Rubra & Potter
[2023] FedCFamC1A 159
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Rubra & Potter [2023] FedCFamC1A 159
Appeal from: Potter & Rubra [2023] FedCFamC2F 620 Appeal number(s): NAA 171 of 2023 File number(s): BRC 15024 of 2020 Judgment of: ALDRIDGE, BAUMANN & RIETHMULLER JJ Date of judgment: 18 September 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where it was not disputed at the appeal hearing that the mediation was conducted by a “family dispute resolution practitioner” – Where the primary judge erred by using information given at the mediation, the orders proposed by the mediator and the mother’s refusal to agree in a very significant way – Where the error was material to the outcome – Appeal allowed – Orders of the primary judge set aside – By consent, parenting orders made – Costs certificate granted to the mother. Legislation: Evidence Act 1995 (Cth) s 131
Family Law Act 1975 (Cth) ss 10G(1), 10J(1), 60CC(2A)
Federal Proceedings (Costs) Act 1981 (Cth)
Number of paragraphs: 25 Date of hearing: 31 August 2023 Place: Melbourne, delivered in Sydney Counsel for the Appellant: Ms Horsley Solicitor for the Appellant: Coates Family Law The Respondent: Self-represented litigant Counsel for the Independent Children’s Lawyer: Mr Lake Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
NAA 171 of 2023
BRC 15024 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS RUBRA
Appellant
AND: MR POTTER
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, BAUMANN & RIETHMULLER JJ
DATE OF ORDER:
18 SEPTEMBER 2023
THE COURT ORDERED ON 31 AUGUST 2023 THAT:
1.The appeal is allowed.
2.The orders made by the primary judge on 26 May 2023 are set aside.
3.In lieu thereof, the Court makes the orders contained in the document headed “Consent Orders” signed by the appellant on 30 August 2023 and by the respondent on 31 August 2023, the Court being satisfied that those orders are in the best interests of the child.
4.The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
5.The Independent Children’s Lawyer provide a copy of the reasons for judgment issued by this Court to the Queensland Police Services and Department of Children, Youth Justice and Multicultural Affairs.
6.The respondent will, within fourteen (14) days of the date of these orders, notify the appellant of the names and contact details of any persons to whom he provided the primary judge’s reasons for judgment in accordance with Order 20 of the orders made 26 May 2023, and the appellant be at liberty to provide a copy of the reasons for judgment issued by Court to any such person.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rubra & Potter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, BAUMANN & RIETHMULLER JJ:
On 31 August 2023, we allowed the appeal in this matter, set aside the orders of the primary judge and, by consent, made a suite of parenting orders which saw the parties’ child live with the mother and spend time with the father. These are our reasons for doing so.
The parties have one child who was born in 2018. On 26 May 2023, the primary judge moved the child from her primary carer, the mother, to the care of the father who was to have sole parental responsibility for her. The child was not to see the mother at all until 2 September 2023 when a graduated regime for the child to spend time with the mother began.
The primary judge made these orders because he was of the view that the mother had fabricated allegations of sexual assault on the child by the father. This amounted to child abuse within the meaning of s 60CC(2A) of the Family Law Act 1975 (Cth) (“the Act”) and led to the conclusion that the mother was “not committed to [the child] having a meaningful relationship with the father” (at [185]).
The child told her stepfather, mother, grandmother, other relatives and the single expert Family Consultant that the father had put his finger in her “bum bum” (at [152]). She later added that it was her “wee wee” (at [152]).
We do not need to descend to further details. It is sufficient to say that the young age of the child, the changing nature of the allegation and the manner in which the child told the various people created a real doubt as to what actually occurred. The Family Consultant said that these matters led her to be very sceptical as to whether the child was actually describing a genuine experience.
It is plain from the oral evidence of the Family Consultant that she was concerned about the effect of repeated questioning of the child saying that it was one of the concerns she held throughout the interview with the child (Transcript 17 May 2023, p.138 line 40). She considered that the child had been extensively questioned by the mother and members of her family. She added:
[FAMILY CONSULTANT]: … And I think – yes, I – I suppose what I’m – what I understood that is can repeated questions – and it doesn’t matter who – who’s asking the – the questions, but if it’s by multiple sources within the family, if that’s being asked, I mean, [the child] is only four years old. That can be quite suggestive to a child at four years old if they’re – and I don’t know the context around how they were being asked, but children who are asked questions over and over and over again can – it can be quite suggestive to children as well that something has happened to them, which is why, you know, in – in the child protection field and in the police field and – and certainly my framework when I interview children, it’s – it’s non-leading questioning of children. You’re really asking children to tell you, which is – I suppose in my interview of [the child] outlined at – at paragraphs 1 – 5.1, 5.2 and 5.3, you can see that when she has made that disclosure of:
He touched my private parts. He likes touching ladies’ … parts.
(Transcript 17 May 2023, p.139 lines 14–27)
The Family Consultant was also of the view that the phrase “ladies parts” was not one that a four year old would normally use.
The allegations were reported to both the Queensland Police and the appropriate child protection agency but neither investigated them.
On the material before the Court, therefore, a finding that there had been no sexual abuse was justified. The mother did not seek a finding that there had been such abuse.
However, the primary judge went further than that and found that the allegations were fabricated by the mother. It is difficult to understand precisely what is meant by that given that the child repeated the allegations to a number of witnesses, including the Family Consultant, who were not challenged on that evidence. Perhaps his Honour meant that the mother had coached the child to make the allegations. If so, there was no evidence as to that. The Family Consultant did not suggest that coaching of a child of that age was likely or possible. The mother was not cross-examined to suggest such behaviour by her.
In coming to this finding of fabrication, the primary judge took into account what occurred at a mediation which took place on 25 October 2021. In doing so, his Honour erred.
It was not disputed at the hearing of the appeal that the mediation was conducted by a “family dispute resolution practitioner” as defined by s 10G(1) of the Act. Section 10J(1) then operated to prevent anything said in the company of that practitioner whilst conducting family dispute resolution from being admissible in any court. The exceptions in s 10J(2) are very limited and do not extend to consent (unlike s 131 of the Evidence Act 1995 (Cth)). The bar imposed is absolute and not subject to the exercise of any discretion. Thus, the fact that both parties, acting for themselves, raised what occurred at the mediation in their affidavits, does not assist.
His Honour therefore, incorrectly said:
42.For obvious reasons, the Court never receives information about what happened at the mediation. However, in these proceedings, because of the way in which this fits into the narrative, the Court made an exception and received some information about the mediation.
The primary judge then went on to record that during the mediation the mother said that recently the child had told her that the father had growled at her and smacked her. His Honour found that to ameliorate this and to provide an independent assessment of any risk, the mediator and the Independent Children’s Lawyer (“the ICL”) suggested that changeovers could take place at a contact centre. This led to his Honour saying:
43. …The mother was nonplussed as to whether this was appropriate.
On 30 October 2021, five days after the mediation, the child again said that the father had smacked her. A similar allegation was made on 6 November 2021. The mother took the child to the police and was advised to stop all visits with the father.
After returning from the police station, the child was showered. A scratch on her bottom was noticed. According to the mother and her new partner the child said the father did it and that he had put his finger in her bottom.
The mother did not return to the police station.
His Honour said:
75.The timing of these allegations does bear scrutiny. What is clear is that on the day of the mediation on 25 October 2021, the mother’s claims of domestic violence had been found by [the family consultant] not to be a significant factor in her recommendations as to what contact the child should have with her father.
76.Having regard to this, it would seem that the mother realised that her subjective fears did not bear objective scrutiny.
…
81.Quite sensibly, the ICL and the mediator proposed a solution which would involve a contact centre handling that changeover so that any change in demeanour or allegations of smacking would be noted and investigated immediately.
82.This also meant that the mother’s “last-minute” concerns were able to be able to be addressed and, therefore, there was no objective reason why the mother could not sign and agree to the consent orders. It would seem that the ICL had given both parties some time to think about the orders and respond accordingly.
83.The visit by the mother to the police station on [...] November 2021, would seem to be an attempt to create some support for the proposition that she took [the child’s] complaints seriously, made a complaint to the police and had been given certain advice. However, what she had told the police did not seem to differ that much from what she had told the ICL and the mediator.
84.Objectively, the only time that the child was in distress was after the visits, so that the advice given by the police (to look at the orders) was not sufficient to justify disputing the orders proposed by the ICL; those orders were objectively adequate to counter any risk that the mother had so far identified.
85.And then, almost fortuitously, within a few hours, the child makes an allegation that changes the game.
This led to the following conclusions:
141.When these fresh matters were then raised by the mother at mediation, the ICL and the mediator proposed a solution that would reduce this risk, so that, yet again, there was no barrier to the father continuing to have unsupervised time with the child.
142.As the time for signing the proposed consent orders drew closer, and knowing that the mother had made allegations about smacking and growling, it seems ludicrous that the father should then decide to start sexually abusing his own daughter and do so in the lounge room of his brother’s house.
…
162.This explains why, after the COVID-19 restrictions were lifted, the mother insisted on supervised time and why she puts so much store in the allegations that she made in her first affidavit and in her notice of risk. But when she realised that these allegations did not have the desired result of putting a halt to contact, the mother “upped the ante” and she made allegations of growling and physical slapping.
163.When those allegations were effectively “put to bed” by the tweaking of the proposed draft orders by the ICL (for changeover at a contact centre) and the mother realised that she again didn’t get what she wanted, she “upped the ante” yet again and made allegations of a sexual nature.
The primary judge therefore used the information given at the mediation, the orders proposed by the mediator and the mother’s refusal to agree to them in a very significant way. In effect, his Honour found that the mother invented the allegation of sexual abuse because the mediation was not going her way.
The primary judge was not entitled to have regard to the material in connection with the mediation and should have informed the parties, who were acting for themselves, that he could not do so.
The error in using that information was clearly material to the outcome.
Thus, we were satisfied of the requisite error. We do not, therefore, need to deal with the other grounds of appeal, a number of which assert other errors.
We note with considerable concern that the effect of s 10J was not raised with the primary judge by counsel for the ICL (who was not the counsel who appeared on the appeal). Had s 10J been raised with the primary judge at the appropriate time, the appealable error was unlikely to have occurred.
As the appeal was allowed on an error of law, we granted the mother a certificate under the Federal Proceedings (Costs) Act1981 (Cth). Quite properly, and in our view, correctly, counsel for the ICL did not seek such a certificate because his predecessor (neither counsel nor solicitor on the appeal appeared at the hearing before the primary judge) had actually relied on the mediation and the proposed orders drafted by the mediator at the hearing.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Baumann & Riethmuller. Associate:
Dated: 18 September 2023
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