B v R

[2015] NSWCCA 103

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	B v R [2015] NSWCCA 103
Hearing dates:	10 November 2014
Date of orders:	22 May 2015
Decision date:	22 May 2015
Before:	Ward JA at [1]; Simpson J at [209]; Wilson J at [339]
Decision:	1.Appeal from conviction dismissed. 2.Leave to appeal against sentence granted and appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal – conviction - whether trial judge erred in ruling that appellant did not discharge evidential burden required to put defences before jury – sudden or extraordinary emergency defence – self-defence – statutory requirements – whether trial judge erred in ruling on admissibility of evidence – nature of evidence – irrelevance – appeal dismissed CRIMINAL LAW – application for leave to appeal against sentence – whether trial judge erred in failing to make factual findings as to mental illness – whether trial judge erred in refusing to allow applicant to cross-examine on a victim impact statement - leave refused
Legislation Cited:	Crimes Act 1914 (Cth) ss 20, 16AB Criminal Appeal Act 1912 (NSW) Criminal Code 1988 (Qld) s 25 Criminal Code 1995 (Cth) ss 10.3, 10.4, 13.1, 13.2, 13.3, 101.5 Evidence Act 1995 (Cth) s 136 Family Law Act 1975 (Cth) s 65Y Family Law Rules 2004 (Cth)
Cases Cited:	Bayley v Police [2007] SASC 411; (2007) 178 A Crim R 202 Beveridge v Dontan Pty Ltd (1991) 23 NSWLR 13 Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 GPI Leisure Corp Pty v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 House v The King [1936] HCA 40; (1936) 55 CLR 499 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Oblach v R [2005] NSWCCA 440; (2005) 65 NSWLR 75; (2005) 158 A Crim R 586 Perka v The Queen (1984) 14 CCC (3d) 385 Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 R v B (No 2) (District Court (NSW), Woodburne SC DCJ, 15 November 2013, unrep) R v Constantine (1991) 25 NSWLR 431 R v Isaacs (1997) 41 NSWLR 374 R v Katarzynski [2002] NSWSC 613 R v Loughnan [1981] VR 443 R v MacDonell (Court of Criminal Appeal (NSW), 8 December 1995, unrep) R v Nahlous [2013] NSWCCA 90 R v Rogers (1996) 86 A Crim R 542 RP v R [2013] NSWCCA 192 The Queen v Khazaal [2012] HCA 26; (2012) 246 CLR 601 Wakim v Mathiew Pty Ltd [2002] NSWSC 405 Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645
Category:	Principal judgment
Parties:	B (Appellant) Regina (Respondent)
Representation:	Counsel: B (Appellant) in person I Bourke SC (Respondent) Solicitors: Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2011/00081711004
Publication restriction:	Non publication order relating to anything that might identify the child, including name of appellant and name of the child’s father (Children (Criminal Proceedings) Act 1987 (NSW), s 15A)
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 15 November 2013 Before: Woodburne SC DCJ File Number(s): 2011/00081711

INDEX	(Para)
Ward JA	[1]
Preliminary observations	[9]
Allegations of sexual or other abuse	[13]
Background	[17]
Conviction Appeal	[18]
Ground 1 – evidential burden	[20]
Defences	[22]
Sudden or extraordinary emergency	[33]
Self defence	[75]
Conclusion on ground 1	[81]
Ground 2 – ruling re irrelevance of fact of sexual abuse	[86]
25 October 2013 ruling	[112]
14 November 2013	[121]
Ground 3 – admissibility of Dr Waters’ report	[129]
Sentence appeal	[143]
Ground 1 – failure to make findings in relation to diagnosis of delusional order and inference that Ms B suffered a mental illness	[162]
Ground 2 – denial of opportunity to cross-examine the father on his victim impact statement	[194]
Conclusion	[208]
Simpson J	[209]
The Crown case	[221]
The defences	[231]
The defence case	[238]
The grounds of appeal	[282]
Ground 1: “withholding proposed defences from the jury”	[283]
Section 10.3	[284]
Ground 2	[310]
Ground 3	[317]
The application for leave to appeal against sentence	[336]
Wilson J	[339]
Appendix to Ward JA’s reasons – Summary of Events

Judgment

1. WARD JA: The appellant (to whom I will refer as Ms B in order to preserve the anonymity of her child) was convicted on 29 May 2014 of an offence against s 65Y of the Family Law Act 1975 (Cth).

2. The conduct that gave rise to her conviction was that, as she admitted, on 24 April 2008, Ms B took her child, then aged three years and eight months, out of Australia at a time when she knew that an interim parenting order of the Family Court of Australia was in force, providing for the child to spend supervised time at a contact centre with the child’s father (Ms B’s then husband, to whom I will refer as Mr B). Ms B knew both that Mr B had not consented to the removal of the child from the jurisdiction and that there was no Court order permitting this to occur. Ms B’s evidence was that she did not know that in acting as she did she was committing a criminal offence, though she accepts that ignorance of the law was no defence.

3. Ms B’s evidence was, and the trial judge accepted, that at the time Ms B took her child out of the country she believed that he had been sexually abused by Mr B and had formed the view that there had not been, and would not be, a proper investigation into the sexual abuse allegations. She believed that her son was suffering ongoing harm during or as a result of the supervised contact sessions that had been ordered by the Family Court. She also believed that an order for unsupervised access was imminent and that the only way to protect her son was to take him out of the country. She thought that in Europe she would be able to obtain a proper investigation of her son and would then be in a position to “negotiate” their return to Australia. Once in Europe, she recorded a number of conversations with her son in which she maintains her son made further unsolicited disclosures of abuse by his father prior to their departure for Europe. These disclosures, she maintains, show the objective reasonableness of her concerns.

4. The child was located in Amsterdam in September 2010, following internet and media publicity. Ms B was arrested and the child was placed in a child care crisis centre. Mr B, in whose favour a custody order had been made by the Family Court in Ms B’s absence after Ms B took their child out of the jurisdiction, brought the child back to Australia in late 2010. Orders have since been made giving him sole parental custody and responsibility of the child.

5. Ms B was extradited back to Australia in 2011 and prosecuted in the District Court before a jury of twelve for the s 65Y offence, for which a maximum penalty of three years’ imprisonment applies.

6. Following Ms B’s conviction for that offence, and a sentencing hearing held before the trial judge, Woodburne SC DCJ, an order was made pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) that Ms B be released upon agreeing to give security (without a surety) in the amount of $500, on recognisance, to be of good behaviour for a period of 28 days. That good behaviour bond expired, apparently without incident, some time ago.

7. Ms B now appeals from her conviction and seeks leave to appeal from her sentence. The principal ground of appeal in respect of her conviction relates to the decision by the trial judge that Ms B had not satisfied the evidential burden necessary for the two defences Ms B wished to raise (of sudden or extraordinary emergency and of self-defence) to be considered by the jury. As to the outcome of her sentencing hearing, Ms B does not make any complaint as to the imposition of a good behaviour bond on her. Rather, she contends that the sentencing judge erred in not permitting her during the course of that hearing to cross-examine Mr B on his victim impact statement (which she wished to do in order to establish that he was not a victim but the perpetrator of the alleged sexual abuse), and that her Honour erred in not making a positive finding that she, Ms B, does not suffer from a delusional disorder (that having been the conclusion reached by a Family Court appointed expert in the context of ongoing Family Court proceedings following her return).

8. For the reasons set out below, I am of the view that Ms B’s conviction appeal should be dismissed and that leave should be granted for the sentence appeal but that appeal should also be dismissed.

Preliminary observations

9. Ms B was represented by successive firms of lawyers at the time the relevant parenting order was made (in February 2008) and at the time she took the child out of the country (in April 2008). She was also legally represented during part of the criminal proceedings. However, by the time of the trial and subsequent sentencing hearing, for reasons that are not apparent on the material before this Court, Ms B was not legally represented. Nor did Ms B have the benefit of legal representation on this appeal.

10. It is evident from a close review of the transcript of the trial proceedings that the trial judge was at pains to ensure that procedural matters were explained to Ms B and that, so far as possible, the disadvantage faced by Ms B as a self-represented accused was minimised. No criticism could be or has been made as to the manner in which her Honour conducted those proceedings. Indeed, Ms B has commended her Honour’s patience during the proceedings.

11. In the present proceedings, considerable latitude has been afforded to Ms B in the provision by her of successive sets of submissions, including submissions after judgment was reserved. There has been a degree of duplication of material across the five volumes of appeal books, the respective sets of submissions filed by Ms B, her affidavit dated 17 November 2014 (the ‘November affidavit’), and subsequent submissions filed in February 2015.

12. Where reliance has been placed by Ms B on material coming into existence, or events arising, after the conclusion of the criminal proceedings (that necessarily not having been in evidence before the District Court), such as some of the material included in the November affidavit, that will be treated as being by way of submission. Further, as the Crown did not have an opportunity to cross-examine Ms B on her November affidavit (which was filed following the grant of leave for further submissions to be filed going to the way in which Ms B had sought to re-cast ground 2 on the appeal), that too will only be treated as a submission except insofar as it incorporates matters that were in evidence at the trial. So that there is no misunderstanding, however, I would have reached the same conclusions even had that material been tendered formally on this appeal.

Allegations of sexual or other abuse

13. It is not necessary at this point to set out in detail the allegations made by Ms B of sexual or other abuse of her son by Mr B. A summary of those allegations, the accuracy of which was largely not disputed, was included as Annexure A to her Honour’s reasons on sentencing.

14. Those allegations had, by the time of the trial, expanded considerably beyond the allegations that Ms B had made at the time that she took her son from the country. For example, by the time of the trial, there were allegations by Ms B of ritual abuse involving the wearing of masks as well as an allegation that Mr B had physically abused his son and had on one occasion defecated on his face. Obviously, disclosures made by the child to Ms B after his removal from the country, and conclusions drawn by her from those disclosures, could not have informed Ms B’s state of mind at the time of commission of the act that constituted the offence. Nevertheless, Ms B relied at the trial on her son’s post-April 2008 disclosures as evidence that her son was making disclosures consistent with those of someone who had been sexually abused, not as to the truth of the allegations. She maintains that events after she took her son out of the country, including what has happened since his return to the country, demonstrate with hindsight the objective reasonableness of her conduct.

15. It must be noted that there has been no determination as to the truth or otherwise of the allegations of sexual abuse made by Ms B. Her Honour made clear to the jury that the criminal proceedings against Ms B were not the occasion for a determination as to whether or not any sexual abuse had occurred and at the outset of the trial Ms B disavowed any intention to ask the jury to reach any such conclusion. Mr B has not been charged with any criminal offence in that regard. Nothing in these reasons is to be taken as any comment on whether or not any or all of Ms B’s allegations have any valid foundation.

16. What was of relevance in the criminal proceedings, given the defences that Ms B wished to raise, was Ms B’s state of mind or belief at the time she took her child out of the country; the objective reasonableness of her belief that removal of the child from the country was the only reasonable response to the sudden or extraordinary emergency that she believed had arisen; and the objective reasonableness of her response to the circumstances as she perceived them (to paraphrase the relevant elements of the two defences that she sought to raise).

Background

17. The relevant events leading up to Ms B’s departure from the country and the evidence that Ms B gave as to the advice she had received in the period from 6 December 2007 to her departure, as well as the events following her departure, are summarised in the appendix to these reasons. Suffice it at this stage to note that Ms B made a conscious decision to take her child out of the country, though she says it was not a voluntary choice because she had a duty as a mother to protect her son. She maintains that she needed to leave Australia in order to obtain a proper investigation of the abuse allegations, although ironically her decision to leave Australia with her son seems to have had the practical outcome that there was then no investigation at all of the allegations, at least not while she and her son were in Europe.

Conviction appeal

18. On her conviction appeal, Ms B made it clear that she regarded the key issues in the trial proceedings (and in this appeal) as relating to the harm to her child; the allegations of abuse; the mental condition of her former husband and risk of “familicide”; and the failure of the authorities to investigate and provide her child with protection. Her fundamental complaint is that her child should not have been allowed to have any contact with his father at all until proper investigations into the sexual abuse allegations had been completed.

19. Ms B raised three grounds of appeal against her conviction: first, as to the decision by the trial judge not to permit her defences to be left to the jury; second, as to rulings made by the trial judge preventing evidence to be adduced going to the issue whether the sexual abuse allegations were correct; and, third, as to the admissibility of the report she had received from the Family Court appointed expert, Dr Waters, shortly before her departure from the country (“Dr Waters’ report”).

Ground 1 – evidential burden

20. At trial, Ms B sought to defend the charge on two grounds: first, that, at the time she took her child out of the country, circumstances of extraordinary emergency existed and her response was, she believed, the only reasonable response to those circumstances of emergency (the “sudden or extraordinary emergency” defence under s 10.3 of the Criminal Code 1995 (Cth)); and, second, on the ground of self-defence (s 10.4 of the Criminal Code).

21. There was discussion at the outset of the trial as to the evidential burden that Ms B was required to meet before those defences could be left to the jury. Her Honour heard evidence going to those defences (some of which was in the absence of the jury) before ruling on the availability of the defences. Ms B was directed not to make express reference to the defences in her opening address to the jury. It was not until the Crown case had closed and all of the oral evidence for the defence had been heard that her Honour ruled on the availability of the defences.

Defences

22. Section 10.3 of the Criminal Code (the sudden or extraordinary emergency defence) provides that:

(1)   A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.

(2)   This section applies if and only if the person carrying out the conduct reasonably believes that:

(a)   circumstances of sudden or extraordinary emergency exist; and

(b)   committing the offence is the only reasonable way to deal with the emergency; and

(c)   the conduct is a reasonable response to the emergency.

23. The sudden or extraordinary emergency defence requires not just a subjective belief on the part of the accused (i.e., here, Ms B) as to each of the matters in sub-sections 2(a), (b) and (c) but also that such belief be objectively reasonable.

24. Section 10.4 of the Criminal Code (self-defence) provides that:

(1)   A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence.

(2)   A person carries out conduct in self-defence if and only if he or she believes the conduct is necessary:

(a)   to defend himself or herself to another person;

…

and the conduct is a reasonable response in the circumstances as he or she perceives them.

…

(4)   This section does not apply if:

(a)   the person is responding to lawful conduct; and

(b)   he or she knew that the conduct was lawful.

However, conduct is not lawful merely because the person carrying it out is not criminally responsible for it.

25. Again, this defence requires not just a subjective belief on the part of the accused but also that the conduct be, objectively, a reasonable response (in the circumstances as the accused perceives them). The Crown argued in the present case that the defence was inapplicable because the supervised contact visits, which Ms B maintained were causing deterioration in her son’s behaviour, were lawful. However, her Honour did not exclude the availability of the defence on that ground.

26. Section 13.3(3) of the Criminal Code provides that a defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (in which Part of the Criminal Code ss 10.3 and 10.4 are contained) bears an evidential burden in relation to that matter.

27. Evidential burden is defined in s 13.3(6) of the Criminal Code to mean “the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist”. Where a defendant discharges the evidential burden in relation to a defence, then the prosecution bears the legal burden of negativing the defence beyond reasonable doubt (ss 13.1(2), 13.2(1)).

28. The question whether the evidential burden has been discharged is a question of law for the judge (The Queen v Khazaal [2012] HCA 26; (2012) 246 CLR 601 per French CJ at [13]). In Khazaal, the High Court considered what was required in order for an accused to discharge an evidential burden (there in relation to an exception from liability contained in s 101.5(5) of the Criminal Code). The plurality (Gummow, Crennan and Bell JJ) held (at [74]) that the operative words in s 13.3(6) required not more than slender evidence. Their Honours did not consider it necessary to determine whether the words “reasonable possibility” excluded evidence which suggested no more than a mere possibility or a bare possibility.

29. In the present case, her Honour ruled that Ms B had not satisfied the evidential burden in relation to either of the two defences. Her Honour published written reasons for that ruling.

25. In those reasons, her Honour had regard to the nature of the evidential burden imposed on Ms B, as considered in Khazaal, and to the nature of the test to be applied when determining a defence based on reasonable belief (referring to Oblach v R [2005] NSWCCA 440; (2005) 65 NSWLR 75; (2005) 158 A Crim R 586).

26. Ms B’s first ground on her conviction appeal asserts error on the part of the trial judge in ruling that she had not satisfied the evidential burden necessary for the defences she wished to raise to be left to the jury:

Her Honour erred in withholding my defences from the jury on the ground that I had a right of appeal and therefore the evidence was not capable of supporting the possibility that I reasonably believed that committing the offence was the only reasonable way to deal with the emergency and on the ground that my conduct was not a reasonable response in the circumstances as I perceived them because I had the right to be heard at any hearing for a parenting application and the right to appeal the decision (Judgment R v B (No 2) at [108], s 10.3(2)(b) at [130] and [134] – s 10.4(2) of the Code respectively).

32. The question for her Honour (as articulated by French CJ in Khazaal at [19]) was whether the evidence relied upon by Ms B was incapable of suggesting the reasonable possibility necessary to satisfy the evidential burden on Ms B. Her Honour clearly had regard to the correct test in that respect. Further, it is clear from her Honour’s reasons that her Honour approached that task with the trial judge’s appropriate reluctance when considering the withholding of potential defences from the jury.

Sudden or extraordinary emergency

33. As to the “sudden or extraordinary emergency” defence (for which, as Simpson J notes at [216] below, Ms B asserted only the existence of an “extraordinary” emergency), the question for this Court is whether her Honour erred in concluding that the evidence was not capable of suggesting the reasonable possibility that Ms B reasonably believed that taking her child out of the country was the only reasonable way to deal with the emergency and that she reasonably believed that this was a reasonable response to the emergency.

34. As to the nature of that emergency, Simpson J has pointed (at [280] below) to Ms B’s articulation of this before the trial judge (on 14 October 2013, in the absence of the jury, at T35-37) as one concerning the apprehension that Mr B was potentially homicidal and that she and her child were in physical danger. However, as Simpson J has noted, Ms B’s response when asked to identify the emergency in this case was lengthy discursive and not easy to understand. In the course of that response Ms B also referred to the deterioration of her son’s behaviour in the course of the supervised contact visits. The evidence that Ms B gave at the trial, and her communications while in Europe with an academic in Adelaide (Professor Briggs), as to the reason that she left the country focussed largely on her concerns as to the alleged sexual abuse and imminence of unsupervised access by Mr B to his son, coupled with her belief that there would be no proper investigation of the alleged abuse. I have therefore approached the matter on the basis that the emergency that Ms B perceived was not confined to a fear of familicide on the part of Mr B. That said, if the nature of the emergency relied upon by Ms B for the proposed defences was so confined, then my ultimate conclusion would be the same.

35. The Crown, at trial, acknowledged that the evidentiary threshold was a low one and accepted (for the purposes of the argument as to whether Ms B had satisfied the evidential burden necessary for the defence to go to the jury) that there was evidence capable of suggesting as a reasonable possibility that Ms B subjectively believed that: the child had been sexually abused by the father; there had not been, and would not be, a proper investigation into the alleged sexual abuse; the father had psychiatric problems and was suicidal or possibly homicidal; and that the child was “deteriorating” as a result of (the Family Court ordered) contact with the father (as noted in her Honour’s reasons at [59]).

36. As to s 10.3(2)(a), her Honour was satisfied that the evidence was capable of supporting the reasonable possibility that, as at 24 April 2008, Ms B believed that circumstances of extraordinary emergency existed ([61]). Her Honour noted the submissions made by the Crown, first, to the effect that this was not a reasonable belief having regard to various matters (including that the contact sessions with Mr B were supervised) and, second, that the possibility that unsupervised contact might be ordered in the future was not capable of amounting to an extraordinary emergency. Nevertheless, her Honour did not find against Ms B on the discharge of the evidential burden so far as it related to the requirement posed by s 10.3(2)(a) of the Criminal Code ([72]).

37. Where her Honour found that the evidential burden had not been discharged was in relation to the requirements in s 10.3(2)(b) and (c).

38. Her Honour concluded that, in circumstances where Ms B had a right of appeal (i.e., from the supervised contact orders), the evidence was not capable of supporting the reasonable possibility that Ms B reasonably believed that committing the offence was the only reasonable way to deal with the emergency ([108]) nor that Ms B reasonably believed that the conduct was a reasonable response to the emergency ([109]-[110]).

39. The Crown had pointed to other courses of action available to Ms B at the time to demonstrate that there was not a reasonable possibility that Ms B could reasonably have believed that taking her child out of the country was the only reasonable way to deal with the emergency. Those other course of action included: not cooperating with the contact centre; not taking the child to the contact centre; moving the child interstate; as well as taking the child to the police or the Joint Investigative Response Team (JIRT) or DOCS for the investigation of the alleged threats or raising the concerns with the contact centre. Her Honour did not accept that those were other reasonable ways to deal with the perceived emergency. In that regard, her Honour noted that non-compliance with the contact orders would have amounted to intentional contravention of the parenting order, potentially with the consequence that Ms B’s concerns of abuse would be ignored and the child placed permanently with the alleged abuser, and that Ms B had already reported her concerns to the police, JIRT and DOCS ([99]).

40. As to the possibility of an appeal or an urgent application to the Court, at [107] her Honour said:

That an appeal may have been expensive did not mean that it was not a reasonably available course of action. Although it may not have been the accused’s preference to obtain a loan she was at that time still working and could have done so. Even if the accused was impecunious she could have taken the appeal herself. It is no answer to say she was not aware she could have done so because pursuit of her right of appeal would have led her to discover the necessary mechanism for such appeal and the steps associated with it, including the right to represent herself. That the accused had been advised that the appeal was unlikely to be unsuccessful did not mean that it was not a reasonably available alternative course of action. It was one that did not involve a breach of the law. That the accused might have been unaware of the opportunity of bringing an urgent application does not change the position. Upon giving instructions to lodge an appeal, the necessary steps could have been taken. As the Crown submitted, the relevant concept is of necessity, not expediency or strong preference.

41. Her Honour thus concluded that the requirement under s 10.3(2)(b) was not satisfied.

42. Her Honour approached the requirement under s 10.3(2)(c) on the basis that there needed to be some evidence capable of suggesting the possibility that Ms B reasonably believed that the conduct was a reasonable response to the emergency. Her Honour said that a response was not proportionate to the threat if there were reasonable grounds for believing that there were alternative courses of action available (referring to Bayley v Police [2007] SASC 411; (2007) 178 A Crim R 202) and noted that in this case, where there was a right of appeal, there was such a course of action available ([109]-[110]). Her Honour thus concluded that this requirement was also not satisfied in Ms B’s case.

43. In these proceedings, Ms B submits that the other alternative courses of action postulated by the Crown, including the possibility of an appeal, would not have resulted in “a better investigation” because of the Family Court order appointing Dr Waters as the sole court expert to prepare a report (AT 13-20) and the fact that he, in preparation of the report, had not assessed her child. Ms B maintains that Dr Waters (a forensic child psychiatrist) is not an expert in child sexual abuse and should not have been appointed by the Family Court. She has made serious allegations about Dr Waters, accusing him of corruption, bias, misrepresentation and perjury.

44. Ms B argues that to have made an application for a different expert would have required an affidavit and would only have resulted in the appointment of another Family Court psychologist (AT 13.29). She contends that the Family Court psychologists do not have the skill in assessing sexual abuse (and hence this would not have produced a better outcome). Ms B also says that any such application would have taken too long, and that she was not advised as to the ability to make an urgent application. Ms B said:

So, going interstate would not have helped, withholding him from the contact centre I knew I would just be in trouble, even more trouble, I would have to bring him back to contact or lose him, they would just take him out of my care. (AT 13.41-43).

45. What is clear from Ms B’s submissions in this Court, and was apparent from her evidence at the trial, is that in taking her son out of the jurisdiction she was intentionally seeking to prevent or inhibit the enforcement of the supervised contact orders and to put herself and her son beyond reach of the Australian legal system. She maintains that this was the only way she could protect her child from what she believed was his ongoing deterioration as a result of the supervised contact sessions.

46. Ms B made it very clear on this appeal that her reason for going overseas was the “behaviour” of the Family Court when the decision was made appointing Dr Waters as the expert and granting “excessive contact” to the father (AT 39.33).

47. Ms B submits that the evidence did not support an assumption that the child was being continually supervised during contact sessions (see [90] and [91] of her appeal submissions) – a submission that seemingly goes to her belief as to the existence of the emergency, not as to whether (considered objectively or otherwise) her action was the only reasonable way to respond to the emergency nor that it was a reasonable response. Ms B also submits that unsupervised contact orders were almost inevitable following Dr Waters’ report and contends that her Honour did not adequately consider the risk to the child of the “impending unsupervised contact”.

48. Ms B emphasised in her submissions that: in her opinion appealing provided her with no reasonable alternative course of action; her lawyers had advised her not to appeal; she did not know she could have represented herself in Court; she would not have been able to undertake an appeal herself or to know how to obtain a stay of the orders; and any appeal would have delayed proceedings beyond 5 June 2008 and would not have protected the child from unlawful attack outside of the contact centre (this last submission apparently referring to Ms B’s concern that the father might not simply have had suicidal intentions but might have decided to kill them all).

49. Ms B accepts that her lawyer had told her she could seek a second opinion if she disagreed with the findings in Dr Waters’ report but says (submission [166]) that would not have helped protect her child especially given that if that had happened the expert would have been Dr Robinson, a psychiatrist whose name Ms B had initially put forward as an appropriate court expert but who is now the subject of not dissimilar allegations as those made by Ms B against Dr Waters. The basis for Ms B’s belief that Dr Robinson would have been appointed as the alternative expert in 2008 was not made clear but is presumably the fact that Ms B had nominated Dr Robinson as an acceptable expert at that time and the Family Court has since appointed her as an expert in Ms B’s case.

50. Ms B maintains that the jury should have been left to decide “whether it would be reasonable that I ignore legal advice, attempt to run an appeal and compete against Dr Waters’ report when I knew nothing about the law”. That, however, elides the subjective and the objective elements of the respective tests – and, significantly, it does not take into account the different stage of the proceedings at which advice as to prospects of an appeal were given.

51. As noted above, Ms B relied on events following the recovery of the child as demonstrating the objective reasonableness of her concerns. In particular, she said that independent reports had demonstrated that the child had severely deteriorated in the father’s care, was suicidal and had been admitted to a special school (submissions on sentence at [29]-[52]). Ms B also made reference to the fact that, after her return to Australia, she was only able to obtain a Family Court listing five months after she made an application for an urgent hearing.

52. For completeness, I should note that one of Ms B’s complaints in these proceedings is the “failure” of the primary judge to admit into evidence a copy of a letter dated 5 March 2008 in which Ms B’s lawyers gave advice as to the prospects of appeal from the orders of the Family Court (see amended written submissions at [42]). That complaint cannot be sustained having regard to a review of the transcript as to what occurred in relation to that document in the absence of the jury. That may be summarised as follows.

53. Ms B (who gave evidence in part by reading out paragraphs from her February 2008 Family Court affidavit) referred to the letter and informed the trial judge that she wanted to make the point that she had tried to appeal the orders. She was told that she did not need to tender the letter (which was then marked MFI 52). Tender of the document would, of course, have been likely to amount to a waiver of privilege in relation to the advice and matters connected with it, which was presumably part of her Honour’s concern when she informed Ms B that she did not need to tender it.

54. Ms B then said that she would not tender the letter “simply because I am going to have to explain issues I had with advice from my lawyers [and] that’s not central to my leaving the country”. Following further discussion, in which her Honour explained that tendering the letter would give the Crown the right to cross-examine Ms B on it, the matter was left that the Crown did not object to Ms B having the opportunity to reflect on the question overnight.

55. Ms B did not address the question of the tender of that document again. Had she wished to do so, it was open to her to tender the document. On other occasions in the trial it was clear that Ms B was keeping track of outstanding tender documents. There is no suggestion that she had simply omitted to tender this document. In any event, there was other evidence before the jury which made it clear that Ms B had obtained advice as to the prospects of an appeal - in an email from Ms B to her lawyers on 7 March 2008 she said, among other things, that: she could not afford to appeal the order for supervised time; she had already taken and accepted the advice of a barrister that it would be unlikely that an appeal would be successful; and therefore she would not appeal; and also made reference to a “stay” of the orders, saying that she did not understand that terminology and therefore could not comment on that. The inference to be drawn from the reference to a stay is that Musgrave Peach had given some advice or made some reference, following the making of the supervised contact orders, not only to Ms B’s ability to appeal from those orders but also to the possibility of a stay of the orders. It was not suggested that Ms B could not have pressed for clarification of this from Musgrave Peach or any of the other sources from which it seems Ms B was obtaining advice at the time.

56. The essence of Ms B’s submission on ground 1, as was her argument at trial, is thus her conduct was not voluntary in that she was forced to choose between two conflicting laws, the “law against unlawful harm” and the family contact orders (and she prioritised the protection of her son). Ms B argued that implementing an appeal would have required extensive preparation including a stay of orders and an application for an extension of time and in the meantime she would have breached her duty to protect her child from unlawful harm ([22] of her written submissions).

57. For ground 1 to succeed in relation to the sudden or extraordinary emergency defence, it is necessary to conclude that her Honour erred in finding that the evidence was not capable of suggesting, as a reasonable possibility, not only that Ms B subjectively believed that there was an emergency and that taking her child out of the country was the only reasonable response to the emergency (and was a reasonable response thereto), but also that such a belief was objectively reasonable.

58. On Ms B’s evidence, as at the time she bought the airline tickets she had only briefly read Dr Waters’ report (which had been sent by Dr Waters to the Family Court on 3 April 2008 but was not received by her until about 23 April 2008), and she had not obtained legal advice in relation to that report, but she nevertheless believed that it was imminent that unsupervised access would be permitted. The material before the Court was not capable of suggesting the reasonable possibility that there was an objectively reasonable basis for that belief.

59. The evidence was capable of suggesting as a reasonable possibility that Ms B believed that her child’s behaviour was deteriorating following the commencement of the contact visits (as her Honour in effect found). That may have been the case whether or not Ms B’s concerns as to the continuation of abuse during the contact sessions had any valid foundation. Dr Waters, for example, considered that the deterioration could be expected having regard to the frequency of the contact visits. However, that does not lead to the conclusion that the evidence was capable of supporting the reasonable possibility, objectively speaking, that the only reasonable response to deal with that situation was to remove the child from the jurisdiction.

60. Similarly, though the evidence was certainly capable of supporting a conclusion that the investigation that had been carried out as at 24 April 2008 had not been sufficient to determine the truth or otherwise of the sexual abuse allegations (as Dr Waters himself seems to have conceded when, in cross-examination by Ms B, he indicated that his was only a conditional report and that there was “latitude for doubt” as to some of the areas of concern that had been raised by Ms B), the evidence was not reasonably capable of supporting the reasonable possibility of it being objectively reasonable to conclude, as at 24 April 2008, that there would be no proper investigation in the future of the abuse allegations.

61. Ms B’s conclusion in that regard seems to have been based heavily on what she had read in various literature on child sexual abuse and, in particular, a doctoral thesis written by a Ms Foote. Ms B had not, at that stage, seen the video recording of an interview with her son which had been conducted by JIRT on 10 December 2007. While she had been told that an investigation by the JIRT and the police Child Protection Unit (CPU) was closed, there was no suggestion that it could not be re-opened if circumstances warranted it. The impact of the contact sessions on her son had yet to be properly considered by any expert or the Court. Further, Professor Briggs (an emeritus professor at the University of Adelaide with extensive experience in the area of child protection, with whom Ms B had initiated an email exchange seeking advice before she left the country) had not seen Ms B’s child and, in commenting on the situation, was solely relying on the information and instructions given to her by Ms B. Insofar as Ms B calls in aid the conclusion drawn by Professor Briggs, after the event, that the JIRT interview was woefully inadequate, there was no suggestion by Professor Briggs that a proper investigation could not or would not have been carried out had Dr Waters’ report been tested or had an application of that kind been made in April 2008.

45. While Ms B says she was unaware of the legal avenues available to her, and that it was not reasonable to expect her to “second guess” her lawyers, the fact is that she simply did not seek, nor did she wait for, any advice as to what might be able to be done following receipt of Dr Waters’ report. Her conclusion was that, whatever it said, it would not assist her.

46. There is provision under the Family Law Act and Family Law Rules 2004 (Cth) pursuant to which Ms B could have sought an extension of time for an appeal from the supervised contact orders and also for her to have sought a variation of the contact orders.

47. Dr Waters’ report, had Ms B read it carefully at the time, did not support a change to the contact orders to permit unsupervised access. Rather, what Dr Waters recommended was the very same reduction in the number of supervised contact visits that Ms B, through her solicitors, had requested. Ms B’s own lawyers had advised her not to read anything into the letter from Mr B’s lawyers (seeking consent to unsupervised access in light of the contents of the report and suggesting that the sexual abuse allegations were by then “dead in the water”) until they were able to give her advice.

48. Ms B’s legal advice up to the time that she left the country does not support the conclusion that taking the child out of the country was the only reasonable, or even a reasonable, response to concerns as to the deterioration in her son’s behaviour while contact visits continued. The advice obtained in early March 2008 from her then solicitors (Musgrave Peach), and then from one or more barristers as to the prospects of an appeal from the orders of the Family Court, can only have been as to the prospects of an appeal at that stage (when no contact visits, and hence no deterioration in the son’s behaviour, had commenced). The advice Ms B says she obtained in or about 10 April 2008 was that a change to the contact orders was unlikely until the Court had received Dr Waters’ report. That is not surprising since by that time a report must have been imminent (indeed, unbeknownst to Ms B, the report had in fact already been provided to the Court). Ms B also says that her new lawyers had advised her that an appeal was unlikely to succeed. Any such advice again cannot have been given with the benefit of reading and absorbing the import of Dr Waters’ report.

49. The possibility of seeking changes to contact orders in advance of a final hearing must have been apparent to Ms B when her lawyers acted upon her instructions to request such a change. Ms B had the benefit of legal representation and could have asked for advice as to what, if anything, could be done in light of Dr Waters’ report.

50. The position, therefore, is that as at 24 April 2008, when Ms B left the country, she was aware that the report had been received. She chose to leave the country without waiting for advice as to the import of the report and, insofar as she believed unsupervised contact was imminent as a result of that report, without fully comprehending the recommendations in fact made in the report. Her position was, in effect, that whatever the report said it would not have satisfied her because of her belief (without having seen or having been present during the JIRT interview) that the JIRT interview was not adequate and that Dr Waters, of whom she had already formed the view that he was biased (based on an article of his that had been published on the internet), was “dismissive” of the sexual abuse allegations.

51. Although her Honour does not appear to have relied on this in reaching her conclusion on the availability of the sudden or extraordinary emergency defence, in addition to having a right to appeal to a full court from the February 2008 orders of the Family Court judge there was capacity to bring an urgent application before a judge of the Court on the basis of a change in circumstances. Ms B’s lawyers would have been aware of this. She says that they did not advise her of this (although they apparently did speak of a stay) but the evidence shows that Ms B did not give them an opportunity to provide any such advice after Dr Waters’ report was received.

52. Insofar as Ms B, at trial, referred to a concern as to possible homicidal tendencies on Ms B’s part, there was simply no evidence of an imminent threat of physical harm to Ms B or to her child. It was not suggested that any actual threat had been made by Mr B. Rather, Ms B seems to have taken from the statistics she had read on familicide, coupled with her perception of Mr B’s mental state, that this was a real risk at that time.

53. The belief that Ms B expressed to Professor Briggs as to the inadequacy of the justice system in Australia, at a time (around June 2009) when she had attended only one court appearance (on 29 February 2008), seems to have been based in large part on the materials that she had read and the conclusions she had formed as to what was likely to happen in the Family Court proceedings. That and the other views expressed by Ms B in her statement sent to Professor Briggs in 2009 (set out in the appendix to these reasons) cannot be accepted as objectively reasonable having regard to the material before this Court as to the manner in which the proceedings in the Family Court were conducted up to the time that Ms B intentionally removed her child from the jurisdiction.

54. Deterioration in her son’s behaviour following contact visits was a matter that could reasonably have been dealt with by an application to the Family Court. The matter was already listed for 5 June 2008 and the very fact that a request had been made for consent to a variation of orders made clear that variation of orders was a possibility. There was no objective basis for the view that Dr Waters’ report made it likely that unsupervised contact would be imminent. Rather, he had recommended a reduction in the supervised contact visits (though expressing a view as to Mr B’s parenting capacity and found it difficult to conclude there had been sexual abuse). Armed with Dr Waters’ report, one would have thought a reduction in supervised contact visits was the more likely result had the matter been brought back before the Court. Delay in listing matters some years later is not indicative of what the position might have been had Ms B not taken matters into her own hands in 2008.

55. As to Ms B’s concern that there would be no proper investigation of the allegations, it had been made clear to her that the case could be reopened by the JIRT if there were further evidence, such as (one would assume) evidence of deteriorating behaviour.

56. Material relied upon after the event is not relevant to the formation of a belief on her part at the time. With hindsight it might make more obvious the reasonableness of the belief at the time but matters such as delays in Family Court proceedings or deterioration in the child’s behaviour on his return cannot be assessed without also taking into account the effect of the disruption and subsequent relocation to Australia, and separation from his mother.

57. In my opinion, her Honour did not err in concluding that the evidence did not meet the evidential burden (slender as it is) of suggesting that there was a reasonable possibility that the necessary belief by Ms B (that the only reasonable alternative was to remove her child from the country and that this was a reasonable response to the emergency) was an objectively reasonable belief. To reach a contrary conclusion would require it to be accepted that it was objectively reasonable to believe, in effect, that the Family Court and its court appointed experts would not properly consider the material put forward in such a case or would be incapable of so doing, and that neither the appellant’s own legal representatives nor the independent children’s lawyer would act with a view to the best interests of the child, taking into consideration not only Dr Waters’ report but also any evidence of continuing harm at contact centre visits.

Self defence

75. A similar conclusion must be reached in relation to the defence sought to be maintained under s 10.4 of the Criminal Code (of self-defence).

76. Her Honour was satisfied that the evidence relied upon by Ms B was capable of suggesting the reasonable possibility that she believed her conduct in taking the child from Australia to a place outside Australia was necessary in order to defend the child from harm ([121]).

77. As to the requirement that the conduct be a reasonable response in the circumstances as perceived by Ms B at the time, her Honour noted that this was to be determined by an entirely objective assessment of the proportionality of Ms B’s response to the situation Ms B subjectively believed she faced (R v Katarzynski [2002] NSWSC 613 at [22]-[23]). Her Honour also noted that, in determining whether there was evidence capable of suggesting the reasonable possibility that the conduct was a reasonable response in the circumstances as Ms B perceived them, the availability of other possible responses was a material consideration [129].

78. Her Honour concluded (at [130] and [132]):

130.   In circumstances where, as here, the accused had available to her a right of appeal against the interim order, which she chose not to exercise, as well as a right to be heard at any hearing of the application for parenting orders, together with a right of appeal from any such order, the extreme action of taking the child from Australia to a place overseas cannot be objectively viewed as anything other than a fundamentally unreasonable and disproportionate response to the circumstances as the accused perceived them to be.

…

132.   In circumstances where … the conduct is a fundamentally unreasonable and disproportionate response to the circumstances as the accused perceived them to be the evidence is not capable of raising and does not in fact suggest the reasonable possibility that the accused’s conduct was a reasonable response in the circumstances as she perceived them.

79. Her Honour thus concluded that Ms B had failed to discharge the evidential burden for the defence under s 10.4 of the Criminal Code to be left to the jury because the evidence relied upon was not capable in her Honour’s opinion of suggesting the reasonable possibility that the conduct in taking the child outside Australia was a reasonable response in the circumstances as Ms B perceived them ([138]).

80. Her Honour took into account the circumstances as Ms B perceived them at the time (with one error that is not material – namely her Honour’s reference to advice that Ms B had received that she might lose her child if she appealed, whereas the advice she did receive was that she might lose her child if she did not comply with contact orders). Her Honour correctly concluded that taking the step of removing the child from the jurisdiction was not a reasonable response to those circumstances. The fact that the child’s distress was reduced when living overseas (according to the material to which Ms B referred) does not alter the fact that this was, as her Honour suggested, an extreme response in the sense of being disproportionate to the circumstances facing Ms B.

Conclusion on ground 1

81. The Crown submits, and I agree, that for her Honour to have ruled that the two defences could properly have been left to the jury would have encouraged or permitted the jury impermissibly to exercise a power to dispense with compliance with the law. In R v Rogers (1996) 86 A Crim R 542, Gleeson CJ considered the public policy considerations that had informed the limitations imposed on the availability of the defence of necessity, as follows:

The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed (at 546). (my emphasis)

82. Her Honour was clearly conscious of the need not to usurp the jury’s function in determining the issue of reasonableness. She noted the necessity for a trial judge to remain mindful of the onus of proof and had in mind the reluctance of a trial judge to withdraw from a jury any issue that should properly be left for them. Her Honour was well aware that it was a grave responsibility to take defences away from the jury [131] and carefully considered the evidence before her in that context.

83. There was no error on her Honour’s part in concluding that the availability of the appeal process (and, I would add, of the ability to make an application for a variation or stay of the contact orders on a change in the behaviour of the child) meant that there was no reasonable possibility that the evidence could suggest that Ms B had an objectively reasonable belief as to the second and third requirements of s 10.3 or that the response was a reasonable one for the purposes of s 10.4.

84. Thus, in my opinion, her Honour did not err in reaching the conclusion that the evidential burden was not satisfied. The only objectively reasonable conclusion on the evidence that was before her Honour was that Ms B chose, knowing that she was acting in disobedience to the Family Court contact orders and intending to put herself and her son out of the reach of the Court’s control, to take the law into her own hands. The evidence before her Honour was not capable of supporting as a reasonable possibility that a belief by Ms B that this was the only reasonable response to the emergency (and that it was a reasonable response) was objectively reasonable; nor could it support as a reasonable possibility the conclusion that this was an objectively reasonable response to the circumstances as she perceived them.

85. Ground 1 is not made out.

Ground 2 – ruling re irrelevance of fact of sexual abuse

86. The second ground raised on the conviction appeal was expressed in the notice of appeal as follows:

2.   Her Honour erred in ruling that the question of whether [Mr B] sexually abused [the child] was not relevant and therefore not to be considered in this trial. Her Honour erred in directing the jury not to consider whether [Mr B] did sexually abuse [the child] and in directing me not to adduce evidence for that purpose.

87. On any view of the matter, the question whether the child had in fact been sexually abused was not relevant to the issue whether there had been a breach of s 65Y of the Family Law Act, save insofar as it was relevant to the defences that Ms B sought to raise. As to those defences, once her Honour had accepted that there was evidence capable of suggesting as a reasonable possibility that Ms B subjectively held the relevant belief to satisfy the sudden or extraordinary emergency defence or that there were circumstances that would potentially enliven the defence of self-defence, the fact that the sexual abuse allegations may have been true did not take those matters any further. (Of course, if the belief as to sexual abuse was manifestly erroneous, this might affect the objective reasonableness of her belief as to sudden or extraordinary emergency or as to the circumstances giving rise to a defence of self-defence but that was not her Honour’s conclusion.)

88. Ms B maintains, however, that evidence of the alleged sexual abuse supported the objective component of her defences, i.e., that her belief as to the matters in s 10.3 was objectively reasonable and that she was responding to unlawful conduct for the purposes of precluding the exclusion arising under s 10.4 (submissions [84] and [85]). It is submitted that the evidence that her husband was sexually abusive supported her credibility and was “tendency” evidence that it was objectively reasonable for her to fear sexual abuse/unlawful harm both at the contact centre and with unsupervised contact in the near future (submissions [81]-[119]). (It does not appear that Ms B is here referring to tendency evidence in the sense that such evidence is dealt with in the Evidence Act 1995 (Cth). Certainly, no notice of an intention to adduce tendency evidence appears to have been filed.)

89. In her oral submissions on the appeal, Ms B expressed concern that without the evidence she wished to adduce in relation to the sexual abuse (such as the evidence from Professor Briggs) her Honour may not have understood just how serious was the deterioration in the behaviour of her child once the contact visits had commenced (AT15.15). Such a criticism cannot be sustained in the face of her Honour’s comprehensive summary of the sexual abuse allegations in Annexure A to her Honour’s reasons for judgment. Moreover, as already noted, her Honour found in effect that there was evidence capable of supporting the reasonable possibility of a conclusion that Ms B held an objectively reasonable belief that sexual abuse had occurred and that the son’s behaviour was deteriorating as a result of the contact visits. A finding that there had in fact been sexual abuse or that this was ongoing (even had this been appropriate in the context of the proceedings against Ms B) would not have assisted Ms B to meet the evidential burden on the second and third requirements of s 10.3, nor to enable her to raise the ground of self-defence before the jury (since, again, that turned on whether the conduct was reasonably proportionate to the circumstances as Ms B perceived them).

90. The Crown submits that once her Honour ruled that neither of the defences was available to be left to the jury evidence concerning the alleged sexual abuse of the child was no longer of relevance to any issue in the trial.

91. Ms B complains, in her written submissions in response to the Crown’s submissions, that evidence supportive of the sexual abuse allegations was excluded at a time prior to all of the evidence and that her Honour could not have known what might have emerged in cross-examination of the witnesses (referring by way of example to concessions made in her cross-examination of Dr Robinson). However, the evidence that Ms B sought to adduce as to liability was outlined to her Honour before her Honour ruled against the admissibility of the particular documents and lines of questioning of which Ms B complains.

92. Insofar as ground 2 rests on the Court’s determination of ground 1, it must logically fail since ground 1 has not been made out. However, in oral argument, Ms B maintained that ground 2 was independent of ground 1 and was in essence a complaint that her Honour had wrongly rejected evidence supporting the conclusion that Mr B had sexually abused the child.

93. Directions were made for Ms B to identify precisely the evidence that she said was the subject of this ground of appeal, i.e., the evidence which she said her Honour had wrongly excluded, and to provide copies of the material comprising that evidence. In response to those directions Ms B filed the November 2014 affidavit and annexures to which I have already referred and a subsequent 16 page set of submissions in February this year.

94. The November 2014 affidavit, in summary, recounts the history of the matter, from Ms B’s perspective, and the material from which Ms B has formed the belief that the sexual abuse occurred. It contains a mixture of evidence and submissions. Broadly, the ground that it covers includes: the basis on which Ms B has drawn the conclusion that her child was sexually abused by his father; the reason she believed she had no option but to take the child out of the country; her criticisms of the investigation of her allegations of child sexual abuse and of the Family Court proceedings; her commentary on or response to some of the evidence before the Family Court and at her trial; her child’s experience while overseas; and her concerns in relation to her child’s development since his return.

87. In that affidavit, Ms B recounts her recollection of the history of her child’s development, his early anxiety with other children and attachment to her, the circumstances in which Mr B had interaction and (on her business trips) sole care of the child, the disclosures made by the child and the course of events following her report of those disclosures to the authorities. Ms B refers to material relating to Mr B’s mental state and to research carried out by her (some before her departure from Australia and some after she had left) as to child sexual abuse and the way in which investigation thereof should, according to various academics in the field, be carried out.

88. Some of that material was in fact admitted in evidence at the trial (and hence there is no basis for it to be said that it was wrongly excluded); some of that material was not sought to be tendered at the trial (and hence again cannot be said to have been wrongly excluded); some was not prepared until after the trial, as is apparent from the descriptions of that material in Ms B’s November 2014 affidavit and conceded by her, and hence could not have been admitted at trial.

89. What this Court had understood Ms B was seeking to raise by her wrongful exclusion of evidence complaint was a contention that she had sought to adduce particular evidence and that her Honour had wrongly excluded that evidence. What has become apparent from the written submissions filed in February 2015 in response to the Crown’s further written submissions (those in turn responding to Ms B’s November affidavit), is that Ms B has understood the leave granted to her for the filing of submissions as to the wrongful exclusion of evidence at the trial as being an invitation to set out the whole of the evidence on which she says she would have relied had she been permitted to put before the jury the issue as to whether or not Mr B had in fact sexually abused her son. An argument of that kind must fail given the conclusion that her Honour did not err in ruling that the question whether Mr B had sexually abused the child was not relevant to be considered in her trial.

90. Ms B’s 2015 February submissions, in effect, re-state her argument that in 2008 she was faced with conflicting legal duties; re-state her submissions as to the alleged sexual abuse and seek to explain why it is that she did not adduce certain of the material she has now put forward and on which she now relies.

91. Ms B has produced a 14 page annexure responding to the Crown’s analysis of the evidentiary status of material in her November affidavit.

92. In a number of instances, Ms B concedes in that annexure that evidence referred to in her November affidavit was not admitted into the trial (such as her 28 February 2008 affidavit) or was not sought to be tendered and explains that this was due to her inexperience in criminal trials (see the explanation in paragraph 2(b)). In other cases in response to the Crown’s submissions, Ms B responds (as in paragraph 2(a) of her annexure) by stating that the evidence she tendered during the trial was not for the purposes of establishing that sexual abuse had in fact occurred and that the material in her November 2014 affidavit is now presented as the whole of the evidence she seeks to rely upon for the purpose of establishing that sexual abuse did in fact occur.

93. At [2] of her February 2015 submissions, Ms B states: “I required the jury to make a finding on whether [Mr B] sexually abused [her son] because it is what actually happened and because this finding is the objective evidence of the reasonableness of my conduct in response, in addition to findings on risk of attack by [Mr B] – at any time and in any place” (my emphasis). That, however, is not the basis on which Ms B conducted her defence and such a course was expressly disallowed by her at the time.

94. On 15 October 2013, before the jury was empanelled, in the context of her objection to the admissibility of Dr Waters’ report, Ms B stated that she did not want to have the jury try to ascertain the sexual abuse issue. She explained that this was because it was very complex and the fact that the abuse happened was not the reason that she left the country; and because to do so there would need to be an expert with child sexual abuse expertise (T 63.25).

95. On 24 October 2013 (day 9 of the trial), in the course of argument about what evidence could be given by Professor Briggs, Ms B disclaimed any intention to use Professor Briggs as an expert in this case, stating that she wanted to use Professor Briggs’ expertise in general (T 344.32).

96. On 30 October 2013 (day 13 of the trial) (T 47ff), referring to the “purple lipstick recording”, Ms B said “I want to use it not as evidence of the facts asserted but as evidence of the fact that my son spoke to me in a manner consistent with disclosing sexual abuse”.

97. Ms B said:

I am using this recording as evidence of the fact that my son spoke to me in a manner that I found concerning and it is objective evidence that that’s what he was doing. I am not using it to prove sexual abuse or anything else.

106. Ms B argued that the purple lipstick recording showed her credibility in circumstances where she had been accused of fabricating allegations. She confirmed again that:

I’m not using [the purple lipstick recording to say it] … actually happened. I am using it to say my son was speaking to me. That’s, in fact, why I took the recording.

107. Similarly, in relation to the JIRT interview, Ms B indicated that she wanted to tender it in order to point to a discrepancy in the transcript (namely, that her son had answered the question as to his name correctly at first, by responding with his Christian name, then incorrectly answered the question as to his other name); to counter Dr Waters’ comment that her son was unsettled at the interview and to point to “concerning signs” in the video that she submitted would lead one to think that perhaps there should be more than one interview. Ms B had not seen the recording of the JIRT interview or the transcript at the time she left the country (and therefore it could not have informed her state of mind at that time) but maintained that she knew it had been unsuccessful.

108. In the context of her oral application for a ruling on whether Dr Waters was an expert in sexual abuse, Ms B said:

I am not going to try and prove that he [her son] was sexually abused but I do want to prove that [Dr] Waters’… opinion was worthless … because he didn’t rely on any appropriate evidence and because he didn’t have expertise.

109. In those circumstances, it is not open to Ms B now to contend that her Honour erred in not admitting evidence going to the truth of the sexual abuse allegations. The fact that, as Ms B states in her most recent submissions, she may now have formed the view that certain matters were wrong – such as her statement that Professor Briggs was not an expert in the case (which Ms B now submits was an incorrect view) that initial incorrect view being said to be “as a result of bias in the way the Family Court appoints experts”); or that she did not seek during much of the trial to have the jury make findings of fact on whether sexual abuse had actually occurred because she accepted the Crown’s assertions and the trial judge’s ruling that the evidence was irrelevant; or that she wrongly believed she could not seek to ask the jury to find that sexual abuse had occurred and wrongly believed that she could not ask Professor Briggs her opinion on that issue, does not reveal error in the trial judge’s rulings on the admissibility of evidence relating to the truth of the sexual abuse allegations. Ms B is bound by the forensic decisions made by her in the trial, whether those were affected by her inexperience or otherwise.

110. Ms B complains that she was not advised that she could argue otherwise against the proposition that the jury should not be embarking on an enquiry as to whether or not her child was abused. However, it was not for the trial judge or the Crown to advise Ms B what argument she should advance in the conduct of her defence.

111. The two rulings that were identified by Ms B in oral submissions as incorrect rulings referable to particular evidence or a particular area of cross-examination, and which would fall within the scope of the re-cast ground 2, were a ruling on 25 October 2013 and 14 November 2013 each being in response to an application by Ms B to adduce particular evidence from Professor Briggs, the psychologist with experience in dealing with child sexual assault matters from whom Ms B had obtained advice in March 2008. Her Honour gave short reasons in relation to each application. It is clear from the transcript that there were a number of other areas in which Ms B was permitted to adduce evidence from Professor Briggs.

25 October 2013 ruling

112. The context in which this arose was that the Crown had objected to Ms B asking Professor Briggs a number of questions on the basis that they were either irrelevant or that Professor Briggs lacked the necessary expertise to give evidence on those matters.

113. Ms B was asked, in the absence of the jury, to identify the matters she wished to ask Professor Briggs. Those included: communications Ms B had had with Professor Briggs in the period of time leading up to her departure from Australia going to matters such as the giving of gifts at contact centres; the reasons given by Dr Waters for not interviewing the child in March 2007; delay by children in disclosing abuse; questions as to the investigation that had been carried out; what a thorough investigation would involve; and questions about child sex offenders and their behaviours in grooming children, connected to the circumstance that a child might show a positive friendly emotion to someone who has in fact abused them.

114. Her Honour accepted that evidence as to those matters might be relevant to the question of the circumstances at the time and as to what was perceived by Ms B, going to the reasonableness of any belief that she may have held at the time. Her Honour indicated that she would allow questions of Professor Briggs to be asked for that purpose. Her Honour considered that Professor Briggs was appropriately qualified to give evidence as to matters such as the age at which young children can be interviewed and as to the investigation of child sexual abuse allegations.

115. The two areas on which her Honour did not allow cross-examination of Professor Briggs were, first, questions relating to the statement by Dr Waters in his 10 April 2008 report to the effect that Ms B did not disclose anything that could constitute a penetrative act (about which Ms B cross-examined Dr Waters and which Dr Waters effectively conceded was incorrect) and, second, Professor Briggs’ comments on the JIRT video.

116. As to the first, her Honour considered that the question was aimed at Professor Briggs being asked to give a medical opinion, namely what it is that might be discovered after a penetrative act. Her Honour would not permit the witness to give any such medical opinion. Ms B in her February 2015 written submissions maintains that the opinion that she was seeking from Professor Briggs (in her question regarding evidence of anal penetration) did not concern physical evidence of the abuse but was a question asking Professor Briggs to comment on her son’s behaviour and disclosures as evidence that he was communicating and behaving consistently with a child who had been anally penetrated. However, the question as put on the voir dire by Ms B was as to whether it was possible that her son could have experienced a penetrative event (T9.34, 15/10/13).

117. Given that Professor Briggs was not called as a medical expert to give an opinion as to what kind of physical evidence there might have been or might potentially have been of penetrative abuse, there was no error by her Honour in rejecting a line of questioning that went to that issue. As to the line of questioning Ms B now says she intended (by reference to the behaviour that might be exhibited by a child who had suffered anal penetration), that was not obvious from the question she had put but in any event Ms B adduced evidence from Dr Waters in cross-examination to the effect that her son’s complaint as to his bottom being sore and her son asking his mother to clean inside his bottom could disclose penetrative abuse.

118. As to the second area identified by Ms B, her Honour said that:

That exercise would appear to be irrelevant to the proceedings in that it must be borne in mind that these proceedings are not concerned with the review of whether or not the child was in fact sexually assaulted, and her opinion as to what may or may not be derived from the video is not relevant to the proceedings.

119. Again, there was no error in the rejection of questioning along this line, bearing in mind that her Honour did permit evidence to be given as to what a thorough investigation might involve and her Honour did not preclude submissions by Ms B as to what might be discerned from the video.

120. As to Ms B’s criticism of the JIRT interview, in her reasons on sentence her Honour concluded (at [32]) that it would be open to a tribunal of fact to conclude from that evidence that the procedure of having a one-off interview between a three year old child and a person the child had never met before was inadequate in the circumstances of the case. Having viewed the JIRT video in the course of preparing these reasons, I can only agree. Her Honour considered that this was supported by the evidence given in cross-examination by Dr Waters. Professor Briggs herself seemed to indicate that more than a one-off interview would be necessary.

14 November 2013

121. On 14 November 2013, Ms B sought to adduce the evidence of Professor Briggs on the reasonableness of the conclusions Ms B drew from what the child had said, as well as the circumstances in which the further disclosures (after he had been taken out of the country) were made. Her Honour said:

I am not going to admit this evidence of Professor Briggs on this issue. The relevance of this is as originally flagged, as the jury can be directed, is that it shows the child was making disclosures of the type that the accused said he was making. Although Mr Crown cross-examined the accused on the reasonableness of the conclusion she drew from what was said, as well as the circumstances in which the further disclosure was made, it is clear from MFI 83 that this portion of Professor Briggs’ evidence goes to the likelihood of the disclosures being true, and that is a question that is not appropriate for the jury to be diverted into consideration of. So the Court proposes not to admit the evidence before the jury.

122. A copy of MFI 83 was handed up on the hearing of the appeal. It consists of an email exchange between Professor Briggs and Ms B on 9 November 2013 in which Professor Briggs comments on and attributes possible meanings to what appears in a transcript of a recording between mother and child (the purple lipstick recording). Professor Briggs gives her interpretation of what was being disclosed to Ms B in that conversation.

123. Ms B maintains (AT 18.20) that Professor Briggs’ assessment of the recorded disclosure was that she determined it was “authentic and supportive of finding sexual abuse”, though Ms B accepts that, on its face, the recording would not prove beyond reasonable doubt that the offence had occurred.

124. In light of Ms B’s concessions referred to at [105] and [106] above, her Honour’s ruling on this area of cross-examination cannot be seen as being in error.

125. For completeness, I note that annexed to Ms B’s November affidavit (Annexure Q) is a copy of what was MFI 82 at the trial. This was another email exchange between Professor Briggs and Ms B on 9 November 2013, in which Professor Briggs gave her opinion as to the techniques for interviewing young children in relation to sexual abuse allegations and concluded that the interview (by the JIRT) was “woefully inadequate” (Professor Briggs went on to express the opinion that if further information was disclosed there should have been another assessment on the child’s return to Australia and before he was in the care of the father, an opinion not relevant to the issues in the trial on any view of the matter).

126. It is not clear whether Ms B complains about the rejection of MFI 82. If she does then that complaint is also unfounded. When Ms B left the country she had not seen the video of the JIRT interview and hence a conclusion that it would be objectively reasonable from that video to consider that the investigation was “woefully inadequate” could not be relevant to whether on the material then known to Ms B such an opinion would have been objectively reasonable.

127. Insofar as Ms B now relies on Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 to support the adducing of evidence of sexual abuse as contained in her November 2014 affidavit, it should be noted that the leave granted to file submissions identifying what evidence it was said had been wrongly excluded at the trial was not an invitation now to mount a case based on assertions that Mr B had in fact sexually abused her child that have not been tested and to which neither the Crown nor Mr B has had the opportunity in the trial proceedings to respond.

128. Ground 2 is not made out.

Ground 3 – admissibility of Dr Waters’ report

129. The last ground on which the conviction appeal is brought is that:

Her Honour erred in failing to make findings on the admissibility of Dr Waters [sic] report and specifically its impact on any future Court proceeding and therefore my ability to succeed at an appeal or any application for parenting orders.

130. A copy of Dr Waters’ report was not in evidence at the trial. However, Ms B read out various portions of the report when cross-examining Dr Waters on the conclusions and recommendations contained in his report. Hence some of the content of the report became known at the trial. Ms B accepted on the hearing of the appeal that the Court could infer, from correspondence following the publication of that report, that Dr Waters’ report was not favourable to her position. She later annexed a copy of the report to her November affidavit.

131. There is a certain irony in the contention by Ms B that her Honour erred in failing to make findings on the admissibility of Dr Waters’ report. It was in fact Ms B who had objected to the admission of that report in evidence. The Crown had indicated that it was proposing to use the report to refute the potential defences because the report suggested that the sexual abuse probably did not occur and that the mother had developed an “overvalued idea”. Ms B had objected that it was an untested report. Ms B says on this appeal that her objection was that it was wrongly defamatory of her (AT 19.45).

132. Prior to the examination of Dr Waters, there was a discussion between the bench and the Crown, in the absence of the jury, as to the objections Ms B had raised to various portions of Dr Waters’ report. After some discussion, the Crown indicated that it proposed not to tender the report but just to have some parts of it, including parts already read out, lead orally. Those parts were described as the introductory part, for the fact that Dr Waters had conducted the interviews and had received certain documents and then the conclusions and recommendations expressed by him. Dr Waters had formed the view that both parents had parenting capacity, albeit the mother probably to a somewhat greater extent.

133. Ms B then said that she was preparing to cross-examine Dr Waters and had changed her view (as to the admissibility of the report) because she thought it more helpful to her case to raise in cross-examination quite a bit of his report to establish how he formed his opinions.

134. Her Honour quite properly pointed out to Ms B the need to be aware that cross-examination on certain matters might have the consequence that the Crown prosecutor might raise other things in the report or tender it. Ms B responded that she thought she had no alternative than to address the report because enough of it had gone in.

40.   On 7 March 2008, in a second email on that day to her lawyer, (AB 1/247) Ms B raised various matters as to the conduct of the proceedings. She referred to Musgrave Peach having told her not to seek support from any source other than the firm and made it clear that this would continue (i.e., that she would continue to seek other advice as she chose). Ms B’s evidence at the trial was that at around this time she had been contacting Rosie’s House, an organisation that deals with parents/children who have been abused and gives them counselling (AB 5/743); and had been in communication with a person from ChildWise (described as a charity advocating for children in Victoria) who had advised her to go to Cara House Counselling (AB 5/745). Whether or not this is the context in which advice was given by Musgrave Peach for Ms B not to seek support elsewhere is not clear.

41.   Ms B gave evidence that her lawyers had stopped meeting with her in person (AB 5/937.3) and that the next document she received (after her 7 March email as to the distressing outcome of the February hearing) was a letter from her lawyers saying that they had ceased to act for her. However, she then qualified this by saying that she thought she had also received a letter from her lawyers referring to a loss of confidence by her in their services (AB 5/774).

42.   By letter dated 10 March 2008 (AB 238) Musgrave Peach wrote to Mr B’s lawyers, Slade Manwaring, advising that they had ceased to act for Ms B and enclosing a copy of a notice of ceasing for their records.

43.   At around this time, Ms B complained to ChildWise that her lawyers had ceased to act for her on the eve of her interview with Dr Waters (AB 1/239) but said that she had been able to obtain some assistance prior to her interview with Dr Waters from a pro bono legal centre (AB 5/785).

Dr Waters’ interview

44.   On 11 March 2008, Dr Waters interviewed Mr B and Ms B, as well as Ms B’s brother and his wife. Ms B’s evidence was that she was not expecting a positive interview with Dr Waters because she had read an internet article by him that seemed extremely biased and she had read “very negative” information about him (AB 5/775). He interviewed each of Mr and Ms B both separately and in the presence of their son. He did not interview the child separately (for reasons explained in his subsequent report). Dr Waters had not seen the JIRT video (access to which was only obtained by Ms B on subpoena after her return to Australia) nor had he read the transcript of that interview when he made his report.

45.   Shortly after the interview, Mr B contacted Dr Waters, who made a file note on 14 March 2008 (AB 1/225) of that telephone conversation in which Dr Waters noted:

some extra comments

“threat of self-harm” – didn’t know

what’s going on – about 2-3/7 before -

She [mother] sent in the letter explaining reasons

hadn’t seen her for while – near end Jan

I said just feel like doing self

in – probably lowest point - desperate

& felt really bad. (emphasis as per original)

46.   Neither Mr B’s therapist, Dr Chandran (who saw him in January 2008) nor Dr Waters (who saw him in March 2008) considered Mr B to be suicidal (Dr Waters at AB 4/575; Dr Chandran at AB 5/1104) spoke of Mr B speaking in terms of powerlessness, helplessness and despair and said that if Mr B had spoken about suicide he would have written it in his notes and he had not done so. Dr Waters explained the reference in his notes to “threat of self-harm” as being his question to Mr B and said that Mr B’s response was that he was feeling desperate. Dr Waters’ evidence was that Mr B had said he did not have the intention to kill himself. Neither of those psychiatrists thought there was a need to take any steps in relation to any such risk. Ms B emphasises, however, that Dr Waters’ evidence was that it was not possible to say with certainty that Mr B was not going to commit suicide (AB 4/574).

47.   There was no suggestion in the evidence from either psychologist that Mr B had any homicidal ideation.

Further advice re possibility of appeal

48.   On 20 March 2008, Ms B emailed another barrister (Ms Cachia) in relation to her case. In that email (Exhibit 25), Ms B listed her priorities, the first of which was to appeal the Court orders if possible; the second being to send a letter to Mr Christaki (the independent children’s lawyer) and the parties’ lawyer to ask for comment on the effect of supervised time prior to completion of the expert report. Relevantly, this indicates that Ms B was at that time still considering a possible appeal. No contact visits had yet taken place.

Supervised contact visits

49.   The first supervised contact visit under the arrangements set by the Family Court took place on 25 March 2008. Prior to this (on 10 March 2008) Ms B had attended the contact centre service for an intake assessment and had expressed her concerns that Mr B had sexually abused the child and that lollies were linked with the abuse. A note was made at the centre to the effect that the giving of lollies in contact visits should be avoided if possible (AB 1/184 Ex V at trial – intake assessment form).

50.   Supervised contact visits thereafter occurred on 28 and 29 March, and 1, 4 and 12 April 2008.

51.   Not long after the contact visits commenced Ms B complained that the child was being given gifts and lollies on every visit and says that within three visits her son’s behaviour began to deteriorate: bed-wetting, screaming that they would take him away from her, clinging to her, urinating and defecating in the garden, trying to make his penis move when on the toilet, putting his finger in his bottom, asking her to clean his bottom from the inside, and licking people (November affidavit at [49]; questions of Dr Waters on this subject at T 510, 29./10/13). Ms B contacted Dr Waters at some stage in late March 2008 to inform him of this behaviour. In her most recent submissions Ms B points to an email annexed to her November affidavit in which Dr Edwards of the CPU referred to concerns Ms B had expressed about possible sexual abuse by the father on access visits (annexure I).

52.   Ms B says that she initially considered that her son’s deterioration might be due either to abuse during the supervised contact or to recurring memories but that she subsequently became convinced that abuse was continuing during the supervised contact visits and that the supervision at the contact centre was inadequate. She says that when in Europe her son disclosed to her that Mr B was touching him at the contact centre when the ladies were not watching (entry 7 October 2008, summary of statements by son annexed to November affidavit; some of which comprised Exhibit 35 at trial).

Professor Briggs

53.   On 25 March 2008, Ms B first contacted Professor Briggs, an emeritus professor at the University of Adelaide with extensive experience in the area of child protection (having commenced as a child protection officer with the police force in the United Kingdom), seeking advice as to teaching protective behaviours to three and a half year old children (November affidavit Annexure AB – not an exhibit at trial).

54.   Ms B emailed Professor Briggs again on 31 March 2008, reporting that she had told Dr Waters about the gifts and lollies; that her son was now bed-wetting, night-waking and not letting her out of his sight; and as to what she said Dr Waters’ response had been. Professor Briggs’ response was to convey to Ms B the view of a child psychologist (Dr O’Neill) to the effect that presents on contact visits were bad for the child (November affidavit Annexure AC – Exhibit 5 at trial).

Dr Waters’ report

55.   On 3 April 2008, Dr Waters sent his report to the Family Court (November affidavit Annexure F – not exhibit at trial but extensive cross-examination on parts of report during trial).

56.   The report was forwarded to the respective parties’ legal representatives by the Family Court on 10 April 2008, at which time they were notified that the matter was listed for a direction hearing on 5 June 2008. However, in Ms B’s case, that notification was apparently sent to Musgrave Peach, who by then had ceased to act for her, not her then solicitors (Clinch Neville Long Letherbarrow) who presumably had not yet filed a notice of change of solicitor. This meant that Ms B and her solicitors did not receive a copy of the report until later in April, following Mr B’s solicitors’ intimation that in light of the report there was no need for further supervision of contact between Mr B and his son.

57.   In summary, in his report Dr Waters said that he found it difficult to conclude from the material provided by Ms B that Mr B had molested their child. He considered that, at its highest, one aspect of the initial (6 December 2007) observation might be consistent with the child witnessing masturbation but said that this was open to other interpretation. Dr Waters did not form the view that the father’s current mental state represented any threat to his capacity to parent and considered it beneficial to the child if he could maintain satisfactory relationships with both parents.

58.   Ms B’s evidence at trial was that she had read Dr Waters’ report only briefly before she left the country. In his report, Dr Waters recommended that the current contact visits be reduced to twice weekly visits. Dr Waters stated that this would achieve a better balance between sustaining the child’s relationship with his father and keeping an appropriate routine. Ms B’s evidence was that she did not recall reading, and did not believe she had read, this part of the report before she left the country (AB 5/1026-8).

59.   Dr Waters’ report did not contain any recommendation for unsupervised access at all. Nor, however, did Dr Waters support that there be no contact at all, which was clearly what Ms B wanted.

Decision to leave the country

60.   Ms B was in communication with her new legal representatives (who she formally retained on 10 April 2008) by late March 2008 (November affidavit Annexure AE; ACB – not an exhibit at trial). Ms B says that Clayton Long, her new lawyer, advised her not to appeal and advised her that the judge would not reduce contact without reading Dr Waters’ report.

61.   On 31 March 2008, Ms B instructed her new lawyers to request a change to the contact visits and an order for no lollies to be given at those visits (November affidavit Annexure D – not an exhibit at trial). Those instructions led to her lawyers’ letter of 10 April 2008, (sent at a time when they were obviously unaware of the contents of Dr Waters’ report) to the independent children’s lawyer seeking consent to a variation of the contact orders to two sessions per week. (That was the very recommendation Dr Waters had by then already made.) The letter also sought consent to an order preventing Mr B from providing the child with any gifts, lollies or chocolates during contact visits (AB 1/261). (Ms B’s evidence in cross-examination at the trial was that she did not agree to twice weekly visits but that her lawyers had told her she would not be able to obtain a “no contact” order.)

62.   The independent children’s lawyer forwarded this letter to Dr Waters for consideration. The solicitors for Mr B objected to this being done without their consent. Mr Christaki then sought the retraction of the letter from Dr Waters (AB 5/1053).

63.   Still prior to Ms B’s receipt of Dr Waters’ report, Mr B’s lawyers (by letter dated 15 April 2008) wrote to Clinch Neville Long Letherbarrow forwarding a photocopy of the 10 April 2008 letter from the Family Court and suggesting, in light of the content of Dr Waters’ report, that Ms B now concede that supervision of contact was no longer necessary nor was it in the child’s best interest. A copy of that letter was apparently also forwarded to Mr Christaki (AB 5/881/882).

64.   Ms B also referred in her evidence at the trial to a letter dated 17 April 2008 from Mr B’s lawyers to Mr Christaki in which (as well as stating that Mr B would not take any financial responsibility for costs incurred in Dr Waters responding to the request from Ms B’s lawyers - as to the impact of the contact visits on her son) Mr B’s lawyers referred to the issue of the allegation of child sexual abuse as being “now, for all practical purposes “dead in the water’” (AB 1/374). This was apparently forwarded to Ms B’s solicitors by letter of 18 April 2008 and seems to have been included with the material forwarded to her by her solicitors with their letter dated 24 April 2008 (AB 1/373).

Ms B’s own research

65.   Meanwhile, Ms B seems to have been carrying out her own research as to child sexual allegations and the family law process.

66.   At around the time of her 11 March 2009 interview with Dr Waters, Ms B referred her sister-in-law to a book on “Child Abuse and Family Law”, which she said explained what she was experiencing (AB 1/237 and see AB 1/239). Highlighted extracts of that book are included in the appeal books (AB 1/271). Ms B’s evidence was that there were bits of the book that were of a great relief to her (AB 5/842-843). Ms B explained that the book had confirmed her concerns that supervised contact could not be appropriate and was wrong; that child abusers could manipulate circumstances and get at children even when supervised; and that the book explained that investigations were superficial and insufficient and that the system needed changing (AB 5/840).

67.   By mid April 2008, Ms B had also read commentary on the way in which allegations of sexual abuse were dealt with in the courts; in particular, a thesis by Ms Wendy Lee Foote entitled “Child Sexual Allegations in the Family Court”. Ms B forwarded a copy of this on 22 April 2008 to ChildWise as “another excellent review of the issues faced by mothers in trying to protect their children from sexual abuse” (AB 1/266), noting that she was “in the process of setting up a meeting” with the supervisor of Ms Foote’s doctorate. It is not clear whether she did so. (A copy of the thesis is at AB 1/309.)

68.   It is clear is that Ms B placed much weight on material such as this. Ms B said that she had read the book a number of times and the Foote thesis twice before she left. She said that those materials confirmed in her mind that she was not “imagining things”. They appear to have led to or reinforced the conclusion by Ms B that the Family Court process would not lead to a proper investigation of the child sexual abuse allegations.

Ms B’s decision to leave the jurisdiction

69.   In her evidence in chief at the trial, Ms B said that she could not remember the time that she actually decided to leave but said that it would have been the last week (AB 5/857), confirming that by 23 April 2008 (the day she received Dr Waters’ report (AB 5/876.15)) she had decided to go (AB 5/876). By then, she had already arranged dental appointments and had put her finances in order (AB 5/1016.27). Though in cross-examination she could not remember whether she had carefully planned her departure, she told the jury in her evidence in chief (at AB 5/835) that:

…I didn’t just see the report and leave. I actually bought my ticket on that day and I had already taken myself and my son to dental checkups and I had got all my finances in order. (my emphasis)

70.   She also said she had taken addresses of organisations, such as the day care centre, with her.

71.   Ms B’s evidence at trial was that she did not recall, and believes she had not read, Dr Waters’ recommendation for reduced contact visits but she was very concerned; she did not think she had actually got to the end of the report (AB 5/1080); she had not read it in detail but did go through it (AB 5/836.4); she had seen errors of fact in the report (which she communicated on the day she left to her lawyers); the “biggest problem [she] had on the day” (AB 5/836.4) was that Dr Waters did not investigate her son; and that she knew Dr Waters was “quite dismissive of the sexual abuse” (AB 5/876).

72.   In oral evidence given by Ms B by way of re-examination at the trial, referring to Dr Waters’ recommendation for reduced contact sessions, Ms B said that she “wasn’t expecting that” and it was “the least thing on [her] mind” (AB 5/1080). She emphasised that what she was concerned about was that there were errors of fact in the report and that Dr Waters had not interviewed or assessed her son. She repeated her evidence on this issue in her closing address to the jury (AB 5/1227) and said that the recommendation for reduced visits would not have made much of a difference because it was only a reduction to two weekly sessions.

73.   When she left Australia, Ms B had not discussed the report with her lawyers (AB 5/876.46). By email (AB 1/380) apparently sent at 12.40am on 24 April 2008, Ms B informed Clinch Neville Long Letherbarrow that she had not yet finished reading Dr Waters’ report but that “I have read enough to realise that he is a perfect example of the type of psychiatrist described in Wendy Lee Foote’s thesis”. (In that email, Ms B expressed the opinion that the judge, her former solicitors, her barrister, Dr Waters, the JIRT and the child protection officers were “not unbiased in their approach”.)

Reason(s) for leaving the country

74.   As to the reason(s) that she took her child out of the country, Ms B told the jury:

I just thought I can’t stomach this anymore. I’m getting sick as well. I’m going to go to Europe. I know Europe well and I’m going to get a proper assessment and I will then try and get back safely…even today I cannot see that staying would have been a safer option with all the things that I have looked at. (AB 5/857)

75.   She referred to the Hague Convention (on the abduction of children) and said (AB 5/884) that she had the idea that if she went overseas and her child was assessed, and there was indeed a risk to the child, then the child did not have to be returned.

76.   She agreed that she did not think the Family Court was going to investigate properly and did not think it was going to find abuse “the way they were approaching the issue” (AB 5/1017). She agreed that she made a conscious decision when she left Australia (AB 5/1016.44), though she maintains that it was not a voluntary choice (because she had a duty to protect her son and had to choose between that and compliance with the parenting order). She said (at AB 5/1020.80):

I needed to get out of the Australian system so that I could get a proper investigation. There is nowhere in Australia where I would be avoiding the Family Court orders to force me to use only Dr Waters.

77.   By letter dated 24 April 2008 (AB 367), which Ms B does not suggest she did not receive before she left, Clinch Neville Long Letherbarrow responded to Ms B that they had only just received Dr Waters’ report (and had advised Mr B’s solicitors of this and could not provide a response at that time). It is apparent from this letter that Ms B’s lawyers were under the impression that matters were still to be prepared for the purposes of the ongoing proceedings and were not aware of the impending departure of Ms B. The letter referred to the correspondence from the independent children’s lawyers, which it was said seemed to indicate that, in Mr B’s view, Dr Waters’ report supported the conclusion that there was no risk to the child, but went on to say: “I do not want you to read anything into that observation until such time as we have had the opportunity to read the report ourselves”.

78.   Ms B, however, did not wait for advice as to the import of Dr Waters’ conclusions (let alone did she wait to read the report fully). She formed the conclusion that it was likely that unsupervised access would be permitted. She told the jury that “whatever” Dr Waters wrote in that report would not help because he did not investigate her son and that this was the issue – she needed the abuse investigated (AB 5/1026.44). In her submissions on this appeal, Ms B continued to refer to Dr Waters’ report as one that would or was likely to result in an order that the child live with the father. (There is no objective basis for such a conclusion in light of Dr Waters’ recommendation for a reduction in contact visits to twice weekly.)

79.   Ms B told the jury:

I can’t remember the exact point at which I thought, “That’s it, I’m leaving,” but I had thoroughly investigated, from my perspective, every possible avenue. I was speaking to experts and the lawyers. I thought that the lawyers were advising me on every possible avenue I could take with the courts and I just did not accept the situation. (AB 5/839.50)

and:

I thought … it’s going to be better in Europe … get a proper assessment … where they accurately assess his risk, and then I will get protected by The Hague and then I can negotiate my return. (at (AB 5/884) (my emphasis)

80.   Ms B referred to getting an assessment of her son and proper legal status “so I could then negotiate my way back to Australia” (AB 5/886). She told the jury that had the authorities gone in and investigated and done something; had they stopped her son having contact with Mr B and investigated the allegations, then she would not have had to leave (AB 5/856). She was adamant that the Family Court did not protect her son and had forced him into “excessive” contact.

81.   She also said that her lawyers did not tell her that she could have sought an urgent hearing; rather they had said that she had to wait until 5 June (AB 5/850). (Presumably, that advice must have been before the report was received and before the lawyers had had an opportunity to advise Ms B as to the report – which they had asked for before she jumped to any conclusions about it.)

82.   In cross-examination, Ms B agreed that she had chosen to leave because she was not happy with the way things were going in Australia (AB 5/898.49) and agreed that she did not accept the way that the Family Court proceedings appeared to be unfolding (AB 5/895.6). She maintains that those answers need to be put in the context of the other answers she had given (the substance of which I have sought to encapsulate above).

83.   Professor Briggs gave evidence at the trial as to her communications with Ms B, including a telephone call in 2008 after Ms B had left the country and was in Frankfurt. Professor Briggs said that she had never advised Ms B to leave Australia because she knew what the consequences would be (AB 4/456). She had earlier referred in her evidence to the Hague convention (AB 4/451). Professor Briggs had given more detail about this conversation in her earlier evidence in the absence of the jury. There, Professor Briggs said that she recalled the very words she had said to Ms B when the latter told her that she had taken her son out of the country: “My God, don’t you know about the Hague Convention”. She said that she had warned Ms B, presciently as it turned out, that the federal police would find her, they would probably remove the child and:

… from past experience of other cases, that the child would end up in an institution, and that she [Ms B] would be imprisoned, and that the child would go to the father

84.   Professor Briggs said that she told Ms B that it was extremely damaging for children to be snatched from their mothers in that situation. According to Professor Briggs (and Ms B did not cross-examine to suggest this was not the case), Ms B’s response was that the Family Court was determined to give the father “at least shared parenting, and probably would give him residence of the child” (AB 4/3 – 15 October 2013). There is no objectively reasonable basis for such a conclusion at the time Ms B left the country. Dr Waters’ conditional report did not support that.

85.   The Crown did not seek to elicit from Professor Briggs, in front of the jury, that she had advised Ms B to return, explaining that it considered it would be prejudicial to Ms B, and her Honour did not rely on this in her reasons on the unavailability of the defences.

86.   In a statement sent to Professor Briggs in about 2009, an edited version of which was admitted as Exhibit P at the trial, Ms B set out her views of the legal process and summarised her reasons for leaving as follows:

Brent Waters [sic] response to my son’s deterioration – he said it was because 4 contact sessions per week were too many for a child of this age. He maintained that the above symptoms were a sign of fatigue and that the bed wetting was a sign of ‘deep sleep’. He avoided comment on the sexualised behaviours. I asked him to help get the contact sessions reduced but he refused saying that the Court Orders were nothing to do with him.

I sent repeated emails to my lawyers at the time detailing the behaviours I was observing and expressing extreme concern that my son was deteriorating.

- my lawyers responded to my concerns and did what they could but they were unable to stop or reduce the visits

- a Barrister told me (in writing) that it would cost me $14,000 to appeal the contact orders and that I would be very unlikely to succeed. He also mentioned that I should be cautious about criticising the Judge’s decision as under the Magellan System I am stuck with the same Judge for the entire process. This is the Judge, if I return to Australia, who decides on my son’s future.

My decision to leave Australia

I spent thirty thousand dollars on court proceedings, the only money I had outside of the account my husband blocked me from and in which most of my life’s savings are still held.

I was told that the Judge does not meet the victims of child abuse whose future he controls. He does not share my experiences of sitting up at 2am holding my three and a half year old son in my arms whilst he screams “They’re going to take me away from Mummy, they’re going to take me away from you. I don’t want to go away from Mummy”. It is a harrowing experience.

I was told by a Barrister that I would lose my son if I did not comply with the contact orders.

I could not stop my son’s deterioration. No one, anywhere could help.

The next Court date was more than a month away. This meant that before I could even start to raise the issue of my son’s deterioration and my former husband’s conduct during contact sessions, my son would have been subjected to a minimum of 17 more contact sessions, or rather 34 hours of intensive one on one contact with his father.

This was the reason I left Sydney and took my son to safety.

Up until this time I followed the proceedings requested of me.

The decision to break all contact with my family and friends, leave my job and our home was not taken lightly. I also have been told that I will receive harsh penalties ‘as punishment’ for leaving, from the Family Law Court. However I am in my forties, my son is only four, his welfare and future are my priority, not mine. I also understand that the Family Law Court could take my son away from me and give [the father] full custody of [the child], again as ‘punishment’ for breaking court orders. What people do not understand is that I was losing my son anyway, as far as I can gather, [the father] was proactively attempting to ‘create’ in my son a repeat of his own abnormalities …

I believe that had I not removed my son from Sydney, the eight hours per week of intensive, one on one, Court Ordered contact during which [the father] continued to threaten him, coupled with giving him gifts and lollies, may have been enough to prevent my son from ever revealing the full extent of what has happened to him. [November affidavit Annexure I – unedited version not tendered at trial but above passages were in the tendered version]

Events following Ms B’s departure

87.   Mr B became aware that his wife had taken their son out of the jurisdiction when there was no attendance by Ms B at a scheduled contact visit on 26 April 2008. When an application was made to the Family Court on 7 May 2008, Mr B was informed that authorities had discovered that Ms B had taken the child out of the country. An order was made on that day transferring custody of the child to Mr B. Orders were also made by the Family Court referring the matter to the Australian Federal Police for the recovery of the child. Ms B complains that there was an irregularity on that occasion in that there was no affidavit in support of the application on 7 May 2008 and that the judicial registrar did not give reasons for the decision. She has since unsuccessfully sought to challenge that decision.

88.   In around June 2008, Ms B contacted her husband twice from an unidentified location overseas. She was cross-examined at the trial as to those communications, in which she offered to bring the child back if Mr B agreed to have no further contact with him (AB 5/995). The first was a single page letter in late June 2008 (Exhibit L; AB 1/139). In her reasons on sentence, her Honour referred to this letter (at [49]).

89.   In that letter, Ms B wrote that the contact that the Court had ordered had caused her child to relive the sexual experiences and trauma that he had endured from Mr B “prior to” 6 December 2007; that the child began wetting the bed and had increasingly exhibited sexual behaviours and had nightmares; that as the Family Court process did not protect their child and in fact caused the child significantly more emotional trauma, she had chosen to seek help from a journalist to release the father’s details publicly unless by 20 June 2008 he gave a signed document to her lawyer about a number of matters including as to giving her sole custody of the child and agreeing to have no ongoing contact with them.

90.   The letter set out what her “story” would include, the first item being Dr Waters’ review of Mr B’s psychiatric history over many years and medications for mental illness. In cross-examination, Ms B said that she was just pretending to make a threat (AB 5/995.32); that it was “a completely empty threat to try and get him to stop targeting” his son (AB 5/995.38); and accepted it was a false statement (AB 5/956.18). She denied any intention to go to a journalist, saying that she was not speaking to a journalist (AB 5/995). When Ms B later communicated with Professor Briggs in 2009 she sent her a letter asking that it be delivered to a journalist, though Professor Briggs could give no evidence as to the contents of the letter as she had not opened it.

91.   That letter was followed by an email on 25 June 2008 (Exhibit M), again setting a deadline by which if she had not received a response she would “take the matter public” (AB 1/242). Ms B said in cross-examination that this was to see if the lawyers had received the communication. Ms B again said that she wanted to stop her husband “targeting” their son. At this stage, however, her son was with her in Europe and Mr B was in Australia and did not know where they were, so it is not clear to what “targeting” Ms B was referring (AB 5/997).

92.   Ms B accepted that the correspondence included a statement by her that details would be made public to people at Mr B’s work, neighbours, schools and local newspapers (AB 5/996.18; 997).

Recording of further disclosures

93.   In the period following her removal of her son from the country, Ms B recorded further disclosures by her son that she believes reveal further abuses that had occurred by his father and others. The recordings were made during 2009 (and before Ms B had conducted internet research on leading questions in child interviews). The transcript of one of those recordings (the purple lipstick recording) on which Ms B places some weight was in evidence at the trial (AB 1/409 - Exhibit 60 at trial) and the audio recording is an annexure to the November affidavit.

2010 onwards

94.   In September 2010, the child was located in Amsterdam. Ms B was arrested on 6 September 2010 and was taken into custody in Amsterdam. She remained in custody there, after a brief time on bail, from 18 November 2010 to 2 December 2010. The child was initially placed in a child crisis care centre. Contact visits took place with the father and he was subsequently placed in the father’s care in December 2010 and returned to Australia with the father in January 2011. In March 2011, Ms B was transferred into the custody of the Australian Federal Police in Amsterdam. She returned to Sydney on 11 March 2011. She remained in custody here, bail refused, until 26 May 2011 when conditional bail was granted. Ms B was released from custody on 10 June 2011, having spent a total of eight months and 21 days in custody taking into account the time in prison both here and in Amsterdam.

95.   Following Ms B’s release from custody she applied in June 2011 for her son to live with her and her brother and for unlimited contact. That application was heard and dismissed in November 2011 when sole parental custody was granted to Mr B by the Family Court.

96.   Contact visits between mother and son were subsequently terminated by Family Court order in 2013, following evidence suggesting that Ms B had been coaching her son to say that he wanted to be with her (an allegation that Ms B denies – she explains her conduct as encouraging him to speak to his school teachers). At the time of the appeal, Ms B was only permitted to have electronic communication and telephone/Skype conversations with her son (in his father’s presence) when her son requested (AB 5/618). An appeal from those orders is pending.

97.   Since June 2011, according to schedules handed up by Ms B, she has commenced or been a party to numerous court proceedings in the Family Court and elsewhere. It is not necessary to list the various proceedings. I note that, apart from applications in relation to the custody of her son and arrangements for contact with him, as well as the filing by Ms B in March 2012 of a Notice of Abuse, culminating in an order for the grant of sole parental responsibility to Mr B in November 2012 (which is the subject of a pending appeal), Ms B has brought proceedings both in the Family Court and the Supreme Court in relation to the publication of a book in relation to the search for her child, has been the subject of bankruptcy proceedings in the Federal Court (relating to unsatisfied costs orders in respect of the book proceedings), and has been made the subject of a vexatious litigant order in the Supreme Court. (Pausing there, I note that the making of a sequestration order does not automatically stay a criminal proceeding, unlike the position with civil actions.)

98.   In summary, not including the criminal proceedings the subject of this appeal, Ms B has calculated that there have been 37 court applications and eight appeals from 2011 to 2014 with three more appeals filed but withdrawn.

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Decision last updated: 22 May 2015