Leighton & Carey
[2010] FamCAFC 94
•26 May 2010
FAMILY COURT OF AUSTRALIA
| LEIGHTON & CAREY | [2010] FamCAFC 94 |
| FAMILY LAW - APPEAL – CHILD ABUSE – Mistake of fact – Trial judge found child had been abused – By process of elimination trial judge found the father was the only adult with the opportunity to engage in such behaviour – Such a finding was inconsistent with the evidence – Evidence that child spent time with maternal grandmother’s partner and mother’s new partner – Finding fundamental to the entire decision – Appeal allowed – Matter remitted for re-hearing. FAMILY LAW - APPEAL – DISCRETIONARY MATTERS – Whether conduct of the trial and the father’s representative resulted in an unfair trial or unfair result – Whether trial judge focussed on personalities rather than evidence – Grounds not persuasive – No merit to appellant’s submissions. FAMILY LAW - APPEAL – COSTS – Respondent and Independent Children’s Lawyer applied for certificates – Appeal succeeded on error of law – Certificates granted to respondent and Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 |
| B and B (1993) FLC 92-357 B & J [2009] FamCAFC 103 De Winter and De Winter (1979) FLC 90-605 House v The King (1936) 55 CLR 499 In the marriage of Schorel (1990) FLC 92‑144 M v M (1988) 166 CLR 69 Nudd v the Queen (2006) 225 ALR 161 OP v TP and Another (Conduct of Counsel) (2003) 30 Fam LR 281 |
| APPELLANT: | Mr Leighton |
| RESPONDENT: | Ms Carey |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 11394 | of | 2007 |
| APPEAL NUMBER: | NA | 103 | of | 2008 |
| DATE DELIVERED: | 26 May 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Thackray and Strickland JJ |
| HEARING DATE: | 15 February 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 October 2008 |
| LOWER COURT MNC: | [2008] FamCA 868 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
SOLICITOR FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Brasch |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The appeal is allowed.
The applications of the mother and the father be remitted for re-hearing in the Family Court of Australia at Brisbane.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal against the parenting orders.
The Court grants to the respondent and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent and the Independent Children’s Lawyer in respect of the costs incurred by the respondent and the Independent Children’s Lawyer in relation to the re-hearing of the application.
IT IS NOTED that publication of this judgment under the pseudonym Leighton and Carey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 103 of 2008
File Number: BRC 11394 of 2007
| Mr Leighton |
Appellant
And
| Ms Carey |
Respondent
REASONS FOR JUDGMENT
Introduction
On 17 October 2008 orders were made adjourning the applications of the father and mother for parenting orders to 12 November 2008. It was ordered that until further order, the father have supervised time with his daughter K, born December 2001, as may be agreed between the father, the mother and the Independent Children’s Lawyer. It is from that order that the father appeals. It was also ordered that a Family Consultant provide the court with a report at the further hearing of the matter in relation to the supervised time.
The supervision was to take place pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”) by a Family Consultant, being a person nominated by the Manager of Child Dispute Services, Brisbane Registry of the Family Court.
The parties’ applications before the trial judge were for parenting orders in relation to K aged 6 years. The father was seeking orders for shared parental responsibility and equal time, and the mother was seeking orders for sole parental responsibility and supervised time with the father. The mother appeared without lawyers at the trial; the father was represented. The parties were not represented at the appeal.
The trial judge, Jordan J, made a finding that the child had been sexually abused and that “the father was the only other adult who is likely to have had the opportunity to engage in such behaviour”. (Reasons [77])
At the commencement of his reasons his Honour said:
10.The Court should exercise appropriate caution in deciding whether positive findings should or should not be made. Positive findings impact heavily upon all family members. If a trial Judge elects to consider making positive findings on the issue of abuse, it is clear from the law that a Court should not make such a finding unless it can be satisfied according to the civil standard of proof referred to in Briginshaw v Briginshaw (1938) 60 CLR 336, that is, that findings against a person accused of such matters should be made only upon convincing evidence and upon a firm satisfaction.
In view of the nature of the appeal it is necessary to repeat part of his Honour’s reasons in relation to the findings about sexual abuse of the child and the identification of the father as being “likely” to have been responsible. His Honour said:
75.Taking account of all of the evidence, I have formed a firm conviction that [K’s] statement and presentation in 2004 and 2006 was that of a child who had experienced sexual abuse.
76.It then remains incumbent upon me to consider if I am able to determine the identity of any perpetrator or perpetrators of such abuse and, in particular, whether the father should be found to be a person engaged in such behaviour.
77.During the key periods of 2004 to 2006, the only constants in [K’s] life were her mother, the maternal grandmother and the father. It would appear on the evidence that she had very limited exposure to other potential perpetrators of abuse. There is absolutely no evidence whatsoever to implicate either the mother or the maternal grandmother in such behaviour. It follows that the father was the only other adult who is likely to have had the opportunity to engage in such behaviour.
78.I accept the mother’s evidence that the child made a number of disclosures which directly identified the father as the perpetrator. I note that there is further evidence wherein [K] made a statement and drew some pictures which indicated she may have been exposed to knowledge of the father’s appendage, which I need to acknowledge at the same time is capable of both innocent and sinister explanations.
…
81.Having concluded to a firm degree that [K] has been sexually abused and having taken account of all of the direct and indirect evidence on the subject, there is, on the evidence, no other explanation available other than that offered by the child herself, that is, that her father touched her inappropriately in some ways during periods that she was at his home in and around 2004 and 2005.
82.As unpleasant as the task is, I have concluded in this matter that I should find to the required higher standard that, in the past, the father has exposed his daughter to inappropriate sexual touching and behaviour which has been responsible for the child’s observed disturbed and unsettled presentation, as I have set out in this judgment.
In the reasons delivered by the trial judge on the day of the hearing he explained the competing applications of the parties to which we have already referred. How the hearing was conducted is of some significance in the appeal as the father complains of lack of procedural fairness. His Honour observed at the outset:
3.The parties and the independent children’s lawyer have agreed that the issue of the past sexual abuse of [K] and the assessment of ongoing risks should be assessed as a discrete and preliminary issue and the evidence and submissions to date have been directed to that matter.
There is no suggestion, nor could there be that his Honour failed to apply the correct principles in relation to the allegation of sexual abuse made by the mother. His Honour correctly described the proper approach.
Reasons for judgment
Under the heading “background”, his Honour described the key factual matters:
11.After a short relationship, the parties separated in February of 2002 when [K] was just three months old. [K] has traditionally been cared for by her mother and spent time with her father. The father complains that the mother has sought to limit his time with [K] and, whilst one readily understands that the father would like to have had more time with his daughter, it will be necessary to conduct an objective overview of the history to determine whether that complaint is made out as part of the background relevant to a consideration of the competing assertions of the parties.
The mother first made a notification to the Department of Child Safety about possible sexual abuse of the child in August 2005. At the same time the mother notified the father through his solicitors that she intended to cease contact (as it was then called) pending further investigations.
Correctly his Honour observed that it would be necessary to examine the circumstances surrounding those events. He observed that the father’s case was that the alleged disclosures by the child were either a complete fabrication or as a result of coaching by the mother. The father denied that he had sexually abused the child and asserted that the notification was “part of a course of conduct on the part of the mother designed to inhibit or end his relationship with his daughter”. (Reasons [13])
In paragraph 15 his Honour identified what he described as “the need to review a number of aspects of the evidence including the following”:
(i) the inherent probabilities and profile of the parties;
(ii) the testimony and presentation of the parties;
(iii) the evidence of abuse;
(iv)the circumstances surrounding the allegations of abuse and an evaluation of the totality of the evidence.
We refer to this list in view of the ground of appeal by which it is asserted that the judge “focused his attention on his perception of the personalities involved rather than on the evidence”. This ground cannot succeed when consideration is given to the judgment. In paragraphs 16 and 17 his Honour said:
16.… I accept that within the small population of men capable of engaging in such behaviour, some are more predisposed than others. Men with certain profiles and backgrounds may be more predisposed. There has been no such profiling in this matter.
17.From the father’s point of view, I need to record that there is no evidence in relation to his character or personality from which conclusions of such a predisposition could be drawn. In this context, I should observe that there is nothing to indicate that such profiling was necessary.
In addition, his Honour said this about the father at paragraph 19:
The father presented as a credible and convincing witness. He was resolute and entirely untroubled by cross-examination. There was nothing in the father’s account or presentation which would result in adverse inferences being drawn against him. It is noteworthy that there was a consistency in his various accounts of this matter he gave to the Court and those he gave to the police, the Department and to other experts.
And of the mother at paragraph 20:
The mother’s presentation before me was no less credible and convincing. There was also a fundamental consistency between the information she gave to the Court and that she has been required to provide to a number of agencies on many occasions in the past. Her presentation and emotional reaction in the face of testing cross-examination and difficult subjects was entirely congruent with the matters under discussion.
With respect to the relationship between the father and the mother, Jordan J observed:
45.It is clear that high levels of mistrust and antipathy do exist. The mutual disdain between the father and the maternal grandmother, in particular, is quite palpable. On the father’s account, the maternal grandmother's hostility towards him was instantaneous, unjustified and all-consuming. Of course, it is not my task to apportion blame, but suffice it to say that there has been a number of aspects of the history which would be likely to cause legitimate concerns for an involved grandmother.
46.The mutual mistrust between the mother and father is also entirely self‑evident. The proposition of the father is that, in order to punish the father, the mother and maternal grandmother have fabricated allegations of sexual abuse and enlisted the direct involvement of [K] in that exercise and have, in turn, unnecessarily exposed the child to medical examination, investigations and months of therapy.
In considering the evidence which led his Honour to conclude that the child had been abused, Jordan J observed at paragraph 21:
The primary source of evidence of abuse, in one sense, is the mother. The mother says that she has observed behaviour and heard statements from [K] which had convinced her that abuse had taken place or, at the very least, which observations left her with a grave concern that the father may have been abusing his daughter.
The evidence of the mother was set out carefully and in considerable detail in his Honour’s judgment. Certainly, according to the mother’s evidence, the child exhibited sexualised behaviour and identified her father as being the abuser. It was also the mother’s evidence that the child’s abnormal behaviour was worse after visiting the father. The trial judge noted:
31.The mother says that she contacted the Department on 29 July by phone and outlined the nature of her concerns and attended at the office on 1 August to provide a statement. [K] was interviewed later on that day.
32.It is common ground that [K] did not make any disclosures implicating her father and that, indeed, she largely spoke in positive terms about her time in the father’s household when she was interviewed by the police.
33.The father was interviewed on 13 and 19 August and he did not make any admissions and was firm in his denials. At the same time, he raised concerns about the mother’s false allegations.
34.The matter came before the Court on 23 August 2005, when orders were made for limited supervised contact. After the hearing, the father assaulted [Mr S] [the mother’s current partner], who was with the mother for support on that day. … The father was charged and convicted of that assault.
35.As a consequence of the assault on the steps of the Family Court, the nominated supervisor was no longer prepared to supervise the father and the supervised contact order was unable to be implemented until October of 2005. The father enjoyed supervised contact until consent orders were made in February of 2006, which provided for increasing unsupervised contact culminating in contact on alternate weekends and half the school holidays, a regime which the father has continued to enjoy to this time.
…
40.The mother says that [K] has progressively improved since the 2006 orders, in that there has been a substantial reduction to the frequency and extent of sexualised play and masturbation activities, together with a reduction to the level of anxiety about attending for contact. The mother acknowledges that [K] presents as having a close and comfortable relationship with her father.
Included in the consent orders of 8 February 2006 was provision for ongoing counselling for K which the mother arranged. The service was apparently extended to the mother. K was initially counselled by Ms P; however between July 2006 and February 2007, the child was seen by Ms L.
A report was prepared by Ms L, a psychologist, dated 23 January 2007. It was part of exhibit 4, being the file from the local Services Against Sexual Violence. In relation to Ms L, his Honour said:
38.…During her involvement, [Ms L] became concerned that [K] was exhibiting symptoms consistent with sexual abuse and she reported her concerns to the Department of Child Safety in accordance with her obligations to do so. I will return to the basis upon which [Ms L] reached her conclusions later.
39.[Ms L] was requested to provide a report to the Department of Child Safety, which she did in January of 2007. In that report, [Ms L] set out her conclusions which included expressing the view that [K] had been sexually abused and that the perpetrator of that abuse was the father. She recommended cessation of contact and ongoing therapy for [K] and the mother. I will comment upon that report and the conclusions reached by [Ms L] later. Having provided that report, [Ms L] was required to discontinue her counselling.
In relation to the father’s case that the mother and maternal grandmother had fabricated the allegations to deny him a relationship with the child, his Honour said:
48.The father asserts that he has had to struggle to secure his relationship with his daughter. I am afraid that an objective view of the evidence does not support that proposition. …
…
50.I find that, thereafter, however, over a difficult five-year period, the mother has largely complied with Court orders and the obligations to provide contact …
51.In terms of the father’s assertion of alienation, what is more noteworthy is the fact that the mother is the one who delivers [K] to the father and collects her at the end of every contact visit. Whilst that has, in part, been necessitated by the mother’s preference to have a handover at a contact centre, the end result is that it has been the mother who has been required to undertake a round journey of some 400 kilometres every time the father is to see his daughter. That she has done so solely and endured the physical strain and financial cost of that exercise week after week for two and a half years is not only a testament to her, but is a fact which strikes at the fabric of that aspect of the father’s case against her.
52.Further, another striking feature of this aspect of the case is the lack of evidence of coaching. The child did not make disclosures to police officers and Departmental officers. To the contrary, she felt free to discuss the father in very positive terms when this campaign of manipulation and alienation was supposedly at its peak. She did not make any disclosures to [Ms P] or [Ms L] in over 12 months of sexual abuse counselling.
…
54.[Ms L] said that, in her opinion, there was a distinct lack of indications of coaching on the part of the mother or the maternal grandmother. There was no sign of adult language, no incongruent volunteered statements implicating the father and not once, over that 12-month period, did the child indicate that her mother was telling her to say negative things about the father. If this was indeed a concerted campaign by two manipulative adult females, it must be observed that they have done a very poor job.
55.Further, in my view, the best evidence on this point is, in fact, the relationship between the father and [K]. It is observed by all concerned to be a positive, comfortable relationship with sound attachments. Again, if, as the father would contend, the mother and maternal grandmother in tandem have conspired for years to alienate the father and embarked upon a campaign of vilification and undermining of the relationship, there is absolutely no sign of such a campaign in the presentation of the child. Indeed, the quality of the relationship between [K] and the father suggests everything to the contrary.
56.I must not close on this topic without observing upon an aspect of the evidence of the maternal grandmother on this point. She was directly challenged with the proposition that she had participated in a campaign of manipulation of this child. The strength of the grandmother’s denials and the distress and abhorrence exhibited by her at that time was quite a pivotal moment in the trial and represented most compelling testimony indeed.
57.In a similar vein, when the mother was observed in the witness box struggling with her beliefs and concerns, on the one hand, and some of the possible outcomes, on the other, her distress gave an indication that it was real and unrehearsed. I reject that aspect of the father’s case.
58.I find that the mother and maternal grandmother have not engaged in the grossly abusive behaviour of causing [K] to fabricate allegations against her father and that they have not, thereafter, exposed her to months of examination, investigation and therapy without proper cause. I find that, rightly or wrongly, they each genuinely believe the statements made by [K] and believe that she was a victim of abuse in the father’s home in the past. I accept that they genuinely believe that she may be at risk of abuse in the future.
59.I accept that [K] made the disclosures which could be indicative of abuse and, further, that the conduct of the two women thereafter was, in all the circumstances, reasonable. …
The trial judge then considered what he described as the “secondary evidence of abuse”. He noted the sources of such evidence included “the mother, the maternal grandmother, the child’s teacher, [Ms W], [Ms L] and, to a lesser extent, the father and his wife, [Ms Leighton].”(Reasons [60]) There is no challenge to the correctness of the summary of the child’s behaviour considered in subparagraphs 61(a) to (h) of the reasons.
Jordan J had the advantage of two reports prepared in relation to the allegations of sexual abuse. The first report already mentioned was by Ms L dated 23 January 2007. The second report was written by Mr T, a psychologist, and was dated 4 April 2008.
Mr T’s report contained some criticism of the report of Ms L. In relation to this issue, his Honour said:
63.It is clear that [Ms L] was originally retained to provide therapy to [K], in particular. The report which is now before the Court at the very least purports to undertake a forensic exercise. There is valid criticism of that approach both from [Mr T] and Mr Shoebridge, who appears for the father. [Mr T] highlights the appropriate professional criticism attached to blurring the lines between therapy and forensic exercises.
64.By way of background in terms of dealing with that criticism by [Mr T] and Mr Shoebridge, it does need to be observed that [Ms L] no doubt found herself in a difficult situation. Having concluded that abuse may have occurred, she was then obliged to report such matters to the Department and that, in turn, prompted a request by the Department to provide a report to justify her concerns.
65.The explanation of how the report came about does not, however, invalidate the criticisms about blurring the lines and it is appropriate that I exercise caution when reviewing aspects of [Ms L’s] report. At the very least, for those and other reasons, including the predominantly one‑sided nature of the report, I expressly take no account of the direct conclusions reached by [Ms L] at the end of the report to the extent that they purport to determine that sexual abuse has occurred and that the father was the abuser.
66.In other respects, however, I take the view that I am entitled to have regard to features of [Ms L’s] evidence where it purports to express opinions about inferences that may be drawn from certain facts. No-one has challenged [Ms L’s] qualifications as a psychologist or her experience in relation to matters of sexual abuse. She makes reference to appropriate research to support some of her conclusions.
67.Criticisms about [Ms L] drawing conclusions on one-sided observation are erased if I make findings of fact which are consistent with the information upon which [Ms L] based her assessments. I accept the evidence of the mother, the maternal grandmother, the teacher, [Ms L] and the counsellors at Laurel House about the presentation of the child and the long history of sexualised behaviour.
68.[Ms L] was of the firm opinion that the ingredients of sexualised behaviour described by me in sub-paras (a) to (h) above were outside the norm of common, innocent sexual exploration of a young child. She said that the fact that the child’s sexualisation was associated with elevated emotions such as anxiety and anger, the fact that she persisted with such conduct in public and despite directions to desist, the fact that such excessive sexualised behaviour extended over such a long period and the fact that it was on occasion accompanied by statements exhibiting knowledge of matters sexual well beyond [K’s] years and experience, and that at other times [K] was seen to be fixated and dissociated, were all factors inconsistent with innocent, pleasurable discovery and, in her opinion, indicated that the extensive sexualisation of this child was as a consequence of the child being exposed to abusive sexual touching.
69.[Ms L] said that a child of [K’s] age would be simply unable to learn and invent the various significant emotional reactions which accompanied her aberrant behaviour.
…
71.I also need to take account of the fact that [K] has continued to see her father on an unsupervised basis for two and a half years and that the child’s sexualised presentation during that period has diminished significantly and that there have been no further disclosures made during that period. Those matters are of course relevant in themselves. Clearly, they may tend to indicate that abuse has not occurred during that period, which fact may, in turn, support the notion that abuse may not have occurred at all.
After detailing the primary and secondary evidence of sexual abuse, his Honour was of a “firm conviction that [K’s] statement and presentation in 2004 and 2006 was that of a child who had experienced sexual abuse”. Having so concluded, Jordan J then considered whether the father “should be found to be a person engaged in such behaviour” and made the positive findings set out above in paragraph 4 of our reasons.
Grounds of appeal
The father relies on an amended notice of appeal filed on 5 February 2009 which contains five grounds of appeal. The submissions before us reveal that those grounds are directed to four broad complaints:
· the trial judge’s treatment of the evidence led to incorrect factual findings;
· the manner in which the trial was conducted severely disadvantaged the father;
· the manner in which the father’s counsel conducted the matter disadvantaged him; and
· the trial judge “focussed” on the personalities involved, rather than the evidence.
In the amended notice of appeal, the father sought two orders. The first was that he and the mother “share decision making, health and welfare care” of K and the second was an order reinstating the consent orders which were made by Jarrett FM on 8 February 2006. Those orders provided for K to have contact with the father on alternate weekends, for one half of the school holidays, during the Christmas period, on special occasions including birthdays and Father’s Day, and by telephone.
During the appeal hearing, the father conceded that a re-hearing of the parenting matter was “an option”. For reasons which we will explain, the appeal should be allowed and the matter remitted to a judge for re-hearing.
Principles relevant to findings of sexual abuse
In considering this appeal it is important we refer to the principles relevant to a finding of sexual abuse. In B and B (1993) FLC 92-357, the Full Court reviewed the authorities at length and said at 79,777:
In B and B (1988) FLC 91-957, Baker and Maxwell JJ (with whom Nicholson CJ agreed on this point) considered the role of trial Judges in the Family Court when determining custody and access cases, with particular reference to those cases in which allegations of sexual abuse had been made. The appropriate law to be applied was as set out in the following passage which appears at pages 76,923-76,924:-
‘The Family Court is a civil court in which trial Judges are required to hear and determine cases in the course of which evidence of the parties and their witnesses must be analysed and findings made based upon the civil standard of proof, that is to say, on the balance of probabilities.
It is not appropriate for Judges of the Family Court to conduct cases in which allegations of child sexual abuse have been made as criminal trials which seek to establish the guilt or innocence of one of the parties in relation to allegations of sexual abuse with the consequential result being that if the allegation be proved, access will be suspended whereas if the allegation be not proved then access will be ordered.
In the course of the hearing of a custody or access application, the court may make one of the following findings in relation to an allegation of child abuse:
(a) that the allegation is proved; or
(b) that the allegation is not proved; or
(c)there is insufficient evidence to determine
either (a) or (b).Any such finding, however, may not necessarily be the determinant factor in the ultimate decision. …’ …
In M v M (1988) 166 CLR 69 the High Court said at 76:
…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. …
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. …
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. (footnotes omitted)
Principles relevant to a mistake of fact
It became clear during oral submissions that the crux of the father’s appeal was that Jordan J made a finding of fact not open to him, being that the father was the only adult “who is likely to have had the opportunity” to abuse the child. This finding led his Honour to make the order for supervised time with the child. (Reasons [77])
In De Winter and De Winter (1979) FLC 90-605 the High Court was concerned with a challenge to the primary judge’s finding in relation to the credibility of the evidence given by the husband. After referring to House v The King (1936) 55 CLR 499, Gibbs J (who dissented in relation to the outcome of the appeal) at 78,091 – 78,092 said:
It is apparent from this statement, and is clear law, that a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust. In Storie v. Storie (1945) 80 C.L.R. 597, both Latham C.J., at p.600, and Rich J., at p.604, cited from the judgment of Viscount Simon L.C. in Blunt v. Blunt (1943) A.C. 517, at p.526:
‘If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached, because the court’s discretion will have been exercised on wrong or inadequate materials…’.
There are many other authorities, from Young v. Thomas (1892) 2 Ch. 134 at p.137, to Australian Coal and Shale Employees’ Federation v. The Commonwealth (1953) 94 C.L.R. 621, at p.627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect is negligible, or that in any case the conclusion reached was correct, nothwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
It is perfectly true that the opinion which a judge forms as to the credibility of a witness may be influenced by a variety of matters. A number of pieces of evidence may lead to the conclusion that the witness is generally unreliable, but one example of false testimony may be enough, and of course the demeanour of the witness alone may lead to that conclusion. But where a judge has reached such a conclusion for a variety of reasons, and it is demonstrated that some of those reasons are unsound, his decision will not necessarily be upheld because the other reasons would in themselves have been sufficient to support it. The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand nothwithstanding the unsoundness of some of its foundations.
I regard the question whether the errors formed a determining factor in the result in the present case is by no means easy of solution. However, a finding of fraud is one of the most serious that a court can make in civil proceedings. Such a finding cannot easily be shrugged aside as irrelevant. Moreover the discretion confided to the Family Court to make orders affecting interests in property under sec. 79 of the Family Law Act is extraordinarily wide. Such orders may of course disturb existing rights; few curial orders can have a greater effect on ordinary citizens of modest means. It needs hardly to be said that such a discretion is to be exercised with scrupulous care. In the present case I find it impossible to say that the two errors made by the learned primary judge – one actual and serious, the other apparent – did not form a determining factor in the opinion which he reached on the question of credibility. His final decision depended on that opinion. And although that decision was open, it was not inevitable. If the Full Court had considered the matter for itself, I might have doubted whether it was proper for this court to intervene, even though it might have been thought that the more desirable course, in the circumstances of this case, was to order a re-hearing. As I have said, however, the members of the Full Court, apart from Evatt C.J., were content to take the view that the decision of the learned primary judge was within the range of his discretion. I have already said that I agree with that view, but it does not alter the fact that the discretion was exercised on a wrong basis.
For these reasons I have reached the conclusion that the order of the learned primary judge should not be allowed to stand, and that there should be a re-hearing of the respondent’s application. I would allow the appeal. (emphasis added)
Did the trial judge make an error of fact?
As his Honour observed, the primary source of the evidence of abuse was the mother. Her evidence was that she had observed behaviour and heard the child say various things that convinced her that the abuse had taken place, or at the least, caused her grave concern.
The father submits that the error arises from his Honour’s conclusion that as the only constants in the child’s life between 2004 and 2008 were the mother, the father and the maternal grandmother, and there was no evidence to implicate the mother or the maternal grandmother, it follows that the father was the “only other adult who is likely to have had the opportunity to engage in such behaviour”.
The father submitted that this finding was inconsistent with the evidence before the trial judge. He submitted that the child had been living with the mother, her maternal grandmother and the maternal grandmother’s partner, Mr R, between 2002 and 2006, and had also had consistent contact with the mother’s current partner, Mr S.
In support of this submission the father referred to an affidavit filed by the mother on 29 May 2003, for the purpose of interim parenting proceedings. Under the heading “Housing” the mother described the arrangements in relation to the child as follows:
[K] lives with me in a three bedroom Queenslander-style home with modern amenities. The home is that of my mother’s…, who also lives with us and her partner, [Mr R].
The mother also stated she moved to her mother’s house in October 2002 for financial reasons.
The father also referred to later affidavits of the mother and Mr S which were in evidence before the trial judge. In an affidavit filed 7 September 2007 the mother deposed the following:
11.[K] and I have resided with my mother … since September 2005, initially in a rental property, now in a house owned by my Mother. We relocated … after [the father] assaulted [Mr S] on 23 August 2005 outside the Family Court. …
…
18.I am and always have been [K’s] primary carer. My employment offers me a great deal of flexibility and I am able to schedule the majority of my work hours during times when [K] is either at school or spending time with her [father]. During the rare occasions that I am not available to care for [K] due to work commitments, [K] is cared for by either my Mother or, more recently, [Mr S], in her home environment. This has allowed [K] to maintain her usual routine.
In an affidavit filed on the same day, Mr S stated:
4.I first met [K] in July 2003 … . My association with [K] has since been continuous and consistent. More recently my role within the domestic setting has been to support [the mother’s] parenting decisions.
…
8.Over the past 4 years I have had numerous interactions with [K] and some of these have involved age appropriate discussions of our domestic ‘arrangements’ and at times [K] has instigated discussions regarding her relationship with her Father and his and my association.
…
15.[K’s] school friends often get confused and refer to me as her ‘dad’ or ‘Father’. [K] and I both correct them and she explains to them that I am her ‘friend’ or ‘my mum’s friend’. [K] used to become upset when people referred to me as her ‘dad’, but more recently she just calmly explains where her Father lives.
In a later affidavit filed on 7 October 2008, Mr S stated that his relationship with the child had developed “to the point that she has referred to me as her ‘step-dad’ or similar terms”.
Additionally, in the first family report dated 19 September 2008, Mr F, the family consultant, stated at paragraph 11:
[K] has lived with her mother since separation. At the time of separation they were living in a house … North of Gympie. Since September 2005 they have lived in a home owned by the Maternal Grandmother … . [The maternal grandmother] has spent large periods of time away from the home in the last eighteen months and in the last month she has relocated to Brisbane. About three years ago, [Ms Carey] re-partnered to [Mr S]. [Mr S] rents an independent property however he spends a predominant amount of his time in [Ms Carey’s] home and assumes a caring role to [K].
In reply to the submissions of the father, the mother and counsel for the Independent Children’s Lawyer submitted that the father had ample opportunity to “agitate the notion of alternate perpetrators” but did not do so.
Counsel for the Independent Children’s Lawyer submitted that the father’s “case at trial was unequivocal. That case propounded that the Mother had made, knowingly, false allegations of sexual abuse”. Reference was made to an affidavit filed by the father on 12 September 2007, in which the father “reduced the ‘suspects’” to Mr S and the maternal grandmother, but concluded that the “person responsible for the abuse” was the maternal grandmother.
Counsel for the Independent Children’s Lawyer submitted that the father’s submission
sin relation to Mr R “is some current attempt to implicate that person in abuse” but was not advanced during the trial and nor was there any evidence before the trial judge that established that the child had ever lived with Mr R at any time. In relation to that aspect, the mother submitted that the father had not provided any evidence that “we [the mother and child] resided with [Mr R] for the time frame he specifies”.
Conclusion – mistake of fact
We accept it was open to the trial judge to conclude that K had been sexually abused. However, we consider his Honour fell into error in concluding that in the key period from 2004 to 2006 “the only constants in [K’s] life were her mother, the maternal grandmother and the father” and that therefore she “had very limited exposure to other potential perpetrators of abuse”. The evidence established that there were others, apart from the mother and grandmother, who were “constants” in the child’s life and who had the opportunity to abuse her.
Notwithstanding the manner in which the father conducted his case at trial we consider that if the trial judge proposed to make a positive finding of sexual abuse on the basis that there was no one other than the father who could have perpetrated the abuse, it was logically necessary to make accurate findings in relation to those who had the opportunity to abuse the child. In failing to identify Mr S and Mr R as such persons, and in failing therefore to consider the basis on which they should be exonerated as possible perpetrators, we consider his Honour fell into error.
The finding in relation to sexual abuse was clearly fundamental to the entire decision and led to the order for the father’s time with the child being supervised. Although the orders are expressed to be “until further order”, in the absence of a full re-hearing the conclusions reached will remain and will colour any further orders relating to the father’s time with the child.
Although we have said that we accept it was open to the trial judge to conclude that K had been sexually abused, we would not wish to fetter in any way the capacity of the judge who next hears the matter to determine that issue and indeed any other issue. Accordingly the purpose of the re-hearing is for all matters to be considered afresh.
Other grounds of appeal
Although we have concluded that the matter must be remitted for re-hearing, we will briefly address the father’s other complaints. It will be seen that these are not persuasive.
The conduct of the trial
In grounds 1, 2 and 5 of the notice of appeal the father complains that the expedited nature of the trial, and the fact that Jordan J determined the question of sexual abuse as a preliminary matter, resulted in an unfair trial and an unfair result. The father also complains about the representation he received during the hearing.
The father submits that as a result of the expedited nature of the trial “key witnesses” were not cross‑examined. He further submits that the trial judge should have had regard to scathing findings made by Jarrett FM in earlier proceedings concerning the veracity of the mother’s accusations of sexual abuse against the father.
At the outset of the proceedings, Jordan J dealt with the father’s submissions concerning Jarrett FM’s findings in these terms:
As a matter of principle the findings of another Court … are not relevant … I take the view that anything said by the Federal Magistrate in the context of other proceedings is not of any probative value in this case.
In our view Jordan J was correct in forming that view and making it known at the commencement of the proceedings. For a discussion of the principles relating to findings made in earlier proceedings see in In the marriage of Schorel (1990) FLC 92‑144 and see also B & J [2009] FamCAFC 103
With respect to the conduct of the father’s solicitor, we refer to the well known authorities of Nudd v R (2006) 225 ALR 161 and OP v TP and Another (Conduct of Counsel) (2003) 30 Fam LR 281.
In Nudd v R, Gleeson CJ observed that the incompetence of counsel during a trial is relevant to the question of whether a miscarriage of justice had resulted. His Honour said:
9.… It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.
In OP v TP the Full Court (Nicholson CJ, Buckley and Kay JJ) considered the question of incompetence of counsel within the family law context. Their Honours noted that in considering whether a miscarriage of justice had occurred, regard should be had to the jurisdiction which the court is exercising. They said:
124.On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for the appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
A review of the transcript of the proceedings does not lead to a conclusion that the appeal should be allowed on this ground.
Did the trial judge focus on the “personalities” rather than the evidence?
Little has been submitted before us to substantiate this ground.
This complaint is linked to the collateral ground of appeal that the trial judge “made a point of discriminating” against the father. The father complains that the trial judge criticised his “age, gender, employment status and even that he was represented by a solicitor paid for by Legal Aid”.
The father raised a number of matters in his oral submissions in support of this ground. He submitted that the trial judge had made derogatory statements in relation to financial support he had provided for the child. He also complained about the use of an article from a newspaper, which the mother apparently tendered as part of her evidence. The father submitted that although none of these matters had been mentioned in the reasons they had “formed part of the trial process” and that a picture of him had been built “out of little pieces” which in turn must have affected his Honour’s assessment of him. He also submitted that his Honour had formed the impression that he had the “upper hand” in the proceedings because he had legal representation and the wife did not, whereas he submitted it was the wife’s choice to represent herself at trial.
There is no merit in these submissions. There is nothing to indicate that the trial judge “focussed on personalities” rather than the evidence. Of the supposed discrimination, we repeat what the trial judge said of the father in paragraph 19 of his reasons for judgment:
The father presented as a credible and convincing witness. He was resolute and entirely untroubled by cross-examination. There was nothing in the father’s account or presentation which would result in adverse inferences being drawn against him. It is noteworthy that there was a consistency in his various accounts of this matter he gave to the Court and those he gave to the police, the Department and to other experts.
Conclusions
The appeal must be allowed in view of our conclusions as to the central statement made by his Honour in relation to opportunity, identifying only the father. The only remedy is a re-hearing.
Costs
In the event the appeal was successful, the father sought an order that all parties be responsible for their own costs. He indicated he did not wish to apply for a costs certificate for the appeal and that he would represent himself if a re-hearing were ordered.
The mother did not seek a costs certificate for the appeal as she had incurred no costs. She did, however, seek a costs certificate for the re-hearing in the event that the appeal was successful.
Counsel for the Independent Children’s Lawyer sought costs certificates in the event the appeal succeeded on the basis of an error of law.
Given that the appeal has succeeded on the basis of an error of law, and in light of the applications made to us, we consider a costs certificate should be granted to the Independent Children’s Lawyer for the appeal and that costs certificates should be granted to the mother and the Independent Children’s Lawyer for the re-hearing.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 26 May 2010
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