Lindsay & Baker

[2012] FamCAFC 189

FAMILY COURT OF AUSTRALIA

LINDSAY & BAKER [2012] FamCAFC 189

FAMILY LAW – APPEAL – CHILDREN – where the trial judge was found not to have erred in refusing to accept the evidence of one expert as to whether the child was at risk of abuse when living with the father, when a number of other experts were of the opinion that the child was not at risk of abuse from the father – where the trial judge was found not to have erred in ordering that the mother’s time with the child to be supervised on an indefinite basis – appeal dismissed.

Family Law Act 1975 (Cth)

Champness & Hanson (2009) FLC 93-407
Rice & Asplund (1979) FLC 90-725

APPELLANT: Ms Lindsay

RESPONDENT: Mr Baker

INDEPENDENT CHILDREN’S LAWYER: Damien Carter

FILE NUMBER: BRF 11130 of 2003

APPEAL NUMBER: NA 135 of 2010

DATE DELIVERED: 15 November 2012

PLACE DELIVERED: Canberra

PLACE HEARD: Brisbane

JUDGMENT OF: Bryant CJ, Finn and Strickland JJ

HEARING DATE: 4 November 2011

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT ORDERS DATE: 28 May 2010 &
1 December 2010 

LOWER COURT MNC: [2010] FamCA 421

REPRESENTATION

APPELLANT: In person

RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Frizelle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Carter Farquar

Orders

1. The appeal against the orders of the Honourable Justice Bell made on 28 May 2010 and on 1 December 2010 be dismissed.

2. There be no order for costs in relation to the appeal. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lindsay & Baker 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 BRISBANE

Appeal Number: NA 135 of 2010
File Number: BRF 11130 of 2003

Ms Lindsay

Appellant

And

Mr Baker

Respondent

And

Damien Carter

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is an appeal by Ms Lindsay (“the mother”) against parenting orders made by Bell J on 28 May 2010 and 1 December 2010 in relation to the child, B, who was born in October 2002 and is the child of the mother’s short relationship with Mr Baker (“the father”).

2. His Honour’s orders of 28 May 2010 in effect provided that the child should live with the father, that the father should have sole parental responsibility for the child, and that the mother should spend time with the child on a supervised basis pending a report in respect of that supervised time and a review by his Honour at the end of 2010.

3. His Honour’s order of 1 December 2010 in effect provided for the mother’s time with the child to be supervised on an indefinite basis.

4. The father who, like the mother, was unrepresented before us, opposed the appeal as also, importantly, did the Independent Children’s Lawyer (“the ICL”) who was represented by Counsel before us.

Background history

1. The parties’ relationship apparently broke down at about the time of the child’s birth in October 2002 when the parties were living in northern New South Wales. The child then remained living with the mother (which he continued to do until February 2008).

2. Interim parenting orders were made in the New South Wales Local Court on

   
   

   16 October 2003 providing for the child to live with the mother and spend time with the father. However, it appears that until the end of May 2004 the father only spent time with the child on a limited number of occasions and at a contact centre.

3. Following the filing of various applications by both parties (including contravention applications by the father), orders were made by consent on

   
   

   30 June 2004 by the Family Court providing for the child to live with the mother, who was to have sole parental responsibility, and for the child to spend supervised time with the father at a contact centre. It seems that the father was thereafter eventually able to spend some time with the child on an unsupervised basis.

4. However, both parties continued to file applications, and the matter came before Bell J on 20 October 2005. On that occasion both parties were represented by Counsel and orders were made for the child to live with the mother and to spend unsupervised time with the father initially during the day at a contact centre, but extending later to alternate weekends and then school holidays.

5. The mother alleges that after the first time the child spent with the father on

   
   

   22 October 2005, the child made disclosures of inappropriate behaviour on the part of the father, and that he continued to make such disclosures following other times with the father. Details of the disclosures made by the child and the investigations which followed are detailed by Bell J in his reasons for judgment of 28 May 2010 at [15] to [28] and need not be repeated here.

6. Suffice it to say that a trial took place before Carmody J on 27 and 28 February 2007, with judgment being delivered on 15 March 2007. At that trial both the mother and the father appeared without legal representation and the ICL was represented by Counsel.

7. Carmody J ordered that the child continue to live with the mother and spend unsupervised time with the father on a gradually increasing basis.

8. In his reasons for judgment delivered on 15 March 2007 Carmody J summarised this case as it had come before him in the following way:

   2.The parents’ relationship broke down in October 2002.  The child has resided with the mother all his life and spent mainly supervised time with the father since separation.

   3.Past attempts to introduce unsupervised time have failed due initially to welfare concerns arising out of the father’s admitted heroin addiction but that is now under control and the only current impediment to unrestricted contact is that the asserted risk of sexual related harm to the child based on alleged disclosures and behaviours the mother interprets as suggestive of abuse by the father.

   4.The father denies any indecent conduct and contends that the child should be ordered to live with him as a safeguard against ongoing emotional abuse at the mother’s hands and to ensure that he receives the benefit of having a meaningful relationship with both parents.

   5.On his case the mother is intrinsically contact averse, has a history of non-compliance with court orders and is bent on destroying what little relationship he has been able to establish with his son by wilfully misconstruing patently improbable statements and giving normal childish actions an unwarranted sinister connotation. He also claims that the mother’s admitted encouragement of the child to repeat false allegations against him to others not only distresses the child but has the purpose or effect of exacerbating the rift that has developed between them.

   6.Counsel for the Independent Child’s Lawyer dismisses the mother’s “unacceptable risk” claims as verging on the fanciful and, in line with the family consultant’s report,  proposes that increasing periods of unsupervised overnight time be gradually re-introduced over the next twelve (12) months so that by April next year the child will be spending each alternate weekend from Friday afternoon to Wednesday afternoon and each other Wednesday from 9.00am to Thursday 9.00am as well as designated special days and half school holidays.

9. Later, having reviewed the evidence before him, Carmody J reached the following conclusions:

   103.There is, as I have already concluded, no reasonable ground for believing that the father has sexually abused the child in the past and no other event or circumstance suggestive of an unacceptable risk of physical harm in allowing the child to have unsupervised time with the father is apparent to me. Nor am I persuaded that there is a real chance of emotional or psychological danger to the child as a result of having unsupervised time with the father.

   …

   110.The father says that the child should live with him but this is contrary to the recommendation of both the family reporter and Counsel for the Independent Children’s Lawyer. I do not think it would be in the best interests of the child to take him away from the primary carer of a lifetime and place him in the hands of a genuine and well meaning but inexperienced parent with whom he has had little to do and is unsure of and (sic) this stage of his development. I do not think he would be able to adjust to that transfer and that the risk of emotional harm outweighs any potential benefit in doing it.

   …

   114.There is a serious question mark over the mother’s willingness and ability to encourage and facilitate a close and continuing relationship between the child and the father. Her past history suggests that she will struggle with this. Her attitude to contact is not entirely appropriate and is incompatible with her responsibility to encourage the establishment and maintenance of a meaningful relationship between the father and the child.  I am willing at this stage to take her at her word that she will accept my findings on the sexual abuse question and comply with final orders even if she did not do so in respect of those made at interim proceedings. She did seem to me to be genuine when questioned about this and I believe her when she says that she has received strong advice which she accepts to comply.

   115.If my faith in her proves to be misplaced then of course she runs the very real risk of a reversal of residence application against her succeeding in the future.

   116.Having regard to the limited unsupervised time he has spent with his father since separation, the tenuous nature of the relationship and the damage done to the parental relationship by the sexual abuse allegations and non-compliance with contact orders I think the overall best interests of this child will be best promoted by the graduated and increasing levels of unsupervised time recommended by the family reporter and reflected in the proposed orders of the Independent Child’s Lawyer.

10. An appeal by the mother and a cross-appeal by the father against Carmody J’s orders were dismissed by the Full Court on 26 October 2007.

11. It appears from the reasons for judgment of Bell J of 28 May 2010 at [30] – [31], that by November 2007 the father again had to file contravention applications in an attempt to spend time with the child and that the mother was again making allegations of abuse to the Queensland department  responsible for child welfare matters. (That department has operated under various names during the life of this case, and we will therefore throughout these reasons simply refer to it as “the Department”).

12. On 12 February 2008 Carmody J, on the father’s application, issued a recovery order which required that the child be delivered to the father and that he live with him until 27 February 2008.

13. On 27 February 2008 Carmody J made further orders providing for the child to live with the father and spend supervised time with the mother.

14. On 31 March 2008 further orders were again made by Carmody J in relation to the mother’s time with the child (with only “changeovers” being supervised), and in relation to the preparation of a further family report, the filing of further material by the parties and for the transfer of the matter to another judicial docket. Those orders were subsequently varied by Carmody J on 20 May 2008 to provide for the child to stay overnight with the mother on one night each week.

15. According to Bell J at [37] of his reasons of 28 May 2010, the father had to apply for a location order on 11 August 2008 because the mother had disappeared with the child and then kept herself and the child hidden until November 2008 when the child was recovered – a recovery order having been issued by Murphy J on 8 September 2008 which provided for the child to be delivered to the father.

16. On 21 November 2008 Murphy J made orders suspending all face-to-face time between the mother and the child for a period of six weeks to be followed by supervised time once a week at a contact centre.

17. During the course of 2008 and 2009 various expert investigations were carried out and reports written in relation to this case and to which we will later refer.

The proceedings in 2010 before Bell J

1. There was then a four day trial before Bell J on 15 to 18 March 2010. Again at that trial each of the parents was self-represented and the ICL was represented by Counsel.

Orders made on 28 May 2010

1. His Honour delivered his reasons for judgment on 28 May 2010 and made the following orders:

   (1)The Applicant’s application is dismissed.

   (2)That the child B born … October 2002 live with the father.

   (3)That the father have sole parental responsibility for the long-term and short-term care, welfare and development of child.

   (4)That pursuant to Section 65L of the Family Law Act 1975:

   (a)the mother spend time with the child on a week day to be nominated by the Senior Family Consultant of the Family Court of Australia Brisbane Registry, once a fortnight for two hours after school in the Court precincts;

   (b)such time and compliance with these parenting orders is to be supervised by Ms [B] or another Family Consultant as nominated by the Senior Family Consultant, with the father to deliver and collect the child;

   (c)the parties shall do all things, sign all such documents, attend all such appointments and ensure the child attend all such appointments as are reasonably necessary for such supervision;

   (d)the Family Consultant shall prepare a report, in respect of the supervision, and contact with the parties and child and it is requested that such report be available prior to November 2010; and

   (e)the Family Consultant is at liberty to consider any or all documents in this matter which the Family Consultant considers would be of assistance in preparing the report.

   (5)That the mother spend time with the child on a week day in the off week after school for two hours supervised at a Contact Centre – subject to the Independent Children’s Lawyer being able to organise a Contact Centre for this purpose.

   (6)That the Independent Children’s Lawyer endeavour to ascertain a responsible adult approved by the Independent Children’s Lawyer who may be able to supervise the mother’s time with the child between the hours of 6:00 am and 9:00 pm on Saturday or Sunday.

   (7)That the mother attend further psychiatric counselling in relation to her allegations against the father with a professional approved by the Independent Children’s Lawyer and that a report be made by the said psychiatrist and/or psychologist.

   (8)That the mother be permitted to send letters, cards and gifts to the child.

   (9)That the matter be brought back before the Honourable Justice Bell no later than 30 November of this year for review.

   (10)The parties be at liberty to apply to re-list the matter on forty-eight (48) hours’ notice to the other parties with regards to any variation of this Order.

Summary of reasons for orders made on 28 May 2010

1. It will be necessary for us to refer later at various places in these reasons to his Honour’s reasons for the orders which he made on 28 May 2012. However, we explain at this point that he commenced his reasons with a detailed history of the proceedings between the parties since, in his Honour’s words, the child was “about one year old” (Reasons [1] to [29]). In the course of that history his Honour referred at considerable length to the allegations which the mother had made in the trial before Carmody J and to certain of the expert or independent witnesses and evidence in that trial.

2. His Honour then described the events, the expert or independent inquiries and reports, and the proceedings which had followed Carmody J’s decision (Reasons [30] to [79]).

3. In this context his Honour focused particularly on the evidence of a social worker in the Department, Ms W who, according to his Honour, had prepared a report on 23 March 2009 which was based on assessments which had already taken place. Although Ms W had not interviewed the child or his parents, she had come to the conclusion that the child “had probably been sexually abused by the father”. His Honour explained at some length his reasons for rejecting Ms W’s evidence (Reasons [52] to [75]) and preferring the evidence of Ms Y, who is a former officer of the Department and had prepared a report following Ms W’s assessment.

4. At [80] of his reasons his Honour concluded in relation to the issue of abuse or risk of abuse to the child:

   80.Notwithstanding there may be matters which I have overlooked in the extensive evidence before me which may be of some assistance to either of the parties, I am quite satisfied on the evidence that there is no evidence or any sufficient evidence to convince me that the child, [B], is being sexually assaulted, nor is there any unacceptable risk of his being sexually assaulted whilst in the primary care of the father, in whose care he has been since 2008 when the child was recovered pursuant to a recovery order.

5. His Honour then considered the relevant matters in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) (Reasons [81] to [102]). In this context his Honour’s concerns that the mother might “again abscond” with the child clearly emerged. His Honour’s conclusion was that there would need to be supervision of the mother’s time with the child, and that it would be necessary for the ICL to work out the necessary supervision arrangements, which his Honour would review later in the year.

Proceedings on 26 November 2010

1. Pursuant to his Honour’s orders of 28 May 2010, the matter came back before him on 26 November 2010 (See transcript, 26 November 2010). It is clear from the transcript of that day that his Honour had before him an updating report from the family consultant, Ms B, dated 1 November 2010, in which she maintained her recommendation that the child continue to live with the father. She also recommended that the child have a supervised twelve hour period four times a year with the mother, but with weekly telephone communication. (Ms B had previously prepared a number of family reports dated 24 February 2009, 17 June 2009, and 3 February 2010 and she had given oral evidence at the trial before Bell J in March 2010).

2. Counsel for the ICL submitted that Ms B’s recommendations for four periods each year be accepted. However, the father submitted that four times a year would not be enough and that the child would be disappointed, and his Honour indicated some agreement with that view.

3. There was also before his Honour on 26 November 2010 an affidavit from the ICL (sworn/affirmed 24 November 2010) attaching reports from Ms C who had been supervising the contact between the child and the mother

   
   

   together with an affidavit (sworn/affirmed 25 November 2010) from the mother responding to matters raised in Ms C’s reports.

4. There was also a report from a psychologist, Dr M, prepared pursuant to Order 7 of the orders of 28 May 2010, in which Dr M concluded that the mother continued to hold the belief that the father had sexually abused and was continuing to abuse the child, and that the mother “was not amenable to reconsider her position”.

5. After the mother had raised some matters concerning his Honour’s decision in May, which his Honour correctly explained were matters for an appeal, his Honour said that if the mother would consent he would make an order that day (concerning the mother’s future time with the child) otherwise the matter would “be set down for hearing again”. The mother responded that she “would like it to go to hearing”. His Honour then said that he would adjourn the matter to a Registrar for the fixing of a date for a two day hearing in the following year.

6. Finally, on 26 November 2010 his Honour dismissed an application which the mother had filed on 8 November 2010 seeking orders for a police investigation into allegedly missing subpoenaed documents.

Proceedings on 1 December 2010

1. The matter next came before Bell J on 1 December 2010. Counsel for the ICL advised his Honour at the outset that it was the position of the ICL that there was no need for a further hearing given that a trial had occurred in March and that the only matter left for determination was the ongoing arrangement for supervised time between the mother and the child. Counsel also advised his Honour that the ICL had been able to engage a new supervisor, a Ms P, as Ms C would no longer be available as from 12 December 2010.

2. After some further discussion with all parties concerning the terms of the order he proposed to make, and having explained to the mother that he had been “confused” at the previous hearing (when he had mentioned the possibility of a two day hearing), his Honour made an order which in its engrossed terms is as follows:

   1.The mother spend time with the child [B] born … October 2002 each alternate weekend for a period of no more than three hours on a Saturday or a Sunday such time to be supervised by Ms [P] or such other person appointed by the Independent Children’s Lawyer, the costs of such supervision to be borne equally between the parties.

Scope and conduct of the present appeal

1. On 24 December 2010 the mother filed a notice of appeal against his Honour’s order of 1 December 2010. The mother had not at that stage filed an appeal against the orders of 28 May 2010.

2. The matter came before the Appeal Registrar for a procedural hearing on

   
   

   16 March 2011 and was adjourned to afford the mother the opportunity to seek to file an appeal against the orders made on 28 May 2010.

3. On 6 May 2011 the mother filed an application seeking leave to file a notice of appeal out of time against the orders of 28 May 2010. The other parties eventually consented to that application.

4. It was necessary for the Appeal Registrar to conduct a number of further hearings in order to have the appeals ready for hearing by this Court. We need not detail the applications dealt with nor the orders made at those hearings. We need only say that it was necessary for the matter to be listed before us for mention on 2 November 2011, and at that mention we made orders which permitted the mother to file a further amended notice of appeal (which she did on 4 November 2011) in which she appealed both the orders of 28 May and

   
   

   1 December 2010.

5. The mother’s original notice of appeal filed on 24 December 2010 contained

   
   

   23 grounds of appeal.

6. On 16 September 2011 the mother filed an amended notice of appeal in which each of the original 23 grounds appeared (at least in substance) but was crossed out. There was then a new and, in many cases, different ground inserted immediately after the crossed out original ground. In addition new Grounds

   
   

   24 to 37 were inserted.

7. The mother also filed on 16 September 2011 a summary of argument which addressed each of the 37 grounds in the amended notice of appeal. This was done by repeating each ground and then adding some additional material or references in relation to that ground.

8. In addition, a further ground, Ground 38, appeared at the end of the summary of argument. This appears to have happened because what was Ground 29 in the amended notice of appeal was split in the summary of argument into two paragraphs, with the second paragraph being numbered 30 and all subsequent grounds given a higher number.

9. On 4 November 2011, the day of the appeal hearing, the mother filed a further amended notice of appeal which contained the same 37 grounds of appeal presented in the same way as in the amended notice of appeal filed on 16 September 2011 (that is, with the grounds from the original notice of appeal crossed out and a new ground inserted below each original ground, and with new Grounds 24 to 37). However, in the further amended notice of appeal Ground 6 was abandoned (this was done by all material under the heading “Ground 6” being crossed out). The only other difference between the further amended notice of appeal and the amended notice of appeal was that the former stated that the appeal was against the orders of 28 May 2010 as well as against the order of 1 December 2010.

10. We have only mentioned these matters concerning the various notices of appeal because Counsel for the ICL had filed her written summary of argument on

    
    

    1 November 2011, and in that document Counsel had addressed the grounds of appeal as they appear in the mother’s amended notice of appeal (filed 16 September 2011).

11. Given that there was no difference between the grounds as contained in her amended notice of appeal, and the grounds contained in the further amended notice of appeal (apart from the abandonment of Ground 6), Counsel for the ICL was not at a disadvantage before us and was able to address orally without difficulty those grounds which she considered she needed to address. When later in these reasons we address the grounds of appeal, we will do so according to the numbering which appears in the amended notice of appeal and further amended notice of appeal.

12. We also mention in this context that in her written summary of argument Counsel for the ICL endeavoured to group the grounds of appeal into eight categories, but having done that she further grouped them into two categories being: first, improper and unarguable grounds which have no substance and should be dismissed, and second, grounds that are appealable (being Grounds 4, 5, 12, 13, 23, 29 and 31).

13. We do not propose to adopt these groupings. Rather we considered it more appropriate given the mother’s self-represented status and her obvious concerns about this matter, for us to address individually each of her grounds or purported grounds (at least as best as we have been able to understand them), notwithstanding the time and work that this has taken.

14. For his part, the father had prepared as his summary of argument a short document (which he filed on 10 October 2011) in which he stated that Bell J had “considered all of the evidence before him, from the Family Report writers, the Queensland police, the Department of Communities, the psychiatrist and psychologists reports, the contact centres and supervisors and the parties involved to arrive at the decision he made.” The father then sought, as mentioned at the outset of these reasons, that the orders of Bell J be upheld and the appeal be dismissed. The father added little by way of oral submissions at the hearing before us.

The grounds of appeal

1. We will now set out the precise terms of each ground of appeal as it is contained in the mother’s further amended notice of appeal (filed 4 November 2011) and we will then consider that ground.

Ground 1: “In hearing this matter His Honour has not fulfilled his obligation to comply with legislative administrative procedural requirements and his determination has been made outside jurisdiction, in that having said ‘It is not a matter for the Court. If the Bar Association has seen fit not to have solicitors sitting beside counsel then I can’t interfere with the Bar Association,’ his Honour has continued to hear the matter with the independent child lawyer seated at the bar table addressing his honour during proceedings. Counsel and the ICL have similarly not fulfilled their professional obligations.”

1. This purported ground of appeal is directed to a passage in the transcript of

   
   

   15 March 2010 at page 32 when his Honour was discussing with Counsel for the ICL a timetable for the attendance of the witnesses during the trial. During the course of that discussion, Counsel indicated that she would need to speak to her instructing solicitor about the availability of certain witnesses. His Honour then made the statement which appears in italics in this ground. There was no error in his Honour continuing to hear the matter despite his concern that Counsel’s instructing solicitor was not with her. Nor in our view, can any criticism be made of the ICL and his Counsel on account of this matter.

Ground 2: “His Honour made an error of law in not determining at the commencement of proceedings who’s application he was hearing, and by what course the hearing for final parenting orders had come before him, resulting in a misconception from the onset of the nature of his duty, and a failure to recognise the necessary conditions for the exercise of his jurisdiction.”

1. It is true that Bell J did not identify at the commencement of his reasons for judgment delivered on 28 May 2010, which party was the applicant and which was the respondent and the precise orders which each was seeking. Nor does he appear to have identified these matters at the commencement of the trial.

2. However, throughout the trial his Honour appears to have treated the mother as the applicant given that he permitted her to cross-examine witnesses before the father did so, and given also that the cover page of his reasons for judgment of 28 May 2010 show the mother as the applicant. In our view, this was the correct approach because by the time of the trial before his Honour the child was living with the father (pursuant to the orders made by Murphy J on

   
   

   8 September and 21 November 2008) and the mother’s case before his Honour was that the child should return to live with her and have only supervised time with the father (as is clear from her Case Information document filed on

   
   

   12 February 2010). It is also abundantly clear from his Honour’s reasons for judgment what orders each party was seeking.

3. In her oral submissions directed to this ground, the mother appeared to make similar complaints in relation to the proceedings before his Honour on

   
   

   26 November 2010.

4. There can certainly be no substance in these complaints because at the very commencement of the proceedings on 26 November 2010, his Honour enquired as to whose application was before him, and it is clear from the exchange which followed, that it was the application of the ICL for a determination for the time which the mother was to spend with the child (as required by the orders of 28 May 2010).

5. There was also before his Honour on 26 November 2010 the application by the mother for a police investigation into allegedly missing subpoenaed material, which his Honour dismissed. The time at which that application was being determined and that it was the mother’s application is entirely clear from the transcript of that day.

6. Finally, we observe that to the extent there may have been an expectation on the mother’s part after the proceedings on 26 November that there was to be a further two day hearing, this “confusion” on his Honour’s part was adequately explained to her by him on 1 December 2010.

Ground 3:     “His Honour made an error of law in not hearing this matter on a De Novo basis and applying Rice and Asplund principles in light of the fact that subsequent to final parenting orders made by Justice Carmody in March 2007, and an appeal against those Orders, dismissed on 26/10/2007 the listing for final parenting orders did not eventuate as a result of a fresh application by either parent, but from Orders of Justice Carmody dated 31 March 2008, listing the matter for allocation into another judicial docket, and Orders of 20/5/2008, stating the application for final parenting orders remain open.”

1. On its face this ground seems to complain that Bell J erred in deciding this case only on the basis of evidence which became available after the trial before and decision of Carmody J in February – March 2007 and not on the basis of the evidence which was before Carmody J.

2. It will be clear from the summary of Bell J’s reasons of 28 May 2010 which we earlier provided, that his Honour did canvass at considerable length in those reasons the allegations and other evidence which had been before Carmody J in February 2007. However, it was unnecessary for Bell J to go behind, or second guess, so to speak, the decision reached by Carmody J (which had itself been subject to appeal). What was necessary for Bell J to do, and what he did do, was to consider the allegations made and other evidence, which had become available, subsequent to Carmody J’s decision. As his Honour’s treatment of what can be termed “new material” is, in our view, the most significant issue in this appeal and as it is raised in other grounds of appeal, we will return to it after canvassing all other grounds.

3. Finally, at this point in relation to Ground 3, we would say that we do not read Bell J’s reasons of 28 May 2010 as containing any application of the principles in Rice & Asplund (1979) FLC 90-725, and also that the orders made by Carmody J on 31 March and 20 May 2008 which are referred to in the ground were either of a procedural nature or adjusted the supervision arrangements and are of no present significance.

Ground 4:     “His Honour made an error of law in stating on the 26 November 2010, ‘I’m functu officio’, and ‘This is not a review’, in light of his Orders of 28/5/2010 which state at paragraph (9) ‘That the matter be brought back before the Honourable Justice Bell no later than 30 November for a review’, and paragraph 87 of Reasons for Judgment of 28/5/2010 where he wrote ‘that the Independent child lawyer should at the end of six months bring the matter back on for a hearing before me.’”

1. Earlier in our account of the various proceedings before Bell J in 2010, we explained that his Honour’s orders of 28 May 2010 required that the matter should come back before him before the end of November that year so that he could review the arrangements for supervision of the time which the mother was to spend with the child. We have also explained the confusion on his Honour’s part on 26 November 2010, which he acknowledged on 1 December 2010, as to the need for another two day trial. In addition we have explained that on 26 November the mother had endeavoured to raise matters with his Honour arising out of his decision on 28 May 2010, which his Honour had correctly explained were matters for an appeal and not for the limited “review” which he was then conducting. Nothing more need be said about these matters save to make clear that there was no error on his Honour’s part as asserted by Ground 4.

2. Before leaving Ground 4, we mention that in her oral submissions the mother referred to an order made on 3 November 2010 by a Registrar which required the Director-General of the Department of Communities (Child Safety Services) “to provide an update of the Magellan Report”. It appears that this order caused the mother to believe that there was to be a further trial.

3. (It should be explained that “the Magellan” list is a case management system in the Family Court for serious child abuse cases. “Magellan” reports are compiled for the assistance of the Court by child welfare departments).

4. It would appear that the order of the Registrar was made under a misapprehension by the Registrar that such an updated report was required for the review required under the orders of 28 May 2010. As will be seen from those orders, which are earlier set out, no updated Magellan report was required; only a report by a family consultant was required.

5. We also mention that there was before us at the hearing of the appeal (as “Exhibit 1”) an email from the Department to the Registrar responding to her order and explaining that the Department had not had any further contact with the family since the provision of a report on 3 March 2010 and that there was therefore no information to update.

Ground 5:     “His Honour was estopped from making final orders on 1 December having said on the 26/11/2010 that there would be a further two day hearing of this matter in May or June of 2011. As a result errors of fact, brought to his Honour’s attention on 26/11/2010 have not been addressed, time has been lost, natural justice denied and the matter has gone to Appeal.”

1. The matters raised by this ground have been addressed under Ground 4 and found to be without substance.

Ground 6:     Abandoned.

Ground 7:     “His Honour made an error of law in dismissing the appellant’s application dated 8/11/2010 (appeal book page 520) seeking Orders that the Court request a police investigation into missing documents and irregularities contained in subpoenaed documents as described in the appellant’s affidavit of 8/11/2010, as unless these matters are investigated decisions can not safely be made.”

1. We consider that his Honour did not make an error of law in dismissing on

   
   

   26 November 2010 the mother’s application for an order that the police investigate allegedly missing documents and other “irregularities” in relation to subpoenaed documents. The reasons for this application by the mother are apparently to be found in her affidavit (filed 8 November 2010). Nothing said in that affidavit would have made it appropriate for such an order to be made directed to the police.

2. We do however note from a passage of the transcript of 15 March 2010 (pages 127 – 128) that his Honour had some concerns about the state of the subpoenaed material and was having Registry investigations made.

Ground 8:     “His Honour failed to exercise his jurisdiction by not obtaining from Relationships Australia records of supervised visits with the father in 2007, which were subpoenaed, but were not contained in the Court file. These records are relevant to the matter to be decided.”

1. Counsel for the ICL drew our attention to a passage at pages 105 – 108 of the transcript of 15 March 2010 where there was extensive discussion of the subpoena to Relationships Australia. That discussion is not easy to follow although it emerges elsewhere in the transcript that his Honour was concerned about missing subpoenaed documents and asked for a Registry investigation. However, we are prepared to accept the submission of Counsel for the ICL that the material which had been provided complied with the subpoena.

2. We note that included in the material in the “Exhibit Book” tendered by the ICL there is an “intake” form dated 20 November 2009, a medical consent form dated 1 December 2009, a report of supervised time spent by the father with the child on 22 March 2008, and a sheet of the file notes dating from

   
   

   14 October 2007 to 22 May 2008.

Ground 9:     “His Honour failed to exercise his jurisdiction in not allocating time to hear evidence from CSO Ms [Q] whom I had subpoenaed to give evidence. The child made disclosures of abuse to Ms [Q] on 23/1/2008. His Honour had an obligation to hear evidence from Ms [Q]. Failure to call her makes findings unsafe.”

1. It appears from the transcript of 15 March 2010 (at pages 64 and 110) that a subpoena had been issued to a Ms Q, a Child Safety Officer, to attend to give evidence. However, Ms Q had apparently asked if she could come to court on a later date in the week of the trial because she had child care problems. His Honour ruled that she would have to come earlier than her preferred date presumably because he believed that the trial would have finished by that later date.

2. The matter of Ms Q’s attendance at the hearing (as opposed to references to her work) appears not to have been raised again. As we explained to the mother when she was before us, it was for her to have reminded his Honour about Ms Q if she wanted her to give evidence.

Ground 10:   “Natural justice has been denied in that since being re listed as a Magellan matter in 2008, the case has not been heard consistently by one Judge, as a result benefits derived from the Magellan program available to other litigants under the program have been not been (sic) available in this case.”

1. Again as was explained to the mother when she was before us, it is desirable if serious child abuse cases (“Magellan” matters) can continue to be heard by the same judge. The difficulty in this case was that Carmody J had retired from the Court before the trial before Bell J.

Ground 11:   “His Honour has made an error of law, and denied natural justice by not permitting the appellant to make an opening statement. This is a breach of proper hearing and failure to act according to substantial justice.”

1. The transcript of the opening day of the trial (Transcript 15 March 2010, page 9) reveals that his Honour did not permit the mother to make an opening statement for the reason that she had prepared a Case Information document. There was no error on his Honour’s part in those circumstances.

Ground 12:   “His Honour has made an error of law in not providing Reasons for Judgment for Final Orders.”

1. His Honour did provide reasons for judgment on 28 May 2010 for the final orders made that day. In so far as his Honour conducted a review on

   
   

   26 November 2010 and 1 December 2010 of the supervision arrangements for the mother’s time with the child (as provided for in the orders and reasons of

   
   

   28 May 2010), it was unnecessary for him to provide formal reasons for judgment. His reasons for the order made on 1 December 2010 are clear from the transcripts of 26 November 2010 and 1 December 2010. There is therefore no error as asserted in this ground.

Ground 13:   “His Honour has made an error of law in not providing a sunset clause for supervision of visits.”

1. While we acknowledge the indefinite supervision of a child’s time with a parent is generally undesirable, it was well within his Honour’s discretion in the circumstances of the present case, particularly having regard to the location and recovery orders which have been necessary in the past for his Honour to make the order for indefinite supervision. (See in this regard the discussion in Champness & Hanson (2009) FLC 93-407 [215] to [221]).

Ground 14:   “His Honour has demonstrated actual bias in his pre judgment of this matter, apparent in his comment at paragraph 80 of his Reasons for Judgment where he wrote ‘Notwithstanding there may be matters which I have overlooked in the extensive evidence before me which may be of some assistance to either of the parties, I am quite satisfied on the evidence that there is no evidence that there is no evidence (sic) or any sufficient evidence to convince me that the child, [B] is being sexually assaulted whilst in the primary care of the father’.”

1. The mother submitted orally to us that this statement indicated that his Honour was committed to his conclusion no matter what evidence he may have overlooked.

2. His Honour had before him an enormous volume of evidence in the form of affidavits from the parties and from other persons. In addition he had tendered documents from the ICL which was referred to as “the Exhibit Book” and which extended to nearly a thousand pages and occupied four appeal books before us.

3. It is therefore hardly surprising that his Honour included reference to the possibility that he had overlooked something. But we are certainly satisfied having considered that material ourselves, that his conclusion was reasonably open to him as we will further explain in due course.

Ground 15:   “His Honour displayed apprehended bias in stating ‘I don’t want to know that’ in response to counsel advising him Ms [Q] (CSO to whom the child disclosed abuse) had been subpoenaed to give evidence.”

1. The context in which his Honour made the remark, which is the subject of this ground, was in a discussion about apparently missing subpoenaed documents. His Honour’s remark was a response to a statement by Counsel for the ICL apparently concerning the witness, Ms Q, that “in respect of the one before this one, your Honour, she has actually been subpoenaed to give evidence only” (Transcript 15 March 2010, page 127, lines 31 to 32).

2. If, as mentioned in relation to Ground 7, his Honour was concerned about missing subpoenaed documents, he would not have wanted to hear about a subpoena which was only directed to the attendance of a witness. He was certainly not displaying “apprehended bias” by the remark in question.

Ground 16:   “His Honour displayed apprehended [bias] during discussion of witnesses to be called; the appellant said ‘[Ms W] is the senior practitioner […]. She has been saying the child is at risk of harm since March 2009. She has said that he has probably been--’ his honour did not allow me to finish my sentence, and and (sic) responded by saying ‘I don’t want to hear what she will say. What do you want her for?’”

1. The exchange between his Honour and the mother to which this ground is directed occurred early in the trial when his Honour was establishing a timetable for the calling of witnesses.

2. His Honour was correct in saying that the mother should not tell him what Ms W would actually say, but rather she should tell him the purpose of Ms W’s evidence. This the mother was able to do – the purpose being that Ms W’s evidence conflicted with that of Ms Y and Ms S (as we will later discuss). (Transcript 15 March 2010 page 18, lines 34 to 41).

3. It is important to observe that Ms W did give evidence during the trial. There is no substance in this ground and its claim of apprehended bias.

Ground 17:   “His Honour demonstrated apprehended bias in his remark” your (sic) the one who – want them. Your (sic) the one who should follow it up” in relation to records of the father’s visits with the child at Relationships Australia in 2007 which the centre confirmed with me they had sent, but were missing from the subpoenaed file, in light of the fact that I am unable to obtain the records without permission of the Court, and it is within his Honours (sic) jurisdiction to obtain the records, and unsafe to decide a matter when records are missing from the file.”

1. The mother explained to us that this was a different complaint to that contained in Ground 8 (which was directed to the allegedly missing subpoenaed documents from Relationships Australia), in that this ground asserted apprehended bias on the part of his Honour in the way he dealt with the allegedly missing subpoenaed documents from Relationships Australia.

2. We do not agree that there could be any apprehension of bias on his Honour’s part in the way in which he dealt with the issue of missing subpoenaed documents. As we have earlier pointed out, his Honour apparently initiated an enquiry within the Registry in relation to missing subpoenaed documents. Specifically, in relation to the documents from Relationships Australia, we have earlier accepted what we understood to be the submission of Counsel for the ICL, that all material required to be produced by that organisation was produced.

Ground 18:   “His Honour has demonstrated apprehended bias in quoting Mr [R] at paragraph 28 of his Reasons for Judgment where he wrote ‘I note in Mr [R]’s report, see 8.2.2 that he is of the view that in respect of issues of sexual abuse argued by the mother to be indicative of sexual abuse are not necessarily indications or even strong indicators of sexual abuse’ without including that Mr [R] also wrote at paragraph 8.2.2 ‘In respect to the allegations of sexual abuse, the report writer does not see it as his role to determine whether or not sexual abuse has occurred’, and at paragraph 8.2.10 ‘It is my opinion that a comprehensive psychological assessment of the child may be beneficial’, at paragraph 8.2.3 ‘it probably would not be in the best interests of the child to leave the mother and live with the father as the father is proposing’, at 8.2.8 ‘If the Court decides that there is insufficient evidence to indicate that there is an acceptable risk ‘..’it is still considered to be in the best interests of the child to continue living with the mother’ .. and ‘parenting times with he (sic) father should in this eventuality be supervised initially. After several successful supervised sessions, supervised periods should be gradually introduced by sandwiching short periods (for example two hours) of unsuperviesed (sic) time between two periods – each of half an hour – of supervised time. The unsupervised component could be gradually increases (sic) to say, six hours and following six months or so of such sessions, there could be a review’. ..’the reasons for his regimen are several fold – it give us (including the Court) a chance to observe the development of the relationship between the father and the child in a safer manner’.”

1. Mr R is a psychologist who prepared a family report dated 15 June 2006. It was in that report that the passages referred to in this ground are to be found.

2. It would seem that the complaint in this ground is that his Honour only selected one passage from Mr R’s report and not other passages which might have been more favourable to the mother. Even if that be so, we consider it would be of no consequence because the circumstances of the case had so changed since Mr R prepared that report, in particular the child had been moved to live with the father following the mother’s absconding with him.

Ground 19:   “His Honour demonstrated apprehended bias in Ordering psychological report of the mother on 25/5/2010 (sic) [28/5/2010] in light of the fact that the Court had twice previously Ordered psychological reports of the mother, and at the time had the benefit of three psychological reports of the mother, yet had no psychological reports of the father, who admittedly has a history of heroin addiction and was considered to have probably sexually abused the child, thought to be at ongoing risk of probable sexual abuse by the father as documented by the senior practitioner.”

1. There could be no substance in this ground without the mother establishing to our satisfaction that she had asked the Court to order a psychological assessment of the father, and also that the Court had refused to do this for reasons which were inadequate. She has not done this.

Ground 20:   “His Honour has demonstrated apprehended bias in his comments at para 88 of Reasons for Judgement (sic) where he wrote ‘Best to be said that I have not looked into the respective histories of the parties’…, yet in the same paragraph wrote ‘I need no more refer in relation to the mother than to Dr [G’s] report’ and ‘in her extensive history she sets out those matters which some people might consider to be of importance in the early childhood development of the mother’ It is evident in this comment that it is the father’s history his honour has not looked into. A fair minded observer may perceive that his Honour has not brought an impartial and unprejudiced mind to the resolution of this matter in light of the father’s criminal history, and the fact that sexual abuse by the father was suspected.”

1. We think that all his Honour was saying in the first sentence of [88] of his reasons was that he did not intend to refer to or discuss the histories of the parties except to refer to Dr G’s report in relation to the mother.

2. Dr G is a psychiatrist who interviewed the mother on 17 March 2008 and prepared a psychiatric assessment of the mother dated 20 March 2008 pursuant to the orders made by Carmody J on 12 February 2008.

3. Given the serious matters contained in the concluding opinion in Dr G’s report – some of which are set out in our discussion of Ground 24, we consider that his Honour was justified in referring to her report and no complaint of apprehended bias arising out of this matter could have substance.

4. To the extent that this ground complains about the lack of such a report in relation to the father, we refer again to what we said in relation to the last ground (Ground 19).

Ground 21:   “His Honour has demonstrated apprehended Bias in his statement at page 25 para 40 of Reasons for Judgment where he says in regard to the Care Agreement to which parental consent was sought by the Department ‘it was signed by you. It’s of no force and effect’. The fact that the father refused to sign is immaterial to significant issue, being the child was considered to be at risk of harm from the father, and a neutral environment considered to be in his best interests, and a pre requisite for further disclosures of probable sexual abuse.”

1. There is no reference in [40] of Bell J’s reasons to a “Care Agreement” (which is apparently a document which parents can be requested to sign by the Department and which would provide for the child to be put into foster care). However our searches have revealed that at page 25 line 40 of the transcript of the first day of the trial (15 March 2010) in the course of an exchange between the mother and his Honour, there is discussion of a child protection care agreement. During that discussion his Honour said the words attributed to him in this ground. We have been unable to locate a copy of the agreement in question, but in any event do not consider that his Honour’s words when read in the context of the discussion during which they were said, could possibly support a successful apprehended bias claim.

Ground 22:   “His Honour has made an error of fact at paragraph 39 of his Reasons for Judgment where he wrote in regard to the child’s 93A interview with police on 20/11/2010, ‘notwithstanding that [B] made no disclosures. he was returned to the father – that was on 20 November 2008’ in light of evidence contained in departmental and police files documenting that the child disclosed abuse on 20/11/2010,  and police tapes of the interview on 20/11/2010.”

1. Paragraph 39 of his Honour’s reasons needs to be read in context with paragraph 38. Those paragraphs are as follows:

   38.There were, I believe, two discs of evidence tendered to this Court, which is most unsatisfactory to the Court, but I was able to see one which was a video and the other which was solely audio.  The mother has touched upon the child exhibiting signs of distress in the video in which he tends to move towards a corner.  I am also of the opinion that this would be, in effect if I might say, normal behaviour for a child which has suffered such a terrible existence over a period of many years.

   39.The audio recording is quite sad in that it was indicated to the child that he was to go with his father after he had been removed from his father for about three months and he exhibited signs of distress.  My heart bled for him having been put in such a position by the mother and notwithstanding that [B] made no disclosures, he was returned to the father – that was on 20 November 2008.

2. We clarified with the mother when she was before us that the reference to “20 November 2010” in this ground should in fact be to “20 November 2008”.

3. It appears from a document on the Department’s files which was one of the ICL’s tendered documents before Bell J, that the child may have made disclosures to the police on or about 20 or 21 November 2008, and that he had made disclosures prior to that date. His Honour therefore may have made the error of fact as is asserted by this ground, although we cannot be certain that his Honour was not in fact referring to the tapes which he had listened to and saying that they contained no disclosure by the child.

4. However even if there was such an error by his Honour, it would not be a material error which would cause us to interfere with his decision. This is because it is clear from other passages in his reasons, that his Honour was well aware that the child had made disclosures. More importantly, disclosures of themselves do not establish that abuse has occurred; rather disclosures have to be investigated (as they have been in this case) and findings made.

Ground 23:   “His Honour has made an error of fact by stating on 1/12/1010 (sic) regarding a psychological report Ordered on 28/5/2010 and written by Dr [M] ‘He didn’t give a disgnosis’ (Appeal book Page 699) in light of the fact that Dr [M] (clinical and forensic psychologist with specific training, qualifications and expertise in assessing, evaluating and treating individuals with complex mental health concerns and personality problems) wrote under the heading ‘PRESENTATION & CLINIAL OBSERVATIONS’ at para 22 ‘she did not display any symptoms indicative of thought disorder or related psychotic like symptomatology’”

1. The words attributed to his Honour in this ground appear in the transcript of

   
   

   1 December 2010 at page 2 line 33. Read in context these words may well amount to no more than a question on his Honour’s part as to whether a diagnosis had been provided by Dr M. Thus we cannot be satisfied that his Honour did make an error of fact, but even if he did, it has not been established that anything would turn on such an error.

Ground 24:   “His Honour made an error of fact at para 89 of his Reasons for Judgment where he wrote ‘Dr [G] is of the opinion that the mother’s conviction that [B] is being sexually abused by his father could perhaps be brought about as a result of her own history or sexual abuse’. Dr [G] wrote ‘I believe it is possible that hypervigilance and over protectiveness of her children may be a consequence attributable to sexual abuse’”

1. It appears correct that in the concluding paragraphs of her report (which we earlier mentioned) Dr G used the words which are attributed to her in this ground rather than in his Honour’s interpretation of those words as appears in the opening sentence of [89] of his reasons. While it might be said that the words as interpreted by his Honour are stronger than those actually used by

   
   

   Dr G, nothing would turn on this. Rather the important paragraphs from the doctor’s conclusions were quoted accurately later in paragraph 89 and then in paragraph 90 of his Honour’s reasons and are as follows:

   I consider that her psychological stance is increasingly entrenched as she has undertaken the adversarial process of litigation and I believe that it is improbable that she will be able to comply with Orders for unsupervised time with the father.

   As things stand I believe that it is highly improbable that she will ever be able to facilitate contact between the child and the father and since the Court has determined that sexual abuse of the child by the father is unlikely to have occurred this in itself would be to the detriment of the child.

Ground 25:   “His Honour has made an errors of fact at par 9 of Reasons for Judgment where he wrote he wrote (sic)‘There are other machinery provision orders had been made and eventually the father was permitted to go on outside excursions with the child [B], with a staff member from the contact centre’ Prior to Orders of October 2005, there were no Orders made for unsupervised time between the child and father.”

1. We do not understand the complaint in this ground given that the “outside excursions” continued, according to what his Honour said in the passage quoted in the ground, to be supervised by a contact centre staff member.

Ground 26:   “His Honour has made an error of fact at par 4 of Reasons for Judgment where he states ‘The independent child lawyer was appointed pursuant to an Order of this Court dated March 9 2010’ in light of the fact that the independent child lawyer was appointed pursuant to an Order dated 18/4/2006.”

1. If this was an error on his Honour’s part, it is immaterial.

Ground 27:   “His Honour has made an error of fact at par 8 of his Reasons for Judgment where he wrote ‘she further sought orders that the mother be permitted to travel with the child overseas provided she provides the father with evidence of a return air ticket and itinerary.’”

1. Again, if this was an error, it is immaterial.

Ground 28:   “His Honour has failed to considered (sic) matters fundamental to the issue to be determined, making his findings unsafe. This is apparent in his statement at para 88 of Reasons for Judgment he wrote ‘Best to be said that I have not looked into the respective histories of the parties’”

1. We have already in the context of Ground 20 discussed and suggested an explanation for this statement by his Honour, and therefore do not need to address this ground further.

Ground 29:   “His Honour has an obligation to consider the child’s views as they were in evidence before him.

His Honour has made an error of law in accepting the findings of Ms [Y’s] investigation’s (sic) and Assessment & Outcome Report – 11/11/2009 which resulted in the closure of the child’s departmental file; it is not supported by facts contained in case notes, is misleading, and biased, and the investigation plan has not been adhered to, and the Family Risk Assessment summary of the father finds the child to be at high risk of abuse in the father’s care, and it is stated in the review – ‘During this time DOCM(CSS) completed a review of his case and we understand a new assessment is recommended’.”

1. As Counsel for the ICL submitted (at paragraph 51 of her written submissions), his Honour did take into account the child’s expressed views by means of the various expert reports which were before him and on the basis of which he was able to conclude at [97] there is a relationship between the boy and his mother and that he is excited to be with his mother. There is thus no merit in the first part of this ground.

2. We will return to the substance of the second part of this ground when we discuss what we have identified in the context of Ground 3 as the principal issue in the case.

Ground 30:   “His Honour failed to give real and substantial consideration to the facts of the case, and answer the question whether on the evidence, access could represent an unacceptable risk of harm to the child, resulting in an error of law in light of the result of the father’s Family Risk Assessment, which finds the child is at high risk of abuse in his father’s care, and states that the case will remain open for further intervention. At section 1 & 2 of this assessment question 3 has been answered incorrectly resulting in a lower than factual risk level.”

1. Again, this is a matter to which we will return when considering the essential issue in the appeal.

Ground 31:   “His Honour had an obligation to consider the Expert witness report of [Ms H], Ordered on 31/3/2008. [Ms H] wrote ‘It is my opinion that Ms [Lindsay]s concern about the safety of her son [B] is based on what appears to be a reasonable assumption and one that many parents would hold, irrespective of the individual adult’s sexual abuse history, given [B]’s overt sexualised behaviour, and other behaviours displayed by [B] which are of concern and lastly the disclosures made by [B] not only to his mother, his grandmother and sister, but also to childcare workers.’”

1. It appears from a report which Ms H, a psychologist, prepared on

   
   

   4 June 2009 that the mother attended counselling with Ms H with a view to resolving issues with respect to her own sexual abuse and how that may impact on her parenting of the child. The report was in evidence before his Honour, and the subject of the mother’s two counselling sessions with Ms H was discussed with the mother during her cross examination by Counsel for the ICL.

2. Given the vast amount of evidence which his Honour had before him, we do not consider that he was in error in not making reference to Ms H in his reasons for judgment.

Grounds 32: “His Honour had an obligation to consider disclosures of sexual abuse made by the child to childcare staff on the 9/2/2007, notified to the Dept. by the Director of the centre on 11/2/2007, which due to an error of fact were not given weight at the hearing in February 2007, or the subsequent appeal.”

Ground 33:   “His Honour has an obligation to consider that the SCAN AM Team were not able to provide appropriate recommendations or services for the child in the absence of relevant information, available but not shared with the team by Dept. and QPS. SCAN AM Team Supplementary Information – 19/2/2009 provided by Police does not include information regarding the child’s 93A interview on the 20/11/2008 on which date the child disclosed sexual abuse and death threats by the father. SCAN AM Team minutes dated 20/2/2009 record CSO advised the team ‘Child has not disclosed any concerns in relation to sexual abuse.’ The Dept. file contained mandated notifications of disclosures of sexual abuse by the child at that dated.”

Ground 34:   “His Honour had an obligation to consider disclosures of sexual abuse made to CSO’s on 23/1/2008, evidence of which was tendered on 15/3/2010. Failure to consider these disclosures makes his Honour’s findings unsafe.”

Ground 35:   “His Honour had an obligation to consider a mandated report received on 14 September 2009, referred to in Screening Criteria/Response Priority Summary 29/10/2009 which records it is probable the child’s immediate safety is threatened, and sexual abuse by the father is suspected. A 24 hour response was recommended. A copy of the even intake – […] /Form ID […] is not contained in Court files.”

Ground 36:   “His Honour has an obligation to consider that the Dept. opened an ‘Intervention with parental agreement’ with the father, in February 2009.”

Ground 37:   “His Honour has an obligation to consider that the Dept. sought parental consent to a ‘Care Agreement’ in June 2009. A neutral environment was considered to be in the child’s best interests. The father refused to sign the agreement.”

1. The matters in these grounds will be discussed shortly when we turn to the principal matter in the appeal being the new material before his Honour relating to the risk to the child of sexual abuse.

The new material before Bell J relating to allegations of abuse or risk to the child

1. We return now to the matters which were raised by Grounds 3, 29, 30 and 32 to 37, and which we consider to be the essential matters in the appeal, being Bell J’s approach to, and conclusions regarding the events which occurred, and the independent reports or assessments made, following Carmody J’s decision on 15 March 2007. There was also a suggestion in the mother’s case that there may have been disclosures from the child which had been made prior to, but were not available at, the trial before Carmody J, but were available at the trial before Bell J.

2. We propose to approach these matters first by tracing in greater detail than was done in the earlier background history in these reasons, the events, proceedings, investigations and reports which followed Carmody J’s decision in March 2007, either as recorded in Bell J’s reasons of 28 May 2010 or as drawn to our attention in the context of the appeal. We will then consider the grounds of appeal directed to these matters.

The relevant history

1. On 12 February 2008 Carmody J issued a recovery order in relation to the child. Whether such an order was required because the child had disappeared or because he was not being made available for time with the father is not clear, but it matters little.

2. Carmody J also ordered that the child should live with the father until

   
   

   27 February 2008 and have no contact with the mother pending further hearing, and that the mother was to be psychiatrically examined within the following two weeks. These orders apparently provide the reason for the psychiatric assessment of the mother by Dr G in March 2008.

3. On 27 February 2008 at a hearing at which the mother was represented by Counsel, Carmody J made further orders that the child live with the father and that the child have supervised time with the mother on a graduated basis. His Honour also ordered that the mother attend upon a clinical psychologist, Dr L, “with respect to the issues raised in the Family Report dated 15th June 2006 at paragraph 8.2.3”. That family report had been prepared by Mr R (a psychologist in private practice) and in paragraph 8.2.3 it was recommended that the mother participate in counselling to assist her in managing the reported sexualised behaviour of the child and to assist her to understand and accept the need for the child to develop a positive relationship with the father.

4. On 31 March 2008 Carmody J made further orders varying the arrangements for the time which the mother would spend with the child and ordering a further family report “to assess the present interim orders”.

5. As a result of those orders, a family report dated 16 June 2008 was prepared by Ms J, and in which it was recommended that the child continue to live with the father.

6. On 11 August 2008, the father had to apply for a location order because the mother had disappeared with the child. A recovery order was subsequently issued by Murphy J on 8 September 2008. The child was not recovered until November 2008 when he was returned to the father’s care. Orders were made by Murphy J on 21 November 2008 suspending the mother’s time with the child for a period of six weeks.

7. As recorded by Bell J at [40] and [41] of his reasons of 28 May 2010, an assessment prepared by a departmental officer, Ms E, on 13 February 2009 concluded that the child was safe, and a family report prepared by a family consultant, Ms B, on 24 February 2009 recommended that the child’s time with his mother be supervised (and that he continue living with his father).

8. Also at [40] of his reasons, his Honour suggests that a “Magellan” report prepared by the Department on or about 14 February 2009 concluded that the order placing the child in the father’s care was placing him at risk. However, the second last paragraph of that report in fact states that it was not considered that that order was placing the child at risk. There is clearly a typing error in his Honour’s reasons.

9. Importantly for present purposes, his Honour recorded in [41] that on 23 March 2009 Ms W (a social worker with the Department) had concluded that, in his Honour’s words, the child “had probably been sexually abused by the father”.

10. A case note summary prepared by Ms W is contained in the Department’s files, in which she referred to her concerns about this case which she had previously recorded on the Department’s files in July 2008 and February 2009. While apparently acknowledging the need for a “far more holistic” assessment, she expressed the view that the child had probably been sexually abused by the father and was at ongoing risk of such abuse by the father.

11. On 14 September 2009 and in light, it would seem, of Ms W’s concerns, another officer of the Department, Ms S, prepared a report which contained an extensive history of the Department’s involvement with the family and of notifications to it, and concluded with a recommendation that because a thorough departmental assessment of the sexual abuse concerns had never been conducted, there should be “a thorough, comprehensive and holistic investigation and assessment undertaken” for the apparent purpose of the Department being able “to provide clear advice” to the Family Court. It was also recommended that while that investigation and assessment were undertaken, the child remain living with the father.

12. At [72] of his reasons of 28 May 2010 Bell J indicated that Ms S’s report was dated 14 September 2008. It is true that a copy of that report which appears in the Appeal Book bears the date 14 September 2008. However it is clear that the date should be 14 September 2009 given that the report refers to events in the period between 14 September 2008 and 14 September 2009 and the correct date of 14 September 2009 is confirmed by another document dated 4 November 2009 on the Department’s file. The transcript of the trial also contains clarification of the date (Transcript 16 March 2010, page 226, lines 19-36).

13. Ms Y and Ms U then carried out the investigation and assessment recommended by Ms S. Both parents and various members of their families were interviewed during their investigation, and other professionals who had been involved with the parties or the child (but not all such professionals) were also contacted.

14. In their report Ms Y and Ms U concluded that the child appeared not to have been harmed, or to be at risk of harm, in his father’s care and was not in need of protection, and that the departmental file on the family should be closed.

15. We emphasise at this point that so far as there may have been any concern on our part during the hearing of the appeal that officers of the Department had been concerned that the allegations of abuse of the child had not been properly investigated, that concern was addressed and overcome in Ms Y’s report.

16. In his reasons for judgment of 28 May 2010, Bell J referred in considerable depth to the reports of Ms W and of Ms Y. He also had the advantage of hearing both of them cross-examined, as well as Ms S.

17. As his Honour indicated in his reasons (at [51], [52] and [55]), of all the numerous experts who had been involved with the child, it was only Ms W who supported the mother’s view that the child has and will be the subject of abuse by the father. Further, his Honour was critical of Ms W for her reliance on what she called the “Accommodation Syndrome” which she was then unable to explain adequately to his Honour. As his Honour emphasised at [71] Ms W conceded “that she did not see anybody personally when she was completing the review”.

18. His Honour ultimately preferred the evidence of Ms Y (who in his opinion had carried out “an in-depth and effective consideration of all the material”) to that of Ms W, in reaching his conclusion at [80] that the child had not been sexually abused, nor was he at an unacceptable risk of abuse, by the father. In our view, his Honour’s preference for Ms Y’s evidence, and also his conclusion that the child had not been abused and was not at risk of abuse by the father were well open to him.

19. We will return now to consider the grounds of appeal which appear to have relevance to the matters just discussed. The grounds in question have been set out in full earlier and we will here for the most part only summarise them.

The relevant grounds of appeal

1. In the second paragraph of Ground 29 the mother asserts error on his Honour’s part in accepting Ms Y’s report. As we have earlier explained, his Honour was entitled to accept Ms Y’s evidence and was certainly not in error in so doing. We do not understand the suggestions in the ground in question that there is still to be a review, and can only conclude that the mother has misunderstood some part of Ms Y’s report.

2. We do not accept the assertion in Ground 30 that his Honour “failed to give real and substantial consideration to the facts of the case” and that he failed to “answer the question whether on the evidence, access [presumably to the father] could represent an unacceptable risk of harm to the child”. A reading of his reasons for judgment reveals that his Honour reviewed in depth the history of the case and the enormous amount of evidence which was before him.

3. In Ground 32 the mother asserts that his Honour “had an obligation to consider disclosures of sexual abuse made by the child to childcare staff on the 9/2/2007, notified to the Dept. by the Director of the centre on 11/2/2007, which due to an error of fact were not given weight at the hearing in February 2007, or the subsequent appeal.”

4. This is the ground which raises the issue of material available at the time of the trial before Carmody J, but not relied on in that trial. At the hearing before us, we were provided with material from the T Child Care Centre which was produced to the Court on 24 February 2010 under subpoena, and which was apparently before Bell J at the trial in March 2010. 

5. Even if it is true that the material in question was not in evidence at the trial before Carmody J, although it originated before the date of that trial, what is being referred to in this ground is a notification to the Department (and indeed the child care centre material indicates that its staff were in contact with the Department).

6. There are many documents on the Department’s files which summarise the notifications received (including a notification on 12 February 2007), but ultimately the Department decided not to pursue these notifications. Given the level of investigation which has been carried out by the Department, particularly the review carried out by Ms Y after concerns raised by Ms W and Ms S, there would be no justification for our interfering with Bell J’s decision on the basis that it is unclear whether or not he had regard to the material from the child care centre.

7. Ground 33 asserts that Bell J had an obligation to consider that information concerning the child’s disclosures of “sexual abuse” and “death threats by the father” which were made on 20 November 2008, were not made available by the police and the Department to the SCAN AM team (which we understood to be a government organised body which investigates claims of child abuse) for purposes of that team’s report or records dated 20 February 2009.

8. That the child’s disclosures made on 20 November 2008 were not made available to the SCAN AM team seems improbable when Ms S’s report of 14 September 2009 is read, particularly the statement made in the second last paragraph of the section numbered 4 in her report, that the matter was referred to SCAN by the Department on 4 February 2009 “based on the allegations made in November 2008”. However, if there was some fault on the part of the police or the Department as alleged in this ground, that is not a matter that establishes error on the part of the trial judge. His Honour was clearly entitled in the circumstances of this case to rely on the Department’s investigations and its ultimate conclusion to close the file based on the report of Ms Y.

9. Ground 34 asserts that his Honour had an obligation to consider disclosures of sexual abuse made to child safety officers on 23 January 2008 and that failure to consider these disclosures makes his findings unsafe.

10. Again, the child’s disclosures on 23 January 2008 are specifically mentioned in the section numbered 4 in Ms S’s report of 14 September 2008. We repeat yet again that that report was the reason why Ms Y then carried out her investigation and report, and his Honour was entitled to accept Ms Y’s conclusions that the child was not at risk in the father’s care.

11. Ground 35 asserts that his Honour had an obligation to consider “a mandated report received on 14 September 2009, referred to in Screening Criteria/Response Priority Summary 29/10/2009 which records it is probable the child’s immediate safety is threatened, and sexual abuse by the father is suspected. A 24 hour response was recommended. A copy of the event intake – […]/Form ID […] is not contained in Court files.”

12. Notwithstanding the reference in this ground to the “Event intake […]/Fam ID […]” not being in “Court files”, that document does appear in the Exhibit Book tendered by the ICL in the section of that Book containing the material provided to the court under cover of the letter from the Department dated 18 February 2010. The document in question is a record of a notification to the Department. What matters for present purposes is that this document was created before Ms Y completed her report, and it can be assumed that it was before her when she prepared her report.

13. Ground 36 asserts that his Honour had an obligation to consider that the Department “opened an ‘Intervention with parental agreement’ with the father, in February 2009”. Being apparently the Department’s document, it can be assumed that Ms Y would have taken this agreement into account in her investigation and report if indeed it had any significance. It has certainly not been established that his Honour erred by allegedly failing to have regard to this agreement.

14. Ground 37 again asserts an obligation on his Honour, being “to consider that the Dept. sought parental consent to a ‘Care Agreement’ in June 2009. A neutral environment was considered to be in the child’s best interests. The father refused to sign the agreement.”

15. As with the previous ground, if the matters contained in the ground were of concern to the Department, it is to be expected that it would have been raised before his Honour by the Department. That appears not to have been done, and no criticism can be made of his Honour on account of this matter.

Conclusion

1. It emerges from our consideration of the grounds which we have just considered that none of them have been found to have merit. It also emerges from what we have said that we have ourselves considered in depth the evidence which was before Bell J, particularly the material from the Department. We have also considered the oral evidence of the officers of the Department and of other professional experts which was given before his Honour. We are thus able to be satisfied that there would be no basis for our interference with his decision. The appeal will therefore be dismissed.

Costs of the appeal

1. As the appeal is to be dismissed and the father did not ultimately seek an order for costs in that event as neither did the ICL, there will be no order for costs with each party bearing their own costs of the appeal.

I certify that the preceding (149) (one hundred and forty nine) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Strickland JJ) delivered on 15 November 2012.

Associate:

Date: 15 November 2012