Thornton and Thornton & Anor
[2016] FamCAFC 61
•27 April 2016
FAMILY COURT OF AUSTRALIA
| THORNTON & THORNTON AND ANOR | [2016] FamCAFC 61 |
| FAMILY LAW – APPEAL – CHILDREN – Where the appellant seeks to appeal against orders made for the children to spend unsupervised time with the respondent – Where the appellant alleges that the trial judge has made a series of erroneous findings – Where the appellant complains that the trial judge erred in finding no unacceptable risk of the children being exposed to sexual abuse by the respondent – Where the appellant complains that the trial judge accorded insufficient weight to evidence given on her behalf and in assessing the credit of the father failed to consider a number of matters– Where the appellant complains that the trial judge made findings not reasonably open to him – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful in her appeal – Where as a result the respondent and the Independent Children’s Lawyer have unnecessarily incurred substantial legal costs – Where it is appropriate that orders for costs be made – Appellant to pay the costs of the respondent and the Independent Children’s Lawyers as assessed in default of agreement. |
| Family Law Act 1975 (Cth) Edwards v Noble (1971) 125 CLR 296 |
| APPELLANT: | Ms Thornton |
| RESPONDENT: | Mr Thornton |
| INDEPENDENT CHILDREN’S LAWYER: | Nicola Davies |
| FILE NUMBER: | BRC | 8946 | of | 2012 |
| APPEAL NUMBER: | NA | 22 | of | 2015 |
| DATE DELIVERED: | 27 April 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Strickland & Aldridge JJ |
| HEARING DATE: | 4 August 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 February 2015 |
| LOWER COURT MNC: | [2015] FamCA 92 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Blattman |
| SOLICITOR FOR THE APPELLANT: | Wiltshire Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Jordan |
| SOLICITOR FOR THE RESPONDENT: | Simonidis Steel Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
Orders made 4 August 2015 by consent
The appellant mother have leave to rely on her Amended Notice of Appeal, amended summary of argument and amended list of authorities.
The respondent father have leave to rely on his amended summary of argument and amended list of authorities.
The Independent Children’s Lawyer have leave to rely on his amended summary of argument.
Orders made on 27 April 2016
The appeal be dismissed.
The appellant mother pay the costs of the respondent father and of the Independent Children’s Lawyer, such costs to be as assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thornton & Thornton and Anor 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 BRISBANE |
Appeal Number: NA 22 of 2015
File Number: BRC 8946 of 2012
| Ms Thornton Appellant |
And
| Mr Thornton Respondent |
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 4 August 2015, Ms Thornton (“the mother”), seeks to appeal certain of the parenting orders made by Murphy J on 23 February 2015 wherein the children, G born in 2005 and V born in 2009, are to spend unsupervised time with Mr Thornton (“the father”). The father opposes the appeal.
The orders appealed provided for the children to spend time with the father during gazetted school terms, gazetted Queensland school holidays, special occasions and Christmas. They further provided for the changeover point to be at School B on a school day or otherwise at the C Shopping Centre, with either parent to collect the children, or a nominee of either parent, being a person known to the children and to the other parent.
By Application in an Appeal filed on 17 July 2015, the mother sought leave to file an Amended Notice of Appeal substantially reducing the grounds of appeal, and seeking to appeal only Orders 7, 8, 9, 10, 12 and 13 of the orders made by the trial judge. The mother also sought leave to file an amended summary of argument, and on 31 July 2015 she sought to file an amended list of authorities.
At the outset of the hearing of the appeal on 4 August 2015, by consent we received the mother’s Amended Notice of Appeal, amended summary of argument, and list of authorities for filing. As a result, the amended summaries of argument of the father and the Independent Children’s Lawyer (“ICL”) were also received for filing, together with the father’s amended list of authorities.
Background
At the time of the trial the father was aged 43 years and worked as an entertainer.
At the time of the trial the mother was aged 40 years, was studying part-time through a University, and had six months left to complete a Graduate Diploma in Social Science. She cared for the children on a full-time basis.
The parties commenced their relationship in or around July 2001 and were married in 2002. The mother says the parties separated on 19 April 2012, but the father says it was 20 July 2012. The parties were divorced on 6 September 2013.
On 16 June 2012 the mother and the children moved out of the former matrimonial home and went to live with the maternal grandparents.
The children stayed overnight at the father’s residence on 10 July 2012, 18 July 2012, and 24 July 2012. After the overnight stay on 24 July 2012 the mother and maternal grandmother made a report of sexual abuse of the children by the father at the Suburb B Police Station. That same day the mother and maternal grandmother took the child V to the Hospital K where she was medically examined.
On 31 July 2012 the child G was interviewed by the police, and on 13 October 2012 she was interviewed a second time.
From 30 September 2012 until the orders made by the trial judge on 23 February 2015, the father spent time with the children supervised by Ms A, each Sunday between 2:00pm and 5:00pm.
On 2 October 2012 the mother filed an Initiating Application seeking orders for property settlement and that Application was amended on 7 December 2012 to also seek parenting orders.
On 18 December 2012 the mother filed a Notice of Risk of Abuse.
On 21 December 2012 orders were made transferring the proceedings to the Family Court of Australia, providing for the appointment of an ICL, for supervised time, for spouse maintenance, for restrictions on travel, and for property settlement. Final orders for property settlement were subsequently made on 21 June 2013.
On 17 October 2013 the mother filed a Further Amended Initiating Application.
On 2 December 2013 Principal Registrar Filippello extended the time for the father to spend supervised time with the children from 2:00pm to 5:00pm each Sunday to 1:00pm to 5:00pm each Sunday, on one afternoon each week as agreed, and failing agreement each Wednesday from 3:40pm to 5:00pm, and on V’s birthday from 1:00pm to 5:00pm. The father’s family were given liberty to also attend at these times, or they could spend time with the children as agreed with the mother on condition that the father not be present. The father’s supervised time with the children was to occur at the home of the supervisor, Ms A, at the father’s home, at a paternal family member’s home, or at a child friendly public venue.
On 21 March 2014 the mother filed a Further Amended Initiating Application, and on 13 May 2014 the father filed a Further Amended Response.
Reasons for judgment delivered on 23 February 2015
The trial judge commenced his reasons for judgment by setting out the allegations made by each party against the other (at [1] – [8]). The mother asserted that the father had sexually abused the children, and the father denied those allegations. The father asserted that the maternal grandfather, Mr E, given his dislike of him, had “spearheaded” a “conspiracy” which was “designed to achieve a significant restriction (or, perhaps, cessation) of the time he spends with his daughters” (at [2]). The father also asserted that the allegations made by the mother and her family appeared to be linked to the inability of the parties to reach agreement on financial matters (at [7]).
His Honour noted that the allegations made by the mother were based on “things she attributes the children as having said and her observations of their behaviours…” (at [4]), and further, that she deposed to “the father’s ‘addiction’ to pornography during the relationship” (at [5]), although there was no suggestion by the mother that the father’s “addiction to pornography” had any “connection with the parties’ children, or any children”.
At [9] – [21] his Honour considered the question of unacceptable risk to the children noting that in cases where allegations are made such as the allegations made in this matter, the court faced “significant challenges”, in particular from “the nature, extent and quality of the evidence from which the court is asked to make findings in respect of very difficult central issues” (at [10]). His Honour went on to quote from s 140 of the Evidence Act 1995 (Cth) and in particular s 140(2) (at [11]). And at [13] his Honour noted that “potentially grave consequences for a child” flowed if an erroneous finding was made that the “alleged abuser does not pose an unacceptable risk”.
At [12] his Honour set out the possible findings in this case as follows:
·That the father has used both of his young children for sexual purposes and has falsely denied it;
·That the mother and [Mr E] have conspired to make false allegations to that effect;
·That [Mr E] has inculcated in [G] the false notion that the father has sexually abused them and has promulgated that false allegation to the mother, the broader family and the mother’s friends;
·That the father has induced [G] to tell and promulgate a lie (that [Mr E] engaged in the conduct just described) by bribing her with a promised payment of $100.
His Honour noted at [14] that the allegations made by the mother had their origin “in the statements made by the younger girl, [V], to [Ms E] (the mother’s mother) and the mother in late July 2012”, and after hearing these statements the mother had both children “genitally examined by a paediatrician” (at [15]). The children were then interviewed by police on 31 July 2012, although the interview with the younger child, V, was not successful because she would not participate.
His Honour referred to the father’s evidence that the children had also spoken to him and made statements effectively that “he has not engaged in the conduct attributed to him” (at [18]), that their behaviour when with him was the opposite of the behaviour the mother would have the court believe, and they said that they wanted to spend more time with him. His Honour further recorded at [18] that “[a]lmost all of the statements and behaviours to which the father deposes have occurred within the context of time that has been supervised by [Ms A]”. Ms A was a supervisor initially suggested by the mother and agreed to by the father, and her supervision was ultimately confirmed by a consent order. She supervised the time the children spent with the father for approximately 20 months and was aware that she would have to provide a report to the ICL.
At [22] – [100] his Honour examined the allegations of abuse as they became apparent from the evidence. His Honour considered in turn the evidence given by the parties and their witnesses.
At [22] his Honour noted that the court was provided by the mother with a list of statements and behaviours which she attributed to each of the children up to early 2014. Those documents were marked Exhibits ICL 8 and ICL 9 respectively and comprised “24 typed pages and 169 separate items” of “non-particularised references to alleged pre-separation observations”, for example, when the children and the mother lived with her parents the youngest child V “acted aggressively toward males on various occasions”, was “clingy toward [the mother]” and “regularly suffered from nightmares”, they would “dry retch, vomit and shake before and after visits with [the father]”, and after a period of supervised time with the father the child V allegedly wet her bed that night (at [24]).
At [26] his Honour found that the mother had misled the court in relation to evidence given by her in her affidavit wherein she denied having responded to a text received from the father on 24 July 2012 letting her know that nothing urgent had happened.
His Honour noted at [28] that part of a conversation between the mother and V, whilst both were in the bathroom, had been recorded by the mother on her mobile telephone, which the mother asserted was only available to her at the time by chance. After hearing cross-examination of the mother as to how the mobile telephone happened to be in the bathroom, at [196] his Honour said that he was “entirely unconvinced by [the mother’s] evidence”, and at [199] said this:
I do not believe the mother’s account of the serendipitous presence of her phone which, she said, “was in the bathroom behind the basin”. On a consideration of the whole of the evidence in respect of this incident, I think it significantly more probable than not that the mother initiated a conversation with [V] with the pre-conceived intention of recording it.
His Honour recorded that after this conversation the mother made a report to the police which included her having “noticed a rash on [V’s] behind and that [the father] has stubble growth on his face which may explain the rash…”. These complaints involved only V, but the mother also told the police that she suspected that G may have been abused by the father. However, the police records reveal that subsequent to this interview the mother said she “didn’t believe anything had occurred with [G] as she had never said anything …” (at [32]).
His Honour recorded that the police attempted to interview V on 31 July 2012 but she would not participate in the process, however G was able to be interviewed. She made statements that she had seen her father “kissing [V] on the bottom … on the side of the bottom” and when asked by the police officer how the father had kissed V, G demonstrated a kiss on the palm of her hand which the officer described as “a peck style kiss” (at [38]). His Honour watched the interview with the children and at [38] observed that that description “describes accurately what [he] saw [G] demonstrate on the video”. G also made a statement that she “[didn’t] feel comfortable with her father”, but when elaborating on this said that “not being comfortable with dad relates to him being loud when he is downstairs with his friends and she is trying to get to sleep”. Further, she said that her father “… had not touched her”, and the police record showed that G was “not scared of her father but [felt] that [V] [was] always allowed to do things but she [was] not” (at [39]).
His Honour then referred to the second police interview of G which took place on 13 October 2012. At that interview G made statements of “specific sexual conduct towards her” by the father. However the police notes recorded, “[w]hen attempting to obtain further particularisation child was unable to enhance further” (at [66]) and at [67] his Honour found that “[d]espite [G] saying a number of things to the police officer that might be construed as indicative of abuse, the police determined that ‘there was insufficient evidence to substantiate any offence has taken place sufficient for a [criminal] court proceeding’”.
His Honour recorded that on 27 July 2012 the mother had both G and V “genitally examined by a paediatrician at a hospital”. Both examinations “revealed no abnormalities” but the paediatrician “observed that a normal finding [did] not exclude the possibility that sexual abuse [had] occurred” (at [33]). After this examination his Honour recorded at [33] that on 2 September 2012 the mother deposed to V having said to her that her father “… tore her skin” and that G on 10 October 2012 allegedly told the mother that “daddy cut me there not with a knife”. However, his Honour found that “[t]here is no evidence of any opinion sought from the examining paediatrician, or any other doctor, subsequent to either of those statements. Nor is anything referred to by the paediatrician pertaining to any rash” (at [33]).
At [41] – [53] his Honour set out the allegations made by the children to the mother, and to members of her family and friends, which the mother says point to both the children having been sexually abused by the father.
The evidence was that after a conversation with G on 9 October 2012 the mother “stopped the children spending time with [the father]” (at [48]).
His Honour then noted that the children were seen by Dr R, psychologist, on nine occasions between September 2012 and November 2012, the third therapist the mother had taken them to in five months. Dr R was a therapist chosen solely by the mother. The father refused to participate in the sessions which the mother said was “unreasonable” and “some inference adverse to him should be drawn from it” (at [56]), which submission was rejected by his Honour. His Honour noted the following:
a)The focus of Dr R’s “sessions with [the children] was therapeutic as distinct from forensic” (at [57]).
b)No allegations made by G regarding the father’s alleged sexual abuse were recorded.
Further, his Honour commented as follows on Dr R’s report:
a)The children were seen without their mother being present for only two of the nine sessions (at [59]).
b)G was only involved in “a few sessions” and most of the sessions involved “[V] and [the mother]” (at [59]).
c)Dr R made no enquiries of the other therapists who had seen the children, even though he noted that he was the third therapist consulted by the mother in a five month period, and nor did he record in his report whether he was aware that the children had been interviewed by the police (at [60]).
d)The child G told Dr R about abuse suffered by her but she did this apparently by writing her accusations on a whiteboard, which Dr R said he would usually take a photograph of, but he did not do this as G “refused to permit him to take a photo of the whiteboard” (at [62]).
e)There was only one allegation made by V in all of the nine sessions. Dr R said that when he asked her “whether this had ever happened to her, she buried her head behind [G] and said that Daddy put his fingers in her bottom” (at [63]).
f)The allegations were reported to the relevant authorities and Dr R also spoke to “Taskforce Argos” (a branch of the Queensland police service dealing with sexual offences against children) about the possibility of the father being involved in child pornography, based on statements made by the mother of an event that had occurred 11 years prior when the father’s “computers were seized”. However, no evidence was put at trial in relation to that incident (at [64]).
His Honour “gained a generally unfavourable impression of the reliability of Dr [R’s] evidence from reading his report and listening to his evidence” (at [258]). He made no specific notes of what had been said to him (at [260]). At [261] his Honour “[did] not consider that weight should be given to the statements that the children are said to have made to [Dr R] in assessing whether abuse has, or has not, occurred or in assessing unacceptable risk”.
On 16 September 2012 the father took a covert video recording of interaction between himself, the mother, and the children at a shopping centre, and a transcript of that recording was presented at trial by the father. His Honour recorded that this was a portion of the recording “selected by the father” and that the transcript of the recording had been agreed at trial save and except for a series of words towards the end of the recording, when V was responding to a question from her father “as to why she had said he touched her bottom”. One alternative has V saying “because you didn’t” and the other “because you did it”. His Honour believed the former alternative to be correct. In any event his Honour “[accorded] no weight to either version … in assessing whether abuse did or did not occur or in assessing whether time with their father involves an unacceptable risk to the children” (at [71]).
At [72] – [74] his Honour recorded the statements made and the physical symptoms displayed by the children subsequent to the second police interview as deposed to by the mother in her evidence-in-chief.
At [75] – [84] his Honour set out the evidence of Mr D, reporting psychologist, who was “commissioned ‘on the joint request’ of the parties’ legal practitioners” (at [75]). His Honour noted the following:
a)A partial family report was presented which on examination turned out to be a report in relation to an entirely different family, totally unconnected to this matter (at [77]).
b)Although the report referred to Mr D interviewing and observing interaction between the father and the children on 28 November 2012, there was nothing further recorded in his report about this (at [78]).
c)When asked why he had only presented a partial report Mr D said, “I cannot explain that entirely. There was something about this matter that I became very – very stuck on. I could not work through this to a point that I could reach a production [sic] conclusion. I’ve thought long and hard about this and I knew I – I knew I would have to address this question today but I – I don’t think I can give a fuller answer than that” (at [81]).
d)Ultimately, Mr D, in response to being asked by counsel for the ICL “[b]ut are you able to assist us with any opinion and conclusions?” replied “I haven’t worked through all of this material to the point that I could confidently assist you, I believe.” (at [84]).
At [262] his Honour set out the difficulties he had with Mr D’s evidence, the errors he made, his brief family report which was only “opinion and conclusions”, and found that all those issues “detract markedly from the weight [he] attached to Mr [D’s] evidence generally”.
At [267] his Honour found that “even in the absence of an application pursuant to s 69ZT(3) [of the Family Law Act 1975 (Cth) (“the Act”)], when the issues are as serious as those relating to the sexual abuse of children, I am extremely uncomfortable about attaching weight to an opinion that abuse has (or has not) occurred in the absence of established expertise for that opinion”, and at [268] applied that “consideration” to both Dr R and Mr D (and to Mr F, family report writer, and Dr G, psychiatrist, although neither claimed to have such expertise).
His Honour noted that the mother relied on an affidavit filed on 2 April 2014 by Dr H, paediatrician. Dr H was not required for cross-examination by the father or the ICL. A letter written by Dr H dated 14 November 2013 was provided to an organisation known as Bravehearts, the Department of Communities, Child Safety and Disability Services (Child Protection Investigation Unit) and “SCAN” at Hospital K. In that letter Dr H said that V had “… developed some deeply disturbing behaviours”, suggested that she had suffered “… some extraordinarily traumatic experiences in the past”, and “[i]n taking her history it would appear all of this is consistent with child sexual abuse” (at [86]). Dr H recommended that a “major police investigation” be undertaken and that it was “incomprehensible” that “[V] is allowed to be in the company of the alleged perpetrator” (at [87]).
His Honour recorded at [88] that Dr H did not set out what factual information he relied on in arriving at the statements made in his letter and report, apart from what the mother may have told him, and anything the child V may have told him, although no reference to anything said by her was included in his affidavit or letter. There was no indication that he was aware for example, of the two police interviews conducted with G, and the fact that V did not participate in either.
At [89] his Honour recorded the following statement from a short form report provided to the mother’s solicitors by Dr H at their request on 4 March 2014:
…[I] was never engaged to undertake any medico-legal work with respect to the child. As a direct result of that it was on the basis of what was told to me by the mother that I felt that it was imperative that I ensure that investigations had been undertaken by the appropriate people … [and that I] … did not examine [V] with respect to the reported child abuse on the basis that this had been undertaken by others …
The evidence of Mr F was accepted by his Honour as being “accurate and reliable” noting that it was “not challenged as otherwise” (at [92]).
Dr G was commissioned by the ICL to prepare a “report in relation to this family” (at [93]). His opinion of the parties was “relevantly, unremarkable” (at [94]). He recorded the father as being “circumstantial and tangential at times” (at [95]), and having a personality with “narcissistic features … He presents as having a poorly defined sense of who he is” (at [96]), some of which traits his Honour also recognised while observing the father in the witness box. At [96] his Honour set out the following from Dr G’s report:
Importantly, the father’s personality vulnerabilities as discussed should not be taken as evidence that sexual abuse of the children has occurred or that it is likely to occur although narcissism has certainly contributed to the break down of marital relationship.
And at [97]:
From a psychiatric perspective it is difficult to know what to make of the mother’s beliefs that the father has sexually abused both the children based on what the children have said and their associated behaviours …
His Honour found that the supervisor, Ms A’s, evidence was “very important” as she had been witness to “extremely serious allegations [arising] from events in early 2013” (at [100]).
At [101] – [110] his Honour found the issues that emerged from the evidence to be as follows:
a)There was no physical evidence that sexual abuse had occurred (at [101]) and as a result “ultimate findings as to abuse or risk must be based in significant measure on an assessment of what children have said ... to different people at different times and in different circumstances” (at [102]).
b)Issues of the gravest significance are raised by the evidence of the events “at and around Ms [A’s] supervision of the children from early 2013” (at [105]).
c)G had been questioned by her mother, father, and Ms A (at [107]).
d)Depending on her audience G had made different statements to various people about the same event (at [107]).
e)G had “told untruths that are attended by detail and in respect of matters of significance involving people who she loves and who are central to her welfare and nurturing “ (at [107]).
At [108] his Honour set out the three central issues upon which judgment needed to be made as follows:
1.The veracity and reliability of statements made by the children: That is, what precisely did each child say and what should be made of its content;
2.The veracity and reliability of the reports of the children’s statements: That is, should the reporter’s account be accepted as an honest and reliable account of what each child said, when it was said and the circumstances in which it was said. Similarly, the veracity and reliability of the reports of the children’s behaviours and alleged fear of their father is important; should the reporter’s account of those matters and the circumstances in which they occurred be accepted as honest and reliable; and
3.Contextual factors and circumstances that impinge on each of those two issues.
(Emphasis in original)
His Honour then turned to the truthfulness and reliability of the evidence.
At [122] – [136] his Honour considered the evidence of the father and at [123] said this:
[t]he cross-examination [of the father] … had as its purpose … the intention of extracting a finding that the father was prepared to lie if it suited his purpose. The inference sought to be drawn was ... if he told lies in this context for this purpose, why should his evidence be believed about the instant issues.
His Honour found at [124] – [125] that although the father had exhibited an “oddity” of manner when giving his evidence, and had misled Airline O, this behaviour was “more redolent of a childish, and child-like, need for self-aggrandisement than as a measured attempt at deception”, and that this was “consistent with the narcissistic traits assessed by Dr [G]”.
At [127] his Honour found that the father’s behaviour in questioning the children directly about the allegations they had made about him, when he was aware that he must not do so, was “a stark example of, at least, the father’s lack of insight and narcissism, each of which formed a central component of Dr [G’s] assessment of him”. However, the father had “questioned the children significantly less frequently and significantly less relentlessly than the mother”, noting though that this was because he had less opportunity to do so than the mother (at [129]).
At [131] his Honour noted that the “leading” or “suggestive” questions put to the children by the parties “causes significant doubts to attend the accounts of what each child has said as evidence of the truth (or accuracy) of what is said by the child”.
At [136] his Honour concluded that he believed the father’s “denials of improper conduct” and was “buoyed in that conclusion by evidence which [he accepted] of the children’s interactions with the father and their expressed desire to spend more time with him.”
At [137] – [144] his Honour considered the evidence given by the mother, and at [138] concluded that the mother had “given evidence which [was] intentionally misleading by omission or disingenuousness, and, in some cases untruthful, about matters of importance with respect to the children and the issue of abuse or risk”.
At [139] his Honour set out seven examples of this behaviour, and at [140] said this:
…I think it highly likely that much of her evidence is exaggerated. The evidence of the mother (and her witnesses) is replete with speculation and comment. Her evidence is also replete with the attribution of conclusions, or suspicions, derived from vague assertions of past conduct (for example, that a child was “wary of males”). I regard that “evidence” as having no weight.
At [142] his Honour concluded that “the mother does genuinely believe that the children have been abused by their father”.
At [145] – [180] Murphy J examined the evidence of Ms A whose evidence his Honour considered “central” to “many (but not all) of [his] specific concerns in respect of the mother’s evidence” (at [143]). His Honour found Ms A to be “an honest, reliable witness”, who “impressed” as being “independent and impartial”, whose recall was not to be questioned, and whose note-keeping was accurate (at [179]).
At [187] – [192] his Honour set out an account of a conversation said to have taken place between the child V, the mother and the maternal grandmother about a ball in the bath and “whiskers”. His Honour found that the account of this conversation given by the mother to Dr G, and by the maternal grandmother to Mr F, differed, and his Honour observed at [190] that any comment made by V about “whiskers” and the ball “[was] not repeated in the mother or [maternal grandmother’s] affidavit of evidence-in-chief”.
At [219] his Honour found that the father had no opportunity to offer G a $100 bribe to lie to Ms A, and at [221] noted that if G made such a statement then it was as a result of “the mother’s influence or encouragement”. At [225] it was his Honour’s view that the children were “seeking to adopt for each of the polarised camps within which their primary loved objects reside, words and actions which they perceive as desired by those camps”.
After viewing the video taken covertly by the father of the children and the mother on 16 September 2012, his Honour at [243] observed that the mother may well have been holding her emotions in check for the benefit of the children, that it was a public place and behaviours are often modified accordingly, and that the father had covertly made the video and he may have deleted certain behaviours in order to make the video suit his purpose. That aside, his Honour found the mother’s “behaviours sit very oddly with a mother who believes that her former partner has used his then three year old child for his sexual gratification” (at [244]), and at [244] his Honour said this:
Remarkably, for example, the father held [V] in his arms for part of the recording. Further, noting again the same caveats, the mother did not at all strike me as someone who was remotely scared or wary of the father. Nor, I should observe, did I see anything to suggest that the children displayed the slightest fear or apprehension of their father. Again, the same caveats apply, together with the fact that, of course, their mother was present.
At [246] – [252] his Honour found that there was no evidence to substantiate the mother and maternal grandfather’s claims that the children were scared of Ms A, which allegations surfaced during evidence given by the father and Ms A “to the effect that the children enjoyed their time with their father and had expressed a desire to spend more time with him” (at [246]).
At [257] his Honour found that there was no evidence to substantiate the father’s claim that the maternal grandfather, and the mother, had conspired against him.
At [274] – [291] his Honour considered the children’s behaviours, with an emphasis on the notes kept by Ms A and the report of Mr F. At [288] his Honour said this:
While I am sceptical of the veracity and reliability of the mother’s evidence and while I consider that she has exaggerated her evidence as to the expressed reluctance of the children’s behaviours, I accept it as more likely than not that the children have said things to her (and to members of her family and friends), and exhibited behaviours to the effect that they do not wish to spend time with their father. I am equally convinced that the children are acutely aware that this accords with what their mother, their grandfather and their wider family want.
At [292] – [347] his Honour considered the statements made by the children and at [348] – [358] concluded that “[t]he children are, to borrow Dr [G’s] words, acutely aware that words and actions are expected of them when their father is spoken of by the mother and her family” (at [352]). At [353] his Honour recorded that he was “very firmly convinced that the mother [had] engaged in deliberate and intentional conduct that [had] sought to influence the words and behaviours of the children in and about their father”.
At [356] his Honour recorded the following:
I consider there is a marked lack of coherence in the children’s statements and I regard them as unreliable indicators that abuse has been perpetrated upon them. Inconsistencies in them are not minor discrepancies that might be expected of young children seeking to recall events at the request of adults. Rather, in my view, they are fundamental to any satisfaction as to improper conduct or risk of same. They include wildly disparate accounts of when an alleged incident occurred; the attribution of it occurring when ‘I was asleep’; and the attribution of reality to something that is not real: the tooth fairy.
At [358] his Honour concluded as follows:
a)The evidence “falls a long way short of evidence which would compel a finding that the father has sexually abused his children or, … engaged in any improper conduct toward them.
b)The weight of the evidence “is strongly persuasive of there being no unacceptable risk to these children from living with or spending time with, their father.”
c)“The children have a loving relationship with their father, are not fearful of him and desire spending more time with him.”
At [359] – [399] his Honour set out the orders he proposed to make and the reasons for making those orders and at [391] said this:
I also have some concerns about the mother’s expressed willingness to implement my orders consequent upon findings which, I strongly suspect, she will disagree with. That said, the mother has assured me in evidence that, consequent upon the findings made by me, she will abide them and abide the orders for co-parenting made as a consequence. I propose to take her at her word. I consider that the mother has her children’s best interests at heart and, left to her own parenting devices and free of any dependence upon others, she will seek to do what she says she will do.
Grounds of Appeal
The grounds of appeal set out by the mother in her Amended Notice of Appeal are as follows:
1.The learned trial judge erred in determining that the children were at “no unacceptable risk” of being exposed to sexual abuse by their Father and, in turn, that the best interests of the children would be served by them spending unsupervised and substantial time with the Father, in that:
a.The learned trial judge erred in finding (Reasons [14]) that the genesis of the allegations was statements made by [V] in late July 2012, when in fact their genesis was much more broad.
b.The learned trial judge erred in failing to give adequate weight to the evidence of [Ms N], [Mr N], [Ms I], [Ms L] and [Ms E].
c.The learned trial judge erred in failing to consider the evidence of [Ms E] of [V’s] statement on 27 July 2012 after the visit to the paediatrician and in rejecting the Mother’s evidence to the same effect.
d.The learned trial judge erred in assessing the credit of the Father (Reasons at [136]) by failing to consider that the Father had:
i.Denied that he told the children they would not be going to Disneyland whereas [Ms A] gave evidence that he did say that.
ii.Not merely lied to [Airline O] but refused to admit the lie in cross-examination.
iii.Omitted from his evidence in chief that on 21 August 2012 he had questioned [V] in front of the Mother including “Where do I kiss you? Tell the truth”, then initially testifying that he did not recall saying that, then admitting that he did remember questioning her for some time although he did not recall precisely what he said.
iv.Omitted from his evidence in chief that on 16 July 2012 he had called the Mother a “fucking snake”, then initially in cross examination stating he could not recall saying anything further, then admitting to it.
v.Given highly improbable evidence that when he called the Mother a “fucking snake” on 16 July 2012 it was “the first time I had ever sworn at her in my life”.
vi.Twice stated in evidence initially that he could not recall what the domestic violence proceedings had been about, but then admitted that he did recall what the Court’s findings had been (critically that he had called the Mother a “fucking snake”).
e.The learned trial judge erred in finding that the recording of [V] on 26 July 2012 was not spontaneous partly on the basis that his Honour appeared, respectfully, to consider that it was inherently unlikely that the Mother coincidentally had her phone in the bathroom (as was her evidence) (Reasons at [196]), when there was nothing unusual or unlikely about that.
f.The learned trial judge erred in finding that [Ms E] had told the Mother that [V] had said that it was “just the ball”.
g.The learned trial judge erred in finding that there was no reasonable opportunity for the Father to have offered [G] $100 to lie to [Ms A] (Reasons [219]).
h.The finding was not open on the evidence, which, properly construed, compelled the conclusion that there was an unacceptable risk.
2.The learned trial judge erred in failing to make an order in terms of paragraph 9 of the Further Amended Initiating Application filed by the Mother on 21 March 2014.
During the course of the hearing before us the mother’s counsel did not pursue Ground 1f.
Orders Sought
The mother seeks the following orders:
1.The Trial of the matter be listed for re-hearing before a Justice of the Family Court of Australia at Brisbane other than Justice Murphy.
2.The Respondent pay the Applicant’s Costs of and incidental to the Appeal.
Discussion
Ground 1
As is apparent, in this ground the mother complains that the trial judge erred in finding that there was no unacceptable risk of the children being abused, or being exposed to sexual abuse, by the father, and thus it was in their best interests to spend unsupervised time with him.
The challenge is mounted on the basis that his Honour has made a series of allegedly erroneous findings, and we will address each of these in turn.
Ground 1a
It is readily apparent that in [14] his Honour described the statements made by V to her mother in late July 2012 as “[t]he genesis of the allegations that the father has sexually abused each of his daughters”, but we see no error in that description when his Honour’s reasons for judgment as a whole are considered (for example see [14] – [21]). Further, it is plain that in using that description his Honour was not ignoring the other bases promoted by the mother as demonstrating that the father had sexually abused the children. For example, in [14] his Honour also said this:
As will be seen, sinister meaning is attributed retrospectively to earlier statements and behaviours.
Thus, his Honour was well aware of earlier incidents, statements and behaviours, but as was open on the evidence, his Honour was not satisfied that they had a sinister meaning at the time, and they were somewhat ambiguous compared with the statements made in late July 2012. Indeed, that was the mother’s own evidence (see for example her affidavit filed on 31 October 2013 and compare paragraphs 28 and 40 thereof; also see transcript, 20.5.14, page 149, lines 36-38, page 161, and page 163).
There is also the acknowledgement by his Honour in [25] that from the mother’s perspective the combination of a statement by V on 19 July 2012 and contemporaneous behavioural disturbances marked “the start of her concerns about sexual abuse of [V]; concerns which she says were cemented a week later, specifically after statements by [V] recorded by the mother on her phone.” Counsel for the mother conceded that this was an accurate representation of the mother’s position, and thus this further confirms the importance of the statements made in late July.
Moreover, these statements were the catalyst for the mother to have both children genitally examined by a paediatrician, and the children to be interviewed by the police (see [15]). Thus, they comfortably come within the description applied by the trial judge.
In these circumstances we find no merit in this part of Ground 1.
Ground 1b
The persons identified in this part of Ground 1 were persons who had filed affidavits and gave evidence on behalf of the mother; they comprised her relatives and her friends.
It is said that his Honour failed to give adequate weight to their evidence, but there is no more specificity than that to this complaint.
The mother in her amended outline of argument says “[e]ach of these witnesses described either reports made to them by the children of sexual abuse by the father, or events they had witnessed in which the children exhibited sexualised behaviour”, and we were provided with a schedule highlighting the specific evidence said to be relevant.
There are three principles at play here. First, it is not necessary or indeed required for a trial judge to refer to every piece of evidence given in the trial (for example see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62] and Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386). Secondly, there is the recognised advantage that a trial judge has over an Appeal Court in hearing all of the evidence, and in seeing the witnesses (see SS Hontestroom v SS Sagaporack [1927] AC 37 at 47; State Rail Authority of NSW v Earthline Constructions Pty Ltd (In Liq) and Ors (1999) 160 ALR 588 at [90]; Fox v Percy (2003) 214 CLR 118 at [23]). Thirdly, there is no rule of law that a trial judge must accept evidence which is unchallenged (see Scott and Scott (1994) FLC 92-457 at 80,729 – 31).
In applying these principles it is important to appreciate that it was neither contended that the children did not make the statements that these witnesses deposed to, nor suggested that the witnesses did not observe the behaviour recorded; in other words, it was not asserted that these witnesses were not truthful, and indeed, the case was conducted on the basis that the children had made statements to and exhibited behaviour in front of a number of people which is indicative of the father having sexually abused them.
In these circumstances, and given that the trial judge has referred to the evidence of some of these witnesses in his reasons for judgment (for example [49] and [50]), the only basis for any complaint can be what his Honour has done with that evidence; in other words, the question revolves around what weight his Honour has accorded it.
It is unnecessary to repeat the well-known principles applicable to weight challenges, but suffice to say that what needs to be established is that the trial judge was plainly wrong, his decision being no proper exercise of his discretion. Further, where no error of law or mistake of fact is present, it is never enough that an appellate court would have reached a different conclusion (see Gronow v Gronow (1979) 144 CLR 513 at 519 – 520, per Stephen J).
His Honour found this in relation to the evidence of the mother and her witnesses:
141.I consider the evidence of the mother (and her witnesses) is affected by the consideration that they were prepared to “assume the worst” from what the children are reported as having said. The speed and intensity of the mother, [Ms E] and [Mr E’s] belief based upon tape recordings of [V] is testament to that as, in [Mr E’s] case, are emails immediately consequent to it. That is an important factor in my view. I consider it plain on the evidence that each has closed their mind to alternative explanations for statements and behaviours - both initially and as they later emerge - and, as a result, has filtered each through the prism of a pre-existing and entrenched belief that they are attributable to abuse. In that respect, I repeat what I earlier said about factors which I consider impinge upon their evidence.
…
350.I consider that [G] and [V] have been subjected to a pervasive and inflexible belief system by the mother and by members of her wider family. I consider that their belief system has emerged from a flimsy foundation and that information has been fed to it that serves the belief, and that information has been rejected that does not serve that belief. Their minds have been closed to alternative explanations and implacably so.
And concluded as follows:
293.I consider that the mother’s witnesses are affected by the factor referred to by Lord Pearce to which I have earlier referred: without exception, they care very deeply for these two girls; have persuaded themselves that the father has sexually abused them and, as a result, seek to give as much loving support to their family member or friend as they can and a concomitant condemnation of the father. They have, as Legatt J said in the passage earlier quoted, “a desire to assist, or at least not to prejudice” the mother’s case.
294.Similarly, individual differences and values are important: while some parents might pass off some conduct or statements of children as “kids being kids”, other parents see similar conduct and behaviour as having deep or sinister significance. Some observations are more susceptible to individual impression than others. It is a rare case of this type where those factors do not play a part in assessing the evidence.
295.I have no doubt that each and all of those matters have materially affected the evidence of the mother’s witnesses. They are, to borrow Lord Pearce’s words “emotional” (in the sense in which the expression is there used – i.e. affected by emotion) and “think they are morally in the right”. If they are right, each is both understandable and, I venture to say, proper. But, in the context of the court seeking to ascertain whether evidence justifies findings and ultimate outcomes, they are factors which in my view materially affect the reliability (or credibility more generally) of their evidence.
296.In a different context, Lord Pearce refers to the effect being to “conjure up a legal right that did not exist”. Here, the effects are, in my view, to conjure up meaning that may not exist in the words and actions of the children and to ameliorate precision in the recounting of those words. In my view, those factors impinge, for example, upon the evidence of the mother’s sister and brother-in-law; her parents and [Ms I]. As has been seen, I also consider they impinge significantly upon the evidence of the mother.
(original emphasis)
However, it has not been demonstrated that in making these findings and reaching these conclusions, the trial judge has acted on a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or failed to take into account some material consideration (see House v The King (1936) 55 CLR 499 at 504 – 505). Thus, for this court to find that his Honour has been plainly wrong in the exercise of his discretion, we could only do so on the basis that this court would have reached a different result on the same facts, and that can never be sufficient.
Thus, again there is no merit in this part of Ground 1.
Ground 1c
This complaint is similar to the one just considered, and the same principles apply. The evidence was there, it was not challenged, and the question is about the weight his Honour accorded it.
It is beyond doubt that his Honour was aware of this evidence. Further, his Honour in fact referred to the subject of the evidence in his reasons for judgment. His Honour did not refer specifically to the maternal grandmother’s evidence of what the child said after the visit to the paediatrician, but he did set out the mother’s evidence of what the child said in the presence of the maternal grandmother. Accordingly, it is not open to the mother to assert that the trial judge failed to consider the evidence of what the child said, or that his Honour failed to accept it.
This then became one piece of evidence that his Honour considered in the exercise of his discretion in finding that there was no unacceptable risk. Throughout his Honour’s lengthy and detailed reasons for judgment, his Honour laid out the evidence that was relevant to the determination of this issue and reached his conclusion after an exacting analysis of all of that evidence.
There is no merit in this part of this ground of appeal.
Ground 1d
The complaint here is that in assessing the credit of the father the trial judge failed “to consider” a number of matters.
However, the immediate difficulty with this challenge is that it is not accurate to suggest that his Honour did not “consider” all of the matters raised in making his credit assessment. For example it is beyond doubt that his Honour considered the matter raised in Ground 1d(ii) (see [122] – [125]).
The second difficulty emerges from a principle referred to earlier in these reasons, namely, that a trial judge has many advantages over an appeal court in hearing all of the evidence, and in seeing the witnesses. Plainly, one of those advantages lies in being better able to assess the credit of the parties and their witnesses where that is in issue. For example, Gleeson CJ, Gummow and Kirby JJ said this in Fox v Percy (supra):
23The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
This was a case “par excellence” where the evaluation of the evidence and credibility of the witnesses was a matter for the trial judge, involving as it did, complex and nuanced circumstances.
The third difficulty is that in reality this complaint is nothing more than a weight challenge, and we have already explained the hurdles that have to be overcome by an appellant in order to succeed with such a challenge.
Here, the trial judge dealt comprehensively with the evidence of the father at [122] – [136]. His Honour was well aware that the father had been untruthful in some parts of his evidence, and as a result, his Honour was careful in his assessment of his credibility generally, and particularly as to whether that should result in his Honour rejecting the father’s denials of sexually abusing the children. Indeed, his Honour concluded as follows:
136Despite the lies to [Airline O], the impropriety of his conduct in questioning his children during supervision, and for all the oddities in his presentation, I was not left with the impression of dishonesty in his answers or accounts in so far as they affected the children. I believe his denials of improper conduct. Despite placing appropriate caveats on what might be drawn from observations of children’s behaviours, I am buoyed in that conclusion by evidence which I accept of the children’s interactions with the father and their expressed desire to spend more time with him.
All that the mother has done in support of this ground of appeal is to submit that the untruthful aspects of the father’s evidence, the “oddities” of his presentation, his “narcissistic features”, and the “impropriety of his conduct” in questioning the children during supervision were “sufficiently serious” that the trial judge should not have accepted “his denials of improper conduct”.
However, that is clearly not enough to establish error. There is no suggestion of an error of law or a mistake of fact, or the taking into account of irrelevant matters, or the failure to take into account relevant considerations. Nor has it been demonstrated that his Honour was “plainly wrong” such that the exercise of his discretion was no exercise at all. Indeed, it is nothing more than a submission that on the same facts this court would come to a different conclusion, and as we have emphasised already, that is insufficient.
Accordingly, we find no merit in this part of this ground of appeal.
Ground 1e
This is a complaint that seems to be suggesting that it was not open to the trial judge to make the finding that his Honour did. However, the mother’s counsel conceded during the hearing of the appeal that this finding was open to the trial judge, and thus clearly that claim cannot found a successful challenge. If one version of the facts is open on the evidence there can be no appealable error by a trial judge to make a finding in accordance with that version merely because another version was also open on the facts. What is required is to establish that the finding made was not reasonably open to the trial judge (Edwards v Noble (1971) 125 CLR 296 at 304; Marsden & Winch (2013) FLC 93-560 at 87,514), but even on that basis we are not satisfied that this ground has any merit.
His Honour dealt with this issue expansively at [193] – [200] where he recorded the mother’s evidence in detail and concluded as follows:
199.I do not believe the mother’s account of the serendipitous presence of her phone which, she said, “was in the bathroom behind the basin”. On a consideration of the whole of the evidence in respect of this incident, I think it significantly more probable than not that the mother initiated a conversation with [V] with the pre-conceived intention of recording it.
Again we are not persuaded that his Honour erred in making this finding.
Ground 1g
This is yet another complaint that the trial judge has erred in making the finding that he did on the evidence that was before him. Presumably, it is being suggested that the particular finding was not reasonably open to his Honour.
Again, his Honour devoted a significant portion of his reasons for judgment to addressing this particular topic (at [201] – [225]). His Honour painstakingly traced the course of the evidence relating to this issue, emphasising the inconsistencies that arose in that evidence and the absence of any evidence (when there clearly would have been if the allegation was true) of the child G “making any statement about the offer of a $100 bribe from the father independent of the mother’s evidence” (at [220]).
Further, at [219] his Honour observed as follows:
219.Among the various challenges to [Ms A’s] evidence, it was not put to her specifically that any or all of the various matters said to impinge on her supervision provided the opportunity for the father to say anything to [G] about giving her $100 during the 10 March visit. …
And, his Honour therefore concluded that (at [219]):
…there was no reasonable opportunity for the father to [offer a bribe] without [Ms A] hearing it or being alive to the possibility of such a conversation and I consider that it would not have occurred, or anything like it have occurred, without [Ms A] making a record of it.
Importantly, his Honour then continued at [221]:
I think it extremely likely that if [G] made any statements to her mother on 15 March to the effect that her father had offered her money, they are statements resulting from the mother’s influence or encouragement to that effect and that those suggestions were suggestions or encouragement that they should be repeated to [Ms A]. I by no means dismiss the possibility that the mother has concocted the statement and persuaded [G] of it. The allegation of this specific “bribe” in this specific instance bears a very uncomfortable similarity to the explanation that the mother (and [Mr E]) each give for such affection as they are prepared to concede is shown by the children to their father. (As will be seen, in short they assert that any such joy and affection they express to or with their father is as a result of the father bribing them with lollies or gifts).
(original emphasis)
In her written summary of argument the mother suggests that the evidence revealed two occasions when the father was left alone with G, once for a matter of five minutes on 20 January 2013, according to the evidence of the father and the supervisor Ms A, and once on 11 May 2014, according to the mother’s affidavit filed on 16 May 2014.
However, neither of these occasions were at a time when this bribe was alleged to have been made, but more significantly, it cannot be argued that just because there may have been other occasions when the father was left alone with G, it is not reasonably open for the trial judge to have found that in relation to this specific issue, there was no reasonable opportunity for the father to have offered G a bribe. At the very least, there was the fact of no cross-examination of the supervisor to suggest that she left the father alone with the child at the relevant time or times.
Again, this part of this ground of appeal has no merit.
Ground 1h
This complaint is far too general for the court sensibly to address. It is nothing more than a bald assertion that the trial judge got it wrong in his ultimate conclusion.
In her amended outline of argument counsel for the mother in support of this ground said:
26.There was a large body of evidence that something of a sexual nature had occurred to each of the children at the hands of the father. It is submitted that the weight of evidence was such that the learned primary judge could not have been satisfied on the balance of probabilities that the children had not been abused and would have retained serious concerns that such abuse may have occurred.
27.The uncertainty as to whether or not it had, and the abhorrent consequence if it had, meant that the learned trial judge’s finding that there was no unacceptable risk was plainly wrong.
So expressed, the complaint completely ignores the careful analysis of the facts by the primary judge and merely asserts that such of the evidence in the matter that supports the mother’s position should be given decisive weight regardless of its probative value or of evidence that points in a different direction. It amounts to little more than submitting that the allegations of the mother are of themselves, sufficient to carry the day. That submission cannot be accepted.
We note though that in an attempt to explain what the specific challenge is, counsel for the mother indicated that the ground depended on the success of Ground 1b. Plainly that does not assist the mother because we have found no merit in Ground 1b.
For completeness and for the avoidance of any doubt as to this complaint, we are satisfied, after reviewing the evidence before his Honour, that it was reasonably open to his Honour to find that there was no unacceptable risk to the children in spending unsupervised time with the father.
Accordingly this part of this ground of appeal has no merit.
Ground 2
It is true that his Honour did not address the orders sought by the mother in this regard, and it is also true that the mother raised it in her written submission presented to the trial judge on 12 August 2014 (Exhibit C paragraph 53).
However, we do not accept that it was necessary for his Honour to address this order once he had made his findings.
The context of the order as indicated in the mother’s written submission was there was a need for the father to “undergo treatment … to assist him in his parenting of them” if there was no sexual abuse and no unacceptable risk found, and the children were to have unsupervised time with the father. However, there was no evidence, including no expert evidence, that indicated or that recommended the father undergo psychiatric treatment for this purpose. Indeed, Dr G said this in his recommendations (see page 18 of Dr G’s report annexed to his affidavit filed on 10 July 2013):
All that I can say from a psychiatric point of view is that if the father has not sexually abused the children then the psychiatric issues identified (the narcissism) are not such that would make him incapable of being an effective parent and he could have a meaningful role in his children’s lives.
This recommendation was not challenged by the mother’s counsel in cross-examination of Dr G.
Further, in his reasons for judgment his Honour correctly found that the orders sought by the mother in the event that no child sexual abuse was found and no unacceptable risk was found, implicitly conceded “a capacity of the [father] to provide for the needs of the [children]”, and that the father demonstrated appropriate attitudes to the children and the responsibilities of parenthood (at [382]).
In addition, his Honour said this in [383]:
383While the mother, in particular, criticised aspects of the father’s parenting, her orders do not suggest (again absent the findings referred to) that any such parenting deficiencies should sound in orders that, for example, would see the father either not seeing the children or spending supervised time with him. That, in my view, is a proper (implicit) concession.
We find no merit in this ground of appeal.
Conclusion
Having found no merit in any of the grounds of appeal, the appeal must be dismissed.
Costs
At the conclusion of the hearing we sought submissions from the parties as to the issue of costs depending on the result of the appeal.
In the event that the appeal was unsuccessful, both the father and the ICL sought orders for costs against the mother. The mother opposed those applications for two reasons: first, her counsel submitted that given the seriousness of the issue raised, namely allegations of child sexual abuse, there was always going to be an appeal, and secondly, that prior to the hearing of the appeal the mother was “abandoned by her previous counsel” and that resulted in additional costs not only to the mother but to the other parties. In relation to the additional costs, we were informed that there was agreement between the parties that the mother pay the father’s costs of and incidental to the preparation of an amended summary of argument and list of authorities fixed in the sum of $8,800, and the ICL’s costs in relation to the same fixed in the sum of $2,043.80. We were further informed that those costs had been paid by the mother.
As to the seriousness of the issue raised, the fact of the matter is that the mother has been wholly unsuccessful in the appeal and as a result the father has unnecessarily incurred substantial legal costs, as has the ICL. In these circumstances we consider it appropriate for orders for costs to be made as sought. Presumably though, any amount of costs to be paid would need to take into account the agreement between the parties and the costs already paid, and we will leave that to the parties and the ICL.
I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 27 April 2015.
Legal Associate:
Date: 27 April 2015
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