Carpenter & Carpenter
[2014] FamCAFC 100
•18 June 2014
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 Hontestroom v S S Sagaporack [1927] AC 37 Yunghanns v Yunghanns (2000) FLC 93-029 |
| APPELLANT: | Ms Carpenter |
| RESPONDENT: | Mr Carpenter |
| INDEPENDENT CHILDREN’S LAWYER: | Stewart Family Law |
| FILE NUMBER: | BRC | 3510 | of | 2011 |
| APPEAL NUMBER: | NA | 105 | of | 2012 |
| DATE DELIVERED: | 18 June 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Thackray & Strickland JJ |
| HEARING DATE: | 20 September 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 November 2012 |
| LOWER COURT MNC: | [2012] FamCA 1005 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Merkin |
| COUNSEL FOR THE RESPONDENT: | Dr Brasch |
| SOLICITOR FOR THE RESPONDENT: | Damien Greer Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Kirkman-Scroope |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Stewart Family Law |
Orders
The appeal be dismissed.
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.
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.
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.
There be no order as to the costs of the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carpenter & Carpenter has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 105 of 2012
File Number: BRC 3510 of 2011
| Ms Carpenter |
Appellant
And
| Mr Carpenter |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 27 June 2013 Ms Carpenter (“the mother”) appeals against parenting orders made by Murphy J on 29 November 2012. The respondent in the appeal is Mr Carpenter (“the father”). He opposes the appeal and seeks to maintain his Honour’s orders.
The parties’ three children, B born in 2005, D born in 2007 and E born in 2010, are the subject of the proceedings.
In summary, the orders appealed against provided for the father to have sole parental responsibility for major long term issues in relation to the children, save that he consult with the mother in writing prior to making such decisions, and that each party otherwise have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the children whilst the children are in their care. The mother was restrained from taking the children to any psychologist, psychiatrist, counsellor or like-professional without prior written consent of the father. The children were to live with the father and spend time with the mother as agreed by the parties in writing, or failing agreement as provided by the orders, namely B and D were to spend no time with the mother until Christmas 2012 and then from the start of school in 2013 spend time with her after school Friday to before school Wednesday each alternate week. Until the start of school in 2013 E was to spend time with the mother from 8.30 am Tuesday to 4.30 pm Sunday each alternate week and after the start of school in 2013 from after school Friday to before school Wednesday each alternate week. The children were also to spend time with the mother for half of school holidays and specified times on special days.
On appeal, the mother seeks that the orders made by Murphy J on
29 November 2012 be set aside and that the parties’ parenting applications be remitted for rehearing by a judge other than Murphy J. In addition, and inexplicably in light of seeking a rehearing, the mother seeks:
(a)that before any rehearing a single expert be appointed pursuant to
r 15.45 of the Family Law Rules 2004 (Cth) (“the Rules”) to prepare an expert report in compliance with div 15.5.5 of the Rules; and
(b)that the children be placed in the care of the mother and they spend two hours with the father every fortnight supervised at a contact centre.
We note that at the commencement of the hearing of the appeal on
20 September 2013 we heard and dismissed an application in an appeal filed by the father on 12 September 2013. In that application the father sought an adjournment of the hearing of the appeal pending determination by Murphy J of an application to be filed by the father seeking to vary the orders of
29 November 2012 on the basis of affidavit evidence filed by the mother in the appeal.
Background
The father was born in 1969, and was aged 42 years at the date of the trial.
The mother was born in 1971, and was aged 41 years at the date of the trial.
The parties met in about 1985 and commenced cohabitation in December 2000. They married in 2002 and commenced a trial separation in March 2011 culminating in a final separation in April 2011.
Shortly prior to the commencement of proceedings on 28 April 2011 in the Federal Magistrates Court (as it then was), the mother secreted herself and the children, citing her fear of the father and what he might do to the children should he know their whereabouts.
On 2 September 2011 Federal Magistrate Coates (as his Honour then was) made interim orders for the father to spend supervised time with the children from 9 am to 5 pm each Saturday or Sunday as may be agreed between the parties.
On 7 December 2011 Federal Magistrate Coates made further interim orders that the children spend unsupervised time with the father from Saturday morning to Sunday morning each weekend and overnight each Wednesday. His Honour had before him reports prepared by the family report writer,
Mr M and a psychologist, Mr C.
On 2 February 2012 an order was made for the appointment of an Independent Children’s Lawyer (“ICL”) and the proceedings were transferred to the Family Court of Australia.
The parties’ applications, namely the mother’s Amended Initiating Application filed on 9 September 2011 and the father’s Amended Response filed on
30 January 2012 came before Murphy J over six days in August 2012, and his Honour made orders and delivered his reasons for judgment on 29 November 2012.
Reasons for judgment delivered 29 November 2012
The trial judge commenced his reasons for judgment by identifying the allegations of child sexual abuse made by the mother against the father, and the respective positions of the Department of Communities, Child Safety and Disability Services (“the Department”) and the ICL in relation to those allegations. His Honour then outlined the orders sought by each party. In summary, the father sought that he have sole parental responsibility for the children, that the children live with him and spend alternate weekends and half of school holidays with the mother, after a one month moratorium. It was the ICL’s position that the parties share parental responsibility, that the children live with the father, and they spend gradually increasing time with the mother. The mother sought that she have sole parental responsibility for the children and that the children spend supervised time with the father for two or three hours every second Saturday, or alternatively from Saturday to 5 pm Sunday every second weekend and for half of school holidays. The mother also sought orders that the children attend counselling.
The trial judge then addressed the statutory considerations in s 60CC of the Family Law Act 1975 (Cth) (“the Act”), noting that the allegations of sexual harm were of direct relevance to a number of the considerations. His Honour’s findings can be summarised as follows:
·Nature of the relationship: His Honour found both parties had a close and loving relationship with each of the children. As for the father and his relationship with the children, his Honour accepted the evidence of the father and placed considerable weight on the evidence of the father’s partner, Ms R, the family report writer, Mr M, and an officer from the Department, Ms G.
·Views:
It was the mother’s contention that the child B’s statements regarding alleged sexual impropriety by the father should be taken literally and accepted at face value, however, his Honour largely rejected the evidence of the mother and her sister as to this, considering much of it was an “exaggerated” and “self-serving version” of events.
His Honour considered (at [40]):
[w]hen regard is had to the evidence of those other than the mother, or those close to her, a picture emerges of statements made by the children, in particular [D], which are critical or derogatory of the father but accompanied by observations and reactions incongruent with those statements.
·Parental relationship and impacts on future co-parenting:
His Honour found there was no trust or respect between the parties and as such was of the view neither party had “any heartfelt desire to actively promote a meaningful relationship between the children and the other parent” (at [44]).His Honour also noted the mother was “apparently unshakable in her conviction that the father presents a sexual risk to the children” and that she had (at [45]):
… little or no ability or willingness to ‘reality test’ what the children might say to her, or chooses to be blind to, or dismissive of, explanations alternative to that which accord with her entrenched ideas that the children have been abused”.
His Honour considered there was “a real risk that the mother will continue to portray things said by the children as being indicative of sexual impropriety by the father” (at [45]).
The trial judge found the father had a “much greater capacity than the mother to attribute to children the mental workings of children and to deal with statements by them with due regard for the multiplicity of factors that might underpin any such statements” and that he was likely to be “assisted significantly by his partner whose intelligence and common sense as a loving mother of her own children, and a loving and caring person in the lives of the infant children, shone through her evidence”.
The trial judge considered that the parties could not meet the requirements of s 65DAC of the Act. Irrespective of any finding as to abuse, his Honour determined the s 61DA presumption was rebutted in the best interests of the children. His Honour proposed to fashion orders similar to those in Carlson v Bowden (2008) 40 Fam LR 327, namely orders which provided for one parent to have parental responsibility with the other parent to provide input.
·Capacity to provide for needs: Absent sexually inappropriate behaviour by the father, or emotionally abusive behaviour by the mother, the trial judge found no evidence that either party’s capacity to provide for the children’s needs was impaired. His Honour also noted that if put in place, the orders proposed by each party would have a significant impact on the other parent.
·Changes in circumstance: His Honour noted the orders contended for by the father and the ICL would involve significant changes for the children, especially given the change in residence, but that the mother’s proposal would also constitute a significant change. Both parties, the maternal grandmother and the father’s partner, gave evidence of B having “meltdowns”. Ultimately, the trial judge accepted Mr M’s view that B and D would cope with the change proposed by the father and ICL’s orders, but that change was “an issue” for E.
Next the trial judge turned to consider the admissibility of the voluminous material filed by the mother. In particular, his Honour noted counsel for the mother’s attack on the expertise of Mr M and Mr C, and her submission that their evidence ought to be excluded because the Court needed evidence from an “expert in child sexual abuse” in order to make the necessary findings as to whether abuse had occurred. Counsel for the mother referred to Murphy J’s decision in Donaghey v Donaghey (2011) 45 Fam LR 183, however, his Honour distinguished that case because the psychologist there asserted the child had been sexually abused on the basis of “booklets produced by the sexual assault service” and internet searches of “signs of sexual abuse” but no peer-reviewed, published research.
The trial judge referred to the High Court’s decision in M v M (1988) 166 CLR 69 as to the interaction between the best interests of the child and the risk of sexual abuse. His Honour also referred to s 69ZT of the Act and s 76 of the Evidence Act 1995 (Cth) as to the admissibility of opinion evidence, as well as Kirby J’s remarks in CDJ v VAJ (1998) 197 CLR 172 as to the different types of opinion evidence.
The trial judge was of the view that counsel for the mother’s argument in relation to expert evidence was misconceived because it depended upon four incorrect assumptions, first, that such expert evidence could be obtained, secondly, that it should be received in substitution for the evidence of
Mr M and Mr C, thirdly, that it would be definitive or decisive of the issues to be determined by the Court as far as they obtain to sexual abuse, and fourthly, that it would establish whether abuse occurred which in turn would be decisive of the issues confronting the Court. Although his Honour did not attach significant weight to the psychometric testing carried out by Mr C on the father, his Honour considered Mr C’s observations of the children with the father were highly relevant to the issue of the children’s best interests. In attaching significant weight to Mr C’s observations, the trial judge was “comforted by their striking similarity to the observations made independently by Mr [M]” (at [85]).
Next, the trial judge turned to consider whether there was an unacceptable risk of sexual abuse. In summary, it was the mother’s allegation that the father had “inserted a number of different items into his own (i.e. the father’s) anus, at different times and (it seems) different locations, in the presence of [B]”, as well as “suggestions” that both B and D may have been the subject of sexually improper behaviour.
His Honour found the best evidence of B’s disclosures came from three videotaped interviews conducted by police in April and May 2011. Both children were also interviewed by Ms G at their school in August 2012.
Ms G gave evidence that the police and the Department worked together in arriving at their assessment. Counsel for the mother challenged Ms G as to whether she commenced the assessment with a preconception that the children could not or should not be believed, to which Ms G responded that the assessment was holistic and that was why everyone involved was spoken to. The father denied the allegations and the police considered that there was no evidence upon which any criminal action should proceed. The Department found that the allegations of sexual abuse by the father were “unsubstantiated”, but found that “emotional abuse (of the children) at the hands of the mother” had been “substantiated”.
His Honour then considered the evidence of Dr A, a long-time friend of the mother, whose opinion was the catalyst to the mother forming the belief that the father presented a sexual risk to the children. Dr A admitted his opinions were based solely on what the mother told him that she had seen and heard the children say. The trial judge ultimately concluded Dr A’s evidence lacked objectivity and was of no assistance in informing the decision to be made about risk.
The trial judge went on to consider the mother’s observations of the father’s past interactions with B, in particular a photograph the father took of B with an erect penis when he was about three and a half years old, the mother’s videotaped “interview” with B in April 2010, and other pieces of evidence she had captured on video. However, the existence of the video recording of the interview only came to light during the hearing, and the mother’s evidence was that the camera was missing. His Honour did not accept this evidence and suspected that the mother refused to produce it “out of concern about what might be made of that which it contains” (at [126]). His Honour also noted that the only direct observations of behaviour which gave the mother concern about sexual misconduct, namely B inserting Lego into his anus, were those observed only by the mother who did not discuss the incidents with a medical practitioner at the time.
Next the trial judge considered whether there was any issue of coaching.
His Honour said that each of the three interviews conducted by police and the interview conducted by Ms G contained “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” (at [130]). His Honour also noted B’s references to receiving a reward from the mother for talking to the police and rejected the mother’s explanation that the children receiving toys after the police interviews was a coincidence.
The trial judge then outlined what B told the police. In the first interview in April 2011 B stated the only object the father had put up his anus was a “blue and black curved triangle thing”, at the second interview he stated he had also seen the father insert nails and needles into his anus, and at the third interview he named 14 other objects, including objects that were present in the interview room. His Honour noted there were inconsistencies in B’s descriptions of the alleged incidents, that B’s demeanour during the interviews was “hyperactive”, and that B expressed his unwillingness to participate in the interviews. His Honour also noted that B made a number of statements to the effect that his father had not engaged in untoward behaviour. During counsel for the mother’s cross-examination of Detective T who had conducted the interviews, she showed children’s toys and a sex toy and contended that B’s references to objects which did not make sense when taken literally were in fact references to plastic food toys and a sex toy. His Honour found there was no evidence to indicate that the items referred to by B had any meaning other than their literal meaning and his Honour considered many of the assertions made by B to be “inherently unbelievable” and the result of the mother encouraging B to state that he had seen the father insert objects into his anus.
His Honour indicated that “[a]n assessment of unacceptable risk depends, in large measure, on an assessment of the veracity and reliability of the mother’s evidence”. His Honour was of the view that many of the mother’s answers evidenced an incapacity to consider alternative views and scenarios, and his Honour also noted there were inconsistencies in the mother’s answers during cross-examination. Ultimately the trial judge concluded the “evidence as a whole persuades me that the mother had no concerns about any improper behaviour of a sexual nature by the husband” (at [162]).
Next the trial judge considered the evidence of the mother’s sister, Ms X. His Honour was of the view that Ms X’s demeanour in the witness box was “quite extraordinary” and that she “gave the impression of ‘a woman on a mission’ rather than a loving sister caught up in difficult and stressful circumstances doing her best to give an honest account of her recollections”
(at [165]). It was Ms X’s evidence that, with the mother’s foreknowledge and agreement, she and another woman attended unannounced upon the father shortly after separation to put forward a “proposal” on behalf of the mother. It was the father’s evidence that he was invited to the maternal grandparents’ house for their normal “movie night” and that when he arrived only Ms X and another woman, whom he did not know, were there and told him “we have information about what you have been up to with the kids and if you don’t sit down we are going to call the police”. The father alleged they then offered a “deal” of a 70/30 split of property and that the father have no contact with the mother except via email. It was Ms X’s evidence that she passed on the mother’s “pre-prepared statement”, although she conceded during cross-examination that she made some accusatory statements to the father. It was the mother’s evidence that she instructed her sister to include the ultimatum that property be split 70/30 in favour of the mother or she would go to the police. Ultimately the trial judge accepted the father’s version of the incident.
The trial judge’s subsequent conclusions as to unacceptable risk can be summarised as follows:
·The father did not present an unacceptable risk to the children if orders were made that the children spend time or live with him.
·There were very significant reservations about the veracity and reliability of the mother and Ms X’s evidence, and in particular their evidence as to what B and D had said and/or done.
·It was “highly likely” the mother had sought to influence what the children said to the police and the Department.
·B’s statements were not to be taken literally and were marked by significant inconsistencies and allegations which were “palpably preposterous”. B’s denials were given weight.
The trial judge’s conclusions as to best interests can be summarised as follows:
·The presumption of equal shared parental responsibility was rebutted.
·Historically, the mother was the primary carer and had an unchallenged capacity to provide for the children’s day-to-day needs. The potential effect of changes, particularly for E (the youngest of the three children), suggested a continuation of the mother’s role.
·The findings made in respect of the alleged risk to the children posed by the father pointed to him having a “significant, unrestricted, regular and on-going role in their lives”.
·The above findings also had to be considered against other behaviour of the mother, in particular the finding that her actions had been emotionally abusive of the children. The impression the trial judge gained from the whole of the evidence was that the allegations against the father would continue and expand, which was not in the best interests of the children.
·Each of the children had a loving and mutually beneficial relationship with both parents.
·On balance, consequent upon the end of the proceedings, the father would promote the children’s relationship with the mother and facilitate time. However, his Honour had no such confidence in the mother.
·The father’s role as primary carer was untested and all the challenges of a blended family would present themselves.
·There were no issues regarding the practical difficulty of the parties spending time with the children.
·The mother’s capacity to provide for the children’s emotional needs was compromised by her implacable belief that the father had sexually abused the children, thus affecting her attitude to the responsibilities of parenthood.
Ultimately, the trial judge concluded it was in the children’s best interests to live predominately with the father, for B and D to spend five nights per fortnight and half of school holidays with the mother (with E to spend more time with her given his young age), and for the father to have sole parental responsibility for all children in respect of major long term issues.
Application to adduce further evidence
On 6 September 2013 the mother filed an application in an appeal seeking to adduce further evidence in the form of her supporting affidavit, which contains updating evidence in relation to the children’s safety, wellbeing and behaviour, the father’s household, communications between the parents and between the mother and children, parental counselling, and the mother’s current living and employment situation. In the affidavit, the mother also deposed to matters which occurred prior to the hearing before the trial judge in August 2012, but in relation to which the mother did not give evidence at the trial. Lastly, the mother raised concerns about the accuracy of the transcript from the trial.
The mother subsequently filed two further affidavits, one on 18 September 2013 and the other tendered to this court on 20 September 2013. The latter affidavit also became the subject of the application to adduce further evidence. We will address that application later in these reasons.
Grounds of appeal
Ground 1
His Honour erred in in [sic] taking the direct evidence from the child at its lowest;
As with many of the grounds of appeal it is difficult to discern what error it is said that the trial judge has made in this instance.
As referred to above, the trial judge found many of the statements made by the child as to the conduct of his father to be “inherently unbelievable”, and the result of the mother encouraging him to state that he had seen the father insert objects into his anus. Indeed, his Honour concluded as follows:
183.I reject the mother’s contention that [B]’s statements about objects being inserted by his father into his father’s anus should be taken literally.
184.I consider that [B]’s account is marked by significant inconsistencies. His account in those interviews is marked by a palpable desire to be elsewhere and a desire to “say whatever it takes” to bring the interviews to an end. [B]’s account within each of the three interviews is marked by denials to which I give weight. The nature and extent of [B]’s allegations grow dramatically with each interview. Allegations are made of objects being inserted into his father’s anus by reference to objects within the interview room.
185.[B]’s accounts are marked by allegations which I consider palpably preposterous, the best examples of which are the public insertion of an electrical cord into his father’s anus at a large retail outlet and the marble “growing to the size of the room”. The experienced police officer’s plain scepticism about [B]’s account/s is shared by me.
It seems that the gravamen of this ground is first, that the right questions were not asked by the interviewing police officer to determine if the child was describing something he had in fact seen, and secondly, that there was no expert in child sexual abuse called as a witness who was able to provide an opinion as to the meaning of the child’s statements. Pausing there, as was raised with the mother’s counsel, Ms Merkin, during the hearing before us, how it can be said that these complaints demonstrate error by the trial judge in the manner alleged is simply not apparent. For example, it is unclear to us why an alleged failure by the interviewing officer to ask the necessary questions of the child should require his Honour to take the statements of the child at their highest, i.e. at face value. Apart from noting that we were not taken to any part of the transcript of the hearing where this submission was put to his Honour, we propose to say nothing further about this aspect of the ground of appeal.
As to the issue of an expert in child sexual abuse, there were two expert witnesses who provided reports and gave evidence at the instigation of the ICL, namely Mr M and Mr C. However, Ms Merkin put to his Honour that neither of these witnesses had sufficient expertise to provide an opinion as to the meaning of the child’s statements and more particularly as to whether child sexual abuse had occurred. Indeed, Ms Merkin did not cross-examine Mr M about these issues for that reason.
However, the difficulty that confronts the mother and her counsel in relation to this aspect of this ground is that prior to the commencement of the trial the mother filed an application seeking an order that one Dr N “be appointed to write an expert report”. In her affidavit filed in support of this application the mother sought to justify the same by raising a number of concerns about the expertise of Mr M and Mr C, and suggesting that Dr N was the expert required in the case.
The trial judge heard this application on 6 August 2012 and dismissed it. Importantly, there was no appeal against that order, and that in itself prevents this issue being raised in this appeal.
In any event, in his reasons for judgment his Honour dealt at length with the issue of the expert evidence that was before him, and the absence of evidence from a “Sex Abuse Expert” (see [64]-[94] inclusive of the reasons for judgment). In summary, his Honour correctly explained by reference to authority that the issue that he had to determine was not whether child sexual abuse had been established, but what orders should be made to meet the best interests of the children, and in dealing with that issue he must determine whether, on the evidence, there is an unacceptable risk of sexual abuse occurring if the proposed orders are made.
In that context, his Honour, again correctly in our view, found that the evidence of Mr M for example was:
75.… relevant to a number of different issues that need to be considered in arriving at an ultimate assessment of the orders that best meet the best interests of [the children]. His evidence does not, contrary to that which is assumed in the argument by counsel for the mother, relate solely to, or inform solely, the issue of risk. His observations are, of themselves, valuable in informing the findings that must be made in respect of the relevant statutory Considerations.
As to the evidence of Mr C, his Honour said this:
84.Again, the evidence of Mr [C] is not directed to the issue of “whether abuse occurred” but rather to providing evidence, among other evidence, by which any risk might be assessed by the Court.
85.In that context, I make it clear that I do not attach significant weight to the test results detailed by Mr [C]. However, I consider his observations of the children with their father to be highly relevant to the issue of the children’s best interests. Those observations were not predicated upon, nor influenced by, his determination of the father’s risk of “sexual offence recidivism”. In attaching significant weight to them, I am comforted by their striking similarity to the observations made independently by Mr [M]. …
(Original emphasis)
His Honour then concluded, again accurately in our view, as follows:
90.I consider that the true basis of the arguments made by counsel for the mother against the admission of Mr [M’s] and
Mr [C’s] evidence is based on the assertion earlier addressed, namely that the “child abuse expert” the mother sought to adduce evidence from would “provide the answer” to whether the children had been abused (or not). I do not accept that premise. Moreover, as clear authority establishes, it misconceives the nature of the inquiry.Accordingly, there is no substance in any of the submissions made in relation to this ground of appeal. Further, in addressing the ground literally, the complete answer is that it was for his Honour to analyse all of the evidence that was put before him to determine the orders that would meet the best interests of the children, and in that exercise to weigh and assess the child’s statements and make a finding as to the risk of sexual abuse occurring depending on what orders were made. It was not open to his Honour to do what Ms Merkin suggested, namely, in effect determine the case solely by making specific findings that what the child described actually occurred, and that was clear evidence of child sexual abuse. We observe that at [135]-[152] inclusive of the reasons for judgment his Honour comprehensively and thoughtfully addressed the evidence of what the child said and reached a conclusion that was plainly open to him on that evidence.
It is not contended by Ms Merkin that here the trial judge made an error of law or a mistake of fact, and to the extent that this challenge is a weight challenge, it has not been demonstrated that his Honour was “plainly wrong in the exercise of his discretion” (Gronow v Gronow (1979) 144 CLR 513, per Stephen J at 519-520).
In these circumstances we find no merit in this ground of appeal.
Ground 2
His Honour erred by not applying the Briginshaw standard to the father’s case of coaching the children against the mother;
Again, there is no merit in this ground of appeal.
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.
Ms Merkin further submitted that the view expressed by Ms G on this topic, namely that the mother appeared to have coached the children and that in doing so she has caused them emotional harm, was solely based on the reports of
Mr M and Mr C, and those reports should be considered unreliable; thus his Honour should not have accepted the opinion of Ms G. However, Ms Merkin could not take us to any evidence that supported the first proposition, and in any event, as this court pointed out to Ms Merkin, this issue was not determined by the opinion of any officer of the Department, but was determined by his Honour on the basis of his assessment of all of the evidence before him.
Ground 3
His Honour erred by erroneously applying excessive weight to the evidence from the Child Welfare Officer given his own description that the Department is paid “too little money” and are “under too much pressure” in circumstances where the Department is well known to be failing in its child protection responsibilities and due process was not afforded in cross-examination;
This is plainly a challenge to his Honour’s assessment of the weight to be given to the evidence of Ms G.
The principles as to how this court should address such a challenge are well settled. For example, Stephen J said this in the High Court decision of Gronow (at 519-520):
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Thus, the mother has a high hurdle to overcome to succeed with this ground of appeal; and we are not persuaded that she has achieved that.
We make two preliminary comments about how this ground of appeal is expressed. First, we find that reference to his Honour’s comments about the Department entirely irrelevant, and we propose to have no regard to them. Secondly, we also propose to have no regard to the entirely gratuitous comment that “the Department is well known to be failing in its child protection responsibilities”. Indeed, it is outrageous for Ms Merkin as counsel to promote that in a ground of appeal before this court.
As to the ground itself, it seems that, as we have referred to already, the mother’s case is that Ms G relied on, and was influenced by, the reports of
Mr M and Mr C which in themselves were inadequate and lacking in the application of relevant expertise, and that Ms G’s evidence, including her opinions, should not be accepted as a result. However, as identified above, there was no evidence that Ms Merkin was able to take us to that demonstrated the reliance by Ms G solely upon the contents of the reports in forming her opinions. Indeed, it is telling to note that at no time in the cross-examination of Ms G by Ms Merkin was it put to her that she had relied upon the report of Mr C or its addendum, or the report of Mr M, in forming her opinions.
The trial judge described the evidence of Ms G, who interviewed B and D at their school, as follows:
32.I was struck most significantly of all, …, by the evidence of an officer from the Department, Ms [G]. I was impressed by her objective professionalism and the frank and forthright manner in which she gave evidence. Her cross-examination by the mother’s counsel evidenced a capacity in Ms [G] to consider the difficult issues involved in an objective and, importantly, child-focussed manner. …
We note that Ms G formed the view that the mother had coached the children and that the mother’s actions constituted emotional abuse of them. We have looked carefully at the evidence of Ms G and we are satisfied that his Honour’s assessment of her, and of her evidence, was open to his Honour and we can find no error by his Honour in that regard.
It is suggested in oral submissions by Ms Merkin to us that she and the mother were taken by surprise when Ms G “turned up to give evidence on the first day”, and “[t]here was no opportunity to know what her evidence was going to be.” Indeed, Ms Merkin hinted at the mother being prejudiced by this turn of events, and it seemed that it was a veiled criticism of the trial judge.
However, as was clarified during oral submissions, Ms Merkin did not seek an adjournment from his Honour to obtain instructions either before the witness commenced her evidence or before commencing her cross-examination of the witness. Ms Merkin also had difficulty in explaining to us how the giving of the evidence and the way it occurred disadvantaged the mother. It was common ground that the interviews of the children by Ms G at their school were undertaken in the absence of the mother.
Moreover, and highly relevantly, it is apparent from the transcript of the hearing before his Honour that during an adjournment for this purpose, counsel for the ICL “opened” to the parties the evidence that this witness was about to give, and to repeat, when the hearing resumed, no application to adjourn to seek instructions was made by Ms Merkin (Transcript 22.8.12, page 12, and page 16, lines 37-38).
In relation to the specific submissions made to us by Ms Merkin on this topic, counsel for the ICL tendered without objection, two emails, one from the ICL to the solicitors for the father and the solicitors for the mother dated 21 August 2012, and the response to that email by the mother’s solicitor of the same date (Exhibit 1).
In the first email the ICL advises, inter alia, that as discussed on the previous day the Department had not yet been able to provide the outcome of their current investigation, that it was proposed to call Ms G to give evidence at the commencement of the hearing in the presence of Mr C and
Mr M, and enquired if there was any objection to that course. In response, the mother’s solicitors advised, presumably on instructions from the mother, and with the knowledge of counsel, that “we” have no objection to the course proposed.
This would seem to provide the complete answer to the complaint made by
Ms Merkin about the circumstances in which Ms G gave evidence.
Disturbingly, we feel compelled to point out that this is yet another example of Ms Merkin making a submission to us which was either inaccurate or without any foundation on the evidence.
The final aspect of this ground of appeal is the complaint that “due process was not afforded in cross-examination”. Unfortunately, no detail was provided as to this complaint either in the written or the oral submissions of Ms Merkin.
We can only presume that the complaint relates to cross-examination of the Department’s witnesses. However, as both counsel for the ICL and counsel for the father point out, there was no intervention by the trial judge during the cross-examination of Ms J, and his Honour’s intervention in the cross-examination of Ms K was appropriate and warranted, and did not fail to provide due process. His Honour determined that certain questions being asked by Ms Merkin were irrelevant to the issues he had to decide, and thus he refused to allow those questions. The third witness for the Department was
Ms G, and as the counsel for the father has submitted, any intervention by the trial judge in her cross-examination was an attempt to assist counsel, and in one instance was done to ensure that Ms Merkin in effect wanted to tender material which may be damaging to her own case.
There is no merit in this ground of appeal.
Ground 4
His Honour erred in placing the highest weight on the father’s evidence where the evidence contrary to or against the weight of the evidence;
This is plainly another weight challenge, and the principles outlined above apply here as well.
As explained by Ms Merkin in her written and oral submissions, this challenge is about first, “the refusal” by the father to provide his “personal medical records”, and secondly, the failure by his Honour to place any weight on the father’s admission that he had photographed B’s erect penis when he was three and a half years old, namely in 2008.
As to the first issue, in July 2011 the mother apparently became aware that in June 2011 the father had had an operation to his anal region. A letter was alleged to have been sent one week before the trial by the mother’s solicitors to the father’s solicitors indicating that the mother had a concern about this and apparently seeking further information, but this letter was not produced despite being called for by the father’s counsel. It seems that this was the basis of
Ms Merkin’s submission to us that the father “refused” to produce his personal medical records, but as is apparent from the evidence, the mother was aware in July 2011 of the medical procedure that the father had had. We note further that no subpoena was issued by the mother, and no adjournment or order was sought from the trial judge, but the father was cross-examined by Ms Merkin. The father’s evidence was that he had haemorrhoidal banding in June 2011.
This issue was then the subject of final submissions by Ms Merkin at the conclusion of the trial, but as the father’s counsel points out, no submissions were made to his Honour as to how his Honour should use this evidence in relation to the matters that he had to decide.
In these circumstances we are not persuaded that his Honour committed any appealable error in how he treated this evidence.
As to the second issue, there was no mystery or secret about it. From the moment of taking the photograph the father made it clear why he had done it; namely, as a joke, to use when his son turned 21. Moreover, in cross-examination it was not put to the father that there were any sexual connotations in him taking the photograph, and it was not put to him that it was connected in any way with the allegations made by the children.
His Honour said this at [113]:
The first in time, in about late November 2008 when [B] was about 3½, is the father taking a photo of [B] with an erect penis. The father admits this. He says it was taken as a joke “to be used at his 21st” and says he now recognises it as inappropriate. The photo, he says, is redolent of that (now admittedly inappropriate) purpose. That is, the photo would, on his contention, be, of itself, indicative of an inappropriate humorous purpose as distinct from any sexual overtones. There is no evidence that the father has ever denied taking the photograph or given an account of a purpose different to that which he now asserts.
The photograph was never produced in court, but in some way it was part of the material on the video camera that allegedly went missing. In relation to this his Honour said at [160]:
I have already referred to the fact that I completely reject the mother’s evidence that she does not know the whereabouts of the camera. Its importance is obvious because it provides real evidence of the matters referred to at [113] – [119] of these Reasons. The father has never rejected the mother’s assertion that he took a photo of [B’s] erect penis when he was a toddler but, as has been seen, he attributes to it a purpose which, although perhaps deserving of approbation, is denied as an example of any sexual impropriety. In my view it is by no means insignificant that it is the father who, through his solicitors, continued to press for production of the photo. Those requests were resisted by the mother through her solicitors. When it was asserted by the mother that the photo had been deleted by the father (plainly as part of an assertion by her that he had done so to hide its alleged sinister appearance or purpose), it was the father who, having denied he had deleted it, continued to press the mother for production of the camera so that evidence could be obtained from (in effect) its memory, only to be confronted by an assertion by the mother that it was “missing”. As I have said, I think it highly likely the mother has given deliberately false evidence about that.
We find that it was open to his Honour to treat the photograph and the taking of it by the father in the way that he did, and we are not persuaded that his Honour has erred in that regard.
Ground 5
His Honour erred in applying Division 12A, specifically section 69ZT, to the proceedings at hand and thus erred in relying on reports by experts that were not specialised in child sexual abuse and opinions that were inadmissible;
It seems that the kernel of this complaint is again that there was no expert witness as to child sexual abuse called to give evidence, and his Honour should have excluded the opinions of Mr M and Mr C because they were not experts who “specialised in child sexual abuse”. It is said that his Honour should have rejected their evidence as inadmissible for this reason by making an order under s 69ZT(3) of the Act, applying the relevant rules of evidence. Pursuant to s 69ZT(1) of the Act, many of the rules of evidence do not apply to child-related proceedings, but where there are exceptional circumstances a court can apply one or more of those Rules (s 69ZT(3)).
The difficulty confronting the mother’s counsel in promoting this ground is that, as she conceded during the hearing before us, no application was made to the trial judge on behalf of the mother to make an order under s 69ZT(3) applying the relevant rules of evidence. Thus, there is no basis to find that the trial judge has erred in not making an order under s 69ZT(3) and then excluding the evidence of the expert witnesses for allegedly lacking the necessary expertise.
This ground must fail on this basis alone, but we note that in finding no merit in Ground 1 we addressed the mother’s submission that there should have been an expert in child sexual abuse called as a witness, and that his Honour erred in relying on the evidence, including the opinions of Mr M and
Mr C. We confirm that we can find no error in how his Honour dealt with these two issues.
In these circumstances we find no merit in this ground of appeal.
Ground 6
His Honour erred in not distinguishing the facts of the case from Donaghey v Donaghey [2011] FamCA 13 where he stated that “This case possesses characteristics that are remarkably common in so many cases of this type that come before this court”;
We had great difficulty in understanding this ground of appeal, or more particularly what appealable error the trial judge is said to have made. We observe that we were also not assisted in our understanding of this ground by the brief written submissions of Ms Merkin in support of it.
In oral submissions by Ms Merkin it became somewhat clearer what the complaint was, but not to the point of demonstrating any appealable error by the trial judge.
In Donaghey the mother alleged that the father had sexually abused their child and there was an unacceptable risk of sexual abuse occurring. His Honour found though that the father did not pose any risk of harm to the child as alleged by the mother and his Honour altered the residence arrangements of the child such that the child moved to live with the father.
At [44] in his reasons for judgment in Donaghey his Honour set out a list of characteristics that he considered were common to cases where allegations of child sexual abuse are made. In her oral submission to us Ms Merkin pointed out that at least one of those characteristics did not apply in this case, and on that basis his Honour should have distinguished the facts of this case from the facts of Donaghey, and presumably found as a result that child sexual abuse had not been excluded here.
Unfortunately, it is apparent that Ms Merkin has misunderstood what his Honour was doing in Donaghey at [44] of his reasons for judgment. He was not providing a list of characteristics that could be used by courts in this area to determine whether child sexual abuse had or had not occurred in the particular case under consideration. As his Honour said in the opening words at [44]:
This case possessed characteristics that are remarkably common in so many cases of this type that come before this court. An outline of those characteristics and their applicability here, provide, in any event, a useful background to this particular case; …
Certainly, the facts of Donaghey were quite different to the facts of this case, but there was no need for his Honour to distinguish the facts of the two cases beyond the distinction that his Honour did draw between the expert evidence in that case and the expert evidence in this case, an issue that we will address shortly by reference to his Honour’s reasons; his Honour at no point utilised or even referred to what he said in Donaghey, or more particularly at [44] of
his Honour’s reasons, to reach his conclusion in this case.
So there can be no misunderstanding about the relevance of Donaghey to his Honour’s decision here, we consider it instructive to set out what his Honour did say in response to the submissions of Ms Merkin:
86.Ms Merkin submitted on behalf of the mother that “[t]here is no evidence from any expert report writer that can properly inform this court about any findings in relation to sexual abuse or risk of sexual abuse in this case.” In submitting that the evidence of both
Mr [M] and Mr [C] ought to be excluded, Ms Merkin referred (selectively) to my judgment in Donaghey & Donaghey (2011) 45 Fam LR 183.87.The selective use of my judgment in Donaghey by Ms Merkin is apt to misconstrue what was meant by the statements counsel has relied upon in written submissions. Whilst Donaghey and the present case are similar in that both involve/involved allegations by the mother of sexual abuse of the subject child/children by the father, in Donaghey the mother relied upon evidence from a psychologist who purported to provide opinion evidence relating directly to the question of whether abuse had occurred. The psychologist based that opinion on his contention that he had observed the “general indicia of sexual abuse” in the subject child. When pressed by me as to what literature he was relying upon to determine what was the “general indicia of sexual abuse”, the psychologist could not point to any peer-reviewed, published, research but, rather, directed me to conduct a “general internet search” using the search terms “signs of sexual abuse.”
88.It was in the context, then, of a psychologist purporting to assert that a child had been sexually abused on the basis of “booklets produced by the sexual assault service” and internet searches of “signs of sexual abuse” that I said (emphasis in original):
56.In (at least) cases of this type, “well-recognised peer reviewed research” is, in my respectful view, a concept which should cause significant pause for thought. As but one example of the concerns to which I refer, Ceci and Bruck, presenting the Amicus Brief for the case of State of New Jersey v. Michaels, compiled by the Committee of Concerned Social Scientists (2007), say: “It is important to understand that this is a rapidly expanding area of inquiry. Reviews of the literature that were published only a few years ago, are now out of date”. The concern is exacerbated significantly when regard is had to the (notorious) fact that, since the
Full Court in B and R made reference to data “… partly constituted by readily accessible public information of which it would be expected that a trial Judge would inform himself or herself…” the sources and volume of “readily accessible public information” have each increased enormously, indeed exponentially. There is no doubt about the volume and accessibility of information on the Internet; the issue is its reliability or, perhaps more accurately, how to assess its relative reliability when compared to other pieces of information also emanating from the same public resource.57.At the very least, as it seems to me, when issues as serious as child abuse arise, the introduction of such research as evidence should come about (as the Full Court effectively suggests in McCall) by the means of an independent expert who possesses requisite training, expertise and experience in dealing forensically with cases in which sexual abuse of young children is alleged, and who, crucially, as part of that expertise, is also familiar with relevant peer-reviewed research. Crucially, that training, expertise and experience should permit them to properly posit particular pieces of research within the scientific mainstream. Caution is needed on the part of the Court when reference is made to a particular study or studies – even by a properly qualified expert. Such a reference can be of little assistance unless it is known where the study, or studies, sit within the accepted body of knowledge. As the Honourable John Fogarty AM said above (@ 272), “You could fill a library with articles on this topic arriving at differing conclusions”.
89.Ms Merkin, relies upon my statements in [57] to submit that
Mr [M] “does not ‘possess […] the requisite training, expertise and experience in dealing forensically with cases in which sexual abuse of young children is alleged …’ and he cannot ‘properly posit particular pieces of research within the scientific mainstream.’”
Mr [M] does not posit any opinion regarding whether or not the children have been sexually abused, nor whether they are at risk of being sexually abused. Similarly, I have earlier said that I attach little weight to the assessment by Mr [C] of the father’s risk of sexual offence recidivism. Like Mr [M], and unlike the psychologist in Donaghey, Mr [C] does not proffer an opinion regarding whether or not abuse has occurred, nor, whether or not the father poses a risk of sexual abuse (which must be distinguished from any contention regarding risk of recidivism).
Thus, there is no merit in this ground of appeal.
Ground 7
His Honour erred in referring to his own researches of Freud’s psychiatric literature in relation to the proceedings at hand during the trial and the work of Gardner;
This is not a proper ground of appeal. Rather it is an assertion without any consequence founded on appealable error. For example, for his Honour to comment on literature that he has read, does not of itself translate into appealable error. We assume though that the error sought to be demonstrated is that his Honour applied his own research in reaching his decision, and we will address this ground on that basis.
There is no question that it is not open to a judge to do what it is suggested his Honour did in this regard, but we are not persuaded that his Honour committed that error.
His Honour, during the submissions of senior counsel for the father said this, “… A lot of people in this case haven’t heard of Freud and those who followed him” (Transcript 20.3.13, page 20, lines 25-26). However, nothing appears in his Honour’s reasons for judgment about this, and it is at best mere speculation on the part of Ms Merkin to suggest that his Honour relied on Freud in reaching his decision.
Ms Merkin attempted to link this with a question and a comment by his Honour during the cross-examination of the mother by the ICL. His Honour asked whether the parties had ever been psychiatrically assessed, and when the ICL replied in the negative, his Honour said, “[s]eems a shame” (Transcript 28.8.12, page 348, line 46 to page 349, line 3).
Ms Merkin suggests that this indicates his Honour’s reliance on Freud. We find that to be a fanciful submission by Ms Merkin and we reject it.
Finally, we observe that although these issues arose during the hearing before his Honour, no application was made by Ms Merkin on behalf of the mother for his Honour to disqualify himself.
There is no substance in this ground of appeal.
Ground 8
His Honour erred where he made findings contrary to and against the weight of the evidence that the mother was “significantly influenced” by her sister, by Dr [A] and her counsel where the evidence was that the Department were instrumental in encouraging the mother to continue to believe her child;
In paragraph 70 of his Honour’s reasons for judgment his Honour said this:
… The submissions made on the mother’s behalf, and her position more generally are, in my view, predicated on a number of misconceptions as to the admissibility of evidence under the Act, and, in any event, the nature of “expert evidence” and the role of expert evidence within proceedings of this type. I am profoundly concerned, as I expressed during the trial, that the mother has been significantly influenced in her views by her sister, by Dr [A] and, although it troubles me enormously to say so, by her counsel.
The bald submission made by Ms Merkin in her written outline of argument is that “[t]here was no evidence to ground” these “comments”. However, we find that submission to be unsustainable. It is not even a weight challenge which would of course face the hurdles referred to above; the submission is that there was no evidence on which his Honour could make these findings.
His Honour went to great lengths to record and analyse the evidence given by the mother’s sister, Ms X (at [163-175]) and by Dr A (at [102-111]). Not only do we consider that there was ample evidence, including the evidence of the mother herself, on which his Honour was able to base these findings, it is not the case that his Honour has misused the “trial judge’s advantage” that his Honour had in hearing each witness give evidence and observing their demeanour when doing so. The principles are clear and we can do no better than refer to what Lord Sumner said in S S Hontestroom v S S Sagaporack [1927] AC 37 (at 47):
… not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
Before leaving this aspect of this ground of appeal, we observe, as counsel for the ICL points out in her written submissions, “[n]owhere does the mother say in the material that she relied upon in the trial that she continued to believe [B’s] allegations because the Department encouraged her to believe her child,” and the first time that is adverted to is in the final submissions made by her counsel (Transcript 20.3.13, page 42, lines 40-41).
As to his Honour’s reference to the influence of counsel, we have closely read the transcript of the hearing before his Honour, and we are satisfied that that finding was clearly open to his Honour. However, that finding was not crucial in any way to his Honour’s decision, and although we can understand why counsel might raise this issue, we do not consider that it is a proper ground of appeal.
In these circumstances there is no merit in this ground of appeal.
Ground 9
The interests of justice in this case cannot be seen to be supported where the recordings of proceedings were edited and or amended before final transcription by the official transcribers.
We are seriously troubled by the assertions made not only in this so-called ground of appeal, but also in the written and oral submissions of Ms Merkin.
The first point to make is that it is not a proper ground of appeal. No appealable error is alleged, and it should be struck out as sought by both the father and the ICL. We observe though that Ms Merkin continued to pursue this complaint before us.
The second and most concerning aspect is that the statements and submissions made by Ms Merkin in relation to this issue appear to have been made in breach of Rules 63 and/or 64 of the Barristers’ Conduct Rules of the
Bar Association of Queensland.
Those Rules are as follows:
63. A barrister must not allege any matter of fact in:
(a) any court document settled by the barrister;
(b) any submission during any hearing;
(c) the course of an opening address; or
(d)the course of a closing address or submission on the evidence;
unless the barrister believes on reasonable grounds that the factual material already available provides a proper basis to do so.
64.A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:
(a)available material by which the allegation could be supported provides a proper basis for it; and
(b)the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.
The written submissions of Ms Merkin in support of this complaint are as follows:
The Transcript is incomplete and absent of sections of the proceedings before the court where the internal record of the transcript demonstrates events not transcribed but nevertheless having been raised during the trial. It is not open to counsel to edit or amend the transcript. Neither is it open for anyone to do so either: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, at 72, per Heydon, Crennan, Bell JJ; and indeed, had the transcript been different than the transcript provided by the official transcriber, it would constitute a serious offence as an officer of the court. If the recordings have been edited or amended in any way, is not open to the judiciary or anyone on behalf of any judiciary to amend or edit the audio recordings of the proceedings before they are sent to the official transcribers.
(Footnotes omitted)
It is plain that in that submission the allegation is being made that, inter alia, the trial judge may have amended or edited “the audio recordings of the proceedings before they are sent to the official transcribers.” It is also a fair reading of the submission that it is being alleged that the trial judge may have in addition edited or amended the transcript.
In the affidavit material comprising the further evidence sought to be adduced by the mother, there is evidence that relates to this issue. Both the father’s counsel and the counsel for the ICL took no objection to this court receiving that evidence, and we are content to do so. Specifically, that evidence is comprised in paragraphs 73 to 84 of the mother’s affidavit filed on 6 September 2013, and in paragraphs 5 and 6 of her affidavit tendered to this court on
20 September 2013.
In summary, following the obtaining of the transcript of the hearing for the purposes of the appeal, the mother claimed that there were three instances where what was said in court did not appear in that transcript. In paragraph 75 of her affidavit filed on 6 September 2013 the mother identifies those three “data gaps” as follows:
75.…
Transcript – Data gaps
There are three areas of transcript which I say are missing. These areas are:
i. Appeal Book 6 – Day 1 of trial – pages 963 to 973
First sentence by his Honour before appearances announced, he said “Your client’s affidavit is full of drivel” to my barrister. This material is missing from the first page of the transcript.
ii.Appeal Book 7 – Day 3 of the transcript – pages 1117-1121 line 5 1117 to line 15.
Submissions of Ms Merkin to His Honour stated during this period “I’m the expert”.
iii.Appeal Book – Day 3 – pages 1131 to 1138 during
Ms Merkin’s cross examination of [Detective T].Ms Merkin held up a butt plug. His Honour asked what it was. Ms Merkin said “it is commonly referred to as a butt plug”. His Honour told Ms Merkin she was not allowed to bring such items into the court. It happened around P-171 but this record is missing from the transcript. The reason it was so obvious to me the material was missing is that at the time Ms Merkin held up the butt plug I clearly recall His Honour raised his voice and started to shout angrily. He shouted at Ms Merkin “You can’t bring that into my Court”. The event described above was referred to in Day 4, at P-350 from line 25 to line 15, P-351.
The mother then deposes in paragraphs 76 and 77 to a “fourth piece of missing data”. She said this:
76.It very recently came to my attention after conversations with my father, [Mr X], that there is a fourth piece of data is missing. On or about 30 August my father asked me words to the effect of “is the judge’s comment in the transcript?” I asked him which comment and he said words to the effect the comment where the Judge stated “I will be the judge of whether the children have been sexually abused and if you don’t like that then you can appeal”.
77.I checked the transcript for each of the 3 dates my father attended the trial but could not find the comment he remembers the Judge made. …
Subsequently the mother consulted an “audio recording specialist” about digital court recording systems, and then she attended at court and listened to the audio of the hearing before his Honour. The mother recorded her “findings” in paragraph 80 of her affidavit as follows:
I listened to sections of the audio in which I had identified sections of data that were missing in the transcript and followed the audio with the relevant Appeal Book containing the written transcript in front of me. I was using a pair of i-phone earphones to listen to the recording rather than the old style earphones the subpoena room provided. In relation to item 1 and item 2 of my concerns I could not ascertain any discrepancies between the audio and the written transcript. What I did find was that, with the headphone I used which are the latest i-phone technology, I could audibly hear separate “channels” of audio in separate ears. For example I could hear the Judge’s channel in my left ear only and Ms Merkin’s channel in my right ear phone only.
(Our emphasis)
In relation to the third piece of data allegedly missing, the only discrepancy the mother could find was a rustling sound was not recorded in the transcript. In paragraphs 81 to 83 of her affidavit, the mother deposed to hearing on the audio “a rustling sound of … thin plastic” whereas the bag in which she brought the “butt plug” to court for the purposes of Ms Merkin’s cross-examination of the police officer was a “thick, black plastic bag” which when rustled sounded quite different to the sound in the relevant section of the audio. She also claims that when compared with the written transcript, “[t]he rustling of plastic is out of place”.
Thus, in summary, bearing in mind the mother could not find on the audio recording the fourth piece of data allegedly missing, the only difference between the audio recording and the transcript is the absence of a rustling sound. However, we do not consider that to be of any significance or indeed supportive of the allegations the mother makes.
As a result, the mother then consulted another “Audio engineering technician” about “how audio is constructed and how possible it is to make alterations to it.” The mother says that she was told that “it is possible”, but she subsequently ran out of time to again listen to the audio to test what the engineer told her.
We note the following in relation to this evidence:
a)The “quality team” of the contractor, Auscript, checked the audio in response to a complaint by the mother, and verified that the transcript in relation to the third alleged missing piece of data is “true to what was said in court”.
b)In relation to the first alleged “data gap”, we note that according to the transcript, on 22 August 2012 his Honour commented that much of the further affidavit of the mother of 24 July 2012 “contains inadmissible nonsense”, and subsequently on that same day, his Honour said in relation to certain affidavit material relied on by the mother, that “[i]t seems to mostly contain inadmissible drivel to me in the nature of a character reference …”.
c)In relation to the third alleged “data gap”, we note that the relevant part of the cross-examination of the police officer by Ms Merkin commenced on 27 August 2012 (at page 171). Then there is the cross-examination of the mother by counsel for the ICL on the next day (28 August 2012), where this topic is pursued (at page 350). However, there is no discrepancy between the audio recording and the transcript, (save and except of course the rustling sound which we have found to be of no significance).
It has not been established to us that anybody has amended or edited either the transcript of this hearing or the audio of this hearing before it has been transcribed.
The particular concern that we have about the conduct of Ms Merkin is that despite the mother in effect no longer pursuing the claim that the transcript had been edited or amended, and limiting the claim in her evidence to an allegation in relation to the audio recording, her counsel has, as referred to above, pursued both claims, and most troubling, has suggested that the trial judge may have been involved in this.
In these circumstances we propose to have the Appeals Registrar forward these reasons for judgment and the relevant part of the transcript of the proceedings before us to the Bar Association of Queensland for them to take whatever action they consider appropriate.
The application to adduce further evidence
Apart from the further evidence relating to Ground 9, which we admitted by consent, we are not persuaded that the balance of the further evidence should be admitted under s 93A(2) of the Act.
The relevant principles governing the admission of further evidence are well settled. For example, in the High Court decision of CDJ v VAJ (1998) 197 CLR 172, the plurality said this at 201:
109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111. Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court’s jurisdiction is neither purely appellate nor purely original. In Attorney-General v Sillem (1864) 10 HLC 704 [11 ER 1200] Lord Westbury LC pointed out that “[a]n appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below”. Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal. Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a “trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence”. Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
…
(Footnotes omitted)
As referred to above, the further evidence sought to be led comprises evidence of matters that occurred prior to the hearing before the trial judge but that were not raised before his Honour, and evidence of an updating nature as to what has occurred since his Honour’s decision.
We are not satisfied that the evidence of matters that arose prior to the hearing would “demonstrate that the order under appeal is erroneous”. We are also concerned about two other matters. First, it is quite apparent that much of what is sought to be adduced as further evidence is not only controversial, but it may not be admissible. For example, both the counsel for the father and the counsel for the ICL alerted us to instances where the annexures to the affidavit do not necessarily support what is contended for in the affidavit. Secondly, it seems that in respect of some of the material the mother brought it to the attention of her barrister who recommended against presenting the evidence before
his Honour, and as a result it was not adduced. That is clearly a matter that supports our refusal to receive this evidence.
In relation to the updating evidence we are also not satisfied that that evidence would “demonstrate that the order under appeal is erroneous”. Further, that evidence suffers from the same difficulties referred to above, namely it is apparent that a good deal of that evidence may not be admissible, and in any event it is clearly controversial.
Finally, we observe that with the updating evidence the more appropriate avenue if that evidence indicates a sufficient change of circumstances is for either party to take the matter back to the trial judge seeking a variation of the orders.
In these circumstances we propose to dismiss the application insofar as it seeks to adduce evidence beyond what is relevant to Ground 9.
Conclusion
Having found no merit in any of the grounds of appeal the appeal must be dismissed.
Costs
At the conclusion of the hearing we received submissions from the parties as to the question of costs depending on the result of the appeal.
In the event that the appeal was dismissed the father sought that an order for costs be made in his favour. As part of any costs order though he sought that the costs in relation to Ground 9 of the Notice of Appeal be assessed on an indemnity basis.
We consider that an order for costs should be made in favour of the father. The mother has been wholly unsuccessful in the appeal and the father has therefore been put to considerable unnecessary expense by way of legal costs incurred in responding to that appeal.
The mother opposed any order for costs. Through her counsel the mother puts that her financial circumstances are poor; she is studying full-time and receiving Austudy, and she and the children live with her parents. However, the father is not necessarily in any better financial position; he is attempting to start up a business and he is reliant on the minimal income of his partner to meet expenses.
Although the respective financial circumstances of the parties are required to be taken into account in any application for costs, and we do so, we nevertheless consider that the lack of success in the appeal and the consequent unnecessary costs incurred by the father are circumstances that plainly justify an order for costs being made. We observe that it has often been said by the Full Court that impecuniosity is no bar to making an order for costs where such an order is otherwise justified (D & D (Costs) (No 2) (2010) FLC 93-435).
As to the application to assess the costs incurred in relation to Ground 9 on an indemnity basis, that too was opposed by the mother.
The relevant authorities tell us that the usual approach of calculating costs on a party/party basis should only be departed from where there are exceptional circumstances (Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248, at 256; Kohan & Kohan (1993) FLC 92-340, at 79,614; Yunghanns v Yunghanns (2000) FLC 93-029, and D & D (Costs) (No 2) at [25]-[29]). There have been attempts to provide examples of circumstances that would warrant the awarding of indemnity costs (e.g. Colgate-Palmolive Co v Cussons Pty Ltd; Munday v Bowman (1997) FLC 92-784) but it is accepted that the categories of such circumstances are not closed (Yunghanns, at [31]).
Here counsel for the father relies on the circumstance that Ground 9 is not a ground of appeal at all, and it was always liable to be struck out. Further, it is suggested, and in our view correctly, that that would have been known by the mother and her legal advisers. Nevertheless, it needed to be responded to, which it was, and significantly, because it was pursued by Ms Merkin, it took up unnecessary court time. There is also the circumstance adverted to above that the submissions in support of this ground contained outrageous allegations against the trial judge and/or other officers of this court. In short, the ground should not have been pressed and certainly the allegations in support of it should never have been made.
We are satisfied that there are exceptional circumstances here and an award of indemnity costs is justified.
As to the payment of costs by the mother, we were informed that the parties still have their property settlement proceedings on foot, and Ms Merkin submitted that it would be appropriate that if costs were to be awarded they be payable when those proceedings are finalised. We are content to adopt that submission.
In relation to the ICL, Ms Kirkman-Scroope indicated that if the appeal is dismissed then no order for costs is sought.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray and Strickland JJ) delivered on 18 June 2014.
Legal Associate:
Date: 18 June 2014
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