Idanov and Dunstable and Anor
[2017] FamCAFC 134
•19 July 2017
FAMILY COURT OF AUSTRALIA
| IDANOV & DUNSTABLE AND ANOR | [2017] FamCAFC 134 |
| FAMILY LAW – APPEAL – CHILDREN – Unacceptable risk – Appeal from finding of the primary judge that the father poses an unacceptable risk of sexual abuse – Challenges to the factual findings made by the primary judge – Whether the primary judge’s discretion miscarried in the weight she gave to the evidence as to the children’s allegations – Whether the primary judge failed to give adequate weight to or take into account the father’s evidence and submissions – Whether the primary judge erred in her findings relating to the mother’s credit – No appealable error established – Appeal dismissed – Father to pay the mother’s costs of the appeal. |
| Evidence Act 1995 (Cth) s 128 Family Law Act 1975 (Cth) s 60CC |
| Allesch v Maunz (2000) 203 CLR 172 Bennett and Bennett (1991) FLC 92-191 Bondelmonte v Bondelmonte (2017) 341 ALR 179 CDJ v VAJ (1998) 197 CLR 172 Fox v Percy (2003) 214 CLR 118 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 M v M (1988) 166 CLR 69 Metwally v University of Wollongong (1985) 60 ALR 68 Norbis v Norbis (1986) 161 CLR 513 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 |
| APPELLANT: | Mr Idanov |
| RESPONDENT: | Ms Dunstable |
| INDEPENDENT CHILDREN’S LAWYER: | Logie-Smith Lanyon Lawyers |
| FILE NUMBER: | MLC | 7400 | of | 2014 |
| APPEAL NUMBER: | SOA | 66 | of | 2016 |
| DATE DELIVERED: | 19 July 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Aldridge, Kent & Austin JJ |
| HEARING DATE: | 17 May 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 July 2016 |
| LOWER COURT MNC: | [2016] FamCA 544 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Stoikovska SC |
| SOLICITOR FOR THE APPELLANT: | Berry Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Wilson |
| SOLICITOR FOR THE RESPONDENT: | Altavilla Vessali Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Boymal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Logie-Smith Lanyon Lawyers |
Orders
The appeal is dismissed.
The appellant is to pay the respondent’s costs of the appeal as agreed or, in default of agreement, as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Idanov & Dunstable and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 66 of 2016
File Number: MLC 7400 of 2014
| Mr Idanov |
Appellant
And
| Ms Dunstable |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Mr Idanov (“the father”) appeals against parenting orders made by Thornton J on 7 July 2016 in proceedings between him and Ms Dunstable (“the mother”). The primary judge’s orders provided for the mother to have sole parental responsibility for the parties’ three children, who were to live with her. The children were to spend up to three hours a week after school and up to five hours each weekend with the father at a professional supervision service or contact centre.
The central issue before the primary judge and before us on appeal was whether the father posed an unacceptable risk of harm to the children, in circumstances where each of the children had made statements about having been sexually abused by him. The statements were made to the mother but, in many cases, also repeated in some manner to the police, workers from the Department of Health and Human Services (“the Department”) and to the family consultant.
For his part, the father asserted that no such abuse had taken place. His explanation for the children’s statements was that the mother had coached the children to make the allegations so that they could be used for her advantage – such as to remove the father from the family home or to obtain money from him. Alternatively, he contended that the children had themselves arrived at the allegations as a result of a number of “safety talks” given to them by the mother, in the light of the mother’s extreme acrimony to the father, in order to please her.
The primary judge was not asked to find, and did not find, that the alleged abuse had taken place. Instead, the hearing and the primary judge’s Reasons focussed on whether there was an unacceptable risk of harm of the kind referred to in the children’s statements if they were to spend unsupervised time with the father.
The three children the subject of these proceedings are B born in 2007, C born in 2009 and D born in 2011.
The primary judge found that the two older children had made reports of sexual abuse which they genuinely believed to be true. The primary judge was not satisfied, however, that the allegations of the youngest child were reasonably based or genuinely believed. Her Honour rejected the father’s contentions as to coaching or influence and found on the balance of probabilities that the father posed a risk to the children.
The primary judge then turned to a consideration of the magnitude of that risk and found that the potential benefit to the children of spending unsupervised time with the father was outweighed by the risk of the serious consequences and detriment that would arise as a result of the type of sexual abuse alleged (at [395]).
The father’s appeal challenged the findings of the primary judge which underpin her Honour’s conclusion as to the risk of harm. In doing so, the father submitted that her Honour’s findings were not open on the evidence or, alternatively, that aspects of the mother’s case were given undue weight.
A significant part of the father’s challenge to the primary judge’s Reasons was an attack on her Honour’s acceptance of the evidence of the family consultant, whose opinion was that the children did not display signs of having been coached and that it was likely that their various statements were based upon their own lived experiences.
Further challenges were made to the weight that was given to the report of Associate Professor N, a clinical psychologist who opined that the father did not have a psychological disorder let alone a paraphilic disorder.
The father also contended that other findings made by the primary judge were contrary to or against the weight of the evidence.
Throughout the father’s submissions, emphasis was given to what were said to be considerable inconsistencies in the versions of the allegations made by the children to different people. Therefore, before turning to the grounds of appeal in detail, it is necessary to record the allegations that the children were found to have made. We will also discuss the financial relationship between the parties, which also formed a prominent part of the father’s submissions.
The allegations of sexual abuse
The allegations made by B and C
The mother’s evidence detailed four instances in which the children were said to have made complaints to her about sexual abuse by the father, occurring in early 2010, August 2012, October 2014 and November 2014.
The first occasion was said to be in early 2010, when B was approximately two and a half years old, when he told the mother that the father had laid him on the bed, touched his penis and that it was sore. The mother confronted the father, who vehemently denied the allegation. The mother did not pursue the allegation any further.
For his part, the father denied that the mother had ever raised the incident with him.
The primary judge appears not to have made any finding on this issue.
The second occasion was on 7 August 2012, when the mother went to the shops for approximately 10 minutes with B and D, leaving C in the care of the father.
Later that day, C, who was then nearly three years old, made the first of a series of allegations. The primary judge recorded the allegation as follows:
65.[The mother] deposes that when she suggested that C go to the bathroom before they began baking, the child said she did not need to go because she had already been with her father. The child then reported, “he [the father] put me up here [the bathroom bench] and lay me down with [a white towel]”. She says at this time she observed that items which were usually on the bathroom counter were out of place.
66.The mother asked C why the father had put her on the counter and the child said “so I can suck his gina”. The mother sought to clarify and asked C, “daddy’s gina?” and C replied, “oh no I mean daddy’s penis.” The mother sought to clarify with the child that what she had reported actually happened and the child said, “Yes and then he gave me a chocolate shell and told me it’s a secret and not to tell mummy or B”. The mother then asked C if she had done this before and the child said she had, “at the other house, at night in daddy’s office”.
Shortly thereafter the mother rang the father to inform him that she had been told everything, the marriage was over and that he should come home to “sort everything out” (at [67]).
The mother then took the two younger children to the police station where she informed a police officer that she was leaving the father and was concerned for her safety. The mother’s evidence was that she did not disclose what C had told her because she was in shock and could not function properly.
The father returned to the property and an argument ensued. He informed the mother that he had applied some cream to C’s genital area in the mother’s absence.
In cross-examination, the father gave a more expansive version of what he said had occurred. He agreed that he put C on the bathroom bench on a white towel and, in order to do so, had to move a number of items. He said that he did so because C had told him that her “bum” was sore. He noticed no redness but applied some cream that was “most probably a moisturiser” to either the “vagina” or “bum” but was vague as to exactly where he applied the cream. He wasn’t sure about whether he gave C a chocolate shell.
Later, again in cross-examination, the father accepted as true that the mother said that C told her that he had removed C’s pants, touched her “gina” with his fingers and that it “hurt a little”.
The primary judge noted that this explanation did not appear in the father’s affidavits (at [194]).
It is necessary to record here that the father has consistently denied any improper conduct toward any of the children and has asserted that his application of cream on 7 August 2012 was simply an unremarkable aspect of his care of C.
Later on 7 August 2012, the father left the family home before again returning. An intense argument ensued before he left and upon his return.
The mother then informed the police of the allegation but by the time they arrived at the family home C was sleeping and was not interviewed. The Department was also notified that day.
C was interviewed by the police on 8 August 2012. The primary judge recorded the contents of the police records as follows:
85. The diary notes record that in response to a number of questions C said “I don’t know”. The diary notes record in response to questioning (“Did he take you into the bathroom?”) the following exchange occurred:
Daddy pulled my pants down, he pulled his pants down he put ? on there (point to vagina) then I lay on the carpet. I sucked his gina.
What else did you do
Secret things
When you say suck
He say do it, he just tell me
What did you do
I jump in w [B]
In the bathroom what did you do
I just wait, dad he came in he wasn’t finished
What do you mean he wasn’t finished
In bath
What is a gina
Where food goes
Where on your body is it (point to lower stomach area)
Does daddy have a gina
No, he has a penis.
The mother said that on 9 August 2012 she contacted G Centre, a department of F Hospital which provides services for victims of sexual assault. She said, acting on their advice, she had a conversation with C about “touching rules”. She then asked C what had happened two days earlier. This led to a further report to the police who again interviewed C several days later. The primary judge recorded the events thus:
87.The mother then proceeded to ask C what happened two days earlier. At this time the child reported that the father had put his penis in her mouth while they were in the bathroom. She said the father laid a towel on the benchtop and laid her down, removed her pants and touched her “gina” with his fingers and it hurt a little. The child denied that the father had put cream on her vagina because it was sore. In response to her mother’s question, the child also reported that “it” had happened before in her father’s office at the other house.
88.C was interviewed by police again on 14 August 2014; however the contents of that interview are not in evidence. The Police coversheet referable to that interview, as contained in the Aide Memoire, and put to the mother during cross-examination reveals the following notes:
Nil disclosure was conducted on this occasion … Again the victim struggled a little with truth and lies. When asked why the victim was here at the police station she responded with “I can’t remember.” After a while the victim stated that “mummy had to teach daddy no [sic] to do that.” The victim then stated “I suck his gina.” When asked where a “gina” is the victim pointed to her vagina area but said that girls have a “gina” and boys have a penis but then said “Daddy has a gina.” The victim stated that he lay her down and got a white towel. The accused then put white soap on hand and put it on her gina. When he was finished he gave the victim a chocolate sea shell and told her not to tell anyone about the chocolate. This all happened whilst her mother and two brothers were at the supermarket.
The victim stated that she was on the toilet but didn’t do wee’s or poo’s and then the accused came in and lay her down on the white towel and rubbed the white soap on her (from a squirter thing).
The victim couldn’t describe what suck meant or what she used to suck.
“I just think are you going to give me a prize?”
The mother made a statement to the police on 22 August 2012. In it she said that after she had spoken to G Centre she spoke to C, but because the child could only speak in short sentences the mother had to “help [the child] put the events in order”.
The primary judge summarised the mother’s police statement as follows:
98.… She says the child then reported that the father asked her to go into the bathroom and he put her on the bench and she had to “suck his penis or gina (I can’t remember the word she used).”
99.The child then reported that the father put soap on his hands and rubbed it “here” while pointing to her vagina. The mother asked if the child had her pants on or off and the child said off and upon further questioning the child stated the father’s pants were also off.
100.The mother states that the child :
…then said that he put his finger in there. I said ‘Did he put his finger in?’ and she said ‘Yes and it hurt’ I asked her if she said stop or no but [C] didn’t answer me. I was trying to stay calm because these were details that I didn’t know previously. [C] was quite distracted by her dolls and wanting to play games so I didn’t push her to keep talking about things. [C] was very matter of fact when she was talking to me and I could tell that she wasn’t making it up that she was just to relaying back to me what had happened. I did ask [C] if anything had come out of daddy’s penis when she was sucking it but she said no and didn’t seem to understand. [C] did use the word swallow which was a word I have not heard her use before so that was why I asked this question.
That was the last conversation I had with [C] about the incident prior to making the second statement with the [Suburb L] Sexual Offences Unit.
No police action was taken against the father.
No further disclosures were made until 26 October 2014, when D told the mother that the day before, when the children had spent time with the father, he had gone to the bathroom “and I drinked [sic] daddy’s penis in my mouth”.
The police spoke to D very shortly after but he did not repeat the statement.
A further interview took place on 28 October 2014 but it did not advance matters. The police referred the complaint to the Department.
On 12 November 2014 there was an incident at B’s school during which, according to the mother, the father was aggressive towards her.
The mother said that at dinner that evening she had a safety talk with the children at the request of C. The talk included car safety, safety when crossing the road and body safety. The conversation then proceeded as follows:
146.C then said to her mother, “Only mummy is allowed to touch our bodies” and the mother told the children that some grownups did not know the touching rules or had forgotten them.
147.At this point, the mother claims B said, “Mummy I think dad doesn’t know the touching rules.” When the mother asked why he thought that, the child said it was “a bit rude”. The child then told the mother that a while ago, after cricket the father took him into his office and asked him to “suck his penis”. The child stated that it had happened on a few occasions and the father would sometimes buy him things if he did suck the father’s penis as requested.
148.At this time, C, who had heard the discussion between B and the mother said that the father always puts his fingers in her vagina every time she is at the paternal grandparents’ ([Pa and Nana’s]) house but that the paternal grandparents were always in the kitchen when it happened.
149.B then told the mother that D had told him the father had done naughty things to him.
The mother was interviewed by the Department on 12 November 2014 and the children on 20 November 2014. The primary judge recorded C’s responses at [160]:
During the interview with [C], she disclosed that her father “puts his hands down my vagina” without prompting. She advised that she couldn’t remember the first time this occurred however recalled being at the father’s home in the “television room” and it occurred whilst watching “Spongebob”. She stated it occurred on the couch and that [B] and [D] were in the room when it occurred. When asked if this is the only time when this has occurred, [C] spoke of another incident which occurred at the paternal grandparent’s home whilst the father was having contact with the children. She stated “he sticks his hands down my vagina” and advised that the grandparents were in the kitchen at the time of this occurring. She further stated “one time, I told him to stop because it hurted [sic], he was wobbling it, the little circle inside it.” She advised that he “always wobbles the little circle” inside her vagina. When a safety scale was completed with [C] she advised that she feels 3 out of 10 in safety when with her father. When asked why she feels this way she stated “sometimes I’m sad at dad’s”. She stated she feels sad “when he does all that stuff”.
The primary judge recorded B’s interview as follows:
161.According to the Department Response when interviewed by the workers B spoke positively of both parents but when asked about his father he stated “he’s been naughty”. He referred to an incident at school where the father was taking video as they left and stated, “When we went to the park he tried to take us away.” He said, “We went to the game centre, Mum told us he couldn’t take us anywhere. He tried to take us through the emergency exit.” B did not disclose feeling unsafe with either parent.
162.B later returned to the workers in the company of his mother and she told them that B had said to her that he forgot to tell Child Protection the “important thing”. The workers asked him about what he forgot to tell them and he stated, “After cricket dad took me into his office and told me to suck his penis. I would get an ice cream if I did it and would go to the naughty corner if I didn’t.” B was asked when this happened and he stated “when I was four or five” he further stated that “I didn’t do it so I went into the naughty corner for 30 minutes and just got out when mummy came home”. B was asked if anything like this had happened to his brother or sister and stated, “He put his hands down [C]’s pants”, “I seen him touch [C]”. He advised that he, D, C and the father were watching “Spongebob” at the paternal grandparents’ home and that he observed the father’s hand down C’s pants for about a minute and stated that he heard the father say to C, “Don’t tell”. B said that he had seen this happen once or twice but could not remember the other times. When asked why he didn’t say anything earlier to workers he stated, “I don’t know”. He was asked if what he disclosed was truthful to which she said, “Yes.”
The Department spoke to the children again on 13 January 2015. The primary judge described the result of C’s interview as follows:
165.According to the Magellan report, during that interview C reported that she sometimes felt sad at her father’s house and when asked why, said it was “all the naughty stuff dad does”. She told the workers that she wanted to see her father and was not scared to be alone with him but did not like the “naughty stuff”. She referred to the same information she told workers on 20 November 2014.
During his interview B told workers from the Department that he was worried about being left alone with his father “because of the naughty stuff dad does”.
B was again interviewed on 26 March 2015. The primary judge recorded the interview as follows:
175.B reported that his father had not given him a birthday present yet and that he was sad that he had not seen his father. He said he missed his father. B then proceeded to disclose similar sexual abuse allegations as he had previously made: that when the family lived in their previous house, the father asked B to “suck on his penis”, that he would get angry if the child refused and would offer him a lolly or ice cream if he did. The child further indicated that when he refused, the father would send him to the “naughty corner” and that he had seen his father’s penis but could not remember what it looked like.
176.B also reported that he remembered seeing the father touch both C and D inappropriately while at the paternal grandparents’ house. He said that he had been in the kitchen and had walked into the lounge room where he saw the father touching C under her clothing. He recounted another occasion on which he saw the father touching D but could not provide any further detail. He stated that he had never been inappropriately touched by his father while at the paternal grandparents’ house. This was the first occasion on which B reported having witnessed the father inappropriately touching either of his siblings. The child was specifically asked if anyone had encouraged him to say the things he had and the child reported “only mum”. When the officer sought to clarify this comment, B said his mother always told him to tell the truth.
On 9 September 2015 the family consultant interviewed the children in the course of preparing a family report. The family consultant recorded his interview with C in the following terms:
65.… In terms of her father, [C] identified having both “happy” and “a little bit scared” faces. Although she initially did not identify what it was that made her feel “a little bit scared”, she explained that she ceased spending time with her father “because we didn’t have a supervisor”, and that a “supervisor” had been required “so we would be safe”. She elaborated on the latter issue by stating that it was “because daddy might have done wrong stuff to us.”
66.[C] was initially unwilling to explain what “wrong stuff” meant. The writer therefore informed her that he was aware she had already told others about what her father had done. At no stage were any details given to her in relation to what she might have told others. On that basis, [C] explained, “He (a reference to her farther [sic]) touched. I don’t know what you call it.” When provided with an opportunity to use a toy doll to define the point of ‘touch’, [C] pointed to the genital area, and explained it was where she does “wee”. She then explained that her father had “touched” her in this area and that the ‘touching’ had not been associated with a request from her, or because she felt “sore” or needed a “wash”.
67.[C] was unable to provide exact details about the circumstances surrounding the “touching”, although she believed it occurred “at dad’s house” and “before I started school”. She also explained that whilst other people had been present in the home, they had not been in the same room. She subsequently stated that she was “in a room that has a TV” with her father and that both [D] and [B] were also in the same room. She insisted however, that her siblings had not seen her father “touch” her. [C] also understands that her father “told [B] to suck his penis”. She is aware of this happening, as “[B] told me”. She was clear it was [B] and not her mother who had provided this information to her. [C] is unaware if [sic] anything similar having occurred with [D].
68.[C] insisted that she was not “making up” her information about the “touching” and that her father “really did do it.” She described how he “touched” her “once” and “in the vagina”. She identified this area by pointing to her own genital area. [C] insisted that the “touching” had only occurred “one time. Not on another day.” The nature of the “touching” was explored by providing [C] with an opportunity to demonstrate on the toy doll what had occurred. She placed her finger on the doll’s genital area and then moved her finger around. When specifically asked, [C] confirmed that she had moved her finger when demonstrating the nature of her father’s “touching”. [C] also explained that she had felt “sad” when it occurred “because I didn’t like it”, and that her father ceased the behaviour when she had told him to “stop”.
69.… She also described how she would have a “worried face” if she had a ‘sleepover’ with her father, as “he might do something to me.” [C] expressed a sense of “worry” that he might “touch” her again, as she had previously described to the writer. She further explained that whilst she enjoys the opportunity to “play” with her father, she also feels “sad” when she is with him, “because he might do something … touch my vagina again.”
The family consultant summarised his interview with B as follows:
56.[B] explained that he now spends supervised time with his father, as “mum doesn’t let dad take us off by himself because she thinks he might do something bad.” He also stated that when he and his siblings now spend time with their father, his mother most likely has a “suspicious face”, as she is concerned about “what we might be doing with dad and if he is doing the right thing.” [B] does not believe his mother is necessarily “scared” or concerned his father might “hurt” them. Although he doesn’t completely understand the reasons for why his time with his father ceased in late 2014, he suggested it might have been because “mum thought we should have a break” and because his mother also believed “dad didn’t know the touching rules”. When this latter issue was explored with him, [B] stated “People are not allowed to touch your private parts. Dad does.” He further explained that “private parts” refer to “penis”.
57.[B] elaborated on this reference to his father by stating, “About 3 years ago dad took me to the cricket. It is true. Mum and [C] and [D] were not there. Dad took me into his office and told me to suck on his penis and if I didn’t, then he would put me in the naughty corner.” Whilst he expressed some uncertainty as to what his father had meant when he asked him to “suck on his penis”, [B] nevertheless explained that it most likely meant his father wanted him to “suck on something. Put your mouth on it. I said ‘no’. He put me in the naughty room. I didn’t do it (a reference to ‘sucking’ on his father’s penis). It was about 3 years ago.”
58.When asked whether there had been any other instances of his father doing things to him that he did not like, [B] stated “When we were at dad’s parents’ place at the end of last year, we were sitting on the couch in the spare room. We were watching TV. He squeezed my penis.” [B] later explained that he did not know why his father had done this, although he thought it might have been “for fun. It wasn’t hard.” After considering his comments, [B] stated, “it wasn’t the end of last year. It was a couple of years ago. I was 4.” [B] also explained that his father “did it to [C] and [D].” He was clear that he had seen his father engage in this behaviour with his siblings, which involved “squeezing their private parts”. When describing the circumstances surrounding this alleged incident, the writer formed a view that [B] was referring to more recent events and not when he was 4 years of age.
59.[B] explained that the incident involving his siblings occurred “at his (i.e. his father) parents’ place. [D] and dad went upstairs. Dad told [D] to suck on his penis. I think [D] did it because [D] didn’t know it was wrong. [D] told me. He doesn’t lie. He told everyone at the same time at dinner. [D] said dad told him to suck on his penis. Mum said, ‘that’s it and that we need help to work it out’.” [B] also explained that [D] had made these comments “either at the start of this year or the end of last year.” He is unaware of any other concerning behaviour from his father towards either [D] or [C].
60.[B] identified a number of positive aspects about spending time with his father; for example, that they are able to play with him and he provides them with gifts. He explained however, that “when I see dad, sometimes I feel sad … I don’t know (why). I just feel sad … I kinda have an angry and sad (face).” Whilst he is uncertain why he has these ‘faces’, he nevertheless acknowledged that “when I see dad now I feel sad and I will go off and hide and if he finds me I get angry.” He further expressed feeling “worried” that his father “might get into trouble because he did something bad”. He reiterated that the “something bad” referred to his father “telling me to suck on his penis.”
The allegations made by D
As we have indicated, the primary judge did not rely upon any of the statements made by D and accordingly it is not necessary for us to refer to them further.
The parties’ financial circumstances
The father’s case was that the mother had influenced the children to make the allegations against him because she wanted to get him out of the family home in 2012 and because of animosity over financial issues in 2014.
The financial position of the parties was never made entirely clear to the Court. In large part, this was because the father declined to answer many questions on this issue on the ground that the answers to those questions might tend to incriminate him. He persisted in that refusal despite being offered the protection of a certificate under s 128 of the Evidence Act 1995 (Cth).
What can be gleaned from the father’s limited evidence on this subject is that he owned in excess of 20 properties, each of which was mortgaged. He said that the income from the properties was not sufficient to meet the expenses of holding them. He did not explain how that shortfall was managed, how he had acquired the family home valued at about $2 million or how he planned to pay for approximately $1 million of proposed renovations.
Nonetheless, it is clear there were financial difficulties. The family home was sold in February 2013, which required the mother and children to leave it in May 2013. The mother was made bankrupt in May 2014. Her evidence was that the bankruptcy arose because the father had incurred debts in her name, including by using a betting account in her name.
At least for some period, the father provided little support for the family.
As we have said, the father declined to answer questions on these issues.
The father made audio recordings of a number of conversations with the mother, which occurred if not in front of the children then at least within their hearing. He tendered five recordings made in February and May 2014. There is no doubt that in these recordings the mother was aggressive and angry. She made threats to get the father “hit” and “cut” in a dark alley. Threats were made that if the father did not provide financial support he would not see the children. There was no reference to the allegations of abuse in the five recordings tendered.
The appeal
At the outset it is necessary to set out the principles that apply when an appellate court, empowered to hear appeals by way of rehearing as this court is, is hearing a challenge to the factual findings made by a trial judge.
In Fox v Percy (2003) 214 CLR 118 at 125 – 126, Gleeson CJ, Gummow and Kirby JJ referred to the advantage that trial judges have over an appellate court in considering the evidence:
22.The nature of the “rehearing” provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
23.The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
(Citations omitted)
Thus, the advantages of a trial judge extend beyond having the benefit of observing the manner in which witnesses give their evidence. Nonetheless, their Honours concluded at 127 – 128:
27.… Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
28.Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
29.That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion …
(Emphasis added) (Citations omitted)
In that same case McHugh J said at 146 – 147:
90.It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge's finding when it is based, expressly or inferentially, on demeanour. Those cases recognise - in accordance with a long line of authority - that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses. Recently in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq), for example, this Court held that undisputed and documentary evidence was so convincing that no reliance on the demeanour of witnesses could rebut it.
(Citations omitted)
It follows that if a finding of a trial judge is properly open on the evidence, no error will be established.
It is significant that in the instant proceedings the matter before the primary judge was the determination of the appropriate parenting orders, in a context where allegations had been made that one of the parents posed an unacceptable risk of harm to the children. Of such cases, in M v M (1988) 166 CLR 69 at 77 the High Court has said:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access …
Thus, the magnitude of any risk is relevant when determining what orders should be made. That, of course, will involve a consideration of all of the matters that must be taken into account when assessing what is in the best interests of the children (s 60CC of the Family Law Act 1975 (Cth)).
Such a consideration involves the exercise of discretion. As the High Court has recently reminded us, orders made in the exercise of judicial discretion “can be set aside only on a strictly limited basis, in accordance with House v R”: see Bondelmonte v Bondelmonte(2017) 341 ALR 179 at [31].
Speaking of the application of the principles enunciated in House v The King (1936) 55 CLR 499, in Gronow v Gronow(1979) 144 CLR 513 at 519 – 520 Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.
Finally, in CDJ v VAJ (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ said at 218-219:
151.Wide as the discretion conferred by s 93A(2) undoubtedly is, apart from such truly exceptionable cases, more is required for its exercise and the ordering of a new hearing than a real chance that the order under appeal does not serve the best interests of the child. Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
With these principles in mind we turn to a discussion of the grounds of appeal.
Grounds 1 and 4
Counsel for the father dealt with grounds 1 and 4 together and it is convenient for us to follow the same course. It is helpful to set these two grounds out in full:
1.In the exercise of the discretion and making findings under the heading “Unacceptable Risk”, the learned trial judge has omitted to take into account, and it is not evident in the reasons, what regard, if any, Her Honour had to the following relevant matters at paras 352, 354, 359, 366, 376, 379 and 380, which findings cumulatively, have or should have a significant forensic impact on the finding of unacceptable risk:
1.1.there are inconsistences between the children’s disclosures (at 352);
1.2.the financial hardship caused by the Appellant to the Respondent is an additional foundation for the Respondent’s antagonism towards the Appellant (at 354);
1.3.that without doubt the Respondent had a major influence over the children, in all probability her safety talks invited further allegations of abuse, making their veracity unclear, while the talks are overlaid by an acrimonious relationship between the parents about the Respondent’s financial hardship (at 366);
1.4.the safety talks engaged in by the Respondent encouraged them to make further complaints, the timing of which raises concerns about the veracity of those complaints (at 379);
1.5.that there is confusion in the accounts between the children [C] and [B] about their allegations “and it is more probable than not that the children would have discussed the allegations … between themselves” (at 380);
1.6.Her Honour could not be satisfied that the child [D]’s allegations are reasonably based and a satisfactory explanation [for the allegations] would be the influence of the Respondent (at 376).
1.7The genesis of the regular safety talks emanates from professional advice received by and interpreted by the Respondent (at 359).
…
4.At 385 Her Honour found she has considered the whole of the evidence of the family report writer, that it was compelling, and Her Honour accepted his evidence that the children’s responses did not demonstrate a scripted response. This finding is inconsistent with Her Honour’s own findings about the veracity of the children’s disclosures at 366, 376, 379 and 380. No reasons are given, nor is it evident how the learned trial judge reconciled those inconsistent findings, or at all, which led her on balance to find an unacceptable risk.
As outlined above, the primary judge accepted the family consultant’s opinion that the children had not been coached by the mother and that their statements about having been sexually abused by the father likely represented their own lived experiences. This in turn led the primary judge to accept the mother’s evidence about the statements made by the children.
The father challenged the primary judge’s acceptance of and significant reliance upon the opinion of the family consultant. Accordingly, the father also contended that the primary judge should not have accepted the mother’s evidence as to the children’s statements because her Honour should have found that the children’s beliefs were influenced by the mother and were not genuine.
The submission here is twofold. First, the father pointed to a number of paragraphs in the primary judge’s Reasons in which her Honour discussed evidence and submissions pointing away from a finding that the children’s allegations were genuine. The father asserted that these matters should have precluded the primary judge from accepting the family consultant’s evidence. Alternatively, the father contended that the primary judge placed too much weight on the opinion of the family consultant and not enough weight on the concerns about the evidence that were noted by her Honour.
In making these submissions, senior counsel who appeared for the father on the appeal (but who did not appear before the primary judge) frankly conceded that the family consultant was not challenged directly about his opinion as to coaching, but was cross-examined about his opinion as to whether the allegations came from the children’s own life experiences. Counsel accepted that the family consultant continued to adhere to his opinion.
We shall first set out the evidence of the family consultant before turning to the critical findings of the primary judge and the findings which are said to impugn them.
In his report the family consultant said:
81.[B] and [C] presented as polite and amiable children who appeared to understand the importance of conveying information that was truthful and reflected their own experiences. All of the children, to varying degrees, have consistently made disclosures to various professionals, including the writer, which clearly suggest their father has acted, both historically and more recently, in a sexually inappropriate and/or sexually abusive manner towards them. Whilst some of the details provided by the children were not always consistent and at times were a little confused, there was nevertheless sufficient consistency and detail in the information to indicate they were describing their own experiences. Although some of the earlier information from the children (i.e. from [C] and [B]) about their father’s actions could be open to alternative explanations (e.g. ‘touching’ genital areas in the context of providing general hygiene), their more recent accounts would not, in the writer’s view, be open to such interpretations.
82.Whilst cognisant of [the father’s] assertions that the children’s disclosures have been a product of influence from their mother, the writer did not form a view that they had necessarily been ‘coached’ or had been ‘alienated’ in their views about their father. It is acknowledged however, that [B] and [C]’s awareness of their mother’s negative views about their father and her opposition to spending time with him would adversely ‘shape’ their opinions about him. Despite these factors and them describing experiences of inappropriate behaviour by their father, all of the children expressed some desire to spend time with him. Their interactions with him were also predominantly positive and did not suggest they were seeking to intentionally display fear or reluctance about their father.
The family consultant then turned to consider whether the mother had engaged in “alienating” activity and concluded that the children’s behaviour towards the father – that is, being positive towards him – did not support this hypothesis.
The suggestion that the children had made inaccurate statements so as to punish the father because he had “wronged” the mother was also discounted by the family consultant because the children were keen to spend time with the father, despite reporting inappropriate behaviour by him.
This led the family consultant to form the following conclusion:
87.On balance, the writer believes that the more likely explanation for the children’s narrative about their father is that they were describing behaviour that reflected their own experience of him. As previously mentioned, the information outlined to various professionals has been detailed and appeared consistent with a child talking about their own experiences. It was not consistent with a child simply recounting a ‘script’ provided to them by someone who exercises authority over them (e.g. their mother). If this is the finding of the Court, the writer believes the children would benefit from attending counselling, so that they can have the opportunity to therapeutically process their adverse abuse experiences, as well as the nature of their relationship with their father.
88.In forming this view, the writer is cognisant of; [the father’s] adamant details of the allegations, his concerns about [the mother’s] motivations, the timing of ‘fresh’ allegations so soon after unsupervised time between the children and their father had commenced, and the outcome of Associate Professor [N]’s assessment in relation to both parents, which clearly indicated [the father] does not have “disturbance of sexual object choice” or “any abnormality of psychosexual function.”…
Further, the family consultant noted that:
91.It is also not uncommon for children to gradually, or even spontaneously, disclose information about their trauma and abuse experience, as time progresses. From a child’s perspective, issues of fear, shame, and confusion, often inhibit him/her from describing their experience to another person, and especially to a ‘stranger’. Graduated disclosures generally occur as children developmentally mature and become more capable of emotionally and cognitively processing their experiences, or as they develop confidence about recounting their narrative when they receive supportive responses. It is therefore not surprising that information from the children about their experiences of their father has gradually emerged.
It is apparent from the above passages that the family consultant was aware of the inconsistencies in the children’s allegations and the timing of them.
The cross-examination on this aspect of the family consultant’s evidence was limited and consisted of the following:
[MR DEVRIES:] Now, some of the evidence has been that some of the disclosures or – sorry, not disclosures – some of the alleged allegations occurred after there was a safety talk involving the three children, and the allegations were preceded by the safety talk and the safety talk included things about not allowing anyone to touch you or touch your private parts. Given – assume for a moment that the children are still aware that the mother – or was aware of occasions of those events, that the mother was still angry towards the husband, it’s distinctly possible, isn’t it, that the matters that were raised in the safety talk would influence what the children might thereafter say about their father?
[FAMILY CONSULTANT:] There is a possibility of that, yes, your Honour.
[MR DEVRIES:] And if the children know that the mother is extraordinarily angry with dad and the mother has told them the things that she wouldn’t like to see people, including dad, do, then if they want to encourage mum or support mum or show that they know which side their bread is buttered on, they are going to start relating some of those things back to her, aren’t they?
[FAMILY CONSULTANT:] I don’t know whether I would go that far, your Honour. I – I’m certainly aware that children, if they are aware of a particular attitude that a parent has about their other parent, that – that it’s hard for – for them to distance themselves from that, and particularly if – if – if that parent is, you know, a primary attachment figure in their life, a primary person in their life. It’s difficult for them to distance themselves. As to whether that then translates into them repeating back what they think that the parent may want them to – to hear, sometimes that occurs but it doesn’t always – doesn’t always occur, and as I have outlined later in my report, the children’s comments seem to reflect their own experiences. I was very clear in reminding the children about telling the truth, so I don’t know whether I would go as far as what has been suggested to me today, that – that they would simply – they ended up simply saying things to their mother that they – that they thought their mother may want to hear in the context of that discussion. I don’t think I would go as far as that, your Honour.
[MR DEVRIES:] But it is distinctly possible, isn’t it?
[FAMILY CONSULTANT:] There is a possibility that I have – I think in my report I have – I have looked at the possible interpretations and the – and the possible implications, and – and I have expressed a view on – on what my preferred view is about that.
…
[MR DEVRIES:] I suggest to you here is a situation: the children only a few months before had witnessed an orally violent outburst from their mother towards their father. They knew the mother was very angry. The mother has outlined to them what she would consider to be inappropriate behaviour. And I suggest it was – certainly the children would have understood that included the father. And then you get [B] and [C] competing to come out with the most lurid or detailed versions. That’s how you could read that, isn’t it?
[FAMILY CONSULTANT:] It’s a possible interpretation. And – and it’s not unusual sometimes for children to compete with each other. But, as I’ve outlined later in my report, your Honour, it’s probably not an interpretation I would tend to lean towards. I’ve outlined what my thoughts are about possible interpretations. But it is possible. Sometimes children do that. It’s a little bit unusual for them to – to compete with each other about it coming out, as the term has been used, more lurid details about sexual abuse. It’s not something that children tend to – to do. But it is possible. But it’s not an interpretation I would tend to lean towards.
(Transcript 11 May 2016, p.10 and p.29)
It is useful to record here that in its Response to the Notice of Child Abuse, Family Violence or Risk of Family Violence dated 23 January 2015 (“the Department Response”), the Department was also of the opinion that:
…Child protection has substantiated the sexual abuse perpetrated by the Father. [C] has made a clear disclosure to workers and despite her age was able to articulate in significant detail the abuse that occurred…
Over the period of my involvement with the family, the mother has presented as protective and able to prioritise the children’s needs. The mother has referred the children to [G Centre] for therapeutic treatment as a result of her children’s disclosures however this cannot commence until the Family Law Court process is complete. The Father has denied all the allegations despite [C] making a clear disclosure to Child Protection of sexual abuse perpetrated by her Father. Despite her disclosure, [C] continues to want contact with her Father as do the other children however [C] does not like the “naughty stuff”. It is not uncommon for children who have been subject to sexual abuse to continue to want contact with the perpetrator especially if this is a parent. Child Protection seeks for the children to have a positive relationship with their father however seeks to minimise the likelihood of sexual abuse occurring again.
The author of the Department Response was of the opinion that the children had not been coached.
The Department also prepared a Magellan Report dated 2 April 2015. The author concluded:
I am concerned about the impact this acrimonious relationship has on the emotional well being of the children. It is my assessment that the children are caught in the middle of what appears to be a disorderly separation and through my conversations with the children, they remain confused about why they no longer remain in a nuclear family setting. What has equally concerned me, is the audio clip presented to me by the Father, whereby the Mother has presented as aggressive and erratic in the presence of the children, and has very much made efforts to involve the children in an argument which was clearly inappropriate for their ages and stages of development, to the point where the children have become distraught and the Mother has shown no regard for their distress.
It is the Father’s view that the children have been coached to make these disclosures. I have no evidence of this, however the Father has raised some valid points regarding his defence.
I however have also made it very clear, that should the children’s disclosures be accurate, I am significantly concerned for their physical and emotional well being of the children through such sexual abuse.
The primary judge summarised these opinions in her Reasons (at [157] to [159] and [182] to [184]).
We shall deal first with the challenge to the following paragraphs of the primary judge’s Reasons:
336.I accept the evidence previously outlined about what C and B told the family consultant. I accept that the family consultant approached the interview with the children in a most professional manner mindful of any influence that he might bring to the interview. I was particularly impressed with the fairness of the approach of the family consultant which reflects his experience and expertise.
337.I accept the evidence of the mother about the complaint made to her by C on 7 August 2012, the day the parties separated. On the basis of all the evidence, but in particular the evidence of the family consultant, I reject the explanation proposed in the father’s case that the mother fabricated or coached this complaint from C in order to end the marriage. There is no evidence of any advantage to be gained by the mother as a result of the separation and in fact she was clearly financially disadvantaged as a result.
The father submitted that the findings made by the primary judge in these paragraphs could not have been made in the light of her Honour’s findings at [352], [354], [359], [366], [376], [379] and [380].
Those paragraphs form part of the primary judge’s discussion under the heading “Findings”. It is clear that each of the paragraphs, including [336] and [337], consists of findings made as steps on the path to the primary judge’s conclusions, and are not themselves conclusions. The conclusions as to the finding of unacceptable risk in fact appear at [385], [386] and [393] to [397]. It is therefore easy to overstate the importance of [336] and [337].
The inconsistencies in the children’s statements
Turning then to the paragraphs that are said to make these findings unsustainable, we start with [352] which states:
352.I find that there are inconsistencies in the accounts of C and B about the surrounding circumstances including the places and dates where the sexual abuse was alleged to have occurred.
It is true that there are inconsistencies between the various statements of the children. This was not, however, the last word by the primary judge about the inconsistencies: she devoted an entire section of her Reasons to a discussion of the inconsistencies in the children’s accounts, starting with a consideration of an aide memoire prepared by the father’s counsel, which highlighted the inconsistencies, at [389] to [398]. She concluded (at [391]):
The complaints have been maintained over a considerable period of time and there is an accumulation of factors which warrant a finding of unacceptable risk.
Thus, the primary judge was well aware of the inconsistencies in the children’s statements and took them into account. In doing so her Honour implicitly rejected the father’s submission that the inconsistencies in the allegations, of themselves, compelled rejection of the allegations.
We have earlier set out the evidence of the family consultant that despite the inconsistencies “there was nevertheless sufficient consistency and detail in the information to indicate [the children] were describing their own experiences”.
This opinion was supported by the author of the Department Response.
It is to be recalled that the issue in the proceedings was not whether this behaviour had occurred but rather whether, having regard to the allegations made by the children, they were of such a magnitude as to preclude the father spending unsupervised time with the children.
We do not see that the inconsistencies in the children’s statements are such that the primary judge erred by not dismissing them out of hand. In accepting the evidence as to the children’s statements, her Honour also took into account the opinion of the family consultant and the Department. That was a course that was entirely open to her. While there are obvious inconsistencies in the children’s evidence, we do not consider them to be such that they render the family consultant’s evidence glaringly improbable, contrary to compelling inferences or otherwise unacceptable so as to preclude the acceptance of the evidence by the primary judge.
We are not satisfied that the inconsistencies in the children’s statements of themselves required their rejection.
We would add that the father’s submissions are somewhat circular. The submission is that the family consultant’s opinion that the children’s statements were sufficiently consistent should be rejected because the statements are, in fact, too inconsistent.
This aspect of the ground fails.
Financial hardship as a source of the mother’s antagonism towards the father
At [354] her Honour stated:
354.… I accept that the father intimated that the mother would face financial ruin when she indicated she might apply for Centrelink benefits. I accept that the mother ultimately had debts totalling approximately $1 million, including approximately $337,000 in credit card debt, six mortgages and additional personal loans. I accept that the mother entered into her bankruptcy due to circumstances largely caused by the father and that she had little control over the process as he retained the relevant financial documents. I accept that the financial hardship caused to the mother is an additional foundation for the mother’s antagonism towards the father.
It may therefore be accepted that the primary judge found that the mother was angry and antagonistic towards the father. That finding must be seen in the light of the following:
360.The theory advanced by the father for the allegations of sexual abuse, that they have been fabricated by the mother to seek revenge for her financial situation in my view is not credible and unsatisfactory. This is because I accept the evidence of the mother about what C told her on the day of separation.
There was no suggestion by the father that the events of 7 August 2012 had their genesis in financial hardship. This was because the mother’s financial hardship arose after that date and could not be an explanation for any disclosures on that day.
We see no error in her Honour’s reasoning.
The effect of the mother’s “safety talks” with the children
The father relied on the following passages in the primary judge’s Reasons to suggest the alternative hypothesis that the children had been influenced as opposed to coached:
359.I find that the mother has regularly had discussions with the children about safety which included discussions about “the touching rules” and that no other person was to touch the children’s bodies apart from her. I am satisfied that the genesis of the safety talks emanates from professional advice received by and interpreted by the mother. These discussions about safety occurred on a regular basis.
…
366.I find that the mother has been the primary carer of the children and without doubt has had a major influence over them. In all probability the safety talks have invited further allegations of sexual abuse from the children but the veracity of those later complaints is unclear in the context of the safety talks and the suspicion of the mother overlaid by an acrimonious relationship between the parents about the mother’s financial hardship.
…
379.However I am satisfied that the safety talks engaged in by the mother in 2014 have encouraged the children to make further complaints. The timing of those further complaints made to the mother after the first period of unsupervised time spent by the father with the children raises concern about the veracity of those complaints.
380.There is confusion in the accounts of the children C and B about the timing and circumstances of the allegations and it is more probable than not that the children would have discussed the allegations on other occasions between themselves. B’s statements that he witnessed the father putting his hands down C’s pants in the TV room at the home of the paternal grandparents are concerning. These statements by B were made to the mother, the workers from the Department on two occasions being 20 November 2014 and on 26 March 2015 when he was interviewed. B told the family consultant in September 2015 that he had witnessed his father in reference to C and D “squeezing their private parts” in the TV room at the home of the paternal grandparents. The family consultant reported that B was clear that he had seen his father engage in behaviour with his siblings, which involved “squeezing their private parts”.
(Footnotes omitted)
We consider that in [380] the primary judge accepted the children’s statements referred to in that paragraph, notwithstanding the caveat about the children discussing matters between themselves.
In essence, the father’s contention is that, in the light of these findings, the primary judge should have found that there was no risk at all and that the allegations had no substance because they arose as a result of the influence of the mother (as indeed was found to be the case in relation to D’s allegations).
Even assuming for the moment that the mother had the alleged motive and the means (that is, the safety talks) to encourage the children to make the allegations, that does not establish that she did so.
It was clear enough from the primary judge’s Reasons, however, that this contention of the father was a weighty matter that needed to be considered. Ultimately, the question of whether the safety talks had influenced the children to make the allegations was resolved by the acceptance of the evidence of the family consultant in the following terms:
385.I have carefully considered the whole of the evidence of the family consultant … and whether, as submitted by counsel for the father, he has aligned himself with the mother. I reject that submission because the evidence of [the family consultant] was compelling. [The family consultant] had taken great care to avoid any leading questions when interviewing the children and appropriately confirmed with the children whether they were telling the truth during the course of the interview. I accept his evidence that the interview with the children did not demonstrate a scripted response from the children.
However, the primary judge also said:
386.I have considered the nature of the events alleged to have taken place, the seriousness of the allegations and who made the allegations. C has made the allegations of sexual abuse outlined previously to the mother, the workers from the Department and the family consultant. The family consultant accepts that the allegations made by C reflect her lived experience and that both B and C could distinguish the difference between things they experienced, things their mother said and things said by their siblings. The allegations have been made by C from 2012 until 2015. The effects exhibited by C were outlined by [the family consultant] and I accept his evidence. The allegations are genuinely believed by C on the evidence of the family consultant, [a worker] from the Department and the mother. I accept that the family consultant ensured that the children understood the meaning of telling the truth when he interviewed them.
387.The explanation provided in the evidence by the father regarding C in 2012 was that he placed her on a bench and applied moisturiser to her genital area because she told him it was sore when he took her to the toilet. He was unclear about what the type of cream that he applied. The mother’s evidence was that at 3 years of age C did not need assistance with toileting and was not wearing nappies from the age of two years. The father’s explanation is inconsistent with what C has told the mother, the family consultant and the workers from the Department as to whether she told her father that she was sore. I have considered the alternative explanation for the allegations raised by the father. It is the considered opinion of the family consultant and the workers from the Department that the mother has not coached the children. The submissions for the Independent Children’s Lawyer also support that view.
388.The effects exhibited by B and C as described by the family consultant and outlined previously indicate that C in particular wanted the conduct of the father she described to cease.
In accepting the opinion of the family consultant the primary judge relied not only upon his evidence but on all of the evidence in the proceedings including the father’s explanation (which the primary judge found to be inconsistent with C’s toileting needs and the fact that in 2012, she had not been in nappies for a year). The primary judge also took into account the father’s contentions and the opinions expressed by the Department.
The primary judge was faced with a significant body of evidence, parts of which supported the finding of a risk and some which cast doubt upon it. The primary judge had the difficult task of evaluating each aspect in order to arrive at an overall conclusion.
It is clear from what we have discussed so far that the primary judge did not ignore the matters raised on appeal. The primary judge was also entitled to take into account the father’s lack of cross-examination of the family consultant on the issues of coaching and inconsistencies in the children’s statements.
The father also pointed to the time between the various disclosures in 2014 and early 2015 and the disclosures made to the family consultant in September 2015. It was submitted that “there is a leap in logic that questionable disclosures brought about by influence of the [mother], can then be converted into credible lived experiences”. There are, of course, assumptions contained within that submission which were not accepted by the primary judge and which have not been disturbed by us.
The submission then referred to the fact that in interviews conducted on 24 October 2014 for the preparation of the s 11F Memorandum, the children made no relevant disclosures to the family consultant. That concern, however, was not raised with the family consultant in cross-examination and the s 11F Memorandum was not tendered. A reference was made to evidence given before Judge O’Sullivan on 24 October 2014, the date of the Memorandum, in which it was suggested that the family consultant had recommended the children spend unsupervised time with the father. The submission sought to draw an inference that this recommendation would only have been made if the family consultant was unconcerned about possible sexual abuse. The transcript from this date was not tendered by the father.
It is not possible to tell from the evidence what information, if any, the family consultant had about the children’s allegations when he conducted the interviews in October 2014.
It is therefore not possible to take this submission further in this appeal, as other evidence may have been given had it been raised with the family consultant at the hearing (Metwally v University of Wollongong (1985) 60 ALR 68).
We have carefully considered the matters raised by the father under these two grounds. We do not agree that these matters are such that the evidence of the family consultant had to be rejected. Indeed, we consider that the findings ultimately made by the primary judge were open on the evidence.
That is sufficient to dispose of this aspect of the grounds. The fact that a different judge could, quite properly, reach a different conclusion on the same evidence does not establish error.
For the same reason, the submission that the primary judge gave excessive weight to the evidence of the family consultant must be rejected. In any event such a challenge faces a high bar: Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513.
Finally, we do not accept the submission that the Reasons do not demonstrate how the conflicting findings were reconciled. As we have indicated, there was evidence that pointed in different directions. The task of the primary judge was not to reconcile the conflicting evidence and submissions, but rather to weigh each and come to an overall evaluation. For example, there were obvious inconsistencies in the children’s statements but the question was, did those inconsistencies so reduce the weight to be given to the statements that they should be entirely discounted; the question was not whether the inconsistences could be reconciled.
The finding that the allegations made by D were not reasonably based
The father referred to the finding of the primary judge that D’s allegations were “more likely … prompted or elicited from questioning by the mother” and submitted that this finding should have led her Honour to conclude that all of the allegations made by each of the children had been influenced in the same way.
It is helpful to set out the primary judge’s conclusions as to D’s allegations in full:
375.D is only four years old. D has made a complaint to the mother that “I drinked daddy’s penis in my mouth” in circumstances where he was heavily under the influence of the mother’s safety talks and discussions with the other children. D has not articulated any specific complaint to the police, the workers from the Department or the family consultant.
376.The timing of D’s complaint occurring immediately after the mother had regrets about consenting to an order for the children to spend unsupervised time with the father is significant. In these circumstances the veracity of his complaint must be questioned and I find that it is more likely that D’s complaint has been prompted or elicited from questioning by the mother and the influence of the other children. In all likelihood D has made this complaint to the mother or the other children in order to seek favour or attention. I cannot be satisfied that these allegations are reasonably based or genuinely believed by D and a satisfactory explanation would be the influence of the mother and the other children.
Thus, the factors that were taken into account by the primary judge included not only the influence of the mother but also the child’s young age, the failure to articulate any complaint to police, the Department or the family consultant, the influence of the other two older children and the timing of his sole complaint.
Those factors are quite different to the factors that pertain to the allegations made by the older children. Importantly, there was no evidence from the family consultant that these allegations were likely to represent D’s lived experience, as there was with B and C. One can readily see why there was a different finding as to the acceptance of those allegations.
Looked at in this way, it is difficult to see why this finding undermines the findings in relation to the other allegations. As we have already discussed, the primary judge was alive to the possibility that the two older children may have made their allegations under the influence of the mother. Indeed, she found that the safety talks “encouraged” the children to make further allegations. What was critical, however, was the weight to be given to this factor.
In the different factual circumstances which applied to D, as opposed to those that applied to B and C, this consideration was given greater weight. That was a course that was open to her Honour.
We therefore do not consider that the findings made as to D’s allegations were inconsistent with findings made as to B’s and C’s allegations or that the primary judge did not properly take into account the influence of the mother in relation to the allegations of all three children.
Grounds 1 and 4 raise some final matters which need to be addressed by us.
The father submitted that the timing of the October and November 2014 allegations adversely impacted on their veracity. The point of the submission was that the allegations were made shortly after the October 2014 consent orders, with which the mother was unhappy, were made. It was submitted that it can be inferred from that circumstance, the lack of any allegations made to the family consultant in October 2014 and the safety talks undertaken in November 2014 that the allegations arose from the mother’s unhappiness and from the safety talks alone and not from any acts of the father.
We have already discussed aspects of this submission and we need to address only the timing of the complaints. The fact that allegations were made shortly after consent orders were made (even accepting that they were grudgingly consented to by the mother) and shortly after or during safety talks does not automatically lead to the inference that the allegations lacked veracity. Certainly the timing raises concerns about the nature of the allegations but the primary judge was well aware of this issue and, particularly, the timing of the safety talks to which she devoted significant consideration. Indeed, that issue was a significant factor in the finding that D’s allegations were not reasonably based.
The timing of the making of the allegations was a factor to be taken into account by the primary judge, as she did in the manner referred to in the course of our discussion of grounds 1 and 4. It was not a determinative consideration.
We note that ground 1 challenged the primary judge’s Reasons on the basis that the findings referred to in the ground and which we have discussed above “cumulatively have, or should have, a significant impact on the finding of unacceptable risk”.
We accept that these matters have significant forensic impact. It is evident that the primary judge also regarded them as significant because her Honour devoted considerable parts of her judgment to identifying, discussing and evaluating them. However, their cumulative forensic impact was not such that the finding of unacceptable risk was glaringly improbable or contrary to compelling inferences. It was a finding that was open on the evidence.
Finally, as is obvious from our discussion of these challenges, we consider that her Honour took into account and had regard to each of the matters referred to in grounds 1 and 4.
These two grounds do not succeed.
Ground 2
By this ground the father asserted that the finding made at [343] of the Reasons was inconsistent with the findings made at [129] and [210] and that the error was likely to have influenced the primary judge’s exercise of discretion.
The two paragraphs state:
129.The father filed his Initiating Application on 22 August 2014. When the matter first returned before the Court in October of that year, orders were made by consent that the children live with their mother and spend time with their father on an unsupervised basis on Saturdays from 9.00am to 7.00pm and after school Wednesdays until 6.00pm as well as on special days.
…
210.The mother asserted that she had agreed to the father spending unsupervised time with the children because, she says, she felt a hostage to the father’s financial pressures. Furthermore, she asserted that after D made disclosures to her in October 2014 she had wanted to suspend all time between the children and their father, but she received legal advice which suggested she would lose her legal aid funding if she breached the court orders. She says she felt bullied by her legal representative to facilitate the children spending time with their father.
The primary judge’s finding at [343] was:
343.I find that the mother reluctantly agreed to an order in the Federal Circuit Court for the father to spend unsupervised time with the children because she was concerned about funding and acceded to the order on the advice of her lawyer.
We do not see the asserted inconsistency. In [210] the primary judge recounts the substance of the mother’s evidence, whereas [343] is the finding made on the basis of all of the evidence in the proceedings.
The evidence of the mother’s reluctance to agree to these orders emerged from the following passage in the family report:
28.In terms of more recent matters, [the mother] was clear that after [D]’s disclosure in October 2014, she had not wanted the children to spend any time with their father. She nevertheless agreed for supervised time to occur during November 2014, because she received legal advice that suggested she would not only be in breach of Court Orders if she ceased contact, but would also be at risk of losing her legal aid funding, in addition to the primary care of the children. [The mother] stated that she felt “bullied” by her legal representative into allowing the children to spend time with their father. Following further disclosures by all the children in mid-November 2014, and alleged aggressive behaviour displayed by [the father] towards her, she applied for, and obtained an interim Intervention Order against [the father], which effectively suspended the October 2014 Court orders. On that basis, she decided to cease all time between the children and their father.
It is not clear from this paragraph whether the mother was reluctant to enter into the consent orders or whether she was reluctant to comply with the orders once they had been made. The father’s counsel cross-examined the family consultant on this point:
[MR DEVRIES:] Paragraph 28, about the middle of that paragraph:
[The mother] stated that she had felt “bullied by legal representatives in allowing the children to spend time with their father.
So perhaps I had better go back a bit to put that in context?
[FAMILY CONSULTANT:] For the court’s benefit, your Honour, I have read that paragraph and I understand the context of that comment.
[MR DEVRIES:] Was the comment in relation to her being bullied to agree to the court orders? Or was the context in relation to providing what she calls contact? Or are you not too sure?
[FAMILY CONSULTANT:] In that paragraph, what I’ve done is to outline what she explained to me occurred after [D]’s alleged disclosure to her in October. So as I’ve explained there, she had not wanted the children to spend time with their father. She was clear about that. She agreed, however, for supervised time to occur because the legal advice that she received suggested that she would be in breach of the orders if she did not do so but may also risk losing Legal Aid funding and may lose the primary care of the children. On that basis she felt bullied by her legal rep into allowing the children to spend time with their father. And following that – so that was the context in which she made that comment about feeling bullied ‑ ‑ ‑
[MR DEVRIES:] Just ‑ ‑ ‑?
[FAMILY CONSULTANT:] In relation to the more recent issue.
[MR DEVRIES:] But what about – did you get the feeling that she also felt – did you get a feeling one way or the other whether she was bullied into agreeing to the orders made on 23 October, which were the orders that – consent orders where there was to be unsupervised time?
[FAMILY CONSULTANT:] Sorry, I understand now. No, I think her reference to feeling bullied was in relation to what happened after the alleged disclosure by [D]. And so it seemed as if she was pretty clear that she didn’t – her preference would have been that the children not spend time with their father after that alleged disclosure. But because of the advice or, as she put it, bullying by her legal representative, she continued to allow the children to spend time with the father, although it was different to what the court orders outlined in October. Sorry, I’m not sure whether I’ve made myself clear.
[MR DEVRIES:] Sorry, I distracted myself when you were making that last sentence. I’m sorry, I was – I got distracted. Are you in a position to repeat what you just said?
[FAMILY CONSULTANT:] I think I was just emphasising that it seems to relate more to her feeling not so much bullied about the orders that were made in October but feeling bullied – and I’m using her term there – feeling bullied to agree to time still occurring, although it was different to what was outlined in the October 2014 orders. But agreeing to allowing the contact between the children and the father to continue despite her concerns after [D]’s alleged disclosure.
[MR DEVRIES:] Could you just bear with me for one moment?
[FAMILY CONSULTANT:] That was my understanding of the context of that, your Honour.
(Transcript 11 May 2016, p.8 – 9)
The mother was cross-examined about the suggestion that she “reluctantly” agreed with the orders as follows:
[MR DEVRIES:] …And then you set out those times. And you go on to say:
The matter was adjourned to 24 February 2014.
Yes?
[THE MOTHER:] That’s correct.
[MR DEVRIES:] Now, it says there in the affidavit of 2014. I think it probably means 2015, your Honour. Nothing hinges on that and I’m not trying to make an issue of it. You didn’t use the word “reluctant” there, did you?
[THE MOTHER:] I was just stating the facts. That’s right.
[MR DEVRIES:] No, but you didn’t use the term “reluctant” there, did you?
[THE MOTHER:] No, I did not.
[MR DEVRIES:] See, that was easy. Paragraph 63 of the trial affidavit you said:
On 24 October orders were made for the father to spend unsupervised time with the father each Saturday –
etcetera –
… The matter was adjourned to 24 February 2014. At this time, two years had past since [C] and [D] were interviewed by police and no further disclosures had been made by any of the children since that time.
Again, no reference to “reluctant” there, is there?
[THE MOTHER:] No, there’s not.
[MR DEVRIES:] No. Indeed, no reference to the orders being by consent but that’s probably implicit from that sentence, the last sentence I read out…
(Transcript 10 May 2016, p.3)
There is, therefore, little evidence that the mother “reluctantly” agreed to the orders.
However, the family consultant’s evidence in paragraph 28 of the family report that the mother felt bullied into agreeing to the orders was supported by the following passage in the mother’s cross-examination:
[MR DEVRIES:] Now, did you mean bullied into agreeing to supervised time or bullied into agreeing with – to the court orders in the first place?
[THE MOTHER:] All of that.
[MR DEVRIES:] All of that?
[THE MOTHER:] Yes.
[MR DEVRIES:] So you consent to the orders. Two weeks after you’ve consented to the orders, no suggestion that you were bullied into it. In your trial affidavit, no suggestion that – in fact, you were trying to take credit for agreeing to those orders and then when you see [the family consultant] suddenly it’s “I’m bullied into it”?
[THE MOTHER:] With all fairness, the people that put ‑ ‑ ‑
[MR DEVRIES:] Which – which – no, sorry, I have not finished ‑ ‑ ‑?
[THE MOTHER:] I was bullied by the people who had put the affidavit together.
[MR DEVRIES:] I haven’t finished asking – I haven’t finished asking the question?
[THE MOTHER:] Sorry.
[MR DEVRIES:] Please do me the courtesy of letting me finish talking?
[THE MOTHER:] Will do.
[MR DEVRIES:] Which version is correct: the bullying or the not bullying version about the agreement?
[THE MOTHER:] The bullying version is correct. The first affidavit was prepared by the ‑ ‑ ‑
[MR DEVRIES:] So you’ve answered that question?
[THE MOTHER:] So you don’t want to hear the answer. Is that what you’re saying?
[MR DEVRIES:] You’ve answered – you’ve answered ‑ ‑ ‑?
[THE MOTHER:] I was bullied by the original team of lawyers that I was represented by. Thank you.
(Transcript 10 May 2016, p.4)
The point of the evidence before the primary judge to which we have just referred was that the mother did not wholeheartedly agree to the orders of October 2014, but did so under pressure from her lawyers. Her Honour clearly accepted that evidence, as she was entitled to do. We would agree that the use of the word “reluctantly” by the primary judge was not the most apt way to describe the mother’s approach but it does convey the finding that the mother’s agreement to the orders was qualified.
As we have said, this finding was open on the evidence and no error has been demonstrated.
This ground does not succeed.
Ground 3
Ground 3 is as follows:
3.1At 393 wherein Her Honour noted that Associate Professor [N] was not in a position to consider the family report, the learned trial judge has in the exercise of discretion:
(a)taken into account a relevant matter about which there was no evidence as would found the apparent qualification and lessening of the weight or given no weight to the expert’s unchallenged evidence
(b)provided no warning to the parties resulting in procedural unfairness.
As we have said, Associate Professor N is a consultant psychiatrist who conducted a psychiatric evaluation of the parties, including a psychosexual assessment of the father. That assessment found no evidence of disturbance of sexual object choice or any psychiatric disorder of a sexual nature such as a paraphilic disorder.
The primary judge accepted this evidence but noted that Associate Professor N “was not in a position to consider the family report which was conducted at a later time” (at [393]).
That, of course, was entirely factually correct.
Nonetheless, the father submitted that the primary judge erred by taking this matter into account as it led her to give little weight to Associate Professor N’s opinion.
It was also submitted that the primary judge erred by not providing the parties with notice of this proposed finding and giving them an opportunity to address it.
The primary judge clearly accepted Associate Professor N’s report, as she said. Consistently, there was no finding of fact that the father had any kind of psychiatric disorder relating to a disturbance of sexual object choice.
Associate Professor N’s report concerned the father’s psychiatric state. On the other hand, the family consultant’s report was a record of what the family consultant was told by the children and an expression of his opinion as to whether the children had been coached and whether their statements reflected their own experiences. Accordingly, the two reports deal with different issues and both are capable of standing together. Acceptance of one does not compel rejection of the other. As we have seen, the primary judge accepted both but was not obliged to give them the same weight.
In his report Associate Professor N referred to the evidence in the proceedings. He did not, however, refer in terms to the children’s allegations or offer any opinion as to the weight to be given to them. He did not see the children.
He could not, of course, take into account the statements that were made later.
Thus, he did not, and could not, proffer any opinion as to whether his view of the psychiatric state of the father diminished the weight to be given to the children’s statements or vice versa. As the primary judge noted:
282.In that report Associate Professor N indicated that he “could not come to a view on the veracity of the claims by the mother, or the denial by the father with regard to the allegation of sexual molestation.”…
Accordingly, to the extent that the primary judge took into account the fact that Associate Professor N’s report was written before the family consultant’s report, it was a relevant matter and the primary judge did not err by taking it into account.
A trial judge is not obliged to flag every finding of fact to the parties so they can adduce further evidence if they wish. Trials would never end if that were so. It was always open to the father to ask Associate Professor N to prepare a supplementary report, taking into account the family consultant’s report, if he considered that to be a desirable course.
For these reasons we perceive no procedural unfairness in the course followed by the primary judge.
This ground does not succeed.
Ground 5
This ground challenged the finding of the primary judge that the father’s theory that the mother had fabricated the allegations was not a credible or satisfactory one. It was submitted that this finding was against the weight of the evidence and based on two errors of fact.
It is convenient to deal first with the asserted errors.
First, the father submitted that the primary judge erred by failing to find that the mother had made up her evidence about being fearful for her safety, as a ploy to have the police remove the father from the house on 7 August 2012, because there was no objective evidence to suggest a lack of safety.
In her trial affidavit, the mother deposed:
24. I told him that [C] had told me everything. He kept asking me what I was talking about and I realised that I did not want him anywhere near my daughter so I told him not to come back to the house. I hung up on him and went back to [C]. I was concerned that the Father would come home and what he might do. I collected [D] and [C] and put them in the car and went straight to [Suburb P] Police Station. I spoke to the Police officer and told him I was planning on leaving my husband that afternoon and I was concerned for my safety. He gave me his card with the station’s direct phone number on it.
In another affidavit the mother said that when the father arrived at the house his “demeanour kept changing and would go from aggressive and angry to calm and cooperative”. She said that on 10 October 2012 the father became angry and told her that he “should have beaten me up in front of the kids on the day I called the Police”. She also said that he called her a “slut” and a “whore”. Whilst the mother was cross-examined as to the weight that could be given to her stated concerns about safety, it was also, somewhat confusingly, put to the mother that when she went to the police she was concerned for her safety but not that of the children.
It was suggested to the mother that because her first contact with the police was to attempt to have them remove the father from the house, she made up the allegations about C being abused so as to achieve her aim. The cross‑examination on this point proceeded as follows:
[MR DEVRIES:] And the reason you told him about that was because plan A had not worked. You hadn’t managed to convince my client to leave the house so you had to up the stakes and make sure that the police would come along and remove him from the house, and that’s what happened, isn’t it?
[THE MOTHER:] Absolutely not.
[MR DEVRIES:] Well, the police came after you made those allegations, didn’t they?
[THE MOTHER:] Are you implying that they would not have attended the situation without that - - -
[MR DEVRIES:] I’m not going to answer your questions?
[THE MOTHER:] Okay.
[MR DEVRIES:] And - - -?
[THE MOTHER:] Then no, I did not make that up.
[MR DEVRIES:] All right. And you wanted the police to attend on that occasion, didn’t you?
[THE MOTHER:] I did, yes.
[MR DEVRIES:] Yes. And you wanted to make sure that either my client left or you could leave?
[THE MOTHER:] That’s right.
[MR DEVRIES:] Yes, because plan A hadn’t worked; your threats to go to the police; your telling the police you were concerned about your personal safety hadn’t worked or hadn’t convinced my client to leave, so you had to up the stakes; that’s correct, isn’t it?
[THE MOTHER:] No, that’s not.
(Transcript 9 May 2016, pp.14-15)
We do not see why the primary judge was obliged to reject this evidence. In any event it is not an error of fact for her Honour to have accepted it, to the extent that it was accepted.
Further, we do not accept the implicit assumption in the father’s submissions that family violence can only be established where there is objective evidence of that violence, whatever the phrase “objective evidence” may mean. It ignores the reality that family violence is often private and is not witnessed by others or the consequences, such as injuries, reported or seen. Of course, if there is corroborating evidence available there is less likely to be a dispute as to the existence of the violence but it is not a precondition to establishing it.
The second error is said to be the primary judge’s finding that the mother reluctantly agreed to the orders in the Federal Circuit Court that the children spend unsupervised time with the father because she acceded to the orders on the advice of her lawyer.
For the reasons we have set out earlier, it was open to the primary judge to accept the mother’s evidence. Once again, the acceptance of that evidence can hardly be described as a factual error.
The father submitted that the primary judge erred in giving no or insufficient weight to the following:
·the disclosures made by C to persons other than the mother were only made after the safety talks commenced;
·the primary judge’s finding that the mother, as primary caregiver, had a major influence over the children;
·the mother’s motive of revenge, which it was submitted was supported by the following circumstances:
othere had been difficulty in the relationship between the mother and the father and the mother had asked the father to leave (we note that in cross-examination the mother accepted the first proposition but denied that she had asked him to leave);
oon 7 August 2010 the mother left C with the father for 10 minutes;
oboth parents called the police on 7 August 2012 (said to contra-indicate the father abusing C);
o
the finding that the mother was fearful of her safety on
7 August 2012 (this would seem not consistent with the previous submissions of the father suggesting that this finding was erroneous);
othe mother inaccurately told the police she attended to all of C’s needs;
othe mother permitted the children to spend unsupervised time with the father, including a holiday in May 2013;
othe mother’s concerns about finances (in an email and in the recorded conversations referred to earlier);
oafter the father agreed to give the mother funds she withdrew an application for an Intervention Order.
·in the recorded conversations of February 2014, despite the mother’s total loss of control, no mention is made by her of the allegations of sexual abuse;
·on 20 November 2014 B initially only told the Department officers that his father had been “naughty”. It was only later, after speaking to his mother, that he returned to make his more detailed statements;
·in coming to the finding at [337] that “[t]here is no evidence of any advantage to be gained by the mother as a result of the separation and in fact she was clearly financially disadvantaged as a result” the primary judge had “misapprehended and/or not given weight to”:
othe mother attending the police station twice on 7 August 2012 but only mentioning the allegations on the second occasion;
owhen the father placed limitations on the mother’s finances his time with the children was reduced, but was restored when he increased the payments;
othe findings that the mother’s financial ruin had been caused by the father, which formed a basis for the mother’s negative attitude and antagonism towards him.
It was submitted that “if the above matters had been accorded weight and findings made, when combined with the identified factual errors as set out in ground 2 and 5.4.4, no finding of risks may have been made” (emphasis added). Ground 5.4.4 challenged the primary judge’s finding that the mother had been in fear for her safety on 7 August 2012.
First, we point out that the primary judge did indeed make findings on these issues or, at the least, referred to the evidence as to them. It is difficult therefore to conclude that they were not taken into account.
Secondly, a trial judge is not obliged to make findings about every fact in issue or expressly refer in the reasons to every piece of evidence: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62].
Thirdly, this ground is, in reality, an invitation for this Court to substitute its own opinion for that of the primary judge, rather than a demonstration of error. As we have explained, the primary judge was faced with complex issues and each party could call in aid facts that supported his or her contentions. The task ultimately set by the primary judge was to consider, in light of the competing facts and contentions, whether the magnitude of the risk of unacceptable harm to the children was such that the father should only spend time with the children in a supervised setting. This very much involved the exercise of discretion, evaluating and weighing the various considerations and looking to the best interests of the children in the future.
Here, the primary judge was well aware of and took into account the seriousness of the allegations, as indeed she was obliged to do, having accepted that they represented the children’s own experiences.
The magnitude of the risk is also very much a matter of fact and degree. Further, the risk of an event occurring in the future may be low, but the consequences that follow may be extremely severe. In that case, more weight may be given to the risk than if the likely consequences were slight or moderate.
However, it is also clear that the primary judge took into account the magnitude of the risk. At the least, that can be gleaned from the primary judge’s indication that the supervision of the father should not be permanent but can be revisited if he can demonstrate a change in circumstances (at [441] – [442]) and from her Honour’s refusal to make orders that either the children or the father attend counselling to address the alleged abuse (at [443] – [446]).
The primary judge could have found, but did not find, that the magnitude of the risk of harm was such that the children should never see the father at all.
In short, we consider that the findings and orders made by the primary judge were open to her on the evidence. In Allesch v Maunz (2000) 203 CLR 172 at 180, Gaudron, McHugh, Gummow and Hayne JJ said:
23.For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error…
We are not satisfied that there is any such error. The fact that a different judge may have arrived at a different result does not establish error.
This ground has not been established.
Ground 6
Under this ground the father challenged the findings of the primary judge as to the credibility of the mother’s evidence and submitted that it was impossible to ascertain from the Reasons whether the submissions made by the father on this issue were considered or given any weight at all.
The focus of the ground was on the following paragraph of the primary judge’s Reasons, which states:
56.Counsel for the father further submitted that the mother was an unreliable witness: that she gave “editorialising non-responsive answers” to questions and would say “whatever it took” to promote her case. In support of this proposition he pointed to the following as being deliberate attempts to misrepresent the evidence:
· That when it was put to the mother in cross-examination that she had provided the father with an application for a contact centre and told him if he did not sign it he would not see the children, she denied the same until confronted with the email by which that application was provided (Exhibit D);
· D’s non-attendance to spend time with his father was, according to the mother, a matter agreed between the parties and the mother produced text messages that she said evidenced such agreement, however the content of those messages could not be said to demonstrate any kind of agreement between the parties to that end; and
· The various differing accounts of prior events contained in affidavit material sworn by her previously in the proceedings.
Thus, her Honour noted the three submissions made by the father.
As to the first bullet point, it is correct to say that there was evidence before her Honour, in the form of an email sent by the mother to the father on 27 July 2013, which stated:
…
Since you have stopped making payments including my mum’s house you can only see the kids at the contact centre.
You thought I wasn’t serious when I said if my mum loses her house!! This is only the start and by the time I am finished you will probably end up in jail!!
Application is attached. If you don’t complete the application I will cease visits until you do and don’t bother coming to the house anymore !!!!!!!!!
The primary judge set out this email in full in her Reasons (at [110]).
In cross-examination, the mother accepted that on 11 July 2013 she had received a letter from the father’s solicitors which raised both financial issues and the time the father should spend with the children. The cross-examination then continued:
[MR DEVRIES:] And you responded by sending an application for the family to be involved at a contact centre, didn’t you?
[THE MOTHER:] No, I didn’t respond by doing that. No. In fact, I didn’t respond at all.
[MR DEVRIES:] So this is what the husband says in his affidavit at page – at paragraphs 18 and 19 – this is the trial affidavit, your Honour – referring to that correspondence, 18:
No response was received by my solicitors from the wife.
19.
However, several days after receiving the said correspondence the wife did email me an application form for a supervised contact centre and stated in the covering email that unless I completed the forms I would –
and it quotes you precisely as saying –
never see my kids.
?
[THE MOTHER:] I don’t recall ever sending a cover letter like that. Can you present that to me?
[MR DEVRIES:] Sorry?
[THE MOTHER:] Have you got that cover letter to present to me?
[MR DEVRIES:] In his affidavit, which is not ‑ ‑ ‑?
[THE MOTHER:] Well, no. I’m denying it.
[MR DEVRIES:] In his affidavit, which was not challenged by anyone in this court, he said:
However, several days after receiving the said correspondence the wife did email me an application form for a supervised contact centre and stated in the covering email that unless I completed the form I would never see my kids.
[MR DEVRIES:] Now, did you send him a supervised contact centre application form?
[THE MOTHER:] I did indeed, yes.
[MR DEVRIES:] By email?
[THE MOTHER:] Yes.
[MR DEVRIES:] And I put to you that you told him if he didn’t fill it in he would never see the kids again?
[THE MOTHER:] Absolutely not, and it’s completely inconsistent with the behaviour prior to that.
[MR DEVRIES:] Sorry?
[THE MOTHER:] I said, “Absolutely not”, and it’s completely inconsistent with my behaviour prior to that.
[MR DEVRIES:] What a good submission. Perhaps if you just answer the questions rather than make submissions?
[THE MOTHER:] Sorry. Like I said, it’s my chance to talk for the first time in a long time so I do have to hold myself back a little bit.
[MR DEVRIES:] So you’ve been waiting for four years for this occasion, and you’re going to use every ‑ ‑ ‑?
[THE MOTHER:] No. No. I’m not trying to tell you how to do your job, I’m just ‑ ‑ ‑
[MR DEVRIES:] No. You said to the ‑ ‑ ‑
HER HONOUR: Look, would you like to move on with another question, please, Mr Devries.
(Transcript 9 May 2016, pp.33-34)
The cross-examiner then moved on and did not return to this topic. The email to which we have just referred was not shown to the mother.
It is apparent that the mother’s answers to all but the first question were literally true if the questions were, in fact, intended to focus on the above email. The contents of the email itself were never put in terms to the mother but only the father’s summary of it. The email did not state that the father would never see the children again.
It is not surprising, therefore, that this issue did not loom large in the primary judge’s consideration of the matter.
As to the second and third bullet points, we were not taken to either the text messages or the asserted inconsistencies so we are unable to gauge their significance, if any.
In any event, as these submissions were expressly noted by the primary judge, we would be slow to infer that they were ignored.
It is to be noted that the primary judge also recorded submissions made by the mother as to the credibility of the father’s evidence. The primary judge devoted 14 paragraphs to a consideration of the father’s evidence and identified some of the difficulties with it.
It is to be recalled also that the children made undisputed statements to the police, Departmental workers and the family consultant. The primary judge did not reject the father’s assertion that these statements were the product of being coached by the mother because she accepted the mother’s denials that it was so; rather, she accepted the opinion of the family consultant that the children’s statements did not bear the hallmarks of coaching. Further, even if the mother was found to be an unreliable witness, the children’s statements to the third parties would still require serious consideration.
Looked at in that light, the credibility of the mother’s evidence was not a significant factor in the determination of the proceedings. The issue of coaching was resolved by the acceptance of the family consultant’s evidence. The issue of influence from the mother via the “safety talks” in fact arose from the mother’s evidence and statements she had made to others.
Whilst the primary judge accepted the evidence of the mother as to what C and B told her in 2014, that evidence was clearly corroborated by what the children told the Department and the family consultant. There was no blanket acceptance of all of the mother’s evidence. For example, no finding was made about the 2010 allegations and D’s allegations were not accepted as being reasonably based.
Thus, we are satisfied not only that no error was established, but also that even if there was an error, it did not have any material significance.
As to the father’s challenge to the adequacy of the primary judge’s reasons, the obligations on judges to give adequate reasons are well known: Bennett and Bennett (1991) FLC 92-191 at 78,266. The reasons must enable the parties to understand the basis of the decision and the extent to which their arguments have been understood and accepted: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59]. The primary judge’s reasoning process on this aspect of the matter is apparent and the reasons are therefore not inadequate.
This ground has not been established.
It follows that the appeal will be dismissed.
Costs
The mother sought an order that the father pay her costs if the appeal was ultimately dismissed. The Independent Children’s Lawyer did not seek a costs order.
The father resisted the mother’s application for costs on the basis that there was no evidence as to his ability to meet a costs order.
The father did not attempt to provide any indication of his financial position and his reluctance to declare that position to the primary judge was marked.
In these circumstances, no weight can be accorded to the father’s submissions.
The appeal was wholly unsuccessful. The appropriate order is that the father pay the mother’s costs of the appeal.
I certify that the preceding two hundred and two (202) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Kent & Austin JJ) delivered on 19 July 2017.
Legal associate:
Date: 19 July 2017
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