Carpenter & Carpenter

Case [2014] FamCAFC 100

FAMILY COURT OF AUSTRALIA

CARPENTER & CARPENTER [2014] FamCAFC 100

FAMILY LAW – APPEAL – CHILDREN – UNACCEPTABLE RISK - Where the mother submits that the trial judge erred in not finding that there was an unacceptable risk of sexual harm to the children from the father – Where the mother submits that the trial judge should have taken statements by the child indicating sexual impropriety by the father literally – Where the mother submits that the trial judge erred in finding that the mother coached or influenced the children – Where the mother submits that the trial judge erred in the weight given to the expert evidence – Where the trial judge’s findings were clearly open on the evidence – Where no error demonstrated by the trial judge – Appeal dismissed.

FAMILY LAW – APPEAL – CHILDREN – EXPERT EVIDENCE – Where the mother alleges that the trial judge erred in not excluding the evidence of the expert witnesses as they were not “specialised in child sexual abuse” – Where the trial judge correctly identified the issue as whether there was an unacceptable risk of sexual abuse occurring in relation to the proposed orders not whether sexual abuse had in fact occurred – Where no error demonstrated by the trial judge – Appeal dismissed.

FAMILY LAW – APPEAL – TRANSCRIPT – Where the mother initially alleged that the transcription of the proceedings may have been altered or amended by the trial judge – Where the mother subsequently altered her position and in effect alleged that the audio recordings may have been altered or amended by the trial judge – Where counsel for the mother pursued a submission before the Full Court that the trial judge may have altered or amended the transcription of the proceedings and/or the audio recordings where there was no evidence to substantiate this allegation –  Where the Full Court determined it was necessary to refer this matter to the relevant Bar Association.

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Application dismissed save as to evidence that was admitted by consent.

FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Order for costs made in favour of the father – Where the ground of appeal alleging an alteration or amendment to the audio recording and/or the transcript was improperly pursued – Where the ground contains unsubstantiated allegations against a judicial officer or an officer of the Court – Indemnity costs ordered in relation to this ground.

Family Law Act 1975 (Cth) – ss 69ZT(1) & (3), s 93A(2)

Barristers’ Conduct Rules of the Bar Association of Queensland – rr 63 & 64
CDJ v VAJ (1998) 197 CLR 172
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
D & D (Costs) (No 2) (2010) FLC 93-435
Donaghey v Donaghey (2011) 45 Fam LR 183
Gronow v Gronow (1979) 144 CLR 513
Kohan & Kohan (1993) FLC 92-340
Munday v Bowman (1997) FLC 92-784
S S…

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Details
AGLC
Carpenter & Carpenter [2014] FamCAFC 100
Case
[2014] FamCAFC 100
Decision Date

CaseChat Overview and Summary

In the matter of Carpenter & Carpenter, the appellant, the mother, appealed against the findings and orders made by the trial judge in family law proceedings concerning their children. The mother contended that the trial judge erred in not finding an unacceptable risk of sexual harm to the children from the father, in not taking statements by the child indicating sexual impropriety by the father literally, in finding that the mother had coached or influenced the children, and in the weight given to the expert evidence. Additionally, the mother argued that the trial judge erred in not excluding the evidence of the expert witnesses as they were not "specialised in child sexual abuse" and alleged that the trial judge may have altered or amended the transcription of the proceedings and/or the audio recordings. The father, the respondent, argued that the trial judge's findings were correct and that the appeal should be dismissed.

The Full Court examined the mother's submissions and found that there was no demonstrated error by the trial judge. The court found that the trial judge had correctly identified the issue as whether there was an unacceptable risk of sexual abuse occurring in relation to the proposed orders, not whether sexual abuse had in fact occurred. The court held that the evidence of the children themselves, and not the father, grounded the trial judge's findings, and that the trial judge had applied the Briginshaw standard to the evidence of the father in relation to the question of whether the mother had coached or influenced the children. The court also found that there was no evidence to substantiate the mother's allegation that the trial judge may have altered or amended the transcription of the proceedings and/or the audio recordings. The appeal was dismissed.

The Full Court dismissed the mother's application to adduce further evidence, save for evidence that was admitted by consent. The court made an order for costs in favour of the father, as the appeal was wholly unsuccessful. The court also ordered indemnity costs in relation to the ground of appeal alleging an alteration or amendment to the audio recording and/or the transcript, as this ground contained unsubstantiated allegations against a judicial officer or an officer of the Court.

In conclusion, the Full Court found no error in the trial judge's findings and dismissed the mother's appeal. The court ordered the mother to pay the costs of the appeal to the father, with indemnity costs for one ground of appeal, and dismissed the mother's application to adduce further evidence, save for evidence that was admitted by consent.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The application in an appeal filed on 6 September 2013 be dismissed save and except that the evidence contained in paragraphs 73 to 84 of the affidavit filed by the appellant mother on 6 September 2013 and paragraphs 5 and 6 of her affidavit tendered in court on 20 September 2013 be admitted by consent.

3.

The appellant mother pay the costs of the respondent father of and incidental to the appeal, such costs to be as agreed between the parties and in default of agreement as assessed on a party/party basis save and except in relation to Ground 9 of the amended Notice of Appeal filed on 27 June 2013 which costs shall be assessed on an indemnity basis.

4.

The costs the subject of Order (3) hereof be paid by the appellant mother to the respondent father within 28 days of orders being made finalising the property settlement proceedings between the parties.

5.

There be no order as to the costs of the Independent Children’s Lawyer.

Background

Background to the litigation

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Evidence

Evidence Before The Court

As explained in Ms Merkin’s written submissions, the complaint in fact is that his Honour did not apply the Briginshaw standard to the evidence of the father in relation to the question of whether the mother had coached or influenced the children. It is put that that evidence was inadequate and could not justify the finding made by his Honour. Unfortunately, what that overlooks is the fact that it was not the evidence of the father that resulted in his Honour’s findings. The father of course raised this issue but he was not in a position to provide any specific evidence in support of that claim, and it was the evidence of what the children themselves said during their interviews by the police and by the Department that grounded this finding. For example, to repeat, his Honour said this at [130]:Each of the three interviews conducted by the police, and the interviews conducted by Ms [G], contain troubling statements by the children indicative, at face value, that the mother has “coached” the children or provided an “agenda” for them as to what should be said to those interviewing them.His Honour continued at [131]:Neither the mother in evidence, nor her counsel in submissions, was able to offer any reason why, if [B’s] statements indicative of abuse are said to be taken as literally true, [B’s] and [D’s] statements of maternal influence should not also to be taken as literally true. … The basis of his Honour’s conclusion on this topic is readily apparent from the findings that his Honour made at [151] and [152], namely:151.Across three interviews [B] went from referring to the father inserting only one object, to the father inserting 17 different objects into his anus. I consider it highly likely that [B] has been subjected to repeated questioning by his mother. I consider it highly likely that the mother’s entrenched beliefs (plainly shared by her sister) have prompted further “disclosures” by [B]. 152.Whilst I am not satisfied specifically that the mother has told [B] what he should say to Detective [T] in the sense of providing a word-for-word “script’, I am satisfied that the mother encouraged [B] to state that he had seen his father insert objects into his anus. I consider that [B], who is undoubtedly a highly intelligent young boy, was left in no doubt about what he was required to say so as to get Lego and other toys. So much is, in my view, plain from [B’s] statement during the last interview with Detective [T] (during which [B] referred to 14 new items, including jellyfish, bow ties and pizza) that “if I say lots, I have to get Lego”.(Original emphasis) In her oral submissions Ms Merkin suggested that there needed to be “direct evidence” of coaching, and that the evidence identified above did not satisfy that requirement. We reject this submission both as to the alleged need for “direct evidence”, and more importantly whether there was evidence from which his Honour could reach the conclusion that he did; we consider that evidence was available in abundance.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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