Helbig & Rowe
[2016] FamCAFC 117
•6 July 2016
FAMILY COURT OF AUSTRALIA
| HELBIG & ROWE AND ORS | [2016] FamCAFC 117 |
| FAMILY LAW – APPEAL – CHILDREN – Allegations of risk of sexual abuse – Single expert report – Credit – Alleged errors of fact – Weight attributed to the evidence – Unacceptable risk – Unacceptable risk of abuse not established – Where children to live with father and spend time with mother – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence on appeal – Application dismissed. | |
| Evidence Act 1995 (Cth) ss 79(1), 97, 135, 138
| |
| Family Law Rules 2004 (Cth) rr 1.19(1)(e) and (3), 22.22(2)(c) |
A v A (1998) FLC 92-800
Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 118 ALR 248
Coulton v Holcombe (1986) 162 CLR 1
D & D (Costs) (No. 2) (2010) FLC 93-435
Gronow v Gronow (1979) 144 CLR 513
Helbig & Rowe [2012] FamCAFC 169
Helbig & Rowe [2014] FamCAFC 179
Helbig & Rowe and Ors (No. 2) (2014) FLC 93-625
Johnson and Page (2007) FLC 93- 344
Kohan and Kohan (1993) FLC 92-340
Limousin & Limousin (Costs) (2007) 38 Fam LR 478
McDruitt & Van [2009] FamCA 788
Metwally v University of Wollongong (1985) 60 ALR 68
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
| APPELLANT: | Ms Helbig |
| RESPONDENT: | Mr Rowe |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| INTERVENER: | Secretary, Department of Family and Community Services (NSW) |
| FILE NUMBER: | PAC | 5421 | of | 2010 |
| APPEAL NUMBER: | EA | 50 | of | 2015 |
| DATE DELIVERED: | 6 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 3 & 4 September 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 March 2015 |
| LOWER COURT MNC: | [2015] FamCA 146 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | O’Sullivan Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Ward |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| COUNSEL FOR THE INTERVENER: | Mr Anderson |
| SOLICITOR FOR THE INTERVENER: | Crown Solicitor’s Office |
Orders
The Application in an Appeal filed 27 August 2015 be dismissed.
The appeal be dismissed.
The appellant mother pay the respondent father’s costs of and incidental to the appeal as agreed, or in default of agreement as assessed, within twenty-eight (28) days of the agreement or the assessment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Helbig & Rowe and Ors 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 Number: EA 50 of 2015
File Number: PAC 5421 of 2010
| Ms Helbig |
Appellant
and
| Mr Rowe |
Respondent
and
Legal Aid NSW
Independent Children’s Lawyer
and
Secretary, Department of Family and Community Services (NSW)
Intervener
REASONS FOR JUDGMENT
Introduction
Ms Helbig (“the mother”) appeals against parenting orders made by Rees J on 9 March 2015. The proceedings concerned two children of the mother and Mr Rowe (“the father”): a boy, X, born in 2005 and a girl, Y, born in 2008 (“the children”).
At the hearing before the primary judge the mother contended the father posed an unacceptable risk of abuse to the children and that their time with him should be supervised.
The father denied that he posed a risk to the children and submitted that they would be entirely safe in his care. He contended however that as the mother had such a fixed, implacable but entirely mistaken view that he had sexually abused the children, if the children were to live with the mother they would never maintain a relationship with him for essentially two reasons. First, the mother would behave as if he was an abuser of the children and encourage the children, perhaps even unconsciously, to do and believe the same. Secondly, if the children were to spend any time with the father they would be subject to constant questioning and searching by the mother seeking evidence of sexual abuse.
The father said that it was in the children’s best interests for them to have a relationship with both of their parents but that this could only occur if the children lived with him and spent time with the mother. Thus he proposed that, in the first instance, the children live with him and spend two hours each week with the mother supervised by a contact centre so as to provide a break from the influence of the mother. After 12 months and only if the mother had made no further allegations against the father, the children would spend unsupervised time with their mother for short periods at first but, ultimately, spend significant and substantial time with her. The proposed orders required the mother to attend a court-appointed psychiatrist for assistance in changing her views about the allegations of abuse.
An Independent Children’s Lawyer (“ICL”) was appointed to represent the interests of the children. Generally speaking, the ICL sought orders that would limit the time the children were to spend with the mother and the maternal grandparents to supervised time until the mother completed a course of counselling for the purpose of changing her views as to whether the father had abused the children.
The Department of Family and Community Services (NSW) (“the Department”) intervened in the proceedings. It sought orders for the children to live with the father and spend immediate unsupervised time with the mother.
The primary judge was therefore faced with the resolution of very serious allegations raised by both parties, the outcome of which was of great moment in deciding what orders would be in the best interests of the children.
The primary judge did not accept the mother’s contentions. Her Honour found that the evidence did not establish that the children would be subject to an unacceptable risk of abuse if they were to spend time with the father. Rather, the primary judge found that in order for the children to have a long term relationship with both of their parents, it was necessary for the children to live with the father. Further, she ordered for a period of one year from the making of the orders, the children were to spend time with the mother on one occasion each week for at least two hours supervised at a contact centre. Thereafter, there was to be a progression of unsupervised time leading to the children spending time with the mother from Friday afternoon to Monday morning on each alternate weekend and for half of the school holidays. Subject to the directions of the manager of the contact centre, the maternal grandparents were permitted to attend the children’s time with the mother at the contact centre. The father was ordered to have sole parental responsibility for the children. Finally, the father was ordered to engage in at least six sessions of counselling to assist him to address issues relating to the children.
The mother appealed her Honour’s orders. She appeared for herself and raised thirty grounds of challenge to her Honour’s orders. The father, the ICL and the Department each resisted the appeal.
Despite r 22.22(2)(c) of the Family Law Rules 2004 (Cth) (“the Rules”), which provides for written summaries of argument to be not longer than 10 pages, and notwithstanding an order of a registrar of the court which permitted the mother to file a written Summary of Argument of up to 30 pages, the mother filed a document which, when printed in an acceptable font, ran to some 82 pages. The summary further included 546 endnotes. Notwithstanding the length and detail of the written document, the mother’s oral submissions occupied an entire day.
In both her written and oral submissions the mother frequently made broad and sweeping statements which too often did not accurately represent the evidence. This was consistent with the way the mother approached the entire matter. For example, the primary judge found:
124.The mother provided DFCS with an edited selection of the evidence that had been available in the proceedings before the FCC in 2013. Relevantly, she provided a copy of the notes of counselling undertaken by the father in 2008 and 2009 when he was referred to a psychologist, Mr [A], for counselling in relation to major depression and marital difficulties. The notes extensively detailed conversations with the father about his use of pornography and masturbation. Significantly, she did not give DFCS a copy of the report of Mr [A] which said, inter alia:
I saw no evidence of a paraphilia, pathological sex addiction, nor any other dysfunction of sexual behaviour.
Mr [A] reported that he was not aware of any factors that would suggest a risk to the children in his care and that the father had a mature and responsible attitude to the care and nurturing of the children.
125.The mother also gave DFCS copies of notes produced on subpoena by her counsellor, Ms [J]. The father had participated in some sessions with Ms [J] during the period when he was consulting Mr [A]. She gave DFCS a copy of an affidavit sworn by her on 12 December 2010 setting out her concerns about the father’s sexualised behaviours during the marriage and a copy of the Notice to Admit Facts to which reference was made earlier in these reasons.
126.She provided the Notice of Abuse that she had completed in December 2010 which asserted “The father has demonstrated and disclosed to the mother and health professionals an increasing sexual obsession and sexualised behaviour in relation to the children [X] and [Y] between 2008 and 2010”.
127.The mother gave DFCS one page from Dr [R’s] second report with her hand written comments but did not provide Dr [R’s] conclusions.
Despite striving to focus the mother’s arguments on issues truly germane to the appeal, she was discursive and resorted to irrelevancies in her oral argument. As we explained to her, the manner in which she ultimately presented the appeal would likely make it difficult for us to give as timely a decision as we would want. It has and the time that it has taken to understand and deal with the mother’s submissions has regrettably impeded the prompt delivery of these reasons.
Background
In order to understand the appeal it is necessary to set out some history of the matter, primarily taken from her Honour’s reasons.
The parties were married in 1996. At that time the father was aged 37 and had two children from a previous marriage. The mother was aged 27 with no children. We note at the time of the hearing before the primary judge the father’s two children from his previous marriage had both attained the age of 18 years.
As earlier noted, there are two children of the relationship, X born in 2005 and Y born in 2008.
The parties separated in 2009 when Y was just eight weeks old.
In mid 2009 the father moved to Western Australia for a time.
On 12 November 2010 the father filed an application for parenting orders in the then Federal Magistrates Court in Parramatta.
On 15 December 2010 the mother filed a Notice of Risk of Abuse or Risk of Family Violence alleging that the father represented an unacceptable risk of abuse to X.
On 29 November 2011 Federal Magistrate Foster (as his Honour then was) ordered that the children spend time with the father and that the time be supervised by members of his family. An appeal by the mother against that decision was dismissed by Coleman J on 24 October 2012 (Helbig & Rowe [2012] FamCAFC 169).
On 21 May 2013 consent orders were made in the Federal Circuit Court of Australia for the parties to have equal shared parental responsibility for the children, and for the children live with the mother and spend time with the father on a gradually increasing basis, with the children ultimately spending time with the father for four nights each fortnight during school terms as well as half school holidays and on special occasions. The mother was restrained from allowing the maternal grandparents to attend the place at which the children moved between the parents. The orders further noted that without making admissions, the parties consented to orders that neither parent would expose the children to the parent’s naked genitalia, pornography or masturbation, or give the children alcohol.
Thereafter, the children saw the father largely in accordance with those orders until January 2014. On 31 January 2014 the mother filed an application for interim and final orders in the Family Court of Australia. Pending final hearing, the mother sought that the consent orders of May 2013 be suspended and restrictions be placed on the children’s contact with the father. She did so on the basis that the children were at risk of sexual abuse in the care of the father.
The allegations of risk of sexual abuse as discussed by the primary judge
Her Honour recorded the matters which the mother contended would, when considered either individually or together, lead her Honour to conclude that the father posed an unacceptable risk to the children:
60.The mother deposed that in mid-2013 after the orders for unsupervised time with the father had been implemented, on one occasion when she was bathing [Y], [Y] took a brush and “tickled herself on the vagina”. The mother deposed that [Y] said, “This is the porcupine game that [the father] showed me you just get a brush and tickle down there.” The mother did not report this incident to the father and did not ask if there was any explanation for [Y’s] behaviour. [Y] was four and a half years old.
61.The mother deposed that in September 2013:
[Y] was holding an Elmo toy and giggling. I asked “Why are you giggling?” [X] took the toy from [Y], turned it upside down and putting its face over his penis said, “[X] was doing this.” [X] started rubbing the toy across his groin saying “And she was saying, “Look Elmo has a big mouth … he’s going to suck my privates.”” Then [X] said “…and mum, after dinner one night upstairs, you were having a cuppa with grandma and grandpa and [Y] and I were hiding behind the couch in the bedroom. [Y] said "Let’s show each other our private parts” and “I want to suck your doodle’”.
62.The mother relied on [X’s] account of what [Y] had done. She did not observe what [Y] did. There is no evidence that [Y] did or said anything in response to what [X] said to the mother, although it appears she was present during the entire conversation.
63.The mother deposed that on 27 December 2013:
I was putting the children to bed. We were talking and having foot massages. [Y] snuggled her face into my crotch and (sic) trying to lick me there. I was fully clothed. I moved away and asked “what are you doing?” She tried to snuggle in and lick me again. I held her back and said “don’t put your face in someone’s private parts and lick them, where did you learn that?” [Y] said “Dad…[the father].” [Y] continued “[the father], he asked me to rub in his private parts but I said no”. [Y] also told me “He said ‘[Y] follow me’ so I followed him .There’s a few stairs to go up the top level. At the very end of the hallway that was his bedroom, then I was in the bedroom and then he went into the bathroom. I needed to go to the toilet. He’s had 4 houses.”
64.The mother deposed that [Y] then said:
“I went up the ladder. Everyone was asleep except me and I climbed down and said “I’m going to do something like sneak out…down to the bottom.” She started counting then said “there’s 4 big stairs, I have to always use my hands to go up the stairs ‘cos there so big. I went looking to find the keys to get outside.”
65.The mother deposed that she recorded some of what [Y] said. That recording, of only part of the event, was tendered.
66.The mother’s version of this conversation was not challenged.
67.Later, on 27 December 2013, the mother caused [X] to re-enact what [X] had observed [Y] doing with the Elmo doll some three months before. [Y] was present. The mother recorded the event on a video camera. The recording was tendered in evidence, as were transcripts of the recording prepared by the ICL and by the mother. It is clear that [X] knew he was being recorded.
That discussion led to the mother having a discussion with Y, which she video recorded. The primary judge described it thus:
68.The recording shows [X] holding the Elmo doll. [X] said “she was holding babies and then she went like this, and then see how his mouth is open”. [X] turned the Elmo doll upside down and said “She said and I let him suck my doodle”
69.The mother asked [Y] “Is that true? [Y]?” and [Y] replied “No”.
70.The mother then prompted [X], “And then what was happening upstairs when you were…Remember you told me about being upstairs? What was happening up there? Remember?” [X] said “Um she was behind the couch…I think. She said ‘Do you want to show each other um our private parts?’ and she also went ‘Can I suck your doodle?’”
71.The mother said “She said that to you did she? Really?” and [X] nodded. The mother then said “Why would she say that?” and [Y] said “I didn’t. All we were doing is...” At this point, the mother interrupted [Y] and didn’t allow her to complete her reply, saying that this was not a game that children would play.
72.The conversation continued. The transcript is set out below:
Mother“Why did you have my face in your private parts then?”
[Y] “What did you do?”
Mother “Well, tell me again”
[Y] “Are you sending a message to [Mr Rowe]?”
Mother“No I’m not sending a message but I want to know, you just said that he had asked you to do that to him, is that right?”
[X] “I didn’t ask her to”
[Y] “No [Mr Rowe] did”
[X] “What did he ask you to do?”
[Y]“He asked me to rub in his private parts but I said no and then he...”
[X] “No he didn’t [Y]”
[Y] “You were there” (with emphasis on ‘there’)
[X]“I was there the whole time. You were there barely any of the time because you were playing computer games..”
[Y] “You were”…
[X] “The whole time when we were with [Mr Rowe]”
Mother “When was it [Y]? When did this happen?”
[Y] Silence. “Mm I’m sending a text message”
Mother“You can send a text message later. It’s important for you to know that mummy believes you, okay? You’re not in trouble”
[Y]“Why don’t we send another message to [Ms O]?”
Mother “What would we say to her”
[Y] “Your doggy is really cute…”
[Y] “And we love”
[X] “Who?”
[Y] “how she plays”
Mother “[L] is very cute. If we were…”
[Y] “[X] says ‘Get your head out of my bottom’”
Mother “Please don’t do that”
[X] “And don’t kick me in the face..”
Mother “[Y] come here”
[X] “Stop kicking me in the face.. you deserve...”
Mother “Come here, come here, come here”
[X] “You deserve that”
[Y] [Y] starts to cry.
Mother“It’s okay… come here. Now if we were to talk to [Ms O] and you were to tell her what you just told me, what would you tell [Ms O]?”
[Y] “I wouldn’t tell her anything”
73.[X] was adamant that the events that [Y] described had not occurred.
On 30 December 2013 the mother reported this incident to the Department:
74.The mother made a notification to DFCS in the early hours of the morning of 30 December 2013. Tendered in evidence was a document which she said was a contemporaneous note of a conversation with a case worker for about 50 minutes commencing at 2.30 am on 30 December 2013.
75.The whole file of the DFCS in relation to the children was tendered in evidence.
76.Under the heading CSO BRIEF DETAILS the record notes:
Caller is reporting concerns for the children in the care of the father [Mr Rowe]. Caller is concerned that [Y] is being sexually abused by [Mr Rowe]. Caller states that on Friday night 27/12/13 when caller was putting [Y] to bed, [Y] tried to put her face on caller’s genitals and tried to lick caller’s crotch. Caller asked [Y] why she was doing this and [Y] said “because daddy asks me to do that to him.” Caller states that the children live primarily with caller and have contact with the father.
77.In the mother’s notes of that conversation she recorded that she said to the DFCS officer, “She tried to snuggle in again. I said ‘you don’t put your face in someone’s private parts, where did learn that?’ She said ‘Dad/[Mr Rowe] asked me to do it to him… to rub in his private parts… but I said no… it’s rude.’”
78.The mother’s account of the conversation in her trial affidavit does not include the allegation that [Y] said to her “daddy asks me to do that to him.” The suggestion contained in the mother’s report to the DFCS is that the father had asked [Y] to lick his genitalia. Those words were not, according to the mother in her affidavit, said by [Y] to her on 27 December 2013. In the narrative which follows the brief details, the record notes again that the mother said to the DFCS officer that “[Y] said dad [Mr Rowe] asked me to do it to him.”
Later that day the mother met with the father. The meeting had been arranged some time before and had been planned so that the parents could discuss a number of parenting issues including the mother’s proposal that she and the children move to live in Canberra. The mother made no mention of any of the allegations made by Y (at [79]-[84]).
As a result of the notification of the allegations to the Department, Y was interviewed on 31 December 2013 by a Joint Investigation Response Team (“JIRT”). Y was then five. During the interview, a diagram of a male figure was used in the questioning of the child. After noting the use of the diagram the primary judge found that the interview commenced at 3.41 pm and that “[a]t about 4.15pm the interviewer resorted to leading questions” (at [90]).
The primary judge then spent some time recording the substance of the interview.
It is necessary to set out in full her Honour’s discussion of the interview so as to properly understand the mother’s contentions:
86.[Y] told the JIRT officers that the family used to have a house in Sydney but it was sold and, “our dad, he pushed, he like made us go, he pushed us out of the house…and then he moved in…and he made mum, he made mum pay for the house.” [Y] said that her mother and father lived in separate houses because they didn’t like each other and she told the JIRT officers, “we’re trying to move to Canberra but we can’t ‘cause he’s stopping us but we’re not.”
87.When [Y] was asked what she liked about her father, she said that the father let her and [X] go canoeing and that was really fun. When asked if there was anything that she did not like about her father, she made no reply. In relation to Ms [G], [Y] said that she liked being driven around by Ms [G] to look at the Christmas lights. When she was asked if there was anything she did not like about Ms [G], she made no reply.
88.I infer from the transcript that [Y] was then shown an outline drawing of a naked girl both from the front and the back. A copy of the drawing was not in evidence. The parts of the body were identified by [Y] starting with her hair and ending with her feet. In relation to each body part she was asked if anybody had touched that part and in relation to each she said that no-one had touched it.
89.She was then, I infer, shown an outline drawing of a boy, both from the front and the back. The process was repeated and [Y] denied having ever touched any of the boy’s body parts. When she was asked whether she had touched a big person she said no.
90.At about 4.15 pm, the interviewer resorted to leading questions. DSC [H] in cross-examination conceded that anything said from that point in the interview had little probative value. He said to [Y] “Well [Y] someone told me, someone told me that one time when you were at your dad’s place, that he asked you to do something to him like on his body. Anything like that ever happen [Y]? Has dad ever asked you to touch any part of his body?” To which [Y] replied “I said, no.”
91.[Y] then said “So I didn’t touch, I walked backwards and then I turned around and then I walked up and then I went up the stairs to my bedroom and went up to my bed.” [Y] was asked “So when did this, tell me when that happened [Y], when did dad ask you to touch him.” She made no reply.
92.She was asked “What part, like if, on this picture here what part of, what part of dad’s body did dad want you to touch?” (I note that the suggestion that the father wanted [Y] to touch him came from the interviewer and not from [Y]) [Y] replied “I don’t know.”
93.[Y] was asked “Was it his hair?” and she said no. She was asked “Was it somewhere else?” And she replied “I don’t know where.” She was asked “What did he say to you [Y]?” and she replied “I don’t know.” The interviewer then said [Y] “It’s really important that we talk today because you’ve come all this way to talk to me [Ms W], it’s a long way wasn’t it, to come down here and talk to us so can you think really hard and see if you can remember what he said to you? Can you remember?” [Y] made no reply. She was then directed to the picture of the boy and asked “So see our picture of the boy, did dad, did he say he wanted you to touch the front part of him or the back part of him?” [Y] did not reply.
94.[Y] was then asked “So that day that we’re talking about, was it daytime or night time [Y]?” And she replied “Day time.” She was asked whether it was in the morning or the afternoon and said that it was in the afternoon. When asked “How do you know it was the afternoon?” She said “I don’t know.” The interviewer said to [Y] “So it was you and dad, is that right?” And [Y] replied “[X] and [Ms G] were still asleep.” [Y] said “I got up before [Mr Rowe] ‘cause I tried, I was hiding but he woke up and he found me, then he brought me down, then I, and when it was, when it was in the middle of the day I started to play on the computer.”
95.[Y] was asked a series of questions to try and ascertain when the incident had occurred. She variously said that it had occurred before Christmas, before her birthday in November, in winter time and in spring time. The interviewer then said “And you said that you backed away from dad, is that right?” And [Y] made no reply. She was then asked “Why did you back away from dad, what made you want to move away from him.” And she replied “’Cause I didn’t, ‘cause I didn’t want to do it.” She was asked “Didn’t want to do it, yeah, what didn’t you want to do [Y]?” And she answered “Touching there”. She was then asked to use the interviewer’s pen and draw on the picture of the male figure where her father wanted him to touch and she replied “I don’t know where, I don’t remember”.
96.The interviewer then said to [Y] “So when you say you didn’t want to touch him there what do you mean? What if you use my pen and you draw on our picture of our little man here, if you use my pen, you draw on the picture where your dad wanted him to touch you?” And she replied “I don’t know where, I don’t remember.” [Y] was then asked by the interviewer whether she was asked to touch his hands and the transcript notes her reply as “Mmm.” [Y] was asked to draw on the picture and again asked where her father wanted her to touch him. And she replied “I don’t know where he wanted me to touch him.” The interviewer said “You know?” And she replied “I don’t”. The interviewer then said to [Y] “You don’t know. So what made you walk away from him if you didn’t, when he asked you to touch him?” And [Y] replied “I walked back…‘cause otherwise mum would have been cranky.”
97.The interview continued. At question 399 [Y] is asked “When you said you walked away from dad and you went up the stairs and you hid in the cupboard, how did you feel when you hid in the cupboard? Where you happy or sad or something else?” And she answered happy. The interviewer repeated the word happy and [Y] said “I wasn’t happy that he wanted me to touch him there.” And again [Y] was asked where she had been asked to touch him.
98.When [Y] was asked to draw on the picture where her father wanted her to touch him she said “His hands.” I note that was the suggestion that had been made to her earlier in the interview. She also said on the tip and his hair. The interviewer said “On the end of his finger” and [Y] said “and his nails were really sharp.” She also said “And he tricked me and then he made like stabbed me.”
99.The interviewer then asked “Did he want you to touch him anywhere else?” And [Y] replied “No. Only on his hands.” She then explained that her father was doing something with his hands. She said that he was carrying firewood to make a fire. The interview continued and at about 4.28 pm the interviewer said to [Y] “So this day when dad wanted you to touch him and ran up the stairs and you hid in the cupboard, you said that dad was carrying some firewood in his hands, did dad have clothes on, or no clothes or something else?” [Y] said “He had clothes on, he had a shirt, actually he had pants but no shirt on.” [Y] told the interviewer that [X] was present. She also said that [X] went and hid in the cupboard with her. When asked “So why did you both go and hide in the cupboard?” [Y] said “’Cause he wanted us both to touch him.”
100.She was asked “What did he say when he said he wanted you to touch him? And she replied “I don’t know.” The interviewer said “Can you think really hard for me, it is very important [Y].” And [Y] said “That’s all that he did.” The interviewer then said “[Ms W who was taking notes] wants me to ask you [Y], how did you know that dad wanted you to touch him?” And [Y] replied “I don’t know.” Pressed about how she knew that the father wanted her to touch him she said “I don’t remember”. When asked what her father had done to make her think he wanted her to touch him she said “I don’t know.” And when asked whether [X] was present she said she wasn’t sure.
101.Undeterred, the interviewer then said to [Y] “So can you show me where he wanted you to touch him with my pen?” And [Y] answered “On my hands.” She was asked “Did he want you to touch anywhere else on his body?” and she made no reply. The interviewer said “Whereabouts, here you go, you take my pen.” And [Y] said “On the hair”. When asked how she knew the father wanted her to touch him on the hair, she replied “I don’t know. And the face.” Asked whereabouts on his face she said “All around his face.” The interviewer said “All around his face so how did you know he wanted you to touch him all over his face? Did he say something or did he do something?” [Y] answered “He did something.” When asked what he did, [Y] said “I don’t know.”
102.[Y] then asked when the interview was going to end and was told “Soon, nearly finished, you’re doing a good job for me.” The interviewer then said to [Y] “I really need you to think really hard [Y]” and she agreed. And the interviewer said “Is there anywhere else on that picture that you can see where dad wanted you to touch him?” and [Y] replied “Belly button.” Asked “What made you think he wanted you to touch him on the belly button?” [Y] replied “I don’t know.” Asked “Did he do anything or say anything that made you think that he wanted you to touch him on the belly button?” [Y] made no reply.
103.The interviewer then asked “So was there anywhere else on his body that he wanted you to touch him?” And [Y] made no reply. I infer however, that she drew a circle on the diagram because the interviewer then said “so where did you draw that circle?” and [Y] said “here.” The interviewer said “What’s that part of his body?” And [Y] said “His private part.” When the interviewer said “So what made you think he wanted you to touch him on the private part?” [Y] made no reply. The interviewer said “Did he say something?” [Y] said “He did something”. Asked “what did he do?” [Y] said “I don’t know.”
104.[Y] went on to say that at the time she had her swimming costume on because they were going out in a canoe and she said, in answer to the question “has dad ever asked you to do that before?” that this had never happened before.
105.The interviewer said to [Y] “So someone told me the other day that you said that when you were talking to mum and you put your face down in mum’s lap and mum asked you, Why did you do that, and you said ‘Cause daddy asked me to do it. Has daddy ever asked you to do something like that?” And [Y] did not reply. The interviewer again asked “Has daddy ever asked you to do anything like that [Y]?” And again [Y] did not reply. The interviewer said “Is that a yes or a no?” and [Y] said “no”.
106.The interview continued. [Y] was asked “And was [X] with you when dad wanted you to touch him there or was he somewhere else?” And she replied “He was with me.” Asked “Did dad ask [X] to touch him anywhere” and [Y] said “Yes”. [Y] went on to say in response to a series of questions, 12 in all, that the father had asked [X] to touch him on his feet, his knees, his private parts, his bellybutton, his “boobies”, his ears, his eyes, his mouth, his hair, his face, his hands and his arms.
107.The interview continued. [Y] was asked whether or not she was ever asked to keep a secret and said she had not. The interviewer said “Even after this happened?” [Y] made no audible reply and the interviewer said “No. O.K. All right” and [Y] again asked how much longer the interview would last.
108.When asked “Have you only told me the truth today?” [Y] made no audible reply. The interviewer asked “So everything you’ve told me today really happened?” And again she made no audible reply. The interviewer said “What does that mean?” and [Y] said “Yes”. The interview concluded at 4.40 pm having commenced at 3.41 pm.
The primary judge then turned to the interview of X. Because of the statements made by Y that X was present, he was interviewed on 2 January 2014 by the same JIRT team. During the interview X denied that any events had occurred as described by Y. He specifically denied that his father had ever asked him to touch him or that Y had ever spoken about anything along those lines. X was then asked about Y’s actions with the Elmo doll. X said that he had never seen anyone do anything like that and that no one had asked him to do so (at [109]-[121]).
The primary judge noted that after these interviews the police concluded that there was insufficient evidence to charge the father with a criminal offence or to seek an apprehended domestic violence order for the protection of the children (at [122]).
The children thereafter spent unsupervised time with the father from 2 January 2014 until 6 January 2014, without objection by the mother (at [123]).
On 25 January 2014 the mother advised the father that there would be no further contact between him and the children (at [140]).
As a result, on 28 January 2014 the father filed a Contravention Application (at [141]).
In response, on 31 January 2014 the mother filed an Initiating Application seeking the discharge of the orders made on 21 May 2013 (at [141]). She also filed a Notice of Risk of Child Abuse or Risk of Family Violence.
On 24 February 2014 Y began counselling with a psychologist. Case workers from the Department had recommended that Y have counselling with a member of the Child and Family Health Team of the AA Local Health Service. The mother declined to use that counsellor and instead arranged for Y to see Ms C, a psychologist whose child was in the same class at school as Y. The father was not told that Y was to see Ms C (at [142]).
As a result of her interviews with Y, Ms C prepared a report dated 12 May 2014 addressed to “Whom it May Concern”. In that report she expressed the opinion that Y has “experienced trauma in relation to her father” and “has experienced some form of sexual assault” (at [280]). She suggested that neither child have unsupervised access with their father.
On 6 May 2014 after the parents were interviewed by a Family Consultant at the Family Court, a Children and Parents Issues Assessment was prepared. It recommended that the father spend no time with the children. That recommendation was apparently based on the Family Consultant’s mistaken understanding that the Department and JIRT had substantiated allegations that the father had sexually abused Y. The Family Consultant, Ms V, gave oral evidence in the hearing. She explained that when her misapprehension was corrected by an email from the ICL in late May 2014, in which she was informed that there had not been substantiation of the allegations of sexual abuse, she changed her recommendation and suggested that the father spend supervised time with the children (transcript 22 January 2015, pp.359-360).
On 30 July 2014 Dr B, a child and family psychiatrist, was appointed as a single expert to interview the parties, the children and other relevant people and to provide a report to the court. On the same day orders were made providing for the children to have supervised time with the father for two hours each fortnight.
On 29 September 2014 Dr B’s report was provided to the court (at [20]). Under the heading “Recommendations” he said:
After two family reports it has been unsuccessful in establishing an ongoing relationship with both parents. I believe the only alternative now is for the children to be placed with the father. I recommend that this happen immediately and without notice. The children should remain with the father and there should be not (sic) contact for two weeks by any means. Some telephone contact controlled and supervised could be introduced after a (sic) two weeks. After for a (sic) month without any contact with the mother some supervised contact could be introduced. I understand that this is a radical recommendation, however there is a very high risk that if the children remain in the care of the mother that she is so convincing in her belief system that sexual abuse counselling and allegations are likely to continue to cause damage to the children, and that the children will grow up to believe that they have been abused and that their father is a paedophile and that they’ve been irreparably harmed. This is likely to damage their self-esteem and also predispose them to personality disturbance and also anxiety and depression and relationship problems as they progress. I believe that now the only chance for a good outcome where the children can maintain a good relationship with both parents is if they are placed with the father.
On 8 October 2014 the court released the report to the ICL, but not to the parties or the Department who by then had intervened (at [21]).
On 9 October 2014, on the application of the ICL, based on Dr B’s recommendations, and without notice to either of the parties, Cleary J made interim orders that the children immediately move to live with the father who was to have sole parental responsibility for the children. The orders provided for the children to be collected from school by the father that day. Orders were made for the children to have contact with the mother in the terms recommended by Dr B (at [22]). At that time, the final hearing of the matter was fixed for 19 January 2015.
The mother appealed against those orders.
On 16 December 2014 the Full Court found that there was merit to the mother’s appeal in which she had argued that the making of ex parte orders denied her procedural fairness. However, the Court determined that given the proximity of the final hearing, which would consider all of the issues, it was not in the children’s interests that they be subject to a further change in their living arrangements for such a short period of time. (See Helbig & Rowe and Ors (No. 2) (2014) FLC 93-625 at 79,735.)
After setting out the matters to which we have just referred, the primary judge recorded the further evidence relied on by the mother as evidence of a risk of sexual abuse (at [130]-[150]).
The mother said that on 12 January 2014 she was visited by her friend Ms M and Ms M’s children. Ms M told the mother that her children had complained to her that Y had “said she would stick her fingers in my bum. She stuck her fingers in my bum she tried to pull my pants down but I didn’t let her. Then she grabbed my dick with her other hand” (at [131]). Ms M had not seen this behaviour or heard Y’s reported comments.
The mother deposed that on 14 January 2014 she said to Y “I’m proud you said no to [Mr Rowe] asking you to touch him. Detective [H] [who conducted both of the JIRT interviews] wants to help. Can you remember any more?” Y replied “It was dark mummy”. The mother then asked “did someone say something nasty would happen if you told?” The mother said that Y nodded (at [136]).
The primary judge then referred to the evidence of Ms C and to her report referred to earlier. Her case notes, which were also before the court, record that on 11 April 2014, in the sixth counselling session, Y told her that her father had asked her to touch him on his private parts. Y is said to have stated that this occurred “more than one time. Lots of times” (at [144]).
In her affidavit Ms C deposed:
[Y] continued to make reference to the “yucky thing” or the “rude thing” that “[Mr Rowe]” had done in subsequent sessions, but was not more specific or detailed in her descriptions.
The primary judge noted (at [146]-[147]) that none of Ms C’s notes of other sessions contained a reference to the words “yucky thing”, the “rude thing” or “[Mr Rowe]”.
The mother said that on 3 June 2014, Y made further disclosures. The mother reported this conversation to the Department and, as a result, the Department interviewed Y again. The primary judge observed:
156.The DFCS file records a notification, presumably by the mother, on 3 June 2014. The file records:
…on Friday night [Y] initiated conversation and she started saying how she and [X] ([Y’s] brother) could go to [the father’s] and they could play two player Minecraft. [Y] then said “It is OK, if [the father] asks me to do something, I will just tell him no”. The reporter then spoke to [Y] and explained how they needed to make sure that [Y] was safe at all times. [X] said that he didn’t want to go to [the father’s] and said he wanted to stay with his mother.
On the same night [Y] also made the following disclosure, “One day when [X] was playing on the computer, [the father] took me to the bedroom and he pulled his pants down and his undies too and he made me look at him. At that point I did this ([Y] looked up at the ceiling and was looking behind her head) and he kept turning my head and making me look. I tried to get away but he caught me by the ankle and made me look again.” [Y] then went ‘dazey’ for a while. The reporter asked [Y], “Did he make you touch him?” and [Y] replied, “Yes”.
157.On 3 June 2014 the mother sent an email to DFCS in which she said, inter alia:
Last Friday [Y] volunteered further information to me. [Y] said while [X] was playing on the computer and her father’s current girlfriend was “out shopping”, that her father had made her touch him and kept turning her head to face him with his pants down. She said he grabbed her by the ankles when she tried to get away. I reported this to FACs.
The mother was anxious to ensure that JIRT received both that information and Ms [C’s] notification to DFCS on 6 June 2014.
The Department interview was conducted on 20 June 2014 by Ms D, a Department case worker.
Y told Ms D: “We both see [Mr Rowe] – if only one of us did we wouldn’t be safe.” When asked why, Y replied “He’s not nice. He does rude things he’s not supposed to. He done it to me and [X]” (at [162]). When asked about the rude things Y said “I forgot already” (at [164]). When pressed as to where it happened Y replied “[a]t his house. He’s probably not in jail. It’s a bit too rude” (at [166]).
Ms D then said “[y]ou’re allowed to say. You won’t be in trouble”. The conversation continued (at [167]):
And [Y] said “He um, pulls his pants and undies down and tried to show me.” Ms [D] said “Where?” [Y] said “In my bedroom.” Ms [D] said “Then what happened?” And [Y] said “Can I use your bedroom and you, so he did that rude thing – he pulled down undies. He tried to show me.”
When asked what happened then, Y said (at [167]):
I was looking at his face and I said I’m not doing it. He said I have to or I’ll tell the police you’re doing the wrong thing in telling a lie. I turned my head and he turned it back then I turned it the other way and he turned it back.
When Ms D asked what then happened, Y said “[h]e called the police” (at [167]).
Later Y said that she tried to run away but “he got my ankle”. She said that she almost fell off the bunk bed but her father grabbed her and said “listen to me or you will get a big smack”. Y then said, “he pulled his pants down”. Later when asked whether her father made her do anything, Y said:
175.…Two things. He pulled pants and undies down and tried to get in the shower and he brung me with him. Had to go to bed after I finished colouring in. Went back home the next day.
Y told Ms D that she had not told her mother, Ms C or X about these events.
When Ms D asked her whether her father had ever asked her to keep a secret, Y said “[h]e has with [X]. Gave him wine and he has diabetes. Grandpa saw” (at [181]).
On 23 June 2014 Ms D completed a document headed “SDM Safety Assessment Decision Report”. The primary judge referred to the report at [185]. It included the following:
…[The mother] presented as being certain that abuse had occurred and it was a matter of time before the child felt comfortable enought (sic) to tell everything and [the mother] has engaged a psychologist to counsel [Y] for sexual abuse. [The mother] feels she knows the ‘truth’ but others are not listening or cannot see what is in front of them. As a result of [the mother’s] behaviour during the past year, [Y] has come to understand that she is ‘unsafe’ in [the father’s] care and he does ‘rude things’, though she cannot give details about what “rude things” happened. It appears that during interview [Y] may not be recounting events, but could likely be repeating information given to her in leading questions. When asked if she felt worried or scared of [the father] or [the father] did anything rude at another time [Y’s] clear response was ‘no’. [Y] was asked where she would like to live and she said with Dad.
The maternal grandfather deposed that on 9 July 2014, in response to a question asking why she did not want to go to her father’s place, Y said, “You know. He made me look in his private parts” (at [186]).
The primary judge’s conclusions
The primary judge summarised the mother’s case thus:
208.Although her case was not clearly articulated, I infer from the
cross-examination on her behalf and from the submissions that her case had three elements:
•Firstly, the father had problematic behaviours in relation to his masturbation and viewing pornography.
•Secondly, the father was a liar and therefore his denials that he had behaved inappropriately towards the children would not be accepted.
•Thirdly, that the children had, in the process of the interviews with JIRT, with the mother and with Ms [D], made disclosures that should be accepted as establishing unacceptable risk to them in the care of the father.
209. As to the first proposition, in her trial affidavit the mother said:
The problem is not that [the father] masturbates and looks at porn but that he lacks boundaries with the children.
And:
I am of the belief that there is no prospect of [the father] being able to control his sexual urges in front of the children.
210.The father freely admitted masturbating regularly and that he watched adult pornography online. He admitted that he had engaged in both actions during the marriage and that he continued to do so.
211.The mother’s case appeared to be that because the father masturbated and watched pornography, he was likely to pose a risk to the children. It was not the mother’s case that the pornography involved images of children.
212.That proposition was not put to Dr [B] who said in his report that the mother was convinced that the father had sexual deviant problems because he openly admitted to masturbating and watching pornography. Dr [B] reported:
There was also discussion about pornography and masturbation which the mother seemed to consider as being deviant. I believe that the mother was sexually naïve and did not have a clear concept of normal human masculine sexuality in that masturbation and viewing pornography as activities themselves did not equate to a sexual deviation or danger.
213.A similar view had been expressed by Mr [A] in his report dated 23 August 2010 where he said:
It should be noted that, the pornography use, while a source of tension in the marriage, and regarded as morally wrong from his and his wife’s perspective as evangelical Christians, was not atypical with reference to wider society. There was no evidence that he was accessing any illegal material or material which was outside of popular use.
214.There is no evidence before me that there is any causal link between masturbation, watching pornography and child sexual abuse.
As to the mother’s allegations of lying by the father, the primary judge said at [223]-[225]:
223.Caution must be taken in distinguishing whether a person has deliberately told a lie or whether that person had given an inaccurate version of an event, based on an inaccurate recollection.
224.Even if a witness has been found to have deliberately lied, that fact does not establish the contrary proposition.
225.I do not accept the proposition that, because the father told Mr [A] in counselling, in the circumstances described, that he had lied and felt he was a compulsive liar, it necessarily follows that he has lied under oath when he denies having behaved inappropriately towards the children.
The primary judge noted (at [231]-[233]) Dr B’s evidence as to his expertise as a psychiatrist and mental health expert, and that he said he had expertise in understanding child development and the interaction between children and adults in the context of litigation. He also regarded himself as having considerable experience in understanding sexual abuse and the effects of sexual abuse on children. The primary judge said (at [236]-[237]):
236.Dr [B] said that most of his experience was in relation to dealing with and treating children who have been sexually abused and have undergone treatment. He has dealt with the psychological impact of sexual abuse in his clinical work. Dr [B] has also had experience in looking at sexual abuse allegations in the context of family law proceedings.
237.I accept that Dr [B’s] expertise has been demonstrated for the purpose of these proceedings.
The primary judge noted (at [240]) Dr B’s opinion that the mother had embarked on a process of interrogation of the children, misunderstanding how children report facts and beliefs to parents. As to the “porcupine game” and the “Elmo doll incident” (both incidents are described above at [23]), Dr B said that sexual play is not uncommon in children and that these incidents were not necessarily evidence of sexual abuse as the mother had concluded (at [248]-[249]). Dr B was further of the view that even if the Elmo doll incident did indicate sexualised play, that to assume the children were sexually abused by the father as a consequence represented a “quantum leap” (at [256]). Dr B was also critical of the mother’s questioning of the children and did not accept her interpretation of events.
The primary judge observed that Dr B was also very critical of the nature of the questions asked in the JIRT interview of Y. Her Honour said:
268.Dr [B] said that the manner in which [Y] was interviewed was very suggestive. He went on to say that the questioning was repeated and determined questioning that eventually got an answer from [Y] so that the interview could then come to a close.
The primary judge also noted the following:
279.Dr [B] did not believe that on balance sexual abuse is likely to have occurred.
After referring to Dr B’s evidence the primary judge referred to the evidence of Ms C and found:
292.In so far as Ms [C’s] opinion does not coincide with that of Dr [B], I prefer the evidence of Dr [B].
293.He is a child and family psychiatrist with over 25 years’ experience. She is a psychologist with 12 years’ experience.
294.I do not accept that the association of Ms [C] with the mother; through the children’s schooling, the fact that her daughter was in the same class as [Y], the fact that [Y] referred to Ms [C] as her mother’s friend, and the advocacy on behalf of [Y] and the mother to DFCS, demonstrate that Ms [C] approached this matter objectively.
295.By contrast Dr [B] was an independent expert appointed by the Court.
296.Dr [B] had access to all relevant information and clearly Ms [C] did not.
297.In those circumstances I prefer Dr [B’s] evidence to that of Ms [C].
Thus her Honour concluded that “there is no unacceptable risk to the children in the care of the father” (at [301]).
The primary judge then turned to the considerations under s 60CC of the Family Law Act 1975 (Cth) (“the Act”) and concluded that the children’s best interests required that they live with the father and spend time with the mother in the regime to which we have already referred.
Grounds of appeal
Before we turn to a discussion of the grounds we wish to make an observation.
As we have said, the mother’s Summary of Argument comprised some 82 pages which incorporated 546 endnotes. The mother selectively quoted sentences, or parts of sentences, divorced from the context in which they appeared in the evidence or, on occasions, omitted crucial words that appeared in the evidence. Evidence was not accurately represented and thus it was necessary to treat the mother’s Summary of Argument with considerable caution.
The mother’s appeal needs to be seen in the context of the manner in which the trial was run by counsel who appeared on her behalf. As will appear frequently throughout the course of these reasons, forensic decisions were made by the mother’s counsel that now cannot be ignored. In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ said at 7-8:
…To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v. Gundowda Pty. Ltd.; Bloemen v. The Commonwealth. In O’Brien v. Komesaroff, Mason J., in a judgment in which the other members of the Court concurred, said:
“In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v. Kavanagh ; Suttor v. Gundowda Pty. Ltd.; Green v. Sommerville). However, this is not such a case. The facts are not admitted nor are they beyond controversy. The consequence is that the appellants’ case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.”
In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal. Finally, in a recent decision of six justices of this Court (University of Wollongong v. Metwally [No.2]) the Court said:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”
The Court of Appeal recognized the great importance, in the public interest, of these principles.…
(Footnotes omitted)
Throughout her submissions, the mother attempted to raise issues that had not been raised before the primary judge. In this respect it needs to be understood that an appeal is not the occasion for the revision and reformation of the case presented below. In particular, the mother made many criticisms of the evidence of Dr B which were not taken up with Dr B in his cross-examination or referred to in submissions before the primary judge. This, of course, makes it difficult, if not impossible, for these matters to be considered on appeal.
As we have indicated, the mother appeared for herself and framed the grounds of appeal, which we will set out in full as they appear in the Amended Notice of Appeal (with emphasis removed and endnotes omitted).
Ground 1
The learned trial Judge erred when she failed to consider the evidence and impact of family violence as defined by the Family Law Act (1975) [“the FLA”] s.4AB, and erred by excluding relevant evidence about the father’s continuing pattern of coercive, controlling and abusive behaviours including those resulting in Apprehended Violence Orders.This omission is contrary to: the FLA s42, s 43 (1) (c) (ca), s60B, s.60CC 2(b), 2(A), 60CC 3 (j) & (k), 60 CG, s.61DA (2); 69 ZV; the Evidence Act (1995) s55, 56 (i). s140; Family Court Guidelines Best Practice in Domestic Violence + research showing strong links between domestic and child abuse.
It is correct to say that the primary judge did not consider or refer to the evidence of and impact of family violence on the outcome of the proceedings. No doubt this was because no submissions were made to the primary judge that this was a relevant matter which required consideration.
That, however, is not necessarily the end of the matter. Section 60CC(1) and (2) provide:
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(Emphasis added)
The primary judge was therefore obliged to consider the need to protect the children from the harm set out in s 60CC(2)(b) in the event that the evidence disclosed matters relevant to such a consideration.
The evidence of family violence
The mother’s Summary of Argument referred to her affidavits and that of her father. However, most of the evidence of what was said to constitute family violence in those affidavits was rejected by the primary judge. The mother’s evidence also referred in passing to an apprehended domestic violence order against the father, but did not identify the terms of the order or the basis on which it was made.
The primary judge rejected the mother’s evidence that the mother said established family violence, insofar as her evidence referred to events that occurred before May 2013. It was on 14 May 2013 that the parties entered into the consent orders set out at [21] above.
The primary judge ruled that events that occurred prior to the making of the consent orders could not inform the decision that her Honour was required to make (transcript 19 January 2015, pp.25-26). The primary judge was correct in finding that the evidence sought to be adduced by the mother was, in the context of the issues raised, of such limited relevance that it should not be admitted.
The mother’s Summary of Argument and oral submissions primarily directed us to two further sources of information which she said established family violence. The first consisted of questions and answers from a response to a document described as a ‘Notice to Admit Facts’. The second consisted of Dr B’s recording of assertions made to him by the mother. Each has some difficulties associated with it.
Notice to Admit Facts
The primary judge rejected the tender of the father’s response to the Notice to Admit Facts saying:
55.The mother sought to rely on two Notices to Admit Facts. The first was prepared for the proceedings in the FCC and answered by the father. It was dated 30 November 2012. The father’s answers, confined to “Yes” (Y) or “No” (N), were added after that date. There were 299 questions. Many were in a form that would not be permitted to be put orally. The mother was not permitted to tender the document but Counsel for the mother cross-examined the father on admissions or denials in the document which were asserted to be inconsistent with his oral evidence.
56.The mother also sought to rely upon a further Notice to Admit Facts which had been forwarded to the father in December 2013. He had not responded to that Notice. I declined to order that the father respond since his cross-examination was about to commence.
Thereafter, there was some limited cross-examination of the father in accordance with the primary judge’s ruling.
After this ruling, an affidavit, which, amongst other matters, annexed the answers to the first Notice to Admit Facts, was read without objection. However, as the answers to the Notice were not the subject of cross‑examination, other than in the limited sense just described, or the subject of submissions, there is considerable doubt as to whether the document was in evidence. The conduct of the proceedings was consistent with the primary judge’s earlier rejection of it.
The mother submitted that the following could be drawn from the father’s answers:
·She (the mother) felt increasingly unsafe and concerned about inappropriate sexualised behaviour of the children;
·The father told the court in a Contravention Application brought by him “the mother must be punished”;
·The father was rude and abusive to the maternal grandparents, including swearing at them and, on one occasion, skidding the wheels on a gravel driveway in the presence of the grandparents;
·The father rubbed his penis in the presence of the mother and, it seems also the children (when clothed);
·The children told the mother that the father had exhibited various inappropriate sexual acts in front of the children;
·The father locked the boarder out of the house when it had been rented to that person;
·In 2008 and 2009 the father was masturbating whilst looking after X (it was not suggested that this occurred in the presence of X or that X was in anyway aware of this);
·The father attended a 12 Step Sex and Love Addicts Anonymous Program in late 2008;
·The father spoke to counsellors about a pornography and masturbation problem;
·The father completed an online Sex Addicts Test;
·The father attended sex parlours and thought about sex “all the time”;
·The father gave alcohol to X (on at least one occasion this was in the presence of the paternal grandfather);
·The father said he was a compulsive liar; and
·In 2010 X demonstrated to the mother a masturbation gesture he said that he had been shown by the father.
Although some of these points reflect questions to which the father answered “yes”, not all do so. For example, the first is clearly a submission. Had it been a question, any answer given by the father would have no probative value because such a question required him to speculate about the mother’s feelings. Similarly, unless it was suggested he was present at the time, he would have no source of knowledge to give a probative answer to the fifth and the last points.
Plainly, none of the other points is evidence of family violence.
Dr B’s notes
The mother submitted that the following conclusions could be drawn from the statements she made to Dr B as recorded by him:
·On an occasion in 2007 and 2008 the mother found the father in the bath with X while the father had an erect penis (X was then approximately two and a half years old);
·The father did not earn an income;
·The father had a pornography addiction;
·The father verbally abused her and was physically intimidating;
·The father made frequent and intense requests for sex;
·The father threatened to kill a dog;
·After separation, on some days the father contacted the mother 10-12 times a day;
·The father salaciously ate a strawberry in front of Y telling her that she would “have to wait for those kinds of pleasures”;
·The father told the mother that it was her fault that he had to visit massage parlours; and
·The father used abusive language in a telephone call.
As can be seen, these statements are broad in nature and replete with value judgments and conclusions. Thus they lack probative value.
Only three of the matters raised by the mother in this group could possibly be regarded as being evidence of family violence – the threat to kill the dog, the verbal abuse and physical intimidation and the abusive phone call. However, stated so broadly, without a description of what was said and done and the context in which each incident was said to have occurred, no finding of family violence could be made.
It is plain that even having regard to the very wide definition of family violence contained within s 4AB(1) of the Act, and leaving aside for the moment the allegations of sexual misconduct, the matters relied upon by the mother did not amount to evidence of family violence and did not require a consideration of s 60CC(2) and the various other provisions on which the mother relied. None was evidence of violent, threatening or other behaviour that coerced or controlled the mother or the children or caused them to become fearful. In those circumstances and where there was no submission to her Honour that she should find that there had been family violence or that such a finding was relevant to the case, her Honour did not err.
This ground does not succeed.
The following grounds may be considered together as they deal with the report of Dr B.
Ground 3
The Learned Trail Judge erred because she treated the Chapter 15 Report writer’s evidence as fact (contrary to s.76 of the Evidence Act [“the Act”]) whereas his opinion does not satisfy the requirements of s.79 (1) of the Act thus rendering his opinion evidence irrelevant and inadmissible in accordance with s.56(2) of the Act.
And In the alternative the learned Trial Judge erred when she did not exercise her discretion (s.135 of the Act) to exclude the Chapter 15 opinion evidence whose probative value did not substantially outweigh the danger that it might unfairly be prejudicial to the Appellant or be misleading or confusing or result in a finding which is highly prejudicial to the subject matter.Case Authority:Sheldon & Weir (No 3) [2010] FamCA 1138, Honeysett v The Queen [2014] HCA 29; Dasreef Pty Ltd v Hawchar [201 1] HCA 21; Clark v Ryan (1960) I 03 CLR 486; HG v Queen (1999) 197 CLR 414;Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; The Queen v WR (NO 3)[2010] ACTSC 89 (31August 2010)
Ground 4
The learned trial Judge erred or failed in that she admitted and relied almost exclusively upon a single expert’s opinion to determine the matter when Her Honour had evidence to show that the expert opinion is flawed in that it contains misrepresentations of evidence, unfounded assumptions and assertions that were internally and externally inconsistent, not premised on conventional reasoning, or the proper application of theory or the application of proper theories that were not based on tests, directly observable data, findings of facts or facts which were sufficiently similar to arrive at his conclusions such that it rendered his expert opinion evidence irrelevant and inadmissible. s.69 ZT (3) FLA (1975) (CTH), s79 s.56, s.135 s.140 Evidence Act (1995) and 15.63 of FLA Rules (2004), Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 70; 110 ALR 449; Fox v Percy; Makita & Sproule; Dasreef Pty Ltd v Hawchar [2011] HCA 21, Ramsay v Watson (1961) 108 CLR 642
Ground 5
The Judge did not fulfil her judicial obligation to explain how she resolved the gross inconsistencies between Dr [B] opinions and the facts in evidence.
Ground 10
The learned trial judge erred or failed in making the assumption that the Senior Psychologist [Ms C] did not act impartially and where she did not provide reasons that set out the facts in evidence and line of reasoning that support this assumption.
Ground 15
The learned Trial Judge erred or failed in relying on the Chapter 15 Family Report where the Writer did not explain the theory, research or experience supporting how the directly observed sexualised behaviours led to any alleged “illusion of validity” on the mother’s part or how this was relevant to assessing the risk of sexual abuse. s.55, s56 Evidence Act 1995, Dasreef Pty Ltd v Hawchar [2011] HCA 21
Ground 16
Her Honour erred or failed in not relying on or placing sufficient weight on the relevant evidence from witnesses who have specialised knowledge in assessing child sexual abuse disclosures and the impacts of child sexual abuse. s. 60cc FLA (1975;) s.55, s.56, s.79 the Evidence Act (1995)
By these grounds, the mother challenged the admission into evidence of the report of the single expert psychiatrist, Dr B. The mother submitted that the primary judge erred in accepting his evidence and also in giving that evidence excessive weight. The mother further argued that notwithstanding its admission, the evidence of Dr B should not have been accepted. This is because, she submitted, he misrepresented both his specialisation and the facts; did not apply proper theory; made a number of factual errors; his report was internally inconsistent and inconsistent with other facts; and because Dr B misled the court by using a “rich variety of false reasoning” (Mother’s Summary of Argument at [4.6]).
Admissibility of the report
The mother submitted that the report of Dr B was inadmissible because the requirements of s 79(1) of the Evidence Act 1995 (Cth) (“the Evidence Act”) were not met. In the alternative, the mother submitted that the primary judge erred in not exercising her discretion to exclude the report under s 135 of the Evidence Act.
The report of Dr B was admitted into evidence without objection from the mother’s counsel. No application was made for the report to be excluded under s 135 of the Evidence Act. Although such an objection or application could have been made at any time during the course of the trial, particularly after the oral evidence of Dr B had been given, none was.
Dr B was appointed as the single expert in July 2014. On 11 July 2014, Cleary J conducted an interim hearing to determine the parameters of the instructions to be issued to the single expert and the documents with which he was to be provided. On 30 July 2014 Cleary J made interim parenting orders as well as procedural orders and orders regarding Dr B.
The mother appealed against the procedural orders and the interim parenting orders but not against the orders appointing Dr B. Both appeals were dismissed (Helbig & Rowe [2014] FamCAFC 179; Helbig & Rowe and Ors (No. 2) (2014) FLC 93-625).
It is now too late to take this point. Had the objection been taken or had an application been made, the parties could have questioned Dr B on the relevant issues or it would have been open to her Honour to take further evidence on the admissibility of Dr B’s opinion. This is the very issue to which Metwally v University of Wollongong (1985) 60 ALR 68 speaks. The matter not having been raised during the hearing at first instance, it cannot now be the basis of a ground of appeal.
This is sufficient to dispose of the mother’s challenges to the admission of the expert’s report.
The expertise of Dr B
The basis of much of the mother’s submissions about Dr B’s lack of relevant expertise is founded on evidence which she sought, unsuccessfully, to adduce on the appeal and which we will consider later in these reasons.
Although not directly raised by the above grounds of appeal, a significant aspect of the mother’s challenge to the admission of the evidence was that Dr B’s opinions were not based on specialised knowledge of “child sexual abuse assessment”. No evidence was adduced before the primary judge to the effect that there was, in fact, a recognised area of expertise in “child sexual abuse assessment”. It was not suggested to Dr B that there was such an area of expertise or that, if there was, that he did not have that expertise. This aspect of the challenge therefore fails.
Errors in the report
Counsel for the mother cross-examined Dr B about three purported factual errors in his report, each of which he accepted. The asserted errors were:
·The mother had given evidence that when Y was in the bath she was tickling her vagina with a brush and said that the father had described this as “the porcupine game”. Dr B had recorded the child playing “with a porcupine toy near her vagina”;
·During the JIRT interview Y drew a circle on the diagram of the male. Dr B had incorrectly recorded the police officer drawing the circle; and
·Finally, Dr B had incorrectly recorded question 314 on the JIRT interview as “what do you call the doodle?” when in fact it was “[d]oodle. What do boys do with their doodle?”
In addition, Dr B was cross-examined about an error in one of the citations of the references listed as an appendix to his report, which he accepted.
Despite Dr B’s concession about the errors, counsel for the mother did not suggest to Dr B that these errors undermined his opinion or the basis of it in any way. This suggestion was, however, put to Dr B by counsel for the Department:
[MR ANDERSON:] And it was suggested to you that those errors, somehow, were negligent of you, I think, but do you accept those errors made any difference to the errors [sic – opinions] that you expressed?‑‑‑No.
Do you express the same opinions even though those errors are acknowledged by you?‑‑‑I do.
(Transcript 23 January 2015, p.455)
That counsel for the mother did not cross-examine Dr B on these errors is all the more surprising given that the primary judge had earlier said when ruling on an objection:
HER HONOUR: On the basis that it’s my understanding of the mother’s case that she disputes the accuracy of Dr [B’s] recording, and these matters obviously will have to be put to Dr [B], I will allow it.
(Transcript 19 January 2015, p.25)
In his report Dr B quoted a number of questions and answers from the JIRT interview with Y. The mother asserted that on many occasions Dr B inaccurately transcribed the questions and answers and omitted important words. Apart from the errors which we have already discussed, none of the remaining errors were put to Dr B for his comment and, as we shall explain shortly, the asserted errors are of no consequence.
The mother submitted that these errors underpinned Dr B’s opinion that the JIRT interview was flawed and contained suggestive questioning.
The asserted errors ranged widely and included:
·errors in Dr B’s summary or evaluation of the interview;
·misquoting (“was it here” instead of “was it his hair”);
·errors in understanding the interview (at one stage in oral evidence Dr B referred to a question as “Did he touch you there?”, there being no suggestion that Y had been touched);
·changing evidence (recording the interviewer as circling the penis on the male body chart, not Y);
·omitting “critical non-verbal representations” by the child (we note that the mother did not identify the representations said to have been ignored);
·omitting key words – for example omitting “so I didn’t touch him”, and in referring to questions about touching a private part omitting the words “that you were just showing me” and “private”; and
·mischaracterising the interviewer’s questions as suggestive when, in fact, they were questions designed to clarify previous answers.
It is to be observed that the primary judge had the benefit of the full transcript of the JIRT interview.
As can be seen, some of the errors asserted by the mother are not clear errors. Rather, the mother disagrees with a summary or characterisation made by Dr B. Such asserted errors may of course be challenged by the mother, but that challenge must be undertaken by putting questions to Dr B and making submissions to the primary judge.
It is not apparent to us that the additional errors the mother asserted, if they be such, were of such materiality to the evidence, or to Dr B’s opinion, that they would change Dr B’s opinion or require the primary judge to reject his evidence.
More importantly, the suggested errors and any effect of them on his opinion were not raised with Dr B. It is therefore impermissible to raise these points on appeal.
For these two reasons this aspect of the challenge cannot succeed.
Misrepresentations of the evidence
The mother submitted there were four instances where Dr B either misrepresented the evidence or made unfounded assertions.
The first was that he described Y’s therapy as therapy for “sexual abuse”, whereas in fact the mother asserted it was therapy for “sexualised behaviour”. He was cross-examined on this point by the mother’s counsel:
[MS MERKIN:] Would you indicate where it is that you found evidence that the child is actually being treated for sexual assault therapy?‑‑‑Well, that was my interpretation. That the mother had initiated therapy after the disclosure interviews and she believed that the sexual abuse had been substantiated and that she then initiated contact with [Ms C] on that basis.
So in your opinion – or I should say – I retract that. I withdraw that question. Dr [B], you’re saying that you are presuming that the mother initiated the sexual assault therapy? The therapy?‑‑‑That the mother was supporting therapy with [Ms C] and that the – her – that the understanding from what [Ms C] had written was that there had been sexual abuse of the child.
(Transcript 23 January 2015, p.429)
There was thus no misrepresentation, but rather a difference of semantics.
The second issue was that Dr B had opined “[h]owever the two children do seem to be very aware that there are major problems between the parents” (Report of Dr B, 29 September 2014, p.38).
The mother says this statement is wrong and that the children were not aware of problems between the parents. In support of this proposition the mother relies on the fact that X told Dr B, in relation to his father moving to Western Australia, “Mum said we are happy if he is happy”. The other evidence sought to be relied upon by the mother was rejected by the primary judge and therefore is not available to support her submissions. Given the allegations in the proceedings and Dr B’s knowledge of the children’s beliefs, his opinion is not surprising and is not undermined by the evidence referred to by the mother.
The mother asserted that Dr B made an unfounded assumption that she would not support the children’s relationship with the father when there was ample evidence to suggest that she had. That is not an assumption. It is an expression of opinion by Dr B. He set out his reasons for holding that opinion in his report, which her Honour accepted.
Finally, the mother submitted “Dr [B] made unfounded assumptions about reports to Child Safety then criticised [me] re reports I did not make”. We are unable to identify precisely what that submission means.
Inconsistencies in the report
The mother then asserted that there were a number of matters recorded by Dr B that were internally inconsistent.
The mother’s Summary of Argument describes the first inconsistency as:
In relation to the mother “I formed the view that she was a capable caring parent. I don’t believe she was an unacceptable risk to the children” yet … [r]ecommends to immediately remove the children from the mother “for the best interests of the children … there would need to be an immediate change of residence”.
(Mother’s Summary of Argument at [4.25.1]) (Emphasis removed; endnotes omitted)
The mother’s submissions on appeal were the same submissions that were made to the primary judge, coupled with an assertion that the primary judge, in rejecting those submissions, condoned the conduct of the ICL.
The primary judge carefully considered all of the matters raised by the mother. We consider that her Honour’s findings as to the matters we have just set out were findings that were open to be made on the material before the Court. These findings properly lead to her Honour’s conclusion.
This ground does not succeed.
It follows therefore that the appeal should be dismissed.
Application to adduce further evidence
By an Application in an Appeal filed on 27 August 2015, the mother sought leave to adduce further evidence on the appeal. The application was supported by an affidavit sworn on 26 August 2015 in which the mother set out the evidence which she would adduce if leave is given.
The proposed evidence falls into three broad categories:
·A transcript of a [named] media program conducted by [a reporter]. The program involved interviews with a number of people and related to proceedings in family courts where allegations of child sexual abuse are raised. One of the people interviewed for the program was Dr B.
·Evidence of the mother concerning events which have occurred since the orders were made and which she asserted demonstrated that the primary judge’s findings that the father would facilitate the children’s relationship with her were unfounded.
·Evidence of the mother concerning the effect on the children of the orders of the primary judge and of Cleary J made on 9 October 2014, when she ordered the children live with the father.
At the commencement of the appeal, after hearing the mother’s submissions on the application, we indicated that the application would be dismissed and that we would deliver reasons for that determination later. These are the reasons.
The law
The circumstances in which the Full Court can receive further evidence on an appeal are considerably constrained. In CDJ v VAJ (1998) 197 CLR 172 (“CDJ”) McHugh, Gummow and Callinan JJ said at 202-203:
111.…it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires 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. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
.…
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
115.Other limitations on the exercise of the power arise from the fact that the discretion which s 93A(2) confers must be exercised judicially. In most cases concerned with parenting orders that means that it should only be exercised in favour of the 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.
The High Court, at [117], gave separate attention to the receipt of further evidence in appeals against parenting orders and said that the discretion to admit further evidence in parenting cases needs to be exercised with much care. The High Court then went on to say, at [118]:
118.The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
It is thus against this legal framework that we consider the mother’s application to adduce further evidence.
The transcript of the media program
As is obvious, a principal plank of the mother’s appeal was her contention that the report of Dr B was significantly flawed and ought to have been given no weight by the primary judge.
During the hearing before the primary judge Dr B was cross‑examined by the mother’s counsel at some length. Principally and understandably in the context of this matter, time was taken in questioning Dr B on the JIRT interviews and the reliability of Y’s responses to that questioning. Further questions were asked of Dr B during cross-examination in which counsel put various articles to him and sought his opinion on the research to which they referred. He was further questioned about the reason for his inclusion of various references to professional papers and articles as addenda to his report. The purpose of the examination was to demonstrate that there were articles of more recent authorship than those to which Dr B referred and that he was thus not up to date in his understanding of the issues relevant to the case.
Notwithstanding the cross-examination, her Honour accepted Dr B’s opinion and considered it with the other evidence in coming to her conclusion about the issues in the case.
In the affidavit in support of the application to adduce evidence, filed on 27 August 2015, the mother said:
2.In [a recent media program] … [The reporter] interviewed various experts about family courts including family report writer. Dr [B] revealed that he is not specifically trained in child sexual abuse. He revealed his belief that 90% of child sexual abuse cases in family court are false. He further exposed his belief that Richard Gardner is ‘very relevant’. Richard Gardner invented Parental Alienation Syndrome … and was known for his belief that “Sex abuse is not necessarily traumatic, the determinant as to whether sexual molestation will be traumatic to the child, is the social attitude toward these encounters”.
(Original emphasis)
The mother said that the purpose of introducing the transcript as evidence in the appeal was that it was in support of appeal Grounds 3 and 4, which challenge her Honour’s reception of Dr B’s report and her reliance on it. The mother contended “[i]t provides the court with additional information about his qualifications in particular”.
Stripped of the editorial comment in the affidavit, the mother’s asserted basis for the admission of the transcript of the interview boils down to three points:
·Dr B said he was not specifically trained in child sexual abuse;
·Dr B believes that 90% of child sexual abuse cases in the Family Court are false; and
·Dr B’s references to Richard Gardener’s work suggests that he thinks Gardner’s work is credible.
Thus, these are the bases on which the mother seeks to adduce evidence of the contents of the media program.
It must be observed at the outset that the transcript of the media program represents a conversation between the reporter and a number of people. It is impossible to know whether the program reflects the whole of what was said in the various interviews or whether it was edited by the reporter. To be clear, there is no way of knowing what was said but was not included in the report. Indeed it seems reasonably clear from reading the transcript that that what was said in the program was a précis of the reporter’s interviews and excerpts from the recorded interviews.
The veracity of complaints of child sexual abuse
One point of interest to the reporter, so far as Dr B and other experts were concerned, was the extent to which sexual abuse allegations made in the context of parenting cases were false. It was on this point that Dr B’s opinion was sought. We set out what Dr B said to illustrate why, in our opinion, the evidence could not be adduced in the appeal.
In what appears to be introductory remarks in which the reporter summarises what she understands the interviewee had said, the reporter said:
[The reporter] spoke to another expert report writer who holds virtually the opposite view to [Ms NC]. Child psychiatrist [Dr B] says he’s often called on by the Court to assess allegations of physical and sexual abuse. He says in his experience, the vast majority of allegations of child sexual abuse, which only make up a small minority of the court’s total caseload, turn out to be unfounded, meaning they have no basis in fact.
There follows what Dr B in fact said:
[Dr B]: I think in the Family Court there are a lot of false allegations.
[The reporter]: What do you think…what share of the cases that you look at that involve child sexual abuse do turn out to be unfounded?
[Dr B]: So, in my experience, about 90% are unfounded in this very narrow, small group that are highly conflicted. So, there is still sexual abuse and physical abuse that comes through, but a lot of the people who end up in the Family Court are highly motivated people and highly competent people, so they’re a different group from, say, the lower courts, or the Children’s Court.
(Emphasis added)
The next part of the transcript represents a comment from the reporter:
[The reporter]: when [the program] raised the figure of 90% of abuse allegations being unfounded with [Prof KK], he was visibly taken aback.
Patently Dr B did not say that which the reporter contended either in her preliminary remarks or her summary of what he said.
Leaving to one side the misrepresentation of the doctor’s remarks by the reporter and the mother in her affidavit, it is not at all apparent from the mother’s affidavit what relevance Dr B’s opinion could have if adduced as evidence on the appeal.
Dr Gardner’s theory of parental alienation syndrome
A further part of the media program concerned explanations for the making of allegations. The reporter said that in some cases the making of sexual abuse allegations has been explained by reference to “brainwashing” and “parentification” she said:
[The reporter]: … I asked [Dr B] where these theories came from, and which child sexual abuse experts he referred to when he was forming an opinion on a case.
[Dr B]: It’s a very difficult area to get objective information and to carry out controlled trials, so the scientific literature is really a combination of looking at very experienced, well-regarded people in the field, and looking at their opinions and their experience. And so, often it’s really looking at eminent people.
[The reporter]: Is there anyone in particular?
[Dr B]: Well, there are various people who’ve looked at various syndromes, so Gardner, for example, looked at Parental Alienation Syndrome, and there’s been a lot of debate about the use and misuse of Parental Alienation Syndrome. But clinically often we see children who have become distanced from the other parent under influence, and so develop a degree of alienation. I think that’s a useful concept in some circumstances, but it’s sometimes overused and misused.
After the program moved to conversations with other people, the reporter said:
[The reporter]: Based solely on his clinical observations, Richard Gardner, the psychiatrist who defined the Syndrome, said that around 90% of the child sexual abuse allegations he assessed were false. As we’ve heard, [Dr B] quotes the same sort of statistics, based on his experience. I asked him if he thought that Richard Gardner had been unfairly maligned.
[Dr B]: I think he’s very relevant but I think that one needs to specifically not just throw that term ‘parental alienation syndrome’, one needs to actually describe what one is seeing clinically, and then talk about the degrees of alienation which Richard Gardner talked about, and I think that that’s useful, where there’s mild, moderate or severe, and that may lead to an appropriate response from the court.
[The reporter]: In a subsequent email exchange with [the program], [Dr B] clarified his position. He wrote: ‘I refer to alienation if it specifically occurs and describe it but I avoid using the Parental Alienation Syndrome label, even though it is often useful, as it has now come under such scrutiny that it often creates more debate than is helpful’.
He says he doesn’t use Parental Alienation Syndrome as a diagnosis.
Before the primary judge, Dr B was cross-examined about parental alienation syndrome and a number of propositions on the theory of parental alienation syndrome were put to him. It was not however suggested to him that he had applied that theory in this case. He was asked by counsel for the mother:
So in this particular case, whether it be a sexual abuse or abuse allegations, or anything, in the concept of parental alienation syndrome, you agree that that’s a concept where abuse allegations are raised in the case? --- I didn’t think there was any parental alienation syndrome in this matter.
(Transcript 23 January 2015, p.432)
It was later suggested to him that his recommendation that the children immediately be moved to live with their father was “…actually the recommendation of the treatment of extreme parental alienation syndrome?” Dr B replied that his recommendation was not made on that basis (transcript 23 January 2015, pp.442-443).
Undeterred, counsel pressed him that it was the treatment for parental alienation syndrome and Dr B said that “[I] haven’t even canvassed parental alienation syndrome in this matter” (transcript 23 January 2015, p.443).
Specialist training in child sexual abuse
Finally, the reporter turned her attention to what was said to be “specialised expertise in child sexual abuse”. She asked whether Dr B had that expertise. He said:
[Dr B]: As part of training as a child psychiatrist, one is exposed to all forms of potential adversity that could influence a child’s development, and sexual abuse is one of those. And so, I guess the training that I would have had is exposure to the various ranges of trauma that children can experience, not specifically sexual abuse, but sexual abuse is one of those areas of abuse.
It was not suggested to Dr B in the interview that such a specialised area of expertise in fact existed.
It must be first noted that there was no evidence before the primary judge that there existed specialist training in child sexual abuse nor indeed was there any such indication in the evidence sought to be adduced on the appeal. Secondly, when the order was made that Dr B be appointed as the expert in the matter, the mother made no challenge to his relevant qualifications or expertise. She had a further opportunity to test his expertise when, at a later hearing, Austin J offered to conduct, in effect, a voir dire, to enable the mother to explore Dr B’s qualifications, but that opportunity was not taken up. Further, Dr B was
cross-examined on his areas of professional expertise and it was not suggested to him that such an area of expertise – that is, child sexual abuse – existed or that he did not have that expertise.
As we have said, it is apparent that the media program is itself a précis of various interviews which have been edited to accord with the reporter’s purpose which is to give the listeners a summary of the competing views about this very contentious issue. We make no criticism of the reporter in so doing. However, it could not be regarded as being “admissible according to the ordinary principles” (CDJ at [115]) nor could it in our view fulfil one of the purposes to which CDJ speaks as a prerequisite for admission on the appeal.
Secondly, the contentions sought to be drawn from the comments of Dr B in the interview as to the relevance or otherwise of Dr Gardner’s theory could not be supported by what he said in the interview and certainly not when coupled with his evidence in cross-examination in the trial.
Finally, as we have said, there was no evidence before the primary judge, or sought to be adduced on appeal or put to Dr B, that there exists some specialised area of expertise in assessing child sexual abuse.
Evidence of events occurring after the hearing and evidence about the effect on the children of the primary judge’s orders
The evidence which the mother would adduce on the appeal relates to events which she says indicate that the father is not, as the primary judge indicated, facilitating a relationship between the mother, her parents and the children. A number of discrete incidents are recounted by the mother in her evidence. In her affidavit, the mother contends that the ordered telephone calls between her and the children are not taking place (at [6]), that the father accused her of alienating the children and marked the children’s items with the name “[Rowe]” (at [7]), the father refused to park his car in a particular place at the supervision centre (at [8]), the father did not send the children to school before 30 January 2015 (at [9]), the father refused to return the children’s school uniforms and refused to pay the school fees (at [10]), and that the father had not attended to the children’s eye checks and dental appointments and was not appropriately monitoring X’s diabetes (at [11]-[15]).
The mother deposed that there had been a visible traumatic effect on the children as a result of moving from her care to that of the father and that she held concerns for their welfare because of that change (at [16]-[25]). In respect of some of this evidence, the mother refers to comments made by her parents or other people at times and to comments the children have made to her during their time together.
It must be immediately apparent that the matters to which the mother refers are neither uncontroversial nor could they be accepted without the need for
cross-examination.
Further, the matters to which she deposes in this part of her application, and those which are said to be reflective of the effect on the children of her Honour’s orders, fall squarely within the matters to which the High Court referred in CDJ at [118] as evidence which points to “… changes in circumstances, outlook or apparent welfare…” and in respect of which the High Court observed that children will take time to adapt to changed situations.
Nothing in the nature of the evidence sought to be adduced, the mother’s evidence nor her submissions persuade us that leave should be given to adduce that evidence on the appeal. Thus the application was dismissed.
Costs
The father seeks an order that the mother pays his costs of the appeal on an indemnity basis or, alternatively, on a party and party basis.
The appeal has been entirely unsuccessful. The father has had to contend with grounds of appeal, written and oral submissions which are lengthy, difficult to follow and which have undoubtedly added greatly to the father’s costs of responding to the appeal. The appropriate order is that the mother pay the father’s costs.
Costs on an indemnity basis are awarded only in exceptional cases.
The issue of indemnity costs was considered by the Full Court in Kohan and Kohan (1993) FLC 92-340 at 79,614 (citations omitted):
The intent of s 117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the court may make such order as the court considers just. As we have pointed out, the court may depart from the scale of costs prescribed under the rules. However, the purpose of fixing a scale of costs must be understood to signify that they contain the normal rates of charges. By O 38 r 2, the provisions of O 38 apply to costs ordered to be paid or taxed, and costs payable or to be taxed between solicitor and client. O 38 r 7 makes provision for the allowance of additional amounts for complexity, difficulty or novelty and special skill, knowledge or responsibility. Consequently, the Court should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind. See Degmam v Wright(No 2) [1983] 2 NSWLR 354]; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534; Hobartville Stud v Union Insurance Co (1991) 25 NSWLR 358 at 368–70.
Indemnity costs orders are still an exception in this and other jurisdictions….
This passage was followed by the Full Court in Limousin & Limousin (Costs) (2007) 38 Fam LR 478 and D & D (Costs) (No. 2) (2010) FLC 93-435.
In Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 118 ALR 248, Sheppard J said at 256:
…
2.The ordinary rule is that, where the court orders the costs of one party to litigation to be paid by another party, the order is for payment of those costs on the party and party basis …
3.This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of court) or a decision of an intermediate Court of Appeal or of the High Court would be required to alter it …
4.In consequence of the settled practice which exists, the court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the court in departing from the usual course …
There is force in the father’s proposition that the manner in which this appeal has been prepared and run justifies an order for indemnity costs but, on balance, we are not satisfied that the mother’s conduct is sufficiently egregious and exceptional as to warrant an order for indemnity costs. The costs will therefore be paid on a party and party basis.
Neither the ICL nor the Department sought an order for costs.
I certify that the preceding three hundred and seventy-seven (377) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 6 July 2016.
Associate:
Date: 6 July 2016
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