Langmeil and Grange (No. 4)
[2011] FamCA 605
•3 August 2011
FAMILY COURT OF AUSTRALIA
| LANGMEIL & GRANGE (NO. 4) | [2011] FamCA 605 |
| FAMILY LAW - CHILDREN – Magellan proceedings – sole parental responsibility – with whom a child lives – best interests of child – allegations of child sexual abuse – meaning of unacceptable risk – relevant standard of proof - sexual abuse allegations unsubstantiated – order made for children to remain living with the father and for supervised time with the mother. |
| Family Law Act 1975 (Cth) Part VII Family Law Rules 2004 (Cth) Chapter 15 Evidence Act 1995 (Cth) s 140 |
| Cowley & Mendoza [2010] FamCA 597 M v M (1988) 166 CLR 69 MRR v GR (2010) 263 ALR 368 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 |
| APPLICANT: | Ms Langmeil |
| RESPONDENT: | Mr Grange |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 365 | of | 2008 |
| DATE DELIVERED: | 3 August 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Stevenson J |
| HEARING DATE: | 9, 10, 11, 12, 13 May 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Ms Langmeil appeared on her own behalf |
| COUNSEL FOR THE RESPONDENT: | Mr Richards |
| SOLICITOR FOR THE RESPONDENT: | AK Reeves & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Tredrea |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Stephen |
Orders
That all existing parenting orders in relation to the children:
M GRANGE born on … February 2004
W GRANGE born on … June 2005
L GRANGE born on … November 2006
(‘the children’) are discharged.
That the father have sole parental responsibility for the children.
That the children live with the father.
That the children spend time with the mother:
4.1once per week at a contact centre for the maximum period permitted by the manager of that facility or
4.2from 10:00am until 2:00pm each Saturday under the supervision of a person approved by the father
That all outstanding applications and responses are dismissed.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.
IT IS NOTED that publication of this judgment under the pseudonym Langmeil & Grange is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: ADC 365 of 2008
| Ms Langmeil |
Applicant
And
| Mr Grange |
Respondent
REASONS FOR JUDGMENT
the proceedings
Mr Grange (“the father”) and Ms Langmeil (“the mother”) are the parents of three children:
M GRANGE, born in February 2004 (7),
W GRANGE, born in June 2005 (6),
L GRANGE, born in November 2006 (4).
The children have been the subject of litigation between their parents since February 2008. Police and child protection authorities have been involved with the family since about November 2007.
The mother alleged that the father has sexually abused and neglected the children and continues to do so. She made allegations of sexual abuse in an earlier trial before Bell J in September/October 2008.
By the end of this trial it was clear that the mother holds an unshakeable belief that the children have been victims of sexual abuse and neglect at the hands of the father. In written submissions which she submitted at the close of the trial she stated: “The mother believes, based on the statements and reports of the children, that they have been sexually abused by the father as well as psychologically abused, medically neglected and threatened with the death of their mother if they talk about the abuse.”
In an application filed on 20 December 2010 the mother sought these orders:
1.The mother seeks the immediate return of her three children [M Grange] (… 02/2004), [W Grange] (…06/2005) and [L Grange] (…11/2005) to her full time permanent care until they are each 18 years of age.
2.The mother seeks a full, independent investigation into the handling of the reports of child sexual abuse by Families SA, the SA Police and the Family Court.
3.The mother seeks appropriate counselling for her three children following CPS forensic interviews of [W and L Grange] and the right to take her children to the doctor if their bottoms are cut and they have internal bleeding.
4.The mother seeks the rights given to her children under International Law to have reports of child sexual abuse properly investigated and for their protection against the risk of further sexual abuse. These Children’s Rights as set out in the UN Convention of the Rights of the Child (1989) which Australia has ratified are also consistent with the Children’s Protection Act (1993) SA, the policies and procedures of Families SA, the Commonwealth of Australia Family Law Act (1975) and Mandatory Reporting LAW.
5.The mother seeks URGENT Orders as specified above, given the seriousness of the risk to her three children as set out in the Form 4 and the Affidavit.
The mother’s Outline of Case and Summary of Argument suggested that she sought orders for sole parental responsibility and that the children live with her. Her proposals for the children to spend time with their father were unclear but appeared to be some form of supervised regime “following his assessment by an appropriately qualified person”. The suggestion seemed to be that the children should spend time with the father at a contact centre following such an assessment.
In his response filed on 28 January 2011 the father sought the following orders:
1.That the mother’s application is dismissed.
2.That the mother’s time with the children [M Grange] DOB …2/2004, [W Grange] DOB …6/05 and [L Grange] DOB …11/06 be supervised at a Childrens Contact Centre on one occasion per month or otherwise suspended until such time as the mother has successfully undergone counselling with a psychologist or psychiatrist as appointed by this Honourable Court and such psychologist or psychiatrist is presented with all documents that have been filed in this Court and a Report is submitted to this Honourable Court on the outcome of such counselling.
3.That the mother pay the father’s costs.
4.Such further or other Orders that this Honourable Court deems fit.
The Independent Children’s Lawyer (“the ICL”) submitted that there should be a finding that the father did not sexually abuse the children. He proposed that the children continue to live with the father and spend supervised time with the mother.
Background
This background material is largely extracted from the reasons for judgment of the Full Court, dated 5 February 2010, and from chronologies in the Case Outlines of each of the parties. If relevant matters of history are controversial, I briefly indicate the competing positions of the parties.
The father was born in 1967 and is now 44 years old. He is a school teacher who lives with his parents.
The mother was born in 1973 and is now 38 years old. She graduated in a behavioural science discipline in 1995 and in another discipline in 2000. She has taught at tertiary level for several years and is currently completing a PhD.
The parties met in 1992 and began to live together in 1993. They married in January 2003 and separated on 21 January 2008.
In 2006 the mother became concerned about the conduct of the paternal grandparents, which she interpreted as “sexual behaviour and comments to the children”. In particular she claimed to be concerned about the way the paternal grandfather held M, who was then about eighteen months of age.
Police and Child Protection Services (“CPS”) first became involved with the family in November 2007, when the mother reported statements which M allegedly made about the paternal grandfather. M was then three and a half years old.
M and the mother first saw CPS officers on 14 January 2008. He was “forensically interviewed” on 15 January 2008, 21 January 2008 and 1 February 2008. He made no complaint of sexual abuse during any of these interviews.
After the second interview on 21 January 2008 the father moved out of the home, at the request of police and/or CPS officers. They asked him to leave to eliminate any prospect of contamination of statements which the children may make about the paternal grandfather. The mother very quickly became convinced that the father, rather than the paternal grandfather, was the perpetrator of sexual abuse. She alleged that this belief was based on the children’s behaviour after the father left the home.
In February 2008 the mother commenced litigation. On 11 February 2008 she obtained interim orders that the children live with her and spend no time with the father. After the release of a Family Report, further interim orders were made on 3 June 2008. These orders provided that the children spend time with the father under the supervision of two of his friends. The paternal grandparents were not permitted to be present when the children spent time with the father.
On the next day, 4 June 2008, the mother suggested a reconciliation to the father. The parties did not reconcile and the children continued to spend time with the father under supervision.
In July/August 2008 the mother installed surveillance cameras in the former matrimonial home. She caused selected footage from the surveillance tapes to be placed on two DVDs. The mother regards the children’s behaviour as seen on these DVDs as conclusive, perhaps incontrovertible, evidence that the father sexually abused M and W.
In a document entitled “Case Outline Document of the Mother”, she wrote that she installed these surveillance cameras because the father threatened to organise her murder by a “hitman” and she feared for the safety of herself and the children. The judgment of the Full Court noted, however, that she acknowledged that “her intention was also to obtain footage of the behaviours of the children”.
The first trial took place before Bell J on 29 and 30 September and 1 October 2008. The parents and the ICL were all represented by counsel. The mother then had the benefit of representation by both senior and junior counsel.
The orders of Bell J provided, essentially, that the children live with the father and spend supervised time with the mother for no less than four hours per week. The supervisor was to be a person agreed by the parties or otherwise approved by the ICL. There was an order, pursuant to section 65L, that a Family Consultant view the children’s time with the mother once per month and furnish a report to the court within six months. There was also an order that the mother undertake psychiatric counselling to address “her near-delusional beliefs concerning what she perceives to be the father’s sexual abuse of the children”.
Pursuant to this order the mother began to see a psychiatrist, Dr G, in November 2008. In her Case Outline the mother wrote that she has provided Dr G with “all relevant court material including security footage of the sexualised behaviour, the reports of Ms [D] and Ms [C], Bell J’s reasons and orders and other relevant affidavit material”.
“Ms [D]” was the Family Consultant who prepared reports and gave oral evidence in the trial before Bell J. “Ms [C]” was the Family Consultant who observed the children’s time with the mother and prepared a report in accordance with the orders of 17 November 2008. It was unclear what documents the mother considered to be “all relevant court material”. Similarly, the identity of “other relevant affidavit material” remained unclear.
On about 10 December 2008 the father began to supervise the children’s time with the mother. She made a report to Families SA when she saw redness in L’s genital area as her nappy was changed. The arrangement for the father to act as supervisor broke down after four or five weeks, and the mother then began to see the children at a contact centre. The father claimed that the mother accused him of sexual abuse during this period.
Between 17 December 2008 and 25 May 2009 the children spent time with the mother in the presence of Family Consultant Ms C on six occasions. She prepared a report dated 11 September 2009.
On 11 December 2008 the mother filed an appeal against the orders of Bell J. The hearing of the appeal was delayed until 7 October 2009, apparently because the mother’s then legal representatives were not ready to proceed at an earlier listing. The Full Court delivered judgment on 5 February 2010 and allowed the appeal only in relation to the allocation of parental responsibility. Their Honours ordered that “the father have sole parental responsibility for the children”.
On 20 January 2010 Burr J ordered that, pending the outcome of the appeal, the children spend four hours per week with the mother under the supervision of three named people. These orders required the father or his agent to effect handovers at the mother’s home.
In May 2010 the mother filed an application for special leave to appeal to the High Court of Australia. This application was refused in September 2010.
On 28 March 2010 the mother and a supervisor took the children to a hospital, where W and L were medically examined. The hospital notes annexed to the father’s affidavit stated that the presenting problem in relation to W was that he had “been holding his bottom and genitalia today”. No abnormality was discovered after a physical examination of W.
The hospital notes in relation to L stated that the “presenting problem was ‘head other currently under court order child collected from father by mother who states the child has altered mental state’”. The only abnormality discovered on examination of L was “a small abrasion on her forehead”. The father explained that L had fallen over at childcare three days earlier and sustained bruising and a bump on her head.
In her Outline of Case the mother wrote that L “arrived at [her] home with a large bruise and lump on her head” on 28 March 2010. As noted, the hospital notes referred only to “a small abrasion on her forehead”. There were a number of similar instances in the evidence, when the mother’s statements well exceeded descriptions contained in independent documentation.
On 6 April 2010 the mother filed an application for orders to remove the ICL and for sole parental responsibility. This application was dismissed. On 16 June 2010 the mother filed another application for sole parental responsibility. This application was also dismissed.
On 29 August 2010 the children spent time with the mother under the supervision of her then partner, Mr Y. The mother alleged that she and Mr Y observed three cuts near W’s anus and bleeding when he used the toilet. The mother and Mr Y took W to a police station and he was medically examined by Dr CA. In relation to these events there was much evidence to which I refer below in these reasons.
On 5 October 2010 the mother filed an application seeking that she have sole parental responsibility and that the father undergo an assessment by an independent psychiatrist with expertise in the field of child sexual abuse. She sought interim orders that the children spend unsupervised time with her and that she be at liberty to seek medical treatment for them. This application was dismissed on 20 October 2010 and the mother was restrained from filing any further application without the leave of a Judge.
On 7 November 2010 the mother failed to return the children to the father after another visit supervised by Mr Y. The mother alleged that W stated that the father had sexually abused him and, with Mr Y, she took him to H Police Station. I will refer below in these reasons to the involvement of police officers, Families SA workers and Emeritus Professor X in these events.
The mother retained the children until a recovery order was issued on 9 November 2010. She still refused to return the children and the recovery order was executed by police officers on 10 November 2010. I refer below to erroneous advice given to the mother by officers of Families SA., to the effect that she should retain the children despite the existence of court orders. The mother was made fully aware that this advice was incorrect during the hearing of the application for a recovery order on 9 November 2010.
On 9 November 2010 orders for the children to spend time with the mother were suspended. The order by which Mr Y was approved to act as supervisor was also suspended.
On 17 November 2010 a psychiatrist, Dr AS, attended the mother’s home and carried out an assessment of her mental state at the behest of officers of Families SA. I refer below to the opinions of Dr AS and another psychiatrist, Dr B, who assessed the mother in 2008.
Approach To These Proceedings
In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the children who are the subject of the proceedings. Part VII of the Family Law Act sets out a number of mandatory considerations which prescribe the pathway to that decision.
Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. Section 60CC(4) requires the court to consider also the extent to which each of the child’s parents have fulfilled, or failed to fulfil his or her responsibilities as a parent.
The court must have regard to the objects of Part VII, as set out in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child’s right to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
“[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”…
In Cowley & Mendoza [2010] FamCA 597 Murphy J set out a “summary of principles”, drawing together the relevant legislation, the decision of the Full Court in Goode and Goode (2006) FLC 93-286 and the judgment of the High Court in MRR v GR. I extend my gratitude to my learned colleague for this analysis, which has figured heavily in the approach which I now set out to my determination of these proceedings.
When a court makes or contemplates making a parenting order, it must:
·apply the presumption of equal shared parental responsibility
·determine whether there is abuse of a child or family violence, which means that the presumption does not apply
·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility
·if the presumption applies:
¨ determine whether it is in the child’s best interests for there to be an order for equal time with each parent
¨ make findings as to the matters set out in section 65DAA(5) which are:
Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
¨ as a result of this enquiry, make findings as to whether an equal time order is reasonably practicable
¨ if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order
·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests
A leading decision on the approach to allegations of sexual abuse of children is that of the High Court of Australia in M v M (1988) 166 CLR 69. Their Honours said (at page 76):
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
and at page 75:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
In M v M the High Court identified the relevant standard of proof as (at pp76-77):
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:
The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:
140 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
The High Court in M v M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):
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 assess 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.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
I would respectfully observe that this series of questions is a useful, practical tool in the determination of the issue of “unacceptable risk”.
The Evidence and Witnesses
On 4 March 2011 Dawe J made directions for the filing of affidavits and granted the mother leave to issue subpoenas to give evidence to Mr Y, Detective M, Constable D and Detective H. The mother was unable to effect service of a subpoena upon Mr Y. Her Honour directed, inter alia, that the parties file and serve affidavits of evidence in chief of witnesses and that their contents were to be limited to the issues as identified on that day. Such affidavits were to be “on the basis of evidence and as to facts observed and relevant matters to be determined and not in relation to opinion, submission or comment”. A good deal of the material in the mother’s affidavit of evidence-in-chief clearly fell into the category of “opinion, submission or comment”.
Notwithstanding these directions, the mother annexed to her affidavit sworn on 18 April 2011 a number of reports and other documents. Counsel for the father and the ICL took objection to a number of these annexures but ultimately consented to the admission of several of these documents, on the basis that the authors would be available for cross-examination.
On 28 April 2011 Dawe J considered the admissibility of the annexures to the affidavits of the mother and the father sworn on 28 April and 21 April 2011 respectively. Certain of these documents were admitted by consent, with that agreement being conveyed either to Dawe J or to me at the start of the trial.
Documents contained in the following annexures to the mother’s affidavit were admitted by consent:
· LL3, LL4, LL14: affidavit and report of Dr CA, who was made available for cross-examination
· LL5: police report dated 7 November 2010
· LL7: letter dated 18 November 2010 from the Chief Executive Officer of Families SA
· LL9: reports of Dr B, psychiatrist, dated 3 June 2008 and 18 August 2008 and report of Dr R, psychologist, dated 17 August 2008
· LL11: medical records relating to the children for the period 2008 to 2010
· LL12: one page from Families SA policy document
· LL13: notes of SA Health referring to an assessment of the mother by Dr AS, who was made available for cross-examination
· LL15: affidavit of Mr I, a supervisor of some of the children’s time with the mother, who was made available for cross-examination
· LL17: letter dated 3 February 2011 from the Minister for Families and Communities
· LL18: correspondence dated 5 January 2011, 3 September 2010 and 9 February 2010 concerning the mother’s official complaints about certain police officers
· LL20: letter dated 5 January 2011 to the father’s solicitor from the mother’s former partner Mr Y
· LL23: note dated 7 November 2010 alleged by the mother to have been written by M and collection of photographs taken between 2008 and 2010
· LL24: material allegedly placed in the mother’s mailbox
Although counsel for the father and the ICL consented to the admission of their letters, the mother subpoenaed the CEO of Families SA and the Minister for Families and Communities to give evidence. She told Dawe J that she required the CEO of Families SA “to explain the position of Families SA, which has changed dramatically since last year”. During the trial the mother intimated that she wished to call the Minister for a similar purpose.
I could not see how I would be assisted by evidence from the CEO of Families SA or the Minister, neither of whom could reasonably be expected to have any firsthand knowledge of these children. In any event, the subpoenas to give evidence were served by mail and I could not be satisfied that the recipients had notice of the mother’s requirement for them give evidence.
Similarly, the mother wished to subpoena Deputy Commissioner P to give evidence. She told Dawe J that she required him to give evidence because: “he is the officer who informed me that my five year old’s cut and bleeding bottom was constipation, without a medical assessment at hospital. I need to know why my five year old didn’t get the medical treatment the doctor said he needed. “The children have been denied…their basic human rights”. The mother was unable to effect service of this subpoena upon Deputy Commissioner P.
Dawe J left the admissibility of a number of annexures to the mother’s affidavit for my determination. In fact, during the trial no further mention was made of the following:
· LL2: police report dated 29 August 2010
· LL19: the mother’s submissions in support of her appeal against the orders of 17 November 2008
· LL21: bill of the father’s costs awarded against the mother by the Full Court; correspondence between the mother and the Legal Services Commission and the mother’s complaint against the ICL to the Solicitors Professional Conduct Authority of South Australia
· LL22: correspondence between the mother and the Legal Services Commission; the mother and lawyers Mr AA and Mr DD and a letter from Dr G to Mr AA.
I saw no reason to reject the police report dated 29 August 2010, which I regard as a business record. Documents of this nature are sometimes known as “COPS entries” and are simply records of events involving police officers. These documents are not prepared for the purpose of litigation in contrast, for example, with witness statements. Otherwise, the material in annexures LL19, LL21 and LL22 was of no relevance or assistance in the proceedings.
Annexure LL6 was problematic because the identity of the authors of some of these documents could not be determined. Counsel for the father told Dawe J that he objected to these documents, unless their authors were made available for cross-examination. Her Honour spelled out to the mother, in the clearest possible terms, that these documents would not be admitted unless she produced the authors for cross examination. The mother did not do so, thus these documents could not be admitted into evidence.
Annexure LL10 consisted of notes made by workers at a contact centre where the children saw the mother in 2009. Counsel for the father told Dawe J that he would advise in writing whether he opposed the admission of these documents. I heard nothing more on this subject so these documents were admitted, with due regard to the fact that their contents were entirely untested.
The mother subpoenaed the following witnesses to give evidence:
· Detective M, who was involved in the 29 August 2010 allegation of sexual abuse of W
· Probationary Constable D, who spoke to W at H Police Station on 7 November 2010
· Detective H, who was involved in the 7 November 2010 allegation of sexual abuse of W
Counsel for the father and the ICL objected strongly to the admission of an affidavit of Emeritus Professor X and reports and correspondence from Dr G. For reasons which I will indicate I rejected the letters, reports and any oral evidence from Dr G. I admitted the affidavit of Emeritus Professor X with the exception of paragraphs 29 and 30, which were summaries in indirect speech of an alleged conversation with Mr Y on 7 November 2010.
I ruled that Emeritus Professor X could give evidence only as her observations and interpretation of the behaviour of the children and the mother on the DVDs. She was entitled to give evidence of her conversation with M on 7 November 2010. I stated that any evidence which went beyond those limits would be ignored.
The affidavit of Emeritus Professor X contained unequivocal statements, for example:
32. I did not witness at any time in the videos that she made any suggestion to the children that their father was sexually abusing them. To the contrary, she consistently assured the children that people are not supposed to do what the children were exhibiting and that daddy only did nice things with them.
33. Despite being a [behavioural science professional], the mother did not ask the obvious questions about what dad was doing to them; to the contrary she was in denial that daddy could be harming them.
34. In the videos, the children consistently and frequently claimed that their father (and no-one else) was involved in inappropriate sexual behaviour that involved their genitals and anuses. I can report that in my experience, research and training in child development and child sexual abuse, the children’s language is highly consistent with the language of children who are attempting to disclose experiences of child sexual abuse.
35. I can report that in my experience, study and training in child development and child sexual abuse, these children are exhibiting behaviours that are highly consistent with children who have been victimised by instances of child sexual abuse and as such, will continue to develop long term and serious maladaptive responses unless they are protected from the person that is the cause the child sexual abuse and receive appropriate treatment. These children are consistently identifying that person as being the father.
It was very clear that the mother placed great weight on the opinions of Emeritus Professor X. I considered that it could well be useful to explore her role in the development of the mother’s unshakeable belief that the children are victims of sexual abuse by the father. I also considered that a rigorous testing of her opinions was completely appropriate.
It seemed to me that legitimate avenues for the testing of the opinions contained in the affidavit of Emeritus Professor X would include, but not be limited to, her prior involvement with the mother; her knowledge of the history of this litigation and the involvement of the police, CPS and Families SA. The mother took issue when counsel for the father put questions of this nature in cross-examination, claiming that he was “badgering” her witness. In fact, counsel for both the father and the ICL did nothing more than fulfil their professional obligations in an entirely appropriate manner.
I made it clear that I had not decided that Emeritus Professor X should be treated as an “expert” for the purposes of the Family Law Rules. I indicated that I would determine in these reasons whether her evidence should be treated as “expert” and what overall weight should attach to her observations and opinions. For reasons which I now indicate, I determine that the evidence of Emeritus Professor X should not be treated as that of an “expert”. I further determine that her evidence was unreliable in significant aspects and should be treated with substantial caution .
Firstly it is instructive to trace the history of Emeritus Professor X’s involvement with the mother, the allegations of sexual abuse, Families SA and these proceedings. In her affidavit she said that she has known the mother professionally for several years, as a staff member and currently a PhD student at a University. She said that the mother asked her to view the DVDs in 2008. She spent approximately one and a half hours watching the DVDs and made notes.
The affidavit of Emeritus Professor X continued that she visited the mother’s home “on a work related matter” on 7 November 2010. She had been to the home on no other occasion and met the children for the first time on that day.
The affidavit continued that, when she arrived at the home, the two younger children were playing on a waterslide in the garden and M was sitting alone on a sofa in the lounge room. She deposed: “[M] had written, ‘I don’t like living at Dad’s. I want to live with Mum’”. She congratulated him on his neat writing and asked why he did not like living with his father. She said: “He appeared to panic, said ‘I can’t say because Mum will be killed’, whereupon he ran out of the house, ‘remaining hidden in the garden for the next half hour’”.
A more fulsome account of the involvement of Emeritus Professor X with the mother, the allegations of sexual abuse, Families SA and this litigation emerged from her oral evidence. In 2008 the mother sought advice from a Dr U, who handed the DVDs to Emeritus Professor X. She then contacted the mother and referred her to a politician who was conducting an investigation into Families SA. She first watched the DVDs in 2008 and asked to see this material again “later last year when these issues arose”.
In oral evidence Emeritus Professor X said that she first met the children on 7 November 2010 when she attended the mother’s home to provide her with material “about the treatment of child abuse cases overseas”. Presumably the mother sought this reading matter in connection with her PhD topic. She said that she had no contact with the mother after she was given the DVDs in 2008 until late 2010.
The oral evidence of Emeritus Professor X continued that she had twice attended court for events in this litigation. On one of these occasions she offered to act as supervisor of the children’s time with the mother. This offer was rejected by the ICL. The mother gave her a copy of at least one of the Family Reports of Ms D. She was told by the mother that the original allegations of sexual abuse were made against the paternal grandfather. She said “I understood that the grandfather had behaved sexually and inappropriately with one of the children; that the grandmother had unusual ideas about the premature introduction of sexual behaviour to the children and that the couple had gone to counselling because this had a bad effect on the marriage”.
Emeritus Professor X said that she was invited to meet with the CEO of Families SA at a politician’s office. She attended two or three meetings, once or twice when the mother was present. The first of these meetings took place in January 2011. At one of these meetings she provided a report “in roughly the same terms” as the affidavit which she prepared for use in these proceedings. Her intention was to cause government officials to review the situation of the children the subject of these proceedings.
Emeritus Professor X spoke to a journalist when she attended a court event in these proceedings. She said that the journalist was also present in court and that he later contacted her. This journalist published an article in a newspaper in January 2011. He purported to quote Emeritus Professor X and wrote details which could only relate to the present case.
[extract of newspaper article omitted]
Emeritus Professor X denied that she referred to the mother specifically when she spoke to the journalist. She said that she had not read the article but had heard that the journalist misquoted her. She did not identify how she was misquoted in the article.
Chapter 15 of Family Law Rules makes specific provisions in relation to expert evidence. Rule 15.59 sets out the duties to the court of an expert witness and provides:
(1) An expert witness has a duty to help the court with matters that are within the expert witness’s knowledge and capability.
(2) The expert witness’s duty to the court prevails over the obligation of the expert witness to the person instructing, or paying the fees and expenses of, the expert witness.
(3) The expert witness has a duty to:
(a) give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witness’s knowledge and capability;
(b) conduct the expert witness’s functions in a timely way;
(c) avoid acting on an instruction or request to withhold or avoid agreement when attending a conference of experts;
(d) consider all material facts, including those that may detract from the expert witness’s opinion;
(e) tell the court:
(i) if a particular question or issue falls outside the expert witness’s expertise; and
(ii) if the expert witness believes that the report prepared by the expert witness:
(A) is based on incomplete research or inaccurate or incomplete information; or
(B) is incomplete or may be inaccurate, for any reason; and
(f) produce a written report that complies with rules 15.62 and 15.63.
(4) The expert witness’s duty to the court arises when the expert witness:
(a) receives instructions under rule 15.54; or
(b) is informed by a party that the expert witness may be called to give evidence in a case.
(5) An expert witness who changes an opinion after the preparation of a report must give written notice to that effect:
(a) if appointed by a party — to the instructing party; or
(b) if appointed by the court — to the Registry Manager and each party.
(6) A notice under subrule (5) is taken to be part of the expert’s report
Rule 15.54 sets out the manner in which instructions to an expert witness must be furnished and provides:
(1) A party who instructs an expert witness to give an opinion for a case or an anticipated case must:
(a) ensure the expert witness has a copy of the most recent version of, and has read, Divisions 15.5.4, 15.5.5 and 15.5.6 of these Rules; and
(b) obtain a written report from the expert witness.
(2) All instructions to an expert witness must be in writing and must include:
(a) a request for a written report;
(b) advice that the report may be used in an anticipated or actual case;
(c) the issues about which the opinion is sought;
(d) a description of any matter to be investigated, or any experiment to be undertaken or issue to be reported on; and
(e) full and frank disclosure of information and documents that will help the expert witness to perform the expert witness’s function.
(3) The parties must give the expert an agreed statement of facts on which to base the report.
(4) However, if the parties do not agree on a statement of facts:
(a) unless the court directs otherwise — each of the parties must give to the expert a statement of facts on which to base the report; and
(b) the court may give directions about the form and content of the statement of facts to be given to the expert.
The mother at no stage made an application for permission to adduce evidence from Emeritus Professor X as required by Rule 15.51, which provides:
(1) A party must apply for the court’s permission to tender a report or adduce evidence at a hearing or trial from an expert witness, except a single expert witness.
(2) An independent children’s lawyer may tender a report or adduce evidence at a hearing or trial from one expert witness on an issue without the court’s permission.
I would have been entitled to reject the evidence of Emeritus Professor X solely on the basis of non-compliance with this Rule. As noted, however, I elected to receive the evidence because it was clear that the opinions of Emeritus Professor X played a very substantial role in the development of the mother’s steadfast belief that the children are victims of sexual abuse by the father. This belief has had a very significant impact on the children’s current situation and figures prominently in the feasibility of any change to the current arrangements.
Cross-examination of Emeritus Professor X by counsel for the father quickly established substantial, if not complete, non-compliance with Chapter 15 of the Rules with regard to her evidence. She did not read Rules 15.5.4, 15.5.5 and 15.5.6. She received no written instructions at all from the mother. She certainly did not receive from the mother “a full and frank disclosure of information and documents that will help the expert witness to perform the expert witness’ function”. There is no possible way that she “considered all material facts, including those that may detract from [her] opinion”.
Cross-examination established that Emeritus Professor X received the DVDs and a copy of at least one of the reports of Family Consultant Ms D before she prepared her affidavit. She received from the CEO of Families SA unspecified information, said to be particular to this case rather than general in nature.
Emeritus Professor X would not countenance any suggestion that she would have been assisted by any further documents or information in the formulation of her opinions. These exchanges occurred during her cross-examination by counsel for the father:
Who provided you with that document?(the family report)‑‑‑Presumably Ms [Langmeil].
Right. So we have confirmed that Ms [Langmeil] didn’t provide you with any of the affidavit material, either of her or of her former husband’s?‑‑‑I don’t think so. If she did I didn’t read it, because I get about 125 emails a day, mainly from people needing advice and help
Yes?‑‑‑ and I don’t read all of them.
Yes. If I told you that there written reports from Families SA in relation to three separate forensic interviews of the child, [M], you wouldn’t know anything about that, would you?‑‑‑No, and furthermore, it wouldn’t make any difference to my evidence.
That those forensic interviews took place in or about February 2008 over a period?‑‑‑Again
It wouldn’t make any difference?‑‑‑ it wouldn’t make any difference to my evidence, which is limited to the videos that I looked at extremely carefully, and also my one experience of meeting the children when the older child was writing that he didn’t wish to live with his daddy and he then said he couldn’t tell me why because his mummy would be killed.
MR RICHARDS: I stand corrected. You have never read the reports of the outcomes of three separate forensic interviews of [M] on sexual abuse allegations from early 2008? You’ve never read any of that material?‑‑‑No, I have not.
No. You haven’t read the father’s explanation as to what happened in relation to the attendance of the husband and the wife then to obtain advice in relation to allegations against Mr [Grange’s] parents? You haven’t read any of that material?‑‑‑No, because it would have been entirely irrelevant to me. My concern was the behaviour of these children that was captured on video which was not normal – the behaviour of normal curiosity.
Yes. Well, all I’m putting to you now, and I will put it to you directly now, Professor [X], is surely you would need to know the history of what had happened before September 2008 if there was, in fact, a two years history of the involvement of these children and these parties in relation to sexual abuse allegations? Surely you would have wanted to know all of that information?‑‑‑How many times do I have to repeat the fact that my interest was in the premature sexual inappropriate behaviours of children as captured on the security video, which was the most sickening that I have ever seen, bearing in mind that these children are aged three and four. My expertise is in this area. I gave the key note address to [a professional] Conference a year or so ago. I’ve given the same material to [an overseas professional association]. I was lecturing to [mental health professionals] in Melbourne last week. I have just come back from a month [overseas] where I’ve been doing the same thing. That is my area of expertise.
Yes?‑‑‑But as I said, I had a lengthy meeting with the CEO of Families SA as to why they weren’t investigated.
MR RICHARDS: I put to you again, Professor [X], in order for you to come to the conclusion, as you have, firstly, that the children have been sexually abused, and secondly, that the father is the perpetrator, you would have, as a matter of professional caution and expertise, needed to know the whole history of allegations, accusations, investigations, forensic reports, family assessment reports, and other professional interventions before you could have any confidence at all that what you were seeing indicated one, sexual abuse, and two, that Mr [Grange] was the perpetrator?‑‑‑And I disagree, your Honour, because my expertise is in child sex abuse and children. I am not into the adult’s behaviour in this case. I examined thoroughly those videos. I saw a child and that is the extent of my evidence.
It would have been important for you to know, I suggest, and take into account in assessing, (a) whether they had been abused, and (b) who was the perpetrator, to know that these children had lived over a long period in an environment where they were aware that they were being talked to by experts, by forensic examiners, about sexual abuse issues?‑‑‑I don’t think that that would have made any difference, your Honour, because you cannot train children of that age to behave in that way.
In response to questions from counsel for the ICL, Emeritus Professor X said:
Can I suggest to you that before you forming your concluded opinion in relation to [M and W Grange], that they had been subjected to sexual abuse, that before you concluded that opinion, it would have been appropriate for you to speak to the boys themselves; do you agree with that?‑‑‑No.
No. I suggest to you also that before you concluded any opinion in relation to abuse or no, it would have been appropriate for you to have interviewed Ms [Langmeil], their mother; do you agree with that?‑‑‑For what purpose, could I ask?
Would you agree or disagree that before you formed a concluded opinion on the question of child abuse, it would have been appropriate for you to have reviewed any previous CPS, police or Families SA assessments that had occurred in relation to those same children?‑‑‑No, because I was merely looking at the behaviour that I was able to see, and I was – only became involved when I realised that the mother was being labelled as delusional, the police, I understood, had said that the kids were suffering from constipation and hadn’t investigated further, and the children were deprived of contact with their mother and have been since November 7. I was concerned that there were traumatic occurrences. I understand that police came along and seized them, which for a two-year-old would have been absolutely traumatic, and my fear is that these children could suffer substantially down the track from what is happening to them.
How was your last response in any way responsive to the proposition that I put to you, that it would have been appropriate for you to have viewed previous CPS, police or Families SA assessments prior to you forming a concluded opinion in this matter?‑‑‑I didn’t need them to form the opinion relating to the children’s behaviour that I had witnessed.
And finally, I suggest to you also that before you formed a concluded opinion on the question of abuse or not, as accounting for the behaviours you observed, it would have been appropriate for you to have viewed any medical history, if any, in relation to the two boys?‑‑‑Irrelevant.
Why would that have been irrelevant?‑‑‑Because I am only commenting on the behaviour that I witnessed in the video – videos.
If the boys had been seeing their GP for persistent and unexplained buttock redness and soreness, or if there was any other anal injuries of any sort over the preceding six months or 18 months, that surely would have been relevant, wouldn’t it?‑‑‑It would not have influenced my opinion of their behaviour on the videos.
Cross-examination of Emeritus Professor X established that she entertained no doubts as to the correctness of her conclusions that the boys are the victims of sexual abuse and that the perpetrator is their father. These exchanges occurred in cross-examination by counsel for the father:
You have accused – you have resolved that the father is a sexual abuser of these children?‑‑‑Sorry, your Honour, the children said their father was responsible, not me.
And you have accepted that?‑‑‑Children do not usually tell lies at that age about what happens to them, especially in relation to sexual matters.
But you see, Professor [X], it must be the case, mustn’t it, if you are – in this report, as you do – very clearly firstly saying these children have been abused. No doubt about it at all in your mind, is there?‑‑‑I said that their behaviour is consistent with that of children who have been sexually abused, and I itemised those behaviours. As I said, individually, looking at your bottom in the mirror would not constitute a sign of sexual abuse, but put all those behaviours together and I would say there was clear evidence of it, and when the children are reprimanded, despite the fact that Families SA said the mother didn’t reprimand them, she certainly did and they have consistently argued that their father did it, therefore it must be okay.
But you are happy, in your report, to attribute widespread sexual abuse of all three children to Mr [Grange], and that’s what you do in your report?‑‑‑Sorry, you’re wrong, I have not mentioned the little girl.
I’m sorry. Then, all right, at least in relation to [M] and [W], your position is – and you’re totally satisfied and you are prepared to put it in a report to the court to be considered in this serious context, you’re completely satisfied that Mr [Grange] is a profligate sexual abuser of these two children?‑‑‑Those two children named their father.
I will shorten it, given what I have already put to you, Professor [X]. In the context of you concluding the children have been sexually abused, and with you having determined, in your own mind, and labelled the father, and no one else, as the perpetrator of what I think you will agree is, on the face of it, horrendous abuse – that’s what you accuse him of; do you agree? The worst you’ve seen?‑‑‑The video was the most sickening behaviour of children that I have ever seen, and I have had a long experience, as you know.
And you attribute the fault for that in your report very squarely to the father?‑‑‑The children name the father.
These exchanges occurred during cross-examination by counsel for the ICL:
You have; and your view is that they have?‑‑‑Yes. Because I cannot conceive of any other way that they would have acquired the knowledge to behave in the way that they did; that is, simulating oral sex, simulating anal penetration and trying to masturbate, and urinating on the carpet, saying that this is what daddy does.
Well, what about exposure to pornographic video DVDs; could that also be a cause of children ?‑‑‑Exposure to pornography is emotionally disturbing to children, yes, but they would not be saying that daddy did it if they were seeing other people – unless they were seeing daddy doing it on pornography which would be unlikely.
I’m just – I thought I put to you a conclusion that you had made in relation to their behaviour, and you gave an answer that you have formed a concluded view, and it must be from child sexual abuse. And I questioned you on that, I put an alternative proposition to you, that an explanation for those – the sexualised behaviour you saw could be inappropriate exposure to pornography?‑‑‑I repeat that exposure to pornography is emotionally disturbing to children, but exposing children to pornography is a form of child sexual abuse anyway.
So I’m not sure we’re at one there. I’m just asking about ?‑‑‑It is reportable as a child protection issue if children have been exposed to pornography.
Professor [X], I think everyone in this room might agree with you there. The questions I’m asking you are in relation to your conclusions you formed from observing certain behaviours of the boys, and I put to you that one of the explanations, a possible explanation could have been, rather than being the victims of actual sexual abuse, that a possible explanation is exposure to pornography?‑‑‑Except for the fact that the children said that this is what daddy did.
Could another possible explanation be exposure to or influence by other children that had themselves been the subject of either sexual abuse or exposure to pornography?‑‑‑The behaviour could have arisen if they had been sexually abused by older children, but they would not have consistently named daddy.
Emeritus Professor X gave problematic evidence that the mother was “in denial” that the father was harming the children. These exchanges occurred during her cross-examination by counsel for the father:
Professor [X], at paragraph 33 of your affidavit, and I will read it to you; it’s only a short paragraph, and it’s – again, this is part of the direct commentary on your viewing of the videos:
Despite being a [behavioural science professional], the mother did not ask the obvious questions about what dad was doing to them; to the contrary. She was in denial that daddy could be harming them.
Could you explain what you say in what way the mother was in denial that her father was harming the children?‑‑‑Yes. Very frequently mothers cannot accept that their partners would use their children as sex objects, and even though the mother in this case was a [behavioural science professional] who would have been aware of child protection issues, she was still in denial; she was not accusing the father, and, of course, when you tell children that this isn’t happening they will persist all the more to convince you that they are telling the truth, and that seems to have been what was happening in this case, because she kept saying, “No, daddy couldn’t do that,” because she was telling the children that this behaviour was inappropriate, and, of course, they were persisting that this was the case.
So there are two elements to what you record in that paragraph. The first is, is the direct conversation to the children, and do I understand, or would her Honour understand, more importantly, from your evidence, that that indicated to you that at that point in time the mother was still at least in a level of denial that the father was the perpetrator of the abuse?‑‑‑Yes. She was certainly not accusing him of any misbehaviour.
Not to the children, but ?‑‑‑Not to the
Certainly not to the children?‑‑‑Not to the children, yes.
You say, but do you say there appeared to be an indication on the mother’s part that she herself, in her own mind, wasn’t clear about what was going on and who was the cause of it?‑‑‑Yes.
Yes. Quite clearly that was the case you say?‑‑‑Yes.
Now, what if the history is to the opposite effect, that the mother in the proceedings, at least from February 2008, has been absolutely relentless – just assume that – absolutely relentless in her view that her husband, and both the grandparents, had been wholesalely abusing these children; wouldn’t that be an important piece of information?‑‑‑It would depend on what the nature of the abuse was at that particular I would think.
But it could be important, couldn’t it?‑‑‑Possibly.
Well, you can’t make the concession that it may well be quite important?‑‑‑Mr Richards, I do not know what accusations the mother was making at that particular time, what the nature of the sexual abuse was that she was accusing them of. All I know is what I saw on that video.
At paragraph 31, just to give you the context of this, this is the Full Court talking about Bell Js initial determination in his judgment on 17 November 2008:His Honour –
that’s Bell J, the trial judge –
then recited the following extract from the mother’s draft affidavit, which had been presented to CPS at [M’s] final interview, about a week after the father had left the home.
Now, I ask you to assume that that interview was either very late in February 2008, or early in March 2008, in that period, all right, and it’s quoted. This is a quotation from a document that the mother provided; it’s her own document:The father and the paternal grandparents have manipulated, threatened, and blackmailed my children, and myself, for the purposes of gaining sexual gratification, power and control over my children. They have been organised, systematic, devious, cunning, and controlling.
I’m not asking you for a response at this point. Going to paragraph 100, if your Honour please, paragraph 100 of the Full Court, for the purpose of the transcript, reads as follows, Professor:
The mother than gave evidence of the circumstances leading up to the police asking the father, and him agreeing to vacate the home, in case he may have been influencing [M] not to make disclosure concerning the grandfather. The mother said –
and this is a recital of the mother’s testimony, either in written or oral form, before the court:
In the days after the father left the children did not ask for their father. Instead they began acting out sexual activities, and telling me things the father had done and said to them. They were scared to have their nappies changed, and [M] was scared to sleep in his room, because of “things daddy did.” Initially I thought that maybe they, the children, were just mistaking dad for the paternal grandfather, or vice versa.
And then this passage:
The first realisation I had that the father had actually done something to them was about the second day after he left.
I must pause there – that’s a date towards the end of February 2008, Professor. The mother then goes on to recite what she describes as sexualised behaviour with the father in the presence of the children, involving his penis. Now, can I say this to you: those passages indicate, don’t they, that certainly in February 2008 the mother was absolutely clear and convinced that, not only her husband, but that her father, her – the children’s grandfather, paternal grandfather and paternal grandmother, were sexualising these children in a high-level manner, doesn’t it, not capable of any other interpretation, is it?‑‑‑Yes. We don’t know what the behaviour was, but certainly it indicates that, which then suggests that the mother, when she was dealing with this behaviour again was not going to say, “Yes, your daddy is bad and shouldn’t be doing this.” She would have been put in a very difficult situation.
But that’s not what I’m asking you about, with respect. What I’m asking you to agree, or disagree with is, that clearly indicates, on the face of it – this is before – before Mr [Grange] is even told the marriage is over?‑‑‑Already agreed. I already said, yes, she obviously knew that some sexual misbehaviour was occurring, but we don’t have the detail of what it was.
And if it was her evidence before the court that what that meant was that she understood her then husband was only – sorry, was anally, digitally and penile, by penile penetration having sex with her children on more or less a daily basis. That would be, again, a matter of history that you would need to understand?‑‑‑I don’t think so, because I make comment on my observation, and the observation was that the mother did not say, “Yes, your daddy is naughty, he shouldn’t be doing that.” She was in denial. She was saying, “This behaviour is unacceptable, people don’t do that,” and they were saying, “Yes, daddy does it,” and because she was denying that this should happen, they were repeating it, which children do. If you try to tell them that black is white they will go to a lot of trouble to convince you that you’re wrong, and that is what I saw.
Yes. But can I put to you, you gave a very clear position about what your understanding of your words in paragraph 33 were, and that at a time in August or September, at least, 2008 you felt – you understood that the mother was still in denial about these allegations. Well, that’s patently incorrect now, isn’t it?‑‑‑Well, she was behaving in denial with the children.
That’s not what you said, Professor. I asked you the question very carefully. I repeated it to you, and you gave the answer in clear and unequivocal terms, you said, it was clear, when you viewed the video, that at the time the video sequence occurred the mother was in denial of abuse allegations?‑‑‑She appeared to be.
Yes, but she wasn’t, was she?‑‑‑But that was – well, that was in her relationship with children, which is vastly different
Yes?‑‑‑ to what she would have said to adults.
Yes. You’re ?‑‑‑You do not
You’re looking for a way out, Professor ?‑‑‑No, I’m looking
to get around your previous answers?‑‑‑No. I’m sorry, I’m not.
This exchange with counsel about the mother being “in denial” indicates to me that Emeritus Professor X was not an impartial witness. She simply refused to concede that she could have been incorrect in her opinion that the mother was “in denial”, in spite of clear indications to the contrary. It seemed to me that counsel was right in his suggestion that Emeritus Professor X was “looking for a way out, to get around [her] previous answers”.
My own viewing of the DVDs led me to the conclusion that the mother was far from “in denial” about improper conduct on the part of the father. I refer below to a lengthy conversation between her and M on the night of 30 August 2008. The mother repeatedly told M that the father “was not allowed” to engage in certain behaviour and praised him for telling her negative things about him. These statements of M about the father did not relate to sexual impropriety but were certainly of a negative flavour. It was abundantly clear that the mother’s mindset was to the effect that the father was harming the children and that they needed protection from him.
Emeritus Professor X’s dire assumptions about the impact on the children of their removal from the mother by police officers were far from supported by Dr AS, a psychiatrist who was present. I refer below to the evidence of Dr AS, who observed, inter alia, that “there was no obvious sense of unpleasantness with what was going on”.
It is of substantial concern that Emeritus Professor X summarily dismissed any conceivable relevance of significant material such as affidavits, prior forensic interviews of M, the children’s medical history and the chronology of the allegations of sexual abuse. It is most concerning that she dismissed out of hand the suggestion that interviews of the mother, the father and the children would have been appropriate before she concluded that he sexually abused the boys. It was patently obvious that nothing which was put to her in cross-examination was going to shake that opinion.
In my view, the impartiality of Emeritus Professor X is open to question. She offered to act as supervisor of the children’s time with the mother, which is hardly the act of an impartial expert. She was involved with attempts to secure an investigation into the treatment by Families SA of complaints of abuse of these children.
It seems to me to be a very convenient coincidence that Emeritus Professor X happened to go to the mother’s home on 7 November 2010, during the short period of the children’s supervised time with her. Coincidentally, the mother was absent when she arrived and M was sitting alone with a piece of paper on which he had allegedly written: “I don’t like living at dads. I want to live with mum.”
I will examine in detail below the events of 7 November 2010. For present purposes, I observe that I find it strange that Emeritus Professor X, a complete stranger to M, would take it upon herself to discuss with him his living arrangements and views of his father. This conversation does not sit comfortably with the position of an independent, impartial expert witness.
All of these matters leave me with very substantial reservations as to the reliability of the evidence of Emeritus Professor X. She cannot be considered objective or impartial; rather, she is an advocate in the mother’s cause. I found her evidence to be unhelpful in my consideration of the veracity of the allegations of sexual abuse.
The mother sought to tender the following documents authored by Dr G:
· letter of 19 May 2009 to the ICL
· memorandum dated 22/9/2009 containing commentary upon and criticisms of the Family Reports by Ms D
· certificate dated 2 March 2011 apparently in support of latitude extended to the mother for completion of some requirements of her PhD coursework.
The reports of Family Consultant Ms D were not in evidence in these proceedings. I was thus at a loss to understand how Dr G’s strongly-worded criticisms of that material could have assisted me. The tone of this commentary indicates that Dr G has become an advocate in the mother’s cause. For example, he wrote: “Ms [D] has to assume coaching by Ms [Langmeil] if she, Ms [D], so firmly believes on flimsy evidence, that no sexual abuse has taken place”.
On 19 May 2009 Dr G took it upon himself to write a critically worded letter to the ICL. Its contents seemed to me to be a very clear indication of his alignment with the mother’s cause:
This letter is to remind you that I am the Psychiatrist to whom [Ms Langmeil] was referred by her LMO at the request of the Judge.
This letter is also to notify you formally information relating to the children’s welfare:
1.In my professional opinion Mrs [Langmeil] is of sound mind. She is not, and has never been delusional. I doubt, even, whether she has been mistaken as regards her concerns for the children’s welfare.
2.Mrs [Langmeil] has informed me that on Saturday 16th May, at access, [W] said ‘ouch, my doodle hurts’ and he had a very swollen red penis and had pain on passing urine (dysuria). This would normally be a reason to consult a doctor or take a child to the [hospital] most urgently in a child of four (4).
(a)Mrs [Langmeil] did her level best to notify the Child Abuse Authorities of [W’s] need for treatment: she was refused a hearing but subsequently made further efforts to get him treatment.
I was myself the Consultant Psychiatrist to the Renal Clinic at the [Hospital] for many years.
3.Mrs [Langmeil] told me of [L’s] extremely red and swollen genitals at another contact when she changed her nappy: she was even criticised for changing the nappy.
4.I am certain that immense damage is likely to the emotional and physical health of these children, given the apparent standard of treatment of them by the adults with whom they have residence. I have protested to you before about their removal from their prime caregiver, which removal is certain, absolutely certain, to cause emotional damage to the children, which will become irreparable if you the Independent Children’s Lawyer are unable or unwilling to advocate a rational outcome for them. They need to be with their mother. This transcends any question of ‘Are the father and/or his family members neglecting or abusing them?’. Neglect or abuse nevertheless appears to be manifest.
It seems that Dr G was untroubled by the fact that all of this information came from the mother. He was prepared to accept what she told him as entirely accurate and proceed to direct strident criticism at the ICL.
It is notable that Dr G’s reference to L’s “extremely red and swollen genitals” was unsupported by medical records to which I refer below. The entries for 7 and 15 December 2008 referred to “minor inflamed nappy area” and “nappy rash”. Of course, the mother could have told Dr G of another time when she observed L with “extremely red and swollen genitals” but she made no suggestion of any such occasion.
Another indication of Dr G’s alignment with the mother’s cause was his letter dated 7 May 2009 to Mr AA, a lawyer whom the mother retained for a time in relation to her appeal. This letter read:
I am glad you are able to see [Ms Langmeil] tomorrow.
I have been in touch with her since November, 2008. I wrote to the Separate Representative to ask why the three children were removed from the prime caregiver, which [Ms Langmeil] evidently is. No reply.
The whole conduct of this case seems to have ignored the ‘Best Interests of the Child” or the ‘Least Detrimental Alternative’ for the children.
[Ms Langmeil] tells me that at her much abbreviated access to them [L], aged 2, says ‘Daddy’s Doodle in my Bottom’. She is having, understandably, nightly nightmares.
I trust something can be done.
It seems extraordinary to me that a clinical psychiatrist would immerse himself in the litigation process to this extent. It must have been obvious to Dr G that he knew only the mother’s version of events but he was, apparently, untroubled by this limit on his access to relevant information.
This letter is a striking illustration of Dr G’s uncritical acceptance of information provided to him by the mother. She had not been with the children overnight since November 2008, yet Dr G confidently reported to Mr AA that L was “having, understandably, nightly nightmares”. There is no possible way that the mother could have made such an observation.
As with Emeritus Professor X, the mother did not comply with the Rules governing expert evidence in relation to Dr G. An unsuccessful attempt was made to introduce three reports by Dr G as further evidence in the appeal. One of these documents, the memorandum of 22 September 2009, was part of the evidence which the mother attempted to tender in these proceedings.
The reasons of the Full Court recorded that Dr G viewed the DVDs and offered commentary on their contents. Their Honours observed that he did so without having assessed the children, nor interviewed the father or any witness other than the mother.
The Full Court stated:
Dr [G] went on to consider a question posed to him by the mother’s lawyers concerning the mother’s ability ‘to accept that the children may not have been sexually abused’. He commented that this was a ‘very, very difficult issue’ because the evidence presented to him by the mother and on the DVDs and during the supervised visits did ‘suggest sexual abuse as being entirely possible’. He went on to say that the mother was ‘a highly intelligent woman’ who had been drawing inferences which he believed to be quite logical’.
The Full Court continued:
…Dr [G] commented, ‘I have discussed with the mother that Courts do sometimes come to conclusions which in the opinion of those around do not seem to be based on all the facts, and that sometimes we have to live with that’. We might pause to observe that the present case is a good illustration of one where comments have been made by persons who demonstrably do not have the benefit of all the facts.
I can only respectfully agree with the Full Court’s observation that “Dr [G’s] reports tend to suggest that he has moved from the role of expert and clinician to that of advocate. We acknowledge there is a place in our system for professional persons to assume this role. However, the rules of evidence permit opinion evidence to be given by experts only in their capacity as experts rather than advocates”.
I would have not have been assisted by Dr G’s strident support of the mother’s position. He accepted uncritically information which she provided and had no knowledge of any other perspective in the proceedings. He was neither objective nor impartial in the opinions which he expressed and was clearly an advocate in the mother’s cause. For all of these reasons, I declined to accept his evidence.
The father annexed in his affidavit the report prepared pursuant to section 65L by Family Consultant Ms C. She was required for cross-examination by the mother and her report was admitted on the basis that she was available for that purpose.
The father also annexed to his affidavit hospital notes dated 28 March 2010 in relation to W, including a report dated 12 April 2010 by Dr Z. The mother indicated that she wished to cross-examine Dr Z as to his statement “he is not happy when he is with his mother as he feels as if he is more abused by her”.
It seemed to me that the mother was entitled to test on the basis upon which Dr Z made that statement. Dr Z was not made available for cross-examination, thus his report cannot be admitted into evidence. I considered the hospital notes admissible as business records.
The father annexed to his affidavit police records and notes. These documents are admissible on the same basis as the similar material annexed to the mother’s affidavit.
I take the same view in relation to the hospital notes of 28 March 2010 in relation to L. The mother expressed no opposition to the admission of these notes nor any wish to cross-examine the authors of these documents.
The father annexed to his affidavit a memo which apparently reported on a discussion between officers of Families SA and CPS and a letter dated 18 November 2010 to the Registrar of the court from the CEO of Families SA. The contents of the memo are from an unknown source and are potentially very prejudicial to the mother. This document should not be admitted into evidence. The letter from the CEO of Families SA should be admitted, as an explanation of the erroneous advice given to the mother by officers of Families SA in November 2010. Finally, the father annexed to his affidavit police records of the kind which I have already described and ruled upon in relation to the mother’s affidavit. These documents will be admitted into evidence.
The Allegations of Sexual Abuse
The mother alleged that the father has sexually abused all three children. She made one assertion only in relation to L in her affidavit of evidence-in-chief sworn 18 April 2011. She said that, in December 2008, she observed that the child had “a red swollen genital area and told me it hurt as I changed her nappy”. Annexed to her affidavit were medical records which she claimed to be proof that L suffered genital redness in December 2008.
L’s medical records for 7 December 2008 contained an entry “minor inflammed nappy area – no candida – continue zinc based cream”. On 15 December 2008 the notes read
nappy rash for 7 days using the right nappy RAHS cream.
Obvious has fungal factor as spreading to TE crease.
So add Canesten cream.
The mother said that she did not necessarily suspect that this redness was due to sexual abuse. She alleged that the father told the police and the court that there was “nothing wrong with her genital area”. There was no evidence to that effect and, in any event, the medical records do not suggest any significant abnormality.
L was two years old in December 2008. The medical records show that the father sought appropriate treatment for a very common condition in children of this age. I am at a loss to understand why the mother attached a sinister connotation to the fact that a two year old child suffered from nappy rash and complained of soreness.
The notes of the contact centre workers contained two statements by L about her genital or anal area. On 4 April 2009 a worker noted:
[W] said, “My rash is back”. [The mother] said, “Where’s is it itching”. [W] said, “On my bottom”. [The mother] said, “Did daddy take you to the doctor”. [W] said, “Yes”. [L] said, “My bottom hurts too”. [The mother] said, “Why does your bottom hurt”. [L] did not answer. [L] moved to the white board and drew with the worker. The worker said, “Why does your bottom hurt”. [L] said, “Daddy”. The worker said, “What happened to your bottom”. [L] got off the chair and went to another area to play.”
It appears that L was imitating W on this occasion. There was no evidence from the mother of any abnormality in L’s genital or anal areas on this date. On the same day, L said to the mother “daddy sat on my head”. It is hardly likely that the father in fact sat on the child’s head but, nevertheless, the mother replied “daddy shouldn’t sit on your head”.
On 2 May 2009 W made a mess on a table where the mother and children were sharing a meal. The mother said: “that’s not what you do on the table”. W replied: “that’s what I do at dad’s table”. This behaviour resonates with what occurred on the DVDs. On several occasions when the mother reprimanded the boys, they said words to the effect “dad told us to…” or, “that’s what dad does”.
Shortly afterward, L asked the mother to change her nappy. The contact centre worker noted this conversation:
[L] said, “Doodle in my bottom”. [The mother] said, “You don’t have a doodle in you bottom”. [L] said, “Doodle in my bottom there”. [L] pointed to her anus. [The mother] said, “You don’t have a doodle in your bottom”. [L] said, “Daddy’s scary”.
The author/s of these notes was/were not made available by the mother for cross-examination. There was thus no evidence of the context of these statements or L’s demeanour. Little significance can thus be attached to these statements or any of the contents of these notes.
The mother placed substantial weight on the behaviour of M and W on the DVDs and to Emeritus Professor X’s opinions of its significance. I watched the DVDs and paid close attention to the boys’ behaviour and statements. I refer below to my own observations. In my view it is necessary to place this behaviour in historical context before consideration is given to any conclusion the only possible cause was sexual abuse by the father.
The history of the mother’s concerns as to sexual abuse was set out in the judgment of the Full Court of 5 February 2010. It is necessary only for me to summarise this material, not to recite every detail which the mother placed in evidence in the first trial. My purpose here is to situate the boys’ behaviour on the DVDs in a chain of events which commenced in 2005 or 2006.
The mother first became concerned about the way the paternal grandfather “would put his hand underneath [M’s] bottom and rub or pat him on his bottom on the genital area. This was not on his bottom like most people do but underneath his bottom”. The mother alleged that she “caught the paternal grandfather doing this regularly when he thought I was not watching him”. M was eighteen months old in August 2005, so the mother’s concerns about sexual abuse must have commenced around that time.
The mother also alleged that she was concerned in 2006 about behaviour which she considered to be “sexualised” on the part of both paternal grandparents. Ultimately the father agreed that the children would see his parents only once per month in a public place. He agreed to attend counselling but maintained that he did so only to placate the mother. The father maintained that the mother was convinced that he had been sexually abused as a child by the paternal grandfather. He claimed that the mother became enraged when he asked whether she had informed the counsellor that her mother had been sexually abused as a child. The topic of child sexual abuse was obviously a feature of family life by this time.
The mother said that her concerns about the paternal grandparents crystallised in October 2007. She said that “[M] started making comments about ‘Pop touching [S’s] doodle and [S] having to touch Pop’s doodle and he was scared and angry. [M] referred to [S E] who is [M’s] 3 year old friend and who has never been alone with the paternal grandfather. I knew at this stage that something was happening that was damaging my children. I told the father that we would have to report it however he did not agree with me”. The Full Court noted that the father said that he agreed with the mother that the matter should be reported to child protection authorities.
The mother then contacted her psychologist, the Child Abuse Report Line and the police. The matter was then referred to the CPS. The mother was advised that the CPS would “assess” M.
The mother referred to a time during a holiday trip when the father took M to a public toilet, where they remained for ten minutes. She asserted that M then touched W’s bottom and said “look I am touching [W’s] bottom and it’s all sticky”.
The mother asserted that, during the weeks before the CPS assessment, M was “having consistent tantrums” and “scared to go to bed at night, hiding behind the couch and soiling and wetting his pants”. She claimed that M was screaming “Mummy I want to tell you something” but that he never did so.
The mother alleged that about one month before the CPS assessment all three children had “red genital areas for a few days and the boys were saying their bottoms were sore”. She said in relation to M that “it looked like his skin had been broken around the anus area and had been bleeding”. She alleged that she found blood on M’s sheet but the father told her that the boy had hurt his toe.
In his addendum report of 18 August 2008 Dr Begg wrote:
If the Court accepts that abuse of the children has not occurred it would be reasonable to then, I believe, conclude that Ms [Langmeil] has developed an overvalued idea regarding sexual abuse of her children which is now reducing. This idea appeared to be confined to concerns regarding her children only. Whilst such ideas can herald the onset of other severe psychiatric disorders, particularly paranoid type disorders, I saw no evidence on mental state examination or history of a current paranoid or other serious psychiatric illness. I have reviewed the report of Dr [ES] showed a fear reaction occurring at the time of her distress as a young woman. That she recovered from this episode and pursued a successful academic career is not consistent with the presence of an underlying severe psychiatric illness.
Regrettably, the mother’s idea that the children are the victims of sexual abuse seems to have become more entrenched, rather than “reducing” as opined by Dr B.
The records of SA Health contained an entry dated 17 November 2010, apparently made by a person who accompanied Dr AS on a visit to the mother’s home on that day. These notes read:
In summary: No evidence of psychotic illness. It is possible she has dramatic elements to her personality structure. The history she gave me was strikingly plausible even allowing for her academic knowledge of child sexual abuse. P/C to Dr [G] indicates he feels there is no psychotic illness but that the history re: patient’s husband, suggests a serious problem there.
It is notable that Dr G took this opportunity to defend the mother and purport to identify “a serious problem” in the father. I would regard it as imprudent for Dr G to proffer an opinion that there is a “serious problem” with a person whom he has never met, let alone professionally assessed.
Dr AS gave evidence pursuant to a subpoena issued by the mother. He said that he attended her home after a referral by a senior crisis worker after her attendance at H Police Station on 7 November 2010. He saw the mother twice and carried out one psychiatric assessment.
Dr AS confirmed that he saw no evidence of a psychiatric illness in the mother. He said “the fact that [she] is fighting in this way is unusual” and it was this consideration which led him to conclude that “it is possible that there are dramatic elements to her personality”.
It seems to me that the critical question is not whether the label of a particular psychiatric illness or personality disorder can be attached to the mother; rather, the issue is the impact of her conduct on the children. Regrettably, her actions over the five year period since 2006 demonstrate that she has an unshakeable belief that the children are victims of sexual abuse and that she will not desist from her campaign to demonstrate that she is correct in this view.
I have outlined above the history of the mother’s allegations of sexual abuse. In December 2008, within weeks of the orders of Bell J, the mother attended a police station and reported that L had a rash in her genital area and was complaining of soreness. She also reported that one of the boys had a rash. She stated to police that the children were being sexually abused by the father. On 16 May 2009 the mother again attended a police station and alleged that the father was sexually abusing the children. She presented L and W for medical examinations in March 2010 and took W to a police station on 29 August 2010 and 7 November 2010.
On 5 March 2010 the mother attended a police station and reported a difficulty which she claimed to have experienced with a contact supervisor. The police note stated:
[Ms Langmeil] phoned [Mr E] at 2.22pm this date in order to organise a supervised handover. She left a message on his answering machine, which [Ms E] replied to via text message. At about 4:30pm [Mr E] called [Ms Langmeil] and replayed events which occurred during the last supervised visit…[Mr E] stated ‘if you go back to court you will be “busted” and it will cost a lot of money in lawyers’. This concerned [Ms Langmeil] and she wanted it recorded as she believes [Mr E] might be trying to influence her attendance in court…”
On the following day mother again attended the police station in relation to her issue with the contact supervisor. The police notes stated:
[Ms Langmeil] attended APS again to add to ancillary taken yesterday. She received a text message from [Mr E] today which stated, ‘very busy day Fri but it is a shame you feel that way – but it will be nice for us to enjoy personal plan Sunday. I think you misunderstand me as taking sides. Just wanted to alert you your actions may be used by [the father] against you. We are not going to be dragged into parent issues. It is okay if you don’t want to report but to let you know if you did it would be on interaction with the children – no negative. You are a good mum, loving, respecting, engaging.
[Ms Langmeil] believes this message to be ‘improper’. She was informed she should notify the Family Court of this issue and it is not a police matter. The message does not appear to be malicious or threatening in any way.
This matter seems hardly to have been one which should consume the time of the police.
The mother’s fixed belief that the father has and continues to sexually abuse the children now seems to have extended its influence into other areas of her thought processes. There were striking examples in her evidence and submissions of her preparedness to assume that people with only a professional involvement with her, the father and the children either failed to discharge their responsibilities or actively assisted him to conceal his abuse.
The mother expressed strong criticisms of Family Consultant Ms D in her written material. In her final oral submissions she said words to the effect: “I engaged an independent investigator and discovered that Ms [D] and [the paternal grandparents] lived in the same place in Darwin, so there has been some influence in the proceedings.” This conclusion is unwarranted and an extraordinary leap in logic.
In her final oral submissions the mother also made a suggestion that the father took the children to the home of a member of the Full Court bench which dismissed her appeal. In cross-examination of the father she suggested that he had taken the children to the home of a “Magistrate [SD]”, which he denied, and made no mention of any judicial officer of this court. In her submissions she implied that the appeal process was compromised in some way by the father’s acquaintance with one member of the bench. This conclusion is extraordinary.
In her Outline of Case the mother alleged that Family Consultant Ms C “was in contempt of Justice Bell’s orders of November 2008”. This assertion apparently arose from the fact that Ms C prepared her report after the date specified by his Honour. Ms C explained that she did not know what was required of her in circumstances of a pending appeal. It seems likely that the mother labelled the Family Consultant as being “in contempt” of court orders not because of this delay but due to displeasure at the contents of her report.
In cross-examination the mother suggested to Ms C that she and Ms D had discussed the contents of the section 65L report. The only basis for this suggestion seemed to be that she attached some significance to the fact that Ms D “signed off” on the report. Ms C explained that Ms D was manager of the family consultants at the time and “signing off” on reports was simply part of her duties.
The mother further suggested to Ms C that she had “mixed up her notes….with another case”, a claim which she rejected outright. Ms C refuted entirely the mother’s allegations that she put her hands very close to her face and said that she was “paranoid” and “had no rights in relation to [her] children”. I find it very difficult to contemplate that a Family Consultant would act in this way.
In her Outline of Case the mother wrote that she intends “making formal complaints regarding the misconduct of Ms [C] and Ms [D] to [relevant professional associations]”. As noted, she has lodged official complaints about police officers and staff of Families SA. She appears to have a propensity to lodge complaints about anyone she encounters in her attempts to establish sexual abuse who does not support her belief.
The mother advised in her Outline of Case that she has commenced proceedings in the International Criminal Court. She wrote:
November 2010 the mother presents a history and ongoing details of the case to the Office of the Prosecutor of the International Criminal Court for breaches of children’s human rights and the rights of the child as set out in the UN Convention on the rights of the child and for the protection of an alleged criminal by the government and judiciary from investigation and prosecution by the nation state of Australia.
The ICC is currently investigating the details of the case and the mother is communicating recent updates to the ICC.
In her affidavit the mother expressed a suspicion or belief that Burr J somehow insinuated that he may attempt to exert influence on proceedings in the International Criminal Court. She stated:
The International Court is aware of the current trial before the Family Court and will be advised of the process and outcome. Due to Justice Burr’s statement in a Family Court hearing in 2010 that ‘there is no-one independent in my case’ it is necessary that the International Court is aware of what is going on in regards to the handling of reports of child sexual abuse of my children. Contrary to Justice Burr’s statement in a Family Court hearing in late 2010 that he ‘knows all of the judges on the International Court’, the international justice system has provisions for protecting children from human rights abuses, regardless of who the judges might know.
The mother mentioned “the International Human Rights Court” on 9 November 2010 in the course of Burr J’s determination of the father’s application for a recovery order. This exchange took place between his Honour and the mother:
[THE MOTHER]: And the matter will be investigated. Not just through the court system. It will be investigated.
HIS HONOUR: Yes. By whom?
[THE MOTHER]: Have you heard of the international human rights court?
HIS HONOUR: Is that where you’re going next?
[THE MOTHER]: Have you heard of it?
HIS HONOUR: I certainly have. I have a number of friends who are judges on the human rights court ---
[THE MOTHER]: Wonderful.
HIS HONOUR: ---in the Hague.
[THE MOTHER]: Wonderful.”
This transcript shows that his Honour did nothing more than respond to a query from the mother as to his knowledge of the international tribunal.
There was nothing whatsoever in the evidence which suggested that the mother is likely to alter her mindset that the father has and continues to sexually abuse the children. On the contrary, her belief seemed only to have become more entrenched since the first trial. The critical issue is the fact of this belief and its consequences for the children, rather than a psychiatric explanation for its existence.
The mother asserted that she has a legal obligation to report sexual abuse of the children. She drew attention to her professional qualifications, which she alleged make her a “mandatory reporter”. I am far from persuaded that the mother was legally obliged to report all of the matters which she did, for example, L’s nappy rash and W’s red penis.
The Presumption of Equal Shared Parental Responsibility
Each of the parties sought an order for sole parental responsibility. The ICL proposed that the father continue to have sole parental responsibility in the terms ordered by the Full Court.
This presumption applies unless the party who seeks sole parental responsibility can establish that there are reasonable grounds for the court to believe that the other parent has engaged in abuse of the children or family violence. The presumption may be rebutted by evidence that equal shared parental responsibility would not be in the children’s best interests.
I have found that the father did not sexually abuse any of the children. I find that he has not abused them in any other way. There was no evidence that the father has engaged in family violence.
It seems clear to me that equal shared parental responsibility would not be in the children’s best interests. The mother’s steadfast belief that the father is a serial sexual abuser precludes any realistic prospect of consultation and joint decision making by the parents. I am convinced that the mother will persist with her attempts to establish that the father has sexually abused the children, with likely consequences for them of exposure to further investigations, questioning and medical examinations.
As there will be no order for equal shared parental responsibility, I am not required to consider whether the children should spend equal or substantial and significant time with each parent. I am at liberty to proceed to determine what orders are in the children’s best interests. I do so, inter alia, by reference to the considerations set out in section 60CC of the Family Law Act.
Primary Considerations
The last words which the mother uttered at the end of the trial were “I will continue to fight for my children”. I am thus of the view that the children need protection from the psychological consequences for them of her unshakeable belief as to sexual abuse and her determination to vindicate her position.
The report prepared by a Family Consultant Ms C contained some disturbing material. I accept that Ms C accurately reported her observations of the children’s interactions with their mother and her behaviour during the six sessions which she observed. I reject the mother’s implication that the Family Consultant was biased against her and the suggestion that she used notes relating to another family when compiling her report.
In the first session on 17 December 2008 the Family Consultant advised the mother clearly that she was not to undertake any parental tasks, for example nappy changing. The mother was informed that the childcare worker would attend to all such needs of the children. She was advised not to speak about the court proceedings or denigrate the father and the paternal family in the children’s presence.
The Family Consultant observed that M “seemed particularly avoidant” of the mother’s attention and “impressed as angry and resistive to [her] attempts to engage him”. Twenty minutes before the end of the session L needed a nappy change. When the mother was reminded that the childcare worker would change the nappy, the Family Consultant observed her to react with “outrage” and “fury” at what she called “this travesty”. L began to scream and the boys “looked confused and hyper vigilant”.
On the next occasion, 19 January 2009, the Family Consultant observed that the mother presented as “calm, loving and appropriate at all times”. She noted that the session seemed to be enjoyable for the mother, the children and the maternal grandparents.
During the next session on 23 February 2009 the mother tried to provide to the Family Consultant copies of psychiatric reports, which she refused to accept. She observed that the children were very happy to see the mother and the maternal grandmother. She noted that the farewells proceeded without incident. At one point the mother focussed on a rash on W’s face and both boys immediately said that the “rash” was really “mozzie bites”.
The Family Consultant described the fourth session on 23 March 2009 as a happy time for the children, who seemed to be very pleased to see their maternal grandparents as well as the mother. Unfortunately, the mother criticised the father in the children’s presence at the end of the session. She said that he was hitting them and had failed to attend to W’s psoriasis.
The mother attended the fifth session on 27 April 2009 without either of the maternal grandparents. The Family Consultant observed that the session began well but deteriorated when M began to talk about “wolves”. The Family Consultant described:
Ms [Langmeil] took this opportunity to loudly castigate the father (in front of the children) for frightening them with stories about wolves”…[M] reacted angrily to his mother and called her “a liar”…[W] was relentless with his questions about wolves, seemingly fuelled by curiosity in the subject and certainly not displaying any fear in relation to the topic. Unfortunately, Ms [Langmeil] was so caught up in her own view of the situation (that of the father’s purported abuse of the children by frightening them all with stories about wolves) that she transformed the topic about “wolves” from a subject of interest to one of agitated and heated debate between her and the boys, especially [M]. The writer intervened at this point to bring about an end to this increasingly volatile and agitated exchange. Ms [Langmeil] was cautioned about further discussion on the topic. Ms [Langmeil] readily complied on this occasion and quickly and skilfully distracted the children with a game of hide and seek.
Later in this session the mother discussed with the Family Consultant her visits with the children at a contact centre; their alleged reports to her that the father was hitting them and the unfairness of the situation brought about by the orders of 17 November 2008. In a “misguided attempt to reassure her”, the Family Consultant told the mother that the children appeared to be “flourishing”. Ms Langmeil then “advised the writer that she was clearly not ‘an expert in relation to children’ as no children who are taken off their mother could ever be perceived to be flourishing”. The Family Consultant described the mother’s reaction as “a vitriolic response”.
In the last session on 25 May 2009 the mother was accompanied by the maternal grandmother. The Family Consultant described this session as “very happy and calm” and noted that the children were very pleased to see the maternal grandmother. She indicated that her report would include a recommendation that the maternal grandmother should participate in visits at a contact centre.
The mother annexed to her affidavit notes made by workers who supervise the children’s time with her at a contact centre between 7 March 2009 and 16 May 2009. These notes contain frequent references to the children and the mother saying that they loved each other and observations of physical affection between them. During these sessions the mother did not denigrate the father. On 7 March 2009 she refrained from commenting when M said “Daddy is naughty”.
Mr I acted as supervisor for two months up to May 2010. He observed that the mother and children said that they loved each other and interacted warmly. He said in his affidavit “in more than 20 years experience in working closely with families as a counsellor, I have rarely witnessed an environment as loving, nurturing and conducive to the healthy development of children as I have here”. Mr I referred to the “environment” created by the mother and her then partner Mr Y. There was no evidence that he knew of the history which led to supervision of the children’s time with the mother.
Additional Considerations
The children are now seven, six and four years old, which means that any views which they express as to parenting arrangements would carry little weight. It might only be expected that they miss their mother and would tell her that they want to be with her. There were several references in the notes of the contact centre workers to occasions when they expressed a wish to go home with the mother or live with her.
There was no independent evidence as to the nature of the children’s relationship with each of the parents and their extended families. They have now lived with the father and the paternal grandparents for two and a half years. The father deposed that they are “doing very well at the moment”.
Unfortunately the children have not spent time with the mother since 7 November 2010. It is desirable that they resume seeing her but there appears to have been difficulty in procuring a place at a contact centre.
In cross-examination the father said that he considers that it is “really important for [the children] to see and have a relationship with [the mother]”. He said that he is reluctant to implement the mother’s suggestion, made in cross-examination, for shared care because he fears that there will be further allegations of sexual abuse. This fear on the part of the father would seem to be well justified.
I am satisfied that the father genuinely recognises that the children need a relationship with their mother. Unsurprisingly, he also feels that he must protect them from the corrosive consequences of exposure to her mindset of sexual abuse and determination to vindicate her position. With this unshakeable belief and determination, I seriously doubt whether the mother would be capable of supporting a relationship between the children and the father.
The mother alleged that the father failed to arrange for appropriate medical treatment for the children. In my view, the medical records which she annexed to her own affidavit refute this assertion.
Nothing in the evidence persuaded me that the father lacks the capacity to provide for the children’s needs. Regrettably, the mother’s capacity to provide for their emotional needs is seriously compromised by her steadfast belief that they have been victims of sexual abuse at the hands of the father.
The same observation can be made in respect of the mother’s attitude to the children and the responsibilities and duties of parenthood. I have no doubt that she loves them dearly and believes that she needs to protect them. I am persuaded that she labours under a false belief that the father has harmed the children in the past and will continue to do so in the future. I see nothing deficient in the father’s attitude to the children and the responsibilities and duties of parenthood.
The mother made it absolutely clear that she will relentlessly continue to seek the return of the children to her. I can do nothing to minimise the likelihood of further litigation.
The father has taken all reasonable steps to fulfil his duties as a parent, in very difficult circumstances. The mother’s attempts to fulfil her duties as a parent have been seriously undermined by her mindset as to sexual abuse.
Conclusion
I am satisfied that the children’s best interests require that the father have sole parental responsibility and that they continue to live with him. The mother has reported sexual abuse of the children despite seeing them only under supervision. She has continued to allege that the father physically abuses and neglects the children. There was abundant indication in the evidence that she will persist with complaints of this nature.
Supervision by people aligned with the mother is unlikely to provide adequate protection for the children. Supervision by her former partner Mr Y, for example, proved to be unsuccessful for reasons indicated. It seems to me that the children can spend time with the mother, in a climate of emotional safety, only at a contact centre or under the supervision of persons nominated by the father.
I appreciate that open-ended orders for supervised time are generally undesirable but I can see no alternative in this case. I cannot see how the father’s proposal for further assessments of the mother would advance the situation, given her unshakeable belief that he is a sexual abuser and the difficulty of enforcement of his proposed order.
I certify that the preceding two hundred and sixty five (265) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 3 August 2011
Associate:
Date: 3 August 2011
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Remedies
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Procedural Fairness
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Jurisdiction
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Standing
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