GAHEN & GAHEN
[2014] FamCAFC 122
FAMILY COURT OF AUSTRALIA
| GAHEN & GAHEN | [2014] FamCAFC 122 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL TO ADDUCE FURTHER EVIDENCE – Whether the trial judge denied the mother natural justice and procedural fairness by refusing to allow the child’s general practitioner to give oral evidence or file affidavit material – Where the potential for the general practitioner to give evidence was raised in a directions hearing but not further pursued – Where extracts of the general practitioner’s clinical notes were subpoenaed and tendered into evidence – Where the trial judge was not informed of the nature and substance of the proposed evidence – Where the proposed evidence is inadmissible or could not be accorded significant weight – Application refused. FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether the trial judge denied the mother natural justice and procedural fairness by refusing to allow the child’s psychologist to give oral evidence or file affidavit material – Where the potential for the psychologist to give evidence was raised in a directions hearing but not further pursued – Where extracts of the psychologist’s clinical notes were subpoenaed and tendered into evidence – Where the trial judge was not informed of the nature and substance of the proposed evidence – Where the affidavit sought to be relied upon contains unjustified opinions that the dependent may be unqualified to give – Application refused. FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Whether the trial judge denied the mother natural justice and procedural fairness by refusing allow the child’s childcare worker to file affidavit material – Where the childcare worker reported a conversation she had with the child to the Department of Community Services – Where the evidence is almost wholly inadmissible – Application refused. FAMILY LAW – APPEAL – CHILDREN – ALLEGATIONS OF SEXUAL ABUSE – Where the mother’s belief that the child had been sexually abused whilst in the father’s care was found to be honestly but not reasonably held by the trial judge – Where the child had been medically examined on more than one occasion – Whether this aspect of the evidence invited evaluation of the child’s representations – Whether the child’s representations were true or false – Where the trial judge made a conclusion about the veracity of the child’s representations – Whether evidence is in fact directly contradictory to the trial findings was not addressed in the argument – Appeal dismissed. | |
| Family Law Act 1975 (Cth) | |
| B & B (1993) FLC 92-357 |
| APPELLANT: | Ms Gahen |
| RESPONDENT: | Mr Gahen |
| FILE NUMBER: | NCC | 1953 | of | 2010 |
| APPEAL NUMBERS: | EA EA | 145 173 | Of Of | 2013 2013 |
| DATE DELIVERED: | 11 July 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | 6 February 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 September 2013 |
| LOWER COURT MNC: | [2013] FamCA 730 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Gould |
| SOLICITOR FOR THE APPELLANT: | Nolan Commercial Law Practice |
| COUNSEL FOR THE RESPONDENT: | Mr Graham |
| SOLICITOR FOR THE RESPONDENT: | Powe & White Family Lawyers |
COUNSEL FOR THE INDEPENDENT Mr Rugendyke
CHILDREN’S LAWYER:
SOLICITOR FOR THE INDEPENDENT Legal Aid NSW Newcastle
CHILDREN’S LAWYER:
Orders
The mother’s Amended Application in an Appeal to adduce further evidence in the appeal filed on 22 January 2014 be dismissed.
The appeal against the orders of Justice Austin made 20 September 2013 be dismissed.
No order as to costs for appeal EA 145 of 2013.
No order as to costs for appeal EA 173 of 2013.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gahen & Gahen 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 SYDNEY |
Appeal Numbers: EA 145 of 2013 and EA 173 of 2013
File Number: NCC 1953 of 2010
| Ms Gahen |
Appellant
And
| Mr Gahen |
Respondent
REASONS FOR JUDGMENT
In a notice of appeal filed 5 February 2014 Ms Gahen (“the mother”) appeals against orders made on 20 September 2013 by Austin J in parenting proceedings with Mr Gahen (“the father”). Those proceedings related to the child of their relationship (“the child”).
The parties commenced a relationship in 2003, married in 2005 and separated in September 2009. There is only one child of their relationship.
After separation the child lived with the mother and spent time with the father in increasing amounts during the day until mid-2010 when he began spending alternate weekends with him.
In March 2011 the parties entered into consent orders that provided for them to share parental responsibility; for the child to live with the mother and for him to spend time with the father each alternate weekend and on other, special occasions. It seems that the parties anticipated varying the amount of time the child spent with the father to suit his age.
However in early November 2012 the mother came to the view that the child had been sexually abused by the father or his partner’s father, Mr R, or perhaps by both of them. The mother thereafter stopped all contact between the child and the father and commenced proceedings seeking to have the previous orders for contact discharged. In February 2013 interim orders were made by consent which provided the father with some supervised time with the child.
At the conclusion of the hearing the trial judge ordered the parties have equal shared parental responsibility, the child live with the mother and spend time with the father. His Honour’s orders did not provide for the time spent between father and child to be supervised.
The trial concerned the mother’s belief that the child had been sexually abused by the father and/or his partner’s father, Mr R.
His Honour’s findings form the pivot around which the appeal was argued.
His Honour found:
·The child enjoys a meaningful relationship with both parties [34]. The mother has been his primary carer and the child should remain living with her [35]. The child’s relationship with the father is important [36].
·The mother’s belief that the child had been sexually abused was honestly but not reasonably held [43]. Despite the “fervour of the mother’s belief, objectively considered, the basis for it was extremely tenuous” [58].
·At the time that the mother consented to orders in March 2011 providing for the child to spend time with the father she was not then of the view that the child was at risk of harm in his father’s care [45].
·The allegations of sexual abuse hinge on the veracity of the child’s statements made to the mother and others [49].
·The child’s statements are prone to be unreliable [82].
·“The child’s stories in this case should not be regarded as fact rather than fiction merely because they amount to reports of sexual abuse. The seriousness of the subject matter does not of itself render fiction truthful” [108].
·“The mother’s stubborn resistance to the evidence undermining the validity of the child’s sexual abuse demonstrates either her wilful partiality or an acutely superficial capacity for introspection, either of which explanations reflects poorly upon her. The same observation may be made of her husband and the maternal grandmother” [109].
·Both the father and Mr R denied the allegations. His Honour found them to be “stoic, measured and convincing witnesses” and accepted their denials as truthful [112].
·Neither the father nor Mr R sexually abused the child nor is the child at unacceptable risk of sexual abuse by the father or Mr R [113].
The evidence before the trial judge and Ground 1
The mother’s Amended Application in an Appeal to adduce further evidence on this appeal and ground 1 have the same evidence as their foundation. Ground 1 of the Amended Notice of Appeal provides:
1. That the trial judge erred in that he denied the Appellant natural justice and procedural fairness when he refused her applications to file affidavits on her behalf from:
(a)Dr NN, the child’s treating general practitioner, to whom disclosures had been made by the child;
(b) Dr W, the child’s treating psychologist, to whom disclosures had been made by the child; and
(c) Ms D, a childcare worker at the daycare centre attended by the child, to whom disclosures had been made by the child.
The mother’s Application in the appeal seeks to adduce the same evidence.
It is convenient to deal with these interconnected issues together, noting of course, the application of differing principles applicable to each.
The reception of further evidence on appeal is constrained. In CDJ v VAJ (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ considered the power of this court to admit further evidence. At page [109] their Honours observed that the exercise of the power is remedial in nature, to give the Full Court discretion to receive further evidence where “that evidence, if accepted, would demonstrate that the order under appeal is erroneous.”
Further, at [115], the plurality said that, in cases concerned with parenting orders, the discretion to admit further evidence should only be exercised in favour of receipt of the further evidence:
… if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.
If evidence has little probative force that, too, will be an important discretionary consideration.
On 18 July 2013 the trial judge conducted a directions hearing in preparation for the trial. His Honour, referring to the nature of the alleged sexual abuse, raised with counsel for the mother whether the rules of evidence should apply to the allegations of sexual abuse. Counsel for the mother agreed that there was no good argument to be made against the application of those rules and his Honour ordered that: “[p]ursuant to s 69ZT(3) of the Family Law Act, the provisions of the Evidence Act shall apply to evidence adduced in the proceedings relating to the alleged sexual abuse of the child of the parties.”
This order has particular importance to the exercise of this Court’s discretion in determining whether to permit the further evidence in accordance with the mother’s application. The best interests of the children is “one of the most important” of the discretionary considerations (CDJ at [88], per McHugh, Gummow and Callinan JJ).
The Proposed Evidence of Dr NN
At the 18 July 2013 directions hearing, counsel then appearing for the mother referred to the potential for evidence being given by Dr NN, the general practitioner of the mother and the child. Counsel said:
MR TREGILGAS: Sorry, your Honour - in the family report and also in my client’s earlier affidavit where the child has gone there, to that doctor, and made disclosures about these things. Some of those---
HIS HONOUR: Well, why don’t you subpoena his notes?
MR TREGILGAS: Her notes - some of those documents – some of that is disclosed in documents, your Honour. Whether it’s appropriate to call the doctor to give that evidence or not, I---
HIS HONOUR: Well, I'm not convinced, Mr Tregilgas. I can’t see why that wouldn’t be recorded in a doctor’s notes. Any doctor, as a mandatory reporter would---
...
HIS HONOUR: Would certainly record a disclosure of that sort.
MR TREGILGAS: Yes.
HIS HONOUR: And would necessarily be required to report it to the Department of Family and Community Services, so I don’t think oral evidence from the doctor can offer anything over and above what he or she wrote.
MR TREGILGAS: Yes. Thank you, your Honour. …
(Transcript of 18 July 2013 page 6 line 23 to line 47)
Extracts from Dr NN’s clinical notes were tendered in evidence in the hearing.
It is important to observe that the issue of Dr NN’s evidence (or indeed that of Dr W or Ms D to whom we shall turn shortly) was not again raised with his Honour either in that directions hearing, a further directions hearing on 12 August 2013, or during the trial itself.
It is also important to note that at no time was his Honour told what evidence in addition to what was in the doctor’s notes was proposed to be given in any affidavit intended to be filed.
Two affidavits of Dr NN were relied on by the mother in her application to adduce further evidence in the appeal. The second of these, sworn on 24 January 2014 corrects an error in the first.
Relevantly, in the body of the affidavit of December 2013, the doctor refers to the consultations to which her notes refer and sets out verbatim conversations with the mother and the child which apparently took place during the consultations. The doctor does not depose that the recounting of the conversations is supported by contemporaneous notes. Certainly her clinical notes do not set out those conversations.
However, and more particularly, the doctor offers her opinion as to whether the child was telling her the truth in his disclosures to her.
The evidence proposed to be given by Dr NN, if leave to adduce it be given, is overwhelmingly inadmissible. It purports to swear to whether a child is being truthful without any suggestion as to the expertise to offer such an opinion (if, indeed, any such expertise exists). Even if admissible, we cannot see how the evidence would be or should have been accorded significant weight, particularly in light of the evidence from the doctor which was already before his Honour.
The Proposed Evidence of Dr W
Dr W, a psychologist, had been seeing the child for some time by the date of the directions hearing on 18 July 2013. At that hearing, counsel for the mother sought leave to file an affidavit of Dr W in the proceedings.
Dr W was seeing the child for anxiety but not in relation to the sexual abuse allegations. Counsel said:
MR TREGILGAS: … It’s referred to in the family report, especially in one of the recommendations about a step up from unsupervised time during the day to overnight at a time where Dr [W] believes that [the child] could cope with it. I don’t know whether he’s required, in terms of---
HIS HONOUR: Well, why do I care what Dr [W] thinks about that? That’s why we’ve got a family consultant.
MR TREGILGAS: I understand that, your Honour. It’s only to cover that issue. His notes have been subpoenaed and he still has a relationship with [the child] so whether there’s ongoing disclosures would depend on what’s in the - in his subpoenaed documents, apart from that ---
HIS Honour: Well, I'm perfectly happy for you to use an update subpoena to Dr [W] for his notes, but I can’t see how his oral evidence can offer us anything. It sounds to me from what you’ve said that there’s a prospect that he’s going to trammel the evidence that we have from the family consultant.
MR TREGILGAS: Yes
HIS HONOUR: And there’s no basis for you being able to call and [sic] adversarial witness about that.
(Transcript of 18 July 2013 page 7 line 26 to line 47)
Counsel then moved on to another topic.
Again, at no point in the pre-trial hearing or, at the further directions hearing about a month later, or during the trial did counsel for the mother seek to revisit his application to rely on an affidavit of Dr W.
Nor, again, was his Honour informed of the nature and substance of any evidence that Dr W could give in addition to what was in his clinical notes.
An affidavit of Dr W sworn on 4th December 2014 was filed in support of the application to adduce further evidence in the appeal. It too is replete with comment rather than fact or expert opinion and contains opinions which no obvious expertise founds or offers opinions without revealing the bases for them. Such parts of the affidavit as are admissible could not, and should not have been, afforded weight by his Honour.
The Proposed Evidence of Ms D
At the further directions hearing on 12 August 2013, counsel for the mother sought leave to file a further affidavit. He said:
MR TREGILGAS: … Can I just raise one issue, your Honour. It has come to my client’s knowledge quite recently – probably Thursday of last week – that when the child, [N], was at a pre-school in 2011, he made a disclosure in relation to his father. That disclosure was made to one of the child carers there, [Ms D]. We were thinking of calling - seeking leave to call her in our case by a short affidavit, your Honour. I say this to your Honour – I understand it, from my instructing solicitor’s intelligence, who is in court with me, that the issue that this raises would be amongst the subpoenaed documents.
….
I haven’t seen it, but I'm told that this incident has been referred to in the subpoenaed documents.
(Transcript of 12 August 2013 page 6 line 13 to line 25)
Counsel was unable to tell his Honour what was said by the child to Ms D or whether his client knew that it had been said. His Honour declined to allow the witness to file an affidavit but suggested that counsel refer to the subpoenaed documents.
An affidavit of Ms D sworn on 3rd December 2012 was also filed in support of the application to adduce further evidence. In it she refers to a conversation she had with the child in July 2011 while she was caring for him. After her conversation with the child, Ms D made a report to the Department of Community Services and completed a child protection form in relation to the conversation.
Again, the balance of the affidavit is almost wholly inadmissible; it contains inadmissible opinion, comment rather than facts and assertions of questionable forensic value.
The submissions to his Honour about all three witnesses do not reveal any other evidence which could be given by them beyond evidence which was, through the admission of documents produced pursuant to subpoena or, attached to affidavits of the mother. We have an advantage over his Honour. We have been provided with the affidavits of these witnesses which set out the evidence which, presumably, they would have given in the evidence in the hearing; his Honour was not provided with that evidence.
As we have said, that proposed evidence is almost entirely inadmissible and, in any event, unpersuasive. His Honour ordered that the rules of evidence be applied to the evidence relating to the allegations of sexual abuse. If his Honour had the evidence furnished to this Court, it would have been rejected in any event.
In the circumstances earlier outlined, we can see no failure of natural justice. His Honour properly rejected suggestions from the bar table as to prospective evidence not yet obtained. No further application was made to adduce that evidence nor, indeed, was the mooted evidence ever put before his Honour.
There is no merit in ground 1.
Further, it will be clear from what we have already said that we are not persuaded that the evidence satisfies the test for admission of it on this appeal.
The Amended Application in an appeal to adduce further evidence filed 22 January 2014 is dismissed.
Ground 2
Ground 2 of the amended notice of appeal asserts:
The trial judge erred when he found that statutory reports made to the prescribed child welfare authority were false, based solely upon hearsay evidence and business records, and that such reports were made in reliance on complaints made by the Appellant Mother.
A Magellan report formed part of the evidence before his Honour. Relevantly it included the following paragraphs:
2. On 7 November 2012 the Newcastle Joint Investigation Response Team (JIRT) received a report concerning [the child]. There were many concerns raised in this report.
3. It is reported that [the child] appears to be highly anxious and distressed when he has to change households for the access arrangements between the parents. Also reported is that there are concerns that [the child] may be Autistic but has not been diagnosed as yet.
4. The reporter was told of prior concerns raised that [the child] may have been sexually abused at his father’s house but that others have not believed that. The report states that [the child] says that a man by the name of [RR] visits his father and he doesn’t like him because this man plays tricks on him. It is suggested in the report that [RR] may be the parent of [the child’s] father’s partner. The report further states that under prompting (it is unknown what this prompting was), that [the child] said [RR] puts his finger in [the child’s] anus. The report also states that [the child] said the last time he slept over at his father’s that he woke up and [RR] was in his bed. The report states that [the child] was asked if [RR] did anything to him and that [the child] said “no that he just had his finger in my bum” and that [RR] told [the child] not to tell his mother.
5. The reporter indicates that [the child] was anxious during this conversation and used a teddy bear to communicate and demonstrate abuse.
6. The reporter further indicates that [the child] allegedly observed [RR] to masturbate himself and simulated this action to the reporter.
7. The report also states that the last time [the child] was at his father’s home [the child] was playing with his father in the lounge room and th[at] his father put his finger in [the child’s] bottom. [The child] said that [the child] is wearing clothes when this happens. It is reported that this was witnessed.
8. Another concern raised in this report is that it is suggested that perhaps there is no [RR] and that this might be [the child’s] way of saying it was his father.
His Honour referred to the child’s visit to Dr NN on 5 November 2012 and 6 November 2012. At [66] His Honour recorded the evidence of the disclosures made to Dr NN on the 6 November 2012:
66.In the presence of both the mother and the doctor, the child made similar disclosures to those he had made the night before. The doctor noted that, in a “long story”, the child reported:
[Mr [R]] frequently plays tricks at him [sic]
Some time [Mr [R]] tries to stick finger in his anus [sic]
He was surprised to see [Mr [R]] in his room stairing at him with eyes open while [he] was in his bed [sic]
He got awake – as he felt that some body is sticking finger in his anus and that was [Mr [R]] [sic]
He asked [Mr [R]] why he was in his room. [Mr [R]] starts looking at him and told him not to tell mum about this incidence [sic]
(Footnote references omitted).
His Honour noted that Dr NN proceeded to report the allegations to the child protection authority. He continued:
69. However, the doctor’s report to the Department was false in two material respects, for which there is no satisfactory explanation.
70.Firstly, it was reported that Mr [R] masturbated in the child’s presence, which action the child had allegedly demonstrated. According to the evidence, the child had not said or done any such thing in the presence of either the mother, her husband, or the doctor. The child’s report about Mr [R’s] genitals was confined to Mr [R] “playing” with his penis, without any elaboration as to whether the “play” was prolonged manipulation or merely transitory adjustment, whether it occurred above or beneath his clothing, or whether it occurred only once or more often. Such detail has clear implications for the propriety of Mr [R’s] alleged conduct.
71.Secondly, it was reported that the father inserted his finger into the child’s anus in the lounge room of the father’s home. Although there is some ambiguity in the doctor’s notes relating to the child playing some form of game with the father in the lounge room, there was no overt disclosure by the child of such abuse by the father. The mother certainly did not hear the child make such a complaint about the father during that medical appointment.
It is necessary to reiterate that:
a)Dr NN’s notes (or, at the least, extracts) were in evidence;
b)On no occasion other than 18 July 2013 did the mother’s legal representatives attempt to tender affidavit evidence from the doctor;
c)The mother’s legal representative accepted that the doctor’s notes spoke for themselves (see, transcript of proceedings, 18 July 2013, p 6, lines 23-47);
d)No further application was made after 18 July to call or tender evidence from the doctor.
The written submissions made in support of the amended ground 2 provide:
It is submitted that in circumstances where the trial judge has refused to allow an affidavit to be sworn by Dr [NN], it was erroneous of him to find, as he does at [69] of the Judgment…, that “the doctor’s report to the department was false in two material respects for which there is no satisfactory explanation”. At [73] of the Judgment, His Honour goes on to refer to the “unexplained transformation”.
Otherwise, the submission assumes that his Honour knew (or perhaps ought to have known) what Dr NN would say had she sworn an affidavit and if the affidavit or its contents had been before him. His Honour had no such evidence
Crucially, no argument by counsel for the mother persuades us that the inconsistency or “fals[ity]” was central to his Honour’s ultimate decision. His Honour said:
73.The unexplained transformation of the allegations about the nature of the sexual impropriety with the child is simply a harbinger of further disquieting incongruence.
74.In any event, as a consequence of the formation of her belief about the child’s sexual assault, the mother unilaterally decided to sever the child’s interaction with the father.
This ground of appeal cannot be sustained.
Ground 3.
3. The trial judge erred when he found that because the child’s buttock and anus had been the subject of interest, perhaps even concern for a prolonged period, this was an aspect of the evidence which invited cautious evaluation of the child’s representations from the perspective of that the disclosures were unlikely to be true, or less likely to be true than false.
His Honour referred to the mother’s evidence at [44] in which she said that while she had suspicions that the child had been sexually abused, it was not until the child disclosed the abuse later in 2012 that she came to believe he had been abused.
His Honour said:
49. The allegations of sexual abuse therefore really hinge upon the veracity of the statements the child made to the mother, her husband, the maternal grandmother, doctors, and investigators attached to the NSW Joint Investigation Response Team (“JIRT”) in the period between October 2012 and February 2013.
Thereafter in his reasons, his Honour carefully set out the detail and substance of each allegation made by the child about the asserted sexual abuse. Consistently with his identification of the issue for determination at [49] his Honour analysed those statements to come to a conclusion about the veracity of them. In the course of that examination, his Honour explored the evidence not only of what the child said, but the circumstances in which the statements were made.
It was common ground in the proceedings before his Honour that the child had suffered from urinary tract infections, blood in his faeces and rashes on his buttocks for years and that he had been medically investigated in relation to these matters.
His Honour found:
88. It was common ground the child had previously been retentive, avoiding defecation. He either had trouble or disliked defecating, which problem was thoroughly investigated in early 2011. He did not like the sensation of faeces in his nappy. He suffered from excoriation of the anus and buttocks, which was investigated as recently as only days before the child’s JIRT interview, when an anal swab was taken from him. The child’s buttocks and anus have therefore been the subject of interest, perhaps even concern, for a prolonged period. It would be speculative to infer some connection between that persistent abdominal interest and the child’s allegation about Mr [R] touching his buttocks or penetrating his anus, but it is another aspect of the evidence that invites cautious evaluation of the child’s representations.
His Honour’s analysis of the evidence of the child’s disclosure continued and he said:
108. The child’s stories in this case should not be regarded as fact rather than fiction merely because they amount to reports of sexual abuse. The seriousness of the subject matter does not of itself render fiction truthful. As the Family Consultant explained in cross-examination, young children like the child have malleable minds and are liable to have false memories created by persistent discussion of a topic with them. Relevantly for present purposes, there can be no doubt the prospect of the child’s sexual abuse has been discussed with him in similar terms by various adults on many occasions since October 2012.
The ground of appeal incorrectly adds to his Honour’s observations at [88] the words “…from the perspective of that the disclosures were unlikely to be true, or less likely to be true than false.” As the concluding sentence of [88] makes clear, this aspect of the evidence was but one component of a careful and detailed analysis of all the evidence.
No written submission addressed this ground. In oral argument, it was said that his Honour’s finding about the child not liking the sensation of faeces in his nappy was directly contradicted by Ms D’s evidence. It was further argued that his Honour failed to afford the mother natural justice in not allowing Ms De to give her evidence.
We repeat; his Honour did not have Ms D’s evidence (which we observe, in any event related to the period October 2009 to November 2011).
Ms D’s evidence was that the child would not move his bowels in the lavatory but only when wearing a nappy. Whether this evidence is in fact directly contradictory to his Honour’s findings was not addressed in the argument. Again, we repeat, findings plainly central to his Honour’s ultimate findings as to sexual abuse are not the subject of challenge on this appeal.
This ground is not made out.
Ground 4
4. That the trial judge erred when he misdirected himself by reason of making findings that a 5 year old child was guilty of “deceit, mendacity, the giving of false information and dishonesty”.
Counsel for the mother conceded that the ground did not accurately reflect his Honour’s findings about the credibility of the child’s statements. In fact, the written submissions do not support the ground as set out in the notice of appeal.
The thrust of the argument on this ground of appeal was that his Honour applied the incorrect test in determining the credibility of the child’s disclosures. It was suggested that his Honour used language more associated with criminal proceedings than with the nature of the proceedings before him.
There is no doubt that his Honour came to the conclusion that the child’s statements should be clearly rejected as evidence that he had been sexually abused. Nor can it be doubted that his Honour expressed his conclusions in strong, perhaps, regrettable terms.
However, when pressed, counsel for the mother was unable to articulate in what way his Honour’s findings, which were not impugned, demonstrated a misdirection. In the result, the ground devolved to an argument that his Honour’s language was too forceful.
No error has been established in this ground of appeal.
Ground 5
5. That the trial judge failed to give consideration, or adequate consideration, to the impact on the Mother (the child’s primary carer) of making orders for unsupervised contact between the child, the Father, and Mr [R].
Despite the language used in the first part of the ground, it was effectively conceded that there was no substance to the assertion that his Honour had “failed to give consideration” to that matter; the record and the reasons plainly reveal that he did. The challenged is, then, one as to weight.
It was conceded in argument that there was scant evidence before his Honour by or on behalf of the mother about the impact on her of orders providing for unsupervised time between the child and the father. It was argued that it “would be unimaginable” for there not to be such an impact.
The mother was asked in cross examination how she would react to a finding by the court that the child was not at risk of being abused by the father or
Mr R. She said that she could not answer the question but said “I will have to cross that bridge when I get to it” (Transcript of 26 August 2013 page 41 line 29). She agreed with the proposition, again put to her in cross examination, that if her “firm view” that the child had been sexually abused was successfully challenged she would be “upset” (Transcript of 26 August 2013 page 41 line 46 to page 42 line 2).
In submissions, counsel for the mother said to his Honour that, in the event that his Honour did not find that sexual abuse had occurred in the father’s home or that there was not an unacceptable risk of abuse and his Honour made order for unsupervised time between the child and the father, his Honour should consider some restriction on Mr R’s contact with the child to provide “comfort” for the mother.
Counsel said:
MR TREGILGAS: … So if your Honour is making an order that there’s unsupervised time, my client already has a concern to alleviate those concerns and to encourage a proper relationship between [the child] and his father. Doesn’t it follow as a matter of logic that that would provide comfort to my client?
HIS HONOUR: I don’t know. I don’t
MR TREGILGAS: Well, it would by [sic] common human experiences if she has the concern that there are issues in the father’s household. If your Honour wants to make orders that are going to encourage a proper relationship between [the child] and his father, isn’t that a protective measure that allows that to take place?
(Transcript of 29 August 2013 page 81 line 2 to line 12)
As his orders reveal, his Honour in fact placed a restriction on Mr R’s contact with the child for a short period after the child’s time with his father recommenced.
It was not submitted to his Honour that, if an order for unsupervised time was made between the child and his father, it would adversely affect the mother’s capacity to care for the child, nor, in our view could that submission have been made on the evidence before his Honour.
No error has been demonstrated.
Ground 6
6. The trial judge erred in his application of the law when, given his finding that the Mother had failed to prove her allegations, he must inevitably make positive findings that:
a)The abuse did not occur; and
b)That there is no unacceptable risk of abuse.
Honour said:
113. Having regard to the authorities by which the Court is bound (see
M v M (1988) 166 CLR 69; Napier & Hepburn (2006) FLC 93-303; Potter & Potter (2007) FLC 93 93-326; Johnson v Page (2007)
93-344) and the standard of proof which governs evidence touching upon allegations of serious misconduct, such as the sexual abuse of children (s 140 Evidence Act (Cth)), the following conclusions are inevitable:a)The father did not sexually abuse the child, nor is the child at unacceptable risk of sexual abuse by the father; and furthermore
b)Mr [R] did not sexually abuse the child, nor is the child at unacceptable risk of sexual abuse by Mr [R].
The written argument suggested that his Honour’s findings were not “inevitable” but there were other findings which were able to be made:
16. It is submitted that His Honour has misdirected himself, and failed to take into account other options including:
(a)Being unable to make findings about whether or not abuse has occurred;
(b)Being unsatisfied that the abuse has occurred, but making a finding independently that there remains an unacceptable risk to the child in having supervised contact.
During oral submissions before us, counsel for the mother took the Court to the transcript of what was said by his Honour during the hearing of an application for stay by the mother on 28 November 2013. Counsel’s submissions relied upon the following exchange:
MR GOULD: …At paragraph 113, your Honour finds, unusually, for this type of case, but makes positive findings that the two gentlemen against whom allegations were made, neither abused the child.
HIS HONOUR: That’s not so, Mr Gould.
…
HIS HONOUR: …The facts in legal proceedings are binary. There’s a burden of proof, or a standard of proof. If the standard of proof is not met, the reverse is the probability.
MR GOULD:Well, that might be open again, with respect, to argument, in light of M v M and B v B. Those cases being formulated because ordinary standard of proof, either civil or criminal, were thought by the High Court in those cases, perhaps not to adequately meet the special circumstances that’s often surrounds these. Now, section ‑ ‑ ‑
HIS HONOUR: We have a difference of opinion about the law but that’s not going to dictate the outcome of the proceedings.
MR GOULD: Indeed.
HIS HONOUR: All I’m pointing out to you is that I don’t accept your analysis of paragraph 113. If you accept that a factual issue in a case has to be decided one way or another and there’s a burden of proof that applies, if the burden is not met then the binary nature of the proceedings means that the reverse is probably correct. That’s it.
(Transcript of proceedings, 28 November 2013, pp 7-8) (Emphasis added)
The exchange occurred in the context of the mother’s counsel addressing his Honour as to the merits of the then prospective appeal as an element of seeking an order for stay of his Honour’s orders. Thus, we emphasise, the exchange occurred subsequent to the delivery of his Honour’s reasons and the making of orders and occurred during the course of argument in respect of that separate issue.
The challenge, turning as it does on the use of the word “inevitable”, seeks to use his Honour’s comments earlier quoted as demonstrating the application of an erroneous principle of law. The argument assumes that his Honour asserts that if a party seeks to prove the occurrence of sexual abuse and fails to do so, then proof of corollaries (that sexual abuse did not occur or that there is no unacceptable risk of relevant harm to the child) follow as inevitable. Counsel’s argument in that respect rests in significant part on his Honour’s reference to “facts in legal proceedings” being “binary”.
Facts in legal proceedings might be “binary” in the sense that they are either proved or not proved. However that says nothing, necessarily, about proof of the corollary. Death might be thought of as quintessentially binary; one is either dead or alive. Yet, in legal proceedings, where the death of a person is in issue, a failure to prove death to the requisite standard does not prove or lead to an “inevitable conclusion” that the person is alive. It does, however, lead to a logical conclusion that proof of life may be more likely.
Counsel asserts that having found that the wife had not established that sexual abuse of the child had occurred at the hands of the father or Mr R (as she had sought to do) his Honour found – simply as an inevitable corollary - that neither the father nor Mr R abused the child and that neither posed an unacceptable risk of relevant harm to the child. That is, counsel for the appellant’s assertion is, in effect, that his Honour finding of “inevitable” conclusions is an application of the erroneous proposition just referred to.
The first point to be made in rejecting the arguments by counsel for the mother is that if error is to be established as asserted in the ground, it is to his Honour’s reasons that recourse must be had. What his Honour may or may not have said subsequently in associated proceedings may illuminate an error otherwise established but cannot itself constitute the basis upon which error emanating from the earlier reasons is established.
Secondly, the reasons do not support the characterisation of [113] contained in ground 6. More specifically, there is nothing in the reasons to suggest that his Honour’s findings as set out in [113] arose solely because his Honour found that “the mother had failed to prove her allegations”. The challenged conclusion reached at [113] of the reasons, and its “inevitability” did not arise by way of assumed or consequential corollary; it is, in our view, the conclusion reached by his Honour after a detailed assessment of the evidence which concluded with his Honour saying, in the paragraphs immediately prior to [113]:
110. Besides analysis of the evidence relating to the mother’s concern about the child’s physical afflictions, behaviour, and representations, there is the evidence of the father and Mr [R] to consider.
….
112. Both the father and Mr [R] filed affidavits in these proceedings denying their commission of any abuse of the child and subjected themselves to cross-examination about the allegations. They both proved to be stoic, measured and convincing witnesses. I accept their denials as truthful.
The central (unchallenged) finding as to the truthfulness of central evidence (which is not the subject of appeal) and his Honour’s findings as to the reliability of the child’s “disclosures” (unsuccessfully challenged on this appeal) do lead to the findings at [113] being inevitable in this case because of the earlier findings made by his Honour which underpin those conclusions.
Finally, that conclusion also provides essential context to the remarks made by his Honour which, we emphasise again, occurred during argument and which were made in respect of the stay application subsequent to the Reasons.
In our view, his Honour’s comments to counsel during the course of argument are not as bald as counsel contends before us. In our view, they cannot be seen as his Honour expressing, much less applying, any erroneous principle. Rather, they are the application of the logical conclusion earlier referred to. That conclusion is emphasised by his Honour’s concluding qualified statement: “…if…a factual issue in a case has to be decided one way or another ... if the burden is not met then the binary nature of the proceedings means that the reverse is probably correct” (emphasis added).
No error has been demonstrated. Ground 6 fails.
Conclusion
The appeal fails.
Costs
We sought submissions from all parties on the issue of costs of the appeal. The father submitted that if the appeal was successful he sought an order for costs against the mother. It was said that the father is in receipt of legal aid, has no resources and a small income from part time work. For the mother it was argued that she has the care of two small children from her current relationship and is not working. It was said that she has no property. The mother was not in receipt of legal aid.
Similarly the Independent Children's Lawyer sought an order for costs against the mother in the event that the appeal was unsuccessful. Substantial written submissions were provided on behalf of the Independent Children’s Lawyer together with oral submissions at the hearing of the appeal. The basis for the application for costs was that the Independent Children’s Lawyer is funded by Legal Aid. No other submission being made, we do not consider an order should be made in favour of the Independent Children’s Lawyer for costs.
Although the mother’s appeal was wholly unsuccessful, given her financial circumstances we are of the view that in this case it is not appropriate to depart from s 117(1) of the Act and will make no order as to costs. On 6 December 2013 the Full Court heard an application by the mother to adduce further evidence to support an appeal from the refusal of the trial judge to stay the orders - appeal EA 173 of 2013 (“the stay appeal”). The application and appeal were dismissed. The application to expedite the hearing of this appeal was allowed. The costs were reserved. In our view there should be no order as to costs of the stay appeal, there being no relevant circumstances which would cause an order to be made.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace and Murphy JJ) delivered on 11 July 2014.
Associate:
Date: 11 July 2014
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