STAPLETON & HAYES - [2011] FamCAFC 70

FAMILY COURT OF AUSTRALIA

STAPLETON & HAYES

[2011] FamCAFC 70

FAMILY LAW - APPEAL – CHILDREN – Where the mother made allegations of sexual abuse – Where the allegations were found to be groundless – Where there is risk of psychological and emotional harm to the children from the mother – Where the decision of the trial judge reversed the parenting arrangements for the children – Children to live with the father and the father to have sole parental responsibility.

FAMILY LAW - APPEAL – CHILDREN – Where the appeal is from a discretionary judgment – Where it was submitted the trial judge was in error in her finding that the sexual abuse allegations were groundless – Where her Honour, having regard to the findings of fact was able to find that the alleged incidents of sexual abuse did not occur – Where it was submitted that the trial judge erred in her finding that the mother was suffering a mental illness – Where it was argued that the trial judge had uncritically accepted the evidence of the report writer in circumstances where the report writer had not been requested to make findings on that basis – Where it was found that the trial judge was justified in making the findings in relation to the mother’s mental illness and the risk that this posed to the children – Where it was said that the trial judge erred in removing the children from the care of the mother in the absence of any direct evidence of the psychological or emotional impact on the children – Where the trial judge was found to have carefully considered the impact of the change on the children and the risk of remaining in the mother’s care – Appeal dismissed.

FAMILY LAW - APPLICATION – Application filed by the father seeking an order that the mother be viewed as and declared a vexatious litigant – Where the determination of this appeal would bring an end to the litigation – Application dismissed.

FAMILY LAW - COSTS – Orders made allowing the Independent Children’s Lawyer to file written submissions for costs and for the mother to reply to any such submissions.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Vexatious Proceedings Act 2008 (NSW)

Casley & Casley [2010] FamCAFC 189
Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
M v M (1988) 166 CLR 69
Rogers v R (1994) HCA 42; (1994) 181 CLR 251
W v W [Abuse allegations: unacceptable risk] (2006) FLR 129

APPELLANT:

Ms Stapleton

RESPONDENT:

Mr Hayes

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

2750

2007

APPEAL NUMBER:

2009

DATE DELIVERED:

31 March 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, May & Cronin JJ

HEARING DATE:

19 May 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

25 May 2009

LOWER COURT MNC:

[2009] FamCA 437

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Goodchild

SOLICITOR FOR THE APPELLANT:

Neisha Shepherd Solicitor

SOLICITOR FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ward

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

NSW Legal Aid

Orders

That the appeal be dismissed.
That all applications in an appeal be dismissed.
That there be no order as to costs as between the appellant and the respondent.
That any application by the Independent Children’s Lawyer for costs against the mother be by way of written submission to be filed and served within 21 days.
That insofar as the Independent Children’s Lawyer files any submission seeking costs against the mother, the mother file her written submissions within 14 days after receipt of those of the Independent Children’s Lawyer.

IT IS NOTED that publication of this judgment under the pseudonym Stapleton & Hayes is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 68 of 2009
File Number: SYC 2750 of 2007

Ms Stapleton

Appellant

And

Mr Hayes

Respondent

REASONS FOR JUDGMENT

Introduction

On 25 May 2009 after a 15 day contested hearing, Moore J discharged previous parenting orders between the parties and ordered that N, born July 2000 and E, born September 2001 live with their father. At the date of trial the children were aged 9 and 7 years respectively.
Moore J also ordered that the father have sole parental responsibility for the children.
In respect of the mother’s future time with the children, her Honour ordered that the children have limited supervised time at a contact centre for a period of three months and various periods of time thereafter, without supervision.
The grounds of appeal raised a number of questions about the exercise of discretion in this matter including, should the judge have ordered the children to remain living with the mother as supported by the Department of Community Services (now the Department of Human Services) (“DOCS”), with an order for unsupervised time with the father prior to taking the radical step of removing the children from the mother.
From the separation of the parties in November 2001 until the delivery of judgment in May 2009, the children had primarily lived with the mother. The orders made by her Honour reversed that situation. The mother appeals from all the orders made by her Honour.
The father also filed an application in the appeal that the Court make an order under s 118 of the Family Law Act 1975 (Cth) (“the Act”) precluding the mother from bringing further proceedings. In part, the basis for the application was the variety of amendments to the Notices of Appeal and associated documents filed by the mother. We indicated we would deal with that issue as part of these reasons.
The mother asked that upon the appeal being allowed, orders made on 25 May 2009 be set aside, that the children live with her and she have sole parental responsibility for them. She sought orders that the father spend time with the children during each school term for two weekends from Saturday until Monday and then for various periods of time during school holidays.
The mother proposed that orders be made that the father communicate with the children twice each week by telephone and that they communicate with her in the same way whilst they were in the father’s care.
The mother proposed orders that the children attend for counselling for a period of not less than 12 months and that she attend a named psychiatrist and follow whatever recommendations and treatment were there prescribed.
The mother also sought restraining orders preventing the father from allowing the children from spending any time with his step-children to his current wife.
The Independent Children’s Lawyer supported the position of the father but urged that if we found that the trial judge’s discretion had miscarried, the matter should be remitted for re-hearing.
The Department of Community Services (now the Department of Human Services) (“DOCS”) had been an intervener in the proceedings and argued before the trial judge that the children should remain living with their mother upon the condition that she continue attending for treatment by her psychiatrist. The Department’s position in the appeal was that it did not wish to be heard on the appeal or in respect of any application filed in the appeal and that it would abide by an order of the Court.
The mother relied on four grounds of appeal:
1.The trial judge erred and acted upon wrong principle in determining that the mother of the children was:
(a)suffering from a mental illness and would continue to suffer from a mental illness;
and
(b)as such, determining that she represented a risk of harm to the children.
2.In the absence of any direct evidence on (sic) the psychological or emotional impact on the children of their removal from their mother’s care, her Honour erred and her discretion miscarried in making a determination that the best interests of the children, in being protected from psychological and emotional harm, would be best served by the removal of the children from the care of their mother.
3.Her Honour erred and her discretion miscarried in making orders which provided for the children to be removed from the care of their primary caregiver, the appellant, when parenting orders could have been made which addressed the concerns expressed by the trial Judge with regard to the capacity of the primary carer and properly had regard to the best interests of the children as the paramount consideration.
4.Her Honour erred and her discretion miscarried in making a determination and making a finding that the allegations of sexual abuse made by the mother were “groundless” … and/or were not “grounded in reality”… . The reasons for such error are that:
i.such findings were contrary to the weight of the evidence.
and
ii.if the resolution of allegations of sexual assault are “subservient and ancillary to the court’s determination of what is in the best interests of child” (M and M (1988) 166 CLR 69 at 76), in the circumstances of this case, the Court should not have been diverted by the need to arrive at a definitive conclusion on the allegations of sexual abuse. (original emphasis)

History

The parents are both qualified school teachers. They married in February 1998. Their first child was stillborn in June 1998. They lived for a time in Sydney before moving a year later to H, bought a home and obtained employment as teachers.
The parties separated in November 2001 when the father left the family home at which time, the children were aged 16 months and not quite two months respectively. The children remained with the mother and initially there was limited contact with the father. Both parties remained living in the H area.
In 2003, the father formed a relationship with his current partner Ms S. Ms S has three children, who at the time of trial were 17, 14 and 12. All of her three children but particularly the two elder children, featured prominently in sexual abuse allegations made by the mother which took up a significant part of the trial before her Honour.
After a variety of hearings of an interim nature, interim parenting orders were made by Bell J on 19 October 2005. The children were to live with the mother and spend time with the father. Final orders were made only four months later. It was the events in the period subsequent to these orders that gave rise to the second set of proceedings culminating in the hearing before the trial judge.
Because of the serious allegations raised in the second proceedings, the history of the parties after separation and the details of the 2005 and 2006 orders were all necessarily canvassed in the trial before her Honour. It is important therefore to look at that whole history. Much of that evidence was not controversial.
In October 2003, the father filed proceedings for parenting orders. A variety of orders followed in 2004, the thrust of which was that the father spend time with the children under supervision at a contact centre. It seems the reason for these orders was the limited time the father had spent with the children but also allegations of family violence made against him.
The first of two family reports was released in March 2005. The reporter Ms P’s first assessment included conclusions that the parties had feelings of mistrust, anger and hurt and the children were being adversely affected by the parental conflict. The reporter noted the mother had denied inappropriately discussing adult issues in front of the children but also believed in telling them “the truth” about their father. The father was assessed as having a good relationship with the children and it was noted that the mother had no objection to him having them overnight. The reporter recommended the children live with their mother and that contact progress to include overnight visits consistent with their ages and needs.
In August 2005, the solicitor for the mother wrote to the father saying that there were difficulties about contact. The letter raised concerns that N had said that the youngest of the S children “plays with our bottoms”. Further that the children had been chanting “Bum, bum, bum” and there were other instances of unspecified “inappropriate behaviour” by the children. The letter said that the mother would not be sending the children to the father unless he gave a written undertaking that the youngest S child would not be in the presence of the children and that the father be present at all times. An impasse arose because the father refused to sign any undertaking and the mother refused contact.
Also in August 2005, the mother made arrangements for the children to see a psychologist Ms D. Ms D produced a report to the mother. Her Honour was unclear as to why that was so. The report said that the mother noted a change in the children’s behaviour which included defiance, sexually explicit play, the naming of genital parts with crude names, simulated sexual intercourse in their play together and that the children played dangerously. The mother told Ms D about statements made by the children concerning the youngest S child which included that “[T] plays with my bottom. [T] plays with my titties and bum”.
Ms D concluded the children lacked social boundaries and as a result of an observation by the youngest child about a china cat, Ms D thought the child might have been exposed to sexual situations or sexually explicit material.
In September 2005, the mother was interviewed by DOCS for the first time. DOCS’s records noted that the mother said she had been told by Telstra workers that the father had bugged her phone; he had intimidated her; people in the street gave her strange looks; the children were defiant, angry and displayed inappropriate sexual behaviour; and one of the pictures that the youngest child had drawn at pre-school was of a penis ejaculating. The mother told DOCS she had not taken the children to a doctor or reported the matter because she did not want the Family Court proceedings to be dragged out. The report noted the alleged perpetrator of the sexual harm was the father’s “step-son”, one of the S children.
According to DOCS, upon interview, neither child made any disclosure of wrongdoing nor displayed any concerning behaviour but it was concluded that some of the children’s statements suggested adult influence. DOCS assessed the children were at risk of psychological harm by reason of the ongoing parental conflict but the mother’s allegations were unsubstantiated. Counselling was recommended and the file was closed.
On 19 October 2005, the matter came before Bell J and was set down for final hearing and another family report was ordered. Orders were made providing that the children live with their father on alternate weekends from after school on Friday until before school on Monday in one week and on the other week, on the Monday evening from the conclusion of school until 6.00pm which was to be extended to overnight at the start of the 2007 year. The orders also provided for the children to spend half of the holiday times with the father and for telephone contact during one evening per week. Bell J ordered the children have monthly visits to Ms D to assist in the preparation of a report. Importantly, an order required the father to be present during contact and supervise particularly one of the S children.
In a statement the mother made to police in late 2006, she referred to an incident she said occurred at the dinner table in the presence of her father in Christmas 2005. She said E picked up a sausage and repeated a number of times “suck my sausage” pushing the sausage in and out of her mouth, E identified this as a “game” of one of the S children.
In the same statement, the mother said that during a visit by her sister, E put the leg of a doll to her lips and made reference to “penis icky” on her lips.
In early February 2006, a second family report was prepared by Ms P. The father proposed that he have the children in his care on alternate weekends. He proposed that once E began school in 2007, on the basis that both parties were living in the H area, there be a shared week about arrangement. The mother proposed the children be in the father’s care on alternate weekends and for half of school holidays.
The family report writer said that the mother told her she had stopped contact after N said one of the S children had “played with their bottoms”. She said that after contact, the children were defiant and sexualized in their play and behaviour. The report writer made a variety of inquiries and opined that there was no evidence to suggest the children had been sexually abused. She said that the mother had a significant degree of anxiety and stress probably related to court proceedings and that had contributed to her interpreting the children’s statements and behaviour as indicating sexual abuse rather than being age-appropriate and in response to aspects of parenting.
The report concluded that the children were being negatively affected by exposure to the parental conflict, particularly through information coming from their mother and her questioning of them and her responses to them.
It was the report writer’s opinion that the mother displayed elements of paranoid thinking when talking about feeling discriminated against in the community, of not being served in shops, of not having her bins emptied, of her belief that the father was tapping her phone and bribing the children to tell lies.
On 28 February 2006, final orders were made by Jordan J at the request and consent of the parties. The father was to spend alternate weekends with the children from Friday through to Monday and each alternate Monday night for several hours. The usual holiday orders were made.
Notwithstanding the orders of Bell J only four months before that the children have monthly visits to Ms D, these new orders also provided that there was a restraint on the mother bringing the children into contact with Ms D in any professional capacity.
It is significant and unsurprising in view of the mother’s proposed orders and consent that the trial judge found in respect of this period:
Whatever else might be said of it in the circumstances to this point, obviously the mother’s proposal can be seen as inconsistent with any allegation that the father had sexually abused the children.
Her Honour specifically noted, unlike the orders of 19 October 2005 made by Bell J, there was nothing in the orders of 28 February 2006 obliging the father to be present with the children at all times or to supervise the youngest S child around the children. It is to be remembered that the mother consented to those orders.
In March 2006, the father and Ms S along with her children, began living together at H.
In June 2006, the father received a letter from the Department of Education and Training advising him that an allegation had been made that he exposed his penis to N, had massaged her around the vaginal area and exposed his daughters to pornographic magazines. This formed the basis for the mother to refuse contact. The father issued contravention proceedings and the mother was found to have contravened the order. Compensatory time was ordered for the forthcoming holiday period.
In September 2006, the father received a letter from the mother’s then solicitor making allegations that all three S children pulled down the pants of E when the father was not present. To this letter, the father responded that he rejected the accusations and said that if the mother had not reported the matter to DOCS, he would. As the father heard nothing further, he reported the matter to DOCS. In the meantime, the mother refused contact.

Despite the allegations, on 30 October 2006 in the Federal Magistrates Court, the mother was again found to have contravened the orders and an order was made for the resumption of contact between the father and the children and contact then resumed.
In her reasons for judgment, her Honour noted that in respect of the latter 2006 accusation, the mother raised it in various affidavits on four occasions but the accusations went much further than what had been set out in the September 2006 letter and included accusations of sexual abuse in precise detail. Her Honour noted that the mother had not reported the matter to DOCS or to the police but did take the children to a Dr LI. Her Honour found the mother failed to mention the visit to Dr LI when she swore an affidavit for the contravention proceedings in October.
Based on the various allegations, Dr LI took a history from the mother and swabs from the children. The mother was present when Dr LI interviewed the children. Her Honour said that the mother’s version of what the children said to Dr LI differed from what Dr LI wrote to paediatrician Dr BU to whom she referred the children for further examination. The mother said the children complained about the S children “putting sticks in our fannies” and that the father and Ms S were told about it and did not do anything. That was not in the referral letter from Dr LI to Dr BU. Her Honour observed that the referral letter was general in its terms which may have accounted for the differences.
Dr BU conducted an external examination of the children and found no evidence of sexual abuse.
On 15 November 2006, the mother’s then solicitor wrote a further letter to the father alleging that after contact, E had complained of pain when urinating and the mother had noticed her “private parts” were red. It said she sought medical treatment from Dr LI and that “certain specific disclosures of sexual abuse understood to be at the hands of your step-sons” were made. The letter mentioned that Dr LI had referred the children to Dr BU for “psychological and other medical assistance”. Her Honour noted that this was the first time that the father had been told of the consultation with Dr LI. There is significance in that having regard to the affidavit evidence in the contravention proceedings.
The mother again refused contact and in November 2006 there was another contravention application before the Federal Magistrates Court. On this occasion, allegations of sexual abuse were raised by the mother. It is unclear what findings were made but contact was to occur over the school holidays.
The mother said that in the school holiday period of January 2007 when the father had time with the children, further accusations were made to her by the children whilst she was speaking to them on the telephone. Those accusations included penetration by fingers and sticks perpetrated by the S children. The mother said she immediately spoke to the father who said it was “a heap of lies”.
Police and DOCS interviews followed these holidays and statements were made by the children about digital penetration and the games that were played. This led to a forensic medical examination.
On 2 February 2007 at the behest of a joint investigation team made up of DOCS, police and health professionals, the mother took the children for a genital examination by colposcope at a Child Sexual Assault Service. There, Dr G was given a brief outline of the allegations made by the children which included penetration of the vagina and/or anus with fingers and/or sticks. The mother’s version of this consultation was that Dr G told her that N’s hymen was torn and the tear was consistent with attempted penetration by a penis or like object. In her evidence, Dr G disagreed that she made the statement attributed to her by the mother. She said that at some unidentifiable stage, there had been a tear in the hymen which could have been explained by an object, a finger or a penis. Dr G agreed that the hymen deficiency could have been caused by penetration other than consistent with the history provided to her. (our emphasis)
Her Honour did not rely on Dr. G’s evidence and accepted the evidence of an alternate expert Dr MN, a consultant paediatrician at Sydney Children’s Hospital at Randwick. Dr MN’s evidence was not challenged. He set out the appropriate examination techniques. He raised doubts about Dr G’s techniques saying that she had not used any recognised technique to confirm her finding. Dr MN opined that the finding of Dr G was unreliable from a diagnostic point of view.
Subsequent to the examination by Dr G, the mother said she had a conversation with the children in which N reported that one of the incidents that occurred was that the youngest S child penetrated E and there was lots of blood as a result of which the child was bathed. According to the mother, the child reported that the father came into the bathroom and turned the taps off and got really angry. All of this was denied by the father.
On 19 February 2007, the mother left the H area with the children. She had removed them from school without notifying anyone and driven to Sydney.
The mother then stayed in women’s refuges before moving to her father’s home in mid-April 2007. During that period of time, she assumed a false name and gave the children false names under which they were enrolled at school. The father did not see the children for a long period.
Her Honour was told of various observations by people around this time as to the mother’s bizarre behaviour including in a refuge where workers contacted police because of the mother’s behaviour. This led to a psychiatric examination of the mother by Dr F who advised that there was no perceptual disturbance and no delusions.
Only days later, the mother saw another psychiatrist, Dr A, who found that the mother was confident and that she had the capacity to provide a safe and stable home for the children. He had no concerns.
On 18 April 2007, the mother filed an application seeking to vary the February 2006 orders and limit the father’s contact to supervised periods.
On 18 September 2007, the father filed a response seeking that the children live with him.
In September 2007, interim orders were made for the father to resume his contact with the children under a supervised arrangement at the contact centre for each day of one weekend per month. However, orders were also made for the mother to be restrained from taking the children to sexual assault counselling.
Orders were then made for psychiatrist Dr R to prepare a report for the final hearing of the matter.
In his report, Dr R concluded that there were no concerns about the father, his partner or her three children. On the other hand, Dr R concluded the mother was probably psychotic and her behaviour was consistent with the gradual onset of mental illness. He concluded that she urgently required psychiatric treatment and suggested that her parenting should be monitored by the Department. In relation to the children, he did not observe any evidence of any psychiatric disorder and there were good interactions with the father.
Dr R saw no reason for supervision of the father’s time with the children. He said consideration might be given to the children going to live with the father if the mother continued to conduct herself to the detriment of the children which he described as moving the children to a different area with disruption to their schooling and their relationships with their father and his family.
The release of the R report meant that it was also provided to DOCS who then reviewed the assessment of risk of harm to the children in the care of their mother. An interview eventually occurred with the children at school and DOCS referred the mother to general counselling but took no further steps pending the final hearing.
The mother then returned to psychiatrist Dr F who provided a report in which the mother again outlined the sexual abuse allegations and nominated the S children as the culprits. The psychiatrist said that if there was no evidence to support the allegations, a case could be made for the existence of a delusion.
Dr R concluded that the sexual abuse described by the children was unlikely. That opinion was based on interviews with key people including the children. He thought it was possible that some aspects of the disclosures had arisen out of interactions between the mother and the children. Some of them may have come from the description of the games played by the children.
Dr R explained that it was very difficult to work with patients suffering from the condition that he had diagnosed because they were not very forthcoming and tended to minimise the problems unless they came into conflict with other persons or the law.
Dr R explained the findings of the other two psychiatrists of the wife on the basis that people with a delusional disorder often presented and functioned well and unless the specific area of delusion was discussed and traversed, the delusion could be missed.
Dr R opined that if the mother were to convey a negative attitude to the girls about spending time with their father, no amount of counselling would undo that. He described the situation that if the children were having unsupervised time with their father at his home whilst living with their mother at the same time, it was an almost untenable situation.
Dr R said that if the children were to live with their father there would be great cost to them, but he said that children coped and in this case, the children had previously coped with moving towns. He acknowledged that such a move would be very stressful and that the children would be protective and worried about their mother but that contact with her would ease the worry. To avoid that, he suggested supervised contact because the mother’s anxiety might affect the interaction with the girls. All of this was underpinned by the mother needing to have treatment.
It is to be noted that even in the earlier part of the proceedings, issues were raised by the mother about sexualized behaviour by N in the contact centre which was not observed by the centre’s workers.
In November 2008 at trial the mother tendered to her Honour a handwritten letter in which she indicated support for the development of the children’s relationship with their father if the Court ordered unsupervised time and also that if the Court ordered she undergo psychiatric treatment, she would do so. However, she said the reintroduction of contact between the children and the S children should be conditional upon it being under the guidance of a therapist as nominated by the Court and in a graduated fashion. Her position about the children having been sexually assaulted and at ongoing risk was clear.

REASONS FOR JUDGMENT

In addition to the expert evidence and the evidence of the parties her Honour considered non medical evidence including evidence of the principal of the school attended by the children. In her judgment, the trial judge considered and referred to the evidence of the principal of the school attended by the children in which there were no concerns expressed about their behaviour or welfare.
Her Honour considered evidence of other witnesses called by the mother who attested to having heard the children making statements about sexualised behaviour of the S children. That evidence was otherwise favourable to the mother as apparent, however in the end her Honour gave it no weight.
Her Honour noted that the focus in the trial was on the allegations of sexual abuse. Her Honour referred to M v M (1988) 166 CLR 69 at 77 and to the decision of this Court in W v W [Abuse allegations: unacceptable risk] (2006) FLR 129. Her Honour identified the relevant standard of proof in s 140 of the Evidence Act 1995 (Cth) and said that the issue of sexual abuse allegations fell within s 140(2)(b) and (c) of the Evidence Act 1995 (Cth). No criticism was made of her Honour’s approach to the standard of proof.
Her Honour assessed the father as meticulous and thorough and that he attempted to be accurate in giving evidence. Her Honour found him to be a reliable witness.
The trial judge was also impressed by the father’s partner as a balanced and responsible person.
Her Honour in considering the evidence of the mother found that whilst it was apparent she had fulfilled her responsibilities to the children in terms of their progress at school and continued social development, there had been significant failings. It was those failings that gave rise to an unacceptable risk in the mother’s care. The inconsistencies in the mother’s reporting of events could not be written off as inconsequential and there was no avoiding the observation that in some instances, her evidence was inherently unbelievable and/or highly improbable. Her Honour found the mother not a reliable reporter of facts. An example is the period up to the 2006 final orders. Her Honour noted that the information the mother gave DOCS in 2005 was markedly different from the information that she had given Ms D. The allegations of sexual abuse detailed to DOCS were not mentioned to Ms D nor to the father. Despite the allegations of sexual abuse to DOCS, her Honour noted that the mother had not taken the children for any medical examination.
Her Honour said it was curious that the mother had alleged that the father had exposed one of the children to pornography in 2002 but had not mentioned that in the family report interview in March 2005.
The trial judge found that the mother’s police statement threw up anomalies and omissions compared with the information given to psychologist Ms D, the information given to DOCS and the August 2005 letter sent to the father by her practitioner.
Her Honour observed that it was “nothing short of remarkable” that the behaviour was not mentioned in the August letter to the father at a point in time when contact was to be withheld unless the father gave undertakings to be present and supervise the youngest S child. Similarly, her Honour noted that no description of the alleged sexually explicit behaviour and language was given to DOCS at that time.
The trial judge found that in respect of the assessment of Ms D that the children had been exposed to sexual situations, no “right minded analysis of the exercise she undertook” could see the opinions as being soundly based.
We have already referred to her Honour’s observations about the mother’s position in late 2005 being inconsistent with her consent to the February 2006 orders. Her Honour then looked at the events after those orders.
Her Honour said that the mother’s account of the children’s statements carried with it the implicit proposition that the father had been complicit in the sexual abuse of the children by the S children and so too had Ms S. Her Honour rejected that proposition.
Her Honour referred to the fact that the mother had consistently failed to report the children’s statements to authorities and made particular reference to the incident involving the blood in the bath episode. The mother was not cooperative with investigators and her Honour found that it was inexplicable that the mother would withhold that sort of information. Her Honour said that there was no satisfactory explanation why that occurred.
Her Honour noted the observation of Dr R that over time the allegations escalated in content and the class of perpetrator expanded. Her Honour referred to the list of incidents and nominated perpetrators between August 2005 and December 2006 prepared by the Independent Children’s Lawyer. As Dr R noted, it was possible this escalation arose out of the interaction between the mother and the children in discussion. Her Honour noted the many and varied statements of the children but questioned the reliability of them using as an example, the 6 year old child saying she had been raped. The child had not seen her father for months and then only in a supervised setting for nine months or thereabouts. The child told the interviewer that apart from forgetting about it, her mother had told her.
Her Honour found that had abuse actually been occurring by the S children, the father would not have tolerated the abuse or anything near it without taking action to prevent it. It was said by the trial judge:
For the statements of the children to have validly described their treatment there would have to be acceptance of the proposition that the father, Ms [S] and the boys’ maternal grandmother were complicit in or turned a blind eye to the behaviour. This is rejected as wrong and fanciful. Without question the father is not a person to tolerate the sort of behaviour described or anything near it.
Furthermore, the possibility of the father being absent whilst incidents occurred was found by her Honour to be completely improbable. She noted that unlike the mother, the father was a responsible person who had taken every possible step to bring the allegations to the attention of the authorities in a timely way. Her Honour said that all of his actions were completely at odds with any guilt about any wrongdoing or any attempt to hide wrongdoing by the S children.
Her Honour found that the indicators of abuse were unreliable, contaminated by adult influences, illogical and that whatever weight could be attached to them was overwhelmed by a raft of contra-indicators.
Her Honour turned to the medical evidence and accepted the unchallenged evidence of Dr MN. She found that the evidence did not prove sexual abuse had occurred nor that it had not occurred. Her Honour found that it took the matter no further.
Her Honour then turned to the mother’s mental health. As already mentioned, the trial judge found there was no acknowledgment by the mother of any problem with her functioning or mental health, a view shared by the mother’s sister and father. The mother’s sister disagreed with Dr R’s comments, the sister being a psychiatric nurse. Her Honour accepted as more reliable, the independent evidence of Dr R and the family report writer who in February 2006 expressed concerns about the mother’s mental health and behaviour.
Her Honour noted the mother’s family as witnesses to have been well motivated but none of them addressed the state of the mother’s functioning.
Her Honour dismissed the opinion of the mother’s psychiatrists as being too limited an assessment.
Dr R had been provided with further documents at the time of the hearing which included all of the documents filed by the parties, various correspondence involving the Independent Children’s Lawyer and departmental records including the records of the Education Department. The trial judge marked those as an exhibit for identification purposes remarking that parties could tender from the bundle those documents that they wished included as evidence. None of the material he had read had prompted Dr R to change the opinions he had earlier given. He said that the mother could continue to care for the children reasonably but her illness would continue to affect the children’s relationship with their father. He said she would be anxious about any arrangement for the children to have unsupervised time with their father.
Her Honour found the allegations of sexual abuse of the children were “groundless”. Her Honour cited M v M (supra) and clearly understood that she was not required to make a positive finding that abuse had or had not occurred. Her Honour said however that as a result of the evidence, she was clearly satisfied that no abuse had been perpetrated either by the father or by two of the S children. Having made out that finding she found there was no unacceptable risk of harm to the children or harm of sexual abuse to the children by their father or the S children.
In relation to the benefit of the children having a meaningful relationship with both parents, her Honour said that the ability of the parents to facilitate that in the future was a key issue.

In relation to the need to protect the children from harm, her Honour said she was satisfied the children had not been and would not be at risk in the father’s care but she was not satisfied that they had not been at risk of harm in the mother’s care. Her Honour then went on to say:
… there are substantial concerns they will remain at risk of harm while they are in the mother’s care. That risk relates to their exposure to their mother’s actions when her functioning has been impaired, her lack of insight into the needs to address her mental health by seeking treatment and maintaining treatment consistently, the restricted and limited relationship they would be permitted with their father while in her care, and the children taking with them into the future the idea they have been the victims of sexual abuse and they are unsafe in their father’s care.
Her Honour then said:
That reality is their mother’s but no basis in fact and there is not apparent any motivation by the mother to examine the situation from any point of view but her own and no encouragement to do so from those close to her. This does present a risk of harm to the psychological and emotional welfare of the children and its magnitude is unacceptable.
Her Honour noted the young ages of the children and was very conscious that there would be difficulties in the transition to their father if she decided to make an order placing the children in his care.
The children were described as having a good relationship with their mother and were closely attached to her. There was a relationship with their father and Dr R had observed that the children could settle with him and interact normally.
Her Honour found that there was a long history demonstrating that the mother was unable or unwilling to support a relationship between the children and their father motivated by concerns about their safety but that that concern was without substance. Her Honour found there was nothing to indicate any change was likely.
As for parental capacity, her Honour noted the changing of the children’s names and the sudden leaving of H. Her Honour found that the mental health and level of functioning had impacted on the mother’s capacity to meet the emotional and psychological needs of the children which had profound consequences for the children’s views of themselves, their identification with a history that was not grounded in reality. Her Honour noted that the children would grow up seeing their father through the prism of their mother’s reality and not their own experiences and there was a risk that the relationship with their father would be jeopardised by a hardening of their views against him. Her Honour had no concerns about the father’s capability to care for the children.
A change for the children to live with their father was seen by her Honour as likely to greatly affect them. Their father was untested in a full time caring role and her Honour was not able to say what reaction they would have to the S children. Her Honour did not underestimate the undoubted upset and distress for the children. Matched against that however was the mother’s proposal which required supervision by the father’s family the practicability of which was questionable. Her Honour was concerned however that such an arrangement would inevitably convey the message to the children that they continued to be unsafe in their father’s care.
Her Honour observed that she had little confidence there was going to be any change in the attitude of the mother referring specifically to the incident at the contact centre during the life of the proceedings where the mother sought to link the father’s contact with the children to sexualised behaviour. Her Honour was concerned that even as late as closing submissions, there was no recognition by the mother of a need to address professional assistance to assist her functioning and focus on the issue of the children’s safety. Thus, the mother’s proposal was unlikely to bring about change for the children. In addition, her Honour was concerned that such a proposal would lead to further allegations.
Given that the mother had chosen to move from the area where the family had previously lived, her Honour dealt with the practical difficulty and expense of the children spending time with their mother noting that the mother chose her living arrangements.
Although this was not an issue argued on the appeal, her Honour noted that there was nothing in the evidence that would give her any confidence that the parents could cooperatively parent and communicate about decisions relating to the children’s upbringing. As such, equal shared parental responsibility was found to be impractical leaving the only solution open which was to have the parent with whom the children live, have sole parental responsibility.
Her Honour contemplated what she described as a powerful consideration, the children remaining in their mother’s care. A change was therefore very significant. There were significant drawbacks according to her Honour which would affect important aspects of the welfare and development of the children because the mother was unwilling or unable to facilitate their relationship with their father.
In her Honour’s view, this was not a position driven by malicious intent but rather a result of the mother’s impaired functioning as assessed by Dr R. In that setting, her Honour said:
Impaired functioning or episodes of paranoia are not of themselves problematic necessarily; many with such mental illness could fulfil their parental responsibilities quite adequately, possibly with support and monitoring from those around them. But here the mother’s difficulties do have serious consequences for the children. There is little prospect of the children being able to develop or further their relationship with their father so as to render it anywhere approaching ‘meaningful’ while ever the mother maintains her attitude towards him or her view that the children are unsafe in his care. …

Relevant Law

Each of the grounds of appeal asserts an inappropriate exercise of discretion by the trial judge. It is appropriate to recall the principles that govern an appeal from a discretionary judgment.
In House v The King (1936) 55 CLR 499 the High Court said at 504-505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The words of Stephen J in Gronow v Gronow (1979) 144 CLR 513, at 519-20 are apposite in the circumstances of this appeal. His Honour there said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472 (at 479) Brennan, Gaudron and McHugh JJ observed:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”.

Grounds of Appeal

Counsel for the mother dealt with ground 4 first followed by the others. It is convenient for us to deal with them the same way.

Ground 4

Ground 4 is divided into two parts. Dealing with the first part, counsel argued that her Honour erred and that her discretion miscarried in the finding that the allegations of sexual abuse were “groundless”. It was submitted that her Honour should have found there was an unacceptable risk of abuse by the step-children even if there was insufficient material to find that any sexual abuse had occurred. It was submitted that there was an unacceptable risk of harm to these children by the step-children if they were left in the father’s care. (our emphasis)
It was not suggested that her Honour did not weigh up the evidence, but rather, that she did not give particular evidence sufficient weight given the consistency of the children’s disclosures to a variety of adults. It was submitted that the findings should have led to an unacceptable risk because the children told the same story. As such, it was submitted that to find the disclosures unfounded, was illogical. Counsel submitted that her Honour should have considered whether the allegations were made up and whether they were within the developmental scope of the children.
The Independent Children’s Lawyer submitted that there was evidence that the mother’s parenting was adversely affected by mental illness and that in respect of the allegations of sexual abuse, her Honour weighed and assessed the competing evidence. It was submitted that her Honour identified the best interests of the children as the paramount consideration, balanced the evidence and proceeded to a consideration of the best interests of the children in the light of the s 60CC factors.
The father’s submission was that the weight of the evidence against the claims of sexual abuse was overwhelming.
It can be seen from the detail provided in the judgment that her Honour looked at the chronology of events very carefully. Her Honour traversed the period subsequent to separation and leading up to the consent orders in 2006 and noted that nothing had changed in terms of the behaviour of the mother in respect of sexual abuse allegations, save that they had escalated as time went by.
As mentioned earlier, her Honour was critical of the inconsistent behaviour of the mother and in particular, her evidence being unsupported by her own sister and father.
There was an enormous amount of evidence placed before her Honour of events that occurred over a number of years all of which were subjected to scrutiny by various authorities and health professionals. The children were interviewed and examined.
Her Honour noted the concerns expressed in the family report and the expert evidence of Dr R. This evidence assisted her Honour to put into context the probability or otherwise of sexual abuse having occurred.
Her Honour was aware that the S children were interviewed by authorities and professionals and that was considered against the father’s evidence. Her Honour was therefore in a position to consider the question of the opportunity for the events as alleged, to have occurred. Her Honour specifically referred to the incident involving the allegation of sexual penetration and the bath incident which were not reported by the mother when allegedly drawn to her attention by the children.
In relation to counsel for the mother’s submissions, at both trial and on appeal, about the consistency of the children’s allegations, her Honour did record that it was conceivable that the disclosures were made to the mother but clearly found there was no basis for them in reality. An example of that was the incident in relation to the blood in the bath. Her Honour clearly found that as time went by these disclosures which arose out of discussions with the mother, became more extensive.
It was not argued by counsel for the mother on the appeal that all of these disclosures should have been accepted, but rather, that not all of them should have been discarded.
In our view, the findings of her Honour were well open to her on the evidence and were supported by comprehensive findings including the state of the mother’s mental health.
The second aspect of ground 4 was that the trial judge should not have been diverted by the need to arrive at a definitive conclusion about the allegations of sexual abuse. Nothing in her Honour’s judgment indicates that she was diverted by that course.
In M v M (supra) at 76, the High Court said:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-foundered. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access.
Nothing said by the High Court precludes a court from making such a finding if the evidence leads to that conclusion. Having regard to the findings of fact made by her Honour, she was left in little doubt that she was able to make the finding that the alleged incidents of sexual abuse did not occur. In our view, there is no merit in ground 4.

Ground 1

Ground 1 relates to the finding by the trial judge that the mother was suffering a mental illness, would continue to do so and as such, represented a risk of harm to the children.
Counsel for the mother submitted that in relation to the principle of unacceptable risk, the Court had a duty to apply a rigorous standard of proof and that a determination that a parent suffered from a mental illness was a determination of grave and significant circumstances.
It was argued by counsel for the mother that the trial judge had uncritically accepted the evidence of Dr R in circumstances where he had not been requested to undertake any inquiry or diagnosis about the mother’s mental illness and by accepting that evidence, her Honour fell into error because the opinions were unreliable. It was argued that the opinions were based upon material that could not be tested, and that there were hearsay reports as to the mother’s behaviour and therefore that the conclusive opinion was unsafe.
The Independent Children’s Lawyer pointed to the fact that no objection had been made by the mother to Dr R’s report being admitted into evidence nor to his oral evidence. No person challenged his expertise.
Counsel for the Independent Children’s Lawyer pointed to the fact that Dr R relied on various materials produced under subpoena so to that extent, any criticism of his opinion being ill-founded, had no basis.
The father drew attention to the various parts of the evidence but ultimately submitted that the trial judge had the evidence before her and that Dr R had provided the “only coherent explanation for the false allegations”.
Dr R was called as an expert as were the mother’s own psychiatrists. The question is whether or not her Honour was entitled to prefer one opinion over the others when those opinions differed.
In Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 (“Makita”), Heydon JA (with whom Priestly JA and Powell JA agreed) said:
… The prime duty of experts in giving opinion evidence is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions. … (at 729).
and:
… The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert. (per Lord President Cooper in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40, within Makita at 729-730).
and:
Underlying these observations is an assumption that the trier of fact must arrive at an independent assessment of the opinions and their value, and that this cannot be done unless their basis is explained. (at 733).
Dr R’s expertise was not challenged and nothing to which we have been referred established that any of the psychiatrists lacked the expertise to give the evidence that they gave. The trial judge weighed up those opinions and formed the conclusion as she was required to do, as to which she accepted. We find no error in her Honour’s findings to which we will make further reference.
The evidence of the mother’s behaviour which her counsel on appeal described as “bizarre” included that she believed she was being persecuted, watched and not served in shops. Her Honour made reference to a note being left on the mother’s windscreen of the car.
All of this evidence was unrelated to the statements relating to sexual abuse. Her Honour did not find that the mother was delusional because of the sexual abuse allegations alone.
Her Honour well explained why she accepted the evidence of Dr R as opposed to the mother’s family members:
136.There is no acknowledgement by the mother of any problem with her functioning or mental health and nor is there any view to that effect from her sister or her father:
(i)Her sister, a psychiatric nurse, made no comment about her mental health in her affidavit evidence. At the hearing she commented that when life had been difficult for her sister she had worried how she was managing. She disagreed the mother was paranoid. She strongly disagreed with Dr [R’s] comment that the mother is most probably psychotic. She says she would have been concerned in that event that the mother required mental health treatment and she would have ensured it occurred. But Dr [R] reports her saying her sister ‘worn down by Mr [Hayes] having an affair and by the court proceedings…she is more tired and feels that the system is ‘run by men’, she makes friends less easily, is more cautious and less trusting. However, she has taken up horse riding and she looks after housework.’
(ii)Nor does her father refer to her mental health in his affidavit. At the hearing he was taken to the time the mother was at the refuge. He said her mental health was satisfactory at the time though she was anxious, she had been on edge about break-ins but had been stable in her approach to life. When he saw her in April 2007 she was nervous, excited and agitated and very security conscious but that had settled. He said he had explained to the community she was staying with him because of ‘being harassed by a bastard up on the coast.’
137.However, the more reliable independent evidence is contrary to these views. From as early as February 2006 the Family Report writer was expressing concerns about the mother’s mental health and behaviour – for example, speaking in an off manner about the drawing of a flower representing a penis, in hushed tones that she did not believe it was the father’s penis outlining examples of paranoid thinking about the father’s influence in the community. The following year there was not only the mother’s account of her departure from [H] and the note attached to her windscreen, to reappear by photocopy further down the highway, but there were records created by separate and several independent sources describing aspects of the mother’s behaviour. By that I refer to the workers at the regional refuge, at the Sydney refuge and the police records of her reports of break-ins in the short time she was at [U].

In so far as it is asserted that her Honour acted on the wrong principle to determine the risk of harm to the children because of the finding in relation to the mental illness, it is timely to remember that her Honour set out clearly the standard of proof upon which she was determining the matter with particular reference to s 140(2) of the Evidence Act 1995 (Cth).
Importantly, at paragraph 146 of the reasons for judgment, her Honour referred to the risk to the children relating to the exposure to their mother’s actions when her functioning was impaired but also her lack of insight into the need to address her mental health by seeking treatment. Further, having accepted the evidence of Dr R about a delusional disorder, her Honour found the mother had no insight into the disorder and a lack of motivation to undertake recommended treatment. Her Honour went further and said that the mother maintained a denial of symptoms all of which had been used by Dr R as the basis for the diagnosis. The observations about the mother’s symptoms relied upon by Dr R came from independent sources.
In our view, her Honour was justified on the evidence in making the finding that she did both as to the mother’s mental illness (present and future) but also the risk to the children that flowed from that diagnosis.
There is no merit in ground 1 of the appeal.

Grounds 2 and 3

Grounds 2 and 3 really assert error in removing the children from the care of the mother in the absence of any direct evidence of the psychological or emotional impact on the children of their removal.
Counsel for the mother submitted that different parenting orders could have been made to address the concerns expressed by the trial judge. She argued that there was no evidence that the mother actively undermined the children’s relationship with the father and his family but rather it was an opinion by Dr R based on a general assumption that if the children were not seeing him, their relationship was being undermined. It was argued that no specific opinion was expressed how the children were harmed by the actions of the mother. Counsel pointed to Dr R’s statement that the only basis to have the children going to live with the father was if the mother continued to behave to the detriment of the children. It was submitted that no-one in the trial had put to the mother that she was not prepared to abide by orders to engage in psychiatric treatment or supervision by DOCS if orders were made to that effect.
It was submitted by counsel for the mother that the Court was bound to consider the position of DOCS at trial which was that the children should remain with the mother subject to supervision.
Counsel for the Independent Children’s Lawyer submitted that the trial judge identified the risks, noting that the proposed orders of the mother and DOCS compelled her Honour to consider whether the children should remain with the mother. It was submitted that her Honour was not satisfied that orders such as those proposed by the mother and DOCS could ameliorate the unacceptable risk that she had determined the mother posed for the children.
The father described the third ground of the appeal as contradictory. His argument did not advance the matter any further.
Grounds 2 and 3 cover two issues. The first is whether or not there was sufficient evidence for her Honour to be satisfied that removal of the children from the mother was appropriate but the second issue is whether her Honour considered the impact on the children of being removed from their mother.
For reasons earlier set out, in our view, there was ample evidence upon which her Honour could find that there was an unacceptable risk to the children in remaining in the care of the mother. Her Honour rejected the proposals of the mother and also of DOCS, as “impracticable” (paragraph 164-166).
Her Honour was very much aware of the difficulties associated with a transition to the father. She canvassed (paragraph 162-163) that there would be difficulty in the transition. Her Honour noted the good relationship between the father and the children and the fact that they were moving back to an area at H from which they had been taken by the mother in 2007. The mother had no doubt that the father would ensure that the ongoing relationship of the mother continued with the children which is not something that she found in respect of the reverse.
In our view, her Honour very carefully considered the impact of the change upon the children and balanced that up against the children remaining with their mother. In our view that was a proper exercise of discretion and there was evidence to support it to which we have referred above. Accordingly, grounds 2 and 3 must fail.

Conclusion

In summary, her Honour carefully considered all of the relevant matters contained in s 60CC of the Act including the issues about family violence which her Honour found were no longer contemporary and were not relevant to the proceedings.
The decision for her Honour was not an easy one. She balanced all the considerations as required under the Act and found that it was necessary to place the children in the father’s care. The trial judge found there was no risk of harm in that course and she was satisfied that the father would support the children’s relationship with their mother and ensure regular communication and time. That in turn would facilitate the meaningful relationship between the children and their mother. Her Honour found that the father could provide stability and the children were returning to an environment from which they had previously left. The father’s care was therefore likely to have a more rounded and balanced development unburdened by the psychological harm that would continue if the children remained in the mother’s care.
As each of the grounds failed, the appeal must be dismissed.

The father’s application

In his application in an appeal filed 4 February 2010, the father sought an order that the mother be “viewed” as and be declared a “vexatious litigant” and be restrained from making a further application to the Family Court of Australia for 10 years.
Very little attention was paid to this issue in the appeal but we indicated that we would deal with it at the end. For reasons which follow, we do not need to hear from the other parties any further because we propose to dismiss the application.
The evidence that the father relied upon in support of the application was an affidavit filed 4 February 2010. In that affidavit, the father referred to s 6 of the Vexatious Proceedings Act 2008, which is a State Act. No reference was made to s 118 of the Family Law Act 1975 (Cth).
The father quoted from the Vexatious Proceedings Act 2008 and complained that the mother had filed three Notices of Appeal and at that stage, was indicating that there would be a fourth. All of this, according to the father, had delayed proceedings and caused expense to all parties. The father said that he had satisfied all of the requirements of the orders of the Court. He chose the 10 year period referred to in his application as the time at which the youngest of the children would be 18 years of age. He said that the parties had been before the Court since October 2003 and there were two sets of final orders but now the appeal was stretching into the coming year. He said this was not reasonable. He then made reference to the fact that he believed matters could be brought by the children on their own behalf when they were of an age.
To the extent that the application seeks an order under s 118 of the Act, the father must establish to the satisfaction of this Court that the proceedings (being the appeal proceedings) were frivolous or vexatious. Those words have been defined in the explanatory guide to the Family Law Rules 2004. “Frivolous” is defined as being not worthy of serious consideration, insupportable in law, disclosing no cause of action or groundless. That could not be the case here.
“Vexatious” in relation to an application is defined as meaning having no reasonable prospect of success. In this case, the mother’s argument was really only finally contained in the summary of argument when drawn by her counsel and filed on her behalf. That document was not in the possession of the father in February 2010. Whilst he might rightly have complained about the disorganised way in which the mother went about her preparation for the appeal, she ultimately argued that the trial judge’s determination was unsupported by the evidence. There was an arguable case, albeit a difficult one, having regard to the authorities that we set our earlier. It could not be said therefore that there were no reasonable prospects of success.
Section 118 is directed towards those parties who use the court process as a form of abuse of other parties to the litigation but also waste an enormous amount of valuable court resources and time. As Mason CJ said in Rogers v R (1994) HCA 42; (1994) 181 CLR 251 at 255, the concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object. His Honour said that the circumstances in which abusive process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories.
In our view, however frustrated the father may have been, the determination of the appeal will bring an end to this litigation. Accordingly, the father’s application in the appeal is dismissed.

Costs

At the conclusion of the appeal, we invited the parties to indicate their attitude to any possible applications for costs. The mother said that if she was successful, she would seek a certificate but otherwise would prefer to rely upon written submissions.
The father’s position was that he would seek costs if successful on the basis that he had incurred expenses.
The Independent Children’s Lawyer’s position was that if the appeal was unsuccessful, costs would be sought against the mother because of the filing of the four varying Notices of Appeal and the additional directions hearings that were consequently required.
Accordingly, we made orders for the filing by the husband of a schedule of disbursements and for the mother to file a financial statement. The mother filed an affidavit on 9 June 2010 which was within time of the requirements of our order of 19 May. The father filed a schedule of disbursements on 2 June 2010 as was required. The father sought $1,090.90 made up of travelling expenses of $688.00 and photocopying and mailing expenses of $402.90.
Section 117 of the Act provides that each party shall bear their own costs. However s 117(2) permits a court to make an order, subject to the consideration of s 117(2A) if the circumstances justify it doing so. Costs may include expenses (see Casley & Casley [2010] FamCAFC 189). In this case however, we see no justifying circumstances and would not make any order favouring the father.
There is also an application by the Independent Children’s Lawyer against the mother for costs. It was the mother’s position that if she was unsuccessful, she desired to file written submissions. As we do not know what costs are pursued by the Independent Children’s Lawyer against the mother, we propose to make orders that the Independent Children’s Lawyer set out in precise details what orders are sought, such document to be filed within 21 days and for the mother to have a right of reply by written submissions within 14 days thereafter.

I certify that the preceding One Hundred and Sixty Six (166) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Cronin JJ) delivered on 31 March 2011

Associate:

Date: 31 March 2011