Cogger & Druce (No 3)
[2023] FedCFamC1A 12
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Cogger & Druce (No 3) [2023] FedCFamC1A 12
Appeal from: Cogger & Druce [2022] FedCFamC1F 405 Appeal number(s): NAA 145 of 2022 File number(s): BRC 4873 of 2020 Judgment of: ALDRIDGE, KARI & BRASCH JJ Date of judgment: 16 February 2023 Catchwords: FAMILY LAW – APPEAL – Where the appellant challenges the primary judge’s finding that she is an unacceptable risk of harm to the child – Where the appellant contends that the primary judge failed to consider incidences when the child had exhibited sexualised behaviours to persons other than the mother – Where the primary judge undertook a detailed and meticulous examination of all the evidence that had been presented – Where the primary judge made credit findings against the appellant which were not challenged – Where the appellant challenges an order providing for indefinite supervised time – Where the primary judge carefully considered the making of an order for indefinite supervised time – Where the appellant contends that a nine month delay in judgment delivery infected the decision – Where there is no merit in any of the grounds of appeal – Appeal dismissed – Where the respondent sought costs – Court concerned that if the appellant was required to pay costs, she would not have funds to meet the costs of supervised time spending with the child – No order for costs. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: M v M (1988) 166 CLR 69; [1988] HCA 68
Manifold and Alderton (2021) FLC 94-015; [2021] FamCAFC 61
Cogger & Druce (No 2) [2023] FedCFamC1A 11
Number of paragraphs: 60 Date of hearing: 28 September 2022 Place: Brisbane, delivered in Sydney Counsel for the Appellant: Mr Duplock Solicitor for the Appellant: O’Sullivans Counsel for the Respondent: Mr Galloway Solicitor for the Respondent: HCM Legal Counsel for the Independent Children’s Lawyer: Mr McGregor Solicitor for the Independent Children’s Lawyer: Aylward Game Solicitors ORDERS
NAA 145 of 2022
BRC 4873 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS COGGER
Appellant
AND: MR DRUCE
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE, KARI & BRASCH JJ
DATE OF ORDER:
16 February 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cogger & Druce (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, KARI & BRASCH JJ:
Introduction
This is an appeal from final parenting orders made in relation to the parties’ child born in 2014 (“the child”) by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 3 June 2022.
The child’s parents are Ms Cogger (“the mother”) and Mr Druce (“the father”).
Whilst a detailed suite of parenting orders was made by the primary judge, in essence the orders provided for:
(a)An immediate change of the child’s living arrangements from the mother to the father;
(b)The father to have sole parental responsibility;
(c)No time spending between the child and the mother for a period of 12 weeks; and
(d)Thereafter time spending between the child and the mother to occur on a supervised basis at a contact service for a period of two hours once a fortnight, and additionally on Christmas Day, Easter Sunday and the child’s birthday for a period of four hours.
The mother has appealed all of the orders that were made.
For the reasons that follow, the appeal is to be dismissed.
Background
The parties began living together in 2010, married in late 2012 and separated under the same roof in mid-2016. In early 2017, the mother moved out with the child. In April 2017, the mother and the child returned to live in the former matrimonial home with the father. At that time the paternal uncle was also living in the home. In mid-2017, the mother and the child again moved out of the former matrimonial home, and thereafter the parties have lived separately and apart.
For three years after the parties separated they were able to facilitate the arrangements for the child to spend time with the father without recourse to the Court. This occurred against a backdrop of the mother insisting from August 2017 that the father’s time with the child be supervised by either herself or the maternal grandmother.
The basis for the mother insisting that the father’s time with the child be supervised was because she had formed the view that the child had been sexually abused by the father and/or the paternal uncle during a period of time spending on 19–21 August 2017. These allegations were denied by the father and the paternal uncle.
The mother took the child to a medical centre on 23 August 2017 and asked that stool microscopy and swab microscopy be undertaken to search for semen cells. After examination, the doctor recorded that the child’s “anus was intact with ‘nil fissures or cracking’; there was no redness to her vagina, there was nothing abnormal about her frenulum or labia” (at [63]).
The doctor recorded his impression as “[a]ltered bowel habits” (at [65]).
Swabs were taken but they were unable to be tested due to the lack of sample and its age. Nonetheless, after a further consultation with the mother, the doctor reported the matter to the Department of Child Safety which, after investigation, found that there was no evidence that the child had been sexually abused.
In early September 2017, the mother spoke to the police alleging that the child had been sexually abused by the father and the paternal uncle on 19 August 2017. In early October 2017, the police concluded that no offence had been committed because attempts to speak to the then three year old child had been unsuccessful, no verbal disclosures had been made and no forensic evidence had been discovered after forensic testing.
The mother then took the child, over time, to a number of health professionals for therapy for sexual abuse.
On 1 May 2020, the mother commenced proceedings in the Federal Circuit Court of Australia (as it was then known).
On 17 June 2020, a judge of the Federal Circuit Court made orders providing for the child to live with the mother. No orders were made for time spending between the child and the father. An Independent Children’s Lawyer (“ICL”) was appointed and the proceedings were transferred to the Family Court of Australia (as it was then known).
On 12 May 2021, a senior registrar expedited the final hearing to commence on 19 July 2021. In addition, orders were made on 21 May 2021 dismissing the father’s application to spend supervised time with the child. The consequence of this determination was that, the father did not spend any time with the child from March/April 2020 until the final parenting orders were made.
The final hearing commenced on 19 July 2021 and took place over seven days between July and August 2021.
The mother’s position at the final hearing was that the child continue to live with her and that she spend no time with the father, as the father presented an unacceptable risk of sexual abuse and/or psychological harm. The father’s position was that the child live with him and spend supervised time with the mother, as the mother presented an unacceptable risk of physical, psychological and emotional harm as a consequence of the mother engaging the child in her belief that the father had sexually abused her. The ICL supported the father’s case.
As is apparent from the competing position of the parties, the central focus of the trial was the allegations of sexual abuse that had been made by the mother. While the primary judge was not required to make findings as to whether such abuse had occurred,[1] the primary judge considered that it was appropriate to do so in order to resolve the considerations prescribed by s 60CC of the Family Law Act 1975 (Cth).
[1] M v M (1988) 166 CLR 69.
The primary judge made a finding that the child had not been sexually abused by the father or the paternal uncle.
In making this finding the primary judge extensively considered the credit of the parties and their witness’, and made a finding that wherever the mother’s evidence conflicted with that of the father and/or the paternal uncle, their evidence was to be preferred over the mother’s (at [12]–[25] in particular, but also throughout the reasons). In doing so, her Honour frequently had regard to the contents of independent records. The primary judge found at [12]:
12.… I have concluded that the mother’s evidence has to be approached with significant caution. I am persuaded that she deliberately lied on occasion; at other times she was, I consider, deliberately evasive and obstructive.
The primary judge went on to find at [24]:
24.There is, I think, significant force in the submission by Counsel for the Independent Children’s Lawyer that the evidence establishes that the mother has been willing, in this case, to lie, exaggerate or misrepresent the truth in order to achieve her aim of getting [the child] to disclose the abuse she has no doubt occurred and, consequently, remove the father from the child’s life.
The corollary of these findings by the primary judge were two separate findings:
(a)Firstly, that the child was not at an unacceptable risk of sexual abuse by the father if her time with him was unsupervised; and
(b)Secondly, that the child was at an unacceptable risk of psychological and/or emotional harm if she continued to live with the mother or her time with the mother remained unsupervised.
The appeal
The mother filed a Notice of Appeal on 1 July 2022 containing eight grounds of appeal. Each of the grounds of appeal were lengthy, containing several sub-grounds.
On 21 September 2022 the mother filed an Amended Notice of Appeal, reducing the grounds of appeal to three grounds as follows:
(1)The primary judge erred in finding the mother was an unacceptable risk of psychological/emotional harm and abuse to the child by:
(a)Virtue of continuing to engage the child in therapy for the purpose to deliberately obtain disclosures and evidence of sexual abuse against the father;
(b)Virtue of the risk of the child believing she was and/or has been sexually abused by the father;
(c)The mother will continue to expose the child to anxiety and the belief the child was sexually abused;
(d)The finding the child’s behaviours will be interpreted by the mother as indicia of sexual abuse perpetrated by the father; and
(e)By failing to consider the evidence of the child’s sexualised behaviours observed other than by the mother.
(2)The primary judge erred in finding it was in the best interests of the child, to spend indefinite supervised time with the mother;
(a)By virtue of failing to consider evidence of the mother accepting a finding by the Court that the father was not an unacceptable risk of harm, by virtue of sexual abuse to the child; and
(b)By virtue of the fact cogent reasons and consideration of the best interests of the child should have been given when indefinite supervised time is ordered.
(3)The delay in the judgment of nine months has manifested in an injustice to the mother as the primary judge’s ability to determine the evidence and make findings of fact and law have been impacted from such delay:
(a)By virtue of the fact the evidence of Dr R and the child’s kindergarten teacher of the observed sexualised behaviour as not been considered by the primary judge, which was imperative evidence when determining the legal issue of unacceptable risk; and
(b)The primary judge found that the mother was the only person that observed the child’s sexualised behaviour.
Significantly, the mother did not seek to challenge the primary judge’s credit findings which provided the foundation for the ultimate findings and orders made.
Ground 1 – Did the primary judge err in finding that the mother was an unacceptable risk?
Central to this ground of appeal was a submission that the primary judge had erred in making a finding at [134] that the mother had been the only person to observe the child’s “sexualised behaviours”.
The nexus between this submission and this ground of appeal being that if the primary judge had erred in this regard, then the foundation for the finding that the mother was an unacceptable risk of emotional and/or psychological harm by exposing the child to her belief that the child had been sexually abused, was flawed.
In support of this alleged error, the mother identified that there were three separate occasions when persons other than the mother had observed the child’s “sexualised behaviour”.
(a)The first being a kindergarten teacher who reported to the child’s first therapist (Dr Q) on 6 June 2019 that she had observed the child “being clingy, controlling, having bad dreams, aggressiveness and talked about monsters, observed other students genitals in the toilet, pulling her pants down and lifting her shirt and doing a dance and would not toilet alone”.[2]
(b)The second being the child’s second therapist (Dr R) who as part of her therapy with the child had assisted the child to complete a “Child and Adolescent Trauma Screener” (CATS) on 1 July 2020 in which she had identified that she was “scared of monsters”, “scared that the monster will touch my bum”, the “monster is a man” and that it was “two men” who had “short hair”.[3]
(c)The third being an occasion on 15 October 2020 when Dr R video recorded a therapy session with the child in which the child had said “her father had touched her bottom at a point in the past and indicated that he had put his finger (or fingers) in her anus at some point in the past”.[4]
[2] Mother’s Amended Outline of Argument filed 21 September 2022, paragraph 9(a).
[3] Mother’s Amended Outline of Argument filed 21 September 2022, paragraph 9(b).
[4] Mother’s Amended Outline of Argument filed 21 September 2022, paragraph 9(c).
To understand the difficulties with the alleged error, it is important to contextualise the comments of the primary judge in the final sentence at [134] about which complaint was made.
134.I also note, as Dr Q did in January 2018, that the father had not seen [the child] engage in inappropriate sexualised behaviour, although it appeared that, in his attempt to reassure the mother that [the child] was safe in his care – so that he could achieve his goal of spending unsupervised time with her – he was prepared to “acknowledge” that this had occurred when she was in her mother’s care. In fact, the evidence clearly establishes that the mother is the only person who has reported observations of [the child’s] asserted “sexualised behaviour”.
A complete answer to the mother’s complaint, is that the final sentence of this paragraph cannot be extracted from the entire paragraph and given altered significance. Rather the final sentence must be read together with the words that precede it. When that is done, it is clear that the primary judge was agreeing with an observation that had been made by Dr Q in January 2018, as to the facts and circumstances that presented themselves at that point in time which significantly in that context preceded all three occasions now identified by the mother in support of the alleged error.
However, should this not be a correct interpretation of the primary judge’s comments at [134], there are further difficulties with this ground of appeal that are fatal.
As has been identified, the three occasions the mother has identified as occasions when persons other than the mother were said to have observed the child’s sexualised behaviour, all arose in the context of the child’s therapy, initially with Dr Q and after that process concluded, with Dr R.
On any plain reading of the judgment, the primary judge undertook a meticulous and detailed examination of all of the evidence presented. The reasons themselves run to some 60 pages. In addition, the primary judge annexed two detailed schedules to those reasons which comprised of a further 182 pages. The second and far more lengthy of those schedules carefully examined all of the therapeutic interventions the mother facilitated the child attending.
Having undertaken that exercise, the primary judge made comprehensive findings rejecting the opinion expressed by the child’s therapists. Importantly, these findings are not the subject of complaint by the mother. Of note, the primary judge concluded at [128]:
128.I do not accept any opinion to the effect that [the child] was sexually abused on the August 2017 weekend and that the father was the person responsible for this where the same is based predominantly on information provided by the mother. Similarly, I do not accept any assertion that [the child] had been “groomed” for a number of months before the August 2017 weekend where such opinion rests solely on information provided by the mother. I also note, in particular, that it appeared on the evidence that Dr X had provided a draft report to the mother for comment and that, following an exchange of emails between them, a report in relatively significantly changed terms issued. However, I also note that, when the mother sought to have Dr X assert that information that led her to believe father abused [the child] (on the basis that she was “looking for not only what she said and consistency, but body language, tone of voice, fear and other similar factors”), Dr X advised her that it was tricky because she had nothing she could directly report on. I accept Dr X told the mother that, whilst she believed her reports about what she had observed, she (Dr X) had not observed anything that she could confidently say was because of the father had “abused” [the child] and that, whilst she could describe [the child’s] current behaviours as seen in sessions, she could not answer the question the mother asked in the manner it was intended to be answered.
This finding must also be read together with the primary judge’s criticisms throughout her reasons that she considered that the mother had taken the child to therapy in the hope of obtaining disclosures of abuse (at [107]) and that each of the therapists had approached their therapy with the child from a premise of accepting the mother’s reports that the child had been the victim of sexual abuse in the father’s care or that she had been sexually abused by the father (at [115]).
In light of these findings, there are three matters of significance that flow and are fatal to the mother’s complaints involving the alleged sexualised behaviours witnessed by persons other than the mother, which all took place during two separate therapeutic processes.
Firstly, the primary judge positively eschewed any opinion proffered by a person who had relied on information provided “predominately” by the mother, as each of the therapists had done.
Secondly, the primary judge made it clear that Dr R’s evidence was that she herself did not consider that she had observed the child displaying any behaviours which were indicative of sexual abuse by the father.
Finally, because the therapy commenced from a platform of accepting the child had been sexually abused, each of the therapists did not explore any explanation for the behaviours and/or comments of the child outside the prism of the child being the victim of sexual abuse.
For all of these reasons, this ground fails.
Ground 2 – Did the primary judge err in ordering indefinite supervised time?
The mother submitted that the primary judge did not properly consider the mother’s answers in cross-examination and/or did not provide cogent reasons when determining that an order for indefinite supervised time between the mother and the child was in the child’s best interests.
The difficulty with this submission however is that the primary judge dedicated an entire section of her reasons (at [224]–[231]) under the heading “The undesirability of a long-term supervision order for [the child’s] time with her mother/father” to a consideration of that very topic.
Relevantly in that portion of the reasons, the primary judge specifically turned her mind to a number of factors which led to the finding that in all of the circumstances a long term supervision order for the child’s time with the mother was appropriate. Of particular relevance is the primary judge’s conclusion at [227]:
227.Given the mother’s behaviours, as apparent from the entries in Schedule 2 and the balance of these Reasons, it would, I consider, be naïve in the extreme to conclude that, in the event [the child] spent unsupervised time with her after moving to live with her father, the mother would be able to refrain from recommencing her search for disclosures and/or evidence that [the child] has been sexually abused by her father and uncle.
Importantly, a consideration of the transcript of 22 July 2021 at pages 273 to 276 does not reveal that the primary judge ignored the mother’s answers in cross-examination, nor that the primary judge erred in coming to a conclusion at [231] that absent “expert evidence” she could not be satisfied that the mother was capable of changing her view that the child had been sexually abused by the father and/or the paternal uncle and that the child was at risk of sexual abuse in the future. Of significance, the mother was cross-examined about whether she would accept a finding that the child had not been the victim of sexual abuse by the father and/or the paternal uncle. While the mother answered “I would have to respect that”, the primary judge was careful to ensure she understood the mother’s evidence in that regard, and thus probed the mother further. The mother’s exchange with the primary judge was equivocal, and left no doubt that the mother had not entertained the possibility of a finding adverse to her case.
For all of these reasons, Ground 2 fails.
Ground 3 – Did the delay in judgment infect the decision?
This ground of appeal can be disposed of swiftly in circumstances where the mother’s counsel acknowledged that if Ground 1 failed, then Ground 3 must also fail.
In light of the matters discussed in relation to Ground 1, this was an appropriate concession made on behalf of the mother.
It is however important to identify that delay in and of itself is not a sufficient ground of appeal. As identified by Strickland J in Manifold and Alderton (2021) FLC 94-015 at [36]:
36.Although it is the case that delay is not itself a ground of appeal, the authorities are clear that where there is delay, the reasons for judgment must be subject to the strictest of scrutiny (e.g. McCrossen and McCrossen (2006) FLC 93-283). Indeed, it is sometimes said that inordinate delay represents a denial of procedural fairness in the form of a denial of a fair hearing. For example, the delay creates a real and substantial risk that the court’s capacity to assess the evidence and evaluate the claims was impaired (NAIS at [10]).
As earlier identified, the reasons of the primary judge exhaustively and meticulously examined all of the evidence that had been presented. It therefore cannot be said that delay infected the primary judge’s reasons.
This ground fails.
Conclusion and costs
The appeal is to be dismissed.
The father sought an order for costs in the event that the appeal was dismissed.
We are also conscious that we have reserved the father’s costs arising from the mother’s unsuccessful application to re-open the appeal and adduce further evidence in the appeal (Cogger & Druce (No 2) [2023] FedCFamC1A 11).
The ICL did not seek any order for costs.
While the mother has been wholly unsuccessful in the appeal, and in the application to re-open the appeal and adduce further evidence in the appeal, the Court does not consider that it is appropriate that there be an order for costs when regard is had to the mother’s financial circumstances.
Those financial circumstances include:
(a)The mother is reliant on Centrelink benefits;
(b)The mother does not own any real property; and
(c)The mother is in receipt of a grant of legal aid.
In addition, pursuant to Order 11 of the primary judge’s orders, the mother is obliged to meet the costs associated with the supervised time spending that is to occur at a contact centre.
In all of the circumstances, the Court is concerned that if the mother was required to meet any order for costs, she would not have funds available to meet the costs of time spending with the child.
Accordingly, there is to be no order for costs in relation to the appeal or the Application in the Appeal.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Kari & Brasch. Associate:
Dated: 16 February 2023
0
2
0