CROWLEY & PICTON
[2018] FamCAFC 100
•30 May 2018
FAMILY COURT OF AUSTRALIA
| CROWLEY & PICTON | [2018] FamCAFC 100 |
| FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Applications to adduce a transcription of a JIRT interview and a Department of Family and Community Services contact record as further evidence in the appeal – Application of principles in CDJ v VAJ (1998) 197 CLR 172 – Where the evidence was available or obtainable at the time of the trial but was not called – Where the further evidence, if it had been called during the trial, would not have changed the outcome – Applications dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO AMEND – Oral application for leave to amend the grounds of appeal and to rely on an updated Summary of Argument – Application unopposed – Leave granted. FAMILY LAW – APPEAL – PARENTING – Unacceptable risk – Findings of fact – Weight given to the evidence – Whether the primary judge gave inadequate weight to the need to protect the child from physical and psychological harm – Whether the primary judge gave inadequate weight to evidence about the harm the mother posed to the child when in the mother’s care – Where many of the grounds of appeal were dependent on further evidence being received – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 60CC, 117(4) |
| Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 |
| APPELLANT: | Mr Crowley |
| RESPONDENT: | Ms Picton |
| INDEPENDENT CHILDREN’S LAWYER: | Acorn Lawyers |
| FILE NUMBER: | WOC | 393 | of | 2013 |
| APPEAL NUMBER: | EA | 114 | of | 2017 |
| DATE DELIVERED: | 30 May 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Pascoe CJ, Ryan & Aldridge JJ |
| HEARING DATE: | 14 May 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 October 2017 |
| LOWER COURT MNC: | [2017] FamCA 811 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Swan Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Saw |
| SOLICITOR FOR THE RESPONDENT: | McNamara & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Lawrence |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Acorn Lawyers |
Orders
Leave is granted to the appellant to file an Amended Notice of Appeal and a further Summary of Argument.
Leave is granted to the appellant to make an oral application to adduce as evidence in the appeal a transcript of a JIRT interview dated 9 September 2015.
The Applications in an Appeal filed on 30 January 2018 and 3 April 2018 and the oral application to adduce evidence are dismissed.
The appeal is dismissed.
The Independent Children’s Lawyer’s application for costs is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Crowley & Picton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 114 of 2017
File Number: WOC 393 of 2013
| Mr Crowley |
Appellant
And
| Ms Picton |
Respondent
REASONS FOR JUDGMENT
Introduction
On 12 October 2017, Rees J made orders providing for the future living arrangements for X (“the child”), who was born in 2009. He was to live with his mother, Ms Picton (“the mother”), who was to have sole parental responsibility for him. The orders included a prohibition on the father, Mr Crowley (“the father”), having any contact with or approaching the child and the mother and approaching the child’s school or any place where the child was attending an activity. The father was permitted to deliver gifts and cards to the child on his birthday and at Christmas, but via a third party.
The orders, which indeed have a significant effect upon the child’s future, followed a hearing which posed very difficult questions for the primary judge.
The parenting ability of each party was described as “suboptimal” by Dr H, the psychologist appointed by the Court as the single expert. She opined (quoted by the primary judge at [397]):
[The child] would benefit from authoritative parenting in a safe, calm, well-structured environment but is unlikely to receive this from either parent.
Relying on the evidence of Dr H, her Honour considered that the key issues before her were, first, “which parent is potentially the most damaging as a primary caregiver” and, second, “does the stress involved in maintaining the child’s relationship with the secondary caregiver outweigh the benefits conferred by that attachment” (at [429]).
Her Honour’s reasons traverse in a detailed manner the history of relevant and significant events, the evidence and her considerations under s 60CC of the Family Law Act 1975 (Cth) (“the Act”). In doing so, her Honour was clearly focused on the two issues identified above.
Her Honour concluded:
487.X is a vulnerable child who has suffered behavioural and educational problems. He needs to have every possible opportunity to grow up and reach his full potential. He cannot achieve that goal if all of his energies are expended on weathering the storms of the conflict between his parents.
488.All of the evidence leads to the conclusion that the child must live with one parent and have no contact with the other.
489.If the child lives with his father, he will eventually adopt his father’s contemptuous attitude towards his mother and have no possibility of a relationship with her in years to come.
490.In concluding that the child will live with his mother and spend no time with his father, I have given the greatest weight to the following matters:
· The inexorable denigration of the mother by the father and the paternal grandmother and the inevitable impact of this denigration upon the child.
· The continued disregard of Court orders by the father and the paternal grandmother.
· The improvement in the child’s psychological well-being and behaviour since the mother has been his sole parent as observed by his teacher and psychologist;
· The mother’s efforts in seeking counselling for herself and the child and in making positive changes to her parenting for his benefit;
· The lack of evidence that the mother has denigrated the father in the child’s presence or sought to alienate him from his father. If the child lives with his mother, there is a possibility that, in later years, he will be able to reinstate a relationship with his father.
…
494.Both parents agreed that the parent with whom the child lives should have sole parental responsibility.
The appeal was opposed by the mother and the Independent Children’s Lawyer (“ICL”).
The Appeal
The Notice of Appeal and the father’s Summary of Argument had been prepared by him. He had, however, engaged a solicitor to conduct the appeal on his behalf. She appeared at the hearing of the appeal and sought substantially to recast it.
To this end, the father’s solicitor made two oral applications at the outset of the appeal. Her first application was to seek to file an Amended Notice of Appeal which replaced grounds 1 to 4 of the original notice with new grounds. Leave was sought to file a new Summary of Argument which dealt with those grounds. Paragraphs 4, 13, 15, 20 and 22 of the Summary of Argument drafted by the father were also to be relied upon.
Despite having been given no prior warning of these applications or advance copies of the Amended Notice of Appeal and new Summary of Argument, neither the mother nor the ICL opposed this application. Leave to amend the grounds of appeal and to rely on the new Summary of Argument will accordingly be granted.
The father’s solicitor then made an oral application to adduce evidence in the appeal being a transcript of a Joint Investigative Response Team (“JIRT”) interview with the child on 9 September 2015. This obviously supersedes the Application in an Appeal filed on 3 April 2018 seeking the issue of a subpoena to the New South Wales Police Force for the production of this document. That application will be dismissed.
Again, as there was no opposition to the application being made or to the affidavit in support being received, the requisite leave will be given.
Applications to adduce further evidence
There are thus two applications to adduce evidence in the appeal. The first was made by an Application in an Appeal filed on 30 January 2018. It seeks the admission of a “Contact Record” dated 26 April 2013 prepared by the New South Wales Department of Family and Community Services (“FACS”), recording notifications made to it on that day. The second is the JIRT interview to which we have just referred.
The FACS Contact Record
In order to understand this application, it is necessary to set out some relevant context.
Until April 2013, the child was spending time with each parent. On 25 April 2013 the father collected the child from the mother and was due to return him on 28 April 2013. The father did not do so, and instead retained the child.
On 9 May 2013, on the application of the mother, the Federal Circuit Court of Australia made a recovery order returning the child to the mother’s care. A further order was made to the effect that the child was to spend no time with the father, who was restrained from approaching the mother and the child.
During the course of his cross-examination the father said that his reason for retaining the child was that the child had informed him that the mother had engaged in oral sex with an 18 year old boy in the presence of the child (Transcript 12 September 2017, p.151).
He said that the paternal grandmother telephoned FACS for advice and was told that the father should retain the child (at [130]).
The primary judge was sceptical of this explanation, saying:
131.The difficulty with the father’s version of those events is that the first mention of the allegation in the file of FACS occurred after the recovery order had been made and the child had been returned to the mother.
The purpose of the proposed evidence is to undermine this finding because it is said to demonstrate that, amongst many other complaints, a complaint of the nature asserted by the father was in fact made to FACS on 26 April 2013.
It is clear that the primary judge was concerned as to whether the FACS records supported the father’s explanation for retaining the child.
Immediately after the father gave his explanation set out at [17] and [18] above the primary judge asked, “[a]re the FACS records here?” (Transcript 12 September 2017, p.167). The father and his solicitor were thus alerted to the need to provide corroboration of his evidence from the FACS records.
In the course of submissions before the primary judge, the solicitor for the father submitted that the evidence of the father as to his reason for retaining the child on 28 April 2013 was corroborated by the FACS records entry for 26 April 2013. Her Honour informed the solicitor that the FACS records that were in evidence contained no such detail (Transcript 14 September 2017, pp.395–396). In response the father’s solicitor referred her to an entry for 13 May 2013 and then one for 25 March 2013. There were then repeated requests by the primary judge for her to be referred to relevant entries within the FACS records that included the asserted notification but ultimately the solicitor accepted that she could not do so (Transcript 14 September 2017, p.397).
At some unknown date, but clearly after the hearing had concluded, the paternal grandmother requested a copy of the notification of 26 April 2013 and received it under cover of a letter dated 26 September 2017. This indicates that although for some reason the relevant Contact Record was not in the material tendered to the Court, it was readily available.
No application was made to the primary judge to re-open the case so as to tender the notification.
The ability of this Court to receive evidence in an appeal is constrained. Ordinarily, evidence that was available or could reasonably have been obtained at the time of the hearing will not be received: CDJ v VAJ (1998) 197 CLR 172 (“CDJ”) at [55]. If it is argued that the admission of the new evidence would require a new trial, “justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial”: CDJ at [111].
The father’s contention is that although a number of subpoenas to produce the Contact Record for 26 April 2013 had been served on FACS, the record had not been produced or if it had been produced “it had been removed from the Court file without authority” (Father’s affidavit filed 30 January 2018, paragraph 10).
It is apparent that an inspection of the material produced by FACS, either prior to the commencement of or during the hearing, would have revealed that the Contact Record was missing. The father’s solicitor was clearly aware of it because she referred to it in the course of addresses. It could then have easily been obtained by request, as was subsequently done, or by urgent subpoena if necessary. FACS responded promptly to the paternal grandmother’s request to produce the document and there is no reason to think that FACS would have acted differently had the request been made prior to or during the hearing. Accordingly, the Contact Record could reasonably have been obtained for the hearing.
Further, we are not satisfied that had the Contact Record been produced at the hearing it would have given rise to a different result.
The retention of the child by the father in 2013 was but the first of a number of retentions that led to successful recovery proceedings by the mother. These retentions, and the explanations for them, were two of many considerations taken into account by the primary judge. Her Honour’s finding at [131] to which we have referred did not figure significantly in these considerations or in the key findings she found persuasive (as referred to in [6] hereof). Indeed, in an unchallenged finding her Honour recorded that “the parents agree that from October 2015 until about June 2016 the parenting relationship was workable” (at [69]). The impact of this incident in 2013 appears far from decisive.
Finally, the Contact Record is not entirely consistent with the father’s evidence. It records that “[a] week ago [the child] told the caller…”. That would appear not to fit in with the chronology described by the father (which was that the child told him between 25 and 26 April). Further, it does not record any advice to the effect that the father should retain the child – rather, the document records that “[t]he caller was given the family relationship advice line contact details”.
The application to adduce the Contact Record will be dismissed.
The JIRT Interview
A significant issue in the hearing was a neck injury that the child suffered and the cause of that injury. The father’s contention at trial was that the mother had caused the injury and that this demonstrated the mother was physically abusive of the child. The primary judge accepted that the child had a significant injury which resulted in dehydration of the discs at C2/3 to C5/6 but could not be satisfied as to the cause.
Her Honour said:
206.Numerous, differing accounts of the allegation have been provided to authorities (police, FACS, JIRT) and medical professionals during the course of these proceedings. After being interviewed by JIRT, the interview records note that the child was unable to recall the alleged strangulation with any specificity. I accept the evidence given by Dr H, and outlined later in these reasons, that the child is under immense pressure to please his father. The child’s alleged version of events as disclosed to his father must be considered in that context.
207.The various medical professionals who have assessed the child with respect to this injury have relied on the father’s or paternal grandmother’s version of events. When the child was seen with his mother at his general practitioner, the doctor noted that the child was “jumping around” when not being examined, and it was also noted that the doctor considered the examinations to be “unreliable”.
208.In addition, both Dr S (physiotherapist) and Dr KK (specialist paediatrician) opined that it was not possible to say for certain what had caused the child’s injury, due to the time that had lapsed and other possible causes of the injury, such as a bruising or bump to the child’s head. I note that the paternal grandmother alleged that Mr J pushed the child down a flight of 12 stairs when the child was three years old.
The father’s solicitor submitted that the JIRT interview of 9 September 2015 establishes that the mother caused the injury. She also submitted that the interview establishes that the child has been subjected to an unacceptable level of family violence in the family home.
We are of the view that this evidence was reasonably available at the hearing. Its absence from the material produced by the NSW Police in answer to a number of subpoenae would have been obvious upon a reasonable inspection. The father’s evidence shows that he readily obtained a copy from the relevant police officer.
The interview is transcribed in the father’s affidavit sworn/affirmed 14 May 2018 and contains the following answers (errors as per the original):
[The detective]: “Oh, okay. Tell me something that you like about your Dad?”
[The child]:“Mm um that he takes me to the park and he doesn’t twist my neck.”
[The detective]: “Sorry?”
[The child]:“That Daddy takes me to the park and he doesn’t twist my neck.”
[The detective]: “Daddy takes you to the park?”
[The child]:“Mummy twisted my neck and she’s never tooken me to the park but Daddy has never twisted my neck and he took me to the park!”
…
[The detective]: “You also said before, [X], that she twists your neck?”
[The child]:“Yeah.”
[The detective]: “Can you tell me more about that?”
[The child]:“Um. Yeah, she a long time ago she, um, twisted my neck like she said, ‘look at me [X],’ and I didn’t look she said, ‘look at me [X],’ then she done that um and it really did hurt.”
[The detective]: “Where abouts did it hurt on you?”
[The child]:“Here.”
[The detective]: “Is that your chin?”
[The child]:“Yes.”
[The detective]: “And did it hurt anywhere else?”
[The child]:“Nope.”
[The detective]: “And when was that?”
[The child]:“Um at a long time ago at Mum’s old house.”
[The detective]: “You said Mum’s old house?”
…
[The detective]: “Could you tell me what happened when she did that to you at [LL Town]?”
[The child]:“Um she grabbed me by the neck and twisted it.”
[The detective]: “[X] I wasn’t there when your Mum grabbed you by the neck and twisted it. Would you be able to tell me everything that happened when it happened from start to finish?”
[The child]:“Ah ha.”
[The detective]: “Okay. In as much detail as you can. Can you tell me what happened?”
[The child]:“Um yes ok it started like this when um Daddy dropped me off to Mummy’s,”
[The detective]: “Yes.”
[The child]:“Um when I was at Mummy’s Dad came over and Dad came over to pick me up and I almost ran across the road and then Mummy grabbed me by the throat and said, ‘look at me [X] look look at me,’ and she twisted my neck.”
[The detective]: “Did she have your chin like that?”
[The child]:“Yeah and she said, ‘look at me [X],’ and I didn’t look and then she said, ‘look at me,’”
[The detective]: “Tell me how you felt when she did that.”
[The child]:“Um it hurt.”
[The detective]: “What did you say to Mum?”
[The child]:“I said ‘Mummy why did you do that?’”
[The detective]: “Where was your Dad when that happened?”
[The child]:“He was across the road.”
The interviewers then probed the child for further, more detailed descriptions but without any significant success.
Thus the transcript provides some vague evidence from the child that a long time ago the mother twisted his neck and that it really hurt. There was also evidence of a more recent event which occurred in the presence of the father where the mother grabbed the child by the throat and twisted his neck.
A further JIRT interview took place on 19 December 2016. The primary judge reproduced the entire summary of that interview in her reasons at [194] as follows:
194.The child was interviewed by JIRT on about 19 December 2016. The interview was summarised as follows:
Analysis of Interview:
· Relationship between [the child] and his mother observed, [the child] was not seen to be frightened of his mother, holding her hand and apologising for making her sick ([the mother] was not well at the time of the JIRT interview of [the child]).
· Terms used by [the child] throughout the interview – such as ‘she had the hide to lie at Court (sic)’, ‘my mum she twisted it, when I was like 4, cause she was fighting with her partner’ however later referred to her (mum) and her partner as ‘[Ms Picton’s] psycho crazy boyfriend’.
· Aware of Court information as dad had told him, ‘she lies in Court all the time. Dad has to go to Criminal Court now that’s how bad she is; he told me he has done all the right things’.
· [The child] advised his dad has said ‘mummy is in trouble’
· Reference to his father throughout the interview ‘daddy, the one I love most’.
· [The child] stated that the incident happened ‘when I was like 6, 4, and 2’. [The child]’s recall of this event commenced with him remembering that he was running across the road to see his daddy as he hadn’t seen him in 9-10 days. Mum hadn’t had any Court Orders so daddy came their (sic) to get me. There was nothing about custody. However the actual event of mum strangling him, [the child] was quite limited in recall stating that mum placed 2 hands around his neck and he told his father later when he went to his place.
· Memory recall at the age of 6 and 4 years was not free narrative and only limited context could be provided by [the child] about what had happened.
· [The child] was asked if there were any other times mum had hurt him, he advised that ‘only when I am in trouble and get a smack on the bum, when [Mr O] was naughtier he used to get smacked with the belt … dad told me’.
· [The child] was able to provide clear particular detail about an occasion where his brother had to be taken to hospital as he had fainting (sic), to the point of the color (sic) armband they put on him.
· [The child] was asked how he felt about his mother and was told ‘I don’t want to live with Mummy, she has done naughty things’ and when asked the same question about his father [the child] said ‘he has had such a hard life in Courts and done all the right things.. he told me (sic) has done all the right things.’
· [The child] confirmed that his father had told him of all the wrong / naughty things mum had done, but stated ‘I don’t remember’.
The police took no action in response to either JIRT interview.
At best, in a manner that lacks any detail, in the 9 September 2015 JIRT interview the child described two incidents that could be possible causes of his neck injury. His answers add little to the later JIRT interview. It is most unlikely that the receipt of it into evidence would lead to a different outcome.
The second aspect of the interview relied upon was the following answers from the child (errors as per the original):
[The detective]: “[X] do you like staying with your Mum?”
[The child]:“Ur, No.”
[The detective]: “What else happens there that you don’t like?”
[The child]:“Um [Mr A] fights with Mum and that’s what makes me really scared.”
[The detective]: “Tell me about that when your scared.”
[The child]:“Um she,”
[The detective]: “Tell me about what makes you scared at your Mummy’s.”
[The child]:“Um well she um well she twisted, well when she has fights with [Mr A] that makes me a bit scared and also when um when she um yells.”
[The detective]: “Who does she yell at?”
[The child]:“[Mr A].”
[The detective]: “Is [Mr A] Mummy’s partner?”
[The child]:“Yes.”
[The detective]: “Okay. And how do you feel when your at that house when that’s happening?”
[The child]:“I feel um not to well.”
[The detective]: “What about your Dad?”
[The child]:“I try to run away from Mum when their yelling and stuff.”
“Mr A” was the mother’s partner in 2013 and 2014. The primary judge’s finding that they separated after an argument on 1 December 2014 was not challenged, even though it appears that they may have maintained some form of relationship after that date (see [370]).
That period in the mother’s life was marked by many police attendances at her home, often at her request. Her Honour recorded:
449.In 2013, the mother’s life was chaotic and characterised by house parties at which there was sexual activity. The mother gave evidence that the parties in her house, where the child was living, were arranged by her older sons and that the parties did not occur when the child was with her. Her explanations of occasions when a man at a party at her house attempted to rape her, of threats to harm her and Mr O if the police were told about various sexual offences committed at a party, and of excess consumption of alcohol at parties, was extremely concerning. She admitted that she had a sexual encounter with K, a friend of one of her older sons, although she was adamant that the child had not been present.
…
452.The child’s dysregulated behaviour, both at school and at his mother’s home, is a matter for which both parents must share responsibility. I accept the evidence of Dr H that neither parent has demonstrated good, consistent parenting.
Plainly, the primary judge gave significant weight to the poor state of affairs in the mother’s house at that time. The child’s statements in the JIRT interview add little to that sorry picture and would not point to a different outcome.
The oral application to adduce the JIRT interview will also be dismissed.
It is necessary to note that the submissions of the father’s solicitor, both written and oral, proceeded on the basis that the proposed further evidence would be admitted. As it will not be admitted, many of her submissions fall away.
Before we turn to the grounds of appeal, we observe that this is an appeal from the exercise of discretion. Therefore, in order to demonstrate error, the father must establish that the primary judge acted upon a wrong principle, took into account irrelevant matters, failed to take into account a material consideration, mistook the facts or that her Honour’s decision was unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 at 504–505; Bondelmonte v Bondelmonte (2016) 259 CLR 662 at [31].
Ground 1
Ground 1 asserts:
The learned Judge erred in failing to give greater weight to the consideration to the need to protect the child from physical and psychological harm to which the child is and was exposed at the hands of the Respondent in terms of section 60CC(2A) of the Family Law Act 1975.
Essentially, the father’s submission is that the risk to the child of physical and psychological harm whilst he is in the care of the mother outweighed any adverse impact the father would have on the child. In support of this submission, in his original Summary of Argument the father pointed to:
·The JIRT interview of 9 September 2015 and the assertion that the mother caused the child’s neck injury;
·The JIRT interview of October 2013 when the child said things consistent with an exposure to sexual behaviour;
·The child telling Ms B, a victims services psychologist, that he had been in bed with his mother on at least two occasions whilst she was having sex; and
·The police attendances for family violence between the mother and Mr A.
Challenges based on the weight given to evidence by the primary judge face a high bar: Gronow v Gronow (1979) 144 CLR 513 at 519; Norbis v Norbis (1986) 161 CLR 513.
The 9 September 2015 JIRT interview
The first point extended to a discussion about the primary judge’s findings as to the cause of the child’s neck injury. However, when pressed to identify the material that rendered those findings glaringly improbable or contrary to compelling inferences (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]), the submissions inexorably returned to the 9 September 2015 JIRT interview, which will not be received. The submissions recorded above therefore must fail. We are comfortably satisfied that the primary judge’s findings as to the cause of the neck injury were open on the evidence.
The October 2013 JIRT interview
The primary judge was well aware of the content of the JIRT interview of October 2013. Her Honour set out the summary of the interview as follows (at [138]):
On the 23rd of October 2013 the child [X] was interviewed by [D Town] JIRT. During this interview [the child] was shown a body chart where he was very competent and identified all body parts asked of him. When questioned about his penis (doodle), he said that no one touches him there. [The child] was questioned about the mouth on the body chart, [the child] said, “you stick a dick in your mouth.”
[The child] was questioned further about this, however denied saying it and said, “You stick food in your mouth.”
[The child] later said, “You eat dick.”
[The child] stated that no one has stuck their “dick” in his mouth and denied ever sticking his “dick” in anyone’s mouth.
[The child] did not make any clear disclosures. This matter is to be suspended.
This led her Honour to conclude:
139.The notes of the JIRT interview contained in the FACS records state “There were no disclosures made by [the child] during the interview that could corroborate the report received.”
140.The child’s disclosures to JIRT suggest that he has been exposed to adult sexual behaviour. Dr H’s evidence in relation to the child’s disclosure, canvassed later in these reasons, is that at this time, it would be difficult to establish how and when such exposure occurred. It is not possible to make a positive finding that the mother exposed the child to these behaviours either by performing sexual acts in his presence, or by allowing him to witness the sexual acts of others in her home.
Later, the primary judge referred to the evidence of Dr H and said:
386.Both parents completed the Child Sexual Behaviour Inventory. Dr H noted:
According to the ratings of both parents [the child] displays sexualised behaviours at a higher rate than is typical for boys his age. However the father’s ratings would place [the child] above the 99th percentile for sexualised behaviour. This result is discrepat with the largely normal [Strengths and Difficulties Questionnaire] ratings of both parents, since a child showing such extreme behaviours as the father reports would be likely to be manifesting clinically significant distress across domains/contexts.
387.Dr H commented that the test cannot confirm or disconfirm whether or not the alleged incidents of sexual abuse have occurred but noted that research indicates that sexualised behaviour in a child could relate to the whole spectrum of physical child abuse and not merely sexual abuse.
388.Dr H was provided with the initial report of the psychologist Ms B dated 25 September 2014, to whom the child was referred in relation to the alleged sexual abuse of him in 2013. Dr H stated:
The father participated for part of one session with [the child] but stated he preferred the paternal grandmother to attend [the child]’s sessions since she cared for [the child] when he was working. The report indicates that the grandmother viewed the purpose of the sessions as primarily forensic, in response to which the psychologist explained that counselling was not to be used for the purpose of eliciting disclosures from [the child], but for addressing trauma and providing safety. The father and grandmother were resistant to the psychologist’s advice that the mother’s consent was needed.
389.Dr H noted that during the first session with Ms B, the child disclosed (unprompted) that he had seen his mother have sex “with the 18 year old” because he was in the same bed at the time, although his mother did not know he was awake. Dr H noted that this was inconsistent with the mother’s admission about the event. Dr H noted that the child told Ms B that he prefers to sleep with his mother “because he is scared”. Dr H noted that this was interesting because a salient symptom of post-traumatic stress is avoidance of people and places associated with a traumatic event.
…
450.The child’s statements to JIRT in October 2013 and to Ms B in 2014, suggest that he has been exposed to adult sexual behaviour. However, I accept the evidence of Dr H that, at this time, it would be difficult to establish how and when that exposure occurred. The statements by the paternal grandmother suggest the possibility of involvement by the child’s brother, Mr J.
We note that the mother accepted that she had engaged in sexual activity with an 18 year old boy at that time (Transcript 12 September 2017, p.129), but it was not suggested to her that this took place in the presence of the child. The mother told Dr H that it did not (at [370]).
There was, as contended for by the father, a clear finding that the child had demonstrated sexualised behaviour.
However, her Honour found that the precise cause of that behaviour could not be identified on the evidence before her. Not only was that finding open on the evidence, we consider that it was the only finding that could properly be made. Given the events that were happening at the mother’s house in 2013, there were a number of possible causes for the child’s behaviour other than witnessing his mother having sex (see, for example, [135]).
Again, the father relied heavily on the Contact Record of 26 April 2013 which is not being received.
Nonetheless, as we have already discussed, the primary judge took into account, adversely to the mother, those events of 2013 that led to the child’s sexualised behaviour.
The child’s comments to Ms B
The third bullet point set out above at [51] raises the submission that the child told Ms B he had been in bed with the mother whilst she was having sex and that the child’s statement “[t]his makes the sounds of mum’s bed” was a description of sexual behaviour.
The primary judge dealt with the reports of Ms B as follows:
236.The initial report of Ms B dated 25 September 2014, stated:
On his first appointment [the child] reported, unprompted, that he had seen his mother do some naughty things. [The child] reported that his mother had sex with the 18 year old. When asked what does sex mean [the child] reported when people are on top of each other. When asked how often this occurred [the child] paused and was thinking and then said two times.
When asked how did he see this [the child] reported that he was sleeping in the same bed as her. [The child] reported that although he has his own bedroom at his mother’s house he still sleeps in her bed because he is scared. [The child] reported that he does not think that his mother knows that he was awake.
When he was informed that it was the psychologist’s job to ensure that he was safe and that when he says these things to the psychologist the psychologist needs to tell people, [the child] stated “my dad keeps me safe.” [The child] also said “sex was something adults do with each other and it’s wrong for children to do it.” When asked how he knows that he said no one told him this he just knows.
237.The psychologist stated:
[The child]’s paternal grandmother was the person who made the initial referral to Victims Compensation Tribunal. [The child]’s paternal grandmother was anxious about people believing that something was happening to [the child]. She indicated that she would like very regular appointments to ensure that [the child] could build a quick rapport with this psychologist so that he would make a disclosire (sic) because she does not feel that anyone believes what she is saying. It was explained to [the child]’s paternal grandmother that counselling was not used for the purpose of disclosing and at all times needed to be safe and trauma informed.
238.On the second session with Ms B, the child was playing with the toys. When playing with playdough the child rolled it into a log shape and said “look it’s a dick”. He then rolled it into a snail figure and said “It’s Turbo”.
239.The psychologist noted:
On the third occasion that [the child] attended counselling his father and grandmother was (sic) present for the initial part of the session. His father left mid-way through the session to attend another appointment. [The child] at times showed a lack of understanding of personal space. [The child] showed a capacity to grasp the concept of privacy and appeared to have curiosity when it was discussed. When we explored the idea that his body was private and no one was allowed to touch him in an unsafe manner, [the child] asked questions such as “what happens if the person still touches you?” We explored ways [the child] could keep himself safe. After this [the child] was presented with a tub of toys and he selected the Barbie figure. He peered up Barbie’s legs quietly. [The child] took Barbie’s clothes off and continued to look up her legs again when her clothes were put back on …
Again, this is evidence of sexualised behaviour and includes a suggestion that the child has seen the mother having sex, although how and when that is said to have occurred is not explored in the report. The reference to the 18 year old boy resonates with, but differs from, the statement the father says the child made to him. The allegation in his trial affidavit was that the child, who was then four, “made reports of what seemed to be oral sex that took place between [the mother] and [sic] eighteen year old boy, with [the child] present” (at [129]).
The child made a statement similar to that made to Ms B while he was on a supervised visit with the father on 1 April 2017. The primary judge recorded:
334.The worker reported:
[The child] lay on the sofa on his back and started bouncing up and down as he lay down. [The child] then said, “This makes the sounds of Mum’s bed.” [The father] responded asking, “What do you mean by that”. [The child] lay on the sofa and bumped his body up and down which made the springs in the sofa make a creaking sound. [The child] repeated, “It makes the noise of Mum’s bed”. [The father] asked the worker quietly if she heard what [the child] had said …
335.In cross-examination about that conversation, the father said that the only possible explanation for the child’s comment was that he had again witnessed his mother having sex while the child was in the bed with her. He was adamant that there was no other credible explanation for the child’s comment. The mother had been cross-examined. She said that the child often bounced on her bed and the springs of her bed made a creaking sound.
We do not consider that an inference can be drawn that this is a description of a sexual encounter.
The reports of Ms B were taken into account by the primary judge. We see no error in the weight that was given to them.
The police attendances at the mother’s home
We have already dealt with the many police attendances at the mother’s home in 2013 and 2014 and her Honour’s treatment of them.
We see no error in her Honour’s approach. There is no clear evidence of direct physical abuse of the child by the mother. The family violence that occurred in the mother’s house in 2013 and 2014 and the child’s clear exposure to sexual behaviour were given significant weight by her Honour.
This ground does not succeed.
Ground 2
Ground 2 asserts:
The learned Judge erred in finding as fact that:
a)“There are no recorded complaints to FACS prior to the recovery order being made of the child making a disclosure of that nature” in the absence of evidence of that fact (reasons for decision paragraph [141]).
b)“I note that there was no complaint made by the mother to the police on 1 December 2014. Given the mother’s history of numerous and multiple complaints it is unlikely that, had there been any incident of violence at her home on that day, she would not have telephoned the police” in the absence of that fact (reasons for decision paragraph [144]).
At [141] her Honour said:
I do not accept the evidence of the father that his belief that the child witnessed the mother performing oral sex is what compelled him to withhold the child in May 2013. There are no recorded complaints to FACS prior to the recovery order being made of the child making a disclosure of that nature. There is nothing in the FACS file to suggest the father was given advice by FACS to withhold the child. When the police contacted the father after receiving a complaint from the mother, he said he was withholding the child on advice from his solicitor. Similarly, the paternal grandmother told FACS that the advice to withhold the child had come from her solicitors.
Her Honour’s findings were entirely correct on the evidence that was before her. The purpose of the attempt to adduce the Contact Record in the appeal was to provide the evidence to undermine this finding. As that attempt has failed there is no basis for impugning that finding.
The second aspect of this ground is the father’s contention that her Honour made an erroneous finding as to the issue of whether an alleged 23 hour domestic violence event had occurred at the mother’s home on 1 December 2014, since the mother was inconsistent in reporting such incidents to the police.
At the hearing the father contended for a finding that the incident had occurred. The primary judge did not accept that to be so, saying:
142.On 1 December 2014, the father contacted FACS. He reported that he drove past the mother’s home at 5.15pm on 1 December 2014 and was concerned that the mother was moving house and that there was no furniture in the house. The caller said that he pulled up in the driveway and the child came outside the house and was crying. The child told him that the mother and Mr A had been “arguing and yelling again”.
143.A further report was made to FACS on 1 December 2014, presumably by the paternal grandmother, who repeats the information given by the father and adds further detail including that “[The child] disclosed to the caller that [Mr A] had punched the new house, that [Mr A] was punching everything and that [Mr A] was really cranky. [The child] said he had been scared.”
144.I note that there was no complaint made by the mother to the police on 1 December 2014. Given the mother’s history of numerous and multiple complaints it is unlikely that, had there been any incident of violence at her home on that day, she would not have telephoned the police.
As the mother had made many complaints about the conduct of her then partner to the police and as they had attended her house on many occasions as a result, it was reasonable for the primary judge to draw the inference that had any act of domestic violence between the mother and Mr A occurred on 1 December 2014 she would have reported it to the police.
The second inconsistency was said to be the mother’s failure to report a “violent rape” that occurred at her house.
The mother’s evidence was a man tried to rape her at a party at her home which led her to spend the night at a friend’s place. She said that she did not report this to the police because threats had been made against her son by this person, who she regarded as being dangerous (Transcript 11 September 2017, p.24 and p.28).
This event has little bearing on the preparedness of the mother to report incidents of domestic violence at the hands of her then partner to the police. This was the point of her Honour’s finding.
No error has been demonstrated.
Ground 3
By ground 3 the father contends that “the Court’s discretion at first instance could not have properly been exercised with the absence of the further evidence as referred to in the affidavit of [the father] filed 30 January 2018 and therefore the Order is rendered erroneous”.
The affidavit referred to in the ground is the affidavit in support of the Application in an Appeal seeking to place the 26 April 2013 Contact Record from FACS into evidence. The affidavit deals with no other matter.
The Contact Record is not being received. We repeat that the evidence was reasonably available at the time of the hearing and was obtained by the paternal grandmother before judgment was delivered. There is no basis for criticising the primary judge for not taking it into account or to suggest that she herself should have taken steps to ensure that the Contact Record was tendered (noting again that her Honour expressly raised its absence twice during the hearing).
This ground fails.
Ground 4
Ground 4 is as follows:
Evidence of the recorded interview of [the child], which took place on 9 September 2015 by Detective [LB], although subpoenaed was not produced, requires an order for a new trial.
This ground fails because the record of interview is not being received on the appeal. To the extent it is suggested that the trial miscarried due to its non-production, we point out that its absence would have been apparent on any inspection of the documents produced by the police and that it was reasonably available to be produced.
Ground 5
Ground 5 asserts:
The judge erred by not considering the seriousness of the domestic violence in the mother’s household where the police subpoenaed material before the court showed there were many police attendances at the mother’s house for domestic violence complaints.
In his original Summary of Argument the father submitted:
22.There were 50+ Police attendances for DV between her and [Mr A] in two years. It’s in the police subpoena documents. [The child] listed 23 times by police as child at risk of harm in the police subpoena documents. One Police officer recommended counselling for [the child]. [The child] was never exposed to any DV at my home. He was never sexually exposed to adult behaviour, never had his neck hurt, or assaulted, or abused at my home. I never ever scream at [the child]. No one screams at [the child] in my home. No wonder [the child] said “My dad keeps me safe I want to live with my dad. My dad protects me”.
We have dealt with these submissions earlier in these reasons.
This ground does not succeed.
Conclusion
It follows that the appeal will be dismissed.
Costs
The mother did not seek a costs order in the event that the appeal did not succeed.
The ICL sought an order that the father pay the ICL’s costs in the sum of $4,219.50.
The father’s solicitor informed us that the father was not working. Although he owns a property, it is fully mortgaged and his parents are making the mortgage repayments. When regard is had to s 117(4) of the Act the application for costs must be dismissed.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Pascoe CJ, Ryan & Aldridge JJ) delivered on 30 May 2018.
Legal associate:
Date: 30 May 2018
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