Milton & Milton
[2021] FamCAFC 64
•6 May 2021
FAMILY COURT OF AUSTRALIA
Milton & Milton [2021] FamCAFC 64
Appeal from: Milton & Milton [2020] FCWA 152
Milton & Milton [2020] FCWA 176
Appeal numbers: WEA 16 of 2020
WEA 18 of 2020File number: PTW 87 of 2016 Judgment of: STRICKLAND, ALDRIDGE & KENT JJ Date of judgment: 6 May 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Unacceptable risk – Where there is no unacceptable risk of sexual abuse to the children by the father – Where the children are at ongoing risk of psychological harm from the mother due to her fixed belief that the father had sexually abused the children – Where the primary judge’s findings were open on the evidence – Where the primary judge’s findings were not limited to whether the children were abused – Where the primary judge did not fail to “engage properly” with the evidence – Appeal dismissed – Mother to pay the father’s costs in a fixed sum.
FAMILY LAW – APPEAL – STAY PENDING APPEAL – Appeal against refusal to stay final parenting orders pending appeal – Where the substantive appeal is dismissed – Appeal dismissed.
FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Adduce further evidence – No sufficient basis for the admission of further evidence – Applications dismissed.
Legislation: Family Law Rules 2004 (Cth) r 19.18(1) Cases cited: De Winter and De Winter (1979) FLC 90-605
M v M (1988) 166 CLR 69; [1988] HCA 68
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Whisprun Pty Ltd v Dickson (2003) 200 ALR 447; [2003] HCA 48
Division: Appeal Division Number of paragraphs: 161 Date of hearing: 8 December 2020 Place: Perth (via video link), delivered in Sydney Counsel for the Appellant: Ms McShera Solicitor for the Appellant: Anthony R Clarke & Associates Counsel for the Respondent: Ms Farmer Solicitor for the Respondent: Perth Family Lawyers Counsel for the Independent Children's Lawyer: Ms Needham Solicitor for the Independent Children's Lawyer: RM Law ORDERS
WEA 16 of 2020
WEA 18 of 2020
PTW 87 of 2016APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS MILTON
Appellant
AND: MR MILTON
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER ORDERS MADE BY:
STRICKLAND, ALDRIDGE & KENT JJ
THE COURT ORDERED ON 8 DECEMEBER 2020 THAT:
1.Leave be granted to the Independent Children’s Lawyer to rely on the Summaries of Argument and List of Authorities filed on 7 December 2020.
2.The appellant’s Application in an Appeal filed on 6 October 2020 in appeal no. WEA 18 of 2020 insofar as it seeks leave to adduce further evidence be dismissed.
3.The respondent’s Application in an Appeal filed on 13 October 2020 in appeal no. WEA 16 of 2020 be dismissed.
4.The respondent’s Application in an Appeal filed on 13 November 2020 in both appeals insofar as it seeks leave to adduce further evidence comprising paragraph 73 of and annexure “C” to the affidavit of the respondent filed on the same date be dismissed.
5.Judgment be reserved in both appeals.
THE COURT FURTHER ORDERS THAT:
1.Appeal No. WEA 16 of 2020 be dismissed.
2.Appeal No. WEA 18 of 2020 be dismissed.
3.The appellant pay the respondent’s costs of both appeals fixed in the sum of $20,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Milton & Milton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, ALDRIDGE & KENT JJ:
INTRODUCTION
Ms Milton (“the mother”) has appealed from two orders made by a judge of the Family Court of Western Australia on 9 September 2020 and 5 October 2020 in parenting proceedings between her and Mr Milton (“the father”). The parties have two children – Child A born in 2007 and Child B born in 2008 (“the children”).
It was the mother’s contention that the father posed an unacceptable risk of harm to the children of sexually abusing them in the context of bathing them and co-sleeping with them. The primary judge found that was not the case. Her Honour accepted that the father had roughly washed and dried the children, including their genitals, at bath time, which was inappropriate given the children’s ages and the fact that they could do this themselves, but considered that this conduct was not sexual abuse. Accordingly, her Honour was not satisfied that the father posed any risk of harm at all to the children.
On the other hand, the mother was found to pose a risk of psychological harm to the children because of her fixed and implacable belief that the father was a sexual abuser and a paedophile.
On 9 September 2020, the primary judge made a suite of final parenting orders which provided for the children to live with the father who was to have sole parental responsibility for them. The father was required to enrol the children in Program A to assist them in adjusting to live with him. The mother was restrained from seeing or approaching the children for a period of 90 days. Thereafter, the mother was to spend time with the children “under such conditions, timing and nature of resumption of contact as determined by this Court, with assistance and input from the aftercare professional [a therapist to assist the mother with re-introduction to the children]” (Order 18).
Appeal No. WEA 16 of 2020 is against these orders.
On 5 October 2020, the primary judge refused to stay the final parenting orders made on 9 September 2020. That refusal is the subject of Appeal No. WEA 18 of 2020.
The appeals were opposed by the father and the Independent Children’s Lawyer (“ICL”).
BACKGROUND
The parties separated under one roof in February 2012. In October 2013 the mother and the children moved out of the family home without notice to the father.
The parties engaged in family dispute resolution in December 2013, where it was agreed that the children would live with the mother and spend each alternate weekend with the father from Saturday to Sunday, but including Friday night if the father’s work schedule permitted it.
Towards the end of 2015, the father obtained work in Victoria but returned to Perth every second weekend for the children to spend time with him.
The mother wrote to the father on 16 March 2016 asking him to ensure that Child B had her own bed at his home and to encourage her to use it. The mother advised that she considered it inappropriate that Child B sleep in the father’s bed. The father’s response was that the children were safe in his care.
The mother wrote to the father again on 17 March 2016, saying that Child B herself had raised the issue because she was too scared to speak to the father about it.
A further letter was sent by the mother on 28 March 2016, which asserted that she was prepared to swear an affidavit about Child B “sleeping in the same bed as [the father] and witnessing [his] wet dreams and pelvic thrusting motions in [his] sleep” (at [45]). She also said that she had seen the father masturbating whilst watching pornography in an open room without a door. The mother threatened to stop the children from seeing the father.
It is appropriate to pause here to record that the primary judge was not persuaded to accept the mother’s allegations about the father’s sleeping habits as being true. Her Honour found that the mother’s evidence that the father viewed pornography, even if accepted, did not indicate any risk of harm to the children because it occurred in private (at [46]).
The father’s evidence was that each child had their own bed which he encouraged them to use but that they often asked to sleep in his bed.
Returning to the narrative, the weekend visits continued. On 7 August 2016, when the mother collected the children from the father, Child B said that she felt sick. She added that she had a “sore front bottom”, “a sore tummy” and that the father “had bathed her and the soap had hurt her in the front genital area” (at [49]). The mother did not raise any concerns with anyone. The child had made similar complaints before which the mother had assumed was a reaction to pool chlorine or a particular soap.
From September 2016 to December 2016, the parties were in dispute as to whether the children should spend more time with the father. This led to the father emailing the mother to cancel his agreed time with the children on Christmas Day 2016. However, when the mother did not reply to his email, the father went ahead with his Christmas lunch plans. The father refused to hand over the children when the mother arrived to pick them up. The primary judge concluded that each party’s conduct on this issue reflected poorly on them (at [56]).
On 27 December 2016, the mother informed the father that plans for the children had already been made for the school holidays and that due to work rosters, the father could have no time with the children until February 2017.
The father saw the children in early 2017 at McDonald’s for Child A’s birthday. Thereafter, the mother did not permit the children to see him.
The mother’s lawyers wrote to the father’s lawyers on 6 February 2017 saying that the mother was concerned with the welfare of the children in the father’s care. The mother’s lawyers advised that if the father commenced parenting proceedings, a Notice of Child Abuse or Family Violence (or Risk) would be filed because the father “has not sought to change his inappropriate behaviour, such as co-sleeping with the children and a lack of adequate adult supervision and care in his household” (at [61]).
The primary judge found that “there was no clarity in the evidence as to what the children were alleged to have said to the mother to cause her to withhold them from the father” (at [62]). Instead the mother asserted that on 8 February 2017, two days after the letter, “[Child A] confided in [the mother’s partner] about being hurt in the bath around his genitals by his father when he bathed him. He said his Dad had hurt him by ‘pulling on his Willy’” (at [62]).
The mother and her partner have been in a relationship since 2014. In addition to repeating the above, the mother’s partner added that Child A had told him that whilst he was in the bath he could feel his father tugging his “Willy” (at [63]).
The mother’s partner said:
[Child A] also disclosed that when his Father dried him after bathing him it was commonplace for his Father to uses [sic] his forefinger to jiggle [Child A’s] Penis and [Child A] stated that his Father would say “Diddle, diddle, diddle” whilst he wiggled his finger on [Child A’s] Penis.
(Affidavit of the mother’s partner filed on 7 November 2018, paragraph 62) (As per the original)
For a number of reasons, the primary judge did not accept the evidence given by the mother’s partner in the above quotation. That finding was not challenged in this appeal.
The mother’s partner reported the matter to the Department of Communities, Child Protection and Family Support (“the Department”). He was informed that nothing could be done by the Department as the father’s actions could simply be considered “over parenting” (at [66]).
The father commenced parenting proceedings in the Family Court of Western Australia on 16 February 2017. The documents were served on the mother on 27 February 2017.
On that same day, the mother took the children to their general practitioner. Child A told the doctor that the father had “hurt his penis in the bath”, which triggered a mandatory report by the doctor to the Department (at [68]).
As a result, Child A was interviewed by the Child Abuse Investigation Team (“CAIT”), a specialised unit of the Western Australia Police Force, on 3 March 2017. The primary judge was satisfied that during this interview, Child A made no disclosures of sexual or physical abuse and that his disclosures about bathing were mainly concerned with the father washing and drying him roughly around the genitals with a towel or flannel (at [73]).
The mother contacted Western Australia Child Safety Services, who assigned Ms H to provide protective behaviours training to the children in the mother’s home. The mother and her partner also attended each session.
At the first session on 2 April 2017, Child A said “[m]y Dad makes me feel unsafe when he punches holes in the walls” and “[m]y Dad also hurts me when he dries me really hard after the bath” (at [84]).
The primary judge found that it was unlikely that Child A actually recalled the father punching the wall due to his very young age when the incident had happened (at [85]).
The second session occurred on 9 April 2017. Ms H noted that the children became upset and distressed during the “private part topic” and that Child A said he was braver than Child B because “he had already talked to the Police about what his Dad does to him” (at [86]).
Again, however, Child A’s disclosures were limited to the father drying him roughly with a towel.
At the third session on 16 April 2017, Child B was asked to write or draw what ‘worries’ she had. She wrote:
89. …“Dad touching us in the vagina”
“Dad dressing us”
“Dad drying us”
“Dad touching us in the bath”
“Dad bathing me”
Following the third session, Ms H made a mandatory report to the Department (at [90]).
The last session was on 20 April 2017. The primary judge described its effect in the following terms:
94. The purpose of the final session with [Child B] was clarified during [Ms H’s] cross-examination. [Ms H] explained that because [Child B] was “highly distressed” during the earlier sessions, it was important to provide her with education and reinforce that what had allegedly happened to her was not her fault. [Ms H] expressed the view that it is important to respond in a supportive way when a child does disclose. [Ms H] conceded that the final session may have had the effect of reinforcing for [Child B] that her disclosures amounted to sexual abuse. However, [Ms H] maintained her belief that the children had likely been sexually abused by the father in any event. I am satisfied that [Ms H’s] belief was not borne out by the children’s interviews with the CAIT and that it was highly likely that [Ms H’s] final session with [Child B] did have the very unfortunate effect of reinforcing for [Child B] that the father had been sexually inappropriate with her and/or sexually abused her.
Child B was interviewed by the CAIT on 21 April 2017. The primary judge was satisfied that Child B made no disclosures of sexual or physical abuse during her interview but she did describe her father “[b]athing her roughly and all over with soap inside a cloth, including on the bottom and on her vagina, but definitely not ‘in’ her bottom or vagina” (at [98]).
On 26 April 2017, the mother’s lawyers indicated to the father that the mother was of the view that the children should not be in contact with or spend any time with him.
Child A was again interviewed by the CAIT on 8 May 2017. No further disclosures were made.
On 9 August 2017, Magistrate Tyson (as her Honour then was) made orders for the children to spend supervised time with the father. The supervisor arrived to collect the children on 3 September 2017 and 17 September 2017, but on each occasion the children refused to leave the mother’s home.
Dr M, a clinical and forensic psychologist, prepared a Family Report dated 22 September 2017. He opined that the children’s first interviews with the CAIT were the most reliable and least tainted evidence of the children’s concerns.
He also expressed the opinion that the father’s behaviour in washing and drying the children was developmentally inappropriate, but not sexually inappropriate, because the children were clearly capable of washing themselves. He was concerned that the protective behaviours training had led them to believe that the age inappropriate behaviour had occurred in a sexual manner.
Dr M recommended that each party would benefit from individual psychological counselling and that there should be therapeutic intervention for the children to assist them to shift from over-interpreting the protective behaviours training.
Pursuant to the orders made on 7 November 2017 by consent, Therapist A commenced that therapy in late November 2017. She first saw the mother on 22 November 2017, followed by the father on 13 December 2017. She first saw the children on 19 December 2017.
The primary judge recorded the children’s allegations made to Therapist A in the following terms:
124. …
c) [Child B] was consistently negative in her comments about her father, telling [Therapist A] that “Dad rubbed his penis on me”, “He bathed me when I was older than 7”, and “I learnt about my body and who can touch it”. In [Child B’s] second session with [Therapist A], during a discussion about the differences between washing, dressing and what may be considered sexual abuse, [Child B] said that she “knew it was wrong when Dad put his finger in my vagina” and “when he rolled over and rubbed his penis on me that was wrong”. [Child B] also told [Therapist A] that the father had “sexually assaulted [Child A]”. [Child B] reported feeling safe with [the mother’s partner] and her mother. By contrast, [Child B] reported that she did not want to see her father and was concerned about being forced to do so. [Child B] said that she thinks “when she is a teenager or maybe a young adult, she will want to understand what happened and ask Dad more questions”, but is presently resistant to such exploration.
d) [Child A] told [Therapist A] that he hadn’t seen his father for a year because, “Dad touched my doodle”, and complained about the father bathing the children and putting their clothes up high so that he had to dress them. [Child A] described what had happened to him as “sexual assault” (which [Therapist A] noted was consistent with the language used by [Child B]). [Child A] described feeling how no one believed him because he had told several people about what had happened and he was still be encouraged to see his father. In the second session, [Child A] told [Therapist A] that when his father touched his penis it made him feel uncomfortable and it hurt. [Therapist A] asked him what hurt and he said: “towel rubbing on it”. [Child A] said that he “realised what Dad was doing was wrong” at the protective behaviours program, in circumstances where he had not previously considered it so.
(Footnotes omitted) (As per the original)
Her Honour considered that there had been a “growth” in the allegations (at [126]). She concluded:
126.… I accept [Dr M’s] evidence that it was important to put the “absolute most weight” on the earliest information, given the risks of “contamination” of the allegations over the passage of time. [Dr M] also clarified that in this case, he regarded the earliest reliable evidence as being the children’s interviews with the CAIT, rather than their earlier disclosures to the mother, given the mother’s “filter”. I am also satisfied that the most likely explanation for the growth in the children’s allegations, including the children’s use of the term “sexual assault”, was as a result of the children’s ongoing exposure to the influence of the mother and [the mother’s partner] (including via direct discussions with the children and/or the children overhearing discussions between the mother and [the mother’s partner]). In particular, [Ms H], [Therapist A] and [Dr M] were all adamant that they never used the term “sexual assault” to describe the father’s conduct either with the children or in their hearing.
Dr M prepared a second report on 9 August 2018. He noted that the mother’s position was that she did not understand why the children were “forced to see someone who had hurt [them]” and that she “will do what [the] children tell [her] they want” (at [135]).
Child A told Dr M about his father “wobbling his penis with his finger”, but Dr M opined that the demonstration given by Child A indicated that there was no sexual aspect to it (at [135]).
Dr M opined that it was a significant factor for a child to have a false belief of sexual abuse and raised the question as to whether it would be in the best interests of the children for there to be a change of residence.
The mother moved to City A in mid-2018 but did not tell the father. On 12 September 2018, the father discovered that the children were no longer enrolled in their school in Perth. The following day he received a Notice of Ceasing to Act from the mother’s lawyers who provided an address for service in City A.
The children continued to see Therapist A and on 16 May 2019, she published an updated report. According to the report, the children remained of the view that they did not want to see the father. Therapist A highlighted the difficulty of explaining the concept of sexual intention to pre-teenage children and considered that the children had acquired only a limited understanding of the topic.
A hearing commenced on 20 May 2019. The parties agreed to participate in intensive family therapy with Therapist B, a clinical psychologist.
The mother attended her first session with Therapist B on 1 July 2019. She told him that she did not understand why the consent orders of 20 May 2019 had been drafted as they were, that the orders had been forced on her, that the children had already received therapy from Therapist A, and were adamant they did not wish to see or speak to the father.
The mother and her partner saw Therapist B again on 26 July 2019 and 3 August 2019. At the second session, they repeated their views that the father was “dangerous, inappropriate and was sexually abusive to [Child A], [Child B] [sic] and [the mother]” and that the children were “extremely reluctant and scared to see the father” (at [158]).
At the third session, Therapist B showed the mother and her partner a psychoeducational program about children who resist contact. In the words of the primary judge it “describes children who ‘strongly’ resist seeing a parent as ‘alienating behaviour’” (at [158]). The mother and her partner told Therapist B that they did not feel it applied to them and asked not to proceed further.
In the course of cross-examination Therapist B said that “with the benefit of hindsight, he should have terminated [the family therapy] after that first session with the mother, as it was clear that she had no intention of moving from her entrenched and closely held beliefs about the father” (at [158]).
At the trial hearing the mother contended that she had been misled by both the ICL and Therapist B as to the nature of the family therapy to be provided because, unknown to her at the time, it was to be based on the premise that the mother had alienated the children, that her concerns were without merit and that the children’s views were not their own (at [155]).
The primary judge was not satisfied that this contention was correct. Instead her Honour found that the mother “was simply not prepared to permit Therapist B to challenge her entrenched and closely held belief” about the father (at [157]). This finding was made in the context that at the beginning of the parties’ relationship, the mother was involved in criminal proceedings against her stepfather, who sexually abused her while she was a child. At the conclusion of those proceedings, a medico-legal assessment was undertaken which reported psychological impacts on the mother arising from the abuse she suffered. Relevantly here those impacts included, amongst other things, the mother being hyper-vigilant for danger (at [32]).
The primary judge opined that the mother remained hyper-vigilant, and her hyper-vigilance and mistrust was one of the reasons for the mother’s continued entrenched belief that the father sexually abused the children (at [181(g)]).
Dr M prepared a third report on 8 April 2020, after reviewing all the available material and speaking to all the relevant adults and the children.
The primary judge accepted Dr M’s findings and opinions (at [169]), the relevant parts of which were:
169. …
[12] … on my initial assessment, the children presented as describing behaviour which had really happened, but at worst, suggested some mild inappropriate parenting on the part of the father… Essentially, and concerningly, 2 ½ years later, the children still believe that it was sexual abuse and that their belief has not been diffused and the ongoing potential is that they will go through life believing that that they were sexually abused by their father when they need to understand that all which happened was he was washing them in a way that was inappropriate (not sexual) and at an age when they should have done it themselves.
…
[14] … the case now comes down to a case of extremes… either leave the children with their mother, where they are developing well and present as happy, well-adjusted children, but children who believe their father sexually abused them and will have no contact with the father. The alternative is to take drastic action and remove the children and place them with the father…
…
[46] … this is not a case where the parent [that is, the mother] is blatantly undermining the relationship to the children, but I do not see her as having been proactive in any way of trying to re-establish a relationship with the father, rather, sitting back in a self-serving way and allowing the children to make the decision.
Accordingly, the primary judge accepted the position put to the court by the father and the ICL and made the orders outlined earlier.
APPLICATION IN AN APPEAL TO ADDUCE FURTHER EVIDENCE
By Applications in an Appeal filed respectively on 13 October 2020 and 13 November 2020, the father sought to adduce further evidence from Mr D, a counsellor and psychologist, and from himself respectively.
The father elected not to pursue the first application and it was therefore dismissed.
Regarding the second application, the father’s proposed evidence was to the effect that Program A and following holiday with the children went well, that the children had settled into their new schools and new family well, and that he was building a good relationship with them.
It was explained that the purpose of the proposed evidence was simply to update the Court. That is not a sufficient basis for the admission of further evidence and the application was dismissed.
APPEAL NO. WEA 16 OF 2020
Did the primary judge err in finding that the mother should have taken issue with the father’s denials of her allegations of violence and sexual assault of the mother?
(Ground 1)This ground challenges the following finding of her Honour:
34.The mother, in her affidavit material, raised a number of historical allegations against the father, of family and domestic violence and inappropriate behaviour. The vast majority of those allegations were not put to the father in cross-examination, noting the father stated explicitly in his affidavit material that his failure to specifically traverse an allegation did not constitute an admission. In family law cases, where the parties give their evidence in chief by way of affidavit, particular care ought to be taken in making the tactical decision to “let sleeping dogs lie”, particularly where there is clear indication on the face of a party’s affidavit material that they do not accept the case being advanced against them. In this case, I am satisfied that it is appropriate to draw the inference that the mother did not take issue with the father’s non-acceptance of her allegations against him, given the decision of her counsel not to cross-examine the father on these matters, notwithstanding that her counsel was given the further opportunity to do so.
(Footnotes omitted)
In order to understand these findings and this ground of appeal, it is necessary to set out the relevant evidence.
The mother deposed to the following:
5. During our time we lived together, [the father] would take every opportunity he could to make me feel belittled, inferior, degraded or less than worthy of even being spoken to. He did things to demean me such as: spat on me when having sex, he ejaculated in my face and laughed at me after he did it. If I didn’t please him one way or another during sex he would just get off the bed and walk away leaving me in a sobbing mess feeling ugly and like a used piece of trash. After this had happened I would often discover [the father] masturbating to pornography on the computer. He didn’t seem to care if anyone saw him. He was in an open room without doors, so anyone could walk by and see including the [c]hildren and had headphones on, so he couldn’t hear if anyone was in the room.
6. The first time I witnessed this I didn’t know what he was doing and stupidly walked up behind [the father]. He screamed at me I was sneaking up on him. I was able to quickly go to the bedroom unscathed from this incident apart from the verbal abuse I experienced as [the father’s] pants were around his ankles and he was unable to stand up quickly and come after me. I am so ashamed to have had this experience and makes me cringe whenever I see or even hear [the father’s] voice.
(The mother’s trial affidavit filed on 25 September 2018) (As per the original)
The father replied in the following terms:
4.Where I have not responded specifically to a particular paragraph of [the mother’s] affidavit, this does not constitute my acceptance of [the mother’s] statements.
…
6.As to paragraph 5 of [the mother’s] affidavit, I deny that I have ever walked away from [the mother] during sex leaving her a “sobbing mess”. Following the birth of [Child A], [the mother] required gynaecological corrective surgery, however, prior to this we enjoyed a very good sex life. [The mother] confided in me shortly after the commencement of our relationship, that she had sought out sex with several other people prior to meeting me, and disclosed that in the time between the breakdown of her first marriage and commencing our relationship, she had had sexual relations with some eighteen people, and there was also a second marriage and divorce in that time. This time span was approximately four years. [The mother] even boasted to me that she had received training from a gay male friend of hers on how to give exceptional oral sex and that she was very proud of this.
7.After the children were born, I did on occasion view pornographic material. This was encouraged by [the mother] and, in fact, she purchased two pornographic DVDs as a gift for myself. Any viewing of this material was always done in a private environment.
(The father’s affidavit in response to mother’s trial affidavit filed on 12 October 2018) (As per the original)
Notwithstanding what was stated by the father in paragraph 4 above, the mother submitted that the father should be taken to have admitted every allegation made by her in the above paragraphs of her affidavit which had not been specifically rebutted by the father.
We do not accept this to be the case. The mother alleged acts of non-consensual and demeaning sex. The father’s response was that “we enjoyed a very good sex life” (the father’s affidavit in response to mother’s trial affidavit filed on 12 October 2018, paragraph 6). That carries the clear inference that whatever acts occurred, they were mutually enjoyable and acceptable, and operates as a general denial to each of the allegations.
Counsel for the mother did not cross-examine the father on this evidence. At the appeal, the submission was made that there was no obligation to cross-examine on this issue because the father had admitted the allegations. As we have explained we do not accept this to be the case.
At the end of the father’s cross-examination by counsel for the mother, the following exchange occurred:
HER HONOUR: [Counsel for the mother], having regard to your cross-examination, do I take it that your client’s case is no longer that the father has sexually abused [Child B] or [Child A]?
[COUNSEL FOR THE MOTHER]: No, your Honour. My client’s case has not changed. I was simply endeavouring to explore with [the father] if he would entertain in any way that if – if your Honour wasn’t satisfied that he has been sexually inappropriate with the children - - -
HER HONOUR: Well, you didn’t put to him necessarily that it was sexually inappropriate. You’ve put to him, in various ways, that he has behaved inappropriately with children in all of its context but I – quite frankly, I didn’t think that you were referring to, effectively, your client’s allegation which is sexual abuse. Now - - -
[COUNSEL FOR THE MOTHER]: If your Honour would like me to simply just ask – put the question to [the father]. I think perhaps - - -
HER HONOUR: Well, if that’s your client’s case - - -
[COUNSEL FOR THE MOTHER]: - - - it got lost yesterday.
HER HONOUR: - - - I think you need to.
(Transcript 9 June 2020, p.182 line 39 to p.183 line 13) (As per the original)
Some questions were asked as to whether the father had sexually abused the children. The primary judge then said:
HER HONOUR: Still – I still don’t think you’re there. I think you have to put your client’s case to [the father].
(Transcript 9 June 2020, p.183 lines 31–32)
Counsel for the mother asked the father two further questions in relation to the children and the cross-examination ended.
Whilst we accept that her Honour’s final comment was broadly expressed, there is no obligation on the part of a trial judge to identify each and every allegation which should have been put and was not, and to advise counsel accordingly.
However, the fundamental problem remained in that, whatever the nature of her Honour’s comments, there was no relevant admission by the father.
It is appropriate to recall that the primary judge, in an unchallenged finding, did not accept the mother’s evidence as to the father’s sleeping habits (at [46]).
Finally, we would also add that if the mother’s contentions were accepted, the father’s “admission” would be limited. Counsel for the mother emphasised paragraph 5 of the mother’s trial affidavit filed on 25 September 2018, which was said to be very relevant as the prime example of her point. The only matters in that paragraph which were not specifically referred to by the father were the mother’s allegations of the father spitting, ejaculating and laughing at her. We consider that, even if established, these matters would not carry great weight in determining what orders are in the best interests of the children, and that any error was not material to the outcome (De Winter and De Winter (1979) FLC 90-605 at 78,092).
This ground does not succeed.
Did the primary judge fail to apply the relevant legal principles applicable to allegations of abuse and unacceptable risk and decide the case solely by reference to the acceptance or rejection of the allegation of sexual abuse? (Ground 2)
We accept that in determining the issue of what parenting orders should be made, the court is concerned to make an order “which will in the opinion of the court best promote and protect the interests of the child” (M v M (1988) 166 CLR 69 at 76 (“M v M ”)).
In M v M at 76, the Court continued:
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
Contrary to the submission of the mother, we consider that the primary judge clearly focused on the issues of the best interests of the children and unacceptable risk, as opposed to the resolution of the issue of whether the father had actually abused the children.
At the outset her Honour said:
1.[The mother] and [the father] were unable to reach final agreement about parenting issues concerning their two children: [Child A] aged 13 and [Child B] aged 12. The proceedings were complicated by the mother’s steadfast belief that the father has sexually abused the children (in the context of bathing them and co-sleeping with them) and that he continues to pose an unacceptable risk of harming the children: psychologically, physically and sexually. As a consequence, the children have not spent time with the father since early 2017 and, at present, have no functional relationship with him. This is against the background that as a child, the mother was sexually abused by her step-father over a number of years. For the reasons that follow, I am satisfied that the father did not abuse [Child A] and [Child B] and that he does not pose a risk of harm to them. On the other hand, I am satisfied that the mother has psychologically harmed the children and she poses a significant ongoing risk of psychological harming the children in the future.
2.The court is faced with a stark choice: either (1) leave the children in the care of the mother, in the knowledge that in so doing the children will inevitably have no relationship with the father and their narrative of having been sexually abused by him will not be challenged (and will be further reinforced). In those circumstances, there is a substantial risk that the children will grow into adults who falsely believe that their father sexually abused them: a belief that may significantly compromise their mental health and psychosocial functioning for the remainder of their lives; or (2) place the children in the care of the father, in the knowledge that the children will find the change traumatic and may not settle in the longer term. However, allied to that is the prospect that the children will come to learn and understand that they were not sexually abused, sparing them a lifetime of believing otherwise. The father is also the best candidate to promote the children’s relationships with the extended maternal and paternal families, in circumstances where the mother has isolated herself and the children from the wider family system. In essence, this is a case about balancing the risks of short-term versus long-term harm.
(Emphasis added) (As per the original)
There, her Honour identified the risk of future harm as the significant issue.
The primary judge did not accept some of the mother’s allegations of violence (at [34]) (as quoted and discussed earlier) but made three findings of violence which reflected poorly on the father (at [35]). Thus that aspect of the mother’s case was not ignored.
We have already referred to the primary judge’s extensive discussion of the evidence of what the children said to independent interviewers, which, for the most part, her Honour considered to be allegations only of rough washing and drying of the children, when they should have been left to do that themselves. Obviously that finding had a direct bearing on conclusions as to the nature and magnitude of any risk of harm.
Her Honour found that there was no cogent evidence that the father had deliberately or intentionally harmed the children (at [179]) saying “I am satisfied that there is no cogent evidence that the father has ever sexually harmed the children or that he poses any risk of doing so in the future” (at [181]) (emphasis added).
On the other hand, her Honour was satisfied that the children “are at a significant, ongoing risk of psychological harm from the mother” (at [184]).
Again, the findings are not limited to whether the children were abused, but clearly concern the issue of future risk.
This led to the following conclusion:
215. …
a)I am satisfied that the children have suffered significant, ongoing psychological harm whilst in the mother’s care and that they are at risk of significant, ongoing, long-term, psychological harm if they remain in her care, including into their adulthood. On the other hand, I am not satisfied that the children have suffered any significant harm in the father’s care in the past, or that the father poses a risk of harm to the children in the future, if they move to live with him.
(Emphasis added)
Again, these are specific conclusions as to future risk.
The primary judge then expressly considered the relationship of the children with the mother and father, the children’s wishes and any change in their circumstances, the ability of the father to care for the children, and the likely success of various family therapy proposals.
We do not accept that the primary judge has focused on the issue of whether the alleged sexual abuse occurred to the exclusion of other relevant circumstances.
This ground fails.
Did the primary judge err in finding that the medium to long-term risks of the children outweighed the short term risks they were likely to suffer if they moved to live with the father? (Ground 3)
Under this ground the mother raised three separate, but related issues.
Did the primary judge fail to properly consider the oral evidence of Dr M regarding the trauma to the children associated with moving to the father’s care through Program A? (Ground 3.1)
It is to be noted that the final parenting orders provided that the children were to live with the father and, that the mother was required to deliver the children to the Family Court of Western Australia, or other specified location, and then to leave. The mother was to refrain from discussing the orders with the children. The father was required to enrol the children in Program A, but no time frame was specified. Clearly, however, it is apparent from the order itself that her Honour envisioned this taking place sooner or later.
The use of Program A was proposed by the father in his Minute of Orders sought filed on 28 October 2019 (at [160]). He called Mr D, who provides Program A, to explain the proposed workshop. The primary judge recorded Mr D’s evidence as follows:
162.[Mr D] explained that [Program A] is an option for families in which (and I summarise): (1) the children are between the ages of eight and 15; (2) the children hold unrealistic views about a parent (the “rejected parent”) and other relatives; (3) the children show extreme reluctance to spend time with the rejected parent; and (4) where the family needs help adjusting to court orders placing the children with the rejected parent with the corresponding suspension of the children’s time with the “favoured” parent. [Mr D] added that the rejected parent needed to be capable of managing the responsibilities of caring for the children, and that the program is only suitable where the children’s responses to the rejected parent’s behaviour and personality is not proportional. It follows that the program will not be suitable where the children have appropriately rejected an abusive parent.
(Footnotes omitted)
Her Honour continued:
165.There was no cross-examination directed at interrogating the structure, content and delivery of [Program A] and, accordingly, I accept [Mr D’s] evidence as unchallenged in respect of those matters.
166.Counsel for the mother sought to explore two primary issues with [Mr D]. Firstly, [Mr D] conceded that the primary literature base demonstrating the effectiveness of [Program A] has been authored by professionals with directs links to the program (including [a doctor], who created it). However, [Mr D] explained that the literature had been peer reviewed by independent experts such that the methodology and results so published were reliable. In the absence of any expert evidence to the contrary, I accept [Mr D’s] evidence in this regard. Secondly, counsel asked [Mr D] to explain the outcome / impact if the change of residence failed notwithstanding the family’s participation in [Program A]. [Mr D’s] response was somewhat circuitous in its reasoning. He appeared to argue that because final orders would be made for the children live with the father and that he have sole parental responsibility for them, then the process couldn’t fail, per se. I do not accept [Mr D’s] evidence in this regard, and can readily imagine a situation where the children simply fail to adjust to life in the father’s home, and act out in a number of ways which make it untenable for them to continue to live with him, albeit the risk of that outcome on [Mr D’s] statistics would appear to be very low. However, those consequences were not the subject of any detailed cross-examination (of any of the experts that were available at the trial), and as a result I cannot develop the issue any further.
(Emphasis omitted) (As per the original)
It is clear that Dr M was of the view that any move of the children to the father’s care would be traumatic for them. He said that at “a minimum, they would have a very rocky time. At a maximum, it’s something which causes irreparable damage” (Transcript 17 June 2020, p.715 lines 14–16).
In relation to Program A itself, Dr M said:
…The tricky thing is – I mean, it’s very rare that I recommend [Program A] because the drasticness of pulling kids out of their home and putting them into a – with a home with someone they don’t have a connection with is hugely drastic. And the court has to be – well, the court can do whatever it wants, but, in my opinion, the court has to be satisfied that the damage that’s going to do to them is less than leaving them where they are, because it is a hugely drastic thing. And in a case like this you’ve got, you know, sort of three years no contact. Then you’ve got occasional, you know, fortnightly contact for a number of years before that. But something like [Program A] makes sense where you’ve got two parents that have got a very strong equal attachment, and then separate and you’ve got a year or two worth of damage. This is more like putting them in foster care. They’re going to someone they don’t have much connection with. And what thoughts they have is really negative.
(Transcript 17 June 2020, p.699 lines 19–36)
Her Honour said:
169. …
c)…In this regard, [Dr M] expressed considerable concern about the father’s proposal that the family participating in [Program A] and the children being placed in his care after such a long time and “with such a small percentage of good memories to work from”. And yet, if the children are not placed in the father’s care, then [Dr M] considered there would be no opportunity to re-establish that relationship – other than perhaps [Child B], for whom he saw a “tiny glimmer of hope”.
…
201.I accept [Dr M’s] evidence that in the short term, making orders for such changes to the children’s circumstances is a drastic step and could be very traumatic for the children, particularly as the father has not had a functional relationship with them for well over three years, providing a poor “platform” for a change of residence. However, balanced against this is that:
a) In the medium term, as the children move into puberty, if they are able to develop a healthy conceptualisation of their father’s parenting behaviours, rather than continuing to falsely believe that they have been sexually abused by him, then, as Dr M opined, the past three or so years will be a minor blip in their life.
b) In addition, in the medium to long term, the family’s engagement in [Program A], if successful, will give the children the opportunity to enjoy healthy, functional relationships with both their parents and will also give the children the opportunity to rebuild their relationships with their extended paternal and maternal families.
…
215.…
c)I accept that the children have expressed the wish to continue to live with the mother and have no contact with the father. I also accept that the change in living arrangements may be very traumatic for the children in the short term. I also accept that the research into [Program A] reveals that in a small percentage of families, the program has been unsuccessful in that the children continued to refuse contact with their un-favoured parent. However, I must also consider the medium to long-term impacts on the children of continuing to leave them in mother’s care. At the end of the day, I agree with the submissions of the counsel for the father and the counsel for the ICL, and I am satisfied, that the medium and long term risks to the children of continuing to live with the mother outweigh the short term risks they are likely to suffer from moving to live with the father.
(Footnotes omitted) (As per the original)
In these paragraphs the primary judge expressly takes into account the difficulties that Dr M identified with moving the children to the father’s care and Program A which were weighed against other considerations. In short her Honour expressly weighed the short term difficulties the children would experience and the risk of failure against the long term disadvantages of being left in the mother’s care. Her Honour found that the change of residence was in the children’s best interests.
Thus the evidence of Dr M on which the mother relied on was expressly recorded, considered and taken into account.
This aspect of the ground has no substance.
Did the primary judge fail to consider the evidence of Therapist A regarding trauma to the children transitioning to the father’s care through Program A? (Ground 3.2)
Therapist A’s view was that it would be devastating for the children to move and live with the father. However, it is clear that the primary judge did not accord her evidence critical weight.
Her Honour said:
29.…I also considered that [Therapist A] was professional and helpful in giving her evidence, save that at times, I gained the impression that [Therapist A] was somewhat uncritically accepting of the children’s narratives about the father. In particular, under cross-examination she appeared unwilling to engage with the issue of whether the children had been harmed by the mother in the light of matters raised by me (after I had the benefit of hearing all the evidence of the parties and their witnesses). It raised some concerns in my mind that [Therapist A] had potentially lost her objectivity in this case.
Nonetheless, her Honour expressly accepted significant parts of Therapist A’s evidence (at [151]), but the accepted evidence did not include her opinion as to the effect on the children of any move to the father’s care.
Her Honour was entitled to prefer the evidence of Dr M, to the extent it differed and, in any event, was not obliged to give decisive weight to Therapist A’s opinion.
Did the primary judge fail to consider the oral evidence of Dr E and/or Mr D as to the structure, content and delivery of Program A? (Ground 3.3)
No submissions were directed to this aspect of the ground and we can take it no further.
This ground does not succeed.
Did the primary judge err in finding that the mother effectively rejected anyone who challenged her views? (Ground 4)
The mother’s Summary of Argument filed on 20 November 2020, describes this ground as a challenge to [157] of the reasons for judgment, but the challenged finding is, in fact, at [207]. Those paragraphs state:
157.In short, I am not satisfied that the mother’s assertions of being tricked about the nature of the intensive family therapy pursuant to the orders made on 20 May 2019 had any basis in reality, and ignored the obvious point that the mother was represented by counsel when the terms of the consent order were negotiated and agreed to by her. Rather, I am satisfied that the mother was simply not prepared to permit [Therapist B] to challenge her entrenched and closely held belief that the father is a “dangerous”, “angry” and “sexually abusive” man whom the children should not be forced to see, and that when [Therapist B] attempted to do so, including by explaining to the mother that one of the purposes of the therapy was to reunify the children with the father (as was clearly provided for in the consent orders), the mother: (1) ended her involvement in the process; and (2) along with [the mother’s partner], sought to cast doubt on the professionalism of [Therapist B] by falsely attributing to him various statements in their affidavit material, many of which [Therapist B] denied under cross-examination (and I accept his denials).
….
207.I concur with the father’s counsel’s submission and am satisfied that the mother’s own experiences of child sexual abuse have impacted upon her views of the world and shaped how she interprets and reacts to situations. In addition, I am satisfied that the mother has effectively rejected anyone (including professionals and family members) who challenge her world view.
(Footnotes omitted)
The mother submitted that in making the findings at [157] the primary judge “did not give close consideration to the oral evidence of [Therapist B]” who, it was submitted, gave evidence that was entirely consistent with the mother’s evidence on this point and was not, as the primary judge was said, to have incorrectly found to the contrary (the mother’s Summary of Argument filed on 20 November 2020, paragraph 58).
The mother, however, did not identify that evidence of Therapist B. It is not for us to rummage around in the evidence to try and find the passages that the mother may have had in mind.
Next, the mother referred to the following oral evidence of Dr M:
Okay? - - - when he – but if it didn’t fit the model – but certainly what I read in his report where, you know, he starts sort of showing the alienation type thing – I could understand why that didn’t fit with what the mother’s expectation was…
(Transcript 17 June 2020, p.697 lines 4–8)
We are not entirely sure what that passage means but we do not take that to be evidence that establishes the mother did not reject the approach of Therapist B.
Further, the quote relied upon is just a snippet of Dr M’s evidence which was firm that the mother had a fixed belief that sexual abuse had occurred. For example, on the same page of the transcript Dr M said:
It doesn’t surprise me that she doesn’t accept these conclusions, because, as I say, I think she’s highly primed to see it as sexual abuse. And, again, part of why we’re here is because I don’t think she sees it that way.
(Transcript 17 June 2020, p.697 lines 26–30)
This emphasises the difficulty associated with highlighting discrete pieces of evidence and ignoring the rest.
The mother also referred to this evidence, which is from the cross-examination of Dr M by counsel for the father:
… some kids I see – when you see them initially you get the initial thing. Everyone is on best behaviour wanting to please the court expert. After you’ve written a report, when you do reviews, people have a position. And if [the mother] had taken a negative position with me the kids would have been very different. What I’ve found was she was quite supportive of them seeing me. So they didn’t have a lot of guardedness, I don’t think …. I would have picked that up, I think if there was some clear evidence of big influence.
(Transcript 17 June 2020, p.692 lines 27–43)
That view may be accurate but the mother clearly rejected Dr M’s opinion that most likely, the children had not been sexually abused.
There was no doubt that the mother was estranged from members of her family. The fracture arose, at least in part, from the fact that the mother had taken legal action against her
stepfather, who had sexually abused her. This did not meet with universal approval. The primary judge focused on the evidence of Ms C, the mother’s sister. She had also been abused by the stepfather but had declined to take action against him which had caused friction between her and the mother.
The primary judge expressly dealt with the following evidence.
In early 2019, Ms C posted a photograph taken at a family birthday on her Facebook page. The photograph included the mother and the children. Ms C’s evidence was that the mother asked her to take the photo down but she refused. The mother then threatened her with legal action and said “[the father] is a paedophile and is not allowed to have access to photographs of the children” (at [147]). A heated argument then ensued. When Ms C became aware that the children could hear what the mother was saying she terminated the call.
The mother and the mother’s partner, who also was a party to the call, denied all of that evidence.
The primary judge’s findings were:
148.Under cross-examination, the mother asserted that [Ms C] was lying about all of the matters referred to in the preceding paragraph. [Ms C’s] motivation, according to the mother, was that she was after their father’s money, was jealous of the mother and always took any opportunity to put her down.
149.I do not accept the mother’s or [the mother’s partner’s] evidence in relation to the telephone call (including but not limited to their assertions that the children did not overhear the conversation) and am satisfied that [Ms C] gave an accurate and truthful account of the call. In particular, I observe that the mother’s accusations in relation to [Ms C’s] motivations were not put to [Ms C] in cross-examination. Further, I struggled to see any logical link between [Ms C’s] asserted financial motivation, and the content of the alleged lies, noting they are not about, nor do they concern, the mother’s and [Ms C’s] father.
(Footnotes omitted)
It was submitted by the mother that the primary judge gave no consideration to the evidence as to the reasons behind the fractured relationships with the mother’s family, and that the primary judge’s finding that the mother rejected family members who did not share her world view was erroneous.
It is, however, undisputed that the other family members did not agree with her suing the
stepfather, which is not to share her view. Similarly, Ms C apparently did not accept the mother’s view that the father was a paedophile.
The primary judge’s findings were open on the evidence and this ground has not been made out.
Did the primary judge err in finding that the children had suffered significant, ongoing psychological harm in the mother’s care and were at risk of such harm if they remained in her care? (Ground 5)
The mother submits that the primary judge did not “engage properly” with key aspects of the evidence of Dr M and Therapist A, which suggested the children did not have a false belief that they were sexually abused or that the mother had not influenced or would not influence the children’s views.
We have already set out the relevant evidence of Dr M and Therapist A, and her Honour’s findings. The mother, however, points to 15 pieces of the evidence from a nine day hearing with hundreds of pages of written evidence, with which it is said the primary judge did not engage. The implication of this is that had her Honour done so, a different result would have ensued.
Three general observations may be made.
First, it is implicit in the submissions made under this ground that the mother accepts that there was evidence before the Court which supported the findings made by her Honour. That much is abundantly clear from the brief summary we have given above. The submission is that the primary judge was obliged to give greater weight to the 15 pieces of evidence identified by the mother, and that had the primary judge done so, a different result would have ensued. We are not at all satisfied that the identified evidence points to a different conclusion but that is not the point. Error is not shown merely by demonstrating that a different judge could, or would have, come to a different conclusion on the same evidence by giving different weight to different aspects of it.
Secondly, a trial judge is not obliged to refer to every piece of evidence in his or her reasons: (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269–270). Judgments would be intolerably long if that was the case. However, just because particular evidence is not referred to in the reasons does not mean that it has not been considered (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]).
Finally, the primary judge did not accept all of Therapist A’s’ evidence and only expressly accepted parts of her written evidence. Statements made by Therapist A during her oral evidence must therefore be approached with some caution.
The 15 pieces of evidence relied on were:
·Dr M saying “there’s some real grounds…I believe the children, that they report something real” (Transcript 17 June 2020, p.706 lines 23–30);
·Dr M saying that “[a] child might not be thinking [of sexual penetration] at all when they use a word like in the vagina” (Transcript 17 June 2020, p.684 lines 20–21);
·Dr M saying that when Child B says “in” we are “still not sure … whether we’re talking penetration in or in as in touched” (Transcript 17 June 2020, p.728 lines 8–10);
·Therapist A’s evidence that the children had developed “a viewpoint [that] their bodies were not treated with privacy and were physically touched in ways that could be construed as sexually abusive” (Report of Therapist A dated 30 April 2018, page 7);
·Therapist A saying that “[Child A] is not able to comprehend nuances of sexual touch/sexual abuse/alternate constructions of his experiences” but felt the father had not “learned enough about privacy yet” (Transcript 16 June 2020, p.667 lines 23–30);
·Therapist A’s evidence that the difficulty for the children is understanding what “sexual touch” is “because they’re not very sexually developed themselves” (Transcript 16 June 2020, p.634 lines 2–9);
·Dr M’s evidence that just because children have used terms such as sexual assault “they don’t understand sexual motivation” but “they’re describing… bad things Dad did a long time ago” (Transcript 17 June 2020, p.712 lines 41–43);
·Dr M saying that “I don’t think the mother is sharing [her beliefs] directly [with the children]” (Transcript 17 June 2020, p.712 lines 29–31);
·Dr M’s evidence that the children are “not getting it talked about on an ongoing basis” (Transcript 17 June 2020, p.696 lines 2–3);
·Therapist A’s evidence that Child B was not “repeating adult phrases” (Transcript 16 June 2020, p.645 lines 46–47);
·Dr M’s evidence that in the first interview the mother did not actually say the children had been sexually abused (Transcript 17 June 2020, p.682 lines 4–5);
·The primary judge omitted a passage from Dr M’s first report about the father’s behaviour and focussed only on the mother’s perception being coloured by the sexual abuse at the hands of her stepfather (at [112]);
·Dr M’s evidence that the mother’s “day to day functioning appeared… reasonable” (Transcript 17 June 2020, p.689 lines 2–4);
·Dr M saying that if the children’s statements are “taken literally, it’s not sexual abuse” (Transcript 17 June 2020, p.697 line 51 to p.698 line 1); and
·Dr M saying that “[the children] don’t show trauma. They don’t…look like sexually abused children” (Transcript 17 June 2020, p.698 lines 20–22).
As to the first point and second last, it was not in dispute that the father had dried the children with a towel, including their genitals. The issue was however, whether that “real” behaviour amounted to something which justified the mother stopping the children from seeing their father.
Many of the other points are equivocal or do not assist the mother. For example, the children started using the phrase “sexual abuse”. If they had limited understanding of what that phrase meant the question arises as to how they came to use it and what they intended to convey by its use. The use of that phrase by the children in later interviews is however sufficient to maintain the primary judge’s finding that there had been a growth in the children’s allegations.
We repeat our earlier point that evidence must be seen as a whole. For example, Dr M, despite what might be drawn from the above selections, maintained his opinion that most likely, the children had not been sexually abused but, because of the mother’s implacable belief that they had been, she posed a psychological and emotional risk to them. The above points do not indicate that the primary judge’s findings were not open on the whole of the evidence.
An example of taking pieces of evidence in isolation is the last point. First of course, it must be noted that the comment of Dr M does not support the mother’s belief that there had been sexual abuse, although it did reinforce that the children were currently doing well. Secondly, however, in the complete answer Dr M pointed out the risk to the children in the future. Dr M said:
[COUNSEL FOR THE FATHER]: And it’s possible in that five to 10-year period, if the children continue to believe they’ve been abused, that they’re going to have other difficulties?
[DR M]:---Yes. Yes. Because the other problem is that they’re just in emerging puberty. And what happens is how – the language which it’s used and the way they conceptualise it over the next three to five years is absolutely critical, because up to now they don’t show trauma. They don’t show – you know, they’re not – they don’t have – look like sexually abused children. But when puberty kicks in, sexual relations kick in, they will reconceptualise everything they’ve gone through. And if they label themselves then as victims of sexual abuse that’s where you will see a risk of an emergence of the trauma pathology, depression and so forth. And that’s where these kids will have – you know, start to show problems. And it’s – all depends on how they conceptualise it.
(Transcript 17 June 2020, p.698 lines 13–29)
That evidence supported the primary judge’s finding that if the children remained in the care of the mother they would develop into children who understood that their father had sexually abused them when that was not the case.
We are not satisfied that the primary judge failed to “engage properly” with the above points or the issue to which that evidence was relevant.
The mother also relied on evidence from her partner and Ms H that was not accepted by the primary judge. It cannot therefore be taken into account.
In the mother’s written submissions made under this ground, she submitted that the primary judge had denied her procedural fairness by referring to an affidavit sworn by the mother (the mother’s Case Information Affidavit filed on 23 March 2017). In counsel for the mother’s oral submissions the point was described as an aspect of Ground 1. In truth, neither ground raises an issue of procedural unfairness.
It is correct however that at [77] her Honour quoted from the mother’s Case Information Affidavit filed on 23 March 2017, which had not been relied on by either party or the ICL. Included in the quotation is “[Child A] told me the father washed his genitals for no reason and it hurt when he tried to pull his foreskin back” (mother’s Case Information Affidavit filed on 23 March 2017, Item 16). The primary judge indicated that she was not persuaded to accept the mother’s various complaints (at [79]). As to the quoted sentence, her Honour went on to explain that she did not accept it because it was inconsistent with Child A’s statements made in the various interviews, and in particular with what he said at the first CAIT interview.
We have already explained that the primary judge regarded the first CAIT interviews as the most reliable and least tainted evidence of what had occurred. Evidence of what Child A had said to the mother and to her partner was not accepted largely because it was not consistent with what Child A said at the first CAIT interviews. Further, many of the allegations made by the mother in the quoted paragraph were repeated elsewhere by the mother, either in her evidence and her partner’s evidence, or in what they told others but not accepted, again, mainly because they were not consistent with the children’s first CAIT interviews.
Accordingly, although the issue is concerned with the credibility of a witness, we are satisfied that had the primary judge not referred to the mother’s Case Information Affidavit filed on 23 March 2017, the same result would have ensued. Therefore, although the primary judge should not have referred to the mother’s Case Information Affidavit filed on 23 March 2017, this departure from usual practice does not justify a new trial and the mother was not thereby deprived of the possibility of a successful trial (Stead v State Government of New South Wales (1986) 161 CLR 141).
This ground is not established.
Did the primary judge err in finding the father did not pose a risk to the children? (Grounds 6 and 7)
These grounds were argued together.
The mother relied on the submissions made under Ground 1, which have been rejected.
The mother submitted in her Summary of Argument, filed on 20 November 2020 at paragraphs 73–74, that her Honour’s reasons did not properly engage with the following evidence:
·The father’s evidence as to a telephone call he made to the children where he discussed a judge making a decision to take the children away from the mother which distressed them;
·Therapist A’s oral evidence that the father struggles to understand the children need emotional distance and not discuss court related matters with them;
·Therapist A’s oral evidence that although the father’s telephone calls to the children were distressing, he said “at least they were talking to him”; and
·Dr M’s evidence that the father “has a bit of a lack of insight”.
The primary judge referred to the telephone calls at [118], [119], [132], [133] and [144]–[146]. They were therefore considered by the primary judge and the complaint can only be that they were not given the weight that the mother considers that should have been applied. That does not demonstrate error.
Finally, the fact that the father “has a bit of a lack of insight” (Transcript 17 June 2020, p.711 lines 20–21) as to whether he should have been bathing and drying the children at their ages (which was the context in which the comment was made) does not demonstrate any error on the part of the primary judge. That fact is entirely consistent with the findings.
Conclusion
These grounds do not succeed.
The appeal will be dismissed.
APPEAL NO. WEA 18 OF 2020
On 5 October 2020 the primary judge refused to stay the orders made on 2 September 2020. This is an appeal from those orders.
As the substantive appeal is being dismissed, this appeal is now futile and will be dismissed.
COSTS
The father sought a costs order in the sum of $35,155.59 at scale but accepted that items totalling $1,831.20 should not have been included. Further, many of the substantial items, especially as to counsel’s fees, were estimates.
The appeal was wholly unsuccessful. No reason was put to us as to why a costs order should not be made.
We consider it just that the mother pay the father’s costs of both appeals. Doing the best we can, the costs will be fixed in the sum of $20,000 pursuant to r 19.18(1) of the Family Law Rules 2004 (Cth).
The ICL did not seek a costs order.
I certify that the preceding one hundred and sixty-one (161) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Aldridge & Kent. Associate:
Dated: 6 May 2021
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