Syms & Syms
[2021] FamCAFC 38
•26 March 2021
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 2018APPEAL 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 has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, WATTS & AUSTIN JJ:
INTRODUCTION
This appeal is against final parenting orders made by a judge of the Family Court of Australia on 10 October 2019 in relation to three children, X born in 2008, Y born in 2010 and Z born in 2012 (“the children”). At trial, Ms Syms (“the mother”) alleged that the children were at unacceptable risk of sexual abuse by Mr Syms (“the father”) and accordingly, they should not spend any time with him or communicate with him.
The primary judge did not accept the mother’s contentions. Her Honour found that there was “no unacceptable risk of harm or abuse for the children in the care of the father” (at [23]). However, the primary judge found that there was a risk of emotional harm for the children in the care of the mother and that if they remained in her care, they would “most likely … lose contact with their father and … accept, from the mother, that … he was a dangerous and abusive father” (at [35]).
Accordingly, the orders provided for the children, who had been in the primary care of the mother for all of their lives, to live with the father, who was to have sole parental responsibility for them. There was a four month moratorium on the children spending time with the mother or the maternal grandparents. After that, the children’s time with the mother was to be supervised by a professional supervisor or contact service, until the father, in his absolute discretion, determined that supervision was no longer required.
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.
By April 2017, the mother was describing the children’s behaviour as being “out of control” and referring to the children as “broken” (at [125]–[126]). At some stage around this time, X told the mother that he was not safe, that something had happened and that someone had touched his penis. The mother did not ask who but suspected that it was the father (at [128]).
The behaviour and happiness of the children continued to decline over the next three months. Each child started having nightmares, X and Y were wetting the bed and Z was soiling his pants. The children’s behaviour was described by the mother as “defiant, emotional and destructive” (at [134]).
In mid-2017, the family returned to Australia for a holiday and stayed at the paternal grandmother’s home. During this holiday, the mother left to visit the maternal grandfather, leaving the children in the care of the father and the paternal family.
Sometime after their return to Country J, in October or November 2017, Z and Y told the mother that X had tried to touch them on the penis. On another occasion, Z told the mother that X came into his bed and kissed his penis. This led to the parties sitting down with the children and having a discussion about touching and personal space. Later in a police interview, the mother said that after this conversation, Z had said to her, “[X] told me, ‘if you tell anyone, I’ll kill you’” (at [143]). The mother immediately thought that not only was the father abusing X, he was also abusing Z.
In late November 2017, X was accidently exposed to an explicit pornographic photo on an iPad at school. This led to a further discussion between X and the mother about his “sexual behaviours” and she said that X told her “that he did not know when it started and he did not know when it would stop” (at [145]). In a further conversation shortly after this time concerning X’s “sexual behaviours”, the mother asked him “was it Daddy?” to which X replied “probably” (at [150]).
The family returned to Australia in December 2017 for a holiday. On 27 December 2017, the mother consulted her general practitioner and was diagnosed with depression. She informed the doctor that something had happened to X and Y. The doctor made a report to the relevant child welfare authority. On 28 December 2017, the mother shared her concerns that someone was abusing the children with the maternal grandmother and allowed the maternal grandmother to guess that the concerns were about the father.
The mother was referred to a psychologist and advised to stay in Australia for at least six weeks so that her health could be monitored. Accordingly, on 4 January 2018, the father returned to Country J alone. The primary judge found that by this time, the mother and the maternal grandparents had become convinced that the father was a paedophile. There is no challenge to that finding.
Problems with the children’s behaviour again emerged in mid-January 2018. Whilst they were playing in the bath, Z told Y that he would put the plunger from the hand bath in Y’s “butthole” and that it would feel nice (at [172]). A few days later, the mother saw them touching each other’s penises. At one stage, Y and Z started playing with each other’s penises whilst clothed in the back seat of the car. The maternal grandmother stopped the car and told the children that they should not touch each other’s penises or keep secrets. X then said to the mother, who was also in the car, that he could tell the maternal grandmother the secret, but not her. X then spoke separately with the maternal grandmother, after which, the maternal grandmother told the mother “it was [the father]” (at [181]). Finally, Z said to the maternal grandmother “Daddy has taken me to a secret place in the cupboard, in the suitcase. He would cuddle me and touch my penis” (at [182]).
On 20 February 2018, the mother advised the father that neither she nor the children would be returning to Country J and that he should not come near her again.
On 23 February 2018, the mother spoke with a police officer. On the same day, Y told her that “Dad would touch my bottom at night time” (at [186]). Z also said that the father used to slap him on the buttock and “kissed his penis three times whilst the [children] were at basketball” (at [186]).
According to the mother, after she returned from the police station, the maternal grandmother said to the children “who will brave enough to tell [m]um exactly what happened?” (at [187]). Y put his hand up and said that the father “slapped him on the bottom, touched his ‘butthole’ and also rubbed [his] ‘nuts”’ (at [187]). Z said that it had happened to him as well.
The father returned to Australia on 25 February 2018, and on 26 February 2018, he went to the maternal grandparents’ home to visit the children. The mother informed him that there were no secrets anymore and said “you know what you’ve done” (at [196]). To make matters perfectly plain, the maternal grandfather told the father that he was a paedophile and “the children’s secret was out” (at [198]). The children did not see the father for seven months after this event.
On 16 March 2018, the children were referred to the C Town Sexual Assault Service and commenced counselling for sexual abuse. The children’s behaviour continued. On 31 March 2018, the maternal grandmother saw Z insert his own finger into his anus. On 8 April 2018, Z tried to kiss Y on the lips.
The children were each interviewed by the Joint Investigation Response Team (“JIRT”) on 23 April 2018. There was nothing that was said by Z which would give rise to a finding of sexual abuse. Because it became contentious in the appeal, it is appropriate to set out the primary judge’s summary of what Y said, which was:
225.[Y], aged seven, appeared hesitant and stared at the interviewer’s face, perhaps for cues.
226.[Y] made statements suggestive of abuse “He was doing stuff our Mum didn’t know so we had to tell our Mum” and “He was touching our penises and all that rude stuff. Smacking bottoms until we cried”.
227.From there [Y] did not seem to know any detail. He could not say what happened, “I actually don’t know the answer”. He did say “We would all touch each other’s penises because he did that to us”. He was clear to say the touching was on top of clothes.
228.[Y] later made the statement “We would start doing wrestling and start touching penises to get them down.”
229.The description suggests children “cheating” in a wrestling game, going for the genitals of another child so he would fall to the mat and lose.
230.[Y] did not appear to be describing abusive events which had happened to him.
(Emphasis removed)
The controversy was that the mother submitted that the primary judge’s finding that Y did not appear to be describing events that had happened to him (at [230]), applied only to [228]–[229] and not [226]–[227] outlined above. We do not agree. The statements made at [226] are general and relate to all of the children, as do the descriptions in the remaining paragraphs. We consider that her Honour’s summary that Y was not describing abusive events that had happened to him, applies to all of the paragraphs outlined above.
X told the JIRT interviewers that the father was not a nice person but when asked why, he would not answer. Eventually, X wrote down on a piece of paper, “He touched our penises” (at [237]), and declined to say more. Her Honour said:
239.I formed the impression that [X] was feeling pressured and trying to do the right thing. I am not confident that he knew what that right thing was.
There is no challenge to that finding.
The mother was very upset with what had occurred at the JIRT interviews. She yelled at the children and said: “I have spoken to the people I need to, to keep you safe, but you didn’t talk to them. I know things have happened to you, you told me that things have happened to you” (at [242]).
The primary judge concluded that X understood that he had to do something to meet the mother’s expectations. While the mother went for a walk along the beach, X wrote a handwritten note which was the story of each child in the family being born and then being touched on the penis by the father. Her Honour said that “[X] must have felt desperate to put things right” (at [247]). Again, these findings are unchallenged.
Proceedings were commenced by the father in the Family Court of Australia on 14 May 2018.
On 6 July 2018, a Magellan Report was released. The allegations of sexual abuse were categorised as unsubstantiated in that report.
On 19 September 2018, the children were interviewed at school by the Australian Federal Police. The primary judge found that nothing was said by Z or Y that would give rise to a finding of sexual abuse by the father. X told the police that “Dad touched our penises”; “it was gross he did it when I was sleeping and stuff” (at [288]); and “he did poke his hand up our bottom, all four fingers. All of us” (at [289]).
In unchallenged findings, her Honour said:
295.I had the clear impression that [X] was not describing a remembered event or events but was intent on stating the words “he touched our penises”.
296.I do not consider that [X] was making a spontaneous disclosure of abuse. First, because he did not to any extent appear to be describing something that had really happened to him. Second, because this was his second formal interview. Third, because he had already been questioned by his mother and grandmother and counselled by sexual assault counsellors on the basis that he was the victim of assault.
On 21 September 2018, interim parenting orders were made for the father to spend time with the children, which was to be supervised by the paternal aunt. There is no doubt that the children were happy to see the father when contact was resumed.
The mother was ordered to cease the children’s counselling with the C Town Sexual Assault Service, but was permitted to engage a psychologist for the children, on the condition that both parents were involved in the process. The children did not start seeing a psychologist as permitted until May 2019.
On 2 November 2018, after a weekend visit with the father, the mother said that she noticed that Z was very red around his anus. She took a photo and applied some cream. The father had taken the children to a beach. The mother formed the view that the redness was not from the sand at the beach in his wet swimmers.
The father again took the children to a beach on 15 December 2018. The children later told him that when they returned to the mother, she and the maternal grandmother examined their bottoms. The father also said that Y told him that “[the maternal grandmother] says the rash on Z’s bottom was not from the sand in his wet swimmers. She said that was rubbish and that you had done it” (at [313]).
On 25 December 2018, Y told the mother that when they were in Country J the father “would stretch [his] penis until it hurt” and that he did it “about 20 times or [five] times” (at [314]).
The maternal grandfather gave evidence that on 12 January 2019, he heard Z say that the father touched his “butt” while he was in the water on a bogey board (at [315]). On the following day, Z told the mother that “the father touched his penis and put his finger in his butthole” while they were out in the water on bogey boards (at (316]).
The mother told a health worker, who reported it to the relevant child welfare authority, that the father “took [Z] behind a rock on his boogie board and digitally penetrated his anus twice on the same day” and that the father had “put sand down [Z’s] bottom to make it look red” (at [340]). She showed the health worker a photograph of Z’s anus.
This led to a third interview with Y and Z, this time by JIRT, which took place on 30 January 2019 at school, without the prior knowledge of the mother.
When asked “did Dad do something”, Z replied in a manner described by the primary judge as “breezily”, that “[h]e touched us in the penis and the butt” (at [346]). Z said this happened in Canberra and Country J.
Z denied that the father had sexually abused him behind a rock at the beach and said that “[i]t hasn’t happened at the beach, but I did tell her [the mother] it happened” (at [348]).
The primary judge concluded that “[d]espite what on the face of it is one allegation I do not consider that there is anything in this interview which would give rise to a finding of abuse by the father” (at [352]).
Y also said that the father “put his penis up our butt” in Canberra and Country J (at [359]).
Her Honour said:
360.This standard phrase using the plural pronoun was delivered, without affect, as an afterthought.
361.The father states he was told that the police believed that the children had been coached. Whether he was told that or not, there was no further action by police. In my view that was a realistic outcome.
The mother said that on 9 February 2019, X told her that “the father touched him in the water at the beach and put his penis in his bottom” (at [365]). The mother reported that to the police two days later.
X was interviewed for the third time by JIRT on 14 February 2019, he said that the father had done “some bad things to [the children]” ever since he had been born (at [369]). The primary judge described it in the following way:
370.What followed was [X] pouring out information:
The Court said we could see him every fortnight. He’s done it then.
He’d touch our penis. He’d put his penis up our bottom. He’s put sand on his penis to send a message to Mum and [the maternal grandmother] and [the maternal grandfather] that it was sand making our bottoms red. He put his fingers in our bottom.
371.As [X] went on his desperation was revealed: “He’d do it in the water three times the week he saw us. He couldn’t do those things some visits because we went to cinemas or something instead”, “Dad helped [the paternal aunt] set up the beach tent. Dad didn’t get to do it then because [the paternal aunt] was there”.
372.[X] described an incident where he was standing in the surf, with other people around, with the water up to his [X’s] chest. His father then put his penis in [X’s] bottom for 10 seconds having first put a handful of sand on his [the father’s] penis.
373.It is a story that simply cannot be true to any extent.
This led the primary judge to conclude that “[X] knew it was up to him to prove that [the father] was an abuser and he did his very best” (at [379]). Z told the father that X’s tablet had been taken away from him because he did not tell the policemen what he was supposed to during an interview. Her Honour said that, if this was correct, “[X] was being punished by the maternal family” (at [381]).
The primary judge had the assistance of Dr M, a single expert psychologist (“the single expert”) who conducted a series of interviews on 4 February 2019.
The primary judge summarised the children’s interviews in the following way:
500.[X] told the single expert he did not want to see his father again. He poured out information about being abused and anally raped by the father in the water at the beach. His paternal aunt, he thought, could not see what was happening.
501.He also mentioned bribery, with his father saying to him “if you let me do the bad stuff I’ll buy you toys”.
502.He had not seen anything happening to his brothers but believed the same things happened to them.
503.In the same interview, [X] said he liked that his father took them to the beach to his apartment or to a movie.
504.[Y] too reported abuse at the beach “he touches us on the penis in the water” noting that he said it “was weird because he didn’t feel it”.
505.He was otherwise positive about his father.
(Footnote omitted)
It is clear from the single expert’s evidence, taken as a whole, that she was very sceptical as to whether any abuse had in fact occurred. She was of the view that there were risks with the children remaining with the mother. The single expert said:
245.The risks in this scenario are that the children will continue to develop erroneous and bizarre ideas about what has happened to them. It seems to me that the children are already developing incredulous ideas about what has been happening to them, such as that they have been raped at supervised contact. Once these sorts of views have cemented, it can become almost impossible to disabuse a child of the notion that such abuse has occurred. The risk is, that the child will continue to develop absurd or distorted ideas about their own autobiographical experiences. I think this is already occurring. For example, although it appears from the account of both of the parents that the children enjoyed many aspects of their life in [Country J] and missed their friends, school and their father when they returned to Australia, the views expressed to me by the children suggested that they were starting to reappraise this time as a negative time in their lives and were negative and critical about matters such as their friends and their school in [Country J]. This sort of post-hoc reappraisal suggests that the children may continue along this trajectory. The risk is that the children will come to believe negative and untruthful things about their early life and ultimately come to believe that their father was a sexual predator who abandoned them and who wreaked havoc on themselves and their family.
246.A further risk in this scenario is that the children may, over time, internalise the loss of their father. As they grow and develop the children are likely to identify aspects of themselves that are similar to their father. The risk in this scenario is that the children will suffer from a range of psychological problems, including feelings of abandonment and concomitant problems with identity.
(The single expert’s report dated 29 March 2019)
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].
We were informed, without contradiction, that the field assessment report is the “2018 assessment” referred to in Ms KK’s letter outlined above. The field assessment report is a seven page document plus a cover sheet. It is not easy to follow.
On pages 6 and 7, the document sets out the steps taken between 17 April 2018 and 22 June 2018. At pages 5 and 6, the “Assessment History” is set out. From that section, it appears that on 2 August 2018, Mr LL who is described elsewhere as a case worker, took the action described as “Record locked”. On 3 August 2018, Ms MM “unlocked” the record. The next and latest entry in that section is on 27 August 2018, when Mr LL took the action described as “Changed Assessment Status from Incomplete to Completed.” This is the latest dated entry on the document. Page 1 records that the start date of the document was 17 April 2018 and the end date was 27 August 2018.
On page 2, there is a separate entry for each child which is in identical terms and states as the issue type as “SEXUAL ABUSE: Suspicious indicators consistent with sexual abuse”. The status is recorded as “Substantiated”.
On page 3, an entry describes the father as “POI”, which stands for Person of Interest. We understand that as meaning that the father, at most, was considered to be a suspect, but most likely something less than that.
The coversheet is dated 12 July 2018, some six weeks before the last entry in the field assessment report itself, and bears the name of Ms MM as the approving manager.
The “2019 assessment”, as referred to in Ms KK’s letter dated 4 June 2020, has not been located.
The mother submits that Ms KK’s letter dated 4 June 2020 and the field assessment report, if admitted, will demonstrate error on the part of the primary judge because her Honour recorded that the relevant child welfare authority had not substantiated the allegations of sexual abuse.
We commence the discussion of the issue by observing that we do not accept the accuracy of Ms KK’s summary contained in her letter and outlined above. Whilst the field assessment report did substantiate “[s]uspicious indicators consistent with sexual abuse”, it did not go on to say that either there was a substantiated risk of sexual harm to the children or that the risk of sexual harm was by the father.
In any event, Ms KK’s description of the field assessment report would carry very little weight, if any, if the field assessment report itself was received into evidence.
It follows, however, that Ms KK’s description of the “2019 assessment”, which has not been located, is likely to be controversial.
We return to the Magellan Report dated 6 July 2018 and signed by Ms MM or on her behalf.
The primary judge does not record any event of significance occurring between the date of the Magellan Report (6 July 2018) and the last date appearing on the field assessment report (27 August 2018).
The Magellan Report found sexual abuse by the father not to be substantiated but that there were “suspicious indicators of abuse and risk of sexual harm”. It may be that when the field assessment report is properly explained, there may be little difference between it and the Magellan Report. If there is a difference in that one points to the father and the other does not, then that difference and how it arose would need to be explained.
In short, the field assessment report is a controversial document, which if admitted into evidence, would almost certainly be the subject of evidence and cross-examination.
The primary judge viewed all of the JIRT and Australian Federal Police interviews in full, and considered all of the primary material placed before the Court. It is absolutely clear that her Honour formed her own view of the children’s allegations recorded in that material. Having done so, we consider it most unlikely that the opinion of a case worker, formed on the basis of unidentified material, would outweigh those findings and lead to a different result.
Finally, it was accepted that the field assessment report was included in the documents produced in answer to a subpoena prior to the hearing before the primary judge. It was thus available to be tendered at the hearing before the primary judge by the mother’s lawyers.
If the further evidence is admitted, a controversy will arise as to its effect, which will require a new trial. Such a course should only be followed where we are satisfied “that the further evidence would have produced a different result if it had been available at the trial” (CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at [111]). For the reasons given, we are far from satisfied that this is the case.
Taking into account the other difficulties noted with the proposed evidence above, the Application in an Appeal to adduce further evidence will be dismissed.
THE APPEAL
The primary judge’s discretionary judgment miscarried as a result of an error in fact in her Honour’s conclusion that the evidence before her Honour did not support a finding that there was an unacceptable risk of the father having abused the children, or any of them, sexually or in any other way (Ground 1)
The primary judge erred in principle and at law in that her Honour misdirected the enquiry as to unacceptable risk (Ground 2)
These grounds of appeal were argued together.
The basis on which an appeal from a discretionary judgment is to be considered is described in the well-known passage in House v The King (1936) 55 CLR 499 at 504–505. Establishing that other judges may have reached a different result on the same evidence is not sufficient to demonstrate error (Gronow v Gronow (1979) 144 CLR 513 at 519–520). It has been recognised that the proper exercise of discretion in parenting cases may range widely and “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require” (CDJ v VAJ at [152]).
The submissions made in both the mother’s Summary of Argument filed on 19 August 2020 and the oral submissions made at the hearing of the appeal ranged widely.
The first submission is that the primary judge failed to weigh the magnitude of any risk of harm to the children and therefore did not apply the correct principles.
In M v M (1988) 166 CLR 69 (“M v M”) at 77, the High Court said:
… The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access…
The High Court there went on to consider what magnitude of risk would justify a court denying a parent access to a child and held that the test was best expressed as whether there was an unacceptable risk of sexual abuse to the child (M v M at 78).
The primary judge found that the evidence did not support a finding of sexual abuse by the father (at [22]). Her Honour then went on to find that “[t]here is no unacceptable risk of harm or abuse for the children in the care of the father” (at [23]). That is a consideration of the magnitude of the risk and the phrase “unacceptable risk” is the means by which that is assessed. Clearly, her Honour found that the magnitude of any risk of sexual abuse was such that it did not prevent the father from caring for the children.
The mother’s Summary of Argument filed on 19 August 2020 continued:
13.It is submitted that a thorough examination of the particular disclosures – and particularly the disclosures made to independent reporters – ought to have founded a finding that there may be more than a mere possibility of the risk contended for by the [mother], contrary to the disposition of the [p]rimary [j]udge arising from her own examination thereof.
(Footnote omitted)
We have already referred to the primary judge’s detailed consideration of each of the allegations made by the children. It is plain that, for various reasons, her Honour was not satisfied that the children were describing actual events of abuse. That consideration was not limited by simply having regard to the words spoken by the children, but involved a close consideration of the way each child behaved during the videoed interviews, including the manner in which they spoke, their demeanour and effect. In addition, as her Honour was fully entitled to do, the circumstances surrounding each allegation were taken into account in determining what weight should be given to the children’s statements.
Thus, it was found that the allegations made to the mother and the maternal grandmother “began a course of action akin to a mission to establish that the children had been sexually abused by the father” (at [170]). This finding was consistent with, for example, the mother becoming angry and disappointed with the children for failing to tell the interviewer at the first JIRT interview what had happened to them and telling them so. X, in particular, thereby understood that he had to do something and prepared a handwritten note accusing the father of abusing all three children.
Her Honour therefore accorded X’s note little weight. Those findings in turn informed the primary judge as to the weight to be given to the allegations made to independent persons. We have already noted and will not repeat, the difficulties noted by the primary judge in accepting the descriptions given by the children as descriptions of actual abuse.
Further, the single expert considered that many of the allegations, such as those of anal rape whilst swimming at a public beach during the course of supervised time, were simply incredulous. Her Honour clearly accepted that opinion (at [519]–[520]).
No challenge has been made to these findings. The mother did submit that the correct interpretation of her Honour’s reasons was that she found that Y’s first JIRT interview contained statements of actual abuse but we have already considered and rejected that submission.
It follows, contrary to the submissions of the mother, that the primary judge has adequately explained her ultimate findings.
In truth, this aspect of the mother’s submissions, taken at their highest, do no more than assert that a different outcome could properly have been reached. Even if that were so, it would not demonstrate error by the primary judge.
On appeal the balance of the mother’s oral submissions focused on the evidence of the single expert who, it was submitted, did not entirely “close the door” to the possibility of past sexual abuse, that accordingly there was a potential risk of harm to the children at the hands of the father and that the primary judge did not discuss all of the single expert’s opinions.
At the outset, it is sufficient to say that neither can be described as an immediately persuasive submission. A trial judge is not obliged to accept any, let alone all, of the evidence of a witness, including a single expert witness, or to refer to every piece of evidence in his or her reasons (Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201; Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 at 322; Sahrawi & Hadrami (2018) FLC 93-857 at [59]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-270).
The mother’s submissions referred to the following passages in the single expert report:
210.Unfortunately, this sort of emotional priming, against the background of possibly many months of questioning the children about sexual abuse was highly likely to lead to some sort of disclosure. I have no way of knowing whether the children’s disclosure, at this point, was a response to the emotional demands of the questioning and their concern about their mother and loyalty to her or whether it reflected actual abuse they had experienced.
…
216.That said, the children’s alleged sexualised behaviour may be a result of sexual abuse that they have experienced. I cannot be certain about the origins of any such abuse, if it has occurred. For example, one of the children may have been exposed to inappropriate sexual touching at school or from a peer and have translated these behaviours to the home environment which have then escalated. At the same time, one or other of the children's sexualised behaviours may have been an ordinary developmental response which has been mimicked and copied by the other children. I am also aware of the strong possibility that the sexualised behaviours may have occurred in [X] as part of a developmental or behavioural problem which has been emerging and that then [has] been replicated in the home environment, affecting the other children.
(The single expert’s report dated 29 March 2019) (As per the original)
It was submitted that the primary judge did not explain why she discredited those propositions. We note that none of the possibilities at paragraph 216 of the single expert’s report dated 29 March 2019 was sexual abuse by the father.
The single expert also said:
215.Ultimately, I have a number of serious reservations about the children’s disclosures of sexual abuse.
…
217.I am concerned about some aspects of the mother’s mental health. It appears that the mother suffered from a major depressive episode at the end of 2017. She sought and received treatment when she returned to Australia. The history provided indicates that the mother may have developed post-natal depression at some point, perhaps after the birth of [Z], but that her condition was not properly diagnosed until early 2018.
218.The reports of her treating clinical psychologist and psychiatrist indicate that the mother has sought treatment for depression and anxiety, and that treatment has including [sic] antidepressant medication and counselling.
(The single expert’s report dated 29 March 2019) (As per the original)
The mother also relied upon the following oral evidence of the single expert at the hearing before the primary judge:
[COUNSEL FOR THE MOTHER]: But it’s fair to say, isn’t it, that for you to reach your own recommendations, you formed your own view that the father does not present an unacceptable risk. Is that fair to say?
[THE SINGLE EXPERT]: --- I don’t think it’s my job to make that determination. But in answer to the question, I guess I am looking at the overall parenting capacity of both of the parents. I don’t have to have the narrow lens of only acceptable or unacceptable risk of harm. Of course, if I felt there was strong indication that a parent was – represented an unacceptable risk of harm, I would tell the court and obviously I’m a mandatory reporter also. I would make those relevant notifications. But I think I have a – as a single expert looking at balancing overall parenting capacity as well as risk of harm issues. So my recommendations flow from looking at overall parenting capacity of each of the parties, looking at the children’s experience and the best opportunity. Which of the parents is better resourced overall to provide for the children’s optimal development and well-being for the course of their life. That would be what my recommendations were based on.
[COUNSEL FOR THE MOTHER]: Right. And I think you mentioned earlier – and this is consistent with paragraph 216 of your report – that the children’s alleged sexualised behaviour may be a result of sexual abuse that they have experienced; that’s right?
[THE SINGLE EXPERT]: ---Yes.
[COUNSEL FOR THE MOTHER]: So you - - -?
[THE SINGLE EXPERT]: ---Yes
[COUNSEL FOR THE MOTHER]: You’re far from discounting the possibility that these children have been sexually harmed by their father; is that fair to say?
[THE SINGLE EXPERT]: ---Just repeat the question for me again.
[COUNSEL FOR THE MOTHER]: You’re far from discounting the possibility that the father has sexually abused his three children?
[THE SINGLE EXPERT]: ---I wouldn’t say I’m far from it, because I think that – I think probably I – I simply do not know what has happened to these children. They could have been sexually abused by someone, but they might not of either. There is just simply, in my mind, no way of knowing for sure.
[COUNSEL FOR THE MOTHER]: Right. And - - -?
[THE SINGLE EXPERT]: ---When evaluating the probability of the father being the perpetrator of sexual abuse I – I would say that, you know, on the list of probabilities, that’s fairly low down the list, in my mind, and the reasons for that are he has no known risk factors, the prevalence rates for biological fathers to sexually abuse their own children in the context where those fathers have had an active and ongoing involvement in their children’s lives is relatively low compared to other sorts or forms of sexual abuse, and the nature and context of the children’s disclosures, which I think in earlier evidence I said has become increasingly incredulous, is – I guess, puts it lower down the list of probability as a – as a source of sexual abuse. But at the end of all of this, I don’t have any particular way of knowing what, if anything, has happened to the children.
(Transcript 22 August 2019, p.394 line 36 to p.395 line 29)
The single expert very properly said that she did not know what had happened to the children, but considered that the probability of the father being a sexual abuser was “fairly low down the list”. There is no reason whatsoever to consider that her Honour did not have regard to that remark or to the entirety of the single expert’s evidence.
The mother, in effect, submits that because the allegations were of serious harm and were made repeatedly, this, of itself, should have led to a finding of unacceptable risk of harm to the children. That approach, however, fails to undertake any consideration of the magnitude of the risk occurring. Further, we do not accept that an unacceptable risk of harm is established every time an assertion of abuse is made by a child, regardless of the context in which the assertion is made. All of the surrounding circumstances help a judge determine the existence and the magnitude of any alleged risk in accordance with the test posed in M v M.
We are comfortably satisfied that the primary judge’s findings were open on the evidence and that no error by the primary judge has been demonstrated.
These grounds of appeal do not succeed.
Were the primary judge’s reasons adequate? (Ground 3)
The mother submits that her Honour’s reasons for judgment were “devoid of any statement that would enable the parties or this Court to understand the reasoning for her [Honour] to conclude that there was no unacceptable risk” (the mother’s Summary of Argument filed on 19 August 2020, paragraph 20).
We do not agree. Her Honour’s reasons are meticulous and detailed. The primary judge identified and evaluated each allegation made by the children and explained why her Honour considered that it did not carry weight in establishing an unacceptable risk of sexual abuse to the children. The reasoning process is abundantly apparent.
As such, the primary judge’s reasons for judgment are clearly adequate (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [57]–[59]).
Did the primary judge err in finding that there was an unacceptable risk of harm to the children in the mother’s care? (Ground 4)
This ground of appeals concerns the following conclusion made by the primary judge:
34.There is a risk of emotional abuse for the children in the care of the mother.
35.The children are most likely to lose contact with their father and to accept, from the mother, that the reason for that was that he was a dangerous and abusive father.
…
45.It is not safe to assume that if the children remain living with the mother that her obsession with abuse would abate nor that she would feel less of an overwhelming concern about keeping the children safe.
The mother’s submission, as contained in paragraph 25 of her Summary of Argument filed on 19 August 2020, is that the following findings “sit uneasily” with the above conclusions made by the primary judge because:
·the mother did not “jump to conclusions” from as early as 2014, and even at April 2017, and permitted herself (even on a temporary basis) to entertain doubts and alternatives (at [128]–[129]) (the mother’s Summary of Argument filed on 19 August 2020, paragraph 25.1);
·these doubts led to the inference that the mother was “sufficiently confident” to leave the children in the care of the father and the paternal family in mid-2017 (at [135]–[138]) (the mother’s Summary of Argument filed on 19 August 2020, paragraph 25.2);
·the first time that the mother accused the father, she apologised the next day (at [140]) (the mother’s Summary of Argument filed on 19 August 2020, paragraph 25.3);
·the mother has complied with interim parenting orders permitting the children to see the father ([395] and [416]) (the mother’s Summary of Argument filed on 19 August 2020, paragraph 25.4);
·the mother told the single expert that “it is so heart breaking. He is their father and I really feel sad about that but I don’t think it’s safe for them” (the mother’s Summary of Argument filed on 19 August 2020, paragraph 25.5);
·the observations by the single expert of the children’s interaction with the father and their nuanced views of him are “contraindicative” of any rejection of him (the mother’s Summary of Argument filed on 19 August 2020, paragraph 25.7);
·the mother’s psychologist’s comment that with good support, the mother could cope with the children having supervised time with the father (the mother’s Summary of Argument filed on 19 August 2020, paragraph 25.8);
·the children have a meaningful relationship with both parents (the mother’s Summary of Argument filed on 19 August 2020, paragraph 25.9); and
·the difficulty of predicting the mother’s response to parenting orders that might be made (the mother’s Summary of Argument filed on 19 August 2020, paragraph 25.10).
These submissions focus on those findings that support the contentions of the mother and ignore the findings which point the opposite way, such as the mother’s behaviour after the children’s first JIRT interview, taking photographs of Z’s anus and the possible removal of X’s iPad because he did not tell the police what he was supposed to say.
Of course, the most relevant time for considering whether the mother posed a risk of emotional harm to the children due to her fixed belief that they had been sexually abused by the father was at the hearing before the primary judge. As to that, her Honour said:
27.I am confident that she would not have intentionally harmed them.
28.However I conclude that the actions of the mother, although intended to be protective, have been damaging. The mother appears to have over time, and perhaps from as early as 2014, developed a fixed idea that the father has sexually abused the children.
29.It is not just that. The mother has also refused to consider other possibilities and explanations for the behaviour of the children.
…
424.The single expert assessed the mother as “intelligent, sociable and empathic”. But also that “She presents as torn”.
425.Those observations accord with my own observations of the mother giving evidence. Although her anger with the children when they failed in her view to report abuse as they should have, did not seem particularly empathic from a lay perspective.
426.The single expert went on to say that underlying that presentation was “a fixed rigid belief system refusing to believe that it could be true [that no abuse had occurred]”.
427.I note that there were times throughout the trial when the mother appeared distressed, puzzled and irritated by questions of her or the father which tended to suggest innocent explanations for events which the mother believed to be sinister.
428.I had the impression that the mother wanted to present as a person with an open mind and to conceal deadly certainty.
…
434.My impression was that the mother was somewhat regretful about hurting the father but was able to excuse herself because she had had to find out why, not if, he had abused the children. Again, her certainty that he had abused the children was on display.
…
474.It must be the case that if the children continue to live with the mother they will adopt her view and reject their father.
…
515.The mother cannot, or will not, support a relationship between the children and the father. The mother is willing to accept that the father has cruelly and publicly molested the children and that the paternal aunt has either condoned that behaviour or been profoundly negligent as a supervisor. Living as they are, the father will be lost to them.
It is noteworthy that the maternal grandmother was found to be “vehement in her support for the mother” (at [442]), and that the maternal grandfather agreed that nothing would change his mind that the father was a paedophile (Transcript 23 August 2019, p.465 lines 22–26).
In coming to these conclusions, there is no doubt that the earlier findings, including those pointed to by the mother, were taken into account by the primary judge. Once again, the submission of the mother is simply an invitation to give some matters greater weight than others.
The oral submissions made by the mother at the hearing of the appeal referred to the following conclusions:
545.The mother and the maternal family are likely to be horrified by that outcome. The single expert in her oral evidence, analysed the mother as “hyper-vigilant…interpreting everything through the lens of signs and symptoms [of abuse]”.
546.Consistent with her evidence, the mother is unlikely to have any confidence that the children will be safe in the care of the father. She may feel driven to save them from the father by delivering warnings and advice about how the children might avoid abuse.
547.There is a very high risk of the children becoming genuinely fearful of the father and helplessly anxious about their own safety if they stay with the mother before their change of residence.
It was submitted that these findings did not take into account the single expert evidence or that of the mother which, it was asserted, was to the effect that the mother did not have fixed views about the father.
The single expert said:
245.The risks in this scenario are that the children will continue to develop erroneous and bizarre ideas about what has happened to them. It seems to me that the children are already developing incredulous ideas about what has been happening to them, such as that they have been raped at supervised contact. Once these sorts of views have cemented, it can become almost impossible to disabuse a child of the notion that such abuse has occurred. The risk is, that the child will continue to develop absurd or distorted ideas about their own autobiographical experiences. I think this is already occurring. For example, although it appears from the account of both of the parents that the children enjoyed many aspects of their life in [Country J] and missed their friends, school and their father when they returned to Australia, the views expressed to me by the children suggested that they were starting to reappraise this time as a negative time in their lives and were negative and critical about matters such as their friends and their school in [Country J]. This sort of post-hoc reappraisal suggests that the children may continue along this trajectory. The risk is that the children will come to believe negative and untruthful things about their early life and ultimately come to believe that their father was a sexual predator who abandoned them and who wreaked havoc on themselves and their family.
246.A further risk in this scenario is that the children may, over time, internalise the loss of their father. As they grow and develop the children are likely to identify aspects of themselves that are similar to their father. The risk in this scenario is that the children will suffer from a range of psychological problems, including feelings of abandonment and concomitant problems with identity.
…
253.Overall, despite these very real risks, I think that the children’s long term wellbeing would be best met if they were substantially in the care of the father. In my view, if the children stay in the current arrangement they will almost certainly continue to be exposed to ideas about sexual abuse and be exposed to ongoing medical and forensic investigations. I am not confident that the mother’s concerns will be assuaged by supervised contact with the father. The mother is resolute in her conviction that the father will continue to sexually abuse the children. She is supported by her family in this belief. Despite three investigations into the matter the mother does not appear to be able to countenance the possibility that her views are incorrect.
(The single expert’s report dated 29 March 2019)
Despite the use of the word “substantially”, it is plain when reading the passage as a whole, that the single expert was envisioning an arrangement where the children lived with the father and spent supervised time with the mother, as was explained by the single expert (Transcript, 22 August 2019, p.369 line 24 to p.370 line 6).
It was submitted by the mother that the single expert changed her view in her oral evidence at the hearing before the primary judge. The exchanges relied on by the mother were:
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: And that [X] presented, in terms of disclosures, as a very different child during the first interviews as distinct from the interviews that took place in early 2019? In terms of the disclosures, not in terms of the affect…?
[THE SINGLE EXPERT]: Yes. Yes. The disclosures were – yes.
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: The concern that the Independent Children’s Lawyer has in this matter is if we accept the hypothetical that the father has not committed these acts upon the children and that the mother has an ingrained, genuine belief that the children have been exposed to that abuse, and the court makes an order that the children live with the father; how it is that time is going to work between the children and the mother moving forward, and if there is going to be that ongoing pressure or an expectation to disclose or tell the mother something about what’s going on in the father’s household? Is it realistic, at this point in time – given the mother’s belief system – that the children can safely spend time with the mother?
[THE SINGLE EXPERT]: ---In the context of if they – if the court makes the decision that the children will be living with their father?
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: Yes?
[THE SINGLE EXPERT]: --- Is that what – just to ---
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: Yes. Yes?
[THE SINGLE EXPERT]: --- I think there are risks with it. Again, it’s very difficult for me to predict exactly how the mother and, indeed, her parents may cope with that kind of decision by the court. So I’m on very, sort of, tentative ground here; but the risks – and I have some experience with these sorts of matters, where even a complete change in children’s living arrangements does not convince a parent who had very genuine but fixed beliefs to even contemplate other alternatives. So, in that case, any kind of contact is really destabilising for the children, because, you know, there’s a hypervigilance, there’s a questioning, there’s scrutinising the children’s behaviour with an even more heightened sense of concern because I think, in this case, the mother will believe that if the court gives – allows the children to live with the father that, in her mind, it is certain that he will continue to sexually abuse them, and that – and I think her behaviours will follow that. So the – that’s a real risk.
(Transcript 22 August 2019, p.367 line 28 to p.368 line 10)
This is consistent with the opinions the single expert expressed in her report dated 29 March 2019.
It was then submitted by the mother that the single expert expressed her opinion on the basis of a false premise that had been put to her in cross-examination by counsel for the Independent Children’s Lawyer. The question to the single expert concerned the allegation of anal rape at the beach and the allegation made by X that prior to penetration, the father rubbed sand on his penis. The issue was whether the mother continued to believe these allegations.
The question posed to the single expert and the answer was as follows:
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: By way of update … there has been evidence that has been given in this – in the trial to date by the mother that after she saw yourself in February of this year, that there was some further disclosures made by the children of abuse and that the mother firstly didn’t enclose that information in her trial affidavit. And wasn’t – therefore wasn’t going to give evidence because she was afraid that there might be legal ramifications in this court process with respect to making further – sorry, providing further evidence about further disclosures. Secondly, with respect to the mother’s evidence regarding the disclosures that we are aware of, aside from – and my friends will correct me if I’m getting this incorrect – not quite right. Aside from the allegation that [X] has made that his father rubbed sand on his penis before he stuck his penis in [X’s] bottom in the surf earlier this year – aside from the sand portion of that description, the mother still believes the allegations that the children have made with respect to abuse at the hands of their father?
[THE SINGLE EXPERT]: ---I understand.
(Transcript 22 August 2019, p.364 lines 29–41)
It was submitted by the mother that this proposition did not accord with the evidence given by the mother in her oral evidence:
[COUNSEL FOR THE FATHER]: And without needing to recount all that was said, amongst other things, [X] described being on supervised time with his father?
[THE MOTHER]: ---Yes.
[COUNSEL FOR THE FATHER]: He stated that he was in the water with his father?
[THE MOTHER]: ---Yes.
[COUNSEL FOR THE FATHER]: He said that when he was in the water, his father pulled his pants down. Do you remember him saying that?
[THE MOTHER]: ---Yes.
[COUNSEL FOR THE FATHER]: He said that under the water, his father touched his penis, that is, [X’s] penis?
[THE MOTHER]: ---Yes.
[COUNSEL FOR THE FATHER]: And his father put his fingers and thumb up his bottom and then put his penis in his bottom?
[THE MOTHER]: ---Yes.
[COUNSEL FOR THE FATHER]: Now, you understood that what [X] was there describing was effectively an anal rape of..... son [sic] at a beach?
[THE MOTHER]: ---Yes.
[COUNSEL FOR THE FATHER]: On supervised time. Do you understand that was the nature of his allegation?
[THE MOTHER]: ---Yes.
[COUNSEL FOR THE FATHER]: Is that something that you believed – believe actually happened?
[THE MOTHER]: --- On reflection, it does seem to me that it was very exaggerated and that some of the things that [X] mentioned, such as the sand, couldn’t have actually happened in the way that [X] described it at that point.
(Transcript 20 August 2019, p.117 line 28 to p.118 line 4)
The premise posed to the single expert was consistent with that explanation.
The mother also said:
[THE MOTHER]: …He told me that things had happened in the water with his father, that his father had touched him on the bottom and put things inside his bottom.
[COUNSEL FOR THE FATHER]: Put his penis inside his bottom, didn’t he? Is that right? You’re nodding. You’ve got to give a - - -?
[THE MOTHER]: ---Yes.
[COUNSEL FOR THE FATHER]: - - - verbal answer. So the complaint you acted on – or the disclosure you acted on, perhaps I might properly say – was [X] describing to you an incident at the beach where his father put his penis in [X’s] bottom?
[THE MOTHER]: ---Yes.
[COUNSEL FOR THE FATHER]: Was that something you believed had actually occurred?
[THE MOTHER]: --- I did think it had occurred at that point when [X] spoke to me.
[COUNSEL FOR THE FATHER]: And, of course, that very proposition is improbable, isn’t it?
[THE MOTHER]: --- It is.
[COUNSEL FOR THE FATHER]: And, in fact, it became even more improbable by the descriptions that [X] gave?
[THE MOTHER]: ---Yes.
[COUNSEL FOR THE FATHER]: [X] was being untruthful, wasn’t he?
[THE MOTHER]: --- He was. Yes.
[COUNSEL FOR THE FATHER]: You, however, were prepared to accept, weren’t you, that the father was likely to have anally raped his son at the beach?
[THE MOTHER]: --- I was so worried about [X’s] safety that when [X] spoke to me about things having happened, that, yes, initially I was prepared to accept it.
[COUNSEL FOR THE FATHER]: Because you – well, I withdraw that. The occurrence of abuse is something that you’ve thought about long and hard over the last few years; isn’t that right?
[THE MOTHER]: ---Yes.
[COUNSEL FOR THE FATHER]: And, as you sit there now, is it your belief that these abuses of the children that you say occurred at the hands of their father started as early as 2014?
[THE MOTHER]: ---Yes. It may have.
(Transcript 20 August 2019, p.119 lines 8–38)
Precisely what the mother considered happened at the beach, if anything at all, remains unclear from those answers. Whilst the mother accepted that X’s allegations were “very exaggerated” and that “some” of the things that X said could not have happened as described, the mother had pressed the entire allegation until that point (Transcript 20 August 2019, p.118 line 2).
In any event, the position was later clarified in the following manner:
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: Do you – and your position as you sit here today is that you absolutely believe that it has occurred and your only caveat to that is a part of the disclosure at the beach from earlier this year about some sand being on [the father’s] penis. Is that right?
[THE MOTHER]: ---Yes.
(Transcript 21 August 2019, p.262 lines 19–21)
We do not accept that this was an inappropriate two-pronged question, but if it was, no objection was taken. The mother’s answer makes it plain that the mother continued to accept all of X’s allegations as to the incident at the beach apart from the father putting sand on his penis.
On any view, this evidence does not establish that the findings made by the primary judge as to the mother not resiling from her fixed view that the father had abused the children, were not open on the evidence. Rather, it supports the findings.
Finally, Ground 4 is expressed in terms that the primary judge made an error of fact when determining this issue. Apart from making the above submissions, no error of fact was identified let alone established.
This ground of appeal does not succeed.
Did the primary judge fail to give adequate reasons on the issue of supervision in relation to the mother’s time with the children? (Ground 5)
Order 6 made by the primary judge was that until the end of 2020, the time that the children spent with the mother was to be professionally supervised, and thereafter “as agreed between the parties, with the father to have absolute discretion over when and if supervision is dispensed with in future”.
The primary judge explained the need for Order 6 as follows:
51.The children love their mother, they appreciate the attention and fun she can provide. They are wary of getting into trouble for not saying the right thing. They may feel guilty, especially [X], for reporting events about their father. They may also feel guilty for “letting their mother down”.
52.After four months of no contact at all, short periods of time with the mother can start in a contact centre or through a supervision service. The supervision is crucial to protect the children from questions about the conduct of the father and directions being given about protecting their own safety. A full year of short visits will be needed.
53.Thereafter, for a further twelve months, the mother will spend time with the children on both days of one weekend each month under supervision which will be the progression that allows the children to restore their trust and confidence in the mother and resume normal enjoyable activities. A telephone call in the week before that weekend period will assist the children to feel certain about what will be happening.
54.Beyond that point the parties will either agree to dispense with supervision because it is safe to do so in the view of the father or the mother will return to Court with relevant evidence to support supervision being dispensed with. There could be other outcomes.
This clearly explains the basis for the order and therefore the primary judge’s reasons are adequate.
The real complaint made under this ground of appeal is that the order is necessarily for permanent supervision and that, generally speaking, such orders are rarely made but are sometimes warranted (Betros & Betros [2017] FamCAFC 90 at [13]).
We do not accept that the order is intended to be an order for permanent supervision. The primary judge expected that the father would act reasonably, but if he did not, the mother could return to Court to seek an order to lift the supervision requirement. In doing so, she would not be bound by the rule in Rice and Asplund (1979) FLC 90-725 because the primary judge expressly envisaged such an application. Further, any unreasonable refusal of the father to agree to appropriate unsupervised time between the children and the mother would amount to sufficient changed circumstances to justify the reconsideration of that order.
This ground of appeal does not succeed.
Did the imposition of supervised time between the mother and the children, in what may be a permanent basis, comprise a manifestly unjust exercise of discretion? (Ground 6)
The thrust of this ground of appeal is that because of the cumulative nature of the errors contended for by the mother, the outcome is manifestly unjust. As no errors by the primary judge have been established, this ground of appeal must also fail.
CONCLUSTION AND COSTS
The appeal will be dismissed.
Although the father was self-represented, he incurred legal costs in the sum of $2,574. The appeal was wholly unsuccessful (s 117(2A)(e) of the Family Law Act 1975 (Cth)). The father presently has no income and is on unpaid leave from his employment (s 117(2A)(a)). He has the care of the three children (s 117(2A)(g)).
The parties have resolved their property settlement proceedings with the sum of $479,738 to be divided so that the father receives 60 per cent and the mother receives 40 per cent.
Taking these matters together, it is appropriate that the mother pay the father’s costs fixed in the sum sought by him.
The Independent Children’s Lawyer sought an order for the payment of costs in the sum of $4,140. As the appeal failed (s 117(2A)(e)) and the mother has the means to pay them (s 117(2A)(a)), she should be ordered to do so. No suggestion was made that s 117(4) applied.
I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Watts and Austin.
Associate:
Dated: 26 March 2021
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