stage.
Following further discussion seeking to clarify numbers allocated to relevant exhibits, the exchange continued:
HIS HONOUR: And this has - - -
DR SAYERS: - - - your Honour, it's - - -
HIS HONOUR: - - - got Dr Cohn's notes - - -
DR SAYERS: It's - - -
HIS HONOUR: - - - as to his examining of [WB] and ascertaining that there was a tear of, what was it, three or four millimetres, I think. If it's not in there - - -
DR SAYERS: It's relevant to the period of time when he was practising at Toowong.
HIS HONOUR: Well it might be relevant - - -
DR SAYERS: It's relevant - - -
HIS HONOUR: - - - to his practise at Toowong, but is it relevant to this case?
DR SAYERS: It is to the extent to which he's talk - identifies a period of diarrhoea with the children. The question being - one of the points of contention between the mother and the father is - - -
HIS HONOUR: It's whether it's constipation.
DR SAYERS: - - - the father says - constipation or diarrhoea. But it does not, as I read the dates, refer to the period when he conducted the examination - - -
HIS HONOUR: All right. No - - -
DR SAYERS: - - - and found the tear.
HIS HONOUR: - - - it's not admissible. It's irrelevant.
DR SAYERS: Certainly, your Honour.
After reference to the admissibility of other documents relied upon by the mother, senior counsel for the father made submissions concerning the admissibility of Dr Cohn’s notes. The following exchange then occurred (Transcript of proceedings 16 January 2008 page 268):
MS PACK: The final one, your Honour, is subpoenaed document 34. Those appear to be the notes of Dr Cohn.
HIS HONOUR: Well this may be different. If that is the case, Dr Sayers would be submitting that, at this stage, I should not allow them to be admitted but that he will be putting them to Dr Crawford, I think you said, Dr Sayers?
DR SAYERS: That's - I'll - - -
HIS HONOUR: That's your present inclination?
DR SAYERS: That's - yes. And I will, like my learned friend, continue to research this point of the interaction between the Commonwealth Evidence Act, the Family Law Act, and the question of what best to do in respect of a situation where hearing of this matter - your Honour's hearing this matter de novo and what to do in the circumstance of - as your Honour's described - recalcitrant witness. I just simply ask at this time that I - that your Honour hold off on the ruling?
There was further brief reference to the availability of Dr Cohn when the hearing resumed in February 2008. On 4 February 2008, his Honour was discussing with counsel for the Independent Children’s Lawyer the arrangements for calling the remaining witnesses. His Honour enquired “Which is the one who wouldn’t come?”, to which counsel for the Independent Children's Lawyer responded, “Dr Cohn”. Nothing further was said and discussion moved on to the manner in which Dr Crawford would give her evidence. Of interest for present purposes is the fact that it was proposed that Dr Crawford give evidence by telephone, which she ultimately did.
There are a number of conclusions I draw from consideration of his Honour’s reasons and the transcript passages above:
1.The week before the resumed hearing in January 2008, the mother had provided a list of witnesses indicating she proposed to call Dr Cohn.
2.Although on the first day of the resumed hearing the mother answered in the negative when his Honour enquired whether she was “relying” on Dr Cohn, it is not immediately apparent that she understood what she was being asked, especially as she had earlier that day stressed that Dr Cohn’s evidence had been fundamental to Lawrie J’s earlier finding of unacceptable risk.
3.Whatever the mother may have meant when she agreed with the proposition that she was not “relying” on Dr Cohn, she very quickly made it clear that she wanted his evidence before the Court and offered to contact him with a view to persuading him to attend.
4.The Independent Children’s Lawyer had all along considered the evidence of Dr Cohn to be important and had issued a subpoena requiring his attendance.
5.Dr Cohn, for reasons unknown to the Court, was avoiding service, notwithstanding that the process server had attended at his rooms.
6.Dr Cohn had refused to accept the mother’s telephone calls when she endeavoured to contact him to persuade him to attend the hearing.
7.The Independent Children’s Lawyer had made an oral application for substituted service of the subpoena on Dr Cohn. His Honour declined to make the order requested, with his reasons at the time being revealed by the rhetorical question “Well if his evidence is not before the Court, what's the necessity of having him?”.
8.The Independent Children’s Lawyer unsuccessfully made other attempts to have Dr Cohn’s notes put into evidence.
9.The Independent Children’s Lawyer (and the mother) at all times made clear to his Honour the potential relevance and importance of the evidence Dr Cohn might be able to provide to the Court, namely that:
·    he was the only medical practitioner who had carried out an internal examination of the boys;
·    he had found an anal tear in one of the boys consistent with the allegation of the mother that the father had been inserting objects in the anuses of the boys; and
·    his evidence had been considered by Lawrie J to be of considerable significance in determining whether there was unacceptable risk.
10.Although his Honour was aware that Dr Cohn had previously given evidence of the anal tear, and that this evidence had been accepted by Lawrie J, he proceeded on the basis of “the absence of any evidence before the Court in the instant proceedings as to the original sexual abuse allegations against the … Father beyond the continued assertions of the … Mother”.
In my view, and with great respect, I consider that Bell J erred in the approach he adopted to the attendance of Dr Cohn. Although the doctor’s evidence would by no means have been decisive, he had made observations which were potentially corroborative of the mother’s allegations. His evidence had been considered of importance both in the reasons given by Lawrie J and those of the Full Court. It was therefore of considerable importance that this evidence be placed before the Court, given the decision to conduct a hearing de novo.
It seems apparent, as his Honour observed, that Dr Cohn was being “recalcitrant”. He was avoiding service of a subpoena issued under the authority of the Court. There was no reason to conclude that his reluctance to give evidence had anything to do with the veracity of his previous testimony.
Furthermore, none of the many transcript passages to which we were referred provided a sufficient basis for his Honour’s finding that the mother had been informed that a subpoena could issue to Dr Cohn to compel his attendance, nor that she had declined that opportunity. No doubt his Honour understood that he had conveyed this when he told the mother the “remedy” was in her own hands, but it must be remembered she was a self represented litigant, who gave no indication that she had any idea what his Honour was talking about.
In any event, I do not consider there would have been any utility in issuing a subpoena to Dr Cohn. After all, a subpoena had already been issued, but the Independent Children’s Lawyer had been unable to serve it. Dr Cohn was refusing to speak to the mother on the telephone. There was every reason to anticipate that he would seek to avoid service of a further subpoena.
In my view, the appropriate “remedy” was for his Honour to make an order for substituted service, as had been sought by the Independent Children’s Lawyer. It will be recalled that counsel for the Independent Children’s Lawyer had urged his Honour to “hold off being bold” until he had been given an opportunity to “at least try and get the subpoena on [Dr Cohn’s] desk to see what his resistance is and reasons for not coming”.
In fairness to his Honour, at the time the application for substituted service was made, the mother had not yet sought to contact Dr Cohn and the matter was left on the basis that she would attempt to persuade him to attend. Thereafter, the Independent Children’s Lawyer appears not to have pursued the application, preferring instead to seek to have Dr Cohn’s evidence admitted by other means.
Nevertheless, given the failure of the Independent Children’s Lawyer to press the application, and given that the proceedings were adjourned from 18 January 2008 to 4 February 2008, I consider his Honour should have informed the mother in clear terms that she could seek an order for Dr Cohn to attend, as well as an order for substituted service of that order/and or the subpoena.
Although it was not the subject of any submissions before us, I consider it would also have been open to his Honour to direct an appropriate officer of the Court to correspond with Dr Cohn to inform him of the possible consequences if he failed to attend. His Honour could also have given permission for Dr Cohn to give evidence by telephone (as that might have assisted in ensuring his cooperation) in just the same way that Dr Crawford was permitted to give her evidence. By a combination of these means, Dr Cohn’s attendance could have been secured, without any delay in completion of the trial.
In all of these circumstances I am satisfied there is substance in the mother’s complaint that she was denied procedural fairness. Nevertheless, for reasons that I will outline later, I am not satisfied the error identified was such as would make it unsafe to allow the orders to stand.

Grounds 7 and 8 - the psychiatric evidence

By these grounds it was asserted that in assessing the mother’s mental health, Bell J placed too much weight on the evidence of Dr Varghese and afforded insufficient weight to the evidence of Dr Wilson.
In her written submissions, counsel for the mother properly acknowledged the difficulty inherent in an argument directed only to matters of weight. Her submissions otherwise did no more than repeat the grounds of appeal.
Counsel for the Independent Children’s Lawyer submitted that the initial difference in the reports provided by the two doctors had been narrowed by their oral testimony. In particular, attention was drawn to the fact that Dr Wilson:
·    had clarified that he had not conducted a formal psychiatric assessment of the mother;
·    had seen her only once; and
·    would be significantly influenced by the opinions of any psychiatrist who had a longer involvement with the mother.
Consequently, it was submitted by counsel for the Independent Children’s Lawyer that it was open to his Honour to ascribe greater weight to the evidence of Dr Varghese, who was more experienced than Dr Wilson and had seen the mother more often.
I accept the submissions of counsel for the Independent Children’s Lawyer. Dr Varghese had seen the mother many times and had carried out a formal psychiatric assessment. It was open to his Honour to prefer his evidence over that of Dr Wilson who had seen the mother only once and had not carried out a formal assessment.

Ground 9 - the mother’s mental illness

Ground 9 asserts that Bell J erred “in arriving at orders in relation to a finding of fact in regards to the mother’s mental illness” (sic).
Bell J had found in his reasons (at paragraph 119) that:
Expert evidence presented in the instant proceedings clearly demonstrates that not only is the Respondent Mother severely mentally unwell at present, but that illness has developed and become all the more consuming since her original appearance before Justice Lawrie.
Counsel for the mother argued in her written submissions that as a consequence of “the faults in the trial process”, the trial Judge had assessed the evidence concerning the mother’s “mental capacity against a skewed background”. By that proposition I understood counsel to mean that as a result of Dr Cohn’s evidence being excluded, the mother was made to appear even more deluded in pursuing her allegations of sexual abuse.
Senior counsel for the father and counsel for the Independent Children’s Lawyer submitted that the findings concerning the mother’s mental health were open to his Honour, given the expert evidence. The Independent Children’s Lawyer also repeated his submissions regarding the acceptance of the evidence of Dr Varghese in preference to that of Dr Wilson.

I accept the submissions advanced on behalf of the father and the Independent Children’s Lawyer.

Ground 15 - adequacy of reasons concerning unacceptable risk

Ground 15 asserts that his Honour failed to provide any or any adequate reasons for determining that the father did not present an unacceptable risk.
Counsel for the mother submitted that as a consequence of Bell J’s decision to conduct a hearing de novo, and his decision to ignore Dr Cohn’s evidence, the ultimate decision that the father did not pose a risk to the children “rested upon the absence of evidence”.
Counsel for the Independent Children’s Lawyer submitted that the evidence relating to the allegations of abuse was primarily sourced from the mother and that the evidence concerning her mental health had given the trial Judge “pause in accepting her evidence at face value”. It was submitted that in those circumstances it was not necessary for the trial Judge to “descend into exquisite detail regarding each of the plethora of allegations in order to convey to the parties, in a transparent way, his thinking and decision‑making”.
It was further submitted that it was “a fundamental misconception of the evidence” for the mother to argue that there had been an “absence of evidence” about the abuse allegations. It was submitted that there had been a great deal of evidence on the topic, mostly from the mother.
Senior counsel for the father submitted that his Honour’s decision had been made on the totality of the evidence before him. She referred in particular to the fact that there was no evidence of any anal injury; no evidence of past or present allegations of abuse other than those made by the mother; and that the Department of Child Safety had “deleted the outcomes of substantiated risk of sexual harm”.
In her oral submissions, counsel for the mother accepted that it was unnecessary for Bell J to descend into “exquisite detail” regarding the allegations, but submitted that it was not possible to discern what, in fact, his Honour was dealing with when he made his assessment that there was no unacceptable risk. It was further asserted that as his Honour was proceeding de novo, it was incumbent upon him “to deal with the specifics of the assertions of abuse that were contained in the evidence before him”.
Later in her submissions counsel for the mother acknowledged that it was clear that Bell J was revisiting the allegations dealt with by Lawrie J, although she again pointed out that there was no discussion in his Honour’s judgment of the allegations other than the finding that there was no evidence to support them. It was submitted that this was not “an adequate outlining of the reasoning process undertaken by his Honour, because it would leave [the Appeal Court] wondering what in fact his Honour was assessing: what allegations; when; what evidence?”.
I accept that his Honour did not set out in his reasons precisely what the mother had been alleging. Nevertheless, it is apparent from references to his reasons (for example, paragraph 119) that his Honour understood he was dealing with “the continued assertions” of the mother about abuse perpetrated against the children. As the father had not had any unsupervised time with the children since the orders made by Lawrie J, the allegations of the mother could only be those which had been made at the previous trial. It is clear from consideration of the reasons of Bell J that the mother’s allegations were well understood. Whilst it may have been desirable for his Honour to detail those allegations again, I do not consider his failure to do so constitutes error.

Conclusion

Although I have found merit in some of the grounds of appeal, I nevertheless consider that the appeal itself should be dismissed.
The errors I have identified relate to the failure of his Honour to take positive steps to ensure the attendance of Dr Cohn and the way in which he dealt with Lawrie J’s finding arising from Dr Cohn’s evidence in the earlier proceedings. The question that must be determined is the extent to which the decision might have been affected had Dr Cohn’s evidence been given again and accepted.
The reasons given by Lawrie J (which are recited in the judgment of May and Strickland JJ) indicated that whilst Dr Cohn had found an anal tear in one of the boys, he:
·    was unable to determine the cause;
·    agreed the tear could be caused by constipation;
·    was concerned about the lax anus of the boy, but was aware of the “pitfalls of reading too much into it”; and
·    agreed that of itself the tear was not enough evidence to establish abuse.
Given all of these reservations, even had Dr Cohn’s evidence been given again and accepted, the Court would have been left in doubt as to the reasons why one of the boys had experienced an anal tear. This is of importance, since while it is apparent that Lawrie J had found Dr Cohn’s evidence provided corroboration of the mother’s claims, her Honour had based her finding primarily on the reliability of the mother’s own testimony. This in turn was based largely on her Honour’s finding that there was no psychiatric basis for the allegations the mother was making.
The evidence before Bell J concerning the mother’s mental health painted an entirely different picture and I am satisfied his Honour would have – and should have – reached the same conclusion even if he had the benefit of Dr Cohn’s evidence.
In determining that the appeal should be dismissed, notwithstanding the errors identified, I accept that his Honour was correct when he concluded (at paragraph 130) that “the testimony of the expert counsellors, social workers and psychiatrists [was] compelling and persuasive” and that “as long as the children remain in the care of the … mother they are at risk of ongoing emotional and psychological abuse”. I have come to that view based on my own examination of the relevant evidence.
I have also taken into account his Honour’s unchallenged finding (at paragraph 132) that the father’s present wife was a “compelling witness, fully informed of the previous allegations”. His Honour considered that “at the very least, if the children are to be in the residential care of the … father, his present wife can act as a counterbalance and an outside influence on the children”. His Honour properly concluded that this was a “decisive factor that places the … father in a better position to provide for the children”.

Costs

I would make no order for costs for the reasons given by May and Strickland JJ.

I certify that the preceding two hundred and sixty seven (267) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 19 June 2009