CERWIN & CERWIN

[2019] FCCA 3184

FEDERAL CIRCUIT COURT OF AUSTRALIA

CERWIN & CERWIN [2019] FCCA 3184

Catchwords:
FAMILY LAW – Application for disqualification – nature of bias and pre-judgment – legal principles applicable – expression of interim views in relation to issues of unacceptable risk for a child and whether consideration should be given to child spending time with person alleged to have sexually abused child – matters to be considered – application dismissed.

Legislation:

Family Law Act 1975 (Cth), s.69ZN

Cases cited:

Johnson v Johnson (2000) 26 Fam LR 627

Applicant: MS CERWIN

Respondent: MR CERWIN

File Number: ADC 4232 of 2012

Judgment of: Judge Brown

Hearing date: 3 October 2019

Date of Last Submission: 3 October 2019

Delivered at: Adelaide

Delivered on: 3 October 2019

REPRESENTATION

Counsel for the Applicant: Ms Lindsay

Solicitors for the Applicant: Harry Alevizos

Counsel for the Respondent: Mr Dillon

Solicitors for the Respondent: Carlin Lawyers

ORDERS

1. The oral application for disqualification made 3 October 2019 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4232 of 2012

MS CERWIN

Applicant

And

MR CERWIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. The reasons for judgment were delivered orally following an oral application for disqualification, on the basis of pre-judgment, which was made part way through the final hearing of a case concerning issues of sexual abuse.

2. The case has now proceeded to judgment and this issue referred to in the published reasons.  In these circumstances, it is appropriate that the reasons be transcribed and released with the substantive judgment.

3. Headings have been added and grammatical errors and ill-felicities of expression corrected.

Legal principles applicable

1. The test to be applied in determining whether a judicial officer is to be disqualified by reason of appearance of bias from proceeding to hear a matter was stated by the majority of the High Court in the case of Johnson & Johnson.[1]  The Court said as follows:

   “The test to be applied in Australia in determining whether a Judge is disqualified by reasons of the appearance of bias, which, in the present case, was said to take the form of prejudgment, is whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide.”

   [1]  Johnson v Johnson (2000) 26 Fam LR 627 at [11]

2. Accordingly, the test is an objective one and it is based on a person who is fair-minded and who is apprised of all the relevant facts and circumstances in the case concerned.  It is not therefore the opinion of counsel for a party or a party themselves whether they individually or jointly think that there is some level of bias.  The test is based on the interests of justice. 

3. If fair-minded people either perceive or suspect that a court has a preconceived notion of the appropriate outcome for a case, it will inevitably lead to the erosion of public confidence in the judicial process, so that is what is the principle of the case.

4. However, the High Court in Johnson also said:

   “The rules and conventions governing such practice are not frozen in time.  They develop to take account of the exigencies of modern litigation.  At the trial level, modern Judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to Court to expect a Judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta & Kelly Brennan, Deane and Gaudron JJ, referred to both trial and appellate proceedings, spoke of the dialogue between Bench and bar which is so helpful in the identification of real issues and real problems in a particular case. 

   Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment.  Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented.  On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”[2]

   [2] Ibid at [13]

5. Recently, the Commonwealth legislature amended the Family Law Act and in particular in section 69ZN, enunciated a number of principles to which courts such as this one must give effect in the conduct of child-related proceedings, and these are child-related proceedings.

6. In my view, those principles are useful in providing guidelines as to what are the prevailing standards of practice which must be applied to the exigencies of modern litigation. 

7. The principles include the following:

   a)that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of proceedings;

   b)the Court is to actively direct, control and manage the conduct of proceedings; 

   c)proceedings are to be conducted in a manner which will safeguard the child and parties concerned from family violence, abuse and neglect; 

   d)proceedings are to be conducted in a way that will promote cooperative and child-focused parenting; and

   e)proceedings are to be conducted without undue delay, formality and legalism.

Background

1. These proceedings concern arrangements for the care of X, who was born in 2007.  The parties to the proceedings are her mother, Ms Cerwin, and her father, Mr Cerwin.  The proceedings first came into court a very long time ago now in November of 2012 when X was a baby.  To say that they have been controversial and contentious is an understatement. 

2. I was not anticipating that I would have to summarise the factual background of the case, but due to Ms Cerwin’s application, which I note was made shortly before lunch and – well, was foreshadowed shortly before lunch and I considered that it was probably sensible that Ms Lindsay, who is Ms Cerwin’s counsel, at least spoke with her client before making the application – was put over until this afternoon.  

3. As I say, I have not had an opportunity to closely consider the factual background, so if I get a date wrong or some circumstance wrong, please, forgive me. 

4. The parties began to live together in early 2004.  They married in 2006 and separated in October 2012.  They are both from the City B area, but, as I recall, for much of their relationship, they lived in suburban Adelaide.  Indeed, as I understand it, Mr Cerwin still lives in the parties’ former family home. 

5. On separation, the mother went with X to City B, which is some distance away from Adelaide.  It is relevant for me to point out that the mother has a child from an earlier relationship.  He is Mr C, who was born in 1999, so in technical terms he is a child no longer. 

6. It was Mr Cerwin’s position during the first proceedings that he had an extremely close relationship with X, whom he loved.  It was also his case that he had performed a paternal role for Mr C and was close to Mr C, as well. 

7. In the earlier proceedings, it was the mother’s position, as I recall, that she was forced to flee to City B because the father was an abusive and controlling person.  She also asserted that Mr C had disclosed to her that he had been abused by Mr Cerwin and threatened with a belt and, indeed, assaulted with a belt. 

8. It was also alleged that Mr Cerwin had observed him showering in a salacious manner.  Clearly, they were significant allegations and against that background a family report was ordered and at that early stage in those earlier proceedings it was ordered that the child be – that both children, as I recall, be independently represented.

9. So the background to that was, from Mr Cerwin’s perspective, there had been a unilateral relocation of the child a distance away.  It was his concern that he would not be in a position to maintain a relationship with, firstly, X, but also with Mr C.  The family report, as I recall, was obtained relatively urgently.  It came out in May of 2014.  It was prepared by a gentleman by the name of Mr D, who was a social worker by background. 

10. At that stage, Mr D recommended that the children come back and live in Adelaide.  The basis of that was so that X could have substantial and significant time, including special occasions and some school holidays with Mr Cerwin.  It was also recommended that Ms Cerwin undergo a psychiatric assessment. 

11. In terms of X, who was interviewed at that stage, she said to Mr D that she had clearly expressed a desire to return to Adelaide and have more time with Mr Cerwin.  She commented that her mother does not like her father, fights with him and is very, very angry.  She wished things to go back to normal and to sleep better. 

12. At that stage, X was observed interacting with Mr Cerwin and the paternal grandmother, and Mr D – and I appreciate that Mr D’s evidence has not been subject to any scrutiny – but Mr D said that Mr Cerwin appeared child-focused, emotionally attuned and confident in his interactions with the child.  There were numerous displays of affection by X, and to a lesser extent, towards the paternal grandmother.

13. The issue as to whether Mr Cerwin had physically assaulted Mr C has never been resolved.  Certainly not in these court proceedings.  As far as I know, Mr Cerwin was not charged with assaulting the child.  There was no intervention by the welfare authorities, but clearly Mr C, when interviewed by Mr D expressed an extremely jaundiced view about Mr Cerwin. 

14. In his evidence to me in these proceedings currently, Mr Cerwin has indicated in general terms that he finds that it is a sad state of affairs that he still – I think this is the expression he used – “I still love the kid”, he said of Mr C, but he has not had an opportunity to spend time with the child. 

15. The parties’ applications, which were essentially to do with relocation, were fixed for final hearing.  No trial proceeded because the parties settled the case, and many people settle the cases, but as is often the case, issues were left hanging, particularly in regards to Mr C. 

16. Mr Cerwin agreed that X could continue to live with the mother in City B.  Ms Cerwin is not a wealthy person.  She has, as I understand it, been in receipt of social security.  At the present time, I think she may have a part-time job at Employer E, but if I am wrong about that, I apologise. 

17. Mr Cerwin told me yesterday that he earns an income of about $60,000 per annum.  He is involved in trades work, I think.  So he is not to be regarded as a wealthy person, and the distance between City B and Adelaide is reasonably lengthy.  It is about 700 kilometres.  You have to travel really by air, and that has an expense.  It is not a huge expense, but there are issues. 

18. In any event, some orders were made for Mr Cerwin to spend time with the child relatively regularly in school holidays.  Having outlined the background to the matter, it is hardly surprising that the parties have an extremely poor relationship with one another.  The earlier proceedings were replete with mutual criticisms of the other. 

19. The mother said that the father was a violent person.  The father asserted that the mother had psychiatric issues, and at an earlier stage at the instigation, I think, of the independent children's lawyer, Ms Cerwin was medically examined by a consultant forensic psychologist by the name of Dr F. 

20. Anyway, the proceedings were resolved in August of 2013, and although, clearly, there were difficulties, a period approaching five years passed, and then from the father’s perspective, the wheels fell off the orders and he began to have difficulties spending time with X. 

21. As I indicated, X was born in 2007.  So that was a time when she had just turned 11, and a contravention application was filed.  The mother’s position is that, as I understand it – and I will try and put her case as I understand it – the mother’s case has two limbs to it: 

22. Firstly, she is of the view that something untoward must have happened to X in her father’s household because of the way the child started to behave during much of 2018.  It is her view that the only explanation for the child’s behaviour is that the child has been abused, almost certainly in a sexual fashion, by her father. 

23. It is also, I think – and if I am misstating this, I apologise – a subsidiary argument that even if that is not a correct factual situation, or even if the truth of the matter cannot be definitively determined one way or the other, she believes that that is the case and, therefore, as the child’s primary carer, it would be unreasonable, and not in X’s best interest, to compel the child to spend time with her father. 

24. In terms of what the allegations are or are not, it seems to be the case that during much of 2018, Ms Cerwin consulted various medical practitioners.  Most usually, she attended, I think it was the G Medical Clinic, and, particularly, a doctor called Dr H.  Dr H saw X in December of 2017 and she was brought in by her mother regarding her – and I presume that is X – decision not to go over to Adelaide to see her father. 

25. X admitted she did not want to see her father and she said she felt bored.  She said it was boring because when she was with her dad, only grandma and the dog were in the house, and she said she felt not safe because there were many bad people in the world, but she also said her father and grandma were nice. 

26. Against this difficult background, Mr D was asked to write another family report, and he did do so, but prior to that time, because there were issues about X’s views and what she did or did not want to do, on 20 September 2018 she was directed to be brought to meet with family consultant Ms J.

27. Ms J spoke with X and, to Ms J, when she was interviewed she said she never wanted to see her father again.  Ms J pushed her, and she said “The reason I don’t want to is because he has been saying a couple of times he’ll clear my room, and he hasn’t…before my room is finished, Dad’s been getting me to sleep in his room”,[3] and then there was further discussion.  

    [3]  See Child Inclusive Conference Memorandum dated 20 September 2018

28. In Ms J’s view – and I hasten to add that I have arranged for Ms J to give evidence in these proceedings, and she is waiting outside, and I hasten to add that I have done that at my own instigation because the parties themselves have not arranged that – Ms J said that X launched into a convoluted story about her father giving her a Milo drink at night, which she believed was drugged because the Milo tasted off. 

29. The father’s position, as he has deposed, is that he does not have Milo in his household.  In any event, Ms J’s view at a preliminary stage was that X felt pressure because of issues to do with airfares and the payment thereof.  She was puzzled – that is, Ms J – by the “drugs in my Milo” story, which Ms J had some difficulty accepting. 

30. There seems to be issues during much of 2018 that the child had a reddened or inflamed vagina.  That, of course, is a medical issue, but in terms of allegations of sexual abuse, in any case, they present a real dilemma, and before lunch I was trying to explain to Ms Lindsay and, indeed, the parties, what the dilemma is.  The only people who know definitively what happened, if a child is being sexually abused, are the child involved and the perpetrator of abuse. 

31. For obvious reasons, individuals do not abuse children in the presence of others or, I suppose, sometimes there are videotapes and things like that, but usually it is an adult and a child, and in a case like this one, we have a child who is able to express herself in words.  We have some evidence of some inflammation of her sexual organs. 

32. As I recall – and I might have got this wrong – Dr was not inclined to medically examine X, and I am not sure if Dr H is a man or a woman.  I am not sure.  The mother, I think, was somewhat taken aback by that, and so she has more recently taken the child to see another doctor at a different clinic, Dr K, at The L Clinic, and I will come to that. 

33. The second family report was released to the parties on 15 October 2018.  So it is about a year old.  As is the case, Mr D, the expert, observed X with Mr Cerwin.  In his view, the interaction started off fairly woodenly, but as X became involved with her father, Mr D said the child became extremely cheerful and engaged in bouts of laughter.  Conversation was free flowing and appropriate.  Significantly, Mr D said there was no recoil observed between X and her dad. 

34. X asked Mr Cerwin how work was going, whether or not the paternal grandmother was, in fact, going to be using X’s bedroom.  She seemed genuinely and pleasantly surprised when Mr Cerwin stated that the paternal grandmother who lived nearby would, in fact, be staying at her own residence which he would show her en route to the former family home. 

35. Mr Cerwin was described as being emotionally available and gentle in his demeanour.  He maintained a calm, soothing voice, etcetera.  Mr D also interviewed X, and I appreciate of course that this must be regarded as an extremely artificial exercise, but she was asked by Mr D what her three wishes were.  The first was for her mother not to smoke cigarettes, the second was for her father to lose weight, and her third wish was for her parents to reconcile. 

36. Children are often fairly sanctimonious about their parents’ health, and I can understand why X would want her mother to stop smoking, and Mr Cerwin during his evidence has told me that he has got type 1 diabetes and he has got issues with his weight, and the third wish that the child wanted her parents to reconcile. 

37. The significant thing about those statements – and I appreciate Mr D has not as yet given his evidence and he can tell me about all this – was that the child was in the situation where she was being asked “What do you want?” and Mr D opined that it was somewhat improbable that if the child had been subject to sexual abuse by her father, that she would say that she wanted her mother and father to reconcile. 

38. Whether Mr D’s opinion is correct or otherwise, I do not know, but that forms part of the background to this case.  Mr Cerwin has strenuously denied that he has ever sexually abused the child, and I can say that I have had the opportunity to see Ms Cerwin in the witness box over a fairly lengthy period of time.  I have seen Mr Cerwin for a bit over a day, I think.  Perhaps less.  I am not sure. 

39. The proceedings were fixed for hearing, initially, I think in July of this year.  At the outset of the proceedings, Ms Lindsay, who is Ms Cerwin’s counsel, applied to adjourn the proceedings.  I should point out that Mr Cerwin has not spent any significant periods of time with X for some time.  There is one exception to that, and it arises in circumstances where Ms Cerwin brought X to Adelaide. 

40. It seems to be the case that Ms Cerwin hoped that I myself would interview X or somebody would interview her on my behalf.  There is an issue in the case that X has been told – whether this is correct or not, I am not sure – that once she reaches a certain age, she is entitled to decline to have a relationship with one of her parents. 

41. I have already pointed out that is not the law, and if you think about it, it would be absurd if it was.  What would be the situation if a child said, “I do not want either of my parents to be my parent?”  What happens then? 

42. I suppose from time to time it does happen, but children are still subject, I think, to parental authority.  Of course, a child’s views are something that is a relevant consideration under the Act, but in determining what weight is to be given to a child’s views, I have to look at the circumstances in which a child is expressing a view and the child’s maturity and level of insight. 

1. It is the father’s position that during much of last year and, indeed, into this year, X has been, in some way, manipulated by her mother not to want to come and see him.  From the mother’s point of view, she says, “I want X to spend time with her father, but she is adamant she will not.”, and she has deposed, I think, that she tried to get X to get on the aeroplane to come from City B to Adelaide to no avail. 

2. That is a question of fact that I have to resolve, and Mr Cerwin is not in a position to give evidence because he was not at the airport in City B.  Ms Cerwin was.  There is also a person who is said to be a material witness about that, but at this juncture, as far as I know, he has not filed an affidavit and I do not know if he is proposed to be called anyway.

3. In any event, the child was in Adelaide, and on the basis of the material that was available to me at that stage, I formed the view that it would be appropriate for X to spend some time with her father, it being the position that up to that stage, there was an order that had not been discharged, and I accepted that Mr Cerwin was desirous of seeing X. 

4. I had to make some sort of assessment of the risk.  I had the report of Mr D.  I had what Ms J had said.  At that stage, I had not been supplied with any medical evidence, and it is, I think, Ms Lindsay’s submission that her client said to her solicitor, Mr Alevizos, that there were issues to do with vaginal assault, and I think it is now conceded that Mr Alevizos did not raise those matters with me.

5. In any event, I did what I did, and I cannot undo it now.  The child protested, but, ultimately, she was prevailed upon to depart with her father.  Although neither of the parties, I think, told me what happened after that, of my own motion, because I was interested to know what happened, I asked Mr Cerwin about it, and I think I was entitled to do that. 

6. How could I not be?  I made an order for the child to spend time.  It was clear that she protested to the court officials.  I was interested to know what happened afterwards because, clearly, that is one of the central issues in the case.

7. Mr Cerwin’s position is, “When X is with me, she is a happy, happy, go-lucky child.”  The mother’s case is that she is a happy, go-lucky child other than when there is some prospect of her going to spend time with her father.  So Mr Cerwin’s evidence is that, after that incident, she settled down and, after a while, she became what he regards as the happy, go-lucky X, and they stopped at the chemist on the way home to attend to some need of his mother. 

8. The individuals who oversaw the handover – that is Mr M and Ms J, and, again, I was desirous of hearing evidence from them because, again, these are significant matters – was that they thought – and they may be wrong, I do not know, I have not heard evidence from them – that something to do with X’s presentation was confected.  Whether that is right or whether that is wrong, I do not know. 

9. One of the objections – one of the bases on which Ms Lindsay wanted to adjourn the proceedings in July – was that it was her client’s case that she had taken the child to see police in the early part of 2019 and in conjunction with that, Dr K from The L Clinic had made a report. 

10. Ms Cerwin’s affidavit about what must be regarded as being very serious allegations is in the following terms:

    “I have had X consult with a general practitioner, Dr K, at The L Clinic in City B.  Dr K examined X and also had a lengthy discussion with her (in my presence).” 

11. What that discussion was is not alluded to –

    “Dr K indicated that given the disclosures made by X…”

12. again, they are not disclosed –

    “she had concerns about the father’s conduct while X was in his care and she was hopeful that X would not have to endure any further visits with the father.”[4]

    [4]  See mother’s affidavit filed 5 July 2019 at [46]

13. At this point, it is important to point out that these are adversarial proceedings and in no uncertain terms it is being alleged that Mr Cerwin has done something vile and objectionable to a child whom he professes to love.  But he has to respond to that as best he can, and in his affidavit, he says:

    “On 13 July…”

14. and I bear in mind that these proceedings were fixed for hearing a few days later –

    “I returned to my home to find a SAPOL card attached to my front door from a Brevet Sergeant Mr N, investigator, Region O, child and family investigation unit, requesting that I contact him.  I immediately did so and was requested to interview on Sunday, 14 July 2019 at 3.45.  In company with my solicitor, I attended at the police station and the allegation put to me by police was that X presented to the City B Police Station on 9 April 2019 and made the following allegations…”[5]

    [5]  See father’s affidavit filed 15 July 2019 at [50]

15. The mother’s affidavit was filed on 5 July 2019.  It seems clear that she was present at the police station with X.  Whether she was present in any interview between the child and anybody is unclear.  Anyway, the allegation was that on at least five occasions in the January 2019 holidays, that X had been drugged with Milo – Ms J has spoken with X about that issue – and while she was asleep, it says:

    “…asserted my finger into her vagina.” 

16. Now, the child was asleep.  How deeply asleep is unclear to me.  Anyway, the officer said ultimately that there would be no prosecution undertaken because there was a lack of forensic medical evidence, there were no witnesses to any offending.  Whether that means because the child was asleep is unclear to me. 

17. It was also said there were inconsistencies with the narrative of the alleged offending across the board between the mother, the child and the doctors.  I hasten to add that the mother was a part of the complaint process, not Mr Cerwin.  The mother, as I have indicated, has said very little about the incident in her affidavit material. 

18. In any event, one of the reasons Ms Lindsay wished to adjourn the proceedings was that she wanted to get more information from the police and it would be, I think, of benefit if the complaint could be resolved definitively one way or the other, to everyone’s satisfaction.  That would be a good thing.  For example, if the child was interviewed by the police and that was on video tape, it might be useful to see it.  I do not know. 

19. I have not seen it and nor has Ms Cerwin, I think, or those whom she has retained.  Certainly in her affidavit material, there is no reference to it.  In addition, it is said that Dr K, the doctor, was concerned, and Dr K wrote to an officer Mr P on 30 April 2019:

    “X told me during the visit she has had with her father over a number of years while she was staying with him, she has had a sore vagina and at different times has noticed some bruising which has occurred on her wrists and her thighs, some bruising in other areas for which she cannot always remember a specific cause for.  The mother reported that the child had a sore vagina and it looked inflamed and it had been treated with paw paw cream.”[6]

    [6]  See Exhibit A

20. X had been taken to the doctor who, as I indicated, was not willing to examine the child, but it seems to be the case that a test for a urinary tract infection was undertaken and that was negative:

    “X also reported that when she stays with her father, usually, she is expected to sleep in his room with when.  When she has a shower in the bathroom, he makes sure the door is open and the shower screen is open and he can observe her from the lounge area.  On the last occasion that X was staying with her father, her grandmother, his mother, stayed in the home also.  Her grandmother slept in X’s bedroom of the paternal home and X advised that she slept on the couch and she still had a sore vagina after staying there.

    X denied there were any issues regarding contact with her father during the day.  She is worried that something has happened to her but she reports it has only happened to her at night.  She sleeps very soundly when she is in her father’s home.  X told me that she has Milo at her father’s home which tastes differently from the Milo she has had at her friend’s, her grandmother and her mother’s home.”[7]

    [7]  Ibid

21. And the doctor opines:

    “In terms of physical injuries, there was no evidence of recent physical injury to X.  A very superficial examination of the vagina does not show an intact hymen but I do not believe that this is abnormal in some young girls.  Psychologically, X was frightened and does not wish to stay with her father.  She feels uncomfortable showering under his view and she feels uncomfortable about the soreness in her vagina for which she has no immediate memory of any reason for it developing apart from the observation that it only occurs during her visits at his home.”[8]

    [8]  Ibid

22. Now, that report is dated 30 April 2019, and it was forwarded to the mother’s solicitor on 24 June 2019, so some weeks before the trial.  It is the case that Mr Alevizos has not followed up on that.  In any event, the proceedings had to be adjourned part-heard. 

23. I was hopeful, for the reasons I have explained, that during the adjournment that Mr Alevizos or somebody, perhaps even Mr Carlin – I do not know – would subpoena the police records in respect of this matter or that they would obtain an affidavit from the doctor.  None of that happened and when the proceedings began – recommenced yesterday – Ms Lindsay was at pains to hurriedly prepare an affidavit or to tender an affidavit for Mr Alevizos, who deposed:

    “Further information is required to be provided prior to the court making a determination in this matter.  Due to the lateness in securing funding, I was unable to issue subpoena within the required framework to the child, X’s school, medical practitioners and SAPOL.”[9]

    [9]  See affidavit of Mr Alevizos dated 2 October 2019

24. That refers to some evidence regarding a school counsellor, and the school counsellor has said that X has presented as being stressed.  One of the issues as I recall the counsellor was concerned about was the issue about the payment of the fares for X to go between City B and here.

25. In any event, the things that in July were of such moment as the trial unfolded had not been attended to, and clearly, I am concerned about that.  I appreciate there are difficulties with Legal Aid funding, but at the end of the day Mr Alevizos is a professional person.  He has obligations to his client and the court. 

26. It does not seem to me to be unreasonable that in three months, these matters could not have been attended to.  Whether they will be of any forensic value one way or the other is unclear to me. 

27. At first blush, it seems to be the child’s complaint that, “I slept more heavily than normal.  Something has happened to my private parts.  It must be my father.”  That is not a complaint that was expressed to the family consultant or, indeed, to Ms J.  Now, I appreciate that there may be some delicacy from X’s point of view about discussing these matters with strangers. 

Conclusions

1. The central issue in this case is easily expressed but not easily resolved.  Mr Cerwin, I think, concedes that it will be a very major change for X to move from City B to come and live in Adelaide with him, but it is his position that if X remains in City B, it is inexorably the case that he will have no relationship with the child whom he loves.  It is his position that he has done nothing wrong.  Essentially, that X will follow her mother and he will be shut out of X’s life.

2. The mother’s position – and it has been stridently put by Ms Lindsay, and I understand it, and I understand the passion these cases invoke – that there is something happening, and the court’s obligation is to act protectively for the child.  I concede that section 60CC of the Act prioritises the protection of children.  The test is whether there is an unacceptable risk the child will come to harm if exposed to a person. 

3. I am not here to find out definitely one way or the other whether the child has been sexually abused by her father.  The test is whether there is an unacceptable risk of that occurring, because it would be, of course, unimaginable that a child has to spend time with a person who drugs the child with a soporific and then inserts his fingers in the vagina, causing inflammation.  That would be horrific. 

4. On the other hand, it is equally unpalatable that a child loses a potentially very beneficial relationship with someone who loves her on the basis of something that is uncertain, imprecise, nebulous.  That is where the test arises.  It cannot be an absolute one. 

5. In some cases, there may be a person – the parent – who is manufacturing and concocting evidence in others.  A person may honestly but mistakenly believe sexual abuse has occurred.

6. In this case, Ms Lindsay – and I give that background – before lunch, in this case – and I should hasten to say this – Ms Lindsay has asked me to adjourn the matter on the basis, amongst other things, that the second Mr D report is 12 months old.  She asserts that there has been much water under the bridge so far as X is concerned since it was prepared in respect of the police involvement. 

7. With the greatest respect to Ms Lindsay, she does not know what the police involvement is, because she has not got it yet, and in respect of Dr K.  I concede that the report is 12 months old, and perhaps Mr D’s conclusion needs to be revisited in the light of more information. 

8. In those circumstances, I indicate to counsel that I was considering if the case had to go part-heard again; considering X spending a period of time with her father and at the end of that period being interviewed by another expert about her view. 

9. As I indicated, the child’s view is a matter that is of some relevance.  The mother’s position is the child is vociferous she does not want to see her father, and it is the mother’s position that once you get to be 10, 11 or 12, the child should have his or her say. 

10. It was against that background that she brought the child into Adelaide and, as I indicated, I did not listen to the child because I was not inclined to, but I thought the child ought to spend time with her father.  Anyway, so that, perhaps, would answer one of the criticisms Ms Lindsay has of the proceedings today.  There would be some updated material.

11. It would also, perhaps, throw some light on this police material as to what are all these inconsistencies – what does the child say happened to her?  Is it that, “I was asleep, I have these injuries, the only reason can be my father, but I don’t know definitively”.  I do not know.  We have not got that material. 

12. In July, I expressed a provisional view in the context of interim proceedings that I did not think Mr Cerwin represented an unacceptable risk to the child, bearing in mind these matters and also the fact that I had to consider the benefits of X having a meaningful level of relationship with him, and there was evidence in both the first Mr D report and the second Mr D report that the child does have a positive relationship with him.  So the time was fairly protracted, and as I recall the mother indicated to me that she could live with it.

13. I should also say – and perhaps I’m wrong about this, and Ms Lindsay no doubt will complain if I am – that in support of adjourning the proceedings yesterday, she indicated that the father could have daytime periods with X whilst this material was obtained.  

14. I was not inclined to adjourn the proceedings, because fundamentally I thought that would be unfair to Mr Cerwin, and he has told me he is funding these proceedings.  He is not a wealthy person.  He has spent a significant amount of money in pursuing them. 

15. Ms Lindsay said that any prejudice to Mr Cerwin could be occasioned by an order of costs.  Well, I do not necessarily think that is the case, because from Mr Cerwin’s perspective, this is not about money, it is about having a relationship with X, and he fears that he is in the throes of losing her.  In any event, it must be problematic that Ms Cerwin herself could satisfy any order for costs in any event. 

16. Although this application was not made, if there was any dereliction, it seems to be that it might be Mr Alevizos, but I do not know.  That’s not an issue that was pursued.  I thought that I needed to hear from Mr Cerwin, and I have heard from him in presentation.  He has denied any abuse of the child. 

17. So Ms Lindsay objects to me indicating – and I think, with the greatest of respect to her, that she misconstrued what I said, and that is easily done.  I was not contemplating changing the child’s residence.  I was contemplating the father – indeed, which the final orders to which Ms Cerwin agreed envisaged – spending a period of time with X, after which the child would be interviewed. 

18. My concern, of course, being that on the evidence that I have heard to date – and I think I am entitled to express some form of view about this, having heard both parties – that there are some concerns the child if brought by Ms Cerwin to a court counsellor, may either directly or indirectly influence the child in her presentation, and I do not know if that would be necessarily helpful.  I bear in mind what happened in the supervised handover.

19. Ms Lindsay also complains that I have not allowed her to put her case, and it is true that I have had some issues, as indeed has Mr Dillon, who appears for the father, in how Ms Lindsay has put her case.  She says, I think, that it is not her fault, and I am not saying that it is, but her client’s case, she asserts, is not particularly well-prepared.  Whether that is so or not is not something about which I propose to make a judgment as yet.

20. In any event, I have pointed out that many matters which Ms Lindsay has wanted to raise with Mr Cerwin are matters about which her client knows and which Ms Cerwin herself did not give evidence-in-chief.  To a large part, Ms Lindsay has elected to take things Ms Cerwin said to Mr D in the first family report and to Dr F in the psychiatric assessment and asked Mr Cerwin to confirm the truth or otherwise of those statements. 

21. I have indicated that I have some difficulty that that is an appropriate way to do it.  Also, to be perfectly frank, I have also said I am not particularly concerned about Mr C now.  He is a grown up.  He is not going to give evidence in these proceedings – at least, he has not prepared an affidavit – and I am concerned with X, not him.  

22. As I indicated, the High Court has said that it is up to me to a certain extent to clarify the issues. That is certainly the import of section 69ZN.

23. If I have been hectoring with Ms Lindsay – and I do not concede that I have – I apologise to her.  But she is a passionate person, and she is, I suspect, very significantly involved in this case from her client’s point of view, which, for obvious reasons, has a significant emotional quotient. 

24. As I said, the mother is – her case is she is convinced something has happened.  That is an issue in the mix, as it were.  Can it be the case that because a parent thinks something has happened that there can be no relationship whatsoever between the child concerned and the other parent involved?  Well, in some cases, perhaps so, but in this particular case, the mother has not presented her case as such. 

25. I have not got expert evidence that is saying the mother has these issues, although it seems to be the case that she has suffered from anxiety and depression in the past and has been prescribed medication for it.  However, that is a long way from saying that because of those conditions there can be no time.

26. In any event, these are issues that ultimately fall to me and in many cases, as Mr Dillon points out, I have to make an interim decision because, ultimately, I have to do what I think is in the best interests of the child.  I do not think having indicated to the parties that I am considering a particular outcome indicates a degree of pre-judgment.  I am, in fact, in my view, trying to get more evidence.  Evidence, indeed, which the mother wants to put before me. 

1. It may be that the mother objects to the manner in which I am getting the evidence, but that is a different thing.  It will also give the mother some time to get this material from the police and from Dr K and, indeed, from the school counsellor and I hasten to add that that is all material which the mother is able to get herself. 

2. Ms Lindsay complains that I have interrupted her.  Well, with the greatest respect to Ms Lindsay, from my perspective, that is one of the exigencies of modern litigation involving children.  I am sorry about that, but I think it is incumbent upon counsel to be prepared to ask questions that are focused on issues. 

3. I am directed to make the proceedings as unlegalistic, if that is a word, as possible and with that in mind, from time to time I ask what I think are simple questions because I want to know the answer to them.  That is why I asked Mr Cerwin what sort of a child is X.  I asked him, “What happened after X came into your care?”  I asked about her friends.  They are the issues of interest to me. 

4. Ms Lindsay is entitled to put things, but at the end of the day, bearing in mind the expense of these proceedings and the burden they impose, I also think I am entitled to say I do not think matters that occurred in 2012/2013, what a person said to a forensic psychologist five years ago, I do not know if that is particularly helpful. 

5. The mother has expressed to a number of people that she has no confidence in the family law system.  Well, she is not on her own in this country.  Many people every day of the week in the papers express their lack of confidence.  Well, I regret that, but there is not much I can do about that.  I have to do the best I can.  I have to remain focused on X.

6. I do not think a reasonable layperson would think I have got a closed mind about this case.  I do not think I have displayed ostensible bias or pre-judgment.  These cases, as I say, precipitate quite extreme emotional responses from all concerned, myself included.  That is one of the dilemmas of my position. 

7. I sit in judgment and I have to contemplate this case which has no perfect outcome over a child spending time with a person she clearly loves very much indeed when I can have, I think, not a great deal of confidence that any orders that I make will necessarily come to fruition or remove the child and put her in the care of someone else.

8. One of the interesting things about Mr D’s report was that he opined that he was open to the fact that the mother, perhaps, was subject to – and this was an issue that Ms Cerwin has given her evidence about and I do not decide what questions are asked, the parties do – perhaps she could have some counselling to support her anxieties if she has anxieties – I do not know – and that has not happened. 

9. In terms of my ostensible bias, I asked Mr Cerwin to consider the moment of that decision and he said, “Well, frankly, that is the only thing that can be done.”  Well, we have not got to that point yet. 

1. Is it wrong of a person in my position to perhaps focus the minds of the parties involved in these proceedings on outcomes that may be different to those that they want and perhaps think of some way that there could be some way forward?  I do not know. 

2. Anyway, for those reasons, I am going to dismiss the application.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Brown.

Associate: 

Date: 31 August 2020