Carpenter & Lunn - [2008] FamCAFC 128

FAMILY COURT OF AUSTRALIA

CARPENTER & LUNN

[2008] FamCAFC 128

FAMILY LAW - APPEAL – Application to adduce further evidence – application allowed

FAMILY LAW - APPEAL – From decision of Family Court judge – CHILDREN – Expert Witness – where expert misapprehended the chronology – where misapprehension contributed to adverse conclusions by the expert concerning the credibility of the wife and her mother – role of the expert witness – appeal allowed – matter remitted for rehearing

FAMILY LAW - CHILD ABUSE – Emotional abuse

Evidence Act 1995, s 76(1), s 80, s 135
Family Law Act 1975, s 4, s 61DA, s 64D, s 69ZT, s 93A(2)
Federal Proceedings (Costs) Act 1981
Family Law Rules 2004, r 15.59

CDJ v VAJ (1998) 197 CLR 172
Hall and Hall (1979) FLC 90-713
HG v Queen (1999) 197 CLR 414
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Noetel and Quealey (2005) FLC 93-230
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354

APPELLANT:

Ms Carpenter

RESPONDENT:

Mr Lunn

INDEPENDENT CHILDREN’S LAWYER:

Independent Children’s Lawyer

FILE NUMBER:

NCF

889

2005

APPEAL NUMBER:

2007

DATE DELIVERED:

19 August 2008

PLACE DELIVERED:

Perth

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Boland and Thackray JJ

HEARING DATE:

11 and 12 December 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

13 March 2007

LOWER COURT MNC:

[2007] FamCA 196

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Goodchild

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT:

Mr Coyle

SOLICITOR FOR THE RESPONDENT:

The Family Law Firm

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Cleary

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

Orders

(1)That the application to adduce further evidence be allowed.
(2)That the appeal against the orders of the Honourable Justice O’Ryan made on 13 March 2007 be allowed.
(3)That, subject to order 4, the orders made on 13 March 2007 be discharged.
(4)That discharge of the orders made on 13 March 2007 be stayed until the matter is listed before a judge at first instance.
(5)That the matter be listed before a judge at first instance as soon as possible to determine any application for interim parenting orders and/ or other procedural orders necessary for a rehearing by a judge other than the Honourable Justice O’Ryan.
(6)That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal against the orders made on 13 March 2007.
(7)That the Court grants to the respondent husband and the Independent Children’s Lawyer costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent and the Independent Children’s Lawyer in respect of the costs incurred by the respondent and the Independent Children’s Lawyer in relation to the appeal against the orders made on 13 March 2007.
(8)That the Court grants to each party and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party and the Independent Children’s Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party and the Independent Children’s Lawyer in relation to the rehearing referred to in paragraph 5 of these orders.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 49 of 2007
File Number: NCF 889 of 2005

Ms Carpenter

Appellant

And

Mr Lunn

Respondent

REASONS FOR JUDGMENT

Ms Carpenter has appealed against orders made by O’Ryan J in March 2007 concerning her children, [G] and [I]. The appeal is opposed by Mr Lunn, who is [G’s] father and [I’s] stepfather. For convenience, we will refer to the parties as “the husband” and “the wife”.
The orders provided for:
·    the boys to live with the husband;
·    the husband to have sole parental responsibility;
·    the wife to spend three hours with the boys on alternate weekends at a supervised contact service (as well as one supervised visit of up to four hours every four weeks away from the contact service); and
·    the wife to meet the costs of supervision.
No provision was made for the periods of time the wife spent with the children to become unsupervised at any time in the future, although the orders did allow the wife such additional time with the boys as the husband might permit after the expiration of 18 months.

Terminology

The proceedings were instituted prior to the commencement of the Family Law Amendment (Shared Parental Responsibility) Act2006 but O’Ryan J delivered judgment after the Act came into effect. The new legislation replaced the legal concept previously known as “contact” with the concept of a child “spending time” with someone. The legislation, however, does not prohibit the use of the noun “contact” in its everyday sense. In these reasons, we propose to use “contact” interchangeably with expressions such as “spend time with”. In doing so, we have not ignored the legislative intent, but rather have avoided the linguistic gymnastics that would otherwise have been necessary.

Background

The following background is largely drawn from findings made by his Honour; however, we will also refer to other uncontroversial matters to assist understanding of the relevant chronology.
At the time of trial, [G] was aged 5 and [I] was 11. The wife was aged 32 and had casual employment [in the hospitality industry]. The husband was aged 34 and unemployed, but planning to resume work as a contractor.
The wife was born in [a foreign country] but came to Australia before her first birthday. Her mother, [the maternal grandmother], was the daughter of a [senior figure]. Her European father, now deceased, had married her mother prior to the family coming to Australia. We will refer to the wife’s mother as “[the maternal grandmother]”.
Soon after leaving school, the wife met a [Mr R], with whom she had a relationship for some years. She fell pregnant with [I], but then left [Mr R] and moved to Perth where [I] was born in November 1995. [Mr R] has only ever seen [I] twice. He was aware of the current proceedings but chose not to participate.
During the time the wife was living in Perth, the husband moved into the Newcastle neighbourhood where [the maternal grandmother] lived. [The maternal grandmother] decided he would be a suitable spouse for her daughter. She arranged for them to meet in late 2000 and they immediately commenced living together in Newcastle The wife fell pregnant soon afterwards and [G] was born in October 2001.
In April 2002, the wife took [I] to the doctor, claiming the husband had kicked him in the testicles. She also claimed the husband had struck [I], causing him to knock his head against a television. The doctor who examined [I] saw no sign of injury. The husband admits he “kicked [I] in the bum”, but claims he never touched the child again.
In January 2003, [G] was burned with boiling water which the husband had left in a container on a change table. [G] still bears the scars from his burns today. Although she had not witnessed the incident, [the maternal grandmother] told hospital staff she believed the husband had deliberately injured [G]. An investigation was carried out by the Department of Community Services (“D.O.C.S.”), but nothing eventuated.
The husband recalls that the parties’ relationship began to “fall apart” after [G] was burned. They separated for about a month in July/August 2003; however, they were able to resolve their differences and were married in September 2004.
In March 2005, [the maternal grandmother] went to Perth for an extended holiday. The husband and wife ceased cohabitation shortly after her departure, although the husband recalls he had decided to end the relationship prior to her leaving.
The husband spent time with the boys up until June 2005. He said he continued to see the wife most weekends and telephoned her every night; however, he claims she suddenly became cold towards him around the time [the maternal grandmother] returned from Western Australia in June 2005.
A week after [the maternal grandmother] returned to Newcastle the wife obtained an Apprehended Violence Order against the husband, arising out of his alleged verbal abuse. The husband was not served with the order until about 7 July 2005.
On 22 June 2005, the husband’s solicitor wrote to the wife advising that the husband was happy for the children to continue to live with her, but felt it best they find a residence away from [the maternal grandmother’s] “influence”. The husband requested time with the children each alternate weekend and each Wednesday evening.
On 26 June 2005, the wife told the husband the contact arrangement was not working and he would never see [G] again. On the following day the wife made what his Honour found to be the first notification to D.O.C.S. of alleged sexual abuse of [G]. The husband’s contact with the boys continued into July 2005, but the wife then terminated contact.
On 25 July 2005, the wife commenced seeing a social worker at Sexual Assault Services. Two days later she signed a statement for the police in which she claimed that the husband had sexually abused her during the relationship and had also sexually abused [G] for three years, as well as physically assaulting [I] in 2003 and 2004. She also said the husband had burned [G] in January 2003 “by pouring hot water on his left arm”.
The husband commenced proceedings in the Federal Magistrates Court on 8 September 2005. He sought final orders for both [I] and [G] to reside with him and for the wife to have unsupervised contact on alternate weekends, half the school holidays and special occasions. On 22 November 2005 the wife swore an affidavit in which she made a variety of allegations about the husband. The affidavit was drafted by her then legal representative. We were not initially provided with a copy of this affidavit as the wife did not rely upon it at trial. However, his Honour said he proposed to read the affidavit; the Court Expert made reference to it when drawing an adverse inference concerning the wife’s credibility; and portions of the affidavit were put to the wife in cross-examination. In these circumstances, we considered it appropriate, after the conclusion of argument, to obtain a copy of the affidavit.
In paragraphs 36 to 44 of the affidavit the wife said inter alia:
In February 2004 on a date that I do not recall I had been out side hanging out the washing. As I came back to the house I went to the window to see what the applicant was doing… I observed that [G] was between the applicants legs sucking his penis. I the quickly went into the room and as I entered the applicant pushed [G] off him…On seeing this, I said to the applicant words to the effect, “why is your fly undone?”…The Applicant said nothing in response. I then observed that [G] had a clear jell-like substance around his mouth and a pubic hair on his lips…I then said to the Applicant words to the effect, “what is this, what have you been doing to him?”…The Applicant was again silent and got up and walked out of the house and had a cigarette outside…As the Applicant had left the house, I attended to [G] so I described the smell from [G] as a sexual smell…I did not continue to confront the Applicant in relation to this matter as I am very scared of the Applicant, having observed and had the Applicant’s anger directed towards me in the past. I was very fearful the Applicant would again be violent towards me.
The wife went on to say in paragraphs 45 to 49:
In January 2005 [later corrected by her to read 2004] on a date that I do not recall, at approximately 7 am, I went in to [G’s] bedroom and saw that the Applicant was in bed with [G]. I observed that [G] had been vomiting in the bed. However, [G] had not been sick in the evening, which made me suspicious as to what it was occurring. When I approached [G] I noticed that a pubic hair was in [G’s] mouth…I am extremely concerned for the safety of both my children and, in particular, [G] as I believe the father has been sexually interfering with [G]…I am also very concerned for the safety and wellbeing of my children because of the abusive and violent nature of the Applicant…Toward the end of our relationship I would not let the father be alone with the children even when we were residing together. I did this because I was concerned about what I believed had been sexual abuse of the children by the applicant and the increasing violent nature of the applicant.
On 13 December 2005, orders were made for the husband to have a few periods of daytime contact in December 2005 under the supervision of his mother and grandmother.
On 22 December 2005, the wife made a further report to the authorities that the husband had sexually abused [G]. In early February 2006, the Joint Investigation Response Team (“J.I.R.T.”) wrote to the husband and told him the sexual abuse complaint had not been substantiated. In fact, the Team concluded that [G] was at emotional risk of harm from the wife because of her “queuing [sic] the child to make claims and [her] repeated reports of abuse to the Department of Community Services”. (It is not a matter of controversy that J.I.R.T. includes representatives of D.O.C.S. and [the] Police.)
On 14 February 2006, orders were made for the husband to have contact with the children for two hours each alternate weekend at a supervised contact service.
On 27 February 2006 an order was made for the appointment of [a psychologist] as a Single Expert to provide a report for the Court on a variety of matters. [The Court Expert] is a clinical psychologist. We will refer to her as “the Court Expert”.
In March 2006 [the maternal grandmother] obtained an interim Apprehended Violence Order against the husband.
On 2 April 2006 the wife took [G] to an after-hours medical service, alleging he had sustained sore ribs and chest after being thrown in the air and caught by the husband during the contact visit on the previous day.
The parties, [the maternal grandmother] and the boys were interviewed by the Court Expert on 6 April and 14 April 2006. The husband advised the Court Expert he wanted to share the care of the children with the wife on a week-about basis. The wife did not want the husband to have any contact with the children.
At the time of her first interview on 6 April 2006, the wife provided a handwritten statement to the Court Expert. In that statement she said inter alia:
In 2004 when I was feeding [G] at the table he said “[Mr Lunn] [ie the husband] put his willy in my mouth. I suck [the husband’s] willy”. I took this seriously, and Thinking back, believe it to be True; eg; one time I saw [the husband] & [G] on a Lounge & [the husband’s] fly was open, I smelt [G’s] mouth & I thought I smelt seimen & [G] had a hair in his mouth. I suffered shock & disbelief. [sic]
On 27 April 2006 the Court Expert telephoned the D.O.C.S. Helpline and expressed concern about the children remaining in the care of the wife. She then contacted J.I.R.T. to advise that she had made a report to the Helpline. The Court Expert was informed that an assessment undertaken in February 2006 had concluded there was no evidence to substantiate the sexual abuse allegations in relation to [G] and that [G] had been found to be at “Emotional Risk‑of‑Harm” from the wife.
On 1 May 2006, the Court Expert finalised her report to the Court in which she recommended that [G] be placed with the husband as soon as possible and that the placement of [I] be determined by D.O.C.S.
The Court Expert concluded in her report that it was “most likely” that the wife and [the maternal grandmother] suffered from a psychiatric condition known as “Shared Psychotic Disorder”. The only other explanation postulated in her report for the “extremely malevolent presentation” of “these women” and their “extraordinarily malicious and dishonest” claims was that they were deliberately alienating the children from the husband with a view to them rejecting him.
Orders were made on 8 May 2006 requesting D.O.C.S. to intervene in the proceedings urgently. On the following day, orders were made for the children to be removed from the wife’s care. The orders provided for both children to live with the husband and have supervised contact with the wife for two hours each alternate weekend. On 9 May 2008, [the maternal grandmother] was made a party to the proceedings.
On 5 June 2006, an order was made for [a] consultant psychiatrist, to carry out an assessment of the wife and [the maternal grandmother]. His appointment followed a recommendation from the Court Expert that her diagnosis of “Shared Psychotic Disorder” should be confirmed or refuted by a psychiatrist.
After assessing both the wife and [the maternal grandmother], [the psychiatrist] concluded that neither suffered from any type of psychiatric disorder or mental illness. He expressed the view that the allegations made by the wife and [the maternal grandmother] against the husband “appear to have been immature utterances at a time of marital turmoil”.
After receiving a copy of [the psychiatrist’s] assessment, the Court Expert provided a second report dated 27 November 2006. This was prepared after the Court Expert had conducted further interviews and seen the boys again. The Court Expert noted great improvement in both boys following their placement with the husband.
By this stage, the wife had informed the Court that she was not pursuing her allegations of sexual abuse against the husband. She had also recanted the claim made in the affidavit prepared by her former legal advisors that she had seen [G] sucking the husband’s penis. The Court Expert declared in her second report that she had been “hoodwinked” by the wife and [the maternal grandmother] during the first round of interviews. She recommended not only that the children remain with the husband but that any contact between the children and the wife continue to be professionally supervised.
The trial took place in February/March 2007. The wife was unrepresented, but had limited assistance from a retired barrister who acted as a McKenzie Friend. The husband was represented by his solicitor and the Independent Children's Lawyer was represented by counsel. The Independent Children's Lawyer joins with the husband in opposing the wife’s appeal.

The Court Expert’s first report

Although there were many grounds of appeal, counsel for the wife conceded that the outcome would largely turn on whether the trial Judge erred in accepting and/or in giving undue weight to the reports of the Court Expert. As will become apparent, the Court Expert’s views strongly influenced the relief sought by both the husband and the Independent Children’s Lawyer and were of great importance in the ultimate decision. In these circumstances, extensive citation from the Court Expert’s lengthy reports is unavoidable to ensure a proper understanding of the main thrust of the appeal.

The Court Expert was given detailed and wide terms of reference. These required her to report, inter alia, on the “psychological profiles of the parties”. The Court Expert was also requested to report on:
whether the children are at risk of physical or psychological harm, including sexual abuse, from either of the parties or other persons, including an investigation of the concern expressed by the mother that the children may be at risk of physical and psychological harm, including sexual abuse from the father and … if the children are at risk of such harm, how to protect the children from that risk.
The Court Expert’s first report commenced with a “brief history”. This made reference to the parties having separated in March 2005; the husband’s contact with the children ending in June 2005; and the wife’s statement to the Police in July 2005 in which she claimed that the husband had sexually abused [G] for three years. The report went on to record that on 9 September 2005, “further claims of sexual abuse were made”. (We note these further claims were not made by the wife but by [the maternal grandmother] in support of an application for an Apprehended Violence Order.)
The Court Expert then described her interview with the wife. She said:
[Ms Carpenter] [the wife] was friendly, related warmly and seemed anxious to please. She presented in a very child‑like manner, with a regressed voice. She seemed both emotionally and cognitively immature and somewhat lacking in insight. She may have a degree of developmental delay, although no formal testing of this was undertaken.
[The wife’s] narrative was often disorganised and digressive and often contained a lot of repetition and irrelevant detail.
The Court Expert, having recorded the wife’s version of the parties’ relationship, turned to the allegations of child abuse. The Court Expert’s analysis of these allegations is central to this appeal and we propose to set out this portion of her report in full. (The italicised portions in this and later citations are commentary made by the Court Expert. All underlining, bolding and block capitalisation is that of the Court Expert.)
When asked about their separation so soon after their marriage, [the wife] told me she had been suspicious about [the husband] sexually abusing [G] and, when [G] told her this, she believed him. She said, “I can’t live with a sex offender. It’s not healthy for us to be abused all the time”.
When asked about her “previous suspicions”, [the wife] said that, when [G] was “less than 15 months”, [G] and [the husband] were sitting on a lounge watching a DVD. [The wife] had come in and had seen [the husband’s] fly undone (unzipped). She said, “So, I [grabbed] [G]. I said, “Why is your fly down? What have you been doing?” ([The husband]) walked outside”.
[The wife] said she had smelt [G’s] mouth “and it smelled of semen”. The child also had a pubic hair in his mouth.
I sought to clarify this and asked whether [the husband] had his underpants still on. She replied he had jeans on. When asked if she could see his penis, [the wife] looked very confused, as though she had not expected to be questioned about the details of this incident and so was not prepared for it. After a long pause, she replied, “No. He’s like a fox. He’s very good at it. He’s a perpetrator”.
[The wife] said she knew [G] had been aged less than 15 months at the time of this incident because it occurred before his burns accident at age 15 months. She said [the husband] had inflicted second degree burns on [G] with boiling water “on purpose”. When asked why [the husband] would want to do this, [the wife] replied, “To get rid of him. He didn’t want the child. He wanted to get married first and then have a child”.
When asked why she had married [the husband] knowing that he had physically and sexually abused her child, [the wife] told me, “’Cause I had his child”.
[However, this seems very different to the account [the wife] gave of this alleged sexual abuse incident in her affidavit of 22.11.05, in which she claimed that, in February 2004 she had observed [G] between [the husband’s] legs sucking his penis. She had confronted [the husband], asking him why his fly was undone. She had observed a gel-like substance and pubic hair on [G’s] lips.]
[The wife] then described another alleged incident of sexual abuse of [G] by [the husband] when they were living at [Newcastle]. She said she was up at 5.00 a.m. to do some cooking and had checked on the children, who were sleeping. An hour later, she checked them again, as she “sensed something”. [G] was not in his bed but was in the marital bed with his father. [The husband] was awake and the child had vomited on the bed. She said, “My suspicion is that [the husband] put his willy in ([G’s]) mouth to make him vomit”.
She said she took [G] to the doctor and insisted that [the husband] accompany them. The doctor said [G] was fine. However, [the wife] said, in retrospect, she should have requested a DNA test “to check his semen”.
[The wife] said she now has to have weekly counselling because of these experiences. She said her Counsellor, [“the wife’s counsellor”], had told her the boys also needed such counselling because of what they have experienced. [The wife] began to cry, saying that [the husband’s] abuse of the boys has affected her physically and emotionally.
When asked, [the wife] said she had observed no other abusive incidents. She then immediately said that [G] told her, “[The husband] puts his willy in my mouth. I suck him”. [The wife] had told her Counsellor about this and J.I.R.T. had been contacted. However, when interviewed by J.I.R.T., [G] would not say anything. He would only shake or nod his head.
When asked how such a disclosure had come about, [the wife] said they were sitting at the dinner table when [G] spontaneously came out with these statements. She said the first time he had disclosed this abuse was the same day of the supermarket incident and that [the husband] had sexually abused [G] that morning.
When asked about the number of disclosures [G] has made, [the wife] told me, “He says it a lot. But only in the last couple of weeks. [G] punched [I] here (points to her own genital area) in his ‘private parts’. ([G]) only says it when there is supervised access. Q. After access. Q. He said, ‘I don’t want to suck [the husband’s] willy any more”. [The wife] said [G] first disclosed sexual abuse in 2004 and has done so about twice a month since then. She told me, “Sometimes, he says, when he plays with [I], ‘Suck-a-willy, suck-a-willy’ (demonstrates in singing tones). He doesn’t know what he’s saying”.
When asked whether she thought [G] was still being sexually abused on contact visits, [the wife] told me that, at Christmas, [the husband’s] mother had allowed [the husband] to take [G] to the toilet unsupervised.
As way of explanation, [the wife] said that [the husband’s] mother and grandmother had “been through this” (child sexual abuse) and that it has happened in their family. When asked for details, [the wife] told me, “Once, when [the husband’s] mother and stepfather came over and [the stepfather] said, ‘Don’t hurt [the husband]’. My mother invited [the husband’s] mother for coffee and ([the husband’s] mother) said to my mother, ‘[The husband] has a past with his (biological) father’. My mother said, ‘We don’t want to know about it. It’s the past and [the husband] and [the wife] are getting married for the future!’ ”
When asked, [the wife] said she does not really know what happened because [the husband] will not talk about it. However, [the wife] was convinced that this conversation between the two grandmothers indicated that [the husband] had been sexually abused by his biological father when he was a child.
When asked, [the wife] said she has no doubts at all that [the husband] has sexually abused [G], because, “My child told me and I believe him”.
The Court Expert then discussed the wife’s version of the husband’s contact with the boys after the separation. Included in this were allegations that the husband had threatened the wife and had squeezed [G’s] neck during a contact visit. The wife also claimed that the husband had admitted to her over the telephone that he had sexually abused [G]. The Court Expert observed that notes made by the wife, which were provided during the interview, indicated that she had reported this alleged admission to the Police on 27 March 2006.
The wife was also reported as having “earnestly” advised the Court Expert that the husband will “murder us one by one. Even my mother. He called her an evil witch …” When the Court Expert asked the wife what made her think the husband wanted to kill them, the wife said “Because of all the stuff he said to us … That he’d hammer my mother. And he had a drill at me when he hugged me. And, on tape, he says ‘You’ll pay for this’ ”. The Court Expert also reported that the wife claimed that the children would be much happier if they did not have to have contact with the husband and she had also said the children did not love the husband.
The Court Expert’s report then recorded a personal history given by the wife. In speaking of her own mother, the wife said she “had arrived in Australia in a grass skirt and a sarong and her father ‘taught her everything’ ”. The wife said that she still has to help her mother fill in forms.
After discussing other issues associated with the wife’s personal history, the Court Expert noted:
1.[The wife] did not talk with me about 2 incidents of alleged abuse of [I] by [the husband] which have been reported to others, namely:
*[The husband] allegedly kicking [I] in the genitals;
*[The husband] pushing [I], causing him to strike his head.
2.However, [the wife] spontaneously, without explanation, gave me a report of the G.P., [“the GP”] (see Appendix 3). In this report, [the GP] states that [the wife] presented [I] on 23.5.05, claiming that [the husband] had physically abused [I] in the ways outlined above. She said these abuses had occurred on 18.4.05 (i.e. 5 weeks previously). The doctor noted no bruising on the child.
During her oral evidence, the Court Expert corrected the dates she had underlined in the paragraph recited above. The first date of 23 May 2005 was corrected to 21 April 2002 and the second date of 18 April 2005 was changed to 18 April 2002. (We note that 23 May 2005 was the date of the report provided by the doctor and that his report, which was annexed to the Court Expert’s report, clearly indicated that he had seen [I] on 21 April 2002). As a consequence of these corrections, the Court Expert’s comment concerning the doctor’s visit having been five weeks after the alleged abuse also had to be withdrawn.
The significance of these corrections, inter alia, is that the wife did, in fact, bring to the attention of the Court Expert during interview the allegations she had made about the husband kicking [I] in the genitals and causing [I] to strike his head. We note that these allegations were also contained in the written statement the wife gave to the Court Expert at the interview.
The Court Expert went on to note that the wife did not tell her she had very recently taken [G] to an after-hours medical service, where she had alleged that the boy had suffered injuries as a result of being thrown in the air during a contact visit. However, the Court Expert did record that the wife gave the relevant medical report to her on 14 April 2006 and that the wife had written on the document that the incident had been reported to D.O.C.S. on 2 April 2006. The report from the Court Expert continued:
3. …The doctor’s report indicated that, although the mother claimed [G] had sore ribs and chest, when the child was asked by the G.P. where he was sore, he pointed to his abdomen! The GP reports that [I] was also present during this consultation and told the doctor that [G] had been thrown in the air 10 times …
The Court Expert went on to record that the wife had also not advised her at the interview that she had reported the husband’s alleged sexual abuse of [G] to D.O.C.S. on 22 December 2005 following a series of supervised contact visits. She also noted that in an affidavit sworn in February 2006 the wife had claimed that [G] had not disclosed the sexual abuse in his interview with a D.O.C.S. worker because the husband had threatened he would kill him with a gun if he told the truth. The Court Expert observed that at no time did the wife tell her that the husband had threatened [G] with a firearm.
The Court Expert then moved on to her assessment of the husband. She observed that the husband was a “personable young man” and that “his narrative was organised and to the point”. She also noted that he did not seem “overly‑negative” towards the wife and seemed “more bemused than angry about the allegations, which he denied”.
The Court Expert recorded the husband’s version of what had occurred when [G] had been burned with boiling water. He told the Court Expert that “it had been a terrible time for them all but particularly for [G] … he said he and [the wife] were so upset that they had attended counselling”.
The Court Expert then set out the husband’s views on matters relating to the relationship, the separation and contact with the children, as well as his views in relation to the abuse allegations.
After acknowledging the difficulties that had existed in the relationship, the husband told the Court Expert that he thought that if he and the wife got married, this would fix their problems, but once they were married, their relationship was “almost over in weeks”. The Court Expert then recorded the following concerning the husband’s account of the separation:
[The husband] told me he had had financial difficulties, so he was working long hours, leaving [the wife] home alone, “bored and annoyed”. She had started “another life” without him and began to socialise.
[The husband] said that [the wife’s] mother went over to Western Australia from January to June, 2005. On the night before she went, [the husband] was invited over to dinner. [The husband] said [the wife] and [the maternal grandmother] were saying “strange” things about him in his presence, e.g. that he had A.I.D.S.; that he was having affairs. He said this was “insulting to my character” and he decided then that he would leave the relationship and he did so in the first week of Mark, 2005. [sic]
The Court Expert noted the husband’s desire to have “shared parenting of the boys – one week on and one week off”. He told the Court Expert he had only applied for an order for residence because he realised the wife “was trying to cut me out and I thought (the children) could have equal time with both of us then”.
The Court Expert’s report then turned to matters arising from the interview with [the maternal grandmother]. The Court Expert observed that she “presented as a woman of [foreign] appearance, with [distinctive features]”. She went on to say:
She was friendly but very intense in the way she related. [The maternal grandmother] was extremely obsequious with me and thanked me many times and profusely throughout the morning’s interviews. [The maternal grandmother] appeared to be rather simplistic and primitive in her thinking but did not appear to be formally developmentally delayed, although no formal testing was undertaken. She spoke with a marked accent.
The Court Expert noted that [the maternal grandmother] had given her a document at the interview. When the Court Expert asked why she thought she was seeing her, [the maternal grandmother] replied “for my grandsons’ safety and protection. They are in danger from this man, [the husband]”. The report continued:
When asked about this danger, [the maternal grandmother] told me that one day (nominated in the document as 19.10.04), she was minding her grandsons while their mother went to the shops. [G] had sat on her lap and began to cry, telling her, “[The husband] is my best friend. I suck his willy and he put his willy in my mouth”.
The Court Expert acknowledged in her oral evidence that the date nominated in the document provided by [the maternal grandmother] was not 19 October 2004, as she had recorded, but rather 4 December 2004. In any event, the Court Expert noted that [the maternal grandmother] told her the date in question was the first time she had heard of the allegation of sexual abuse. The report continued, “when asked whether she was the first person to whom [G] had disclosed, [the maternal grandmother] said his mother already knew”. She then added that “she and [I] had gone to the Police Station to report this disclosure”. At this point in her report, the Expert interrupted her discussion of the interview with [the maternal grandmother] to note that “Although [the maternal grandmother’s] statement claimed this first disclosure to her was in October 2004, J.I.R.T. records state that this disclosure to [the maternal grandmother] and [the wife] was only made in July 2005”.
When asked later in the interview why she believed the husband was dangerous [the maternal grandmother] said “The way he treat children. He poured hot water on my grandson (cries). Something in him, it’s evil. You don’t know him.”
Later in the interview, when asked whether she thought the boys loved their father, [the maternal grandmother] shook her head and said:
I don’t think so. [G] calls him ‘[by his first name]’, not ‘Dad’. [The husband] is not a good Dad. They don’t know him. He abused my grandson. That’s the kind of man he is. I am a Christian. There is some kind of Satan in [the husband].
The Court Expert then asked [the maternal grandmother] whether she had any fears for her own safety, to which she replied “earnestly”:
I’m very scared. I’m the first one to be murder(ed). He want to kill me. He say he’ll hammer my head. (Q.Why would he say this?) Because I said he done it on purpose and I exposed my grandson. He will get rid of my grandson ‘cause they expose him ([the husband]).
The Court Expert then noted that when she asked [the maternal grandmother] about the incident when she was allegedly threatened by the husband with a hammer, [the maternal grandmother] responded “with some agitation”:
After [G] was burn(t), he say that. [The husband] is a violent man. (Q.) He punches holes in people’s houses. He done something in my yard. Put his things in it. I told him to take it (out). He got electronic cord and said he’ll wind my neck. And he took off. The words he say, ‘He’ll hammer my head’. ‘He’ll wrinkle my neck’. ‘He’ll murder me’.
The Court Expert again paused in her recitation of her discussion with [the maternal grandmother] to note:
[[The maternal grandmother] did not appear to see the overt contradictions in some of her accounts, e.g. claiming that [the husband] had threatened her with a hammer after [G] was burnt (2003), although previously telling me that this hammer threat was due to her “exposing” [the husband’s] sexual abuse of [G] (which was not reported until mid 2005).]
Further into the interview, the Court Expert asked [the maternal grandmother] to clarify the incident when [G] was burned. When she asked whether she had made allegations to hospital staff about the injury being deliberately inflicted, [the maternal grandmother] responded:
Yes, I told the Social Worker but, because I didn’t see it (happen), they can’t judge [the husband]. But, because they want to marry, they didn’t charge [the husband].
…
I know he did it. I’m a Christian. I can sense (it). He’s a murder(er), an evil Satan, a criminal.
…
When all this (court case) cool down, he will get us. He will murder me, ‘cause I know him. He doesn’t like me. A person like that never forgets. He will do something. ‘Cause we expose him.
At the end of her recitation of her conversation with [the maternal grandmother], the Court Expert made the following observation:
[[The maternal grandmother] related her fears of [the husband] as though she genuinely believed them, despite the inconsistencies of some of her claims. She seemed fearful and quite pre-occupied with thoughts for her own safety. [The maternal grandmother] has recently taken out an A.V.O. against [the husband] in relation to these concerns.]

The Court Expert’s report then turned to her joint meeting with the wife, [the maternal grandmother] and the boys. After making some introductory remarks concerning the boys, the Court Expert recorded that the wife had shown her [I’s] latest school report and told her that she did not understand the marking system notations, “even though to me the reporting system seemed quite simple and was explained on the report”.
The Court Expert went on to record that [I] was “a quiet, well behaved child, ‘parentified’ in his manner … [G], on the other hand, presented in quite a chaotic manner, even for a 4‑1/2 year old”. Apart from observing that [G] was quite volatile and aggressive she also noted that he had “several prolonged periods of blank staring, which seemed like dissociative episodes”.
The Court Expert described remarks made to her by both the wife and [the maternal grandmother] in the presence of the children to the effect that the children were in danger when in the care of the husband. When the Court Expert told them it was not good to talk about such things in front of the children, [the maternal grandmother] replied that they did not do so. The Court Expert recorded “the children did not overtly react to such conversation, although it was apparent that [I] was listening intently”.
The Court Expert then reported on her interview with [I]. She said “there was a joylessness about [I] which was quite concerning”. When she asked [I] if anyone had told him how he should answer her questions, [I] responded “No‑one said anything, except [the husband] burnt [G’s] [body]. He had second degree burns”. He also told her that it had been “scary” living with the husband because, on two occasions the husband had “kicked me in the balls with his working boots, then he hit me across the head”. [I] denied ever having had any good times with the husband but did concede that [G] and his father “get on good” and that [G] liked seeing his father. Asked what his mother felt about the husband [I] replied:
(She thinks) that he’s bad, evil. (Q. Why is this?) ‘Cause we go to church every Sunday and he doesn’t want to come. He stays at home and sleeps. (Q. Is that evil?) That’s evil.
When the Court Expert asked [I] how he felt when [the maternal grandmother] was talking about the husband during the joint interview, he said he had not been listening. The Court Expert paused to note that it seemed apparent to her that he was “listening very closely”.
[I] went on to speak about his concerns about having contact with the husband. Amongst other things he said, “I have bad thoughts about him … The ways he might try to kill me … With an axe or a gun or a piece of wood”. When he was asked whether anyone else knew about these thoughts he said that his mother and grandmother knew about them, but when asked by the Court Expert what they said, he responded that they told him to “think of other things”.
The Court Expert then recorded observations of her interview with [G], who at the time was only 4½ years of age. When she asked [G] why he was seeing her that day he replied that he needed to talk to her “about [the husband] hurting me”. When asked how he hurt him, he responded “he kick me and scratch me and bite me”. The Court Expert recorded that “despite the content of this conversation, [G’s] affect did not match this and his tone of voice was ‘parrot‑like’ ”.
When the Court Expert asked [G] about the scars on his arm, he responded “[The husband] burnt me. [The husband] poured the water on me and I was crying”. When asked about [I], [G] responded “([I]) likes [the husband] a little bit but I don’t. [I] wants to go to his house.”
The Court Expert then recorded her observations of her session with the husband and two boys. She observed that [G] was excited and jumped into his father’s arms. [I] on the other hand did not look up when the husband greeted him “warmly” and he looked “joyless”. The Court Expert reported:
The difference in [G] when seen with his father was astonishing. He chatted non–stop to [the husband], with much laughter and smiling. His mood was much more even. [G] was much better behaved and less chaotic than he had been with his mother and even individually with me. There were no episodes of withdrawal or blank staring…
The Court Expert also noted that [I] gradually moved closer to [G] and [the husband] during the course of the meeting and appeared to want to join in the play. Although [I] remained “very quiet” he “smiled quietly and had some eye contact with [the husband]”.
The Court Expert next recorded the discussions she had with the wife’s counsellor at Sexual Assault Services and with a worker from D.O.C.S. who informed her of the assessment that had concluded that the children were at risk of emotional harm from the wife.
The Court Expert then set out her opinion. She began by saying:
This is a case in which the mother claims that she was a victim of domestic violence at the hands of her ex-partner and that this man also sexually and physically abused her children. She is entirely negative about her ex‑partner and wants his contact with the children stopped. In this, she is intensely supported by her own mother, with whom she appears to be in a very enmeshed relationship.
There is little evidence to support her claims of maltreatment of herself and her sons by the father and the “evidence” she gives for this is quite implausible. There are many contradictions in her claims and at times she has shown very faulty reasoning to come to conclusions about abuse. However, she seems to have little insight into the flimsiness of and absurdity of some of her claims and seems to hold these with intense conviction.
The father/stepfather, [the husband], presents as a gentle, well functioning young man. While he admits to kicking [I] in his bottom on one occasion (and expresses genuine remorse for this), he denies any other abuse of his son, stepson or [the wife]. [G] appears to have a very strong and affectionate attachment to [the husband] and does not present as having an abusive relationship with him. Although the mother claims the child has disclosed to her occasions of mutual oral sex with his father, [G] has not made these claims during interview with J.I.R.T. (on 2 occasions) or myself. As well, the claims by the mother/grandmother that [the husband] deliberately burnt [G] (then 15 months) by pouring boiling water on him seems absurd. He was treated at the time by a major hospital who made no report to D.O.C.S. about the possibility of non‑accidental injury (child abuse), even though the mother and grandmother were claiming to medical staff that this was the case.
The Court Expert then noted that [G], in particular, “parrots” the allegations of physical abuse and that his narrative had many “rehearsed” qualities to it. She went on:
This is an unusual case, because of the extremes of inconsistencies in the evidence and the very faulty reasoning given by the maternal parties to assert their claims of abuse Their reasoning for such claims seems very primitive and naïve.
The Expert continued:
As well, the TIMING of such claims is suspicious (see Appendix 1: Chronology). Even though the mother has now claimed that she was aware that [G] was being sexually abused by the age of 15 months, she did not report this at the time. The chronology is very interesting, in that the parents separated while the grandmother – a significant influence on the mother – was away interstate for 3 months. Contact seemed to go well after this. The grandmother then returned on 1.6.05 and, within a week, the mother (unbeknown at that time to the father) took out an A.V.O. against him. This A.V.O. stipulated that [the husband] had verbally abused [the wife]. At the same time, he reported that [the wife] had become “cold” towards him and contact was becoming difficult. [The wife] has stated that [the husband] had his final contact on 5.6.05. [The husband] sought legal advice and, on 22.6.05, a solicitor’s letter was sent to [the wife], requesting that a formal contact regime be set up. Within a few days of receiving this letter, the mother made a very detailed statement alleging sexual abuse of [G] by [the husband]; deliberate burning of [G] by [the husband] in 2003; claims that [the husband] had threatened [the maternal grandmother] with a hammer and that [the husband’s] parents had threatened [the maternal grandmother]. This was very different to the relatively benign claims that she had made to the Police about [the husband] only 5 weeks previously (during which time [the husband] had not apparently had contact with the children).
Over the period of this court case, further claims against [the husband] have been made, even though he has had no unsupervised contact since June, 2005. These include abuses of the children during supervised contact (with the mother making 2 reports to D.O.C.S.) and an A.V.O. being taken out on behalf of the grandmother.
…
There are 2 alternate explanations for such apparent falsification of claims, with such unusual presentation, although the mother’s/grandmother’s presentations may have elements of both. These 2 alternate explanations are:
1.On the surface, this could be viewed as a classic case of “Alienated” children, who claim (when seen individually and with their mother/grandmother) that they want no contact with their father/stepfather, despite showing the opposite behaviour when in his presence. On the surface, it could be suggested that the mother/grandmother are fuelling this “alienation” by their negative talk about the father in front of the children and their “cueing” of the children to reject him. If this was the scenario, then the claims by the mother and grandmother are extraordinarily malicious and dishonest, even for Family Court conflicts. If these are the operant dynamics, then it could be suggested that the unusual transparency of the falsifications may be due to the mother and grandmother’s limited intellectual potential and very primitive thinking. As well, the mother has a criminal record for Deception;
OR
2. The other explanation is that the mother and grandmother have a:
Shared Psychotic Disorder (DSM-IV)
(formerly known as a Folie-a-Deux psychosis). This Disorder revolves around a strongly held Delusion about [the husband], that he has harmed/mistreated the mother, grandmother and children in the past and is now intent on murdering them.
Such systematised beliefs in these women, especially the grandmother, could meet the criteria for:
Delusional Disorder, Persecutory Type (DSM-IV)
[The maternal grandmother] is a woman with rather simplistic and primitive thinking and is a keen member of a fundamentalist church. She appears to genuinely believe that [the husband] is “Satan”. She appears to genuinely believe that he has sexually and physically abused her grandsons. She appears to genuinely believe that [the husband] is intent on murdering her, her daughter and grandsons and is apparently terrified by these beliefs. She appears to believe that [the husband] may kill her himself; hire someone else to do so; or may kill them all in a way that will make it look like an “accident”.
Delusional Disorder is quite different to more classic psychotic disorders (e.g. schizophrenia) in that the delusion is non-bizarre (i.e. involves circumstances that could occur in real life); the person’s behavioural responses to the Delusion are appropriate (if the situation was true); and that other areas of functioning are relatively unimpaired.
The grandmother appears to hold these beliefs about [the husband] with significant conviction. She has little insight into the flawed “reasoning” for her beliefs and does not even try to modify the evidence to increase the credibility of her claims. She seems very fixed in these beliefs and will not brook any arguments to the contrary. The delusions appear to have become dominant in her life and she apparently lives in fear that she will be murdered by [the husband]. As well, [the wife’s] handwritten document (see Appendix 6) which she gave to me gives some indication into the pre-occupying and perseverative nature and intensity of her thoughts about [the husband].
This apparent Delusional belief system about [the husband] appears to have arisen in [the maternal grandmother] but now encompasses [the wife], who now holds similar views about her ex-partner. [The wife] (like [G]) “parrots” many of the descriptions about [the husband] adopted by her mother (see Appendix 6). This apparent “contamination” between the two women has probably arisen because of the closeness of the relationship between [the maternal grandmother] and [the wife] and likely due to [the wife’s] diminished cognitive capacity, her naivety and simplistic mode of thinking.
Delusional Disorder is extraordinarily difficult to treat because the person does not believe they have a problem. The person holds his/her beliefs with intense conviction, regardless of the facts. People with this Disorder tend to seek help from services such as the Police, D.O.C.S. and the legal system in order to “protect” them from their alleged persecutor, rather than from mental health services. This has apparently been the case with this family.
While, in my opinion, these women most likely have a Shared Delusional Disorder, it is essential that this diagnosis is confirmed or refuted by a Psychiatrist and an Opinion is sought from the Psychiatrist about the treatability options. However, if the diagnosis of Shared Delusional Disorder is refuted, then one alternatively is looking at an extremely malevolent presentation to explain such seeming deception in these women.
Unfortunately, in this case, the mother and grandmother talk endlessly about their beliefs and fears to the children. I witnessed the grandmother stating, in front of the children, that [the husband] is going to kill them and then make it look like an accident. Such talk must be terrifying to these children and should be considered as SEVERE EMOTIONAL ABUSE of them.
The Court Expert then recorded her concerns about the impact on the boys of being “bombarded” with suggestions that they are in danger from the husband. The Court Expert acknowledged there were no concerns about the wife’s physical care of the children or any issues of physical or sexual abuse involving her. However she concluded that “there are major concerns relating to EMOTIONAL ABUSE of the children”.
The Court Expert concluded:
This is a very difficult case indeed, in that the alienating dynamics seem due either to extreme malice in the maternal family or more likely due to a mental illness primarily in the grandmother but now also encompassing the mother. In either case, such dynamics are not very responsive to treatment.
The situation cannot continue, as both boys are suffering quite severe emotional abuse in the maternal home.
In my opinion, there should be a transfer of residency AS SOON AS POSSIBLE of [G] into his father’s care. There should be no unsupervised contact with the mother/grandmother until the Court/D.O.C.S. are assured that the mother’s/grandmother’s mental state has improved and that they will therefore desist from trying to enmesh the boy in their belief system. [The Court Expert’s recommendation for [I] was that his placement should be determined by D.O.C.S.]
The Court Expert appended a number of documents to her report. The first of these was a lengthy chronology setting out what she presumably saw as the critical dates. She repeated here the error identified above concerning the date on which the wife told the doctor that the husband had kicked [I]. She also included the following dates:
·7 June 2005 - “Mother makes first report to [a] Police Station.”
·22 June 2005 - the letter from the husband’s solicitor seeking regular contact;
·26 June 2005 - the wife refused the husband contact;
·27 June 2005 - the wife made a report to the D.O.C.S. Helpline regarding sexual abuse, with the matter being referred to J.I.R.T. on the following day; and
·26 July 2005 - the wife’s statement to the police concerning sexual abuse of [G].
As we have already noted, the first report of the Court Expert led almost immediately to the children being removed from the wife’s care and placed with the husband.

Wife’s retraction of allegations

After the children had been removed from her care, the wife swore an affidavit on 4 September 2006 in which she made comment on the report provided by the Court Expert. It will be noted in the following extracts from the affidavit that the wife emphasised that the allegations of sexual abuse had been made to the Police on 4 December 2004, i.e. before the separation of the parties:
Page 12         Affidavit of 22/11/05 – I didn’t ever say I observed [G] sucking [the husband’s] penis. I suspected [G’s] face was near the unzipped pants & I thought I smelt semen & [G] had a hair in his mouth. I have no record of this affidavit. The person who drafted it must have misunderstood the circumstances.
Also when [G] vomited when he was in bed with [the husband] – on these two occasions I did not really believe, or want to believe, that [the husband] would sexually abuse his own son. It was only after [G] told me and my mother on the same day, that I saw the importance of the other two events.
Page 11 Why did I marry [the husband], knowing he had sexually abused [G]? I married [the husband] in September 2004 and learnt of the sexual abuse in December 2004. I thought things would be better between [the husband] and me when we married.
…
Page 66         the following was omitted [i.e. from the chronology]:
4^th December 2004 – [The maternal grandmother] reports sexual abuse of [G] to [the] Police (see her statement of 12/04/06).
…
Page 68         25/8/05 – sexual offences on the CHILDREN. I did not at any time say that [I] was sexually abused. My solicitor got this wrong.
9/9/05 this was [the maternal grandmother’s] second complaint to the police re the sexual abuse of [G].
…
The wife went on to comment in the following terms on the Court Expert’s opinion that there were only two possible explanations for her allegations:
“There are 2 alternate explanations.” A third explanation would be that [G] WAS sexually abused. This would account for the disorganised, digressive & repetitious and irrelevant material offered to the counsellor in the 1.55 minute interview with me (see page 6 of [the wife’s] interview). I AM UPSET. I have no legal experience. I don’t know what is relevant and what is not. Answering questions on the spot is difficult & to tell you life’s history in 1 hour 55 minutes is impossible. Also I have not got good language skills. Please refer to “Annexure B” for a more accurate account of my background details.
The negative talk between my mother and me is a result of the sexual abuse of [G] and a genuine fear for the safety of the children.
In Annexure “B” to her affidavit, to which reference was made in the passage above, the wife said inter alia:
On 4^th December 2004 I was feeding [G] at the table when [G] said to me “[The husband] put his willy in my mouth. I suck [the husband’s] willy.” The same day my mother minded the children while I shopped. When I returned she told me that [G] said to her “[The husband] say he’s my best friend, he’s my best friend. He put willy in my mouth. I suck his willy.” My mother & [I] went to [a] Police Station. It was unmanned so she rang through to [another] Police Station and reported what [G] had said.
I felt very upset and shocked because as I thought about things I believed that what [G] had said was true. There were many times when [G] was alone with [the husband] and one particular time when [G] was on the lounge with [the husband], [the husband’s] fly was open. I remember thinking that I smelt semen and [G] had a hair in his mouth. At that time I did not even consider the possibility that [the husband] would abuse his own son.
I separated from [the husband] on 25^th December 2004 but we continued to live under the same roof until [the husband] found alternative accommodation in March 2005. At that time the boys and I moved into my mother’s house.

Also attached to the wife’s affidavit of 4 September 2006 was a statement signed by [the maternal grandmother] which appears to have been prepared in April 2006 in support of an application for a restraining order against the husband. In that document she said:
4/12/04 I minded my 2 grandsons ([I] – born […] & [G] born […]) while my daughter shopped and her husband was at work. [I] & I were sitting on the lounge when [G] came up to me crying. He said “[The husband] say he’s my best friend, he’s my best friend. He put willy in my mouth. I suck his willy.” [The husband] is his father.
[The husband] came home from work about 3 pm. When he found me there instead of my daughter, [the wife] he was furious. He said he was going to take the boys in his truck. I said “no” because I was afraid that something would happen to them. He picked up shoes and flung them onto the table scattering food everywhere. Then he went out and drove away in his truck. He did not return.
When my daughter came back I told her all and she told me that [G] had told her that morning “[The husband] put his willy in my mouth. I suck his willy.” I immediately went to [a] Police Station. No‑one was on duty so I pressed the buzzer and spoke to a man and gave him all the details. No action was taken by the police.
25/12/04 My daughter & her husband separated, but lived under the same roof until he found alternative accommodation in March 05. Then my daughter and the two boys came to live with me…
On 14 November 2006 the wife swore a further affidavit, in which she claimed that her affidavit of November 2005 had been “inaccurate in many details due to my own inadvertence and lack of legal experience”. She went on to say at paragraphs 2 to 5:
I am not good expressing myself clearly and give a lot of unnecessary details because I do not know what is relevant information in a legal matter. From the large amount of information I gave my solicitor he prepared the affidavit of 22^nd November 2005 and he asked me to read it and sign it. I browsed through it and signed it and trusted that it was correct. It was not. … I was not given a copy of this affidavit at the time. Another solicitor is acting for me now and he gave me a copy of the affidavit on 9^th November 2006 … There are errors throughout this affidavit and the most relevant and important one is in paragraph 37. The truth is that I saw [G’s] head on [the husband’s] lap and [the husband’s] fly was undone. I did not say that I saw [G] sucking [the husband’s] penis. [G] was two years old. At that time I didn’t suspect [the husband] of sexually abusing [G]. It was when [G] said “I suck [the husband’s] willy” that I thought this earlier event was significant. … The [Court Expert] referred to this incorrect statement and this together with my confusion about dates made me appear to be lying and that is not the case.
Her affidavit then corrected a large number of errors she claimed had been made in her affidavit of November 2005. For example, she recorded that she should have said she had seen a “hair” in [G’s] mouth, rather than a “pubic hair” (although in cross-examination she once again said it was a pubic hair). She also identified a number of mistakes that suggest lack of attention to detail by her then legal representative and a failure by the wife to read and/or comprehend the document. For example:
·paragraph 7 has the wife saying, “Prior to the birth of [I] the applicant indicated to me that he didn’t want a baby”. [The husband did not know the wife prior to the birth of [I] and the reference should have been to [G].]
·paragraph 6 has the wife saying, “I have another child as a result of a previous relationship. His name is [I], date of birth [sic]”.
There were also numerous other grammatical, spelling and paragraph numbering errors in the document.
Having set out the long list of errors, the wife said:
In view of the many errors in this affidavit I would respectfully ask the Court not to rely on it but rather accept the Affidavit and Annexures “A” and “B” of 4^th September 2006 as my Affidavit evidence…After further legal advice and reconsideration of my position I do not want to pursue the allegation of sexual abuse of [G], because I did not see sexual acts and therefore I am unable to prove they took place.

The Court Expert’s second report

The Court Expert provided an updated report to the Court in November 2006 after conducting further interviews. By this time, she had received copies not only of [the psychiatrist’s] reports but also the wife’s affidavits of 4 September and 14 November 2006, to which we have just referred.
The Court Expert described how the wife and [the maternal grandmother] had arrived for their interview with two older women, one of whom was the retired barrister who acted as the wife’s McKenzie Friend at the trial. The wife informed the Court Expert that they wanted the other women to be present because [the maternal grandmother] did not speak good English. The Court Expert informed the wife that based on her previous interview with [the maternal grandmother], she felt that “we could communicate with each other”. The Court Expert refused to allow either of the older women to be present during the interview, notwithstanding an assurance that they would simply “sit there and won’t say anything”.
The Court Expert then recorded that:
As soon as the interview proper started, [the wife] spontaneously told me, as she consulted notes, “There has been a misunderstanding in my affidavit. I trusted my solicitor. I should have read (affidavit) and I didn’t get a copy of it. There were a few mistakes in it”.
The Court Expert continued:
[The wife] told me she now has a new solicitor and has made a new affidavit and, as a result of this, “I won’t go ahead with the allegations (of child abuse against [the husband])”.
When asked why she had changed her mind, [the wife] told me it was because she had not WITNESSED the sexual acts, adding, “I have got further advice from my solicitor and I have reconsidered my position. I am taking (solicitor’s) advice”.
[Court Expert]: “Do you believe that the sexual abuse of [G] happened?”
[Wife]: “No. When [G] told me, I believed what [G] said”.
[Court Expert]: “Even though the solicitor has given you this advice, do you believe in your heart that the children have not been abused?”
[Wife]:“They haven’t been. I believed what [G] told me. He just said it. I’ve had further advice. I won’t pursue it”.
[Court Expert]: “What effects do you think your allegations against [the husband] have had?”
[Wife]:“It’s wrong. Maybe it was wrong coming to the court about what was going on. My solicitor said the court had gone the wrong way about it. My son said it”.
[Court Expert]: “You have read my report and [the psychiatrist’s]. We both said we thought that you and your mother had told untruths about these matters”.
[Wife]:“I come to tell you the truth. What my son told me”.
[Court Expert]: “It’s hard to believe that a 3 or 4 year old would say such things. Is there a possibility that these were suggested to him?”
[Wife]:“No. I didn’t suggest it to him”.
[The wife] then gave me an account of how [G] had disclosed the sexual abuse of him to her mother and her independently. She maintained that she had only made these allegations against [the husband] because her son told her that they happened.
I put to [the wife] that she had made some very serious allegations against [the husband]. She agreed with this but expressed no remorse or guilt. I asked her where she now stood about her previous claims that [the husband] had made threats to kill them. She said she was also withdrawing these claims. She had just said this “because of what I was going through in the relationship”. When asked why she had made such serious claims, [the wife] said she believed that, because she and her mother had “exposed” [the husband’s] abuse, he would then hurt her. She added, “So, I won’t pursue this”. She also said she would retract her claims of [the husband’s] physical abuse of her, “’cause I can’t prove the sexual acts”.
When asked if she would, in retrospect, do anything differently, [the wife] told me, “It’s very wrong to do this. I thought I could come to court to protect my son, ‘cause of what he told you”.
When asked why 3‑4 year old [G] would tell her such things if they were untrue, she replied, “’Cause he told me”. When asked whether she believed a 3‑4 year old could really “make up” such stories of sexual abuse, she replied, “This is from [G’s] heart and mind telling me”.
When asked where a 3‑4 year old would get such information about child sexual abuse, [the wife] replied, “[The husband] has been telling him that. (Q) I don’t know. I only know that [G] said this. [G] said [the husband] told him, ‘Tell your mother I hate you’ ”.
I put it to [the wife] that she was not only relying on [G’s] disclosure but that she had told me previously she had witnessed [the husband’s] fly undone and had seen a pubic hair on [G’s] mouth, which “smelled of semen”. She said she had not witnessed [G] sucking [the husband’s] penis but had seen the hair.
When asked why she thought the Family Court had removed the children from her care, she said it was because the courts thought she was lying but she was not. When asked if she thought there may have been other reasons for this, [the wife] said it was because she could not prove the abuse had occurred. When further pressed, [the wife] said the court thought she may have a (mental) problem but this had been disproved by the Psychiatrist.
When asked whether she thought these allegations had affected the boys, [the wife] said they had affected them because the boys had been removed from her. When asked whether she thought the boys were being affected before their removal, [the wife] said it had been “traumatic” for them. She said she could not say how this could be, as she does not speak English very well. [[The wife] speaks English perfectly well and has been in Australia since she was 8 months old, attending school until Year 11.]
When I asked how she felt the boys might have been affected by having to be interviewed about the abuse, taken to the Police Station and D.O.C.S., etc. and of hearing her and her mother talking about [the husband] killing them all, she said she never talked about [the husband] killing them in front of the boys. When I put it to her that her mother had done so in the last family interview, [the wife] changed the subject.
I asked [the wife] about her and her mother’s claims that [the husband] had deliberately burned [G] with boiling water. She replied that she had also changed her mind about this and she now believes it was an accident.
I attempted to explain to [the wife] about the emotional harm that had been perpetrated on the boys by their embroilment in these claims of abuse. She told me, “I love my children. I wouldn’t harm them. My son told me and I just wanted to protect him. I am not pursuing the allegations. I can’t prove them”.
[The wife] said she is now happy to “share” the boys with [the husband]. When asked what she meant by this, she said that she wanted the boys to reside with her and to see their father every second weekend.
At the conclusion of her recitation of the interview with the wife the Court Expert noted:
When I asked whether she regretted making the child abuse allegations, [the wife] said she did, as it had led to the children’s removal. She apologised to ME but at no time expressed any anguish about the effects on the children or on [the husband].
The Court Expert then referred to her interview with [the maternal grandmother] and said:
When I raised the issue of all the allegations she had made – I listed these – [the maternal grandmother] agreed that she had made these, “But I didn’t see (the abuse)”. She said she had only believed what [G] told her because he was her grandson.
When asked how she felt the children had been affected by [the sexual abuse] allegations, she said:
[Grandmother]:         “It don't effect (them). You say that to me.”
[Court Expert]:         “You told me that you thought [the husband] was going to murder you all. Do you still believe this?”
[Grandmother]:         “Because he doesn't like us. [G] told us”.
[Court Expert]:         “Do you still believe [the husband] will kill you?”
[Grandmother]:         “If the children come back to us (he will)”
[Court Expert]:         “Why would he do this?”
[Grandmother]:         “If the children come back to us, he will get angry with us.”
[Court Expert]:         “But why would he kill you?”
[Grandmother]:         “When a person gets angry, you don't know what they'll do.”
When I asked whether she understood that she had previously made some very serious allegations in regard to [the husband], [the maternal grandmother] said, “(It was) what [G] told us. We went to court for God to help our grandson”. When asked what she now thought about her previous claims that [the husband] had deliberately burned [G], [the maternal grandmother] said, “I didn't see it”.
When asked what she now thought about her previous claims that [the husband] had deliberately burned [G], [the maternal grandmother] said, “I didn’t see it”.
The Court Expert also saw both children again. She said “[t]he most striking feature of this interview was the DRAMATIC IMPROVEMENT IN [I’S] PRESENTATION”. She concluded:
Both boys have made outstanding gains while in their father’s care, even with minimal contact with their mother. There is no doubt that they love their mother and that she loves them. However, their RELIEF from being free of her emotional abuse of them is reflected in their dramatic improvements in functioning since being removed from her care.
The Court Expert went on to recommend the children remain in the care of the husband and continue to have “some contact” with the wife. She cautioned however, “this should not take place unless it can be SUPERVISED BY A PROFESSIONAL”.
The force with which the Court Expert expressed her conviction on these matters can only be fully understood by repeating all she had to say in the concluding part of her report, which was in the following terms:
OPINION
These children were removed from their mother’s care in May, 2006, and placed with the father/stepfather. Since then, the mother has had only supervised contact with the children.
The mother and grandmother had previously made allegations that:
·the father had sexually abused [G] on a number of occasions;
·the father had deliberately burned [G] with boiling water when he was 15 months old;
·the father physically abused both boys;
·the father was violent to the mother;
·the father threatened to kill the mother and grandmother.
These allegations seemed flawed and at times absurd, although the children had become highly embroiled in these. D.O.C.S. had completed a Risk-of-Harm assessment, finding that the allegations represented EMOTIONAL ABUSE of the children by the mother. I concurred with this opinion.
At the time I wrote my original report, I was unclear whether these multiple (false) allegations represented malice on behalf of the mother/grandmother or whether they represented a shared Delusional Disorder. I proposed this differential diagnosis because of the unusual (absurd) nature of the false claims and my perception at that time that the women GENUINELY believed themselves to be at risk of being killed by [the husband].
I recommended that both women have a psychiatric assessment to determine the aetiology of these claims and both saw [the psychiatrist], Psychiatrist. [The psychiatrist] found that neither woman had a mental illness and that the false allegations were likely made to gain an advantage in the Family Court situation. I wholly accept these findings of [the psychiatrist].
[The psychiatrist’s] findings have been vindicated by the abrupt withdrawal of the mother's allegations because of “legal advice”.
The mother accepts no responsibility for her previous false claims and blames both her previous solicitor and [G’s] statements for these. Both the mother and grandmother now say they are unable to go ahead with these claims because they were not WITNESSES to the abuse. Both now say they believed what [G] told them about the sexual abuse. However, neither can explain why [G] would say such things. Their explanations for their previous false claims that [the husband] threatened to murder them all and that he had deliberately burned his son seem fatuous.
…
Of course, such traits are likely to have significant impact on parenting capacity, particularly in the teaching of trust in relationships and in the education of moral values for one's offspring.
Neither the mother nor grandmother has shown any guilt or remorse about the very serious, destructive and false allegations they have made in relation to [the husband]. They are also quite insightless about the effects of such allegations on the children and the emotional harm which has been done to them.
The mother and grandmother just feel the allegations should now be “set aside” and play no further role in these proceedings. They appear to have no insight into the seriousness of their behaviour and the harm and mischief they have perpetrated. Both believe that, since they have obtained a “clean bill of (mental) health” from [the psychiatrist], the allegations should be discarded. They do not accept the reasons for the children being removed from the mother's care.
It is likely that the boys suffered some short-term grief following the change of placement, despite [the husband’s] denial about this. The children, but especially [I], appear to have improved dramatically in their presentations since the change of placement. [I] is no longer depressed, pre-occupied, fearful or hypervigilant. He is much better integrated into school and is involved in outside activities. [I] gives clear messages that he wants:
* to continue to reside with [the husband];
*to have increased contact with his mother but for these visits to be supervised because of the pressure she continues to exert on him to choose her and to reject [the husband].
[G], too, has improved markedly. He no longer hits other people and seems settled in his emotional state and play. He does seem quite inured to being “questioned” (unlike [I]), although he responds temporarily to his mother's cues while in her presence. However, he does not seem as burdened by these as does [I]. This may be due to his younger age.
Even during the session while being interviewed with me, the mother and grandmother continued to subtly pressure the children. The grandmother’ repeated references to the children that they are coming back to their mother were quite inappropriate. [I’s] claims that his mother exerts this pressure (through whispering) even in supervised visits seem credible.
FORMULATION
This case has certainly proved the old maxim about “the proof in the pudding”. Both boys have made outstanding gains while in their father’s care, even with minimal contact with their mother. There is no doubt that they love their mother and that she loves them. However, their RELIEF from being free of her emotional abuse of them is reflected in their dramatic improvements in functioning since being removed from her care.
Thus, it is recommended that the boys remain in the care of their father/stepfather, [the husband].
I have little confidence that the mother and grandmother could behave appropriately towards the boys, were they to have unsupervised contact. They are seemingly unable to do so, even under supervised conditions. It is likely that, if the contact was to be unsupervised, the boys would again be under pressure to make further claims of maltreatment by the father.
However, the boys need to continue to have some contact with their mother. This should not take place unless it can be SUPERVISED BY A PROFESSIONAL. These women’s deception at one level is so skilful that untrained supervisors (e.g. church friends) would be, in my opinion, quite out of their depth, with little capacity to set limits.
It may be that the mother may have to pay for such professional supervision (e.g. Centacare), if the public system is unable to provide this.
There should be no telephone contact as this cannot be monitored. The mother should also be advised that she must not approach the children at their schools.
While these recommendations may sound very harsh in relation to the mother, in my opinion, it is the only way that these boys will be able to developmentally thrive, free from the burden of chronic pressure being placed on them.

In responding to these grounds, the husband’s solicitor submitted there was a wealth of evidence, including the sworn testimony of the wife, to establish that much of the wife’s evidence was false, and noted that some of her earlier evidence was retracted. Similarly, counsel for the Independent Children’s Lawyer submitted there was ample evidence, mainly from the wife, that she had sworn affidavits which included incorrect information alleging abuse by the husband, which she substantially retracted. Neither of these submissions directly addressed the specific findings challenged by the wife.
In her written outline of argument, counsel for the wife made the following preliminary submission in support of these grounds:
The findings made by the trial Judge had far reaching and serious consequences. There is little doubt that his findings were largely based upon the two reports of the court appointed expert. It if is accepted that the expert’s reports should have been rejected or should have been given little weight, the Appellant mother submits that there was no evidence and/or no sufficient evidence upon which the trial Judge could have based his findings.
Given the view we have already formed in relation to the earlier grounds, we do not consider it necessary to discuss in any detail to what extent each of the findings under attack was influenced by his Honour’s acceptance of the Court Expert’s reports. Ground 3(i), for example, is clearly made out, as it was based on an inaccurate statement made by the Court Expert. The important finding challenged by Ground 3(a) was made, in part, on the basis of what his Honour described as the “compelling evidence” of the Court Expert. Ground 3(h), on the other hand, was a finding open to his Honour without any regard to the Court Expert’s evidence. All of his Honour’s findings, however, were made in the shadow of an inaccurate perception of the chronology and most were influenced by the opinions of the Court Expert who had the same erroneous understanding.

Ground 4 – failure to take relevant considerations into account

By this ground the wife asserts that:
The learned trial Judge failed to take into account the following relevant considerations or failed to give proper weight to the following considerations:
(a)      The cultural background of the children; and
(b)      The cognitive and developmental level of the mother; and
(c)      The evidence of the children (paragraph 157).
His Honour noted he was required to consider the culture and traditions of the children; however, there was no evidence to assist him to assess these matters other than that:
·the wife and [the maternal grandmother] were born in [a foreign country];
·[the maternal grandmother] said her mother was a [person of high social standing] and her father was a [senior figure]; and
·[the maternal grandmother] may or may not understand pidgin English – depending on which of two contradictory answers she gave in cross-examination was accurate [Transcript 1 March 2007, page 169 at line 44 and Transcript 1 March 2007, page 176 at line 44].
There is therefore no substance in Ground 4(a).
There is also no basis for the assertion in Ground 4(c) that his Honour failed to take into account or give proper weight to the wishes expressed by the children. His Honour found that both boys wanted to continue to live with their father but also wanted to spend time with their mother. His Honour’s orders provided for that outcome.
In our view, however, there is substance in the assertion in Ground 4(b) that his Honour failed to take into account or to give proper weight to the cognitive and developmental level of the wife.
In support of this ground, counsel for the wife submitted that the difficulties the wife had in understanding the proceedings were evident from her affidavits and from perusal of the transcript. The extent to which the wife struggled with what might appear to be straightforward documentation should also have been apparent from the comment the Court Expert made about the wife’s inability to comprehend [I’s] “quite simple” school reports.
In our discussion of Grounds 1 and 2 we made mention of the failure of the Court Expert to consider explanations for the wife’s conduct other than malice/mental illness and in that context we discussed the possible significance of the wife’s cognitive immaturity. For similar reasons we there expressed, we are of the view his Honour also failed to give proper weight to the wife’s cognitive deficits in assessing her credibility and her motivations in making allegations she ultimately did not pursue.
We note that in assessing credibility, his Honour made no specific mention of the view expressed by the Court Expert that the wife’s two criminal convictions for deception, meant that “deception and manipulation may well be part of a pattern of her interaction with others.” His Honour nevertheless effectively adopted the Court Expert’s report and made no reference to the fact that the wife’s convictions were in 1993 and were described by her, without challenge, as being related to one incident at the mall when she was 18 years old.
The wife cross‑examined the Court Expert about the fairness of her reference to the 1993 convictions. The Court Expert said she had not held that against the wife and that “having two convictions for deception would not preclude parenting” [Transcript 1 March 2007, page 218 at lines 41 to 48]. However, the Court Expert’s reference to the convictions appeared immediately prior to her statement in her first report that it was necessary to consider that “we are looking at a highly deceptive and manipulative dyad”. It is difficult to resist the conclusion that the convictions played a part in the formation of her poor opinion of the wife.
The point in his judgment when his Honour made clear that he doubted all of the wife’s evidence was when he was considering (at paragraph 94) the withdrawal of her claim in the November 2005 affidavit that she had seen [G] sucking the husband’s penis. We accept the submission of counsel for the wife that this was the only occasion when the wife ever made such a claim. She did not, for example, make that claim in her statement to the police in July 2005. She did not make such a claim when giving details of the incident to the Court Expert.
Although his Honour did (at paragraph 93) recite the wife’s explanation for what she claimed was an error (i.e. her inadvertence/lack of legal experience etc) he did not assess that explanation in light of the Court Expert’s evidence that the wife presented in a very child-like manner; was cognitively immature; may have a degree of developmental delay and gave a narrative that was often disorganised and digressive and contained a lot of repetition and irrelevant detail. Given these observations by the Court Expert, it must have been feasible that the inclusion in the wife’s earlier affidavit of a claim she later repudiated was due to a breakdown in communication with her solicitor and her failure to read or comprehend all of the affidavit when it was presented to her for signature.
The wife’s cognitive deficits may also have explained some other confusing and sometimes contradictory aspects of her evidence. We consider that if his Honour had the benefit of the further evidence we have admitted, he may not have adopted the Court Expert’s opinion that the wife’s allegations could be explained only by malice. His Honour might then also have considered and given weight to the wife’s evidence about how she had behaved after the alleged disclosure was made by [G]. In particular, he may have considered her assertion that she never allowed the husband to be alone with the children after the disclosure and that she accompanied the children at all times when they were with the husband, even after the separation. This evidence may have gone some way toward explaining why matters concerning the abuse allegations only came to a head at around the time the husband began agitating for significant contact with the children.
The wife’s evidence about the way in which she ensured the children were supervised at all times after [G’s] disclosure was not challenged by the husband. Her evidence can be found at paragraph 65 of her affidavit sworn in November 2005 (the affidavit was withdrawn but the information concerning contact was referred to and corrected in paragraph 6(u) of her affidavit of November 2006) and in her oral evidence at trial [Transcript 27 February 2007, page 77 at line 47 and Transcript 28 February 2007, page 142 at lines 24 to 26].

Ground 5 – treatment of the wife and her mother as a “package”

By this ground the wife asserted:
Having made a finding that “the situation has been made worse by what [the maternal grandmother] has said and done”, the learned trial judge has taken into account irrelevant matters, in his failure in the proper exercise of his discretion to properly consider the mother’s evidence in isolation to what [the maternal grandmother] has said and done to make the situation worse and to properly determine the issues for the purposes of making a decision in the best interests of the children (paragraph 195).
Counsel for the wife submitted that in accepting the Court Expert’s reports totally and uncritically, his Honour “fell into error by blending the behaviours, comments and intentions purported to the grandmother as if they were the mother’s”. She submitted further that the trial Judge failed to critically assess and consider the evidence presented by the wife in isolation to that of [the maternal grandmother]. She also submitted that his Honour “was unfairly prejudiced by the grandmother in his assessment of the mother’s evidence in reaching his findings”.
Counsel for the wife drew attention to the fact that in some parts of the Court Expert’s reports (for example at page 60 of the first report) the Court Expert reported on the behaviour of the “mother/grandmother” interchangeably. She also drew attention to the fact that when the wife was seen with the children during the second round of interviews, she was not seen on her own with her children but was seen in company of her mother.
In our view, there is some substance in the submission that the wife and [the maternal grandmother] were, in effect, treated as a “package” (albeit we accept that his Honour ultimately made orders which differentiated between the two). The wife had made claims in her evidence, which if believed, would have led his Honour to conclude that there was a much greater degree of independence than the Court Expert believed existed between mother and daughter. For example, in her affidavit of 4 September 2006 the wife said, “We are close & Mum has helped me by minding the children from time to time. But we are not in an unhealthily close relationship. I lived in Perth from 1995-2000 and then with [the husband] until 2005, and then the boys and I lived in a unit at [a place], where I still live. I am my own person and live independently of my mother”. [The maternal grandmother] gave evidence in her affidavit [AB 121] that she had been unhappy when the wife and the husband commenced living together because of her strong Christian beliefs but said she did not interfere because “it was their business”. She also said during cross-examination by the husband’s solicitor, “We don't spend lots of time together. She live her life, I live my life”.
It would, of course, have been open to his Honour to reject such assertions, but there is no indication in his Honour’s judgment that he gave consideration to them. Furthermore, his Honour made no reference to the comment volunteered by the husband in cross-examination that he believed that [the maternal grandmother] “is largely the instigator of the abuse” [Transcript 27 February 2007, page 34 at line 18]. Counsel for the Independent Children's Lawyer did ask the Court Expert about the possibility of the children being under less pressure if the wife were to have contact with the children in the absence of [the maternal grandmother]. The Court Expert responded that “the grandmother is a very influential person in terms of the mother’s attitude” and said she didn’t consider that bringing [the maternal grandmother] to the contact visits was going to “dramatically change the situation”. [Transcript 1 March 2007, page 210 at line 21 et seq].
The wife gave a great deal of evidence which might have suggested there was a better prognosis for her than there was for [the maternal grandmother] of behaving appropriately during periods of contact. She also made repeated (admittedly self serving) statements concerning her understanding of the necessity to put the abuse allegations behind her and to “move on”. We have in mind her evidence about the way she claimed to have gone to considerable lengths to comply with restrictions associated with her periods of time spent with the children after they were removed from her care. We refer, by way of example, to paragraphs 8, 9 and 11 of the wife’s affidavit of November 2006 and page 2 of her affidavit of 5 February 2007; the undertaking volunteered by the wife at the conclusion of her cross-examination of the husband [Transcript 27 February 2007, page 24 at line 34]; the wife’s evidence at Transcript 27 February 2007, page 47 at line 50 to page 48 at line 1; Transcript 28 February 2007, page 108 at line 5; and at least some portions of her evidence given at Transcript 28 February 2007, page 124 at lines 7 to 44. The wife’s closing address, albeit pitifully brief, was in large part directed to her acceptance of the necessity of “moving on” and explaining why she would not pursue her allegations and not make any more inappropriate remarks about the husband to the children [Transcript 1 March 2007, page 239 at line 20 to page 240 at line 5].
His Honour would have been entitled not to accept the wife’s assurances but her claimed insight and ability to move on were arguably in contrast to the position adopted by [the maternal grandmother]. This highlights why it was important, in our view, for the two women to be assessed in their own right and not as part of a “package”. In this regard, it is noteworthy that until the closing stages of the trial the husband recognised it was important not to lump the wife and her mother together. Amongst other things this can be seen from the following facts:
·After separation the husband was content for the children to live with the wife, but thought it best that they reside away from “the influence” of [the maternal grandmother];
·At the time of the first interviews with the Court Expert the husband was still proposing the children spend half their time with the wife and only amended his application to seek indefinite supervised contact after he had read the Court Expert’s reports;
·At the commencement of the trial the husband further amended the relief sought to indicate that he was agreeable to the wife having unsupervised contact after the expiration of 12 months, provided she had complied with conditions which involved [the maternal grandmother] having only limited and supervised contact.
In our view, the acceptance by his Honour of the Court Expert’s opinion that the wife and [the maternal grandmother] could only be seen as “a highly deceptive and manipulative dyad” has led to a failure to give more proper consideration to the impact on the children in the event they spent unsupervised periods of time with their mother in the absence of their grandmother.

Ground 6 – cost of supervised contact

By this ground the wife asserted:
That the learned trial judge failed to take into account a relevant matter, that being the financial position of the mother when making a decision in relation to the nature and extent of the restrictions upon supervised contact of the children by the mother (paragraphs 215 and 177).
The evidence at trial was that the wife was working part-time and could work full-time. There was no evidence of how much she earned but given the nature of her work it would be reasonable to assume she was not highly paid. There was no evidence of other aspects of her financial position except that she paid rent of $190 per week.
His Honour found that four hours supervised contact each fortnight would cost $160, which he accepted would be “an expensive exercise” for the wife. Nevertheless, he accepted the Independent Children’s Lawyer’s submission that the mother would find the money because of her concern about the children. The wife had said in cross-examination that she could not afford the expense of supervision [Transcript 28 February 2007, page 112 at line 17] but when pressed seemed to indicate she would be able to find the necessary funds for 6 or 7 hours of supervised contact a fortnight [Transcript 28 February 2007, page 112 at line 44]. In light of that concession, albeit arguably extracted a little unfairly, we do not consider there is any merit in this ground.
We should note we were informed during the course of argument that the wife has only been required to pay $20 per fortnight for the supervision provided “on-site”. That is a modest expense which the wife has apparently been able to afford; albeit there was no indication that this subsidy would be available indefinitely.

Ground 7 – failure to apply presumption of equal parental responsibility

By this ground the wife asserted:
That it was unreasonable or plainly unjust and a failure to properly exercise judicial discretion in failing to find the presumption of equalled shared parenting responsibility applies in the circumstances, particularly having regard to the following matters:
(a)That the children have a close and loving relationship with the mother (paragraph 203);
(b)That it is in the best interests of the children that they spend some time with the mother (paragraph 203);
(c)That there was no evidence that the rights and interests that constitute parental responsibility will not be exercised in the best interests of the children by the mother.
The presumption referred in this ground is to be found in s 61DA(1) of the Act, which provides as follows:
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
It is unnecessary for us to consider whether the presumption had any application to [I], who is not the biological child of the husband. His Honour was of the view that the presumption did not apply to either child because of his finding that the wife had engaged in “child abuse and neglect”. Even if the presumption did apply, it was well open to his Honour, on his view of the evidence, to conclude that it would not be in the best interests of the children for the parties to have equal shared parental responsibility.

Ground 8 – failure to include a “sunset clause”

By this ground the wife asserted that:
The learned trial judge, when determining the final contact order, erred in failing to make an order that included a review mechanism or “sunset clause”.
It will be apparent from our review of his Honour’s judgment that he gave careful consideration to whether there should be a review mechanism or “sunset clause” in relation to the order requiring the time the wife spent with the children to be supervised. His Honour reviewed the authorities and correctly identified the width of the discretion available to him in determining whether to include such a provision. His Honour gave clear and cogent reasons for his decision to require the time spent with the children to be supervised indefinitely. Were it not for the fact that we considered his Honour erred in placing weight on the reports of the Court Expert, we would have concluded that his Honour’s decision on the issue was within the range of discretion. However, the fact that the Court Expert’s report was flawed meant that inadequate consideration was given, for example, to the amenability of the wife to therapy. This in turn impacted upon his Honour’s assessment of whether a “sunset clause” would be in the best interests of the children.

Ground 9 – leaving future decisions to the husband

By this ground the wife asserted:
The learned trial judge, when determining the final contact order, erred in leaving to the father, the decisions as to future contact with the children.
Counsel for the wife submitted it was highly irregular to leave decisions about contact arrangements to one of the parties to the litigation and that unless the husband permitted it, the wife would have to demonstrate a change of circumstances before she could see her sons unsupervised.
We do not consider there is any merit in this ground. His Honour determined the amount of time the children would spend with the wife and the circumstances in which that contact would occur. By indicating that the husband could allow additional periods of time, his Honour gave the husband no more authority than he would have had he said nothing. Although the Court can make orders specifying the time children spend with each parent, the reality is that parents can – and frequently do – vary arrangements after orders have been made. (See also s 64D(1) which makes provision for parenting plans that vary orders).
His Honour formed a favourable view of the husband and expressed confidence in his ability to make decisions in the best interests of the children. We see no error in his Honour giving the husband authority to allow the children to spend more time with the wife than had been permitted by his orders.

Ground 10 – failure to afford procedural fairness

By this ground the wife asserted:
The learned trial judge denied procedural fairness to the Appellant by failing to afford the Appellant an opportunity to present evidence or to argue the issues raised by the failure to include a review mechanism or “sunset clause”.
Counsel for the wife submitted that the serious consequences of making an order for supervised contact without a review mechanism or “sunset clause” constituted a breach of procedural fairness in circumstances where the wife was not given an opportunity to be heard in relation to that order. In her oral submissions, counsel for the wife informed us that the wife was unaware she could make submissions concerning the proposal that there be no review mechanism or “sunset clause”.
It is most unfortunate that the wife did not have representation, but that is a matter over which his Honour had no control. He gave the wife ample opportunity to present any evidence she considered relevant. He placed no restriction on the submissions the wife could make. The wife was on notice that both the Independent Children’s Lawyer and the husband were seeking supervised contact without a review mechanism and there can be no suggestion she was denied procedural fairness. We therefore consider there is no substance in this ground.

Ground 11 – failure to make order in children’s best interests

By this ground the wife asserts:
That the learned trial judge failed to make an order for contact of the children by their mother in a manner that would be in the child[ren]’s best interests.
Given the decision we have reached on the earlier grounds it is unnecessary for us to consider this ground.

Discussion and conclusion

It will be apparent from the discussion above that we consider the proceedings before his Honour were fundamentally flawed as a result of the misapprehension by the Court Expert of the relevant chronology of events and his Honour’s acceptance of that chronology and of the opinions of the Court Expert based on that chronology.
In determining whether or not appellate intervention is warranted in light of this misapprehension we will be guided by the remarks of Gibbs J (as he then was) in De Winter and De Winter (1979) FLC 90‑605 where his Honour said:
There are many other authorities, from Young v. Thomas (1892) 2 Ch. 134, at p.137, to Australian Coal and Shale Employees’ Federation v. The Commonwealth (1953) 94 C.L.R. 621, at p.627, that recognise that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge. … The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
In our view, the decision his Honour reached (at least in relation to the question of the parent with whom [I] and [G] should live), was “plainly right” on the evidence he accepted. However, the misapprehension of the chronology which we have identified with the assistance of the further evidence is of such significance that we consider all of his Honour’s orders should be set aside.
Regrettably there is no alternative than to order a rehearing before a Judge other than O’Ryan J. In coming to this decision, we must again stress what we said in paragraph 253 concerning the repeated efforts his Honour made to ensure he was not led into error on the very issue which has caused this appeal to succeed.
We recognise that the Court Expert may be required as a witness at the rehearing; however, we consider it would be unsatisfactory for her to be reappointed as the Single Expert, even if this means the boys will have to be interviewed again by a different person. The social science literature highlights how important it is for professionals to avoid the tendency to make early judgments when dealing with complex situations and then organise subsequent events and information to confirm the original judgment (see, for example, English, D, & Pecora, P, ‘Risk Assessment as a Practice Method in Child Protective Services’, Child Welfare, vol 73 no 5, 1994, 451; Munro, E (supra) at 149‑151). The Court Expert has already expressed her opinion with such force that we consider she would be placed in an untenable position were she to be reappointed.
We express the hope that those responsible for listing of matters in the [Family Court] registries will give the rehearing such priority as can be reasonably accommodated. We also express the hope that both parties will have the benefit of full legal representation at the rehearing.
Even though in allowing the appeal we must formally discharge his Honour’s orders, we nevertheless propose that the orders should remain in place at least until such time as the matter can be listed again before a judge at first instance.

Costs

All parties sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 in the event the appeal succeeded. The appeal has succeeded on a question of law and in our view it is appropriate that costs certificates be granted, both for the appeal and the rehearing.

I certify that the preceding three hundred and eight (308) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 19 August 2008