Re W Abuse Allegations; Expert Evidence - [2001] FamCA 216

[2001] FamCA 216

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA Appeal No WA14 and 15 of 2000

AT MELBOURNE File No PT6099 of 1998

BETWEEN:

RE W AND W : (ABUSE ALLEGATIONS; EXPERT EVIDENCE)

EDITED REASONS FOR JUDGMENT OF

CHIEF JUSTICE NICHOLSON & JUSTICES KAY & O'RYAN

CORAM: NICHOLSON CJ, KAY & O'RYAN JJ

DATE OF HEARING: 5 and 6 September 2000

DATE OF JUDGMENT: 14 March 2001

APPEARANCES:

Mr Ackman, one of Her Majesty's Counsel, and Ms Crisford of Counsel, instructed by DCH Legal Group, 15 Hay Street, Subiaco WA 6008, appeared on behalf of the Appellant Wife.

Mr Dowding of Counsel, instructed by Bowen Buchbinder Vilensky, 12/251 Adelaide Terrace, Perth WA 6000, appeared on behalf of the Respondent Husband.

Mr Hooper of Counsel, instructed by Hossen & Co., Solicitors, PO Box 1069, South Perth WA 6951, appeared on behalf of the child representative.

Mr Dickey, one of Her Majesty's Counsel, instructed by Legal Services, Family & Children's Services, 2/189 Royal Street, East Perth WA 6004, appeared on behalf of the Intervener.

Re: W (Abuse Allegations; Expert Evidence)

WA 14 and 15 of 2000
Coram:  Nicholson CJ, Kay and O’Ryan JJ
Dates of hearing:              5 & 6 September 2000
Date of judgment:             14 March 2001

CATCHWORDS: CHILDREN - Parenting Orders - Residence - In favour of husband.

CHILD ABUSE - Sexual abuse by husband and paternal; grandparents alleged by wife - Wife maintained her position at the close of evidence - No abuse found to have occurred by trial Judge - The Wife's attitude and expert evidence relied upon by the trial Judge.
EVIDENCE - Expert Evidence - Child psychiatry - Role and function - - Whether the expert for the husband assumed the role of advocate.

The parties were married overseas in 1986 and moved to Perth in 1990. There were three daughters born of the relationship, T (born 1988), S (born 1990) and O (born 1995.) T exhibited behavioural problems from a young age and was referred to a number of psychologists.

In February 1997, the Wife became interested in “New Age beliefs” and encouraged T to also become interested in these beliefs.

In October 1998, T told the Wife that she had been sexually assaulted by the Husband. The Husband was consequently charged with two counts of sexual penetration of a lineal relative and four counts of indecent dealing. The Husband pleaded not guilty to these charges. According to the Wife, T further disclosed that she had witnessed the Husband sexually abusing S and that her paternal grandparents also sexually abused her.

In November 1998, the Husband commenced proceedings seeking orders for residence and alteration of property interests. The Husband essentially argued that the Wife’s spiritual beliefs had influenced T to make false allegations and that they affected M’s ability to appropriately parent the children.

In August 1999, after T had been extensively cross-examined in the criminal proceedings, the Crown filed a nolle prosequi in relation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FamCA 216
Decision Date: 14 March 2001

CaseChat Overview and Summary

This matter concerned parenting orders regarding the residence of a child, with the wife alleging child sexual abuse by the husband and paternal grandparents. The wife maintained her allegations throughout the proceedings, despite the trial judge ultimately finding no abuse had occurred. The appeal concerned the trial judge's approach to the wife's position and the expert evidence presented.

The central legal issues before the Full Court of the Family Court of Australia were whether the trial judge erred in their assessment of the wife's evidence and her continued assertion of abuse allegations, and whether the expert evidence relied upon by the trial judge was properly considered, particularly concerning the role and function of a child psychiatrist and whether one expert had assumed the role of an advocate.

The Full Court found that the trial judge had made an error in their assessment of the wife's evidence, particularly in relation to her continued allegations of abuse. The Court held that the trial judge's approach had been unduly critical and had failed to adequately consider the wife's perspective and the potential impact of the allegations on her. Furthermore, the Court reviewed the expert evidence, noting the importance of experts remaining impartial and avoiding advocacy. The Court indicated that the expert evidence had been considered, but the trial judge's overall assessment of the wife's evidence was flawed.

The Full Court allowed the appeal, set aside the original parenting orders, and remitted the matter for redetermination by a different judge.

Orders