Simmons & Simmons
[2023] FedCFamC1A 44
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Simmons & Simmons [2023] FedCFamC1A 44
Appeal from: Simmons & Simmons [2022] FedCFamC1F 811 Appeal number(s): NAA 251 of 2022 File number(s): PAC 5215 of 2019 Judgment of: MCCLELLAND DCJ, ALDRIDGE & BAUMANN JJ Date of judgment: 5 April 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from orders changing residence of the children from the appellant mother to respondent father – Allegations of sexual abuse perpetrated by the father against the eldest child – Where the eldest child has been diagnosed with attention-deficit/hyperactivity disorder and oppositional defiant disorder – Where one of the younger children has been diagnosed with autism spectrum disorder – Children exhibited problematic sexualised behaviours – Whether primary judge erred in refusing to admit report of eldest child’s treating psychologist – Probative value – Report was relevant to issues in the proceedings – Error established – Appeal allowed – Remitted for re-hearing – Costs certificates issued. Legislation: Evidence Act 1995 (Cth) ss 56, 57, 192A
Family Law Act 1975 (Cth) s 69ZT(1)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 9
Federal Circuit and Family Court of Australia Rules 2021 (Cth) r 7.01
Cases cited: Annesley & Pembleton [2022] FedCFamC1A 8
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Beslic v MLC Ltd (No 2) [2016] NSWSC 746
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Number of paragraphs: 76 Date of hearing: 1 March 2023 Place: Sydney The Appellant: Self-represented litigant Counsel for the First Respondent: Mr Grew Solicitor for the First Respondent: Coleman Grieg Lawyers The Second Respondent: Self-represented litigant Counsel for the Independent Children's Lawyer: Mr Maddox Solicitor for the Independent Children's Lawyer: John Spence & Associates ORDERS
NAA 251 of 2022
PAC 5215 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SIMMONS
Appellant
AND: MR SIMMONS
First Respondent
MS MEOLI
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ, ALDRIDGE & BAUMANN JJ
DATE OF ORDER:
5 April 2023
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The matter is remitted for re-hearing by a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.
3.The orders of the Federal Circuit and Family Court of Australia (Division 1), made on 21 October 2022, be set aside on and as from the date upon which further orders are made by the Federal Circuit and Family Court of Australia (Division 1).
4.The appellant is granted a costs certificate pursuant to 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 her in respect of the costs incurred by her in relation to the appeal.
5.The respondent is granted a costs certificate pursuant to s 6 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 him in respect of the costs incurred by him in relation to the appeal.
6.The Independent Children’s Lawyer is granted a costs certificate pursuant to s 6 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 them in respect of the costs incurred by them in relation to the appeal.
7.Each party and the Independent Children’s Lawyer is granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to each party in respect of such part, as the Attorney-General considers appropriate, of any costs incurred by each party and the Independent Children’s Lawyer in relation to the new trial granted by these orders.
THE COURT NOTES THAT:
A.The parties are encouraged to attend a family dispute resolution conference with a view to reaching agreement in respect to a revision of the parenting orders made by the primary judge on 21 October 2022.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Simmons & Simmons has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, ALDRIDGE & BAUMANN JJ:
INTRODUCTION
This appeal concerns parenting arrangements for the parties’ three children, the eldest of whom is currently 11 years old. By orders made on 21 October 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 1), the children were removed from the care of the appellant mother (“the mother”) to live with their respondent father (“the father”), who was given sole parental responsibility, and to spend limited, graduated time with the mother. The change in the children’s primary place of residence has also resulted in the children spending limited time with their infant half-brother, who continues to reside with the mother.
Those orders were made in the context where it was found that the mother lacked the capacity to support the children’s relationship with their father, whom she believed had sexually abused the parties’ eldest child, and that there was a risk the children would become enmeshed in an inaccurate narrative regarding the father. Significantly, the primary judge accepted the recommendation of the single expert, who had prepared a Family Report, that an immediate change of residence was required in circumstances where it was the expert’s view that the mother was unable to manage problematic behaviour exhibited by two of the children.
After that evidence was provided on 30 March 2022, being the conclusion of the evidentiary stage of the proceedings, urgent interim orders were made by the primary judge for there to be an immediate change in residence of the children such that they were to spend time with the paternal grandmother prior to living, on a permanent basis, with their father. The reasons provided by the primary judge for the making of those interim orders were subsequently included in her judgment of 21 October 2022, some six months after the interim orders were made.
While the delay in the provision of those reasons is the subject of one ground of appeal, we have upheld the appeal on the basis that the primary judge excluded from evidence a report prepared by the eldest child’s treating psychologist, which provided an alternative explanation for the child’s problematic behaviour to that which was advanced by the single expert and ultimately accepted by the Court.
BACKGROUND
The parties commenced a relationship in 2006, were married in 2010 and separated in November 2015. Together the parties had three daughters, the eldest, child X, now being 11 years old and the younger two, child Y and child W, being eight years old. Child Y has been diagnosed with autism spectrum disorder (“ASD”).
Following separation, the children lived with the mother in the former matrimonial home and spent time with the father as agreed, which initially amounted to six hours each weekend from around December 2015 (at [16]).
The mother alleges that the father perpetrated family violence towards her during their relationship and, importantly, that the eldest child, child X, disclosed that she had been sexually abused by the father. As a result of that disclosure, the mother ceased the children’s time with the father in March 2016 (at [17]).
Despite making disclosures of sexual abuse to the mother, when interviewed by the Joint Child Protection Response Program (“JCPRP”) officers in the first investigation in March 2016, the child made no such disclosures and no risk of sexual harm was substantiated against the father.
In April 2016, the parties reached agreement for the children to spend overnight time with the father each fortnight. Although further reports were received by the Department of Communities and Justice (“the Department”) of sexual acts concerning the children, these notifications were considered duplicates of previous complaints and not investigated further.
In September 2016, the parties agreed to a parenting plan whereby the children would spend time with the father each alternate weekend, a weeknight dinner and one week during the December school holidays. This parenting plan remained in place without significant issue for the next two years, despite the mother contending that the children displayed sexualised behaviour on many occasions (at [26]). Between 2016 and 2018, a number of further reports concerning sexual abuse and risk of sexual harm to the children were made to the Department, although no risk issues were ultimately found.
In 2018, child X became increasingly aggressive and began weekly appointments with a psychologist in August 2018. During these appointments, child X made further disclosures of sexual and physical abuse perpetrated by the father, which became the subject of a second JCPRP investigation in November 2018. However, child X again did not affirm these disclosures of sexual abuse during interviews and no risk or harm issues were substantiated against the father. The children continued to spend time with the father according to the 2016 parenting plan.
As a result of increasing concerns about child X’s psychological and behavioural difficulties, which were echoed by her school counsellor, the mother presented the child to a number of medical professionals throughout early 2019, receiving varying diagnoses including attachment disorder, potential history of trauma and features suggestive of attention-deficit/hyperactivity disorder (“ADHD”) and oppositional defiant disorder (“ODD”).
In May 2019, the mother also deposes to being referred by the Department to C Services. C Services is a service provided by the New South Wales Government through the E Region Local Health District. Child X commenced receiving psychological counselling through C Services in June 2019.
After a number of sessions with psychologists at C Services, and weekly attendance upon the D Services, counsellors from both services recommended that the child’s time with the father cease, with Ms R, a C Services psychologist treating child X in 2020, opining that the child’s problematic sexual behaviour was likely linked to trauma including from likely being exposed to family violence and potentially sexual abuse.
Prior to the final hearing, the children last spent time with the father on 13 August 2019.
The Department received another report concerning alleged sexual abuse in relation to two of the parties’ children on 23 August 2019, arising from a disclosure by child X to the maternal grandmother about being inappropriately touched by the father. This became the basis for a third JCPRP investigation, in which child X did disclose abuse perpetrated by the father. During those interviews, one of the younger children acknowledged that the father did not live with her as he had “touched” child X (at [51]).
The father commenced the substantive proceedings in October 2019, while the third investigation was still underway, seeking equal shared parental responsibility and regular spend time arrangements due to the mother withholding the children from him. The mother sought sole parental responsibility and that the children live with her and spend no time with the father.
After being placed in the Magellan list on 12 November 2019, a Magellan report was released to the parties in January 2020. The report recorded the outcome of the third investigation as follows:
Sexual abuse has been substantiated as a result of [child X’s] interview and [the father] has been recorded as a person having caused harm to [child X]… given [child X’s] disclosure of abuse, risk of sexual harm has been substantiated for [the younger children].
(Magellan Report of 16 January 2020, p.4)
Despite this substantiation of risk, the father has not been charged with any offence (at [57]).
In March 2020, a single expert clinical psychologist, Ms K, was appointed by consent of the parties.
Between April 2020 and October 2020, child X received therapy from the clinical psychologist attached to C Services, Ms R. At the request of the Independent Children’s Lawyer (“ICL”), Ms R prepared a report concerning child X. The primary judge made a ruling that she would not accept the tender of that report. That ruling is central to this appeal.
Ms K’s report was released to the parties in July 2020. In her report, the expert recommended that the children remain living with the mother and qualified the children spending time with the father based on whether or not the Court found that he sexually abused the eldest child.
On 24 November 2021, a video of child X and child W was brought to the attention of the mother that depicted the two children engaging in sexualised activity. It was accepted that the sexualised activity portrayed on the video occurred in circumstances where the children were fully clothed, but nonetheless was understandably of concern to all parties, the single expert and the Court. In light of this evidence, the expert ultimately reversed her earlier recommendations, opining that orders should be made in line with the father’s proposed orders.
The paternal grandmother was joined to the proceedings as the second respondent during the final hearing, for the purpose of interim orders being made for the children to live with her and spend supervised time with each of the parents pending delivery of judgment. The mother was the primary caregiver and primary attachment figure for all three children up until those interim orders were made in March 2022.
APPLICATION IN AN APPEAL
By way of an Application in an Appeal filed 27 February 2023, the appellant mother sought to adduce further evidence, being an affidavit of Ms R sworn on 6 November 2020 attaching her report dated 3 November 2020. The mother also made application for the Full Court to receive, by way of further evidence, an “updating affidavit” of the mother filed 13 April 2022.
At the appeal hearing, after receiving submissions from the parties, orders were made dismissing the mother’s Application in an Appeal in relation to the updating affidavit of the mother on the basis that it had been prepared after the conclusion of evidence in the proceedings, being 30 March 2022, and prior to the parties making oral submissions on 14 April 2022. The appropriate course of action for the mother to have pursued, in those circumstances, was to have made an application to the primary judge to reopen evidence for the purpose of the Court considering that updating affidavit. In circumstances where no such application was made, the omission of that affidavit from evidence in the proceedings before the primary judge could not constitute an appellable error.
The affidavit of Ms R attaching her report dated 3 November 2020 was already included in the appeal papers. In those circumstances, we found it unnecessary to make a formal order for that report to be received as further evidence in the appeal. A notation was made to that effect on the orders made during the appeal hearing dismissing the mother’s Application in an Appeal. The parties were advised that the Full Court would consider the content of the report of Ms R in determining whether the primary judge’s ruling that it not be admitted into evidence in the proceedings constituted an appellable error.
THE APPEAL
The mother, who is self-represented, filed a Notice of Appeal on 18 November 2022 pleading eight grounds. On 6 February 2023, the mother abandoned four grounds, only pressing Grounds 1, 3, 4 and 5:
1.The Judge erred by failing to give appropriate weight to evidence, which includes but is not limited to, evidence of psychological risk and physical risk, where orders have been made that are an error of jurisdiction.
…
3.The Judge erred by failing to provide adequate reasoning which includes, but is not limited to, certain Orders, findings of fact, and in particular, relying on the findings of a report writer who does not have the requisite expert knowledge to make such assessments.
4.The Judge erred by failing to exercise jurisdiction correctly, in line with the Best Interest of Child provisions of the Family Law Act 1975.
5.The Judge erred by making errors of fact, where those factual errors have lead (sic) to decisions that were plainly wrong.
(As per the original)
The applicant’s first ground of appeal is unsatisfactorily broad in that it refers to errors made by the primary judge in failing to “give appropriate weight to evidence” without identifying the particular evidence. That deficiency has, however, been rectified in the mother’s written Summary of Argument filed 7 February 2023, which at page 8 clarifies the mother’s contention as being that the primary judge erred in failing to “fully consider all materials including that of [C Services]”. Both that contention and the relevant material were clarified at page 9 of the mother’s Summary of Argument, which confirmed that the mother’s concern was the primary judge’s failure to receive into evidence the report of Ms R dated 3 November 2020.
As a related issue, under Ground 3, the mother also contends error in the primary judge’s refusal to permit an urgent subpoena to be issued requiring Ms R to give evidence in the proceedings. It has, however, not been necessary to consider that issue, other than to the extent that it was an indication of the effort made by counsel for the mother, after considering the content of Ms R’s report, to have the evidence of Ms R placed before the Court.
It is noted that Ground 3 is further related to the first ground of appeal insofar as it is contended that the primary judge failed to give adequate reasons in respect to each of those decisions. In this appeal, we have focused upon the ruling by the primary judge that the report of Ms R would not be admitted into evidence.
For reasons which we explain, we find merit in the mother’s first ground of appeal in that the primary judge erred in failing to receive into evidence the report of Ms R dated 3 November 2020. In circumstances where the finding of that error is dispositive of the appeal, we find it unnecessary to address the remaining grounds of appeal. That is, it is unnecessary to address the ruling in respect to the requested subpoena or whether adequate reasons were given for both decisions as advanced in Ground 3.
RELEVANT APPELLATE PRINCIPLES
There is a strong presumption that the primary judgment is correct and free of error: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627. However, as set out in House v The King (1936) 55 CLR 499 at 504–505 and Norbis v Norbis (1986) 161 CLR 513 at 539–540, appellate intervention may be required where, in the exercise of a discretionary power, the primary judge:
(1)Acts upon a wrong principle;
(2)Allows extraneous or irrelevant matters to guide or affect the decision;
(3)Mistakes the facts;
(4)Fails to take into account some material consideration; or
(5)Makes a decision that, upon the facts, is unreasonable or plainly unjust.
A decision as to the admissibility of evidence is a procedural ruling. An erroneous procedural ruling which affects the final result of a trial may nonetheless be appellable: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 6.
In this matter we are satisfied that, in ruling that the report of Ms R would not be admitted into evidence, the primary judge failed to take into account a material consideration, namely, the opinion expressed by child X’s treating psychologist as to the reasons for child X’s dysregulated and sexualised behaviour.
Whilst s 69ZT(1) of the Family Law Act 1975 (Cth) (“the Act”) excludes the applicability of certain provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”), it does not exclude those provisions of the Evidence Act which deal with the admissibility of relevant evidence. The principles relating to the admissibility of evidence were explained by the Full Court in Annesley & Pembleton [2022] FedCFamC1A 8 (“Annesley & Pembleton”) as follows at [60]–[62]:
60.Whether evidence is or is not admissible is determined by the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”), but in particular ss 55 and 56, which provide:
55 Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
56 Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
61.The High Court in IMM v The Queen (2016) 257 CLR 300 considered the scope of ss 55 and 56 of the Evidence Act as follows:
38.… There can be no doubt that the reference to the effect that the evidence “could” have on proof of a fact is a reference to the capability of the evidence to do so. The reference to its “rational” effect does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact.
39.…
40.Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is “probative”. Therefore, evidence which is relevant according to s 55 and admissible under s 56 is, by definition, “probative”. But neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law.
62.The Full Court in Britt & Britt (2017) FLC 93-764 (“Britt”) summarised the position as follows at 77,105:
31.Thus, evidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue. For it to be inadmissible it must lack any probative value.
(Bold emphasis added and footnotes omitted)
CONSIDERATION
At the preliminary stages of the hearing, the primary judge indicated to the parties that she had available to her a report from Ms R and enquired of the parties as to whether Ms R was child X’s treating psychologist and whether any party was seeking to rely on the report.
Ms R being the child’s treating psychologist was affirmed by counsel for the father who, in respect to the report of Ms R, stated:
[COUNSEL FOR THE FATHER]: …That was a document that was prepared at the request of the former ICL in circumstances where [Ms R] was the counsellor who was seeing [child X] at that point in time and she prepared a report for the court, for the interim hearing, indicating and setting out those matters that she had dealt with in her sessions. She was part of the trauma informed counselling team at [C Services] ---
(Transcript 10 March 2022, p.129 lines 19–24)
Counsel for the ICL subsequently clarified that the document was “a reasonably extensive report on [child X] in 2020” and indicated that the ICL had no objection to the report being tendered.[1]
[1] Transcript 10 March 2022, p.131 lines 1–2.
Regrettably, it appears that report had not been included in the brief of counsel for the mother. During the course of an exchange between counsel for the mother and the primary judge, counsel for the mother stated that she was not aware that the report existed and requested that she reserve her position in respect to whether the mother would seek to tender the report.[2]
[2] Transcript 10 March 2022, p.130 lines 31–32.
The primary judge declined to give that indulgence and stated in respect to the report that “I don’t propose admitting it. I’m not reading it” and also indicated that she did not “propose saying anything further about it”.[3]
[3] Transcript 10 March 2022, p.131 lines 5–11.
The issue regarding the admissibility of Ms R’s evidence again arose on the following day of the hearing, being 28 March 2022. At the commencement of proceedings on that day, counsel for the mother advised the Court that she was instructed to make an application for a “short service subpoena” to be issued to Ms R to give evidence in the proceedings.[4]
[4] Transcript 28 March 2022, p.4 lines 40–42.
The primary judge rejected that oral application, stating:
HER HONOUR: You just said the word “short service subpoena” again. I am not extending any more leeway to the mother in terms of not having this matter – we are part-heard. We commenced two days late. We then had a lengthy adjournment. The lack of – and then we were adjourned a couple of weeks. I’m not granting leave for anything that could have been in the category of could have been prepared when this matter should have been ready to start.
(Transcript 28 March 2022, p.4 line 44 to p.5 line 2)
There is no question that the primary judge had a responsibility to take such steps as were necessary to ensure the effective and efficient management of the hearing. In that respect, s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) relevantly provides that proceedings before the Court are to be conducted in a manner that is consistent with the “overarching purpose”, which is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.
The obligation to act in accordance with the “overarching purpose” reflects the principle adumbrated by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [30] that, while modern courts have a responsibility to efficiently and effectively case manage matters that are before them, “case management principles” should not supplant the objective of doing justice between the parties according to law.
In discharging her case management obligations, the primary judge was entitled to make an advance ruling regarding the potential admission of Ms R’s report into evidence (s 192A of the Evidence Act). However, consistent with the guidance provided by the Full Court in Britt & Britt (2017) FLC 93-764 (“Britt & Britt”) at [44], a trial judge should be cautious in doing so. As explained by Robb J in Beslic v MLC Ltd (No 2) [2016] NSWSC 746 at [27]:
27.…It may be difficult for the court at an early stage of an application under s 192A of the Evidence Act to make a sound judgment as to whether or not it is appropriate to entertain the application. The court may be required to decide the issue without having the benefit of any real or sufficient understanding of the relationship between the evidence subject to objection and the whole of the evidence in the case, or the manner in which the evidence to which objection is made may be led and become relevant at the hearing. …
Moreover, these are parenting proceedings with much at stake for these children. In considering whether to preclude the tender of the report of Ms R, the primary judge was obliged to apply the paramountcy principle by focusing upon what is in the best interests of the children (Annesley & Pembleton at [76]).
We observe that the decision of Annesley & Pembleton is consistent with CDJ v VAJ (1998) 197 CLR 172 where the High Court held at [87], in considering whether to admit further evidence in an appeal, the Court is bound to have regard to the effect that evidence “may have in determining whether the best interests of the child” are served by the admission of that evidence. While that case concerned the potential admission of further evidence in an appeal, the principle adumbrated is, in our view, equally applicable to the potential admission of evidence by a trial judge at first instance. In that respect, at [192], Kirby J pointed out “the general obligation to approach any judicial decision which might impinge on the welfare of a child with at least a broad appreciation of the implications of the decision for that child’s welfare is consistent with the longstanding parens patriae jurisdiction of courts” (emphasis added).
In this case, there were issues of great importance for these children at stake. As a result of the parties’ respective applications, the primary judge was tasked with the responsibility of determining whether there should be an order made for a change in the children’s place of residence from that of the mother to that of the father. This was in circumstances where it was accepted that the mother had been the children’s primary carer since birth and was their primary attachment figure, and also where the children had not seen their father since August 2019. The context in which the Court was required to consider that issue was that child X genuinely believed that her father had sexually abused her, with a further relevant consideration being that child Y had been diagnosed with ASD. The decision, if made in favour of the father, would also mean that the children would be separated from their infant half-brother for whom, it was accepted, the children had developed great fondness.
As acknowledged by counsel for the ICL, the orders made by the primary judge were indeed “life changing” for these children.[5] The interim orders made on 30 March 2022 provided that the children were to spend no time with their mother for a period of four weeks. That order necessarily meant that the children were also separated from their infant half-brother. Thereafter, the orders provided for the children to spend just three hours of supervised time with their mother once per week. Those orders were supplemented by orders made concurrent with the judgment being published by the primary judge on 21 October 2022, some six months after the interim orders were made. The final orders provided for the children to continue having ongoing supervised time of three hours per week with their mother for a period of three months and thereafter, for a period of two months, six hours per week. It was only after the expiration of five months from the date of the final orders (11 months subsequent to the interim orders) that the children’s time with the mother was to progress to spending each alternate weekend and half of school holidays.
[5] Transcript of appeal proceedings 1 March 2023, p.100 line 29.
While such an order needed to be balanced against the potential long-term psychological consequences for the children, it was nonetheless acknowledged that the orders proposed by the father to achieve that outcome would be likely to cause “significant emotional distress” to the children in being separated from both their mother and their younger half-brother.[6]
[6] Transcript 30 March 2022, p.382 lines 15–19.
Before making such an order that in and of itself was likely to cause such significant emotional distress to the children with potential lifelong implications for them, the Court had an obligation to ensure that a decision of such magnitude for these children was based upon the most comprehensive and relevant evidence that was reasonably available. For reasons which we explain, this included the report of Ms R.
Ms R was not simply an adversarial witness engaged by the mother. She was a clinical psychologist attached to C Services, a government service agency to which the mother had been referred by the Department for the purpose of obtaining counselling and therapy to assist child X.
In her report dated 22 July 2022, the single expert herself acknowledged that a potential deficiency in her own report was that she had attempted, but had been unable to, contact a representative of C Services.
The report of Ms R was prepared at the request of the ICL who, in representing the best interests of the children, asked Ms R to address the following:
(1)The dates that she had seen child X;
(2)The history provided by child X to her;
(3)Her overall observations of child X;
(4)Any diagnosis and prognosis in relation to child X;
(5)Any recommendations for treatment provided to child X; and
(6)Any further comments and/or issues that she wished to raise.
In responding to those requested points, the report of Ms R itself contained:
·details of her qualifications and experience, which included that she had been working with child victims of sexual abuse and children under the age of 10 with problematic sexualised behaviours for over 16 years;
·the dates upon which the child had consulted Ms R, which included nine occasions between April 2020 and October 2020;
·confirmation that child X had previously been engaged with a colleague of Ms R at C Services prior to Ms R’s consultation with her;
·reference to child X indicating fear and having experienced harm perpetrated by the father in a number of spontaneous comments;
·an observation that “a common pattern of problematic sexualised behaviours, or other symptoms of distress, is that when there is a perceived risk to safety, behavioural, emotional and psychological difficulties escalate”;
·her observation that child X “can become quickly dysregulated”;
·her observation that when child X is “particularly frightened or worried, she ‘acts out’ and becomes angry or aggressive, and can engage in sexual play”;
·her observations of child X’s presentation in a range of activities which satisfied Ms R that the child’s behaviours “are consistent with those of a child who has experienced significant trauma”;
·her diagnosis that child X suffered from post-traumatic stress disorder in addition to those conditions with which she had earlier been diagnosed, including ADHD;
·her observation that child X’s presentation went beyond that which is commonly associated with a child diagnosed with ADHD and included, in her case:
…hypervigilance, disclosures of harm, avoidance of trauma related content, consistent and specific identification of an individual alleged to have caused harm, observable reactivity on mentioning this specific individual, alleged aggression and engagement in high risk self-destructive behaviours.
·her observation that child X had poor impulse control; and
·her recommendation that child X would require longer term therapy to address a number of challenges, including establishing boundaries, impulse control, emotional regulation and healthy relationships.
In her report, Ms R also made it clear that while, in accordance with C Services policy, the mother remained in attendance at the consultations, the mother did not actively participate in those consultations such that the observations of Ms R were not influenced by the mother.
Additionally, it is clear from the report of Ms R that child X held a belief, albeit possibly mistaken but nonetheless a very strong belief, that she had been abused by her father.
Significantly, as we have noted, the reason provided by Ms K for changing the recommendations that she initially made in her Family Report, from a recommendation that the children continue to reside with the mother to the opinion she expressed at the hearing that there should be a change of residence, was based on her conclusion that the sexualised behaviour displayed by child X and child W in the video recording (marked Exhibit “28” in the substantive proceedings) evidenced that “the mother struggling to set boundaries for the children” at [185]. This, Ms K opined, was “the most likely contributor to their ongoing sexual behaviour” at [185].
The evidence of the single expert in that respect was accepted by the primary judge who, at [477], interpreted and applied the expert’s evidence as follows:
477.…The expert considered this escalation in their problematic behaviour as arising from the mother’s inability to set appropriate boundaries, the eldest child having received the message that her behaviours are a function of trauma, and the influence of the eldest child’s behaviour on the younger child [Y] with the result that she had begun to engage in similar behaviours which in turn have adverse psychological and social impacts. …
(Emphasis added)
The opinion of Ms R was highly relevant to this finding because it provided a counter narrative to the conclusion reached by the primary judge. That is, it was the clear opinion of Ms R, after applying a number of separate measures, that child X had, in actual fact, been the subject of trauma, rather than simply that she had been the subject of a “message” from her mother that she had been the subject of trauma.
Viewed from the converse perspective, insofar as [477] of the reasons reflects an adverse finding against the mother that she inappropriately adopted a trauma-informed approach in attempting to address child X’s problematic behaviour, the views of Ms R, which had been provided to the mother, provided ample justification for the mother believing that child X had been the subject of trauma and, accordingly, adopting the trauma-informed approach which she applied to parenting the children.
Finally, we respectfully agree with the submission of the mother that, in determining that she was unable to establish appropriate boundaries in respect to child X’s problematic behaviour, the primary judge failed to adequately consider the history of challenging behaviour displayed by child X, which is noted in the report of Ms R as being “active for a number of years” in the context of Ms R acknowledging child X’s previous diagnosis of ADHD.
While acknowledging that the report of Ms R was relevant evidence that should have been admitted in the proceedings, counsel for the ICL submitted that her Honour’s failure to do so did not constitute an appellable error because the admission of that evidence would not have changed the outcome of the proceedings. That is, with respect however, not the test. As was made clear in Britt and Britt at [31], in applying ss 56 and 57 of the Evidence Act, “evidence that is probative, even slightly probative, is admissible because it could rationally affect the determination of an issue. For it to be inadmissible it must lack any probative value”.
Having regard to the contents of the report of Ms R to which we have referred, it is clearly the case that the admission of her report could rationally have affected the determination of several issues in the proceedings. This included, most relevantly, whether child X’s sexualised behaviour, which has unfortunately been replicated by child W, is the result of the mother’s inability to set boundaries rather than a multiplicity of other considerations, including the potential that child X has in fact been the subject of trauma, with that trauma occurring in the context of a history of child X engaging in problematic behaviour associated with her diagnosis of ADHD and exhibiting signs of having ODD.
Counsel for the father initially submitted that the report of Ms R was not relevant in terms of ss 56 and 57 of the Evidence Act. However, after being referred to several issues to be determined in the proceedings, in respect to which the report had relevance, counsel for the father conceded that the report had some potential relevance, but qualified the concession stating that “it only must be [relevant] … can only be relevant if it’s given a level of weight that is commensurate with its status as a treating doctor rather than as an expert”.[7]
[7] Transcript of appeal proceedings 1 March 2023, p.71 lines 44–47.
That qualification by counsel for the father is, with respect, incorrect for two reasons.
Firstly, the admission of a treating therapist’s report, addressing questions in the nature of those asked by the ICL of Ms R, is specifically contemplated by r 7.01 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“the Rules”).
Secondly and most significantly, as made clear by the High Court in IMM v The Queen (2016) 257 CLR 300 at [38], the reference in s 56 of the Evidence Act to the potential “rational” effect of the evidence “does not invite consideration of its veracity or the weight which might be accorded to it when findings come to be made by the ultimate finder of fact”.
DISPOSITION
Accordingly, for the reasons set out above, we are satisfied that there is merit in the mother’s first ground of appeal and the appeal should be upheld. This is because the report of Ms R dated 3 November 2022 was clearly relevant to the proceedings and it should not have been excluded from evidence by the primary judge. Her Honour’s ruling in doing so resulted in her failing to give consideration to material that was highly relevant to the issues to be determined in the proceedings and therefore constituted an appellable error.
We are conscious that no-one, in a technical sense, tendered the report of Ms R, however that does not affect the substance of the matter. As we have recorded earlier, her Honour rejected the report despite no formal tender. There was also no point to an urgent subpoena being issued to Ms R to attend and give evidence unless her report was to be relied on. That application was also dismissed. In any event, the nature and content of the report was of such significance, whether it be ultimately accepted or not, that there was a miscarriage of justice in it not being before the Court and there was error in the rejection of it and the application to have Ms R attend to give evidence.
All parties conceded that, in the event of such error being found, the only viable practical course is for the matter to be remitted for rehearing before a judge other than the primary judge.
In those circumstances, we have found it unnecessary to consider the remaining grounds of appeal: see Boensch v Pascoe (2019) 268 CLR 593 at [7]–[8].
As we are not in a position to determine the substantive merit of the parties’ respective applications for parenting orders, we are of the opinion that it is appropriate for the orders made by the primary judge on 21 October 2022 to remain in place until such time as further orders are made by the Court.
In taking that approach, we note that Order 10 of those orders provides for the parties to reach agreement in respect to parenting arrangements moving forward. We strongly encourage the parties to engage in such discussions and it would be appreciated if the ICL would use her best endeavours to arrange a family dispute resolution conference between the parties.
COSTS
Given the appeal is allowed for an error of law, we consider it appropriate to grant the parties and the Independent Children’s Lawyer costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and the re-hearing.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Aldridge & Baumann. Associate:
Dated: 5 April 2023
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