LANGMEIL & GRANGE
[2012] FamCAFC 39
•16 March 2012
FAMILY COURT OF AUSTRALIA
| LANGMEIL & GRANGE | [2012] FamCAFC 39 |
| FAMILY LAW ─ APPEAL ─ CHILDREN─ Evidence relating to alleged child abuse ─ Where the trial Judge was obliged to, and did, consider the evidence of alleged child abuse which was before her ─ Not established that the conclusion expressed by the trial Judge in relation to the evidence of various witnesses was not reasonably open to her or that, in reaching such conclusion her Honour palpably misused her advantage as the trial Judge ─ Where there were a number of examples of the mother misunderstanding, or misrepresenting, the evidence which was given before the trial Judge, and her Honour’s findings with respect to such evidence ─ Not established that the trial Judge overlooked any relevant fact or circumstance, or had regard to any irrelevant fact or circumstance or that her Honour afforded excessive or inadequate weight on any fact relied upon with respects to allegations of child abuse ─ Not established that the trial Judge did other than proceed in the manner that the High Court suggested in M v M (1988) 166 CLR 69 and B v B (1988) FLC 91-978 to be appropriate with respect to allegations of child abuse ─ Where the trial Judge’s undisturbed findings of fact precluded any suggestion that any of the rights of the child referred to in Article 34 of the United Nations Convention on the Rights of the Child (“the Convention”) had been breached ─ Where the trial Judge’s failure to apply, or engage with Article 19 of the Convention does not enliven appellate intervention ─ Appeal dismissed FAMILY LAW ─ APPEAL ─ Application to adduce further evidence ─ Where the further evidence sought to be adduced by the mother fell within two categories, the first related to the investigation of the mother’s allegations of abuse of the children by the father and the second related to evidence of the actions of and statements by the children subsequent to the trial Judge’s decision ─ Where the Court endeavoured to explain to the mother, that allegations made by her with respect to the conduct of State authorities are not matters which this Court can pursue and the correctness or otherwise of the actions of the Department in the past, are not matters which can be shown to render the trial Judge’s decision erroneous ─ Where the further evidence did not establish that her Honour’s findings in relation to issues which were pivotal to her decision were not reasonably open to her, or that her decision was erroneous ─ Further evidence application dismissed FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal was wholly unsuccessful ─ Where the mother had no assets or property of significance ─ Where the circumstances of the case did not justify an order for costs being made against the mother ─ No order for costs made |
| Family Law Act 1975 (Cth) ss 60CC, 69ZT, 93A, Part VII |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS (entered into force 2 September 1990) |
| APPELLANT: | Ms Langmeil |
| RESPONDENT: | Mr Grange |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission SA |
| FILE NUMBER: | ADC | 365 | of | 2008 |
| APPEAL NUMBER: | SA | 63 | of | 2011 |
| DATE DELIVERED: | 16 March 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Coleman, May & Ainslie-Wallace JJ |
| HEARING DATE: | 14 February 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 August 2011 |
| LOWER COURT MNC: | [2011] FamCA 605 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Self Represented |
| SOLICITOR FOR THE APPELLANT: | Self Represented |
| COUNSEL FOR THE RESPONDENT: | Mr Richards |
| SOLICITOR FOR THE RESPONDENT: | AK Reeves & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Treadway |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Terrence Stephen Legal Services Commission SA |
Orders
That the appeal be dismissed.
That the application for leave to adduce further evidence in the appeal be dismissed.
That there be no order for costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Langmeil & Grange has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 63 of 2011
File Number: ADC 365 of 2008
| Ms Langmeil |
Appellant
And
| Mr Grange |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
introduction
By Notice of Appeal filed 29 August 2011 Ms Langmeil (“the mother”) appealed against orders made by Stevenson J on 3 August 2011 in parenting proceedings between the mother and Mr Grange (“the father”).
The trial Judge’s orders provided that the father have sole parental responsibility for the three children of the parties, that the children live with the father and spend time with the mother once per week at a contact centre for the maximum period permitted by such contact centre, or from 10 am until 2 pm each Saturday, under the supervision of a person approved by the father.
In lieu of the trial Judge’s orders, the mother’s Notice of Appeal sought:
1.… that the children … live with the mother and remain in the mother’s sole parental responsibility until each of the children reach the age of 18 years.
2.That the mother ensure the children receive appropriate counselling and medical treatment if and when appropriate.
3.That the children spend time with the father following an independent expert Psychiatric assessment of the father and counselling and rehabilitation of the father, if appropriate.
4.That [the] children spend supervised time with the father only in a contact centre once per month following the father’s psychiatric assessment and rehabilitation and that the children’s expressed wishes about any contact with the father be taken into account.
The father resisted the mother’s appeal and sought to maintain the trial Judge’s orders.
The Independent Children’s Lawyer (“ICL”) sought to maintain the trial Judge’s orders.
On 31 January 2012 the mother filed an application for leave to adduce further evidence in the appeal pursuant to s 93A of the Family Law Act 1975 (Cth) (“the Act”). The further evidence sought to be adduced by the mother was contained in or annexed to an affidavit sworn by her on 30 January 2012.
background
The parties commenced cohabitation in 1993 and were married in 2003.
The mother is 38 years old and the father is 45 years old.
There are three children of the marriage, M born in February 2004, W born in June 2005 and L born in November 2006. The children are accordingly 8, 6 and 5 years respectively.
The parties separated in 2008.
Thereafter the children lived primarily, or exclusively, with the mother until shortly after 17 November 2008 when, pursuant to orders made by Bell J on that date, the children commenced to reside with the father and spend time with the mother on a weekly supervised basis.
The mother’s appeal against Bell J’s orders was heard by the Full Court (Finn, Thackray & Strickland JJ) in October 2009.
On 5 February 2010 the Full Court varied the order for parental responsibility to provide that “the father have sole parental responsibility for the children”.
The proceedings heard by the trial Judge on 9, 10, 11, 12 and 13 May 2011 arose from an application filed by the mother on 20 December 2010. This application was founded on new allegations made by the mother against the father that he had sexually abused and physically abused the children.
the grounds of appeal
In her Notice of Appeal, the mother articulated eleven grounds of appeal.
In support of those grounds, the mother filed a comprehensive “summary of argument”. Regrettably, although referring specifically to a number of them, the summary of argument did not address the grounds of appeal sequentially, or in a way which enabled the Court to readily identify to which ground or grounds of appeal the arguments articulated in the summary were directed.
In fairness to the mother, who was unrepresented before this Appeal Court, we propose first dealing with the grounds of appeal which, for reasons which will become apparent, can be disposed of in isolation from the mother’s summary of argument. We shall then address the remaining matters emerging from the mother’s summary of argument. Thereby, no issue of possible substance will not be addressed. The mother’s oral submissions to the Court reinforced the impression gained from her written material as to the issues of greatest concern to her. Our approach will reflect those emphases.
Grounds 1, 2, 3 and 4 were addressed conjointly in the mother’s written summary of argument. The submissions in support of those grounds encompass the major complaints of the mother.
Given that the lengthy written submissions in relation to them did not seek to differentiate between the four grounds, it is preferable, and fairer to the mother, that we address the summary of argument in support of the grounds rather than seek to identify and address submissions directed to the grounds individually.
Notwithstanding that observation, it is possible, and appropriate, to address discreet aspects of ground 3 of the mother’s Notice of Appeal at this stage. Ground 3 provided:
3.That Her Honour made the said Orders in the absence of any investigation or expert assessment of the father and two of the children.
A recurrent theme of the mother’s written and oral submissions, variously expressed, was that the trial Judge had determined the parenting proceedings between herself and the father in the absence of relevant expert opinion evidence, both with respect to the father, and to two of the parties’ children.
The mother submitted, correctly, that the trial Judge had proceeded in the absence of a Family Report, and in the absence of any “investigation or expert assessment” by State authorities or other relevant entities.
The mother’s complaints in relation to the asserted absence or inadequacy of “investigation or expert assessment” by State authorities are ancillary to this challenge, and will be further considered in the context of a number of complaints made by the mother in her summary of argument in the appeal, and a number of matters agitated by her in the context of her application for leave to adduce further evidence in the appeal.
Nothing to which we have been referred establishes that the trial Judge was ever requested to adjourn the proceedings to enable a Family Report to be prepared, or further investigations, or expert assessments to be undertaken by other persons or entities. Nor have we been referred to any evidence before the trial Judge which, in the absence of any party or the ICL asserting such desirability or necessity, should have impelled her Honour to have adjourned the proceedings to enable such reports, investigations or expert assessments to be undertaken.
The pivotal issues for determination by the trial Judge were issues of fact. It is difficult to see how further reports, based on interviews with the children would have been likely to impact on the determination of those issues. Further reports or investigations may well have been detrimental to the children’s welfare.
This aspect of ground 3 cannot succeed.
It is also possible, and appropriate, to deal with a discreet aspect of ground 4 of the mother’s Notice of Appeal which provided:
4.That Her Honour made the said Orders in the knowledge of the South Australian Government Agency, Families SA, having not investigated the child sexual abuse because ‘the screen was full’ and having advised Justice Bell in 2008 prior to the intial [sic] Trial in November 2008 ‘to give the children to the father to alleviate the concerns of the mother’ without any proper investigation of the abuse having taken place.
The mother, in her written submissions, articulated her complaint in this regard in the following terms:
2.…Her Honour erred in not even acknowledging that Families SA records state they were reasonably convinced the children had been sexually abused in 2008 and yet failed to carry out the full investigation their records state were warranted because they lacked the staff to do the investigation […], instead closing the case, and advising Bell J in 2008 before the trial to give the kids to the father in order to somehow to [sic] alleviate the concerns of the mother knowing that the children were at risk of sexual abuse in 2008 […]. The evidence from Families SA records that Bell J was told to give the children to the father before the 2 and [sic] half day trial even commenced in 2008 questions the objectiveness of all proceedings before the Family Court in this matter since then. … (Original emphasis)
The document to which the mother referred, issued by the South Australian Department for Families and Communities and dated 25 September 2008 recorded:
The Judge is well aware of concerns about [the] mother’s parenting from both CPS and [Ms D], FLC assessor. It appears reasonable to leave the matter in the hands of the FLC Judge given he has all of the relevant information. The Judge is aware that if he places the children with the father, concerns about the mother are alleviated.
The document also recorded:
FULL INVESTIGATION NOT REQUIRED RATIONALE (DUE TO OTHER SCREEN BEING FULL):
After discussion with CPS, it appears the sexualised play falls within the ‘normal range’ of play for children this age, concern is that the mother does not intervene to stop the play. Decision made between CPS, SAPOL and Families SA that an investigation into sexual abuse is not warranted as there are insufficient indicators to suggest sexual abuse has occurred. Furthermore [M] has been forensically interviewed 3 times at CPS earlier this year with no disclosures, and has not had any unsupervised contact with his father since.
The above mentioned document was clearly in evidence before the trial Judge (Exhibit E8).
Apart from the inherent improbability of Bell J having ordered that the children reside with their father because his Honour was “told to” by Families SA, we have been referred to no evidence establishing that Bell J was in any way impermissibly influenced by anything asserted by Families SA, or that his Honour had any communication with Families SA, other than in the course of the trial before him. Moreover, what an officer of Families SA asserted, or believed, that Bell J was “aware” of is not evidence that his Honour had such awareness.
The complaint does not appear to have been raised before the Full Court in 2009 when the appeal against the orders made in 2008 by Bell J was heard, but, given that Exhibit E8 appears to have been created on 13 May 2011, that is not a matter of great significance.
As we have not been referred to any evidence before Stevenson J that Bell J had been advised “before the trial to give the kids to the father”, it is unsurprising that Stevenson J did not refer to that matter in her Reasons for Judgment.
Quite apart from the unlikelihood of a Judge having been influenced in the way suggested, or having had regard to any matter not in evidence before him, this complaint is misconceived. Whatever the correctness in law of Bell J’s decision in 2008, or for that matter the decision of the Full Court in the appeal against it in February 2010, the trial Judge was obliged to, and did, have regard to the history of the children’s parenting subsequent to Bell J’s decision. The correctness or otherwise of Bell J’s decision, or any decision subsequent to it, did not change where the children had been living subsequent to that decision. Nor did it, or could it, have changed the facts and circumstances in which they had been living.
The trial Judge was obliged to, and did, consider the evidence before her, and particularly the evidence of allegations of abuse of the children by the father, in the context of where the children had been living since November 2008. To have done otherwise would have been conducive to appealable error. Similarly, it was for the trial Judge to make her own findings in relation to allegations of abuse. What Families SA may have been “reasonably convinced” of in 2008 was not evidence upon which her Honour could safely rely.
This aspect of ground 4 cannot succeed.
Ground 5 of the mother’s Notice of Appeal raised an issue which it is possible and appropriate to deal with as a discrete issue. Ground 5 provided:
5.That Her Honour made the said Orders in the knowledge that one of the children aged 6 provided a detailed disclosure to Police Officer [D1] in November 2010 of his father having ‘put his penis in his bottom and did a wee in his bottom’, and that child has never been assessed and the alleged crime has not been investigated by the Government of South Australia or the South Australian Police.
It was not asserted that the trial Judge misconceived the evidence before her in relation to the disclosure to Probationary Constable D1 in November 2010. Nor was it suggested that her Honour failed to have regard to any evidence in relation to the disclosures, or their aftermath.
It is not in doubt that her Honour was aware “that the child has never been assessed and the alleged crime has not been investigated by the Government of South Australia or the South Australian Police”.
Having referred to the mother and her then partner Mr Y having taken the child W to a Police Station on 7 November 2010 where he was interviewed by Probationary Constable D1, the trial Judge recorded the transcript of Constable D1’s interview with W and said:
117.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.
Her Honour further recorded:
179.Constable [D1] passed on the report to the Criminal Investigation Branch. He had no further involvement with the investigation.
On the afternoon of 7 November 2010 Detective H1 and another police officer attended the mother’s home. The trial Judge recorded the notes made of a statement given to Detective H1 by the mother:
181.…
[W] came into mothers custody 10am this morning from his father as per current court orders (family court)
6.5 hr access.
[W] normal in behaviour, happy to be home.
Was rubbing his penis area after a couple of hours saying it hurts.
Said it hurt down there. Took his pants off and pointed to area between testicles and anus.
Area looked raised but not red.
Dad rubs a metal thing in this area, couldn’t describe the item at all.
Straight after [W] said that his bottom was sore and that Dad did a wee in his bottom this morning and Dad does this every morning.
[W] said it hurt his bottom.
Asked where did Dad’s wee come from and he told me that it came from his Dad’s penis.
[W] said he was in toilet and his Dad came up behind him and did a wee in his bottom.
[W] said it was because Dad hates him.
Dad uses the metal thing on [W] when they watch children’s shows.
When looking at [W’s] anus I saw that he had some redness around his anus.
I think it was about 3:30pm that [W] told me about this. I took [W] to the HHPS to report this.
Also about 2pm [L] my 3 yr old daughter had been on the slippery dip. She had to come inside to get dry as the children had been playing with a hose in the yard.
While drying [L] and she said to me that things were sore down there and she put her hand in the area of her vagina. I didn’t look, but told her to tell the teachers at kindy. She said that Daddy hurt her.
The week before [L] had some redness in the area of her vagina, she said Daddy put things in there.
I felt I couldn’t report it or take her to the Dr because when I took [W] to the Dr Families Sa said it wasn’t sexual abuse.
I took [W] only to the Police Station.
It was because [W] told me about his Dad did a wee in his bottom that I decided I needed to report the incident to the police.
Her Honour then recorded:
182.The documents produced by Detective [H1] indicated that the matter was referred to the Sexual Crimes Investigation Bureau. CPS officers advised the police that they did not wish them to speak to the children. Two officers of Families SA visited the mother that afternoon and advised her to keep the children, despite the existing court orders. This advice was erroneous, as was acknowledged by the CEO of Families SA in his letter to a Registrar of the court dated 18 November 2010.
The trial Judge then proceeded to deal with an application for a recovery order filed by the father on 8 November 2010.
Nothing stated by her Honour in the paragraphs set out above was suggested to have been factually inaccurate.
As noted in the context of ground 3, we have not been referred to any application to the trial Judge to adjourn the proceedings to enable any relevant State authority to instigate or pursue any issue or aspect of the alleged abuse of W or L.
The trial Judge was clearly aware of the making of the allegations of abuse. The mother complained that the trial Judge erroneously failed to find that the allegations made by W to Probationary Constable D1 were made out. That aspect of the complaint we will deal with in the context of assessing the balance of the mother’s complaints as they emerge from her summary of argument.
Ground 5 however cannot succeed. The trial Judge was obliged to consider the evidence of alleged abuse which was before her. It was not her Honour’s function to seek further evidence of the possible guilt of the father, but to adjudicate without fear or favour on the issue by reference to the evidence presented to her. It is to be remembered that the children were represented before the trial Judge. This complaint recognises that there was no other evidence which could have been before her Honour. In reality, the complaint is that other or further evidence implicating the father should have been sought.
Ground 6 of the mother’s Notice of Appeal provided:
6.That Her Honour made the said Orders with no regard to the numerous independent reports of the sexual abuse of the 3 children and the fact they have been denied medical treatment when their genitals were either cut and bleeding or red and painful when urinating, as stated in the Independent reports.
In the absence of any clear link between ground 6 and any discreet portions of the mother’s summary of argument, it is preferable to deal with the ground in the context of an assessment of the mother’s summary of argument. It can be recorded however that the ground materially misstates the evidence which was before the trial Judge.
“Coaching” of the Children
Ground 7 of the mother’s Notice of Appeal provided:
7.The [sic] Her Honour made the said Orders with no regard to the fact that there is no evidence that the mother has done anything to harm her children or coach her children and that in fact all the mother has done, as a mother and a social worker, is obey the Mandatory Reporting Laws and make reports of what her children were saying and their sexualised behaviours which according to Families SA’s own records ‘it is reasonable to believe one or both of the boys have been sexually abused’.
Ground 8 is somewhat related and provided:
8.Her Honour gave no weight to the fact that it was the father who was coaching the oldest child, [M], in 2008, which is why Child Protection Services and Police requested the father leave the family home in the first place as is described in the 2008 CPS Report.
Although aspects of these grounds were agitated in the mother’s summary of argument, the issue of “coaching”, which was clearly a major complaint raised by the mother, can be conveniently dealt with at this stage.
As the Court endeavoured to explain to the mother, the starting point for our consideration of ground 7 is whether the trial Judge found, as the mother asserted that she had, that the mother had “coached” the children to make disclosures of sexual abuse by the father.
Neither the mother, nor Counsel for the father, nor the ICL was able to direct the Court to where the trial Judge expressly or impliedly found that the mother had “coached” the children to make disclosures. We have been unable to find for ourselves that the trial Judge made any such finding.
The mother referred the Court to paragraph 180 of the trial Judge’s Reasons in which it was recorded:
180.The father said that he asked [W] why he said these things to Constable [D1] when he saw his notes. He maintained that [W] replied: “because mummy told me to, she’s going to give me money and games”.
Neither there, nor anywhere else to which we have been referred, did the trial Judge find that the mother had in fact said what the father asserted that W had told him she had said. Whilst it is not in doubt that, for reasons which the trial Judge detailed, “the mother was shown to have exaggerated certain of her evidence”, and clear that her Honour preferred the evidence of the father to that of the mother, we have not been referred to any express or implied finding by the trial Judge that the mother had “coached” the children to make disclosures of sexual abuse by the father.
In cross-examination of the father by the mother, the following exchange occurred:
Thank you, Mr [Grange]. I’m just wondering if you think it’s possible that I could have coached a five year old to know what to say to Officer [D1’s] specific questions on 7 November?---You asked me if I think it’s possible; is that right?
Yes?---Throughout this whole proceeding you’ve said that you’re a social worker; that you’re an expert in this; that you’re well read in all these sorts of areas; I think it’s very possible.
Notwithstanding that the issue was thus raised by the mother, the trial Judge did not find the mother coaching the children to be a “possibility”, much less a probability. The trial Judge having not found that the mother had “coached” the children, this complaint cannot succeed. Nor can complaints asserting that the trial Judge’s discretion miscarried in that she erroneously found that the mother had “coached” the children to make disclosures of sexual abuse by the father.
Unsurprisingly in the circumstances, we have not been referred to any evidence which establishes “that it was the father who was coaching the oldest child, [M], in 2008, which is why Child Protection Services and Police requested the father leave the family home in the first place as is described in the 2008 CPS Report.”
This complaint thus cannot succeed.
Ground 9 of the mother’s Notice of Appeal provided:
9.Her Honour made the Said Orders with no regard to the contradictions and misleading information presented by the father during the 2011 Trial regarding the children’s physical injuries and the father’s medical neglect of the children’s physical health.
Other than to the extent that matters potentially impacting upon this ground were articulated in the mother’s written summary of argument, nothing to which we have been referred provides a basis for upholding this challenge. Nevertheless, as we have earlier indicated, in fairness to the mother, we will consider it in the context of her written summary of argument.
Similar observations apply to grounds 10 and 11 of the mother’s Notice of Appeal which provided:
10.Her Honour made the said the [sic] Orders in Breach of the United Nations Convention on the Rights of the Child were [sic] relevant Articles impose an obligation on Australian Courts and Governments to ensure serious reports of child sexual abuse are investigated properly and children are protected from further exposure and threats of serious sexual and psychological abuse.
11.Her Honour made the said Orders with no regard to the expressed wishes of the children, with a firm belief in the words of the father, even when contradictory and illogical, and with little or no belief in the words of experts such as Professor [X], Dr [G], The Relationships Australia Contact Centre, The Child Care centre, G.P.s and myself, a qualified social worker, thus Ordering the three children to remain at serious risk of further abuse and Her Honour having no basis in fact or legal jurisdiction to state the sexual abuse of the three children had not occurred when the weight of the independent evidence clearly suggests to any reasonable person that the children are at a serious and unacceptable risk of abuse while in the care of the father.
These grounds contain numerous complaints, some of which could not succeed, others being capable of success notwithstanding the manner in which they were articulated. Before addressing the complaints which may have substance, it is appropriate to refer to some which could not.
The mother has made numerous complaints about the South Australian Police, and other agencies’ conduct in relation to allegations of abuse of the children by the father over a number of years. In considering the mother’s further evidence application, the nature and extent of those complaints will be more closely considered. It is sufficient for present purposes to record that, whatever the merits of the mother’s complaints with respect to the conduct of State authorities or instrumentalities, they could not advance her challenge to the trial Judge’s decision.
The trial Judge determined the proceedings before her by reference to what the evidence revealed, rather than to what the mother asserted that it should have revealed. So doing involved no error of principle or discretion on the part of the trial Judge.
In the specific way to which we have earlier referred, and in other ways articulated in her written summary of argument, the mother complained about the parenting orders made by Bell J in 2008. As the Court endeavoured to explain to the mother, any asserted errors by Bell J were matters which the mother could have raised in the appeal to the Full Court against such orders. The mother was represented by Counsel in the appeal against Bell J’s orders.
To the extent that it was actually or potentially the case that the mother only became aware of the matters about which she now complains in the proceedings before Bell J well after those proceedings were determined on appeal, and that the mother’s complaints should have been considered, it is necessary to demonstrate in what way those matters rendered Stevenson J’s determination of the parenting proceedings in August 2011 erroneous in order for appellate intervention to be enlivened.
Nothing to which we have been referred establishes that anything which occurred during the course of the proceedings before Bell J would, could, or should have led Stevenson J to reach a different conclusion in the proceedings heard by her in 2011.
Although it has not been established before us, if, as the mother submitted, Bell J erred in ways not discernable by the Full Court on the evidence at that time, that could not have changed anything in the proceedings before Stevenson J. Her Honour was obliged to, and did, look at the evidence of what was, or had been, not at what should, or might have been, had Bell J made a different decision, or had the Full Court overturned his Honour’s decision in the manner the mother sought.
Challenges to the Trial Judge’s Findings of Fact
Central to the complaints of the mother in grounds 1 and 2, and, to a lesser extent grounds 6, 7, 8 and 9 of her Notice of Appeal was that the trial Judge erroneously failed to make the findings of fact urged upon her by the mother and/or erroneously made findings of fact adverse to the mother by erroneously rejecting evidence of witnesses relied upon by the mother, or by accepting evidence of witnesses which was adverse to her, or by giving excessive weight to evidence which was not favourable to her case, or by giving inadequate weight to evidence which was favourable to her case.
Whilst the mother may not appreciate it, the fact that other findings may have been open to the trial Judge on the evidence before her does not of itself render the findings made by her Honour erroneous. To enliven appellate intervention, it is necessary for the mother to demonstrate that the trial Judge’s findings were not reasonably open to her, either because she erroneously accepted evidence which should have been rejected, or rejected evidence which should have been accepted, or gave excessive or insufficient weight to evidence which was accepted. The authorities in this regard are not in doubt and do not require re-statement for present purposes (see SS Hontestroom v SS Sagaporack [1927] A.C. 37, Abalos v Australian Postal Commission (1990) 171 CLR 167, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588, Voulis v Kozary (1975) 180 CLR 177 and Kamano & Kamano [2011] FamCAFC 189).
The Evidence of Emeritus Professor X
As is not in doubt, a major witness in the mother’s case before the trial Judge was Emeritus Professor X who swore an affidavit on 6 February 2011. Over objection by Counsel for the father and the ICL, the trial Judge received Emeritus Professor X’s affidavit in evidence, with the exception of paragraphs 29 and 30 which asserted:
29.The contact supervisor, [Mr Y] told me at this time that he has experience as a criminal lawyer and that he couldn’t cope with the situation any more. He said that he was present when one of the boys arrived for contact with a bleeding bottom. The boy said that his dad did it. [Mr Y] said there were symmetrical cuts in the vicinity of the anus and he bled profusely in the toilet. He said that this was reported to police and Detective [M1] took the boy into his car to interrogate him and single-handedly diagnosed this as a symptom of “constipation” without the benefit of a specialist forensic examination. He said the detective then returned the child to the father, the person the child has consistently identified as the perpetrator of the sexual abuse that he reported.
30.[Mr Y] told me at this time that on another occasion, he overheard all three children describing sexual abuse by their father while they were at a playground at […]. He told me that he felt emasculated and helpless because he could do nothing to protect the children. He said he feared for all their lives given the frequency of anonymous threatening phone calls received, some of which were traced to the children’s paternal grandfather. I have since been informed by Ms [Langmeil] that Mr. [Y] left and has not returned to the house.
The trial Judge was entitled to strike out those paragraphs, they clearly being hearsay. Even if, contrary to our conclusion, her Honour should have allowed that evidence, presumably pursuant to s 69ZT of the Act, in the absence of Mr Y adopting it on oath or affirmation, and being able to be cross-examined, no weight could safely have been afforded to it.
On 4 March 2011 the mother was given leave to issue a subpoena to Mr Y to give evidence, but the mother was apparently unable to effect service of a subpoena upon Mr Y. We have not been referred to any subsequent attempt to adduce evidence of paragraphs 29 and 30 of Emeritus Professor X’s affidavit in a form that was admissible.
The trial Judge recorded in relation to the evidence of Emeritus Professor X in her Reasons for Judgment:
66.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.
67.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 social worker, 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 [sic] the child sexual abuse and receive appropriate treatment. These children are consistently identifying that person as being the father.
68.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.
69.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.
70.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.
Her Honour’s approach to the evidence of Emeritus Professor X was in our view fair to the mother, correct in law, and consistent with authority (see Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and the judgment of Branson J in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354). To set out in detail the trial Judge’s reasoning in relation to the evidence best reveals why we conclude as we do with respect to it.
Her Honour explained in relation to her conclusions with respect to the evidence of Emeritus Professor X:
71.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 the University of South Australia. 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.
72.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.
73.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’”.
74.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”.
75.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.
76.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”.
77.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.
78.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 on […] January 2011. He purported to quote Emeritus Professor [X] and wrote details which could only relate to the present case. The article read in part ─
[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.
Having referred to the rules governing expert opinion evidence, her Honour recorded:
82.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.
83.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”.
84.Cross-examination established that Emeritus Professor [X] received the DVDs and a copy of at least one of the reports of [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.
85.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.
86.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.
87.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.
88.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.
89.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 social worker, 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 trained social worker 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.
90.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”.
91.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.
92.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”.
93.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.
94.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.
95.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.”
96.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.
97.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.
Nothing to which we have been referred establishes that the conclusion expressed by the trial Judge in relation to the evidence of Emeritus Professor X was not reasonably open to her or that, in reaching such conclusion her Honour palpably misused her advantage as the trial Judge. The law in relation to challenges of the kind the mother raised with respect to the evidence of Emeritus Professor X is not in doubt, and does not require re-stating in detail. In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 at page 619 Kirby J said:
90.The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified. (Footnotes omitted)
No fact or circumstance referred to by the trial Judge in the context of her evaluation of Emeritus Professor X’s evidence has been shown to have not been reasonably open to her. To the extent that the mother complains that the trial Judge erroneously failed to accept Emeritus Professor X’s opinion evidence, those complaints have not been made out. Other than asserting that she did not agree with them, and that they were adverse to her case, as clearly they were, no basis in law for disturbing the trial Judge’s findings with respect to the evidence has been established by the mother.
The Evidence of Dr G
The evidence of Dr G, a psychiatrist upon which the mother sought to rely was identified by the trial Judge in the following terms:
98.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.
Her Honour observed:
99.The reports of [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”.
Her Honour then said with respect to Dr G:
100.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 W.C.H. 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.
101.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.
102.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.
103.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.
104.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.
105.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.
…
107.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.
For reasons which she indicated, by reference to the judgment of the Full Court of 5 February 2010, the trial Judge recorded:
110.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”.
Her Honour ultimately concluded:
111.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.
Nothing to which we have been referred establishes that the conclusion expressed by the trial Judge was not reasonably open to her or that, in reaching such conclusion, her Honour palpably misused her advantage as the trial Judge.
As with the mother’s summary of argument with respect to Emeritus Professor X, it is unhelpful, and unnecessary, that we engage with each and every matter articulated by her. To read the summary of argument is to appreciate why that is so.
The Evidence of Dr B
To the extent that the mother’s submissions refer to a Dr B, we have not been referred to any attempt by the mother to adduce evidence from Dr B before the trial Judge. Whatever Dr B’s evidence might have established in those circumstances it cannot advance the mother’s complaints to this Court.
The Evidence of Ms A
The mother’s submissions refer to the evidence of Ms A, a court ordered supervisor who provided records of observations of the mother’s supervised contact with the children at the mother’s home between January and April 2010. The observation notes were attached as an annexure to the mother’s affidavit of evidence-in-chief sworn 18 April 2011. The evidence was not before the trial Judge at the hearing. As the mother submits that her Honour erred by not admitting the evidence of Ms A, it is relevant to set out part of her evidence here:
The children got out of the car and came inside and all three children were happy to see their mother, [W], their grandmother and me. Once inside we all noticed that [L] had a huge bump on her forehead with bruising but some of the bruising was starting to yellow so it was not new. [Ms Langmeil] asked [L] how it happened and [L] said that [W] had pushed her over at kindy. [Ms Langmeil] asked [W] why he had pushed [L] and he replied that he hadn’t done it and it wasn’t him. [M] then said [L] had tripped over in the park. After half and hour or so, [L] complained of a sore head and sore eyes and she looked to be not herself, looking apathetic and lethargic. She didn’t want to play with the others and was very quiet. [Ms Langmeil] was very concerned and we took [L] to the Children’s Hospital to get a doctor to check her. [Ms Langmeil], [W], the grandmother and I took all 3 children to the hospital. After checking [L] in we waited in the waiting room to be seen.
While the trial Judge made no specific mention of Ms A’s evidence to explain why it was not included, she did record at paragraph 53 that “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” ” which Justice Dawe had, on 4 March 2011, directed the parties not to include in their affidavits of evidence in chief. It is also apparent at paragraph 54 of the Reasons that counsel for the father and the ICL took objection to a number of annexures to the mother’s affidavit on the basis that the authors would be unavailable for cross-examination.
In the absence of other evidence, and we have not been referred to any, adversely impacting upon the father, nothing said by Ms A, could or should have caused the trial Judge to reach different conclusions to those which she recorded. Accordingly, we do not consider her Honour erred by not admitting this evidence.
The Evidence of Dr J
It is not entirely clear what the mother’s complaint is with respect to the trial Judge’s reliance upon the evidence of Dr J. Dr J saw the child W as a result of a report to the police by the mother’s then partner Mr Y, as the trial Judge recorded:
149.On 29 August 2010 the children’s time with the mother was supervised by Mr [Y]. The mother alleged in her affidavit:
On 29 August 2010 my five year old [W Grange] called out to me from the toilet. When the court ordered supervisor, Mr [Y], (now my ex-partner) and I went to the toilet [W] showed us the blood coming from his bottom into the toilet. I wiped the blood from his bottom and [W] said his bottom was sore. I asked him to turn around so we could have a look and Mr [Y] and I saw that he had cuts around his anus. I asked him what had made his bottom sore and [W] replied that ‘Dad had hurt his bottom’.
The trial Judge then referred to Dr J’s evidence and recorded:
160.Dr [J] examined [W] on 29 August 2010. He noted:
29-Aug-2010
child brought by mother and her partner
child normally in care of his father who will have hom back tonight
passed blood pr today, bright and copious
when asked told mum that his father did it to him
have been prev concerns expressed re father’s care
when asked [W] was very hard to engage but in the end said he fell out of bed and hit his bottom on a cupboard and father picked him up
when asked if anything else happened said no but was distracted and playing at time
examined with mum and her partner present
some small amount of faecal matter around anus
no bruising seen
has 1 small fissure antrly at 12 o’cl and two postrly around 6 and 7 o’clock
superficial, not bleeding
tender
no internal done
discussed with mum option of going to wch for review but says has to give back to father at 4:30pm (now) so cant
Mum has however reported to police already and forensic exam booked for tomorrow
Rang child abuse report line and notified
161.Dr [J] examined [W] on the same day that the mother alleged that “his anus was cut and bleeding”, as she wrote in her Case Outline. His observations of “small fissure[s], superficial, not bleeding” do not support the mother’s allegations of the condition of his anal region. It appears that her contention was, at best, an exaggeration. Notably, [W] told Dr [J] as well as Detective [M1] that he had fallen out of bed.
162.In his affidavit sworn on 26 November 2010 Dr [J] deposed:
Following my examination of [W Grange] on 29/8/10, I expressed the opinion that it was not possible to determine whether the injuries were sustained as the result of sexual abuse or natural causes, both being a credible potential explanation.
In his oral evidence Dr [J] confirmed that police notes accurately reflected what he told an officer. These notes read, inter alia,: “[Dr J] advised he had examined the child and told [Ms Langmeil] he had some small fissures on his anus; the cause could be the result of abuse however it was not uncommon in young children this happens during constipation when defaecating.” The same police notes read: “[Ms Langmeil] stated doctor said it appeared that the child had been abused”. Dr [J] made no such assertion. Again, it appeared that the mother exaggerated what Dr [J] told her when she spoke to the police.
163.In his oral evidence Dr [J] said that he would have referred the matter if the mother had not told him that a forensic examination had been arranged for the following day. He explained that he would not usually make a referral in relation to a five year old with anal fissures but he did so in this case because of concerns expressed by the mother. [AB1: 55-6, pars 160-3] [Errors as in original]
Nothing to which we have been referred establishes that the trial Judge misunderstood the evidence given by Dr J. Nor has it been established that her Honour failed to record anything of significance which emerged from Dr J’s evidence.
Other General Complaints of the Mother
Whilst in many instances it is ultimately less than clear what the mother’s complaint is with respect to the trial Judge’s decision, other than that it was adverse to her, and that she disagrees with it, with all due respect to the mother, many of the complaints articulated in her summary of argument proceed in reliance upon either a failure to understand, or a tendency to misrepresent the trial Judge’s findings of fact.
The trial Judge referred to the mother’s affidavit and recorded in that regard:
164.In her affidavit the mother contended that the police gave two possible explanations for “[W’s] injuries”, these being “caused by furniture” or by constipation. In her oral evidence the mother said: “I was quite surprised by what Detective [M1] said yesterday when he offered a third explanation, that the father’s hand caused the injury. I can’t understand how fingers could cause cuts on an anus unless he had razor blades on his fingers.” This odd statement was far from an accurate portrayal of Detective [M1’s] evidence. He said that both [W] and the father told him that he picked him up after he fell out of bed. Obviously, the father used his hands when he picked the boy up from the floor.
W was seen by Detective M1, who gave evidence pursuant to a subpoena issued by the mother. Her Honour recorded in that regard:
153.The mother said that Detective [M1] told her that she could arrange for [W] to be examined by a general practitioner that day if she so wished. She took him to see Dr [J], to whose evidence I refer shortly. On 30 August 2010 she telephoned Detective [M1] to enquire about the results of [W’s] forensic medical examination. She maintained that he told her that there would be no assessment because he was convinced that no crime had been committed.
Her Honour further recorded with respect to the evidence of Detective M1:
154.The mother made enquiries of senior police about this decision. She claimed that an officer told her that “[W] is not going to be assessed because police have spoken to the doctor and decided that [W’s] injuries are the result of constipation”.
…
156.Detective [M1] explained that he had not taken [W] for an immediate medical examination because:
The blood in the toilet had been flushed…I wanted to speak to him…you would have had to part the cheeks of his bottom to see cuts around his anus.
He said that he asked to see [W’s] underwear and observed faeces marks but “no sign of blood”. He said also that he, as investigating officer, needed to be convinced that an offence had occurred before he set in motion an “intrusive” process.
157.During his interview of [W], Detective [M1] made notes which were a summary rather than a verbatim account. The notes were not in evidence but Detective [M1] gave a clear account of his conversation with [W]. He said: “It was not my opinion that any furniture was involved. The child told me that he fell out of bed and his father came in and picked him up. The position he picked him up in hurt him and when the position changed, it no longer hurt”. Detective [M1] said also: “He said nothing about sexual abuse, anuses or penises. He said his father hurt him by the way he picked him up and demonstrated a cupped hand”.
158.Detective [M1] interviewed the father, who told him that [W] had fallen out of bed during the night. He said that he picked him up and put him back to bed. He asked to see [W’s] bedroom, which the father said had been tidied since the incident.
159.Detective [M1] said that he told the mother only that [W] may be forensically interviewed. He referred the matter to the Sex Crimes Unit and his involvement in the investigation ceased. He said that members of the Sex Crimes Investigation Unit and the forensic team at the Womens and Childrens Hospital probably made a joint decision not to proceed with a forensic interview and medical examination of [W]. Detective [M1] said that he “never heard of police saying the injuries were due to constipation”.
Against her extensive review of the evidence before her, the trial Judge summarised the findings which led her to conclude that she was not satisfied that the father had sexually abused any of the children:
211.I am not satisfied that the father sexually abused any of the children, and I so find, for the following reasons:
·the boys’ behaviour on the DVDs is capable of alternate interpretations, as explained by the Full Court
·Emeritus Professor [X’s] methodology was flawed to the extent that her opinions are positively unhelpful
·[L’s] nappy rash and redness in December 2008 is in no way necessarily connected with sexual abuse
·an innocent explanation exists for [W’s] red penis and pain on urination in May 2009, that being that [M] jumped on him while playing on a trampoline
·the medical examinations of [W] and [L] in March 2010 revealed no abnormalities
·the mother exaggerated the condition of [L’s] genitals in December 2008 and [W’s] anus on 29 August 2010
·the children denied to police officers on 31 October 2010 that the father forced them to watch pornography
·on 31 October 2010 [W] told police officers that his bottom had “not really” been bleeding and that his mother was “a liar”
·[W] had been questioned by police officers about his anus and possible sexual abuse only a few days before his statements of 7 November 2010
·The father maintained that [W] told him a few days before 7 November 2010 that Mr [Y] intended to take him to a police station “and get his father into trouble”
·the circumstances of [M’s] conversation with Emeritus Professor [X] on 7 November 2010 are unclear and suspicious, as is the creation of his letter “for the police”
·the father claimed that [W] told him that he made complaints to Constable [D1] because the mother had promised him a reward
·the father made convincing denials on oath that he sexually abused any of the children
·the mother was shown to have exaggerated certain of her evidence and that of the father is to be preferred
None of the findings of fact there referred to has been shown to have been other than reasonably open to the trial Judge. Those findings were relevant to determining the allegations of abuse against the father. Only the father and W know the truth about those allegations. The father could not demonstrate that he was innocent. The trial Judge did not find the father “innocent” of the allegations. The mother could not demonstrate that the allegations were true.
The trial Judge examined all of the evidence before her, which was capable of impacting on the probabilities. Her Honour has not been shown to have overlooked any relevant fact or circumstance, or to have had regard to any irrelevant fact or circumstance. No fact relied upon has been shown to have been afforded excessive or inadequate weight.
In M v M (supra at page 76) and B v B (supra) the High Court said with regard to the consideration of allegations of sexual abuse in custody or access contexts:
The consequence is that 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. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke. Viewed in this setting, 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. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
With respect to the submissions of the mother, nothing to which we have been referred establishes that the trial Judge did other than proceed in the manner that the High Court suggested in M v M (supra) and B v B (supra) to be appropriate.
No complaint raised by the mother in relation to the allegations of abuse against the father has been established.
The United Nations Convention on the Rights of the Child
Ground 10 of the mother’s Notice of Appeal provided:
10.Her Honour made the said the [sic] Orders in Breach of the United Nations Convention on the Rights of the Child were [sic] relevant Articles impose an obligation on Australian Courts and Governments to ensure serious reports of child sexual abuse are investigated properly and children are protected from further exposure and threats of serious sexual and psychological abuse.
The mother submitted in support of this ground:
10.The mother questions how the Family Court of Australia can make rulings in clear contravention of the UN Convention of the Rights of the Child which Australia has ratified and is required under International Law to adhere to. Appropriate interviewing of children following their disclosure of sexual abuse is required according to the Children’s Rights set out in the United Nations Convention on the Rights of the Child (1989, Articles 19 (2), 34 (a), (b), (c)). This has not occurred on any of the occasions when sexual abuse has been reported.
Articles 19(2) and 34(a), (b) and (c) of the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS (entered into force 2 September 1990) (“the Convention”), as referred to by the mother, provide:
19(2).Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
…
34.States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:
(a) The inducement or coercion of a child to engage in any unlawful sexual activity;
(b) The exploitative use of children in prostitution or other unlawful sexual practices;
(c) The exploitative use of children in pornographic performances and materials.
International treaties, such as the Convention, to which the mother has referred, when ratified by Australia, find expression in the domestic laws of Australia. Although not expressed in such terms, the matters articulated in Article 34 of the Convention find expression in Part VII of the Act, and particularly in provisions such as s 60CC(2)(b) of the Act. The trial Judge’s consideration of the issues before her, and application of the provisions of Part VII of the Act encompassed the substance of each of the matters articulated in Article 34(a), (b) and (c) of the Convention. The trial Judge’s undisturbed findings of fact preclude any suggestion that any of the rights of the child referred to in Article 34 of the Convention had been breached.
As is apparent from its terms, Article 19 of the Convention is directed to governmental or other agencies charged with administering what might be broadly described as “child welfare” protocols, programs and initiatives.
As a Judge exercising jurisdiction created by a Commonwealth statute, her Honour was constrained by the terms of the legislation which she was applying, and the powers vested in her by that legislation. The trial Judge had no power to do, or order others to do, the things referred to in Article 19 of the Convention. Other agencies or entities clearly have those powers pursuant to State and Federal legislation. The trial Judge’s failure to apply, or engage with Article 19 of the Convention could not enliven appellate intervention.
No ground of appeal having been made out, it is necessary to consider the mother’s application to adduce further evidence in the appeal.
further evidence application
The further evidence sought to be adduced by the mother falls within two categories. The first of those categories relates to the investigation of the mother’s allegations of abuse of the children by the father. The second relates to evidence of the actions of and statements by the children subsequent to the trial Judge’s decision.
As this Court sought to explain to the mother, the allegations made by her with respect to the conduct of State authorities are not matters which this Court can pursue. Nor can this Court direct the State authorities in relation to the discharge of their duties pursuant to State laws. This Court can only proceed on the evidence before it, although the absence of evidence that might reasonably be expected may, in appropriate circumstances, provide a basis for drawing inferences or making findings of fact.
The Court cannot conjecture as to what might have been. Nor can any inadequacy or deficiency in the discharge of duties or obligations of State authorities advance criticisms of the decision of the trial Judge. Notwithstanding that such matters may have impeded the mother’s attempts to prove her case at trial. For the reasons we have earlier articulated, none of the mother’s challenges to the trial Judge’s decision in reliance upon such complaints has been established.
The mother relied particularly upon a letter sent to her by the Chief Executive of the South Australian Department for Families and Communities dated 23 May 2011 in which it was stated:
… I note your recent allegation that someone in my Department has acted improperly in communicating with Justice Bell. If you have concern that any person has interfered with the independence of the Family Court, then you should take that matter up with the Family Court. ...
As the Court suggested to the mother during the course of her submissions, neither that letter, nor any evidence to which we have been referred, advances the mother’s assertion that anyone from the Department had ever communicated with Bell J, either improperly or otherwise. More importantly for present purposes, even if, notwithstanding the absence of any evidence that there had been, and the improbability of there ever having been such communication, nothing to which we have been referred advances the mother’s challenge to the trial Judge’s decision.
Again, without suggesting that there is any rational basis for imagining that it could have occurred, if the mother remains concerned “that any person has interfered with the independence of the Family Court”, then as the Chief Executive of the Department for Families and Communities suggested, the mother could write to the Family Court raising that concern, confident in the knowledge that her inquiry would be answered.
The mother also relied upon a letter sent to her by the Police Complaints Authority on 25 July 2011. Whether or not the “conclusion” recorded in that letter was correct or incorrect, the mother’s challenge to the trial Judge’s decision could not be advanced by it.
If the mother remains dissatisfied with the adequacy of the actions of the Police, or review of such actions by the Police Complaints Authority, that is a matter which she should pursue through the appropriate State channels. It is not a matter which could advance her challenge to the trial Judge’s decision in this case.
The mother also relied upon a letter sent to her by the Minister for Education and Child Development in the Government of South Australia dated December 2011 in which it was stated:
… Notwithstanding the conclusions of the independent review and Family Court noted above, consideration is being given to the recommendation of the review to undertake a family assessment. For such an assessment to proceed, Families SA will require the consent of Mr [Grange] as the children’s Guardian. However, I note that given your advice that you are appealing the decision of Justice Stevenson in the Family Court, an assessment will not be considered until the outcome of your appeal is known.
I note that the concerns you are now raising are substantively the same as you have previously raised with the former Minister for Families and Communities. I remain satisfied that my Department has responded appropriately in respect of the decisions made and actions taken.
Families SA will contact you regarding the proposed family assessment once the outcome of your Family Court appeal is known.
As this Court endeavoured to explain to the mother, the correctness or otherwise of the actions of the Department in the past, are not matters which can be shown to render the trial Judge’s decision erroneous.
As was also explained to the mother, child welfare laws remain principally a matter for the operation of the laws of the State of South Australia, and are not matters in respect of which this Court has any supervisory, directive or interventionist powers.
The second category of further evidence sought to be adduced in the appeal by the mother is contained in a document headed “Access Visit Child Abuse Report” and was prepared by Ms T. The document refers to supervised time spent by the mother with the children on Saturday 20 August 2011 at … High School. The report records:
On arrival all three children were overly excited to see their mother, [W] has made her a scarf which she put on, everyone was enthusiastic to get to the classroom and play. Mr [Grange] was under the understanding that he was to be the supervisor and had not communicated with his lawyers that I was to be there. He was quite angry and insisted on seeing evidence that this was the case, [Ms Langmeil] showed him copies of emails between her and his lawyer which was accepted.
Once we were inside [Ms Langmeil] played with the three children, give them a snack and some presents, Mr [Grange] watched over the children as they played. The children choose not to associate much with Mr [Grange], [Ms Langmeil] and all three children were keen to go outside but had to wait until a time that suited Mr [Grange] for no apparent reason. Once we were outside the boys flew toy helicopters and [L] blew bubbles with [Ms Langmeil]. Mr [Grange] was sent to find a ball, the children’s attitudes changed immediately! They seemed to be more relaxed and were comfortable around [Ms Langmeil]. Once Mr [Grange] returned he attempted to join in playing soccer with the boys, he was told by [W] that he wasn’t allowed to play and that he wanted me to play with him instead.
After a few hours of similar activities and situations we went back inside for lunch. [L] was becoming particularly clingy to [Ms Langmeil] after she was told it was not long until she had to go. I was sitting in the doorway playing with [W] and watching interactions with [Ms Langmeil] and the children when Mr [Grange] passed her a piece of paper in front of [L] saying “all contact visits from now on will be in a contact centre, here is the name and address” this upset [L], she was crying and saying “I want to go to Mummy’s house!!” Mr [Grange] did not seem to mind that [L] was upset as he carried on his business. I followed [Ms Langmeil] out into the corridor where herself and [L] had a conversation, [L] said that she wants to go to Mummy’s house and live with Mummy because she loves Mummy. She also stated that she wants to see Q ([Ms Langmeil’s] other son – not related to MR [Grange]), she also made [Ms Langmeil’s] promise that she will never give up fighting for her back. After cheering [L] up a bit all the children decided that they wanted to go outside again, because there was only about half an hour to go we packed up the room and went outside.
During this time the children realised that there was not much time left, [W] then wet his pants, [L] became upset again and [W] was very quiet and withdrawn. [L] spent most of the time from now on clinging onto [Ms Langmeil’s], she was repeating “I don’t want you to go Mummy,” “I want to go to your house Mummy” and pretending that Mr [Grange] had said it was ok for her to go to [Ms Langmeil’s] house. [M] was doing some activities by himself and I was playing soccer with [W] under the intimidating watchful eye of Mr [Grange].
When it was time for myself and [Ms Langmeil] to leave the children they were all crying and didn’t want us to leave them. [L] was grabbing [Ms Langmeil] by the leg and would not let her go, Mr [Grange] forcefully pulled her off of [Ms Langmeil] as we walked out the door. All children were then crying with their faces pressed against the window as we left, it was very sad to see.
Other Notes:
-Throughout the day both of the boys ─ but in particular [W] were touching their genitals constantly
-[L] asked Mr [Grange] if he could remove her leggings rather than doing it herself or asking someone else to (Mr [Grange] looked anxious when this happened and quickly said ‘you can do it yourself’)
-[W] did not want to go with Mr [Grange] to clean up or go to the toilet after he had wet his pants [Errors as in original]
Ms T’s qualifications or experience are not apparent from either the report, or any other evidence to which we have been referred. As is readily apparent, whilst some of the report purports to quote the children and/or the father, other statements asserted to have been made by the children have been paraphrased in numerous and significant respects. Similarly, conclusions which Ms T could not properly have drawn, whatever her qualifications or experience, appear in the report, the most significant being the reasons she ascribes for W wetting his pants. What was intended to be conveyed by the reference to the child “pretending” is unclear.
As a balanced reading of Ms T’s report reveals, accepting that she saw what she states that she saw, or heard what she states in the first person that she heard, far from acceptance of her evidence rendering erroneous the trial Judge’s decision, it is in fact entirely consistent with the findings the trial Judge made, and almost to be expected in the light of those findings.
In CDJ v VAJ (1998) 197 CLR 172 the majority (McHugh, Gummow & Callinan JJ) at page 201 said:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
The further evidence relied upon by the mother, if accepted at face value, may or may not demonstrate that the trial Judge’s assessment of the father was unduly favourable. However, the further evidence would not establish that her Honour’s findings in relation to issues which were pivotal to her decision were not reasonably open to her, or that her decision was erroneous.
The further evidence application will thus be dismissed.
costs
Counsel for the father sought an order for costs in the event of the appeal and application for leave to adduce further evidence in the appeal being unsuccessful.
It was, fairly, conceded by Counsel for the father that the mother has no assets or property of significance.
Counsel for the ICL did not seek any order with respect to costs.
The mother opposed any order for costs being made. The mother confirmed that she has no assets or property of any significance, that she is not currently employed, and that she is in receipt of a single parent benefit.
Notwithstanding that the mother’s appeal has been wholly unsuccessful, and without in any way suggesting that impecuniosity is necessarily a shield to an order for the costs of an unsuccessful appeal, we are not of the opinion that the circumstances of this case justify an order for costs being made against the mother.
I certify that the preceding one hundred and sixty one (161) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Ainslie-Wallace JJ) delivered on 16 March 2012.
Associate:
Date: 16.03.2012
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