Enmore & Smoothe - [2014] FamCAFC 131

FAMILY COURT OF AUSTRALIA

ENMORE & SMOOTHE

[2014] FamCAFC 131

FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Where the appellant mother alleged a risk of child sexual abuse and the Federal Circuit Judge did not suspend interim orders allowing the respondent father to spend unsupervised time with the child, but transferred the proceedings to the Family Court – Whether the Judge erred by failing to act on evidence that was “not far-fetched, fanciful or remote” – Whether the Judge erred by relying on evidence other than that of an expert – Whether the Judge placed excessive weight on inconsistencies in the evidence – Appeal dismissed – Submissions to be filed in relation to costs.

FAMILY LAW – APPEAL – CONTRAVENTION – Where the respondent father brought contravention proceedings in relation to orders that allowed him to spend unsupervised time with the child – Where the Judge found that the mother did not have a reasonable excuse for breaching the orders and required the mother to enter into a bond to comply – Whether the Judge erred by relying on the reasons delivered in the substantive proceedings – Appeal dismissed – Submissions to be filed in relation to costs.

Family Law Act 1975 (Cth), ss 69ZN and 70NAA

CDJ & VAJ (1998) 197 CLR 172
Deiter & Deiter [2011] FamCAFC 82
Irvin and Carr (2007) FLC 93-322
Rice and Asplund (1979) FLC 90-725
Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192
WK v SR (1997) FLC 92-787

APPELLANT:

Ms Enmore

RESPONDENT:

Mr Smoothe

FILE NUMBER:

BRC

4709

2012

APPEAL NUMBER:	NA	52	of	2013
NA	66	of	2013
NA	8	of	2014

DATE DELIVERED:

23 July 2014

PLACE DELIVERED:

Perth

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Thackray and Aldridge JJ

HEARING DATE:

29 May 2014

LOWER COURT JURISDICTION:
NA 52 OF 2013	Federal Circuit Court of Australia
NA 66 OF 2013	Federal Circuit Court of Australia
NA 8 OF 2014	Family Court of Australia

LOWER COURT JUDGMENT DATE:
NA 52 OF 2013	17 September 2013
NA 66 OF 2013	5 November 2013
NA 8 OF 2014	29 January 2014

LOWER COURT MNC:
NA 52 OF 2013	[2013] FCCA 1580
NA 66 OF 2013	[2013] FCCA 1924
NA 8 OF 2014	[2014] FamCA 44

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Merkin

SOLICITOR FOR THE APPELLANT:

Henry Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT:

Carroll Fairon Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Dooley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Dooley Solicitors

Orders

The appellant mother’s applications to adduce further evidence filed on 7 March 2014 and 20 May 2014 be dismissed.
The appeals NA 52 of 2013, NA 66 of 2013 and NA 8 of 2014 be dismissed.
There be no order as to the costs of the Independent Children’s Lawyer.
Within twenty-one (21) days of the delivery of judgment the respondent father file and serve submissions in support of his application for costs.
Within fourteen (14) days thereafter the appellant mother file and serve submissions in response to the submissions on behalf of the respondent father in relation to costs.
Within fourteen (14) days thereafter the respondent father file and serve submissions in reply to the submissions of the appellant mother in relation to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Enmore & Smoothe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 52 of 2013, NA 66 of 2013 and NA 8 of 2014
File Number: BRC 4709 of 2012

Ms Enmore

Appellant

And

Mr Smoothe

Respondent

REASONS FOR JUDGMENT

Introduction

These appeals concern R (“the child”), who is now aged five years.
The appellant, Ms Enmore, is the child’s mother. The respondent, Mr Smoothe, is her father. For convenience, we will refer to them as “the mother” and “the father” respectively.

Brief background

The mother and the father commenced a relationship in 2005, but did not cohabit until after the child was born in May 2009. They separated in February 2011. Thereafter, for more than a year, the father spent time with the child in accordance with a private arrangement made with the mother.
In February 2012, the father contacted Relationships Australia to commence the process of formalising an agreement with respect to his time with the child.
On 11 May 2012, the mother contacted the Department of Communities, Child Safety and Disability Services (“the Department”) claiming that “the father’s house was in a mess, that the father wanted more access with the child, that [she] had seen nappy rash on the child and that the child was tired and aggressive upon her return” (Reasons [23]).
On 28 May 2012, the father applied for orders concerning his time with the child. In August 2012, and again in December 2012, Judge Demack made interim orders allowing the father unsupervised time with the child.
On 15 August 2013, the mother applied for the father’s time with the child to be suspended. For the first time, she claimed that the child was at risk of sexual harm unless the father’s contact was suspended or at least supervised.
On 17 September 2013, Judge Demack found there was no basis for varying the orders, having not been persuaded there was any risk of abuse. Her Honour nevertheless considered the matter was “complex” and therefore transferred the proceedings to the Family Court.
Having appealed against the orders of 17 September 2013, the mother then applied for a stay. At the same time, she sought a number of other orders, including that the child see the father only while supervised, pending the appeal. On 5 November 2013, Judge Demack also dismissed this application.
The mother thereafter breached the orders and the father commenced contravention proceedings. These came before Bell J, who found the mother did not have a “reasonable excuse” for breaching the orders and required her to enter into a two-year bond to comply with the orders.

The three appeals

We were initially asked to deal with three Notices of Appeal.
The first was the Amended Notice of Appeal, filed on 7 March 2014 (NA 52 of 2013), against the orders made by Judge Demack on 17 September 2013 (“the substantive appeal”).
The second was the Further Amended Notice of Appeal (NA 66 of 2013), also filed on 7 March 2014, against the order made by Judge Demack on 5 November 2013 refusing the stay (“the stay appeal”).
The third was the Notice of Appeal (NA 8 of 2014), filed on 26 February 2014, against the order made by Bell J on 29 January 2014 in the contravention proceedings (“the contravention appeal”).
The Independent Children’s Lawyer joined the father in opposing the appeals.

Application to rely on further evidence

The mother filed two applications to adduce further evidence in the appeals, but the first, which was filed on 7 March 2014, was not pursued.
By her second application, filed 20 May 2014, the mother sought to rely on further evidence in the form of two Magellan reports that were prepared after the making of the orders which are the subject of the appeals.
The affidavit sworn in support of the application stated that the reports were to be relied upon in the contravention appeal, but counsel for the mother advised us that she also wished to rely on them in the substantive appeal.
The application to rely on further evidence was filed out of time, but we accept that the delay was adequately explained (the application having originally been presented for filing in time but rejected by the Appeals Registrar).
The application for the reports to be received into evidence was opposed by the father and the Independent Children’s Lawyer on the basis that the reports were controversial and formed only part of the material that had become available since the orders were made.
Counsel for the mother placed particular emphasis on a portion of an updated Magellan Report dated 23 April 2014. The document recorded that on 13 March 2014 the Department was contacted by a notifier who stated that another anonymous person “who has contact with [the child] in the school environment” had written a letter dated 8 March 2014 saying that the child made certain complaints or allegations to them regarding the father’s conduct.
The report notes that this information was initially recorded as a “Child Protection Notification” before being downgraded upon review. At the conclusion of the report, the author indicates that the Department has “[n]o intention to intervene, but will provide information that may be of assistance to the Family Court of Australia”.
Counsel for the mother submitted that this amounted to “independent evidence of the child outside the mother” and maintained a submission that the anonymous person referred to by the notifier could only be an employee at the child’s school. It is difficult to accept those submissions.
Nothing in the reports demonstrates that the decisions the subject of these appeals were erroneous. The excerpt on which the mother especially wished to rely comprised hearsay on hearsay of the most indeterminate kind. Consistent with the principles laid down by the High Court in CDJ & VAJ (1998) 197 CLR 172 we propose to dismiss the application to adduce further evidence.

The stay appeal

The stay appeal obviously lacked utility unless it was determined prior to the substantive appeal. The appeal was abandoned after we explained this fact to counsel for the mother at the commencement of the hearing.
As costs issues will now arise in relation to this appeal, we should observe that it seems the application for a stay was itself misconceived since, even had a stay been granted, the earlier contact orders would have remained in effect. We recognise that, when the mother applied for the stay, she also sought that contact be supervised pending the appeal, but this too was misconceived as the Judge was functus officio, save for hearing the application for a stay.

The substantive appeal

The substantive appeal, whatever the outcome, will have limited effect, given it challenges interim orders in circumstances where the matter is listed for trial in November 2014. Nevertheless, the issue involves possible risk of abuse of a child and the appeal has therefore been afforded significant priority.
There were three grounds of appeal, each of which was said to show that the Judge erred in failing to find there was an unacceptable risk of the child being abused and, as a result, failing to order that contact be suspended or supervised.

Ground 1 – failure to act on evidence that was not far-fetched, fanciful or remote

By this ground it was asserted that:
Her Honour erred when she dismissed the Appellant’s Application seeking orders in the interim that the child see the Respondent under supervised time where the Appellant had adduced significantly particularised evidence that was not far-fetched and fanciful or remote to the allegations raised, contrary to the principles regarding the protection of the child, pursuant to section 69ZN(5)(a), (b) and (7).
Counsel for the father complained that Ground 1 failed to particularise how it was that the Judge did not give effect to s 69ZN of the Family Law Act 1975 (Cth) (“the Act”). He submitted the ground, as formulated, was therefore embarrassing and not a proper ground at all.
There was merit in this argument. Furthermore, the principles in s 69ZN are directed to the manner in which the proceedings are conducted, not to the outcome. Apart from overlooking this fact, the complaint also overlooks s 69ZN(1), which provides that failure to give effect to the principles “does not invalidate the proceedings or any order made in them”. In other words, even if a violation of s 69ZN were established, that fact alone could not provide the basis for a successful appeal.
Counsel for the mother sought to deal with the argument of counsel for the father by purporting to amend the ground in her “Amended Summary of Argument”. The foreshadowed amendment asserted that the orders were made contrary to the principles in s 69ZN because the Judge proceeded on the basis that the mother had sought a finding of “sexual abuse” when all she had sought was a finding of “risk of sexual abuse”.
Counsel for the mother did not seek leave to amend, and we observe that the amendment raises an entirely new issue. Notwithstanding the failure to seek leave to amend, and the entirely reasonable objection of counsel for the father, we propose to address both the original ground and the purported amendment.

Failure to act on evidence that was not far-fetched, fanciful or remote

As best we understand it, the original formulation of Ground 1 appears based on the premise that if a party in interim proceedings makes “significantly particularised” assertions that “are not far-fetched and fanciful or remote” then the court will err if it does not act on the basis of those allegations. Such a wide proposition cannot be accepted.
We would, instead, adopt these remarks from Deiter & Deiter [2011] FamCAFC 82, where the Full Court (Finn, Thackray & Strickland JJ) said:
61.The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made…
62.We are aware that in Goode and Goode (2006) FLC 93-286 the Full Court referred with some approval to the following statement made in Cowling v Cowling (1998) FLC 92-801 (our emphasis added):
18. The Family Law Act does not draw any distinction between the principles to be applied in determining residence in interim and final proceedings. The essential difference between them is one of procedure. Interlocutory proceedings do not determine the long term rights and obligations of the parties and their children. The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties. Accordingly, in determining what orders should be made, the Court traditionally looks to the less contentious matters, such as the agreed facts, the care arrangements prior to separation, the current circumstances of the parties and their children and the parties' respective proposals for the future. In some cases, it may also be necessary to consider child protection issues.
63.In our view, the proposition contained in the final sentence of the quotation is most important. In any event, in Goode and Goode, the Full Court said:
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
64.We accept that the Acting Magistrate could make no definitive prediction of the likelihood of the father behaving violently toward the mother or others in the future. That would be hard enough in circumstances where findings could be made about what had occurred in the past. However, his Honour should have been alert to the potential consequences for the mother and children in the event the father was to behave violently pending a final hearing – including by carrying out the threats to kill which the mother claimed he had made in the past.
In the present matter, there can be no suggestion that the Judge was not fully aware of the consequences if the mother’s suspicions were well founded. Although her Honour accepted, as had been urged by counsel for the mother, that she could not make findings of fact, she nevertheless considered the evidence carefully and at some length. This attention to the evidence, which went well beyond looking at “the less contentious matters”, satisfies us that her Honour fully appreciated she was dealing with “child protection issues”.
In support of a submission that “the child’s protection needs to been [sic] prioritised in the interim proceedings because of evidence adduced that circumstantially could indicate a risk of sexual abuse and where there had been no proper testing of the evidence”, counsel for the mother relied upon the following dicta from WK v SR (1997) FLC 92-787, which was cited with approval in Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192:
47.In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
The Full Court went on to say:
48.… When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E [now s 60CA]. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.
These remarks may be seen as accepting that a finding of a risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse had occurred. However, they should not be read as suggesting that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse. Although we accept that a court should “err on the side of caution” in dealing with such matters, the best interests of a child will not be advanced by their time with one of their parents being obstructed on the basis of vague evidence and/or sheer suspicion.

Recognising she was unable to make any findings of fact, the Judge analysed the evidence (and in some instances the lack of evidence) in the only way practicable, given it was an interim hearing. Although the mother’s evidence may not have been not “far-fetched and fanciful or remote”, it was open to the Judge to conclude it did not provide a basis for concluding the child was at risk.
We note that the mother’s counsel also submitted, in support of Ground 1, that her Honour’s “reliance on evidence that asserted an injury with ‘something in particular’ was an error because of the nature of interim proceedings…” This cryptic proposition suffers by reference to two facts. First, it relies on, and misstates, a solitary remark her Honour made in the course of oral argument, which was not repeated in her reasons. Her Honour said “… if you were going to assert that there was an injury which was consistent with something in particular, that would be a matter for expert evidence, wouldn’t it?” Secondly, at the time, the mother’s counsel unequivocally agreed with the remark. (Transcript, 11 September 2013, p 8)

Misunderstanding the mother’s case

We turn now to the purported amendment to Ground 1, which asserts that her Honour erred by proceeding on the basis that the mother had sought a finding of sexual abuse when she was seeking only a finding of “risk of sexual abuse”.
We fail to see how the complaint can be sustained in the face of what was said near the commencement of her Honour’s reasons, namely:
5.The mother now alleges … that the child is at risk of sexual harm in the father’s care.
and what was said at the midpoint of her reasons, namely:
37.The thrust of the mother’s present application is that the child is at risk of sexual abuse in the father’s care.
and what she said near the end of her reasons, namely:
91.… the Court cannot be satisfied on an interim basis that there is a risk of harm in the father’s care.
As counsel for the father pointed out, there are also other paragraphs in the reasons which are expressly addressed to identifying a risk of abuse. We accept that the Judge might also, at times, be seen to be considering whether there was evidence to show that the child had, in fact, been abused. However, we cannot see any rational basis for criticising her Honour for so doing since, in endeavouring to determine whether a child is at risk of abuse, a court would need to consider, as one part of the exercise, whether there is evidence that the child has already been abused. This is especially so where, on our reading, portions of the mother’s own evidence, and the submissions of her counsel, were directed at persuading the court that the child had already been abused.
Given what we have said, it is unnecessary to engage fully with the submission of the mother’s counsel that “the standard of proof for a finding of child sexual abuse and a risk of child sexual abuse are not the same”. Counsel was unable clearly to articulate what was said to be the difference. Insofar as the difference is said to be that the former requires unequivocal evidence, but that the latter may be satisfied by equivocal evidence, we refer to what we have already said on this issue.
In dealing with that part of the argument, we need only say we were not persuaded that her Honour proceeded on the basis of requiring “unequivocal” evidence before being satisfied there was risk. The submission to that effect seized on one word in one paragraph of an ex tempore judgment - i.e. [67] where her Honour said “[t]he notion that parents touch their children’s private parts does not make anything said by the child, to be unequivocally consistent with child sexual abuse”. Counsel for the mother did not take us to any other part of the reasons to suggest her Honour proceeded on the basis that “unequivocal” evidence was required to establish there was a risk of abuse.
For these reasons, we find no merit in either of the formulations of Ground 1.

Ground 2 – relying on evidence other than that of an expert

By this ground it was asserted that:
Her Honour erred when her Honour relied on an analysis of the indicators in the Appellant’s evidence without the benefit of specialised expertise and where the Respondent relied significantly on uncontested subpoena documents containing opinions from the Department of Community and Child Safety and it was raised to the Court [sic] that it would be grossly inappropriate to give the opinions in the documents much weight in this matter in the circumstances. (original emphasis)
This ground contains two complaints. The first is that her Honour proceeded without “the benefit of specialised expertise”.
The only written submission made directly in support of this part of the complaint in Ground 2 asserted that:
… until such time as there was more clarity around the risks posed by the indicators circumstantially adduced by the Appellant in the affidavit material by en [sic] expert, any unacceptable risk due to sexual abuse was overcome in the interim by the orders sought by the Appellant ...
However, there were other submissions advanced in relation to Ground 1 which seemed to pertain more to Ground 2. In this part of her submissions, counsel for the mother complained that her Honour had refused the mother’s application “for an expert report to provide a specialised expert opinion regarding the evidence”, and had instead relied on the fact there was no expert opinion “where it was relatively early in the proceedings in an interim decision and where there was only an untested family report by a social worker”.
It is true that the mother sought an order that a report be obtained from “a forensic medical specialised expert in child abuse” (Reasons [6]). Her Honour declined to make such an order, stating at [93] that this would be a matter for the Family Court, given her intention to transfer the proceedings to that court. She went on to say:
94.The notion that the Court is somehow in need of a specialised sexual abuse report seems to me to be at this stage unwarranted and is at risk of inflating the mother’s concerns which more properly should result in the mother reflecting on her own behaviours and motivations.
As counsel for the father noted, while the issue of expert evidence was canvassed at the hearing (Transcript, 11 September 2013, p 8), no request was made for an adjournment to seek an expert assessment. Her Honour accordingly was entitled to proceed on the basis of the evidence that was then before the Court. Given the proceedings were thereafter to be dealt with by the Family Court it was also entirely proper for her Honour to leave the question of expert evidence to be determined by that court.
The second part of the complaint in Ground 2 is that the Judge erred by relying on the opinion of the Department, which had determined that the mother’s claims were not substantiated. This complaint can be simply disposed of by reference to her Honour’s reasons, in which she was at pains to point out that she had not relied on the opinion of the Department. She specifically said:
81.Save for that being the Department’s view I do not take that evidence to be evidence of anything other than the Department’s view. And to be also plain I have not taken any notice of any of the findings the Department may have made during their investigation. It seems to me that it is a perfectly proper use of the records produced on subpoena to understand a chronology of contact with the Department and to understand what matters the Department were advised on, what investigations they undertook and what they learned during those investigations. I accept that it would be improper for this Court on an interim basis to be taking the department’s outcomes as being findings of fact. The department’s outcomes are a matter for the department and do not form the basis of any of the matters which are before me today.
Her Honour apparently thought it necessary to stress this point, as she went on to make it again in the following paragraph where she said:
82.But it seems to me that it is perfectly proper for me to understand when reports have been made to the department, what information the department had provided to it at that time, what the department then did with that information, and what they record they learnt when they did the things that they did. Their outcomes and their assessments do not form the basis for my view at this stage.
It is not apparent to us what more the Judge could have done to make clear that she did not base her finding on the Department’s conclusions.
Counsel for the mother nevertheless submitted that her Honour “must have” (original emphasis) taken the Department’s view into account because her reasons recorded that she considered it “perfectly proper” for her to understand what the Department had done with the information it had received. In our view, this proposition is misconceived, since it is obvious that her Honour treated the Department’s involvement as merely one of many facts making up the relevant chronology.
It should be apparent, in a case where the mother acknowledges that her suspicions developed over time, why it would be necessary for the Court to be aware of the nature of the Department’s involvement. The mother’s interaction with the Department provided context for the way her claims developed – i.e. from a complaint about “nappy rash” to a concern of risk of sexual abuse (Reasons [23], [29]) and [49]). It was also potentially significant that the mother’s claims to the Department differed from claims she made to the court (Reasons [31]). Her various notifications to the Department, in turn, provided context for the involvement of the police (Reasons [30], [33] and [35]).
In our view, her Honour would have erred had she not made reference to the history of notifications to the Department and the actions taken as a consequence. There is accordingly no merit in this ground.

Ground 3 – excessive weight placed on inconsistencies in the mother’s evidence

By this ground it was asserted that:
Her Honour erred when she placed excessive weight on the Appellant’s inconsistency in the presentation of the evidence rather than on the actual evidence adduced of the child’s behaviour in her interim finding of no risk of child abuse and child sexual abuse where there was given no opportunity for the Appellant to respond to the inconsistencies and it was contrary to the child’s best interests to focus on the Appellant’s inconsistencies.
In support of this ground, counsel for the mother submitted that:
These were interim proceedings where the [father] was not relying on the inconsistency in the evidence and the court had not provided the [mother] with an opportunity to respond to the adverse imputations.
This submission cannot be sustained in the face of the record. As counsel for the father pointed out, the hearing took place over three days, namely 9, 11 and 17 September 2013. It is common ground that the mother’s counsel was served with the father’s Case Outline on the first day of the hearing. This made perfectly clear the father would be asking the Judge to take into account many inconsistencies in the mother’s claims as they had developed over time. The mother’s counsel had every opportunity to make submissions to explain the inconsistencies, especially as the proceedings were adjourned after the Outline of Argument was served. Although the mother was given leave to file an affidavit at the outset of the hearing, one paragraph of which can be seen as explaining a possible inconsistency (albeit not one relied upon in the father’s Outline of Argument), her counsel failed to take her Honour to that affidavit or make any submissions concerning a central plank of the father’s argument.
In the circumstances, the Judge was perfectly entitled to take some account of the inconsistencies in the mother’s evidence. Plainly, it is not practicable for all controversial evidence to be tested during interim hearings. Judicial officers conducting such hearings must therefore do the best they can in determining the approach to take to the factual controversies that commonly arise. If internal inconsistency is demonstrated in the evidence of a party, absent an explanation, a court is entitled to approach that evidence with caution.
As counsel for the father observed, no complaint is made concerning her Honour’s analysis of the inconsistencies in the mother’s evidence. It is now impermissible for counsel for the mother to seek to explain the inconsistencies by reference to an affidavit that was not only not before her Honour, but which was also not properly before us, even though it had been included in the appeal books. (Mother’s Affidavit filed 20 September 2013)
It is important, however, to record that her Honour did not proceed entirely on the basis of her finding, at [86], that the mother’s evidence was “strangely internally inconsistent in an unexplained way”. She also took into account:
·that the evidence of the mother which was relied upon to show a risk of abuse was, in fact, capable of an innocent interpretation (Reasons [56], [67], [68] and [88]);
·the absence of evidence to suggest that the mother’s own observations of the child, and the many photographs she had taken of the child’s lower body, demonstrated “something inconsistent with nappy rash” (Reasons 56);
·the fact that, although a number of opportunities existed, the child had made no disclosures to any other person (Reasons [30] and [91]);
·the absence of evidence to suggest the child had exhibited the behaviours described by the mother anywhere other than in the mother’s home, and in particular that the behaviours had not been observed at the childcare centre (Reasons [75]); and
·the fact that other allegations about the father appeared “wholly contrary” to observations made by the family report writer and were unsupported by other evidence (Reasons [77] and [90]).
As the Judge said, at [91], it was only after “weighing up all of those matters” that she concluded there was no evidence to warrant varying the orders.
There being no merit in this, or any of the earlier grounds, the substantive appeal will be dismissed.

The contravention appeal

In the contravention proceedings, the mother accepted she was in breach, but argued she should be exculpated on the basis she had a reasonable excuse.
There were five grounds of appeal, two of which were abandoned.

Ground 1 – relying on the reasons delivered in the substantive proceedings

By this ground it was asserted that Bell J:
… erred in relying on Reasons by another judge where the Appeals of those reasons was not yet heard and where in the circumstances it was not in the best interests of the child to rely on those decisions.
This ground was directed to the following two paragraphs of the reasons where Bell J posed and answered the question, “[d]id the mother believe on reasonable grounds that not allowing the child to spend time with the father … was necessary to protect the health or safety of the child?”:
22.As set out above, the mother relied on three affidavits sworn by her on 15 August 2013, 16 January 2014 and 17 January 2014 respectively. The affidavit sworn on 15 August 2013 is the same affidavit as that which the mother relied upon in the application before Judge Demack decided on 17 September 2013. In the reasons for that decision, Judge Demack did not consider that there was any basis for the orders made on 18 December 2012 (which included orders that the child spend certain periods of time with the father) to be set aside. Judge Demack indicated that the mother’s evidence was “strangely internally inconsistent in an unexplained way” and did not accept that there was evidence showing that the father sexually abused the child or perpetrated family violence. In coming to that conclusion, Judge Demack noted inter alia that:
·    the mother had not adduced any evidence to the effect that the rashes present on the child were inconsistent with nappy rash;
·    in particular, the mother had not adduced any relevant medical evidence;
·    the child had not made any statements to [the Department] or to the police which “could be said to be consistent with child sexual abuse”; and
·    the mother had previously claimed that the rashes were “nappy rash” and had told [the Department] that the rashes were nappy rash. However, the mother subsequently changed her position to state that the rashes were not consistent with nappy rash.
23.I have considered the reasons of Judge Demack in detail. I respectfully agree with those reasons and incorporate them into these my reasons. Accordingly, I consider that the mother’s affidavit sworn on 15 August 2013 does not show that the mother believed “on reasonable grounds” that the child was at risk of harm if she spent time with the father.
Importantly, Bell J went on to say:
24.Accordingly, the mother’s case can only succeed on the basis of new evidence or submissions which were before this Court but not before Judge Demack…
His Honour then went on to analyse the mother’s new evidence and submissions, before concluding she did not have a reasonable excuse.
In her written submissions in support of this ground, counsel for the mother sought to agitate an argument we have rejected in dealing with the substantive appeal. She then went on to submit:
The Family Law Act 1975 (Cth) s70NAA (2) states that the Court always has the power to vary the order under Subdivision B [of Division 13A] … There is no provision for any regard to any previous reasons for the Order in question. The question before the Honourable Court goes to the circumstances of the case before the Honourable Court, not the reasons for the decision for Order in question. It is submitted the Court erred by reviewing and adopting the Reasons by her Honour for the Order in question because the circumstances referred to in the Family Law Act 1975 (Cth), (the “Act”) refer to the reasonable excuse for the person’s circumstances – not a review of any Reasons for denying a variation to the parenting orders: that is the function of the Appellate Court. It is submitted the Act states at section 70NAE(1) that: The circumstances in which a person may be taken to have had… a reasonable excuse … directs the question to the circumstances, not a grant power for review. And where the circumstances involve Principle 3 of the Act, this requires an exercise of considerations of the circumstances for reasonable excuse, not adoption of Orders that may be set aside where the best interests of the child remain the focus. (original emphasis) (footnotes omitted)
With respect to counsel, this submission demonstrates not only a peculiar understanding of the nature of contravention proceedings, but also misrepresents the approach taken in the court below.
Bell J did not purport to “review” the reasons in the sense suggested, nor did he merely “adopt” them. Instead, he considered the reasons “in detail”, before agreeing with them. We see no error in that approach, given the mother sought to establish a “reasonable excuse” by relying on an affidavit she had relied upon in the earlier proceedings. His Honour’s discussion of the earlier reasons was an integral step in the process of explaining why any “reasonable excuse” would need to arise from the more recent evidence.
We also have difficulty in comprehending the submission insofar as it suggests that the earlier reasons would be irrelevant in variation proceedings of the type mentioned in s 70NAA(2) of the Act. Even had Bell J been asked to vary the orders, he would have needed to refer to the reasons, since applications for variation in contravention proceedings are dealt with in the same way as any other variation application: Irvin and Carr (2007) FLC 93-322 at [68]. It is well established, in all proceedings seeking to vary a parenting order, that the court should have regard to the reasons delivered when the original order was made: Rice and Asplund (1979) FLC 90-725 at 78,905.

In her oral submissions, counsel for the mother submitted that in contravention proceedings, where an appeal has been filed, the court must ascertain whether the order, at the time it was made, was in the best interests of the child as a necessary part of determining whether there was a “reasonable excuse”. Faced with this novel proposition we enquired whether it held good in all matters – or only some - and if only in some, where the “line would be drawn”. Unhelpfully, counsel submitted that the line would be drawn “at this case”.
Even if, contrary to our strong view, there is some obligation on a judicial officer in contravention proceedings to determine whether or not the orders contravened were in the best interests of the child at the time they were made, Bell J did precisely that by indicating his agreement with the earlier reasons after having considered them “in detail”.
There is accordingly no merit in this ground.

Ground 2 – making finding against the preponderance of the evidence

By this ground it was asserted that:
His Honour erred in a finding of no reasonable excuse against the preponderance of the evidence.
The Summary of Argument filed on behalf of the mother offers little assistance in comprehending the mother’s complaint. Counsel for the mother submitted, inter alia:
many of the strands of evidence individually had a direct nexus with the subject matter of child sexual abuse and so untested, were pieces of evidence for a risk of child sexual abuse. Each strand of evidence together formed a circumstantial case that the child was and is at risk of sexual abuse in the Father’s care because each strand of evidence has a direct association with the subject matter… (original emphasis)
We say simply that there is no merit in this proposition nor in any of the other arguments put to us in support of this ground.

Ground 3 – current case distinguished from other cases

This ground asserted that:
His Honour erred in making a finding of no reasonable excuse where the case extant was distinguished from the case authorities relied upon.
This ground was abandoned when we pointed out it was incomprehensible.

Ground 4 – reliance on the absence of expert evidence

Ground 4 asserted that:
His Honour erred in relying in the absence of expert evidence where the case was at an interim stage and his findings went against the principles in M v M (1988) 166 CLR 69.
The ground was abandoned, and properly so in light, inter alia, of the following paragraph from the reasons of Bell J:
15.… I wish to make some comments about the administration of the mother’s case. During the hearing I raised in question related to the apparent deficiency of evidence to support the mother’s case that she had a “reasonable excuse” for the contravention. Consequently, I required that the mother file an affidavit to provide evidence in respect of a consultation with a Dr [C] which consultation, Merkin submitted, documented the child’s rash. That consultation I understand, Merkin found out about the day before the hearing, and was only raised in Merkin’s submissions when I questioned whether or not Merkin had any expert evidence to support the mother’s case. Such affidavit was settled by Merkin and filed the day after the hearing. The affidavit did not advance the Respondent’s case in proving “reasonable excuse”, and, if anything, it detracted from it. In the notes from the consultation with Dr [C], it was evident that the doctor had no concerns that the child was at risk of sexual abuse.

Ground 5 – misunderstanding the mother’s case

By this ground it was asserted that Bell J:
… erred in finding that the case for the Mother relied on the sufficiency of a genuinely held belief where the arguments relied upon for the mother involved evidence in support of the objective test of ‘reasonable grounds’.
We have no difficulty whatsoever in accepting the proposition that submissions of counsel for the mother were misunderstood. For the sake of the discussion, we are therefore prepared to accept that counsel conceded at the hearing that it was not sufficient for the mother to hold a genuine belief about the health or safety of the child, but that she acknowledged she also had to establish that such belief was based on reasonable grounds. However, his Honour was at pains to discuss whether or not there were “reasonable grounds”. Indeed, as we earlier noticed when dealing with the substantive appeal, an entire section of his Honour’s judgment was given over to asking that very question.
Having posed and discussed that question, his Honour found:
34.On the evidence before me I am not satisfied that there are reasonable grounds for the mother to believe that the child would be at risk of harm if the mother complied with the orders made by Federal Magistrate Demack on 7 August 2012 and 8 December 2012. Indeed, quite apart from the reasonableness of any such belief, there is evidence which leads me to doubt whether the mother did in fact have even a subjective belief that the child would be at risk of harm. However, it is unnecessary for me to make any definitive finding in that regard.
His Honour clearly considered the issue by reference to the correct test. Even if he erroneously thought counsel for the mother had contended for a different test, that would not provide a proper basis for appeal.
There being no merit in this, or any of the other grounds, the appeal will be dismissed.

Costs

The Independent Children’s Lawyer sought to be heard only on the substantive appeal, and informed us he did not seek costs if that appeal was dismissed. There will accordingly be no order for costs relating to his involvement.
We were informed that counsel for the father wished to rely on “without prejudice” correspondence in support of his foreshadowed application for costs in the event the appeals were dismissed. We therefore did not take full submissions and we will provide a timetable for written submissions on costs.

I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 23 July 2014.

Associate:

Date: 23 July 2014