Sullivan and Tyler & Anor
[2016] FamCAFC 86
•26 May 2016
FAMILY COURT OF AUSTRALIA
| SULLIVAN & TYLER AND ANOR | [2016] FamCAFC 86 |
| FAMILY LAW – APPEAL – CHILDREN – Credibility – Expert Evidence – Procedural Fairness – Adequacy of Reasons – Where there is no merit in any of the appellant’s grounds of appeal – Appeal dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the evidence is controversial – Where the evidence would not demonstrate that the order under appeal is erroneous – Where the evidence would not have produced a different result if it had been available at trial – Where there is no basis for admitting the evidence – Application dismissed. FAMILY LAW – COSTS – Where the appeal has been wholly unsuccessful – Costs awarded. |
| Evidence Act 1995 (Cth) – ss 56, 76, 79 Family Law Rules 2004 (Cth) – Chapter 15, r 21.16(1) |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983) |
| APPELLANT: | Ms Sullivan |
| RESPONDENT: | Mr Tyler |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Christaki |
| FILE NUMBER: | SYC | 889 | of | 2008 |
| APPEAL NUMBER: | EA | 47 | of | 2014 |
| DATE DELIVERED: | 26 May 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Strickland & Austin JJ |
| HEARING DATES: | 14, 15 & 16 September 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 March 2014 |
| LOWER COURT MNC: | [2014] FamCA 178 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Holmes |
| SOLICITOR FOR THE RESPONDENT: | KD Holmes Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Berry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid New South Wales |
Orders
The applications in an appeal filed by the appellant on 20 May 2015 and 13 July 2015 be dismissed.
The application in an appeal filed by the appellant on 9 September 2015 be dismissed save and except to the extent that this court allowed a corrected version of the appellant’s analysis of the report of Dr W dated 3 April 2008 to be tendered.
The appeal be dismissed.
The appellant pay the costs of the respondent of and incidental to the appeal, such costs to be as assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler has been approved by the Chief Justice 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 47 of 2014
File Number: SYC 889 of 2008
| Ms Sullivan |
Appellant
And
| Mr Tyler |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 1 May 2015, Ms Sullivan (“the mother”) appeals against the parenting orders made by Justice Watts on 26 March 2014. The appeal is opposed by Mr Tyler (“the father”) and by the Independent Children’s Lawyer (“ICL”).
In summary, the orders relevantly provided that all previous parenting orders be discharged; that the father have sole parental responsibility for the child D (“the child”); that the child live with the father; that the child spend no time with the mother; that the mother and child may communicate by electronic means; that the mother and/or her agents be restrained from removing the child from Australia; and that the child’s name be placed on the All Airports Watch List.
The mother also purports to appeal against the “secondary [ancillary] orders” made by his Honour on 26 March 2014. What that relates to is that on the same day as his Honour delivered his principal reasons for judgment, he delivered separate secondary reasons for judgment in relation to rulings he had made during the course of the trial on various interim applications and objections. Thus, there were no “secondary [ancillary] orders” made by his Honour on 26 March 2014 which could be the subject of an appeal. However, it is apparent that one or more of the grounds of appeal against the orders that were made on 26 March 2014 (for example, Grounds 3 and perhaps 4) raise issues which are not only addressed by his Honour in the primary reasons for judgment, but are also touched on in the separate secondary reasons for judgment. Thus, we will consider those reasons to the extent necessary.
By application in an appeal and supporting affidavit filed on 20 May 2015 the mother seeks leave to amend references in her amended summary of argument filed on 7 May 2015 and her document titled “Annexures” presented for filing on 17 March 2015 (but not accepted for filing). As for the first issue, at the hearing of the appeal we received a document headed “Corrections to 7 May 2015 Amended Summary of Argument”, and marked it Exhibit “A”. As for the document titled “Annexures”, on 30 April 2015 a differently constituted Full Court in effect refused the mother leave to file and rely on that document. Thus, this application can be dismissed.
By application in an appeal and supporting affidavit filed 13 July 2015 the mother sought that the appeal be expedited and heard on an urgent basis, and that the father be placed on the airport watch list until the child attains the age of 18 years. As the appeal has now been heard by the Full Court, it is unnecessary to consider the first of these orders, and the further order sought is not an order that we would, or indeed can make, in the context of an application in an appeal. Thus, this application must also be dismissed.
By application in an appeal and supporting affidavit filed on 9 September 2015 the mother seeks leave to adduce further evidence. This application was opposed by the father and the ICL, and we will address it later in these reasons.
Background & Procedural History
The father was born in 1953 and was aged 60 years at trial.
The mother was born in 1962 and was aged 51 years at trial.
The parties commenced cohabitation in August 2003 and married in 2004.
The child was born in 2004 and was aged nine years at trial.
On 6 December 2007 the child made statements to the mother which caused the mother to form a belief that the father had sexually abused the child. It appears uncontroversial that from this date the mother’s view about this has been unshakeable.
On 7 December 2007 the mother took the child to see a doctor and reported her concerns to the RR Hospital Child Protection Unit.
The child was interviewed by the Joint Investigation Response Team (“JIRT”) on 10 December 2007. After his interview, the mother took the child to be examined by a doctor and a dentist.
The mother and the child left the former matrimonial home on 1 January 2008. The father initially spent no time with the child after this date. The father was not aware of the nature of the mother’s concerns until late in January 2008.
The father filed an initiating application in the Family Court of Australia on 18 February 2008. In this application, the father sought orders for sole parental responsibility and for the child to live with him.
The mother filed a Notice of Child Abuse or Family Violence on 28 February 2008.
On 29 February 2008 the trial judge made interim parenting orders providing for the father to spend supervised time with the child at the C Contact Centre. His Honour also made orders appointing Dr W as the single expert witness pursuant to Chapter 15 of the Family Law Rules 2004 (“the Rules”).
Dr W completed his report on 3 April 2008 and it was released to the parties on 10 April 2008. However, due to a change in lawyers, it is accepted that the mother did not receive Dr W’s report until 23 April 2008.
In late April 2008 the mother removed the child from Australia without the consent of the father or the benefit of an order of the court.
On 7 May 2008 ex parte orders were made providing that the child live with the father.
On 5 June 2008 his Honour ordered that the mother be placed on the airport watch list and that a warrant be issued for the mother’s arrest pursuant to r 21.16(1) of the Rules in relation to an offence committed under s 65Y of the Family Law Act 1975 (Cth) (“the Act”).
On 15 September 2008 orders were made granting the father sole parental responsibility in relation to the passport and travel documents of the child.
On 5 December 2008 his Honour made orders granting the father leave to publish details about the mother and child in order to assist with his search for the child overseas. These orders included a warning that no person was to approach the mother or the child, due to concerns identified by Dr W in a letter written to the ICL on 27 May 2008, whereby Dr W expressed a grave concern about the safety of the mother and the child.
The mother was arrested in City X, in European Country XX, on 6 September 2010. After her arrest, the mother remained in custody, aside from a short period where she was held under house arrest.
From the date of the mother’s arrest, until 6 December 2010, the child was kept in a child protection facility in Country XX. During this period the child spent time with his father and visited his mother in custody approximately once a week, accompanied by the Youth Crisis Agency (“YCA”).
An application was made to the State Central Authority in Country XX on 27 October 2010 seeking the return of the child to Australia pursuant to the Convention on the Civil Aspects of International Child Abduction (1980).
After a hearing on 30 November 2010 it was ordered that the child be returned to Australia. This decision was appealed by the mother.
The child was released into the father’s care on 7 December 2010. The YCA continued to take the child to see his mother in prison once each week.
The appeal court dismissed the mother’s appeal on 14 December 2010 and ordered that the child be returned to Australia. The father and the child returned to Australia on 25 January 2011 and the child has been in the care of his father since.
The child commenced at H Public School on 31 January 2011.
The mother was extradited to Australia on 10 March 2011. She was then charged with an offence pursuant to s 65Y of the Act, and was released on bail on 3 June 2011.
Due to behavioural difficulties, the child was enrolled at AC Special Education School (“AC”) and commenced on 28 June 2011 for four days a week. The child continued to attend H Public School one day a week.
On 18 August 2011 orders were made providing for the mother to spend supervised time with the child for two hours a week. The mother’s supervised time with the child commenced on 17 September 2011 at the C Contact Centre.
On 22 November 2011 Loughnan J appointed Dr Q as the single expert for the purpose of providing a report. This appointment was unsuccessfully appealed by the father. Dr Q subsequently withdrew from involvement in the matter without providing a report.
On 5 December 2011 Dr G, the medical director at AC Family Services, an affiliate of AC, diagnosed the child with oppositional defiant disorder, anxiety disorder and attachment disorder.
On 26 March 2012 the child increased his attendance at H Public School to three days per week.
On 30 March 2012 the mother filed a new Notice of Child Abuse or Family Violence.
On 25 April 2012 the child resumed attending H Public School full time.
In July 2012 the child was diagnosed with attention deficit hyperactivity disorder (“ADHD”) and commenced medication.
The child was enrolled at ER Public School on 6 September 2012, where he commenced attending four days a week. The child remained at H Public School one day a week.
The trial judge appointed Dr R as the single expert witness in the matter on 22 October 2012. This appointment was appealed by the mother to the Full Court, and upon dismissal in the Full Court, to the High Court. The High Court dismissed the mother’s application for special leave. Interviews with Dr R were stayed until the mother’s appeals were determined.
On 30 January 2013 interim orders were made granting the father sole parental responsibility of the child. The mother appealed these orders unsuccessfully.
On 19 April 2013 his Honour made an order under the then s 118(1)(c) of the Act, restraining the mother from filing any further application for interim parenting orders in relation to the child without leave of the court. His Honour also made an order under s 114 of the Act providing that the mother be restrained from commencing further parenting proceedings under the Act in relation to the child.
Between 29 May 2013 and 27 June 2013 the child began attending H Public School two days per week in order to achieve a gradual return to full-time attendance. This arrangement continued after the commencement of the new school term from 17 July 2013 to 25 July 2013.
On 24 July 2013 the C Contact Centre terminated its services due to a dispute with the mother. It is uncontroversial that since 13 July 2013 the mother has not had face to face time with the child.
The child increased his attendance at H Public School to three days per week from 31 July 2013 to 30 August 2013. He resumed full-time attendance there on 2 September 2013.
The hearing in relation to the mother’s criminal trial in the District Court for an offence pursuant to s 65Y of the Act occurred between 14 October 2013 and 19 November 2013. The mother was found guilty by a jury on 20 November 2013. The mother received a 28 day good behaviour bond and was ordered to pay a security, without surety, of $500. The mother appealed both her conviction and sentence and those appeals were heard by the New South Wales Court of Criminal Appeal on 10 November 2014. On 22 May 2015 the appeal court dismissed both of the mother’s appeals.
On or about 19 November 2013 Dr R released her report. An addendum to that report was provided on or about 21 November 2013.
The final hearing took place before the trial judge on 9 – 16 December 2013, 18 December 2013, 17 February 2014 and 19 – 21 February 2014. His Honour made orders and delivered his reasons for judgment in relation to the substantive hearing, and in relation to a number of ancillary applications made throughout the final hearing, on 26 March 2014.
The mother unsuccessfully applied for a stay of these orders. The mother appealed this refusal but later discontinued her appeal.
The mother filed a Notice of Appeal in relation to the orders of 26 March 2014 on 23 April 2014.
On 20 June 2014 a further order was made by his Honour pursuant to the then s 118(1)(c) of the Act restraining the mother from filing any application for parenting orders without leave of the court, pending the determination of the appeal against the final orders.
On 24 June 2014 Ainslie-Wallace J made an order expediting the appeal to a date to be fixed by the appeal registrar. At a procedural hearing on the same day, the appeal registrar made orders for the filing of documents and listed the appeal for hearing on 14 October 2014.
On 11 August 2014 Ryan J heard submissions on a number of applications relating to the appeal and other appeals on foot between the parties. As a result of this hearing, it was agreed that the order for expedition made by Ainslie-Wallace J on 24 June 2014 be discharged and that the hearing date of 14 October 2014 be vacated. Ryan J also made orders at this hearing for the mother’s appeal books to be filed on 6 October 2014 and her summary of argument and list of authorities to be filed by 27 October 2014.
The mother failed to comply with the order requiring her to file her appeal books by 6 October 2014, and as a result, was notified by the appeal registrar on 22 October 2014 that her appeal had been abandoned pursuant to the Rules.
The mother filed an application in an appeal on 30 October 2014 seeking that the appeal be reinstated.
On 20 January 2015 the mother’s application for reinstatement came before Ryan J. The mother made an application for an adjournment of this hearing on the basis of ill health. Ryan J adjourned the proceedings to be heard by the Full Court on 5 February 2015 and ordered the mother to file and serve evidence from her treating medical practitioner in relation to the illness from which she alleged she was suffering.
On 5 February 2015 the Full Court made orders reinstating the mother’s appeal and varying the procedural orders made by the appeal registrar on 24 June 2014 for the filing of documents.
On 30 April 2015 the mother was granted leave to file an Amended Notice of Appeal by close of business on 1 May 2015. The mother complied with this order. The mother was also granted leave to rely on a 22 page summary of argument and to produce a document in table form cross-referencing paragraphs in the summary of argument with transcript, exhibits and the documents in the appeal books. The mother’s application to rely on a 158 page document titled “Annexures to Summary of Argument” was dismissed.
On 12 August 2015 the father filed an application in an appeal seeking orders, inter alia, declaring that the document titled “table of evidence” filed by the mother on 13 July 2015 did not comply with the orders made on 30 April 2015 and striking out that document; that no further documents be filed by any party except with leave of the court; that the oral submissions of the mother at the appeal be limited to half a day; and that in the alternative to striking out the “table of evidence” the mother pay to the father the sum of $5,500.
On 3 September 2015 this application was dismissed, the mother was given leave to file an application to adduce further evidence by 9 September 2015, with such further evidence to be limited to the evidence identified as not having been before the trial judge in the “table of evidence” filed by the mother on 13 July 2015, and listing the appeal for hearing for three days commencing on 14 September 2015. It was noted that it was the intention of the court that the time at the appeal hearing be equally divided between the three parties, but also noting that the ICL was only likely to require half a day.
The appeal was heard over three days. The mother, despite repeated directions from the bench, advanced her argument in an unnecessarily painstaking fashion and without proper reference to her eight grounds of appeal. After making submissions for a full day, she had still not completed dealing with the first three grounds. For reasons we gave at the time, the mother was given leave to continue her submissions for another half day. She also took the opportunity to respond at length to brief submissions made on behalf of the father and by the ICL.
We consider the mother was afforded every opportunity to present her argument on appeal. She is an intelligent, articulate woman, with much experience in litigation. Her failure to accept guidance and comply with our directions in relation to the appeal was, in our view, deliberate. We nevertheless recognise that her obfuscation does not relieve us of the burden of ascertaining whether there is merit in her appeal.
Summary of the Trial Judge’s Reasons For Judgment Delivered 26 March 2014
Primary reasons
Because of the length of the trial judge’s primary reasons for judgment, to assist in following the same, we have utilised some of the headings employed by his Honour.
Introduction
His Honour commenced his reasons for judgment by providing an introduction to the matter. Importantly, his Honour identified that the “central issues in the case” were (at [2]):
1.Whether or not there is an unacceptable risk that [the child] at the ages of two and three was sexually abused by his father, including whether the father involved [the child] in a paedophile ring in which [the child] was used as a sexual object;
2.Whether there has been and continues to be an unacceptable risk to [the child] posed by his father since he has been in his father’s care;
3.Whether there is an unacceptable risk that [the child] was otherwise physically and psychologically abused by his father;
4.Whether or not the mother has a serious psychotic illness.
His Honour opined that the “answers to these fundamental questions will have a significant bearing upon the outcome in this case” (at [3]).
The trial judge then set out the orders sought by the parties, the documents relied on and provided a short factual history to the matter (at [5] – [26]).
The approach in children’s cases / Principles in cases involving allegations of sexual abuse
Here his Honour turned to the law applicable in children’s cases, particularly emphasising the principles which applied in cases involving allegations of sexual abuse. His Honour referred to s 60CA, s 60CC and s 60B(1) of the Act before citing the decision of the High Court of Australia in M v M (1988) 166 CLR 69 at 76 – 78, and the Full Court decision in Johnson and Page (2007) FLC 93-344 at [68] – [73].
His Honour then detailed the submissions of the mother in relation to the High Court decision in Briginshaw v Briginshaw (1938) 60 CLR 336, and the comments made by the High Court in M v M about the test established in that case as to the standard of proof. His Honour discussed the rationale of these decisions, and the legislative background against which these decisions apply. His Honour then concluded that the “decision about whether or not there is a risk and if so, whether that risk is unacceptable, cannot be made lightly and can only be made after substantial consideration of the facts in a particular case” (at [33] – [43]).
The mother as a self-represented litigant
Regarding the “mother as a self-represented litigant” his Honour noted that she “is intelligent and very articulate” and had been a “strong advocate in her own case”. His Honour explained though that the “mother has been strategic in the way that she has presented her case (and at least on one occasion after she had read Dr [R’s] report twice, she corresponded with [Professor] [F] about strategy)”. To provide context to this finding his Honour explained that, though the mother had “in her possession five audio recordings of conversations between [the child] and herself in Europe, she did not disclose the existence of four of these recordings until February 2014” when, during her oral evidence, “[Professor] [F] referred to them in a non-responsive answer to a question put to her by the [ICL]” (at [44] – [48]). At this point we note that Professor F describes herself as an expert in child sexual abuse, a description adopted and promoted by the mother.
In further support of the finding referred to above, his Honour discussed the mother’s “absence in the second scheduled week of the final stage of the hearing”. On 18 December 2013, his Honour ordered that the mother file and serve an affidavit explaining her absence on 17 and 18 December 2013, and an “affidavit from any doctor upon whom she has attended on or after 17 December 2013”. When the mother was questioned about her failure to comply with this order, she stated that she was unable to ask her doctor to do such a thing (at [49] – [52]).
His Honour then recorded the father’s qualifications and employment (at [53] – [54]).
Credit
Here, his Honour turned to the issue of the credit of the parties. At the commencement of his Honour’s discussion of the mother’s credit, his Honour explained:
55.Despite the mother’s intelligence, for almost all of the time when she was questioned, the mother was unable to respond to simple questions with a simple answer. I formed the view that this was because the mother was fixated upon matters of precise detail associated with her view of the history of the matter and she was not prepared to provide a simple answer that would not precisely fit into her construct. This led her to often not answer the question that was being asked but give an answer referrable to the case theory that she had developed. The mother also appeared to be highly suspicious that any answer that she might give would then be used to her disadvantage in some way and consequently on multiple occasions sought to describe the context in which the question was relevant prior to providing any response to the actual question.
His Honour then set out examples of the mother’s conduct which had led to this finding. His Honour noted that certain evidence of “the mother was disingenuous and is symptomatic of the way in which the mother generally gave her evidence and is consistent with Dr [R’s] view of the mother’s mental disorder”. Further, his Honour explained that the mother had “developed and honed her case” and had “demonstrated a capacity to see when a particular part of her case theory is not viable and has consequently abandoned or subtly reframed it”. His Honour then provided an example of a situation which demonstrated the mother’s “capacity to take a small fragment and weave it into her narrative in a way that takes that fragment out of context in a way that leads the mother to misunderstand it” (at [56] – [57]).
Additionally, the trial judge considered that there were “occasions where the mother has been deliberately untruthful” (at [58]).
In relation to the mother’s failure to comply with orders made on 25 November 2013 that she lodge with the court “a hard copy of all electronic or paper records she has in her possession or control upon which [a document that she had prepared] is based”, his Honour found that the mother’s explanations for this failure were “contradictory”. His Honour set out the mother’s evidence in this regard at [59] – [61].
His Honour then detailed further examples of conduct which had led his Honour to find against the mother’s credit. Particularly, his Honour found that the “mother incorrectly claimed Dr [R] fabricated evidence”, that “the father has a more reliable memory than the mother” on the issue of the child’s carers in June 2007 and that the mother’s written submissions contained statements that “she knew she had no basis for”. In relation to the child’s care in June 2007, his Honour found that though the mother undoubtedly “believes her version to be true”, the “father’s different version is accurate when checked against what the mother wrote at the time and also against the records that were kept by the carers’ employer” (at [62] – [65]).
In relation to the credit of the father, his Honour found that he had “answered questions in a straightforward manner and [his Honour] was generally impressed with his demeanour”. However, his Honour was cognisant that there “were some minor issues about the father’s candour” (at [66] – [67]).
Thus, the trial judge concluded as follows on the issue of credit:
68.On the whole, I find the mother has come to believe most of what she is saying is factually accurate. Unless a fact presented by the mother is uncontroversial or there is objective evidence to verify it or that fact is inherently likely, then I can place little weight on her evidence.
69.Unless I indicate otherwise because of other objective evidence or that a particular fact asserted by the father is inherently unlikely, where there is a direct conflict between the mother and father about a particular fact, I prefer the evidence of the father.
The trial judge then provided a “more detailed chronology” of the matter (at [70] – [121]).
Expert evidence
Here, his Honour assessed the expert evidence in the matter. First, his Honour considered the evidence of Dr R, who the mother asserted did “not have the requisite specialist knowledge to express the opinion that, in all probability, [the child] has not been abused – and in particular sexually abused – in his father’s care”. His Honour detailed Dr R’s experience and qualifications at [122] – [140] and concluded that he did “not accept the mother’s assertion that Dr [R] does not have the necessary expertise to provide an independent opinion to the court on child sexual abuse and in particular in relation to how the court should assess the statements made by [the child] in the five audio recordings”. Further, his Honour was “satisfied that Dr [R] understood her obligations under the Rules” (at [141] – [142]).
His Honour then addressed the mother’s assertion that his Honour “had a ‘professional’ and ‘financial’ relationship with Dr [R]”. His Honour explained the fallacies in these assertions at [143] – [144].
In relation to the oral evidence of Dr R, his Honour said that he was “impressed by the thoughtful and balanced way in which Dr [R] gave her evidence”. His Honour then recorded Dr R’s conclusion that “looking at the entire context of the material … the mother has a delusional disorder and that [the child] has an anxiety disorder”. His Honour recorded the substantial material considered by Dr R in forming this opinion (at [145] – [146]).
Finally, his Honour referred to the mother’s decision not to cross-examine Dr R. His Honour considered that this was a “calculated forensic decision” on the part of the mother, and his Honour rejected “the mother’s assertion that she has had insufficient time to prepare to ask questions of Dr [R]”. The mother’s application to adjourn the proceedings and later tender her cross-examination of Dr R in the District Court proceedings was dismissed by the trial judge (at [147]).
Next, his Honour turned to the evidence of Dr W. His Honour began by detailing Dr W’s experience. In this regard, his Honour noted the mother’s assertion that Dr W had “admitted in the District Court that he had very little training, clinical experience or expertise in child sexual abuse”. The mother also asserted that Dr W had no integrity. However, his Honour noted that the “part of the transcript upon which the mother relies … does not support her categorisation of Dr [W’s]’ evidence”. His Honour accepted that Dr W had significant experience with child sexual abuse cases, such as the present, and was “satisfied that Dr [W] has experience to offer opinions about child sexual abuse from his own experience, his training and his reading” (at [148] – [151]).
Finally, his Honour considered the expertise of Professor F, who was a witness called by the mother. His Honour began by noting the father’s submission that Professor F was “not an impartial witness” and explained that “[Professor] [F] has expressed opinions and conclusions which if accepted, are very damaging to the father’s case”. His Honour then recorded his finding that “[Professor] [F] did not display any specific understanding of the requirements of the Family Law Rules but said that she had an understanding more generally” (at [152] – [153]).
As to her expertise, his Honour found that he was uncertain “of the extent of [Professor] [F’s] clinical experience”, given that in response to being asked when was the last time she interviewed children, she told his Honour “that parents bring their children to see her and she has seen evidence taped from police interviews”, but that the last time she had interviewed children would “probably” have been in 2006. She further said that she had not interviewed a child for the purpose of determining whether that child had been sexually molested for a long time because that is not her role.
The trial judge recorded (at [159]) Professor F’s response to being asked by the mother in February 2014, and bearing in mind that at no stage did she see or speak to the child, “do you consider that [the child] is at risk of sexual abuse?” as follows:
I fear that [the child] was at risk of sexual abuse at that time given his consistent description of other men being present in a circle with [the child] in the middle (being in the middle wasn’t [the child’s] description but his mother’s) and the others were wearing scary masks provided by his father. This is on the lines of descriptions given by children involved in paedophile groups and by adult male victims, almost 200 of whom contributed to my research with Professor … for the Australian Institute of Criminology ...
(original emphasis)
As to this, his Honour observed that there was “nothing in particular in [Professor] [F’s] curriculum vitae that records any expertise specifically about the conduct and rituals of paedophile rings or paedophile groups”. Despite this, his Honour stated that he was “prepared to infer that [Professor] [F] in her experience has had conversations with abused children/adults where the perpetrators have been members of a paedophile group”, but noted that Dr R had said “that in her clinical work, she has also had that type of experience”. Thus, his Honour found that Professor F had not established “any specific expertise in relation to the usual behaviour of paedophile rings”, and his Honour did not “place any weight on the assertion by her that she has that expertise”. Significantly, Professor F “conceded she has no qualification to diagnose mental illness” (at [154] – [164]).
The trial judge then considered the mother’s contact with Professor F. His Honour began by explaining that the mother had been communicating with Professor F from “early 2008 until the mother left Australia on … April 2008” but that there was “no evidence that [Professor] [F] had any role in helping plan the mother’s departure”. As far as his Honour could tell, the mother did not have contact with Professor F between April 2008, when she had a discussion on the telephone with her after she had abducted the child, and early 2009 “when [Professor] [F] received a document from the mother” which Professor F faxed “to [Ms O], a journalist, who then worked for [a daily] newspaper”. His Honour noted that Professor F received a further document from the mother on 19 February 2009 (at [165] – [167]).
His Honour then discussed the material from Professor F which he allowed the mother to rely on, and noted that some material was excluded (at [168] – [169]).
His Honour then cited Re W & W (2004) 28 Fam LR 45 at [147], [149], [153] – [154] and [157] – [165] in relation to the “grave dangers in relying upon expert evidence in children’s cases where the expert has not had an opportunity of having both parents and the child attend upon the expert” and the “caution that needs to be exercised when dealing with the evidence of an adversarial expert witness”. In this regard, his Honour recorded that Professor F had provided her opinion primarily “on the five recordings [made by the mother and not disclosed] and the JIRT interview recording” (at [170]). The various ways Professor F has been involved in the proceedings was explained by his Honour as follows:
171.1.Giving the mother advice before she left Australia in 2008, including expressing a view to the mother that the court appointed expert “was wrong” about an opinion he expressed.
171.2.Being raided by the Federal Police (she believes illegally) when they were pursuing the mother.
171.3.Being critical of the father for not being able to stop authorities in [Country XX] from taking the child into care and the mother into custody.
171.4.Making herself available for public comment in the press particularly in a way that was negative to the father at the time of the mother’s apprehension in [Country XX].
171.5.Assisting the mother in her criminal proceedings. This seems to have commenced in 2013. I refer below to the mother’s evidence in the District Court about her understanding in relation to [the child’s] statement “then I got throwed [sic] into the bin” which the mother modified after communication with [Professor] [F].
Additionally, his Honour explained that “[Professor] [F] is critical of the Family Court”, claims “that judges who use common sense are in short supply”, and “that there is ample evidence that judges disregard sexual abuse and place children with abusers”. She is also “critical of the level of knowledge about sexual abuse of experts giving evidence in the Family Court and refers to the high risk in the Family Court of women being labelled as being mad or bad who raise issues of child abuse and consequently lose residence of their children”. Professor F “expressed the view that the Family Court put the needs of adults before the needs of children” and she is “generally dismissive of the notion that sexual abuse allegations can be ‘concocted’ by mothers” (at [172]).
His Honour opined that the “ability of the court to deal with [Professor] [F’s] evidence was hampered by the way the mother adduced it”. His Honour explained the mother’s actions in this regard, particularly emphasising Professor F’s discussion of the five recordings made by the mother, four of which had not previously been disclosed to the court, and the written statement of Professor F provided by her to the mother which “contained further potentially damaging conclusions in respect of the father which the mother did not attempt to tender until after the cross examination of [Professor] [F] had concluded”. His Honour noted that after this latter document was in fact admitted the “father and the [ICL] were given an opportunity to recall [Professor] [F] and chose not to”.
His Honour noted that Dr R gave evidence in relation to Professor F’s conclusions (at [174] – [177]).
Thus, as to the evidence of Professor F, his Honour concluded:
178.Whilst there is no suggestion that [Professor] [F] is being paid by the mother for her involvement in the case, she has been an active participant throughout the majority of the entire time these proceedings have been on foot; has publicly expressed views about this case; holds views more generally about how parents (and women in particular) are treated by the Family Court when they raise issues of abuse. Her police statement also refers to the fact that at least one journalist ([Ms O]), often comes to her for public comment about issues relating to sexual abuse and that journalist has quoted comments from [Professor] [F] in a newspaper article written by the journalist.
179.[Professor] [F] also gives an opinion about the ultimate issue without qualifying that opinion in any way.
180.In Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192, the Full Court said:
38.In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O’Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 “…there are grave dangers in reliance upon expert evidence given in such circumstances.”
39.Whilst much of their Honours’ rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
181.I find [Professor] [F’s] impartiality in this case is compromised and I treat her evidence with a great deal of caution. Where Dr [R] and [Professor] [F] disagree, I easily prefer the evidence of Dr [R].
Is there an unacceptable risk that [the child] has been sexually abused by his father or involved by his father in a paedophile group?
Having analysed the expert evidence provided in the proceedings, his Honour turned to this question. His Honour began by assessing the sexual orientation and sexual relationship of the parties. His Honour detailed the father’s evidence that he “had never had issues with his sexuality or sexual orientation” and that the child would never have seen him masturbate or have sex. The father also claimed that he had never sexually abused the child and that the mother and he had had a regular sex life until 2007. His Honour accepted the father’s evidence in this regard (at [182] – [183]).
His Honour then discussed the mother’s assertion that the father had involved the child in a paedophile group. His Honour noted that the mother “had been at times somewhat ambivalent in the way that she presented this part of the case”. Significantly, his Honour rejected the mother’s assertion that she did not instruct counsel appearing for her at the time, Mr Gould, to submit to Fowler J on 20 December 2010 that the father had been named in an investigation relating to the father’s former employer pertaining to sexual abuse or paedophilia by members of that employer. His Honour found, that given the assertions that she had made about the father, “the protest by the mother that she had not filed anything about a paedophile ring [was] dissembling” (at [185] – [190]).
Next, the trial judge considered the father’s “opportunity to sexually abuse [the child] or involve him in a paedophile group” (at [191] – [198]).
His Honour then detailed the evidence surrounding the mother’s belief that the child has been sexually abused by his father. His Honour noted that this belief was formed on 6 December 2007 and has been unshakeable since that date. His Honour further explained that the mother had only left the child alone in the presence of the father on one occasion “between 7 December 2007 and the date of separation” (at [199] – [203]).
The circumstances and facts upon which the mother relied to establish that the father posed an unacceptable risk of harm to the child were analysed by the trial judge at [203] – [334].
First, his Honour dealt with the mother’s assertion that the child feared being touched from the age of 18 months. In relation to this assertion, his Honour found that there was an inconsistency in the evidence provided by Professor F and Dr R as to the meaning of this behaviour (at [204] – [211]). Professor F opined that it may be indicative of sexual abuse but Dr R thought that it was consistent with “the early onset of an anxiety disorder”.
Next, his Honour discussed the alleged comment by the child to the mother in June 2007, “Daddy was unkind to me mummy”, and how, unlike at the time it was made, the mother after 6 December 2007 formed the view that it indicated that the father had exposed the child to sexual activity.
In relation to the child’s statement to the mother in October 2007 in which the child is alleged to have said there was something in his bottom and asked his mother to clean the inside with her finger, his Honour noted that in her 2011 and 2013 affidavits the “mother subtly embellishes” what the child said to her, when compared with her 2008 affidavit. Similarly, his Honour found that the mother’s assertions regarding the child’s bedwetting in November 2007 in her final submissions and 2013 affidavit were not found anywhere in her 2008 affidavit. Dr W’s report was criticised by the mother on this topic and particularly as to when the bedwetting occurred, namely after separation. However, his Honour found that the mother’s “critique seems to contradict what she said in paragraph 65 of her 2013 affidavit” namely that the child had begun to wet his bed in or about March 2008. Thus, his Honour found that he was unable to make a finding that the child was bedwetting and having nightmares prior to 6 December 2007 because of the “way the mother has developed her evidence in relation to [those matters]” (at [217] – [224]).
Next, as to the child’s statements that people had “poo” on them, his Honour noted that the “mother did not think it important enough to put this information in her 2008 affidavit”, but has since, “connected this behaviour to statements she says [the child] made in Europe that the father defecated upon [him]” (at [227] – [231]).
Another assertion by the mother was that the child was sleep disturbed and experienced nightmares upon the mother returning from her business trip in November 2007. His Honour noted that this assertion was not included in the mother’s 2008 affidavit, but was included in her affidavit of 2011 (at [232] – [236]). There was also an inconsistency in the mother’s evidence as to when she says the child first told her that his father put his finger into his bottom. She told Dr R on 11 September 2013 that the child first said this around September 2007, but her case was that the first time was in March 2008.
In her final submissions the mother asserted that the father would leave work early to take the child into the bushes for a walk, but would keep these walks a secret from her. However, these walks were referred to in the mother’s affidavit of 2008. Thus, his Honour observed that if “the father kept these frequent occasions a secret, it is not clear to me how she came by this knowledge”. His Honour further noted that it was “unclear as to when it was that the mother formed the view that the father was keeping his coming home early from work a secret from her” (at [237] – [240]). The father provided an explanation as to his walks with the child in the bush area, and agreed that there were days when he would leave work early to do so. His Honour accepted the evidence of the father in this regard (at [242]).
Further, his Honour referred to the mother’s assertion in her affidavit of 2011 that after one of the walks the child returned with a lollipop which was said to have “puzzled” the mother. His Honour observed that this event was not included in the affidavit of 2008 (at [244]).
In relation to the mother’s assertion that the time spent in the bushes was kept a “secret”, his Honour noted the mother’s evidence in [142] of her 2013 affidavit, the details of which were not provided in her 2011 affidavit, and found that the mother had “embellished the occasions where the father came home early into an almost daily opportunity for the father to sexually abuse [the child]”. His Honour said that he was “unable to conclude” that the father kept these walks a secret (at [245] – [247]).
His Honour then turned to the allegation made by the mother to the Department of Community Services (“DoCS”) on 7 December 2007 that the father did not respond appropriately when the child touched his genitals. His Honour again noted that this allegation was not included in the mother’s 2008 affidavit, nor was it included in the mother’s 2008 Notice of Child Abuse or Family Violence. In her 2011 and 2013 affidavits the mother alleged that the father encouraged the child to touch his penis when he had come out of the shower during the time the parties lived together. His Honour noted that the father “generally denied inappropriate behaviour of this nature” (at [248] – [249]).
His Honour then set out the mother’s assertions regarding the statements made to her by the child on 6 December 2007, which led to the mother forming the view that the child had been sexually abused by the father. His Honour then set out what the mother told Dr W on 11 March 2008 as to this, and then what the mother said in her 2013 affidavit, and observed that “[t]he mother has provided a substantially consistent version of what happened on 6 December 2007 but there are some subtle changes” (at [254]), which his Honour then detailed.
Next, his Honour considered the events of 7 December 2007 commencing with the child allegedly “resist[ing] when [the mother] attempted to change his nappy”. The mother then attended Dr NJ, who reported the mother’s allegations to DoCS and discussed the situation with a social worker, Mr AK, from the … Health Service. His Honour then set out the notes taken of the discussion between the mother and Mr AK later that day when she attended the Health Service. His Honour noted that the mother in this conversation had used the words “sticky stuff on his hand” when describing the dribble incident the night before. This, his Honour found, was “inconsistent with the mother’s sworn evidence as to what [the child] said to her on 6 December 2007, but consistent with the belief the mother had formed about what [the child] had demonstrated using his dribble; that is, the father had ejaculated in front of [the child]” (at [259] – [264]).
His Honour then turned to the child’s interview with JIRT on 10 December 2007 and the audio/visual recording of this interview. First, his Honour explained that the DoCS’ notes from this day recorded “the mother informing DoCS … that in addition to [the child] telling the mother that ‘daddy is unkind to me’, he also said ‘and is mean to me’”. His Honour noted that these additional words “do not appear in any sworn statement made by the mother nor does it feature in any conversation that she had with Dr [W]” (at [266]).
His Honour then discussed the details of the interview, and set out in full that part of the transcript which the mother sought to rely upon. His Honour referred to the mother’s assertions in relation to the interview as they appeared in her 2013 affidavit. However, his Honour considered that it was “difficult to place any weight on what [the child] says about ‘hurties’ and his ‘dad’ given that his answer to the question ‘who’s there when hurties happens?’ is ‘my mum’” (at [267] – [271]). Further, his Honour highlighted that part of the interview where the child denied that anyone had ever touched his bottom.
The trial judge then explained that the mother’s dissatisfaction with the JIRT interview “and with Dr [W’s] decision not to conduct a forensic interview as part of the preparation for his report” could not be remedied at the time “because the mother absconded overseas with [the child] for a period of two and a half years the day after she received Dr [W’s] report” (at [273]).
On 10 December 2007, after the JIRT interview, the mother took the child to a dentist and then to a doctor “to have [the child] examined as a result of him complaining about a sore mouth”. The mother argued that this was unrelated to the child’s comments during the JIRT interview that “his father had burnt him in the mouth and that his mouth was very sore”. When neither professional was able to find anything wrong with the child’s mouth the mother argued that the pain could have been “teething problems”. In relation to this occasion, his Honour found that there was “an inherent inconsistency between the mother saying that [the child] during the JIRT interview’ was accusing his father of creating hurt to his mouth on the one hand, but hypothesising that it could be teething problems on the other” (at [274]).
In light of this finding, his Honour considered that the child’s comments in October 2007, that there was something in his bottom, “was not at the forefront of the understanding [the mother] then had in respect of [the child] being sexually abused by his father when she took him to the doctor on the day of the JIRT interview”. Significantly, his Honour noted that “[n]o rectal examination was suggested by the mother” and that there had been no evidence of the mother taking the child for any other form of medical examination (at [275]).
His Honour then detailed two file notes and a summary relating to the JIRT interview with the child. The file notes recorded that the child had not disclosed any abuse, that the case worker was unable to ascertain any risk of harm, and the case would be closed with no further action. His Honour noted that Dr W “had available to him the DoCS’ notes … which contained detailed notes in relation to the interview but not the DVD and the transcript which is in evidence”, at the time that he wrote the report. Though the mother argued that the “file notes on the DoCS’ file inaccurately described the interview”, his Honour did not accept this (at [276] – [279]).
Though his Honour was cognisant of the opinion of Dr W that the JIRT interview was “unsatisfactory”, and that Professor F described it as “woefully inadequate”, his Honour again did not accept the mother’s submissions that file notes inaccurately described the interview, that the child had “made [a] clear admission that his father was hurting him” during this interview, and that there “were clear admissions sadly overlooked by the case workers”. His Honour also disagreed with “the gravamen” of the mother’s submission that the child was responsive and articulate in the JIRT interview and that he was only unable to answer questions which were not age appropriate. His Honour said he was “distractable” and “on the whole was not responsive to the questions he was asked”, but his Honour did agree that overall the “interview was unsatisfactory” (at [280] – [284]).
Another assertion of the mother was that the child was hesitant to admit that he had a father during the JIRT interview. His Honour noted that the mother invited “a finding that [the child] had been threatened by his father in a way that caused him to not want to talk about his father in the JIRT interview”. His Honour said that he was not able to make this finding (at [285]).
In addition, in relation to the JIRT interview, his Honour said this:
287.I accept that it was open to JIRT to have made a decision to conduct a more extensive series of interviews so that an attempt was made to build up confidence between [the child] and the interviewer with the aim of seeing whether or not any meaningful disclosures would be made by [the child].
288.The fact is, based on [the child’s] presentation to JIRT on 10 December 2007, JIRT took the decision not to do that.
His Honour then discussed the decision of Dr W “not to conduct a potentially forensic interview with [the child]”, and his reasons for that decision (at [289] – [291]).
The trial judge then briefly discussed the events which the mother alleged occurred between 10 December 2007 and 4 January 2008 (at [292] – [297]).
Next, his Honour considered the various games which the mother alleged the father had played with the child as a form of grooming. The first of these games was detailed in the mother’s 2011 and 2013 affidavits and was alleged to have been observed by the mother the week before Christmas in 2007. The mother described a situation in which the child would attempt to touch the father’s genitals and the father would move away but invite the child to attempt again. The mother explained that she had cross-examined the father on this game in the District Court and asserted that the father had “softened his evidence before [his Honour]”. Thus, his Honour set out the transcript of the District Court cross-examination on this topic and opined that he was “at a loss to understand the basis” upon which the mother asserted this. Further, his Honour noted that given the mother’s vigilance at this time, it was “difficult to accept that she would allow a game of the nature she describes to continue”. His Honour accepted the father’s evidence “that nothing sinister in the nature of grooming or otherwise was happening” on this occasion (at [300] – [304]).
His Honour discussed the rest of the games allegedly played by the father and the child at [305] – [331], and variously found them to involve “innocent game playing”, to be descriptive of “nothing untoward”, to not be games played by the father and in one case “an example of [the child] inventing an innocent game and when pressed by his mother, connecting it to his ‘daddy’” (at [330]). His Honour concluded as follows:
332.Given the level of familiarity that [the child] had with the games that he was playing with his father in the interview with Dr [W], I find that it is unlikely that that game playing only commenced in December 2007.
333.The mother asserts that the father’s game playing with [the child] is not something she saw prior to December 2007. I do not accept the mother’s evidence about that. The mother asserts that the father has described his game playing in a way that normalises it. On balance, I do not accept the mother’s observations where those observations lead her to the view that the father was grooming [the child] for sexual activity with him. I find that what the father was doing was interacting with [the child], sometimes in a boisterous way, in a manner which was usual and appropriate.
As to the mother’s conversation with Detective Senior Constable P on 15 January 2008, his Honour referred to a file note recorded by Ms Y, a child protection case worker, summarising the conversation. This file note recorded that the mother had mentioned the possibility of the father involving the child in a paedophile ring and noted two gay males who the father introduced her to at an awards ceremony. The mother is also noted to have said that she was considering going to Today Tonight to “out” the father as a paedophile. In relation to this incident, the mother agreed that she spoke to Detective P and that she mentioned the two gay men at the awards ceremony. However, the mother denied that she had said “that she believed the father may be involved in a paedophile ring” or that “she informed Detective [P] that she was considering going to Today Tonight and outing the father as a paedophile”. His Honour then detailed the mother’s conversation with Dr R and the father’s discussion with Dr W about these matters. His Honour also set out a letter which the mother wrote to the father between 23 April 2008 and 20 June 2008 in which the mother said that she was working with a journalist and threatened to “out” the father unless he agreed to a set of orders proposed by the mother. The mother denied “that she sought help from a journalist at this point in time” (at [335] – [346]). However, his Honour considered that the file note of 15 January 2008 was substantially accurate and opined:
347.There is no reason why Ms [Y] would make up what Detective [P] told her, nor is that [sic] any reason why Detective [P] would make up what the mother said. The mother is not being truthful about her conversation with Detective [P] at about 7.00am on 15 January 2008. I find that the mother did inform Detective [P] on 15 January 2008 that she was considering going to Today Tonight and I find that the mother did inform Detective [P] that she believed the father may be involved in a paedophile ring. In so far as the mother has denied that she did so, I do not accept her evidence.
Further, his Honour noted that during her interview with Dr R the mother had denied making comments about gay people to Detective P. His Honour opined that this denial was “inconsistent with her statement during the trial” (at [349]).
The mother’s Notice of Child Abuse from 2008, and the mother’s recount of what the child said and did on 12, 13 and 15 March 2008, was then discussed by the trial judge. Particularly, his Honour noted that when making a report to DoCS on 14 March 2008 this was “the first time that the mother says [the child] said his father had put his finger in [the child’s] bottom”, and on 15 March 2008 was the “first observation by the mother that [the child] has put his finger in his bottom” (at [350] – [357]).
Relevantly, his Honour recorded the details of a conversation the mother had with Dr W on 31 March 2008, which the mother cross-examined Dr W about in the District Court. Most of this conversation related to the frequency of contact centre visits and its effect on the child, and the mother’s assertion that the father was providing lollies and gifts to the child at every visit. Thus, his Honour considered it “very surprising that the mother did not raise during the telephone conversation with Dr [W] on 31 March 2008 or at any other time during March, the statements that she said [the child] had made on 12 and 13 March and what she had observed [the child] do on 15 March”. His Honour concluded that, though not “recent inventions”, there was reason to doubt the accuracy of these allegations (at [358] – [363]).
The next issue for the trial judge was whether the child had been sexually abused by the father during his supervised visits with the father at C Contact Centre in 2008. His Honour explained that the mother believed that this had occurred “on at least one of ten two-hour contact sessions”. His Honour found that this belief was formed prior to her leaving Australia and “was part of what motivated her to do so” (at [367]). The circumstances leading to the mother forming this view were then set out. A specific incident which the mother relied on in her evidence in the District Court was when the child asked the father not to touch his private parts and the father, rather than saying “[t]hat’s right, [D]. I shouldn’t do that”, “showed [the child] he was cross”. In relation to this incident, his Honour found:
373.…I do not accept that [the child] would have said what he said to his father had the mother not placed that thought in his mind at a time proximate to her dropping [the child] off at the centre. I accept that the father’s reaction was genuine and understandable and was not an act of manipulation of [the child].
374.I find that the mother, who had brought [the child] to the centre, had given [the child] the clear message that his father was not to touch his private parts. It is tolerably clear that the mother also reinforced that message to [the child] prior to the two hour visit on 15 April 2008.
In relation to the mother’s assertion that the child’s general health and behaviour began to deteriorate “by the third contact visit on 29 March 2008”, his Honour noted that there was “nothing in the contact centre notes that would indicate anything other than during this period of time, [the child] was happy, excited, active, very energetic, with lots of interaction, affectionate, enjoyed himself, had a good time, played for the whole two hours with his father very actively, both inside and outside and was very pleased to see his father” (at [375] – [376]). Likewise, his Honour was unable to find any C Contact Centre file note “whatsoever about any lollies being provided to the child” or that the father provided the child with any gifts other than a toy truck, colouring books and model cars (at [377] – [381]).
His Honour set out further allegations by the mother of things that the child did in April 2008, as well as file notes in relation to the C Contact Centre contact visits, and found that “by 18 April 2008 the mother had formed the view that not only was [the child] being ‘groomed’ by the father at [the contact centre] but he was actually being sexually interfered with by his father at the centre”. The mother claimed that this was confirmed by the child when they were in Europe. Though Professor F indicated in her evidence that “sexual abuse could be easily missed in a contact centre”, this opinion was rejected by the trial judge (at [382] – [391]).
Therefore, his Honour found:
392.I am more than comfortably satisfied there is no unacceptable risk that the father touched [the child’s] private parts during any of the ten occasions when the father was with [the child] at [C Contact Service]. The mother had given [the child] a clear instruction at least from before the second occasion, that the father was not to touch [his] private parts whilst spending time with [the child] at the contact centre. There are two possibilities. One is that the mother is fabricating the conversation that she said she had with [the child] on 7 October 2008 or alternatively, [the child] was telling his mother something that he thought his mother might like to hear. Given that the mother has recorded certain things that [the child] has said to her whilst they were in Europe, on balance, the second is possible. However, correspondence by the mother to [Professor] [F] to which I now refer might indicate it is a more recent invention.
His Honour then traversed the mother’s communication with Professor F and noted that significantly “the mother’s statement that was sent to [Professor] [F] early in 2009 did not contain the startling allegation that the mother asserts [the child] made to her on 7 October 2008, namely, that his father had touched his private parts at the child contact centre when the ladies were not watching” (at [393] – [394]).
Then, at [397] his Honour said:
Nothing really turns on whether the mother has or has not fabricated what [the child] told her. I find that in the mother’s mind, prior to [the child] saying what the mother sets out at [81] of her 2013 affidavit (if he did), she had formed the view that [the child] had in fact been sexually abused at the [C Contact Service]. This is a view which she continues to hold. I find that this belief which the mother holds is entrenched and false.
Further, his Honour considered it “curious that the mother did not during her first interview with Dr [R], mention that it was her view that the father had actually sexually interfered with [the child] on at least one of his ten visits to the contact centre in 2008” (at [398]).
Next the trial judge explained that the mother left Australia with the child one day after she received the report of Dr W, and on “the day she provided a partial critique of that report to her lawyers” (at [404] – [405]).
His Honour then considered the statements the child made after he was removed from Australia, which had been recorded by the mother in a 17 page document annexed to her 2013 affidavit and “produced by the mother at the first interview with Dr [R] on 11 September 2013”. In relation to this document, the father asserted that there were 64 differences between an early document prepared by the mother in 2011 and the 2013 document with 22 entries not previously included. His Honour noted that he had found “87 new entries”. The mother asserted that this document was more accurate than the Notice of Child Abuse as it had not been prepared in the manner required by her former barrister (at [406] – [408]).
On 25 November 2013, as referred to already, his Honour made an order for the mother to produce “a hard copy of all electronic or paper records she has in her possession or control upon which her 17 page document is based”. His Honour then detailed the many justifications and excuses provided by the mother for failing to comply with this order, and found her explanation[s] “implausible”, and that she “deliberately chose not to comply with the order” (at [409] – [412]).
In relation to the four recordings which the mother failed to provide to Dr R, the mother explained that she “only showed Dr [R] the ‘simplest one’ because Dr [R] is not an expert in child sexual abuse and cannot assess the content of that material” (at [413]).
On the basis of the mother’s actions his Honour found:
413.…The mother has been very strategic in relation to providing information that she had either in her control or possession. I do not accept some of the explanations the mother has given for the non-production of documents in a timely way.
414.Given the mother’s ability to filter information and to focus on very specific detail, I have no clear picture as to how the mother has developed the 17 page document nor do I have any confidence that anything in that document is reliable or alternatively can be interpreted accurately given the lack of context around each statement.
Next, his Honour turned to the disclosures the child allegedly made in Europe about the father defecating and urinating on him. His Honour considered the history of the mother’s allegations in this regard and found “it curious that the mother failed to mention in her 2011 affidavit the allegation that on 25 February 2009 [the child] said that his father urinated on both his arms and legs whilst [the child] was in the shower”, and noted that there were “a number of new entries that do not appear in the mother’s 2011 affidavit which [were] set out in the 2013 affidavit”. His Honour also found that “by March 2008 the mother may have been entertaining ideas that [the child’s] reference to poo may be connected with some form of sexual abuse of [the child]”. His Honour concluded the discussion of these allegations stating:
430.I find that:
430.1.Either [the child] has not said what the mother asserts in relation to his father defecating and urinating upon him, and the fact the mother’s [sic] thinks he has, forms part of the more extreme part of the mother’s beliefs that make up her delusional disorder as diagnosed by Dr [R].
430.2.[The child] has said some or all of these things but in the context of discussions with his mother overtime [sic] during which [the child] has come to understand the attention that he receives attention [sic] from his mother when he talks about these matters. The only reference by [the child] in Exhibit 99 (recording B 12) that might be relevant is when he indicates his father has called him a “pooey baby”.
His Honour then turned to the “five digital audio recordings the mother made [in Europe in early 2009] of conversations that she has with [the child], together with transcripts the mother had typed of those recordings”. His Honour considered each of these individually. In relation to the first recording, “Recording B 9” (original emphasis), his Honour observed that the “transcript omits what the mother and child were saying and doing when the recording began”. His Honour noted that the mother responded in a “reinforcing and leading manner” and that there were examples “that [are] repeated through the recordings of the mother embellishing what [the child] was saying”. His Honour also noted that some statements made by the child were “clearly fantasy”. Finally, his Honour observed that it was “a recurring theme throughout the recordings that the mother tells [the child] how horrible his experiences with his father have been and how bad his daddy is and how she will keep him safe from his daddy” (at [434] – [437]).
In relation to the second recording, “Recording B 12” (original emphasis), his Honour said that this was the longest of the recordings and again was made around the child’s bed time. His Honour noted that the child appeared to be resisting going to bed, and instigates a conversation with the mother about masks which had “an air of fantasy”. At points in the recording, his Honour noted that the child’s statements appear “in the tone of a question to the mother as to what mask she wants [the child] to talk about”. It is also of significance to his Honour that the child is aware that the recorder is on. Though the mother asserted that this “did not create an unusual environment for the conversation”, his Honour rejected this assertion and noted the possibility that there may be other recordings not produced by the mother. Further, his Honour noted that in parts of the recording the child would attempt to change the subject but the mother would persist in taking him back to the father. From this recording, and in particular the child’s comments that the father had smacked him on the head, his Honour found that the mother drew the conclusion that the child “had been severely beaten and degraded by his father”, however, his Honour considered that there was “no objective evidence at all that [the child] has suffered any trauma to his head occasioned by his father in 2006 or 2007”. Thus, his Honour found that the child was “being fanciful about physical abuse occasioned to him by his father during 2007 or earlier”.
His Honour highlighted as particularly significant in this recording a conversation where the child tells the mother that the father had placed his finger in the child’s bottom “right in to the intestines”, which the child complained “hurted as much as a nail going into [his] botty botts”. The trial judge noted that a “large amount of emphasis” had been placed on this conversation by Professor F. His Honour set out the conversation in full. His Honour then explained that the mother had failed to mention the child’s tone when making the statements described above and opined that the child seemed “quite excited, as if he knows his mother would be interested in this part of his story”. His Honour then recorded that it was “of some interest to note that the mother in her summary of the recording does not place any emphasis on this statement by [the child]”. His Honour considered that it was “very problematic” that Professor F placed “heavy reliance” on it (at [448] – [449]).
On the basis of this conversation, Professor F was cross-examined by the ICL about “whether or not a fanciful story could be created in the mind of a young child as a result of repetition”. His Honour recorded that Professor F denied that a child could come up with statements of this kind from their own imagination and that children were more likely to recall traumatic events. Dr R disagreed with Professor F and asserted that “it was possible for a child to adopt a particular narrative as a result of it being repeated, even if that narrative was about a traumatic event”. Dr R referred to “false memory syndrome” in this regard, and asserted that it was “easy to create false memories of traumatic events”. His Honour accepted this opinion of Dr R (at [450] – [451]).
Next, his Honour turned to “Recording B 14” (original emphasis), which his Honour noted was again recorded at the child’s bed time. His Honour also explained that it was evident from the beginning of the recording “that there has been previous interaction between the mother and [the child] about whole body masks and in fact they had been drawing them”. His Honour referred to suggestive language of the mother and then found that it was clear that by the time of this recording the child was able to anticipate the answers the mother wanted, and “understands that in order for him to avoid bedtime, expressing thoughts that he has to his mother will prolong the period that he is up” (at [456] – [465]).
In relation to “Recording B 15” (original emphasis), his Honour found that it was “clear from the Recording that [the child] and the mother were having a conversation about masks before the recording device was turned on”. His Honour noted that the mother concluded the recording by “reinforcing to [the child] how clever and special he is for being able to tell his mother the very frightening things that his daddy has done to him and that that might help other little boys and girls too” (at [466] – [467]).
Finally, his Honour considered “Recording B 17” (original emphasis), which the mother described “to Dr [R] as her ‘best evidence’”. This recording includes statements by the child that the father had “kissed him whilst wearing the mother’s lipstick” on the bottom and on the penis. The child also states that the father threw him in the bin. After hearing these statements, the mother told the child that “it is a very strange thing for his father to have done and that it was not normal”. Professor F considered that the child persisting with his story in light of the mother’s comments was significant. In this regard, his Honour considered that Professor F’s comment may have been “valid … were it not for the fact that [his Honour found] that the child knew that his mother wanted to hear stories about daddy doing strange things” (at [468] – [472]).
The trial judge then discussed the cross-examination of the mother in the District Court about the child’s statement that he had been thrown into the bin, and the mother’s correspondence with Professor F following this cross-examination. Particularly, his Honour noted that the mother had originally not believed the child was actually thrown into the bin. However, his Honour found that it was “clear that by 11 November [2013] the mother had had discussion with [Professor] [F] where [Professor] [F] had expressed an opinion to her different from the one the mother had originally held”. His Honour also did “not accept the mother’s assertion that [the child] ‘didn’t know to create stories’” (at [473] – [479]).
In relation to the mother’s questions during the recording, Professor F conceded that the mother’s questions were leading in some parts but asserted “that that did not affect the authenticity of the child’s disclosure”. Professor F also asserted that the child “knew the difference between fact and fiction and persisted with his story, notwithstanding that his mother was saying to him that men do not wear lipstick”. His Honour rejected the opinion of Professor F and the inferences she drew from this recording (at [480] – [481]).
Having considered each of the recordings, the trial judge then considered Professor F’s comments about the recordings. Professor F set out what she considered to be the important parts of the recordings in a document which was later tendered in court. In this document she “proceeded to conclude that it was ‘highly likely’ that [the child] had been sexually abused by his father and that [the child] had been involved by his father in a paedophile group”. His Honour set out the document in full (at [485] – [487]). His Honour then said:
488.Whilst defending [Professor] [F’s] impartiality, the mother submits that [Professor] [F’s] partiality is beside the point. She asserts that she is qualified to analyse and comment upon what she has heard on the five Recordings that were presented to her and that Dr [R] does not have that expertise. In final submissions, the mother asserted that a “sexual abuse expert” does not have to read affidavits of the Family Court (the mother opining that that would be the last thing that they would want to rely upon) and that they do not have to look through “a whole heap” of subpoenaed records. She submitted that JIRT convicts sex offenders on disclosures made by children. The mother’s submission was that it was not necessary for [Professor] [F] to look at anything other than the recorded interviews in order to express the opinion that she has expressed in such a conclusive way. I do not accept the mother’s submission that the context of the interview or who conducts that interview is of no relevance. I find that both the identity of the person who has the conversation with the child and the context in which that conversation happens, are both very relevant matters to consider when assessing the weight to be placed upon a statement made by a 3 or 4 year old child.
Next, his Honour turned to Dr R’s opinion about the alleged disclosures made by the child on the mother’s recordings. Particularly, his Honour noted that after listening to all five recordings, Dr R was of the opinion that the “credibility of anything that [the child] says on those Recordings is immensely outweighed by the lack of context”. The significant contextual features identified by Dr R were the “suggestiveness and persuasiveness in how the mother’s question to [the child] were put to him”, the fact that the recordings were made at bedtime when the child was “doing anything to avoid going to bed” and the fact that the child was “very aware that what he says is being recorded and while the recorder is on, he will not have to go to sleep”. Dr R further explained that what “is not normal is the subject matter of what is being discussed”. In this regard, his Honour accepted Dr R’s opinion that “context is important when interpreting these audio Recordings” and found “that [Professor] [F] has not commented at all on the context” (at [489] – [494]).
The trial judge then considered the information published by the father during the time he was attempting to locate the child in Europe. His Honour noted that he made a publication order allowing the father to publish this information. The mother asserted that the information published by the father, specifically the statement that the mother had an “underlying mental state at the extreme paranoia end of the mental health spectrum”, was “baseless, defamatory and dangerous”. The father argued that “it was his interpretation of what Dr [W] had written”. In his report, Dr W opined that the mother had “demonstrated quite serious defects in judgment [sic]” and that her mental status “could lead to her harming [the child] and/or herself” in order to keep the child away from his father. On the basis of this information, his Honour found that it was “not unreasonable for the father to have concluded that Dr [W] was expressing a view that the mother’s underlying mental status may be at the extreme paranoia end of the mental health spectrum”, and in fact, his Honour considered that the father’s interpretation “would be open to a lay person” (at [496] – [501]).
In his report, Dr W recited a summary of what he was told by each party, his observations of the child in the company of both parties, and some salient facts drawn from the documents with which he was furnished. The report concluded with a section entitled “Conclusions and Recommendations” in which Dr W set out a series of opinions that loosely correlated with the criteria found within s 60CC of the Act that influence determinations about a child’s best interests.
Relevantly, in relation to the mother, Dr W considered her psychological state was explicable by “several possibilities, all linked by the notion of excessive sensitivity or even paranoia” (at p 22). Dr W proceeded to exclude “Paranoid Schizophrenia” and “Paranoid State” as probable diagnoses, but then considered her sufferance from an “overvalued idea”, which he explained to be “when a person develops a fixation with a particular world view, often precipitated by a particular incident, and seems to be able to find evidence supportive of this idea from the flimsiest of circumstances” (at pp 22–23).
Dr W said in the report:
[The mother] showed no obvious evidence of any mental illness or personality disorder, but an overvalued idea could not be excluded (at p 8).
…if the Court is of the view that [the mother] has cast far too wide a net in her thinking [the father sexually abused the child], this is the most likely underlying state (at p 23).
…it seems to me that the mother has cast a rather wider net than objectivity would suggest (at p 24).
If it is the case that [the mother] has simply formed an overvalued idea that [the child] has been molested by his father and that this has no foundation and she is not prepared to relinquish this idea, then it is reasonable to conclude that this is a form of emotional abuse for the reasons that the father expresses (at p 24).
The mother submitted on appeal that Dr W did not actually make a diagnosis of her having an “overvalued idea”, rather it was “purely speculative”. Indeed, Dr W did not expressly state in his report that was his diagnosis, but his opinion was still much firmer than mere conjecture. Dr W considered that was the mother’s “most likely underlying [psychological] state” – provided the court found her sexual abuse allegations against the father to be baseless, which was the court’s ultimate factual conclusion.
Any uncertainty about Dr W’s opinion was dispelled during his cross-examination by the mother in the criminal proceedings. The trial judge found (at [780]) that Dr W confirmed in cross-examination the mental state he diagnosed in the mother was an “overvalued idea”. The mother contended no such condition was known to psychiatry but, in reliance upon the evidence of both Drs W and R, his Honour found there was (at [674], [780]).
The mother maintained on appeal that Dr W “changed his opinion completely” under her cross-examination in the criminal proceedings, but that was not so, as the trial judge correctly found (at [646], [652] – [662]). Other than to observe “the mother has cast a rather wider net than objectivity would suggest”, Dr W did not venture any opinion about the correctness of the sexual abuse allegations in his report. He quite properly left that factual determination for the trial judge. The mother’s cross-examination of Dr W focussed on the likelihood of the father’s sexual abuse of the child, which Dr W logically conceded was “possible”, but importantly, his concession of a possibility fell well short of a probability. The mother fell into grievous error if she reasoned that Dr W’s concession was tantamount to an admission the sexual abuse occurred, thereby vindicating her belief in the occurrence of the abuse and undermining his expert opinion about her having an “overvalued idea”. Alternatively, if that was not reflective of the mother’s reasoning then Dr W’s concession of a bare possibility was without consequence.
On appeal, the mother made other unsubstantiated attacks upon the reliability of Dr W’s evidence, which must be rejected for the same reasons given by the trial judge. The mother’s florid allegation that Dr W “suppress[ed] evidence of sexual abuse” was correctly rejected by the trial judge (at [683], [685]), as was her suggestion that Dr W was not independent of the trial judge (at [668]).
Grounds 4 and 8 – Procedural fairness
By these grounds it is asserted that the trial judge:
denied the mother procedural fairness by publishing but prejudicially misrepresenting a significant conclusion in Dr [WM’s] Draft Report concerning the mother’s mental state having ruled that the Draft Report would not be admitted into evidence, adding material weight to a wrongful finding that the mother has a delusional disorder
denied the mother procedural fairness, breached his duty to remain impartial, has approached the mother’s case with apprehended bias and has intentionally perverted the course of justice causing severe harm to the mother and child which warrants criminal sanctions
As would be obvious, these grounds amounted to two interlinked complaints – one about the fairness of the trial process and the other about the integrity of the trial judge.
It is convenient to deal with the complaint about the denial of procedural fairness first, since it relates to both grounds.
Some background is necessary to give context to Ground 4. The mother engaged Dr WM, a forensic psychiatrist, to prepare a report about her psychological state for use in the criminal prosecution brought against her for the international abduction of the child. Dr WM prepared a report in draft format for that purpose, but it was apparently not finalised at the time its admissibility in the family law proceedings became an issue. In the family law proceedings, leave was eventually granted to the mother to engage Professor F as an adversarial expert to offer opinion evidence about the prospect of the child having been sexually abused by the father, but in earlier email correspondence, the mother discussed with Professor F the import of Dr WM’s draft opinions.
When alerted to the mother’s engagement of Dr WM to procure psychiatric evidence, the ICL issued a subpoena to Dr WM, in response to which his draft report and other documents were produced to the court. Over the mother’s objection, the trial judge ruled she had waived legal privilege in respect of the documents by her correspondence with Professor F and they could be inspected by the father and ICL. However, the trial judge then upheld the mother’s objection to the tender of Dr WM’s draft report by the father and ICL. Consequently, Dr WM’s draft report was not received in evidence and the trial judge expressly stated in his reasons he placed no weight at all on what the mother told Professor F in her email about Dr WM’s preliminary opinion concerning her psychological status.
The mother’s grievance, as articulated in Ground 4, was that she was denied procedural fairness by the trial judge “publishing” and “materially misrepresenting” the contents of Dr WM’s draft report.
The trial judge did not “publish” the draft report in any way. Given there was a forensic contest over the admissibility in evidence of the draft report, it was incumbent upon the trial judge to discuss its genesis and purpose because those aspects affected its relevance to, and probative value in, the proceedings. Although the trial judge made an order (Order 15) permitting the provision of his reasons for judgment (and other specified documents) to a small cross-section of individuals interested in the child’s welfare, the few paragraphs in the reasons dealing with the inadmissibility of Dr WM’s draft report did not amount to public dissemination of the draft report. In any event, the Act (s 121) prevented wider distribution of the trial judge’s reasons without anonymisation.
The mother’s complaint about the trial judge’s “material misrepresentation” of the draft report revolves around the correctness of the recitation in his Honour’s reasons of a small fraction of the contents of the draft report.
The trial judge said in his reasons (at [782]), quoting from the mother’s email to Professor F about the contents of Dr WM’s draft report:
[Dr] [WM] is stating that the child must be assessed. However what he has written is that if they can find no sign of abuse, then the mother is suffering from an underlying psychiatric condition – delusional.
(Emphasis added by mother in submissions)
The mother conceded on appeal that she misstated the exact words of Dr WM in her email to Professor F. We do not have the draft report before us, because it was not admitted into evidence, but the mother contended that Dr WM actually said:
…if her allegations [of sexual abuse] are established to be false ie. not to have occurred in reality then the issue of a Delusional Disorder will need to be reconsidered.
(Emphasis added by mother in submissions)
It may be assumed the trial judge had the draft report of Dr WM before him when he was ruling upon its admissibility, but to quote the mother’s interpretation of the draft report from her email instead of the actual contents of the draft report did not amount to a material misrepresentation of it. Even if it did, it was the mother’s own misrepresentation, not the trial judge’s.
There was no deprivation of procedural fairness. The trial judge had to determine the admissibility of Dr WM’s draft report because the mother opposed its tender in evidence. Both parties and the ICL made all the necessary submissions they desired to either press or oppose its reception in evidence. The trial judge’s reasons simply resolved the argument over admissibility and, incidental to such resolution, his Honour’s reasons acknowledged the mother’s own interpretation of the meaning and effect of the draft report.
The mother’s final complaint under the rubric of Ground 4 was that Dr WM’s draft report “add[ed] material weight to a wrongful finding that [she] has a delusional disorder”, but that was plainly wrong. The draft report was not received into evidence and was consequently entirely disregarded. The trial judge also expressly said the mother’s email to Professor F about the contents of the draft report would be disregarded. None of the trial judge’s reasons expressly or impliedly suggested the contrary. The finding about the mother’s sufferance of a delusional disorder was based entirely upon the evidence of Dr R, the single expert psychiatrist who succeeded Dr W in the proceedings.
Ground 4 therefore fails.
The mother’s submission about the denial of procedural fairness under Ground 8 primarily related to the trial judge’s reference to some notes prepared by staff of the contact centre at which the child spent supervised time with her between about August 2011 and August 2013. The notes were produced on subpoena and tendered in evidence.
The trial judge found (at [792] – [795]) that the child ceased spending supervised time with the mother at the contact centre because, as revealed by the contact centre records in evidence, the staff of the contact centre refused to have the mother back. That attitude resulted from the staff’s concern about her conduct, her failure to follow the staff’s directions, and her threat to the director of the contact centre over the telephone in July 2013.
The mother contended in her written submissions that she was denied procedural fairness because the trial judge “prejudicially published details of statements adverse to [her] character” made by the contact centre staff, failed to “identify facts that supported [her] account”, and failed to “make findings on these adverse statements”. She was mistaken. There was no publication of the evidence beyond the confines of the reasons for judgment and no need for the trial judge to waste time resolving a factual dispute between the mother and staff at the contact centre which would not have advanced the determination of proper parenting orders for the child. In her oral submissions, the mother said she was denied the opportunity to refute the claim that she threatened the director of the contact centre, but it was quite unnecessary for her to do so.
The trial judge merely sought to explain why the child was no longer spending supervised time with the mother when interim orders providing for it remained in force. The trial judge expressly said (at [794]):
I did not during this hearing attempt to resolve the rights and wrongs of the contact centre’s termination of their services to the mother and to have done so would not have been productive of the use of time in these proceedings … I do not, however, make any findings about whether or not the mother made threats directed at [the director].
Consequently, that aspect of Ground 8 fails.
The remainder of Ground 8 contained a collection of scurrilous accusations about the trial judge’s integrity, including his bias, or at least his conduct in a manner that engendered reasonable apprehension of his bias, and his intentional perversion of the course of justice. Because Ground 8 contained no particulars of such accusations it was necessary to turn to the mother’s submissions to illuminate her grievance, though they were of little help.
First, the mother asserted the trial judge “extensively misrepresented evidence related to risk to [the child] in [the father’s] care and disclosures made by [the child] and [her] evidence”. It was contended such misrepresentation constituted “misconduct in addition to apprehended bias”.
No factual discrepancy to which we were referred by the mother – even if it could be capably construed as a discrepancy – could reasonably be considered a factual mistake of such proportion that it materially affected the result, which it was necessary for the mother to demonstrate in order to sustain this argument (see House v The King (1936) 55 CLR 499 at 504–505; De Winter and De Winter (1979) FLC 90-605 at 78,091–092). It could hardly be doubted the trial judge accurately understood and explained the gist of the evidence in relation to each of the important findings he made on the evidence.
To illustrate, the first example of “misrepresentation” cited by the mother in her submissions was the trial judge’s reference to the contents of Dr WM’s draft report, the details of which have already been addressed in respect of Ground 4. There was a discrepancy between the text of the draft report and the mother’s interpretation of it in her email to Professor F, but not such as to materially alter the meaning and certainly not such as to render the trial judge’s finding on that issue incorrect.
Many of the other examples of “misrepresentation” cited by the mother were merely instances where the trial judge interpreted the evidence in a manner she did not like. For example, the trial judge referred to inconsistencies in the mother’s affidavit evidence (at [196], [217] – [227], [246] – [247], [253] – [257], [261] – [266], [406] – [413], [415] – [423], [920]) and inconsistencies in her prior representations (at [58] – [62], [186] – [190], [213] – [216], [234] – [236], [274], [335] – [349], [363], [393] – [394], [503] – [504], [665] – [666], [757] – [761]). The mother did not deny many of the inconsistencies, but rather explained they were the result of the manner in which her earlier affidavits were prepared by lawyers from whom she later withdrew her instructions or complained the trial judge should not have found any significance in them. The mother submitted:
[The trial judge] failed to appreciate that the evidence I documented myself has always been consistent. I cannot be held inconsistent because lawyers chose to document different evidence in affidavits prepared by them or because I failed to mention one detail at one interview when there are extensive details in this case.
The mother seemingly failed to appreciate that affidavits sworn or affirmed by her, even if drafted by others, comprised her evidence. She was the one who bore the obligation to ensure it was wholly truthful and accurate. We are not satisfied the trial judge “misrepresented” the inconsistencies and, even though the mother may have preferred his Honour did not take them into account, no error occurred by so doing.
Although the mother’s written summary of argument did not expressly say whether she contended the misrepresentation of the evidence was deliberate or inadvertent, there was no room for doubt following her oral submissions. She said the trial judge “falsified” and “intentionally manipulated” parts of the evidence. She even asserted his Honour was motivated to do so to “discredit” her. Suffice to say, none of the evidence to which the mother referred us in argument could possibly be a reasonable foundation for such contentions and they are rejected.
Secondly, the mother submitted the trial judge purposefully “forced” the appointment of two psychiatrists who were “known to be biased and unqualified” to pervert the course of justice in the trial. The reference to the two psychiatrists was a reference to two of the single experts appointed in the proceedings – Drs W and R.
Dr W was appointed as the single expert witness in the proceedings in February 2008. The appointment of an expert witness at that time was not controversial and, though the identity of the expert witness was not the subject of agreement, the mother acquiesced in the appointment of Dr W.
After the enforced return of the child and mother to Australia from overseas, in January and March 2011 respectively, interim orders were made in November 2011 appointing Dr Q as the new single expert witness. However, Dr Q wrote to the court in September 2012 advising she was no longer willing to fulfil the role and so, in October 2012, she was discharged and Dr R was instead appointed as the new single expert witness. The mother’s appeal against Dr R’s appointment was dismissed by the Full Court and her application for special leave to appeal to the High Court was also dismissed. Ironically, the mother originally proposed the appointment of Dr R as the single expert witness in 2008, which the trial judge noted (at [144]).
The upshot is that the mother accepted Dr W’s appointment as the original single expert witness and her later objection to the appointment of Dr R as the replacement single expert witness failed when reviewed on appeal. Accordingly, the trial judge did not “force” the appointment of either psychiatrist.
The mother’s suggestion that both of the single expert psychiatrists, or either of them, were “known to be biased and unqualified” was arrant nonsense. The trial judge gave comprehensive and correct reasons about the expertise of both (at [122] – [142], [148] – [151], [607], [645]) and for rejection of the mother’s offensive suggestion that they each had “professional” or “financial” relationships with his Honour (at [143] – [144], [668]).
Thirdly, the mother asserted the trial judge made an order permitting the father to distribute the “unfounded and unsubstantiated psychiatric report and addendum” of Dr R without providing any reason for such an order. However, the mother’s complaint was not about the alleged absence of reasons for the order, but rather how such circumstances amounted to “misconduct” which was “psychologically abusive” to her because of the adverse effect she perceived it would have upon her reputation.
Order 15 made by the trial judge provided as follows:
To avoid any doubt, pursuant to s 121(9)(g) Family Law Act 1975 (Cth) (“the Act”), the court approves the publication of these Reasons for Judgment, Orders and the report and addendum of Dr [R] to any of [the child’s] treating professionals; teachers and other professionals at [the child’s] school; any other professional who is consulted by the father about [the child’s] welfare; close relatives; friends and advisers of either of the parents on the basis that the contents of those documents are not disseminated more widely.
The trial judge did not conceive such an order from his imagination. The ICL sought orders to that effect, permitting the parties to furnish copies of the final orders and Dr R’s report to the child’s treating health professionals, the child’s education providers, and the mother’s health care professionals.
Contrary to the mother’s submissions, the trial judge did explain in his reasons why an order to that effect was warranted in the child’s best interests (at [965] – [970], [973]). Given the child’s best interests were the paramount consideration when determining what orders should be made (ss 60CA and 65AA), the mother’s concern that she would be embarrassed or “psychologically abused” by the release of such information to a relatively small group of people under the auspices of Order 15 was not particularly influential, much less determinative of the orders or demonstrative of misconduct by the trial judge.
The remainder of Ground 8 is therefore without merit.
Ground 7 – Adequacy of reasons
By this ground the mother asserts that the trial judge:
failed to accurately identify the material facts and circumstances in this case leading to a failure to find that the child was at an unacceptable risk in contact with the father pre the mother’s departure and is at an unacceptable risk in the father’s care and that there is no psychological risk or other risk in placing the child in the mother’s care and that there is a strong benefit to the child’s wellbeing in placing the child in the mother’s care
The premise of this ground of appeal is the extraordinary proposition that the trial judge “failed to accurately identify the material facts and circumstances in the case”, and that led his Honour into error in the findings that he made.
A plain reading of his Honour’s reasons for judgment immediately dispels any basis for that proposition.
In a judgment of nearly 200 pages his Honour painstakingly and methodically recounts the facts and circumstances of this unfortunate period in the lives of the parties and the child, as well as carefully detailing the issues and concerns raised by the parties, and setting out in a fulsome way the evidence of the experts.
In that process his Honour crystallises the relevant matters for consideration and provides an exhaustive analysis of the evidence in support of his findings. Importantly, it is readily apparent that his Honour addresses and considers “the material facts and circumstances” relied on by the mother to establish on the one hand that the father has abused the child and there is an ongoing unacceptable risk of harm to the child in the care of the father, and on the other hand that there was no risk of psychological harm (or indeed any other risk) in placing the child in the mother’s care (for example see [203] – [334], [406] – [483]).
In these circumstances the complaint by the mother becomes nothing more than her assertion that because his Honour did not accept her evidence and did not agree with her views about the expert evidence, his Honour’s identification of the material facts and circumstances are not “accurate”. There is no validity to that assertion and there is no merit in this ground of appeal.
Application in an appeal seeking to adduce further evidence
On 3 September 2015 this court gave the mother leave to file an application to adduce further evidence, with such evidence being limited to the evidence identified as not having been before the trial judge in the “table of evidence” filed by the mother on 13 July 2015.
That table was a document purporting to cross-reference the paragraphs of the mother’s summary of argument with the transcript of the hearing before the trial judge, the exhibits tendered before his Honour, and the documents in the appeal books; in other words, cross-referencing with the evidence that was before his Honour. However, in preparing that document the mother had included evidence that was not before the trial judge, and in accordance with our order, that evidence then became the subject of this application.
We note that the application is opposed by the father and by the ICL.
The evidence was annexed to the affidavit of the mother filed with the application on 9 September 2015.
In her affidavit the mother describes this evidence in this general way:
6.In order to consider adverse findings made against me that were not raised during the final hearing and therefor I did not previously have an opportunity to respond to them, I have sought to adduce new evidence.
Specifically the evidence comprises the following:
a)An email sent by the father to Dr W, psychiatrist, on 13 May 2008. The mother alleges that this letter contained “lies” and “unfounded adverse allegations about [her]”. The mother then alleges that this document “formed the basis on which [Dr W] wrote his 27 May 2008 letter”, and upon which the mother says the trial judge relied in his findings as to her mental health.
b)A series of emails passing between the mother and a family day care service dated 20 April 2007, 14 May 2007 and 19 December 2013. The mother says that those emails demonstrate that his Honour was wrong in his findings as to the credit of the parties.
c)Extracts from the transcript of the hearing in the District Court which the mother says demonstrate that the father was not telling the truth before his Honour.
d)Emails passing between the mother and a doctor at the RR Hospital Child Protection Unit in 2007 and 2008. The mother says that these emails demonstrate that she believed that the father was sexually abusing the child during supervised time at a contact centre.
e)The reasons for judgment delivered by the trial judge on 22 November 2012 refusing to stay his order appointing Dr R as the single expert in this matter, the written submissions of the mother dated 15 November 2012 as to why a stay should be granted, and the order of the Full Court made on 14 December 2012 allowing the mother’s appeal against the refusal of the stay, and staying the order pending an appeal against that order. It is unclear to us what the relevance of this evidence is, but it seems that the mother complains that in his reasons for judgment the trial judge failed to mention her argument as to why there should have been a stay. Apparently this is said to demonstrate that his Honour wrongly determined that Dr R had “the expertise to provide opinion on child sexual abuse (or delusional disorders)”.
f)A letter from the Government agency Medical Officer dated 8 April 2010, sent to a psychiatrist who was assessing the father at the time.
g)Progress/clinical notes made by a doctor of AC Family Service identifying the possibility of the mother having an undiagnosed mental illness. The mother says that this evidence demonstrates how the Family Court relies on assertions about mental illness in mothers, rather than properly investigating child abuse.
h)Documentary material in relation to the mother allegedly making threats to a member of the staff at the C Contact Service in July 2013. The mother says that she was wrongly accused of making threats, but as a result of this the Centre withdrew their services and his Honour then dismissed her application for “unsupervised contact” with the child. And because there was no alternative service available for the purposes of supervised time, she was unable to spend any time with the child.
Section 93A(2) of the Act provides that in an appeal the Full Court can, in its discretion, receive further evidence upon questions of fact. In CDJ v VAJ (1998) 197 CLR 172, the High Court discussed the circumstances in which an appellate court may exercise its discretion to admit further evidence. Importantly, at 201 McHugh, Gummow and Callinan JJ said this:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
Their Honours then continued at 202:
111.… Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
And relevantly their Honours then said this at 203 – 04:
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
In addition to those principles, it is well established that where the further evidence sought to be adduced is controversial, and would result in responding evidence being required, and the need for cross-examination, then this court will not permit that evidence to be adduced. The principal reason for that is that an appeal court is not set up to be able to hear disputed evidence.
Applying those principles to the categories of the further evidence sought to be adduced, we find as follows:
a)Clearly the contents of the email/letter are controversial and would require evidence from the father, and perhaps even Dr W, and inevitably require cross-examination. However, and perhaps more significantly, it has not been demonstrated that the email was the sole basis for Dr W’s opinion, and nor has it been demonstrated that the trial judge relied solely on that opinion in making his finding as to the mental health of the mother. For example, there was the diagnosis of Dr R as well. In short then, it has not been established that if accepted, that evidence would “demonstrate that the order under appeal is erroneous”, and we are not “satisfied” that the further evidence would have produced a different result if it had been available at the trial.
b)We are not satisfied that these emails demonstrate that his Honour was in error in his findings as to the credit of the parties. In any event, the issue that is said to be the subject of these emails plainly was not the only issue which led his Honour to make the findings that he did as to the credit of the parties. Again, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial.
c)We are not persuaded that the extracts of the father’s cross-examination during the hearing in the District Court demonstrate that the father was not telling the truth before his Honour. It is said that this evidence goes to the credibility of the father, but plainly it is controversial, and for that reason would not be admitted. Further, it has not been established that that evidence, if accepted, demonstrates that the order under appeal is erroneous. We also observe that much of the transcript of the hearing before the District Court was tendered before his Honour, including the father’s cross-examination, and accordingly this was available at the trial.
d)It is unclear to us on what basis this further evidence can be said to demonstrate error by the trial judge. Ultimately his Honour found that the mother believed that the father had sexually abused the child, including during supervised time at the contact centre. We are not persuaded that there is any basis established for admitting this evidence.
e)Similarly, we fail to see how this evidence, if admitted, would demonstrate error by the trial judge. His Honour’s findings as to the weight to be accorded to the opinions of Dr R were in no way dependent upon what the mother thought about the qualifications or expertise of Dr R. Again, there is no basis established for this evidence to be adduced.
f)It seems that the mother’s reasoning as to why this evidence should be admitted is that there was no such evidence in relation to her mental health, and thus his Honour erred in his findings as to that. That is not a basis for this evidence to be admitted; it does not demonstrate error by the trial judge.
g)We have set out above the expressed basis for admitting this evidence. However, that is misconceived, and it is not recognisable as a basis for admitting the evidence applying the principles emanating from CDJ (supra).
h)As the mother concedes, his Honour made no findings as to the threats allegedly made by the mother to a member of the staff at the contact centre. Further, his Honour dismissed the mother’s application for reasons other than the alleged threats. We also fail to see how this evidence has any relevance to the final orders made by the trial judge, and which are the subject of the appeal. Again, no basis has been established for the admission of this evidence; it does not demonstrate error by the trial judge in the final orders that he has made.
We also note that all of the evidence sought to be led by the mother was available at the time of the hearing before his Honour. As recognised by the High Court in CDJ, that circumstance can be fatal to an application to lead that evidence, and although we do take that into account in reaching our decision, we have not placed great weight upon it. Rather, we propose to dismiss the application given that it has not been established that, if accepted, the evidence would demonstrate that the orders under appeal are erroneous, and we are not satisfied that the evidence would have produced a different result if it had been presented at trial.
For completeness, we observe that as part of the application in an appeal the mother sought to provide this court with a corrected version of her analysis of the report of Dr W dated 3 April 2008, and which analysis was before his Honour. We were informed by the mother that the content of the document was the same, but corrections were made to some of the references. On that basis we received this amended document, but of course, as is obvious, not on the basis of it comprising further evidence.
Conclusion
Having found no merit in any of the grounds of appeal, the appeal must be dismissed.
Costs
At the conclusion of the appeal we sought submissions from each of the parties in relation to the issue of costs, depending on the result of the appeal.
In the event that the appeal was unsuccessful, the father sought an order for costs, but the ICL did not.
The mother opposed any order for costs against her, but in the alternative sought that the issue of costs be reserved until she had appealed to the High Court.
There is no basis to reserve the question of costs, and we will address the issue now.
Section 117 of the Act governs the question of costs. The primary rule in that section is that each party should bear their own costs (s 117(1)), but if there are circumstances that justify it, the court is able to make an order for costs (s 117(2)). In addressing that question the section directs the court to the factors set out in s 117(2A).
In support of his application for costs, the father relies on the fact that the appeal has been wholly unsuccessful (s 117(2A)(e)), and for our part, that provides the justifying circumstance for an order to be made.
The mother resisted an order for costs on the grounds that such an order would be oppressive, that she had genuinely run her appeal, that the appeal was in relation to a parenting matter, and because of her dire financial circumstances.
There is no doubt that the mother ran her appeal on the basis that she genuinely considered it had merit, but that does not overcome the fact that the father has been put to substantial costs in meeting an entirely unmeritorious appeal. Nor does the fact that parenting orders were in issue alter this outcome. As to her financial circumstances, it is apparent that they are dire, but as the father’s advocate points out, this court has said on many occasions that although a relevant factor, it is not a bar to a costs order being made where there are circumstances that otherwise justify that result (D & D (Costs) (No. 2) (2010) FLC 93-435). That is the case here.
In these circumstances we will make the order sought by the father.
I certify that the preceding three hundred and eighty-six (386) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 26 May 2016.
Legal Associate:
Date: 26 May 2016
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