Syms & Syms

Case [2021] FamCAFC 38

FAMILY COURT OF AUSTRALIA

Syms & Syms [2021] FamCAFC 38

Appeal from: Syms & Syms [2019] FamCA 724

Appeal number(s):

EAA 120 of 2019

File number(s):

NCC 1457 of 2018

Judgment of:

ALDRIDGE, WATTS & AUSTIN JJ

Date of judgment:

26 March 2021

Catchwords:

FAMILY LAW – APPEAL – PARENTING – Unacceptable risk – No unacceptable risk of sexual abuse by father – Risk of emotional harm in the care of mother – Discretionary judgment – Findings open on the evidence – Adequate reasons – Permanent supervision – Appeal dismissed – Mother to pay the costs of the father and the Independent Children’s Lawyer in a fixed sum.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Controversial evidence – Not satisfied that further evidence would have produced a different result – Application dismissed.

Legislation:

Family Law Act 1975 (Cth) s 117

Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Betros & Betros [2017] FamCAFC 90

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317

Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

M v M (1988) 166 CLR 69; [1988] HCA 68

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Division:

Appeal Division

Number of paragraphs:

147

Date of hearing:

2 February 2021

Place:

Sydney

Counsel for the Appellant:

Mr Fowler

Solicitor for the Appellant:

Kyle & McGowan Family Law

The Respondent:

Self-represented litigant

Counsel for the Independent Children's Lawyer:

Mr Mueller

Solicitor for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

EAA 120 of 2019
NCC 1457 of 2018

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MS SYMS

Appellant
AND:

MR SYMS

Respondent
AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, WATTS AND AUSTIN JJ

DATE OF ORDER:

26 MARCH 2021

THE COURT ORDERS THAT:

1.The balance of the Application in an Appeal filed on 30 June 2020 be dismissed.

2.The appeal be dismissed.

3.The appellant mother pay the respondent father’s costs of the appeal fixed in the sum of $2,574.

4.The appellant mother pay the Independent Children’s Lawyer’s costs of the appeal fixed in the sum of $4,140.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Syms & Syms

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Details
AGLC
Syms & Syms [2021] FamCAFC 38
Case
[2021] FamCAFC 38
Decision Date

CaseChat Overview and Summary

The case of Syms & Syms involves an appeal by the mother against certain parenting orders made by the Family Court of Australia. The dispute centres on the risk of harm to the three children, X, Y, and Z, in the care of both parents, particularly focusing on allegations of sexual abuse by the father and the mother's conduct in handling the situation. The father and the Independent Children’s Lawyer opposed the mother's appeal.

The primary legal issues the court had to decide included whether the father posed an unacceptable risk of harm, particularly sexual abuse, to the children and whether the children were at risk of emotional harm in the care of the mother. Additionally, the court had to determine whether the mother's Application in an Appeal to adduce further evidence should be allowed and whether such evidence could potentially change the outcome of the appeal.

The court concluded that there was no unacceptable risk of sexual abuse by the father, supported by the findings of the investigating authorities. However, the court found that the children were at risk of emotional harm in the care of the mother, particularly due to her handling of the children's sexualised behaviour. The court found the mother's Application in an Appeal to adduce further evidence to be unsuccessful, as the court was not satisfied that the additional evidence would produce a different result. The reasoning provided by the primary judge was deemed adequate, and the findings were open on the evidence presented. The appeal was ultimately dismissed, and the mother was ordered to pay the costs of the father and the Independent Children’s Lawyer.

Orders

Orders of the court

ORDER MADE BY:

ALDRIDGE, WATTS AND AUSTIN JJ

DATE OF ORDER:

26 MARCH 2021

THE COURT ORDERS THAT:

1. The balance of the Application in an Appeal filed on 30 June 2020 be dismissed.

2. The appeal be dismissed.

3. The appellant mother pay the respondent father’s costs of the appeal fixed in the sum of $2,574.

4. The appellant mother pay the Independent Children’s Lawyer’s costs of the appeal fixed in the sum of $4,140.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Syms & Syms has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Background

Background to the litigation

The mother has appealed from those orders. The appeal was opposed by the father and the Independent Children’s Lawyer.BACKGROUND In order to understand the appeal and the mother’s Application in an Appeal to adduce further evidence (discussed below), it is necessary to set out a history of the allegations. This summary is primarily based on the reasons for judgment of the primary judge because, despite the terms of Ground 1, there was ultimately little challenge to her Honour’s primary findings of fact. The parties met in Canberra and spent the early part of their relationship there. The father was employed as a senior public servant. X was born in Canberra in 2008. In October 2009, the mother and X moved to Asia where the father had been working. Y and Z were born there in 2010 and 2012, respectively. In February 2013, the parties returned to Canberra and in November of that year, the mother returned to work for three days per week. X started kindergarten in 2014 and sometime during that year, or possibly the next year, the mother heard X say to Y, “This is our secret” (at [84]). The mother saw X trying to kiss Y who was then three or four years old. Also during 2014, X’s kindergarten teacher contacted the mother regularly about his poor behaviour. The mother noticed him having screaming nightmares and to be preoccupied with “bottoms, bottom holes and penises” (at [91]). X’s difficulties at school seemed to continue because his teacher told the mother several times during 2016 that X had been “difficult and defiant in class” (at [96]). X also informed the mother that “[s]ome boys are touching each other’s bottoms and penises in the boys’ toilet at school” (at [99]). The mother did not raise this with the school or seek any professional advice. In late November 2016, the father’s work required the family to move to Country J. It was envisaged that he would be working there until November 2019. A short time after they arrived in Country J, X told his parents that he hated the school that he had attended in Canberra and never wanted to go back there. The primary judge considered that there was “a real possibility that X had been hurt or abused, or both”, whilst at that school in Canberra (at [116]). Between February and April 2017, the mother noticed the children touching each other’s genitals and bottoms over their clothes, but also in the bath. The mother described this as “sexualised behaviour” (at [117]), which was occurring every day. The mother said that she told the children, “Stop behaving in that way. We don’t behave in that way in this family and we don’t touch each other’s bodies in any way” (at [118]). The mother stopped bathing the children together and obtained a copy of a book titled “It’s so Amazing!” (Exhibit 9). The primary judge described this book as rating itself as suitable for children aged seven years and up and covering topics such as “sexual intercourse, pregnancy, birth, different sexualities, masturbation, HIV/AIDS and adoption, all in considerable and graphic detail” (at [122]). The mother read this to each of the children, including Y and Z, who were then four and six years old. The mother agreed in her oral evidence that it was probably a mistake to have read the book to the children.

Evidence

Evidence Before The Court

These opinions of the single expert support her Honour’s conclusions that the father had not sexually abused the children and did not pose an unacceptable risk of harm to them, but that the children were at risk of emotional harm in the care of the mother. The primary judge’s conclusion was also consistent with that of the investigating authorities after three separate sets of interviews (at [34]).APPLICATION IN AN APPEAL TO ADDUCE FURTHER EVIDENCE By an Application in an Appeal filed on 30 June 2020, the mother sought to adduce further evidence in the appeal as well as variety of procedural orders. The latter were dealt with by Ryan J on 22 July 2020. At the outset of the hearing of the appeal, counsel for the mother said that the further evidence that was sought to be relied upon in the appeal was as follows:·a letter from Ms KK, Deputy Secretary from the relevant child welfare authority dated 4 June 2020; and·field assessment report prepared by the relevant child welfare authority with the date 12 July 2018 on the cover sheet (“the field assessment report”). In order to understand the asserted importance of these documents, it is necessary to give some further background. As has been explained, the children were each interviewed by JIRT on two occasions and by the Australian Federal Police once. Reports were also made directly to the relevant child welfare authority. No action was taken in response to those interviews or reports. On 6 July 2018, after the first JIRT interview on 23 April 2018, at the request of the Court, the relevant child welfare authority filed a Magellan Report. It set out a history of its responses to various notifications, interviews with the children and investigations that it had made. The Magellan Report dated 6 July 2018 concluded:… JIRT’s current investigation and assessment does not substantiate sexual abuse of [X], [Y] and [Z] by [the father] … JIRT identifies concerns in relation to suspicious indications of abuse and risk of sexual harm.… JIRT determines [X], [Y] and [Z] are not in need of care and protection. The level of future risk for [X], [Y] and [Z] is assessed as low.(Magellan Report dated 6 July 2018, p.7) The Magellan Report was signed Ms MM as “Acting Manager Casework per”. It is unclear, therefore, whether Ms MM herself signed the Report or, indeed, finalised it. It is apparent from Ms KK’s letter dated 4 June 2020 that it was written in response to a complaint made by the mother about the conduct of the relevant child welfare authority. Relevantly, for present purposes it states:… In regards to your request for a written response detailing how [the relevant child welfare authority] reached the conclusion that [the father] was not a risk to the children, this is unable to be provided as [the relevant child welfare authority] did not assess or conclude that [the father] was not a risk to your children, [X], [Y] and [Z].The 2018 assessment found there were suspicious indicators of sexual abuse and substantiated risk of sexual harm by [the father] to [X], [Y] and [Z].The 2019 assessment found there was a risk of physical, sexual and psychological abuse by [the father] to [X], [Y] and [Z].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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