Helbig & Rowe
[2014] FamCAFC 179
•17 September 2014
FAMILY COURT OF AUSTRALIA
| HELBIG & ROWE | [2014] FamCAFC 179 |
| FAMILY LAW – APPEAL – Where further parenting proceedings commenced after final parenting orders were made by consent – Where leave to appeal interlocutory order relating to practice and procedure is necessary – Where a dispute arose as to the documents to be provided to the independent expert – Where the primary judge excluded from the list of documents to be sent to the expert certain counselling notes – Where the single expert can make an application requesting further documents if needed – Leave to appeal refused. |
| Family Law Act 1975 (Cth): ss 117, 94AA, 69ZT
|
| CDJ v VAJ (1998) 197 CLR 172 Child Support Registrar & Crabbe and Anor (2014) FLC 98-062 Gronow v Gronow (1979) 144 CLR 513 Metwally v University of Wollongong (1985) 60 ALR 68 Rutherford & Rutherford (1991) FLC 92-255 Taffa & Taffa [2014] FamCAFC 106 |
| APPELLANT: | Ms Helbig |
| RESPONDENT: | Mr Rowe |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 5421 | of | 2010 |
| APPEAL NUMBER: | EA | 115 | of | 2014 |
| APPEAL NUMBER: | EA | 116 | of | 2014 |
| ORDERS MADE: | 5 September 2014 and 17 September 2014 |
| DATE DELIVERED: | 17 September 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Johnston JJ |
| HEARING DATE: | 5 September 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 30 July 2014 and 13 August 2014 |
| LOWER COURT MNCS: | [2014] FamCA 751 |
REPRESENTATION
| FOR THE APPELLANT: | Ms Helbig in Person |
| COUNSEL FOR THE RESPONDENT: | Mr O’Sullivan |
| SOLICITOR FOR THE RESPONDENT: | Family Law Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O’Rourke |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW, Newcastle |
| THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES: | Ms C Samuels |
Orders made 5 September 2014
Appeal EA 116 of 2014 being the appeal against order 13 of Cleary J made on 30 July 2014 be dismissed.
That the application for leave to appeal order 5.14 of Cleary J made on
13 August 2014 from Appeal EA 115 of 2014 be dismissed.
The Application in an Appeal filed by the appellant mother on 4 September 2014 be dismissed.
Orders made 17 September 2014
The appellant mother pay the respondent father’s costs of and incidental to the appeal, her application for leave to appeal and her Application in an Appeal filed on 4 September 2014, such costs to be agreed, or failing agreement, as assessed.
The appellant mother pay the Independent Children’s Lawyer’s costs of and incidental to the appeal, her application for leave to appeal and her Application in an Appeal filed on 4 September 2014, such costs to be agreed, or failing agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Helbig & Rowe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 115 of 2014; EA 116 of 2014
File Number: PAC 5421 of 2010
| Ms Helbig |
Appellant
And
| Mr Rowe |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the court are an appeal and an application for leave to appeal instituted by Ms Helbig (“the mother”) in relation to interlocutory orders made by Cleary J on 30 July 2014 and 13 August 2014 as well as her application to adduce further evidence. The appeals arise in the context of hotly contested parenting proceedings.
The mother and Mr Rowe (“the father”) have two children; X and Y. They separated when the children were young following which the children lived with the mother. The parties fell into significant disagreement about the children’s time with the father and in November 2010 proceedings about that issue were started. With little respite the litigation has continued ever since and grew to encompass various interlocutory proceedings, contravention applications and appeals.
Central to those proceedings was the mother’s assertion that the father posed an unacceptable risk to one, if not both children. The parties eventually agreed that the children would have regular unsupervised contact with the father. Final orders which gave effect to their agreement were made on 21 May 2013.
Not long afterwards, as a result of statements attributed to the children, the mother decided that the child Y at least was at risk of being sexually abused by the father and that he posed an unacceptable risk to them both and she stopped sending them to see him.
On 31 January 2014, the mother filed an application in this court seeking, inter alia, to discharge the May 2013 orders and that she have sole parental responsibility for the children and they live with her. Pending a final hearing she sought that the final orders be suspended and restrictions placed on the children’s contact with the father.
The father denies the mother’s allegations and in his response filed on 27 February 2014 he applied for orders that unless the parents agree about the children’s living arrangements the children live with each parent week about. In the interim, he sought to continue his time with the children in accordance with the May 2013 orders.
Two interlocutory applications came before Cleary J on 11 July 2014. One concerned the appointment of a child and family psychiatrist as a single expert and the other what time, if any, the children should have with the father pending the final hearing.
On 30 July 2014, Cleary J made orders for the appointment of a single expert and the documents that were to be provided to the expert (order 5). Order 13 provided for the children to have supervised time with the father once each fortnight for two hours. By appeal EA 116 of 2014 the mother appeals against the order for supervised time.
Before that appeal was filed, a dispute arose about the documents to be provided to the expert. That issue came before Cleary J on 13 August 2014 with her Honour ordering that various of the father’s counselling notes attached to the mother’s affidavit filed on 30 June 2014 would not go to the expert. By EA 115 of 2014, the mother has appealed that order.
The mother’s application to adduce further evidence relates to both appeals and seeks the introduction of evidence contained in her affidavit dated
4 September 2014.
The father and Independent Children’s Lawyer (“ICL”) appointed to represent the children’s interests, seek to uphold the orders of the primary judge and ask that the appeals be dismissed with costs.
Without being required to formally enter an appearance or join in the proceedings, the Department of Family and Community Services (“the Department”) was given permission to join the bar table. We were informed that the Department proposed to join the proceedings below and would answer any questions we may have. There were none and when the hearing resumed after the luncheon adjournment there was no representative from the Department present.
This appeal was heard on a Friday and we were informed the children were due to see the father the next day. We were also informed that the expert was ready to complete his report but would not do so until the results of these appeals were known. Thus, and although it is not a practice we would ordinarily adopt, we were persuaded we should make orders in relation to those urgent matters and publish our reasons as soon as we could. We ordered that the mother’s appeals and her application to adduce further evidence be dismissed. These are our reasons.
Background facts
So as to give this appeal context, it is necessary to record a few seemingly uncontroversial facts. We hasten to add we were presented with a considerable volume of material, much of which was contentious and not the subject of findings by the primary judge. Lest it be misunderstood, we make no criticism of the manner in which the primary judge approached this difficult case and observe she adopted the established approach of not making findings in relation to contentious and untested evidence.
The parties were married in 1996 and separated in 2008. There are two children of the marriage; X who was born in 2005 and Y who was born in 2008. When the parties separated Y was only eight weeks old.
The father has two children from his first marriage, who have both attained the age of 18.
On 12 November 2010, the first application for parenting orders was filed in the Federal Magistrates Court (now Federal Circuit Court). In those proceedings, which were heard by Judge Foster (as he then was), the parties agreed that the father would initially have supervised time with the children. The initial dispute centred on the amount of time and the identity of the supervisor. From the outset, it was the mother’s contention that the father posed an unacceptable risk to the children, especially X.
A hearing proceeded on 21 and 22 November 2011, after which the matter was adjourned part heard and interim orders were made. There were a number of unsuccessful appeals brought by the mother before the matter was finalised in May 2013.
On 21 May 2013 Judge Foster made final orders, some by consent and some by determination. As his Honour’s reasons make clear, the parties agreed that the children’s time with the father would no longer be supervised.
In essence, those orders provided for:
·the parents to share parental responsibility;
·the children to live with the mother; and
·to have defined time with the father (unsupervised), including alternate weekends, school holidays and other special times.
As a consequence of those orders, the children began to have regular unsupervised time with the father.
The orders were amended pursuant to the slip rule on 14 June 2013 to relevantly include an order “By consent and without admission, both parents are to use their best endeavours to ensure that the children are not exposed to masturbation”. This is but one of a number of mutual injunctions made by consent which were apparently designed to ensure that the children are safe.
It is the mother’s evidence that on 27 December 2013, Y “disclosed” something which prompted the mother to report the matter to the authorities.
Officers of the Joint Investigation Response Team (“JIRT”) interviewed Y on 31 December 2013. X was interviewed by JIRT on 2 January 2014.
The father learned about these events on 2 January 2014 when he was contacted by JIRT. He was informed that the mother had made child abuse allegations against him and that he could not see the children until the allegations had been investigated. JIRT then determined that the allegations the father actually harmed Y were not substantiated. Later that same day they informed the mother that there was insufficient evidence to charge the father or apply for an Apprehended Violence Order and told him that his scheduled school holiday time with the children could proceed. The children went to the father for 2-6 January 2014.
The children were next due to spend time with the father for four nights commencing on 25 January 2014. However the mother informed the father that the children would not be made available and they were withheld. He filed a contravention application on 28 January 2014 in the Federal Circuit Court which has not been determined.
On 31 January 2014, the mother commenced proceedings in the Federal Circuit Court which were transferred to this Court on 11 February 2014. The mother applied for sole parental responsibility and in relation to the children’s time with the father “…there be (final) orders as made by the Court or as agreed after JIRT review concludes”. In the interim she said the children should not see the father for three months after which they would see him every second Saturday for three hours in the presence of an agreed supervisor or at a contact centre. The mother also filed a Notice of Child Abuse or Family Violence which asserted that the “father will continue to involve the children in sexual activity” if he has unsupervised contact with them. Stated broadly she said that the father may have behaved in a sexually inappropriate manner with Y, and exposed X to inappropriate sexual behaviour and given him alcohol. The allegations concerning Y generally related to the period after the May 2013 orders. In relation to X, the risk of abuse incidents predated the May 2013 orders. An amended notice was filed by the mother on 9 July 2014.
By 4 February 2014 both parties were aware that JIRT had closed its file.
Y began counselling with Ms C, who is a psychologist, on
7 February 2014. Ms C has met with the mother but not the father. It is her opinion that Y “has experienced some form of sexual assault” by the father and that neither child should have “…unsupervised access with their father under any circumstances until safety can be established” (Letter dated 12 May 2014).
In the meantime, on 14 February 2014, the mother’s solicitor wrote to the father who was advised that the mother would “…consider you spending supervised time with the children if you have an appropriate proposal.” In response the father said there was no basis for supervision and asked that time in accordance with the orders be reinstated. Supervised time did not take place.
The matter was then expedited and an ICL was appointed.
A family consultant interviewed the parties and children on 5 May 2014; following which a Children and Parents Issues Assessment dated
6 May 2014 was provided to the parties and the court. By then, the mother had decided that the children should not have contact with the father. He wanted to spend time with them in accordance with the May 2013 orders. The family consultant made the following assessment:
41.This assessment provides initial expert advice to the family and to the court about the issues and the children’s needs.
42.The identified safety issues for the children in the father’s household are that he has been assessed by the Department of Family and Community Services as posing a risk of sexual harm to the children.
43.It is evident that JIRT are of the view the allegations of sexual abuse could be substantiated and the father was the one who posed a risk of harm to the children.
44.The mother’s proposal that the father spends no time with children is, at this point in time, consistent with the children’s needs. The impact on the children of this proposal is that it is the only way at present to ensure the children remain safe.
45.The father’s proposal that they revert back to consent orders, is inconsistent with the children’s needs, due to the identified risk of sexual harm.
(Children and Parents’ Issues Assessment, page 7)
As we understand the mother’s evidence, Y made further statements to her and Ms C which were brought to the attention of the Department and JIRT. In response to letters from the ICL in April and May 2014, on 20 May 2014, the Department informed the ICL as follows:
.There are no open plans for these children.
.The JIRT matter was closed in February 2014; the sexual assault allegations regarding acts towards [Y] not being substantiated. Both [Y and X] were interviewed during these investigations.
.JIRT, as at today’s date, has no intention of reopening the matter.
.There has been one report received since February 2014, which was transferred to [a community service centre] and closed on 15 April 2014 given the matter had already been investigated.
.The file has been sent to [a community service centre] for filing.
(ICL’s affidavit filed 10 June 2014, annexure “A”)
With the matter shortly to return to the primary judge, on 28 May 2014, the ICL provided the family consultant with the JIRT email dated 20 May 2014. The ICL informed the family consultant “I note that Her Honour has noted that JIRT did not substantiate the sexual assault allegations regarding acts towards [Y] and that their file is now closed”. The ICL asked the family consultant for her opinion about the children spending time with the father supervised by a commercial provider pending the as yet to be listed final hearing. The family consultant responded later that day in writing. She said:
…
In light of the information you have provided (which is contrary to the information the mother provided) I have no issue with the father spending supervised time with [Y] until such time as a report can be prepared. I assume the report will be done by [Dr R] or will it be with another single expert?
…
(ICL’s affidavit filed 10 June 2014, annexure “A”)
Although the mother says she did not provide contradictory information to the family consultant, the correspondence from the family consultant dated
28 May 2014 makes it plain that the family consultant considers she did.
On 29 May 2014 orders were made that the proceedings be declared exceptional within the meaning of s 69ZT(3) of the Family Law Act 1975 (Cth) (“the Act”) in relation to the mother’s allegations of sexual abuse. Thus the rules of evidence otherwise excluded by s 69ZT(1) apply. The parties and ICL were also directed to prepare a minute of order for the preparation of a single expert report. When the proceedings resumed on 6 June 2014, there had been no agreement regarding the expert. An order was made appointing Dr B, who is a child and family psychiatrist, as the single expert and the parties were directed to consult with the ICL about the terms of reference for Dr B and also to consider what time the children should spend with the father pending further order.
Again the parties were unable to agree.
On 3 June 2014 JIRT formally rejected the (renewed) case.
The child Y was interviewed by a child welfare officer and a JIRT officer on 20 June 2014 as the parties were three days later. Y’s psychologist met with the officers on 4 July 2014 who visited the father at his home on 8 July 2014. By letter dated 9 July 2014, the Department advised the ICL that the outcome of those investigations was as set out below:
…
- Community Services received a report on 3/6/14 that was JIRT rejected. (Did not meet JIRT criteria)
- It was transferred to [a community service centre] and the case allocated on 10/6/14:
- Interview: [Y] interviewed by [community service centre] on 20/06/2014 by the allocated caseworker and a JIRT caseworker. No disclosure made.
- Interview: [The father] interviewed by [community service centre] on 23/06/2014.
- Interview: [The mother] interviewed by [community service centre] on 23/6/2014.
- Safety assessments on [the father] and [the mother] completed on 23/6/14. Outcome: safe.
- Risk assessments on both households are in the process of being completed.
- 4/7/2014 meeting with psychologist for [Y].
- 8/7/2014 Home visit with [the father].
…
(Exhibit 3, proceedings on 11 July 2014)
That said, it is common ground that by way of what is called a stage 2 assessment, in relation to Y, the Department concluded that a risk of abuse had been identified with the father being the person associated with causing risk (Exhibit 2, proceedings on 11 July 2014).
On 10 June 2014, the ICL filed an application in a case, which was heard on 11 July 2014 and led to the orders made on 30 July 2014. Relevantly, order 13 provided for the father to have supervised time with the children once a fortnight for two hours. By order 5 made that day the documents to be provided to the single expert were identified. Her Honour then restrained the parties from giving the expert documents other than those referred to in order 5.
On 13 August 2014, the primary judge varied order 5 made on 30 July 2014 to exclude from the documents the ICL was to provide to the single expert various counselling notes of the father.
The principles on an application for leave to appeal
The first issue for consideration is whether or not the mother must obtain the leave of this court to appeal those orders. The granting of leave is a statutory requirement which stands as a bar to the remedy of appeal and should be granted or refused by reference to principle (Taffa & Taffa [2014] FamCAFC 106).
Section 94AA of the Act provides that leave is required in respect of “prescribed decrees”. That expression is defined in reg 15A of the Family Law Regulations 1984 (Cth) (“the Regulations”) as “an interlocutory decree…” (other than a decree in relation to a child welfare matter). The form of an order regarding a single expert and the time the father is to spend with the children, are orders which do not operate to dispose of the parties’ rights and are therefore interlocutory.
Order 13 made on 30 July 2014 is clearly an order regarding the time the father is to spend with or communicate with the children, and is a child welfare matter. Leave is therefore not required in relation to EA 116 of 2014. Order 5 relates to practice and procedure and does not come within the class of matters set out in reg 15A(2). Leave to appeal is thus required.
An applicant for leave must show that the proposed appeal involves an error of principle, or that the decision sought to be appealed occasioned a substantial injustice (Rutherford & Rutherford (1991) FLC 92-255), or that the matters raised are of considerable general importance (Child Support Registrar & Crabbe and Anor (2014) FLC 98-062). There is no suggestion that the expert report order raises a matter of general importance.
Application for leave to appeal the expert report order
In her Notice of Appeal EA 115 of 2014, the mother sought leave to appeal on the following basis:
1.The parenting orders of June 2013 contain restraints agreed by the parties not to give the children alcohol, not to masturbate in front of or with the children, not to show the children the parents’ genitals and not to show the children porn.
2.On 30 July 2014 orders were made about what information would be sent to the Family Report Writer including a copy of [sic] Mother’s Affidavit in Reply dated 27 June 2014.
3.The ICL wrote on 7 Aug 2014 indicating that before sending the material to the Family Report Writer she had excised Annexure A6 and Annexure A7 in the Mother’s Affidavit in Reply 30 June 2014.
4.The mother objected to this on the basis that Her Honour had not ordered exclusion of information.
5.The fact is the father has a history of sexualized behavior in front of and towards the children including masturbation as evidenced in admissions by him in a Notice to Admit Facts and in 2009 counselling notes. He admitted in his Reply to the Notice to Admit Facts 14 Dec 2012 that he gave the diabetic child [X] alcohol on multiple occasions and masturbated while minding [X]. He admitted to the counsellor (per notes annexed to the mother’s Affidavit 27 June 2014) that he masturbated 3-5 times per day since aged 11-12 and had worsening control over his porn and masturbation habit.
6.On 27 Dec 2013 my daughter [Y] said to me of her father, “[The father], he asked me to rub in his private parts”. After her JIRT interview on 31 December 2013, Detective [H] told me my daughter said “[The child] told us [the father] wanted her to rub his penis and pointed to the genitals on a male body chart”
7.The mother filed an Initiating Application on 31 Jan 2014. The father filed a Contravention claim.
8.In its Stage 2 assessment dated 4 Feb 2014 the Department of Family and Community Services substantiated Risk of Significant Harm and identified the Father is the Person Associated with Causing Risk. The Head of JIRT confirmed this in a letter dated 26 March 2014 to the Court.
9.The mother requested the ICL to relist the matter in relation to the ICL’s exclusion of evidence from the material sent to the Family Report Writer.
10.On 13 Aug 2014 Her Honour excluded the Annexures A6 and A7 to the mother’s affidavit in Reply 27 June 2014 which contained evidence of the father’s longstanding sexualized behavior including behavior in front of and towards the children.
11.Family Report interviews were held with Dr [B] on 14 August 2014.
12.During the Family Report interview Dr [B] sought information about the family from childhood until now and indicated he “wants to see and would usually see any counselling notes”.
13.The matter is set for mention before Judge (sic) Cleary in Family court on 17 Sept 2014. (as per original)
In order to address the expert report challenge, it is necessary to set out the matters upon which the expert is to give evidence. These are contained in order 1 made on 30 July 2014 and are as follows:
…
1.1the attitude of each of the parties towards their role as a parent and the extent to which any identified personality traits or beliefs inform that attitude;
1.2the nature of the relationship between the parties;
1.3the relationship of each of the children with each other and with each of their parents and any other relevant person;
1.4the allegations of sexual abuse and/or whether each of the children are at risk of sexual abuse in the father’s household; and if so, the nature of that risk;
1.5whether either of the children are at risk of physical or psychological harm in either household; and if so, the nature of that risk;
1.6the capacity of each party to facilitate and encourage a relationship between each of the children and other party;
1.7the likely effect of any changes in each of the children’s circumstances, including the likely effect on each of the children of any separation from either of the parties and any other relevant person;
1.8the parenting arrangements that are most likely to benefit the children based on the matters referred to in Orders 1.1 to 1.7 above (inclusive);
1.9any other matter the Court Expert considers relevant.
If the mother is given leave to appeal, she would challenge the expert report order on the following ground:
1.When Her Honour accepted the ICL’s decision to not send information to the Family Report Writer and excise Annexures A6 and A7 from the Mother’s evidence from her 30 June 2014 Affidavit in Reply to the ICL’s Application in a Case, Her Honour excluded evidence of the father’s past sexual conduct and admissions in circumstances where this evidence is directly relevant to:
i)The father’s current conduct,
ii)the Mother’s Initiating Application 31 January 2014, updated supporting affidavit dated 26 March 2014, Updated Form 4 dated 9 July 2014 and the Mother’s Affidavit in Reply 30 June 2014;
iii)the mother’s knowledge and belief that the father had engaged in inappropriate sexual conduct in the presence of the children and was likely to do so in the future
iv)the Father’s Contravention Claims and
v)Her Honour’s decision to allow supervised contact between the father and the children.
Discussion as to the expert report order
It is apparent that the basis upon which the mother seeks leave and the proposed ground of appeal are different. Her leave application is predicated upon the single expert asking for access to the counselling notes. The proposed ground of appeal asserts error by the primary judge in failing to ensure that the single expert has access to what the mother says is necessary relevant evidence. Notwithstanding this disconnect, because the mother is presently without legal representation, if the proposed ground of appeal met the test referred to earlier, leave would be contemplated.
Her Honour’s reasons for making the expert order in the manner she did can be established from the transcript of the proceedings. In this respect, the scene was set by the parties’ desire to limit the costs incurred in relation to the single expert and her Honour’s indication that the forthcoming hearing would focus on evidence subsequent to the May 2013 orders. It was on this basis, that counsel who then appeared for the mother persuaded the primary judge that two expert reports prepared for the earlier proceedings by Dr R (who is a child and family psychiatrist) should not be given to Dr B.
However, and in contrast to the submissions made in relation to the previous expert’s reports, counsel for the mother said that the father’s 2008-2009 counselling notes should go to the new expert. The reason for this was:
… that the documents contain admissions by the father as to what he does and what he doesn’t do, and my client knows that, and, therefore, your Honour, if your Honour has to then look at [R] and ..... you have to decide if my client honestly believes that he’s arrested (sic) the children, and in the absence of that evidence, your Honour, my client’s case will be disadvantaged. So she either can re-subpoena them knowing where they are ..... ask that she’s entitled to be able to use them in these proceedings. We're not calling ..... calling [Mr A] and the other witness. There are admissions made by him in records which are business records, and my client just wants to say, “I’ve read this. This is what he said. As a result of him admitting he does this, I believe he’s arrested (sic) the children.”
(Transcript, 11 July 2014, pp 61-62)
Her Honour correctly pointed out that the gravamen of the submission was that the mother had read the notes prior to May 2013 and notwithstanding his “admissions”, entered into the final parenting orders.
Counsel for the mother went on to repeat that the father’s counselling notes were “… relevant to the mother’s state of mind…” as to why she believes the children are at risk with the father and that the allegations now raised are very different to those made previously (Transcript, 11 July 2014, p 62).
The ICL then informed the primary judge that the father’s counselling notes had been provided to Dr R. As we understand it, the point being that to proceed as the mother suggested would inevitably involve the expert and the court reconsidering evidence which is the subject of final orders. Before
her Honour ruled against the counselling notes being provided to the single expert, she indicated that the father’s objection to the counselling notes being received in evidence would probably be unsuccessful “… because it’s evidence of what the mother has done … her thinking on the matter” (Transcript, 11 July 2014, p 61). Indeed this was a recurrent theme.
As to the way forward, her Honour contemplated that if, following the release of the expert’s report, the parties were unable to reach an agreement and thus a final hearing was inevitable, further material might be provided to Dr B including, for example, Dr R’s reports. As we understand it, this is one of the reasons the matter is listed before her Honour on 17 September 2014.
In any event, when the matter was relisted on 13 August 2014, the mother took issue with submissions by the ICL and the solicitor for the father that Dr R had the father’s counselling notes. In response to the mother’s submission that Dr B should have the father’s counselling notes, her Honour said:
… Dr [B] is perfectly capable of asking you whatever questions he needs to ask you and for you to respond in whatever way you choose to his questions…
…
… And I am containing it to the event since the orders were made. And the reason for that is because all of those matters were known at the time when orders were made either by consent or determination. Now, I’m not going to make an inquiry into what Dr [R] knew or didn’t know, whether she was given those documents or not, whether she read them or not, because her reports are not going to Dr [B] at your request, and also because I don’t think it’s appropriate to overwhelm Dr [B] with events from the past which are not relevant to these proceedings.
(Transcript, 13 August 2014, p 8)
and:
… since it will be me who is the trier of fact and also because the matter is being contained it’s – to what has happened since the orders…
(Transcript, 13 August 2014, p 11)
In her written submissions to us, the mother explained her position thus:
With respect to the [expert’s report], the writer has been tasked to evaluate, amongst other things, risk and capacity to parent. My capacity to parent is based on my knowledge of what has occurred.
and:
These counselling notes contain admissions by the father which are directly relevant and of enormous probative value. They reflect his longstanding pattern of compulsive lying, thinking and behaviour in relation to access pornography and masturbating to it 3-5 times/day since the age of 11 and worsening control over this habit.
The counselling notes … provides the court with evidence of tendency, context and background.
As presently advised, we do not agree that the counselling notes constitute tendency evidence. Otherwise, the mother, as her Honour indicated, is permitted to explain her “knowledge” and how it influences her capacity to parent. The father previously agreed that orders be made, and they were, which prevent him from exposing the children to pornography, his “naked genitalia” and masturbation. Nothing to which we have been taken would restrict the mother from explaining to Dr B why she asked for those orders to be made or should he think it relevant, Dr B from asking the father why he agreed to them.
Part 15.5 of the Family Law Rules 2004 (Cth) (“the rules”) is concerned with “expert evidence”. Rule 15.60 enables a single expert to make application for a procedural order to assist in carrying out the expert witness’s function. Amongst other things, the rule is designed to enable a single expert to obtain directions from the court where the expert considers his or her instructions are inappropriate or inadequate. Thus, for example, an expert may ask the court to make orders for the provision of documents needed to complete the expert’s investigations.
We reject the mother’s complaint that somehow her having raised this matter with the ICL, the ICL was obligated to bring the matter to her Honour’s attention. The mother is no novice to trial and appellate litigation and she would well understand that she is responsible for the presentation of her own case and cannot make the ICL responsible for her own inaction.
We are not persuaded that her Honour erred in making the directions she has about the father’s counselling notes. If, as the mother suggests, Dr B believes he needs to see the notes, as we explained to her during the hearing and do so again in these reasons for judgment, the rules provide a mechanism for him to bring this to her Honour’s attention. It is also noteworthy that the primary judge made provision in the orders for the ICL to communicate with the expert. This provides another avenue for Dr B to raise this issue with the court if it concerns him. Simply put, there is no need for appellate intervention in order to address the gravamen of the mother’s application for leave.
Nor has the mother established that the expert report order occasioned a substantial injustice. The mother’s application for leave to appeal will be dismissed.
The supervised time appeal
It will be recalled that the application before the primary judge was brought by the ICL to vary the existing orders so that pending further order the children would spend time with the father supervised by PP Family & Counselling Service for two hours once a fortnight. The application was supported by the father and opposed by the mother.
Notwithstanding the numerous challenges the mother made in relation to
her Honour’s reasons for judgment, no challenge is made to the manner in which her Honour summarised the allegations of abuse contained in the mother’s updated notice which was filed on 9 July 2014. Her Honour summarised the allegations, at [37], in the following manner:
·That [Y] has told her mother that the father directed her and forced her to touch his genitals and that that might have happened; the asking and the touching more than once,
·A reference to [Y] displaying a typical behaviours; wetting the bed, being moody, clingy, fretful, angry, biting, kicking and having tantrums after the visit to her father in December 2013.
·That [Y] has displayed strange behaviour; touching and grabbing older children’s genitals and displaying sexualised behaviour with toys and in relation to her brother and other children.
·There is also an allegation that both children were threatened by the father’s partner for having made disclosures about the father.
Her Honour went on to describe the allegations contained in the notice as “… serious disclosures” which required the court to “… take a careful and conservative approach” [38]. The conservative approach was required even though there had been allegations of abuse made over an extended period prior to the May 2013 orders.
After her Honour set out the relevant law, against which statement there is no appeal, she said the order for equal shared parental responsibility implicitly recognised that the children have a meaningful relationship with both their parents.
Having already determined that “serious disclosures” had been made,
her Honour then analysed the risks associated with ordering supervised time or suspending the children’s time with the father altogether. In relation to this issue, the primary judge said:
42.… The children have been interviewed more than once and have had counselling on the basis of abuse. It was forcefully put in submissions on behalf of the mother that harm could be caused by exposure of the children to a perpetrator of abuse. I accept that submission. Harm could also be caused to the children by prolonging the period for which they have no time with their father at all, presently six months.
43.[Y] is alleged to have made more allegations over the six months that she has not seen her father. That could be consistent with further disclosures from a place of safety; it could be consistent with the child making further disclosures because she felt encouraged to do so. I am not in a position to make a determination about that. Once the report by Dr [B] has been released and in the event that the matter cannot be resolved, then all of the evidence will be appropriately tested in a final hearing. I consider that there is potential psychological harm in the children having supervised time and in not having time at all.
Evidence in relation to the children’s views was considered, in particular, evidence contained in records of the Department to the effect that in January 2014 the children were wanting to spend time with the father. Also, at paragraph 17 of the Child and Parents Issues Assessment where X was reported to say in early May 2014 “…that he sort of misses the father and would like to see him again” and notwithstanding Y’s negativity about the father, she “… did not say that she was scared of the father, just that she did not like the rude thing that happened” (at [57]).
The primary judge also considered a recording the mother made of the children in which Y said the father “… asked me to rub his private parts but I said no”. The mother does not dispute her Honour’s finding that X denied what Y said and the discussion which the mother recorded “…descended into an argument between the children” [49].
Her Honour correctly pointed out a variety of findings that might be made in relation to this evidence, saying that she could not determine which was more probable and, even though there were no allegations made in relation to X, the children’s interests should be considered in like manner.
Concerning the children’s relationships with the father, her Honour reached the conclusion:
52.There is psychological risk to the children of the irreparable breakdown of their relationship with their father. There is risk of psychological harm to the children of being exposed to their father if they are concerned about his past conduct and if they are concerned about the allegations that they are making about him.
This evidence was then considered in light of the family consultant’s revised recommendation for supervised time. With that recommendation balanced by the other factors to which we have made reference, her Honour was persuaded to make the order for supervised time which is under appeal.
We will now discuss the various challenges which the mother raised.
Ground 1 - Supervised time against the weight of evidence
By this ground, it is asserted that the primary judge proceeded on a mistake of material fact and either gave too much or too little weight to particular evidence. The error of fact encompassed by ground 1 is said to be that
her Honour failed to take into account that the father posed a risk of harm to the children and did not address various specific pieces of evidence in her reasons for judgment. Although it is correct that the primary judge did not refer to each and every piece of evidence which the mother says is relevant to the detail of the risk, it needs to be recalled that this is a judgment in relation to interim issues and that the entire judgment is predicated upon her Honour’s acceptance that the evidence contained in the mother’s amended Notice of Child Abuse or Family Violence constituted evidence of “serious disclosures” and which, along with the other evidence to which reference was made, made it necessary to supervise the children’s time with the father.
The evidence to which the mother made reference in ground 1 was not said to either increase the gravity of risk as analysed by her Honour or make it more likely that the matters about which the mother gave evidence and as contained in the JIRT and Ms C’s interviews was more or less reliable.
The primary judge clearly accepted there was a risk to the children of sufficient gravity that until the evidence in relation to that risk could be tested, the children needed to be protected. We are not persuaded that it was necessary for her Honour to refer to every component of the evidence which was placed before her, and are satisfied that the matters about which the mother would now complain do not vitiate her Honour’s judgment.
Ground 1 has not been established.
Ground 2 – Too much weight to the family consultant’s opinion
It is the mother’s contention that the primary judge should have given greater weight to the family consultant’s original opinion that “no contact was safest” rather than her revised opinion in favour of supervised time. Central to this challenge is the mother’s assertion that the revised opinion is based on incorrect information. That being, the information contained in correspondence from the Department on 20 May 2014. Nothing to which we were taken by the mother established that the information contained in the 20 May 2014 letter was wrong. True it is, that the mother has been in correspondence with the Department in relation to whether, notwithstanding the allegations that the father had actually harmed Y were not substantiated, the Department assessed there was a risk of abuse. But that correspondence does not impugn the accuracy of the material contained in the 20 May 2014 correspondence. The point being, that the family consultant’s revised opinion is, at this stage, predicated upon there being evidence of risk of harm.
We are not persuaded that the family consultant’s revised opinion was based on incorrect information.
As to the complaint that her Honour gave insufficient weight to the initial opinion expressed by the family consultant, we must first observe that
her Honour was well aware that the family consultant revised her original position. It is well settled that an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessment of matters of weight (Gronow v Gronow (1979) 144 CLR 513). With this caveat in mind, we are not persuaded we should interfere with the manner in which her Honour weighed the different opinions expressed by the family consultant.
This ground is not established.
Ground 3 – Insufficient weight to expert opinion
This ground dovetails with the challenges made by grounds 1 and 2 but also complains that her Honour failed to take into account evidence from Y’s psychologist that further contact for the children ran the risk they would be traumatised and her recommendation of “no forced contact”.
The first thing that must be observed is that the primary judge made specific reference to Y’s counsellor’s 12 May 2014 letter, albeit when considering the nature of the allegations made against the father. In addition, we are satisfied her Honour’s acceptance at [42] of submissions made by counsel for the mother “… that harm could be caused by exposure of the children to a perpetrator of abuse” demonstrates that her Honour took into account the evidence contained in Ms C’s letter. For it is upon that evidence counsel for the mother’s submission is based. As we have already explained, the primary judge was entitled to place weight upon the family consultant’s final recommendation and not to restrict her considerations to the evidence from Ms C.
Ground 3 does not establish appellate error.
Ground 4 – A conclusion drawn on insufficient evidence
The gravamen of this challenge is that there was insufficient evidence for the primary judge to determine that after a period of six months without contact with the father, the children “could” be harmed if the period without contact was prolonged. It is the mother’s contention that this statement by her Honour is inconsistent with evidence given by the family consultant, at [15] of her assessment where she said:
It is little wonder that the children are confused about how they spend time with the father and do not appear to be perturbed about not having spent time with him since the beginning of this year.
Once again, this challenge raises a matter of weight. At [53] of her reasons for judgment, the primary judge made specific reference to the family consultant’s observations of the family to which she gave “…some weight…”. The portion of [15] upon which the mother relies is one of the matters to which weight was attached. Clearly this evidence was not overlooked but was balanced against other matters, for example, the views expressed by X and her Honour’s own view that the passage of time without contact might result in the “… irreparable breakdown” of the children’s relationship with the father [52]. Her Honour was well able to view this as a serious matter and to treat that risk in the manner which she did.
This challenge will fail.
Ground 5 – Misstated the family consultant’s evidence
In the last sentence of [56] of her Honour’s reasons for judgment, the family consultant’s evidence was misstated. The family consultant’s evidence was that “… [Y] was asked who she told about the ‘really rude thing happening’ and she said the mother and maternal grandparents” (Children’s and Parents’ Issues Assessment at [26]). Her Honour wrongly paraphrased this evidence at [56] as being “when asked who had told her about the really rude things happening, she said it had been the mother and maternal grandparents’.
Although, in her orders made on 13 August 2014 that error was corrected, quite properly, her Honour did not purport to correct her reasons.
The question which arises is whether this error influenced her Honour’s ultimate exercise of discretion? Other than pointing to the error, the mother was unable to demonstrate that it influenced her Honour’s exercise of discretion in favour of supervised time. On a fair reading of her Honour’s reasons for judgment, there is nothing to suggest that this mistake of fact had a material effect on the orders which her Honour made.
This challenge is not made out.
Ground 6 – Misconduct towards X?
By this ground, it is asserted that her Honour’s finding “[t]here is no suggestion of any misconduct directed towards [X] himself” is erroneous [51]. In support of this challenge, the mother relies on evidence contained in her affidavits and notices of abuse concerning “the father’s misconduct towards [X]”. Although the concession was not readily made, the mother eventually acknowledged that this evidence related to events said to have predated the May 2013 orders.
As we mentioned earlier, the focus of the risk assessment undertaken by
her Honour is on events subsequent to the May 2013 orders. As we understand it, the point being, that as at the time of those orders, the parties were agreed the children would not be exposed to an unacceptable risk of abuse were they to have unsupervised time with the father. When her Honour’s remarks are considered in light of this approach, there is no error.
This ground will not succeed.
Ground 7 – Procedural fairness
By ground 7, the mother asserts that by the primary judge permitting the father to take objections in relation to the admissibility of evidence adduced in the mother’s case, she was denied procedural fairness. In addition, that her Honour upheld objections to evidence which should have been admitted.
So as to provide context to this challenge, that component of her Honour’s reasons which deal with the mother’s affidavit is set out:
32.The mother’s affidavit consisted of 78 paragraphs, 57 pages of annexures plus a document titled ‘Index of Exhibits for [Helbig] affidavit’ in reply sworn 27 June 2014, being approximately 90 to 100 pages. The mother had prepared the affidavit herself. Counsel was briefed only to appear at the hearing. I did not read the “Index of exhibits” document. Counsel for the mother indicated that this was the research material that the mother had read which informed substantial parts of her affidavit and that she was not asking me to read the material, but was providing for it because of her references to that material in her affidavit.
33.The father took objection to the affidavit of the mother, as he was entitled to do. His objections were contained in a document handed up and could all be upheld. Certainly the paragraphs following the heading “Children are believable and should be believed” (paragraphs 19 to 40 inclusive), appear to refer almost exclusively to the research material which the mother provided in the index of exhibits referred to earlier, which was not read by me.
34.The balance of the paragraphs, 1 to 18 inclusive and 41 to 78 inclusive, are a combination of opinion by the mother, hearsay and a fusion of complaints pre-dating the May 2013 orders with current concerns. It is difficult to read and fully comprehend without reference back to most of the documents which must have been tendered in the proceedings in the Federal Circuit Court, intermittently over four years. I have not attempted to do so. I did not refer to those documents.
The first matter to be observed is that no challenge is made to the primary judge’s description of the mother’s affidavit. Next, not all of the father’s objections were upheld. Her Honour ruled that the objections could be taken and “could” all be maintained. Paragraphs 19 to 40 inclusive being the research material and the mother’s interpretation of it were properly excluded. Contrary to the mother’s submission that her Honour rejected, for example, hearsay evidence it is clear that she did no more than refuse to take into account those passages of the mother’s evidence which relied upon documents apparently tendered at some earlier time in the Federal Circuit Court.
With great conviction the mother argued that it was not open to the primary judge to exclude relevant evidence. In other words, that the sole test of admissibility is relevance. The mother was unable to provide authority for that proposition and it is rejected.
Nor was her Honour wrong to take into account objections which were delivered electronically the night before the hearing. As to the mother’s complaint that her counsel was denied the opportunity to answer the objections, that complaint cannot be made out. Far from the transcript of the proceedings demonstrating, as the mother said it would, that the primary judge “shut down” her counsel, the passage to which we were taken showed that her Honour did no more than briefly quieten the mother’s counsel and the father’s solicitor so as to permit the ICL to open her case. That passage being:
… And I don’t know [the ICL’s] attitude to them either, so I see that, despite the fact that this is [the ICL’s] application, and she hasn’t been able to say a word yet, there’s a tender of documents which are controversial, and I haven’t heard from her. So I think, in the circumstances, since it’s [the ICL’s] application, I will hear from her.
(Transcript, 11 July 2014, p 9)
There follows some 70 pages of transcript which reveals active involvement by counsel for the mother. The transcript also reveals objections continuing to be taken and her Honour’s willingness to deal with the objections. If the mother’s counsel elected not to address the father’s objections with particularity, the mother cannot now be heard to complain that her objections were not considered (Metwally v University of Wollongong (1985) 60 ALR 68 at 71).
Ground 7 is not made good.
Ground 8 – Evidentiary rulings
This ground has an obvious connection to the challenge contained in ground 7. The mother asserts the decision by the primary judge to uphold the father’s objections resulted in the exclusion of admissible evidence. As we said in relation to ground 7, the mother misstated the effect of her Honour’s rulings in relation to the admissibility of evidence. As best we could understand it, this challenge particularly focused on her Honour’s failure to admit the father’s counselling notes. The effect of this asserted error was said to relate to the father’s contravention claims, the assessment of risk of harm, the mother’s belief “that the father had engaged in inappropriate sexual conduct in the presence of the children and was likely to do so in the future” and the decision to order supervised time.
Firstly, that the ruling may affect the father’s contravention applications is irrelevant. Her Honour being concerned with the admission of evidence in the interim and interlocutory applications listed before her.
Next, her Honour was clear in her acceptance that the mother “appears desperately concerned that the father is a risk to the children and has sexually abused [Y]” and did not need to refer to the father’s counselling notes to appreciate the strength of the mother’s opinion [58]. Even more tellingly,
her Honour accepted there was a need to supervise the children’s time with the father. We are not persuaded that the father’s counselling notes would have weighed against the interim order for supervised time which her Honour made.
Ground 8 will be dismissed.
Ground 9 – Failure to consider the mother’s evidence
The focus of this challenge is upon the mother’s assertion that the primary judge did not read her affidavit filed on 30 June 2014. This somewhat brave submission was pressed notwithstanding the mother had spent a significant portion of the preceding hour complaining about her Honour’s rulings made in relation to that affidavit. Even when the mother was taken to the passages of her Honour’s judgment which clearly dealt with the 30 June 2014 affidavit she maintained her stance that the affidavit was not read by her Honour. The transcript of proceedings and [32]-[34] of her Honour’s reasons to which we have already made reference establish that this ground fundamentally misrepresents what took place in the proceedings and her Honour’s reasons for judgment.
As to the complaint that the primary judge disregarded history, that is, evidence which predates the consent orders, we do not accept that the approach which her Honour adopted was erroneous. For the purpose of this interim hearing, it was well within her Honour’s broad discretion to focus on the evidence of risk which had arisen subsequent to the parties’ agreement that the children should have unsupervised time with their father.
There is no merit in this ground.
Application to Adduce Further Evidence
Because the mother has failed to establish a basis for appellate intervention, her application to adduce further evidence in the appeals must be considered. The circumstance in which a party may, with leave, bring further evidence before the Full Court on appeal is circumscribed by authority (CDJ v VAJ (1998) 197 CLR 172). The power enabling the reception of further evidence exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of conventional appellate procedures.
The evidence which the mother would adduce is variously not new to the interim proceedings, not evidence or, if admitted, constitutes evidence which would tend to vitiate the decision of the primary judge. Much of the evidence is contentious and consists of further allegations of precisely the same type which her Honour considered in her reasons. We are not persuaded that the material upon which the mother relies should be admitted in either the appeal or the application for leave to appeal.
Conclusion and Costs
For these reasons the mother’s appeal, application for leave to appeal and her application in an appeal were dismissed.
At the conclusion of the hearing, we took submissions on the question of costs. In the event the mother was unsuccessful, the father and ICL applied for orders that she pays their costs (s 117).
The mother opposed orders for costs being made against her. She pointed out that she and the children live with her parents for which she pays modest board. By way of income, she receives Centrelink benefits and does not receive child support. At present, the child support assessment is set at nil. The mother owns an investment property which is tenanted and produces annual rental income of approximately $11,000 - $12,000. The rental income is applied to the children’s expenses, in particular school fees.
We accept that the mother’s difficult financial circumstances militate against an order for costs. However, we give greater weight to the fact that she has been wholly unsuccessful and her appeal and applications were demonstrably without merit. Notwithstanding that the father and ICL are in receipt of a grant of legal aid the mother’s lack of success is persuasive of orders for costs being made in their favour. That it may be difficult for her to satisfy an order for costs, does not warrant that no order be made.
We will order the mother to pay the father’s and ICL’s costs of and incidental to the appeal and her applications.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Johnston JJ) delivered on 17 September 2014.
Associate:
Date: 17 September 2014
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